Sample waiver of counterclaim. Statement of Waiver of Claims. How to apply correctly? What is it, how is it served and decorated?

Waiver of a claim in civil proceedings is a specific form of protection of rights. The refusal is carried out by the plaintiff voluntarily, without pressure from the defendant, regardless of what stage the case is at.

Concept

Waiver of the claims contained in the claim implies the right of the plaintiff to complete the civil process by withdrawing all or part of the claims against the defendant. An indication of the possibility of refusal is contained in Art. and represents the plaintiff’s discretionary right. At the same time, the abandonment of a claim in civil proceedings also means the termination of a substantive legal claim. Nevertheless, such an expression of will does not in any way affect the substantive right itself and does not exclude its out-of-court protection, but may be associated with the inexpediency of the statement of claim or, which is much more common, especially if we are talking about the refusal of part of the claims, the defendant’s independent execution of actions for restoration the plaintiff's rights were violated. So, the refusal of judicial protection is consistent with the subjective nature of rights and the ability to dispose of them at discretion in accordance with the provisions of Article 9 of the Civil Code of the Russian Federation.

Causes

In most cases, the judge will easily accept the refusal if the plaintiff properly informs him of the reasons. The arguments that guide the applicant may vary. If the claim is related to a material claim, then, most likely, the defendant could pay the amount of the debt before the court hearing and reimburse the legal costs. In such cases, it is also possible to waive only part of the requirements. For example, a debt has been paid in principal, but interest remains unpaid. Termination of the process at the initiative of the plaintiff is also possible due to new circumstances in which it would be unprofitable or unreasonable to support the claims.

The plaintiff may abandon the claim if the other party has ceased to infringe. For example, the defendant opened a passage through the territory in respect of which an easement had previously been established. In disputes about divorce, the basis for withdrawing the claim may be the improved relationship between the spouses. And in cases of protection of dignity - the defendant’s public admission of publishing information that is not true and does not correspond to reality.

Types of Waivers

Studying the norms of the Civil Procedure Code allows us to talk about two types of refusal: a complete refusal of a claim in civil proceedings, expressed in the denial of all previously stated claims, and a partial one. A partial refusal should be distinguished from a reduction of claims, although along with a reduction of claims, the proceedings in the case are also completed in a certain part.

Changing the amount of claims towards their reduction does not mean the termination of the trial and does not mean that the plaintiff does not have the right to apply for claims again, as in the case of refusal. The possibility of combining these actions is also not completely excluded. For example, after filing a claim for termination of the contract, return of money for the goods, as well as payment of the amount of the fine, the “dripping” penalty and reimbursement of legal costs, the defendant decided to transfer an amount equal to the cost of the goods (which does not exclude claims for a fine). Such an action limits the amount of the penalty to the date of return of money for the goods and forces the plaintiff to abandon the main claim in the process, since it has been fulfilled.

Form of waiver of claims in civil proceedings

Before starting the hearing, the judge, in accordance with the rules of the proceedings, asks the plaintiff if he has a desire to enter into a settlement agreement or an expression of will to abandon the claim in civil proceedings. Article 173 of the Code of Civil Procedure implies two forms of refusal - oral and written.

According to the general rules, an oral petition can be voiced during the trial before the court retires to a special room and can be provided on the same basis as a written petition in the appellate or cassation instance. However, the form itself does not in any way affect the legal effect of the submitted application. An oral statement is recorded in the minutes, and when conducting a video conference, written confirmation will be required from the judicial authority conducting such an event.

Procedure for waiving claims in civil proceedings

As already mentioned, a refusal can be made orally or in writing, with an oral statement subject to recording in the minutes of the meeting, and the court, among other things, may require the signing of an oral petition. However, in most cases, the judge will prefer a written statement to an oral statement, since for the first it is necessary to quickly draw up the minutes of the meeting. The written statement submitted during the meeting is attached to the case file, and the secretary makes a note about it.

How does a court accept a waiver of a claim?

The court's acceptance of the waiver of the claim occurs after receiving the petition. The court is obliged to explain to the plaintiff what consequences follow, in confirmation of which he puts a signature. Based on the refusal, the judge draws up a ruling that ends the judicial proceedings. However, if it concerned only part of the claims, then the proceedings continue. The waiver of the claim must be unconditional, otherwise we are talking about a settlement agreement in relation to a specific subject. The refusal can be accepted both in the appellate and cassation instances, since its very essence does not contradict this outcome of the case. An essential condition for accepting a waiver of a claim is the absence of violations of substantive law.

Court ruling on acceptance of waiver of claim

Based on the results of the consideration, the court issues an appropriate ruling. The definition must have 4 parts: introduction, description, motivation and resolution. The introduction indicates the composition of the court, a list of persons participating in the case, as well as a brief description of the plaintiff’s claims. The following describes the circumstances of the case in chronological order. The court then establishes a regulatory framework as the basis for the legal admissibility of the refusal, in order to then issue a resolution to complete the proceedings with a brief description of the negative consequences of the refusal for the plaintiff. At the end, the court indicates within what period the decision can be appealed.

Can a court refuse to accept a waiver of a claim in a civil proceeding?

The consequences of abandoning the claim are significant for the applicant, so the court is obliged to assess whether the plaintiff is violating his own legitimate interests. In practice, such a combination of circumstances occurs quite rarely. contains a statement that the court has the right to reject the waiver of the claim if such an action by the plaintiff is directed against the rights of third parties, as well as legal relations protected by law. The court has the right to find out whether there is a violation of rights only by examining the case on its merits. However, sometimes the answer to the question of the legality of refusing a claim is contained on the surface.

For example, the court cannot satisfy a request for refusal if it comes to assigning alimony to minors, and their representative (often a woman) insists on recording the act of refusal, so that in the future the other parent will not subsequently have the right to file a claim for alimony from the children . However, such a refusal significantly violates the children’s right to receive a living from both parents.

Consequences of refusing a claim

Refusal of a claim in civil proceedings, the consequences of which are not so favorable for the plaintiff, must be carefully considered in advance. Firstly, the refusal deprives the plaintiff of the right to compensation for funds spent on paying for the services of a representative, conducting examinations, etc. In accordance with Art. 101 of the Code of Civil Procedure of the Russian Federation, the plaintiff will be obliged to pay for the defendant all expenses that he incurred in connection with the stated claim. The plaintiff is also deprived of the right to file a claim again with the same subject and basis; upon receipt of such a claim, the court will issue a ruling refusing to accept it. If the court mistakenly starts proceedings, then when the circumstances are clarified, they will be terminated. The best option would be to conclude a settlement agreement, since the parties will be able to agree on all issues in a way that suits them, especially regarding legal costs.

Waiver of a claim in civil proceedings: sample application

The header of the application for refusal indicates the court to which it was sent, full name and details of the parties, as well as details of the case. The wording of the request is something like this:

“The N court of the city of _______ __________ region is considering a claim of _____________ (personal data of the plaintiff) against ________________ (personal data of the defendant) about ______________ (essence of the claim).

Since the controversial issue was resolved before the court hearing, the plaintiff considers it correct to abandon the previously stated demands. The refusal was made voluntarily, the plaintiff is aware of the legal consequences of the court granting this application. Guided by the provisions of Art. 39 of the Civil Code of the Russian Federation, please take it into account and withdraw the claim in civil proceedings and return the state duty.”

The expediency of termination at the initiative of the plaintiff

The action to waive the claim has so many negative consequences for the plaintiff that the party's representative must carefully consider his decision. If deficiencies are discovered in the substantiation of the claim, it is better for the applicant to correct the deficiencies before deciding to accept the claim for proceedings. According to the provisions of Art. 135 of the Code of Civil Procedure, the plaintiff has the right to return the claim before a ruling on its acceptance is made, and the return, in turn, is not an obstacle to a repeated application on coinciding subjects and grounds. When the claim has already been accepted for proceedings, it is much more correct to conclude a settlement agreement.

However, in some cases it is actually beneficial for the plaintiff to abandon the claim, especially if we are talking about long-term relationships. For example, former spouses agreed to pay alimony in an amount greater than one quarter of income.

Refund of state duty upon refusal of claim

Despite the refusal of the claim, the state fee is returned to the plaintiff on the basis of the application in full, with the exception of cases of appeal to the Supreme Court, then with a settlement agreement only half of the amount is returned, and in case of voluntary actions on the part of the defendant before the court hearing, the paid fee is not returned at all, even if the claim was abandoned. Refund of the fee is carried out only if you have the original payment document or a certificate of payment made from the bank. The petition is drawn up in free form and contains information about the reasons for the return, the amount of the fee, and information about the applicant. The legal basis for satisfying the claim is the refusal of the claim. The refund of the state duty is made by a court decision in the form of a ruling and comes into force within 15 days. Afterwards, you must submit to the tax authority a certificate of payment, a passport, a corresponding application indicating the current account, a copy of the ruling, the basis of which was the refusal of the claim.

The fee is returned within 3 years from the date of transfer of funds (as a general rule, within 1 month) upon return of overpaid funds.

Thus, the refusal of substantive legal requirements in the process contains a number of not the most positive consequences for the plaintiff in the form of legal costs and compensation for the defendant’s expenses, and therefore the appropriateness of the petition to complete the process on the initiative of the applicant is called into question. In addition, the plaintiff loses the opportunity to re-apply. A settlement agreement is the best alternative to such a measure as abandoning a claim in civil proceedings. Refund of the state duty is carried out on the basis of a court ruling and an application to the tax authority.

When filing a statement of claim, the plaintiff states his claims against the defendant. This claim should be filed only if the parties tried to resolve the dispute amicably, but were unable to reach an agreement. This must be confirmed by the attached documentary evidence. During the consideration of the case, as well as before the start of the court hearing, the parties can agree to independently resolve the issue by concluding a peace agreement or simple agreements.

The entire procedure for regulating the judicial process is fixed in the Civil Procedure Code. It is on the basis of this legislation that the plaintiff has the right:

• change the grounds for filing an application;
• increase or decrease the size of your claims;
• the responsible person can recognize the claims made against him and pay them before the final decision is made;
• the applicant may voluntarily withdraw his application;
• The parties can sign a settlement agreement, which a judge must approve.

Thus, Article 39 of this legislation allows the plaintiff to write a waiver of the claim if he and the defendant manage to independently resolve the controversial situation that has arisen, in which the plaintiff’s demands will be fully satisfied.

However, it is important to know that the court does not have the right to accept a refusal to consider a court case, or to consider the claim recognized by the responsible party if this would be contrary to Russian legislation, as well as in cases of violation of the rights of third parties in this case.

To cancel a claim that has already been filed and submitted, you must correctly draw up an application. Based on this document, the court may decide to cancel. The application procedure will be as follows:

1. The name of the court to which the claim itself was filed is always written first.
2. Next, be sure to write personal information about the applicant. These include not only your full name, but also registration and contact information. This is necessary in order to send a written response and quickly contact the applicant if necessary.
3. If the application is made by an authorized representative, then the personal data of the representative, similar to the data of the applicant himself, is listed below, as well as the details of the power of attorney on the basis of which this authorized representative represents the interests.
4. The title of the document must be indicated not only in the form of a statement, but also describe what exactly is being discussed, that is, it must be stated that it is a waiver of the claim.
5. The following describes the essence of the document. Here you need to state that a certain civil case with a specific number is pending before this court. This number must be indicated in the application. The essence of the claims of this claim is also briefly stated.
6. Next, you need to explain the reason why the plaintiff decided to withdraw this claim. The main arguments that can be used are that the dispute was resolved peacefully. It is important to state that abandoning the claim is a voluntary decision that was not influenced by third interested parties.
7. The plaintiff must also state the fact that he is aware of the loss of his rights to re-file a claim in this case against this defendant.
8. Next, it is important to include a link to the article giving the right to refuse the claim. In this case, 39 Code of Civil Procedure of the Russian Federation.
9. After this, in the part where the requirements are stated, you need to write a request to accept the waiver of a specific claim.
10. Next is the date and signature of the applicant or his representative.

The application itself must be drawn up legally correctly, without errors or corrections. You can submit it in several ways:

• provide in person or through a representative;
• send by mail by letter.

Refusal is allowed only in writing and only from the plaintiff. No other party has the right to decide for the applicant that the claim should be rejected by him.

Refusal procedure

Cancellation of a submitted application can actually be carried out only in the following cases:

• the plaintiff voluntarily decided to abandon his stated claims;
• the court recognized the possibility of accepting the application for refusal, since it does not violate the rights of other persons.

After such a decision is made, the paperwork is terminated. However, in order for the court to be convinced of the reality of the plaintiff’s intentions and the voluntariness of the decision made, it clarifies the reasons for which the refusal was filed. These may include the following:

• the plaintiff has lost interest in the stated requirements and the consideration of the case itself;
• the applicant decided of his own free will to forgive this violation of his rights to the defendant;
• during the consideration of the case, the plaintiff realized that his claims were unfounded and that it was impossible to provide more evidence;
• The defendant compensated the claims made to the plaintiff before the court decision was made.

If the applicant can convince the judge that such a decision is voluntary, and if it does not contradict the law, and also does not affect the interests of other people, then the refusal will enter into legal force.

Most often, refusals are not accepted when the plaintiff tries to abandon his claim, but in this case the interests of the child are affected. Then the court does not have the right to stop the proceedings in such a case.

Submitting an application

The application itself can be filed or sent by mail to the office of the judicial authority that is considering the case. This petition can also be sent during the proceedings itself. In this case, it is advisable to personally express this desire to the plaintiff so that the court has no doubts about the decision being made on a voluntary basis.

The period for filing a refusal is allowed from any moment after the filing of the claim itself and until the moment the judge leaves the meeting to deliberate and make a decision. After filing the refusal, the judge will allow not only the plaintiff himself, but also other participants in this process to speak on this matter. They can present their arguments and evidence for their position.

The decision to refuse is made by drawing up a reasoned ruling, which details the reasons for such a court decision.

Consequences

It is important to know that if the refusal has entered into force, then the applicant will no longer be able to bring this claim again. If any circumstances arise that may serve as grounds for a new trial, the plaintiff must change:

• requirements;
• item;
• grounds.

If at least one of these points is changed, the court will allow a similar claim to be considered again. Therefore, it is very important not to give in to the defendant’s persuasion to dismiss the claim. If the requirements are not first met by the responsible party, then you should not even agree to this adventure. It often happens that the defendant, knowing the rule about the impossibility of filing a second application, after the plaintiff’s refusal, does not fulfill in good faith the obligations he promised.

The most correct decision in this case would be to agree on drawing up a settlement agreement. This document can be drawn up at any time before the removal of the judge for the purpose of making a decision. When applying for a settlement agreement, the parties may retire for negotiations or ask to postpone the meeting to prepare this document. Based on such an agreement, the responsible party will be obliged to fulfill the requirements if the court approves the document accepted by the participants. And in case of failure to fulfill his duties, the plaintiff can draw up a writ of execution and submit it to the bailiffs to open enforcement proceedings.

Thus, the rights of the plaintiff will be protected from fraudulent actions on the part of the defendant. The defendant will receive similar protection of his rights if he fulfills his obligations in good faith. Also, if desired, the responsible person may voluntarily fully admit the claims. This will save time during the consideration of the case.

The plaintiff has the right to waive relief on a specific issue set forth in the complaint at any time until a court decision has been rendered. To do this, it is enough for him to simply submit an application to abandon the claim.

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This is a common phenomenon, and the reasons for it can be different; most often, the claim is abandoned due to the fact that the defendant voluntarily satisfied the plaintiff’s demands.

What it is

Waiver of a claim implies an expression by the plaintiff of a desire to waive judicial protection of the specific right for which the claim was filed.

According to the law, such a petition can be filed at any time until the court makes a decision on the claim.

Waiver of claims carries certain consequences for the plaintiff and should not be used if you simply need to make some adjustments to the contents or requirements of a previously filed claim.

The court, having accepted the petition to waive the claims, will issue an appropriate ruling. In certain situations, the plaintiff retains the right to demand that the defendant pay legal costs already incurred.

Legal standards

In the Civil Procedure Code, the plaintiff’s opportunity to abandon the claim is provided for in Article 39. There is such a possibility in the Administrative Procedure Code, and specifically in Article 49 of the Arbitration Procedure Code of the Russian Federation.

Comment. In some cases, the court may refuse to satisfy a motion to dismiss the claim. If the rights of third parties are violated, for example, children during a dispute between parents.

Basic Concepts

The plaintiff can file a waiver of the claim at any time until the court makes a decision on the case. It can be drawn up in the form of a document or verbally announced to the court in the form of a petition with the obligatory recording of information in the protocol, confirmed by the signature of the plaintiff.

The right to file a waiver of claim belongs only to the plaintiff.

If such a statement was received or a corresponding request was made orally during the court hearing, then other parties may present objections or ask questions directly related to the circumstances of the refusal.

Instead of the plaintiff himself, his representative can file a waiver of claims, but his power of attorney must indicate the corresponding right. Otherwise, the court will not be able to accept the refusal.

If a refusal is received, the court must explain to the plaintiff all the consequences that follow after its filing.

Comment. It is impossible to condition the refusal of a claim on the payment of any amount, or on the performance of certain actions by the defendant.

Such refusals will be unlawful and cannot be considered by the court. In this case, it can be replaced by a settlement agreement concluded between the parties to the case.

It is also possible to waive only part of the claims against the defendant. But this is done by changing the claims.

Video: refusal, return, abandonment of the statement of claim

Waiver of Claims

The voluntary refusal of the plaintiff to claim is a fairly common phenomenon. It is necessary not only to determine its cause, but also to take into account the consequences for the plaintiff. They must be explained before the refusal is accepted.

It is better to formalize the waiver of claims in the form of a document. This will make it possible to accurately record the reason, which may be necessary in the event of recovery of legal costs from the defendant.

Important. If, in connection with the voluntary satisfaction of the demands by the defendant, the plaintiff filed a waiver of the claim, the state duty will not be refunded to him.

But the plaintiff has the right to recover from the defendant the legal costs incurred, not only the amount of the state duty, but also other expenses, for example, those associated with paying for the services of a representative.

The mere fact of submitting a refusal does not mean that it will be automatically accepted.

In certain cases, the court may not accept the plaintiff’s waiver of claims against the defendant if it violates current legislation or it is filed without taking into account the interests of third parties that are affected in the case.

It is also not allowed to file a waiver of claims in cases where the plaintiff is under pressure from the defendant or third parties.

Having discovered such facts, the court may refuse to accept the refusal and continue the consideration of the case. But such situations are quite rare.

For what reasons

The most common reason why plaintiffs waive the demands set forth in the claim is their voluntary satisfaction by the defendant.

The plaintiff cannot condition his refusal on any demands on the defendant, for example, to pay a certain amount in the form of compensation, perform certain actions, etc.

In fact, the reasons for refusing a claim can be very different:

In some cases, especially in arbitration court, quite interesting circumstances may arise that force the plaintiff to file a waiver of claims.

For example, as a result of a change in the ownership of the defendant, it may come under the control of the plaintiff or affiliates.

Advice. The statement of refusal of the claim submitted to the judicial authorities should indicate the reason for such actions.

Although such an obligation is not provided for by law, the presence of reasons in the statement will make it possible to more correctly resolve the issue of accepting the refusal, and may also be useful in reimbursement of expenses incurred by the plaintiff during the trial.

How to sue

According to the law, both in arbitration and civil cases it is possible to submit a waiver of the claim orally and in writing.

When filing orally, the plaintiff addresses the court with a corresponding petition during the court hearing. In this case, a corresponding note is made in the protocol.

The court explains to the plaintiff the consequences of filing a waiver of the claim and asks him to confirm the waiver with a handwritten signature and become familiar with the consequences.

Courts do not always accept an oral motion to dismiss a claim. This is due to the need to prepare a protocol directly during the court hearing so that the plaintiff can confirm the petition with his signature.

The written option of filing an application to abandon the claim is preferable for the plaintiff himself, since in this case the reasons for filing the refusal are guaranteed, and technical errors are often made when drawing up the protocol.

After receiving a written refusal, the court also explains to the defendant the consequences that await him.

Not only the plaintiff, but his representative can file an application to abandon the claim. In this case, it is necessary to check in advance the indication of the presence of these powers in the power of attorney.

Compiling a current application

The legislation does not approve a separate form of application for refusal of a claim. The plaintiff can draw it up independently, for example, by using this sample statement of refusal of claim by downloading it.

Let's consider which sections should contain a statement of waiver of claim:

• a cap;
• Title of the document;
• content;
• pleading part;
• date and signature of the plaintiff.

The header indicates the name of the court in which the case is being heard, as well as all the details of the plaintiff and defendant. This is followed by the name of the document itself, followed by the main content of the application.

It should indicate information that allows you to clearly identify the initial claim (subject of the claim, name or full name of the defendant), as well as the reason for abandoning the claim.

In the pleading part of such a statement there will be only one paragraph in which the plaintiff requests the court to accept his waiver of claims.

The application must end with the date and signature of the plaintiff or his representative. When signing a document by a representative, a power of attorney must be attached to it.

Review Process

Having received from the client an oral petition or statement of refusal of the claim in the form of a document, the court records this in the minutes of the meeting.

At the same time, the plaintiff is explained the consequences of accepting such a statement by the court, which is recorded in the corresponding entry in the protocol.

After explaining the consequences, if the waiver of claims does not affect the rights of third parties, the court issues an appropriate determination, which will subsequently be prepared in the form of a document.

What consequences

After filing the application, the court explains to the plaintiff that he will no longer have the right to apply to the court with the same demands against this defendant on the same grounds.

This must be taken into account, because sometimes it is better to make certain changes to the claims than to abandon them completely.

There may be other consequences for the plaintiff if the claim is abandoned:

Refusal of a claim is a fairly common phenomenon, which can be due to various reasons.

But before filing a petition or submitting an application, you should weigh all the positive and negative consequences.

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A sample application for waiver of claims, taking into account the latest changes in the legislation of the Russian Federation.

It happens that during the trial, circumstances develop in such a way that further consideration of the statement of claim simply loses its meaning.

The reasons for such situations are varied. This may be either a desire to end a useless and overly protracted case, or the result of the defendant’s efforts to resolve the issue amicably.

In any case, according to the provisions of Article 39 of the Civil Procedure Code of the Russian Federation, the plaintiff has the right to both change the grounds and subject of the claim, and to abandon it altogether. The only limitation of this right is a violation of the law.

It should be noted that such cases are provided for in the legislation. For example, a guardian does not have the right to refuse a claim if he went to court in the interests of his ward. The legislation of the Russian Federation also indicates a number of similar restrictions, but their number is insignificant.

Writing such a statement does not present any particular problems. A sample document is presented below. It is worth noting that the process of writing such a statement is the simplest in the entire civil process, however, the plaintiff should remember that once he has abandoned the claim, he will no longer have the right to file such a statement in court.

Therefore, before abandoning a claim, you need to think very carefully about the possible consequences. And in some cases, it is best to conclude a settlement agreement with the defendant, which the court will approve with its decision as a guarantee of its proper execution.

IN ____________________________
(Name of district court, address)

In civil case No. _________

Plaintiff: _________________________________
(Full name, residential address,
Contact details)

Respondent: _____________________
(Full name, residential address,
Contact details)

Statement

waiver of claims

Currently, ______________ (insert the name of the court) is considering a civil case based on the claim of _________________________ (full name of the plaintiff, address) against ________________________ (full name of the defendant, address) about ____________________ (indicate the subject of the claim).

Due to the fact that ______________________ (indicate the reasons for abandoning the claim), I believe that further legal proceedings are not advisable.

Considering the above, in accordance with the requirements of Article 39 of the Civil Procedure Code of the Russian Federation,

ASK:

The trial on the claim of ___________________ (full name of the plaintiff, address) to ___________________ (full name of the defendant, address) about ___________________ (indicate the subject of the claim) is terminated due to the plaintiff’s refusal of the claim.

“___” “________” 20__ ________________ (signature)

What is a waiver of claim and why waive claims in a lawsuit if a statement of claim was originally filed?

Waiver of a claim is a procedural action expressing the plaintiff’s desire to waive judicial protection of a specific subjective right.

The plaintiff’s refusal of the claim can be caused by a wide variety of reasons:

- due to the defendant’s voluntary fulfillment of the plaintiff’s demands and reimbursement of legal costs or in the hope of the defendant’s promise to voluntarily fulfill the demands;

- in connection with the termination by the defendant of actions violating the rights of the plaintiff;

- due to the fact that the plaintiff became aware of significant circumstances in the presence of which the dispute initiated by him becomes irrelevant or unfounded;

- and also on others.

Nolle prosequi: general provisions

The plaintiff has the right to abandon the claim in whole or in part at any time during the trial until a judicial act is adopted, which ends the consideration of the case on the merits.

A statement of waiver of a claim may be made at a court hearing orally or in writing. An oral statement of refusal of the claim is entered into the minutes of the court session and signed by the plaintiff. The written application is attached to the case materials, and a corresponding note is made in the minutes of the court session.

Persons participating in the case voice their position regarding the orally declared (stated in writing) refusal of the claim, and may object and ask questions about this fact.

When accepting a waiver of a claim, the court explains to the plaintiff the consequences of such a procedural action. An entry is made in the minutes of the court hearing that the consequences of the refusal were explained to the applicant. The applicant signs the minutes of the court hearing, thereby certifying that the consequences of the refusal have been explained to him.

If the plaintiff completely abandons the claim and the court accepts it, the court issues a ruling, which simultaneously terminates the proceedings.

Partial waiver of claims is possible. In this case, the trial will continue regarding the remaining part.

By virtue of Part 2 of Article 39 of the Code of Civil Procedure of the Russian Federation, the court does not accept the plaintiff’s refusal of the claim if this is contrary to the law or violates the rights and legitimate interests of other persons, for example: if the opinion of children under the age of 10 is not taken into account when considering a dispute between parents.

That is, it is not enough to write a statement of waiver of the claim or state it orally during the process; it is also necessary for the waiver to be accepted by the court.

If the court does not accept the plaintiff’s refusal of the claim, the court makes a ruling on this and continues to consider the case on the merits.

The rights and legitimate interests of the plaintiff can be defended in court by his representative. If the plaintiff does not personally take part in the process, it should be noted that a complete or partial waiver of the claim relates to individual procedural actions, which, in order to be carried out by a representative in court, must be specifically stipulated in the power of attorney.

If we assume a situation in which the plaintiff (his representative) discovered significant shortcomings in his position and they can be corrected, it is advisable to take care of correcting them before the court makes a ruling on accepting the statement of claim for court proceedings, and here’s why.

The judge, in accordance with Part 1 of Article 135 of the Code of Civil Procedure of the Russian Federation, returns the statement of claim on the grounds specified therein, including the receipt from the plaintiff of an application for the return of the statement of claim before the court makes a ruling on accepting the statement of claim for trial.

According to Part 3 of Article 135 of the Code of Civil Procedure of the Russian Federation, the return of the statement of claim does not prevent the plaintiff from filing a lawsuit again with the same defendant, on the same subject and on the same grounds, if the plaintiff eliminates the violation.

Consequently, the consequences that occur for the plaintiff in connection with the return of the statement of claim are more favorable in comparison with the consequences that occur for him in case of abandonment of the claim and are discussed in more detail in the next section of this article.

Consequences of refusing a claim

If the plaintiff abandons the claim completely and the court accepts it, the proceedings in the case are terminated, however, such a procedural action, if accepted by the court, always entails a number of unfavorable consequences for the plaintiff:

1) All legal costs incurred by the plaintiff when applying to court for the protection of violated rights and legitimate interests (costs of paying state fees, costs of paying for the services of a representative in court, costs of examination) will not be compensated;

2) In addition, the plaintiff will have to reimburse the defendant for expenses incurred in connection with the claim. The defendant's expenses incurred during the trial may be significant (expenses for paying for the services of a representative, for paying for expert opinions, for the defendant's travel to the location of the court, and others);

3) In addition to the financial adverse consequences for the plaintiff associated with the refusal of the claim and noticeable immediately, one should remember another adverse consequence in the long term.

It lies in the fact that if the court accepts the plaintiff’s refusal of the claim, a repeated appeal to the court in a dispute between the same parties, about the same subject and on the same grounds is not allowed.

And if the plaintiff nevertheless re-files a statement of claim with the same demands against the same defendant, the court will refuse to accept it. And if such a statement of claim is mistakenly accepted by the court for proceedings, this legal proceeding will subsequently be terminated.

Therefore, if the plaintiff does not want to face the above-mentioned adverse consequences, but continuing the proceedings is not advisable for him (for example: in the case of the defendant’s promises to fulfill the plaintiff’s demands in the future), a good solution for him would be to conclude a settlement agreement with the defendant.

The settlement agreement will allow the parties to resolve all issues relating to both the claims and the distribution of legal costs incurred.

Please note: as changes in the legislation of the Russian Federation are released and come into force, some of the information provided on this page may be outdated and no longer applicable.

Waiver of Claims

Sometimes it happens that after filing an application in court, a person for some reason changes his mind about suing. Perhaps the debtor voluntarily repaid the debt or the relatives finally managed to come to an agreement. Or the person thought and realized that he got excited and his claims are unfounded. In such cases, the plaintiff has the right to refuse the claim. In this article we will tell you when to do this, how to submit an application correctly, and what the consequences of such an action are.

Is it worth doing?

If the claim is abandoned, re-applying to the court in a dispute between the same parties, about the same subject and on the same grounds is not allowed. This means that the plaintiff will no longer be able to bring similar claims to the same defendant in court. Therefore, it is advisable to waive claims in two cases:

If you and the defendant agreed to resolve the issue peacefully, then it is better to formalize this with a settlement agreement.

But it's not always that simple.

Example

Maria quarreled with her neighbor and filed a lawsuit against her - the neighbor’s garage encroached as much as 10 centimeters onto Maria’s territory. Then the quarrel was over, the neighbor apologized and promised, if Maria withdraws the application, to get her grandson a good job in her office. It is clear that the court will not accept the settlement agreement with the obligation to provide placement for the grandson. The neighbor may change her mind, or something may not work out for her. The garage itself has been standing for many years and, in principle, it does not bother Maria at all. But, having abandoned the claim, Maria will no longer be able to go to court with the same demand - she will receive a refusal to accept the statement of claim. How to deal with the situation is up to Maria herself to decide.

What is it, how is it served and decorated?

Refusal of a claim is a legally significant action - you are left without judicial protection of your rights. Here you need to remember that the plaintiff cannot abandon the claim provided that the defendant takes any action: fulfills the stated requirements, pays the debt, etc.

The refusal of the claim can be accepted by the judge at any stage of the civil process, after the case has been accepted for proceedings and before the court retires to the deliberation room to make a decision. Claims can be waived, either completely or partially, both in the court of first instance and in the court of appeal.

An application for waiver of claims may be filed by the plaintiff through the court office or stated in person during the trial, orally or in writing. It is better to do this in court so that the judge immediately has the opportunity to establish the actual will of the applicant. The court must be satisfied that the person is acting voluntarily and is fully aware of the meaning and consequences of his actions. The will of the plaintiff must be expressed clearly and unambiguously.

The issue is resolved by issuing a reasoned ruling, in which the court grants the application and terminates the proceedings, or refuses to satisfy the application and the trial continues. The court will not accept a refusal if it is contrary to the law or violates the rights of third parties.

Consequences of refusing a claim

After the court ruling has entered into legal force in accordance with Article 221 of the Code of Civil Procedure of the Russian Federation, repeated appeal to the court in a dispute between the same parties, about the same subject and on the same grounds is not allowed. This means that the plaintiff will no longer be able to bring similar demands to the same defendant in court.

This rule does not apply if the plaintiff has changed the grounds of the claim or stated new demands by changing the subject of the claim. In general, abandoning a claim should be treated with caution, taking into account these consequences. If the defendant offers to resolve the issue peacefully, promising to pay certain compensation in the future, it is better to file a lawsuit statement of settlement agreement.

according to Suvorov’s application for recognition of the claim;

One of the rights of a defendant in a civil proceeding is the ability to waive trial by filing an application for recognition of the claim.

Such a statement means that the defendant agrees with the plaintiff’s arguments and is ready to satisfy his demands in full. It will not be particularly difficult to prepare an application for recognition of a claim on your own. If the prospect of consideration of the dispute is clearly not in favor of the defendant, recognition of the claim at the early stages of the case (for example, after the court accepts the claim for proceedings) will save money, for example, on paying for the services of a representative. This also applies to cases where the plaintiff demands a penalty, since their volume on the date of consideration by the court can be increased by the plaintiff by clarification of the amount of claims.

Features of drawing up and filing an application for recognition of a claim

An application for recognition of a claim can be filed with the court at any stage of the process: from the moment the claim is accepted for proceedings until a decision is made. The text of the application must indicate an understanding of the articles of the Code of Civil Procedure of the Russian Federation (in the sample) and the consequences of the court decision. From now on, such a civil dispute will be considered resolved and will no longer be considered in court. Therefore, when accepting a claim, the defendant must understand that he is obliged to satisfy all the plaintiff’s demands within the time frame established by the court.

If the defendant does not agree on any of the points, the parties can enter into a settlement agreement. If the plaintiff refuses, you can either continue the process or still admit the claim regarding these claims. The application is made in writing and submitted to the court that is considering the case. If such a document is drawn up by a representative, the right to submit it must be specifically stipulated in the power of attorney or in the petition to the court to involve a representative in the case.

Consideration by the court of an application for recognition of the claim

The court cannot refuse to accept the defendant’s statement of recognition of the claim, except in cases where this contradicts the rights and interests of other persons (as a rule, disputes about the division of property in the presence of minor children, about challenging paternity, etc.). Then the defendant will have to provide evidence that his recognition of the claim will not harm the legally protected rights and interests of third parties. In other cases, the court accepts recognition of the claim, making a decision to satisfy the claims.

The defendant does not have the right to withdraw the application for recognition of the claim after it has been accepted by the court. The decision can be submitted appeal However, in this case, it will be additionally necessary to substantiate the reasons that led to the defendant admitting the claims in the court of first instance.

An application for recognition of a claim is an official appeal by several persons or one citizen to an official, a state body, the administration of an institution or a local government body regarding the recognition of a claim. An application, unlike a complaint, is not related to a violation of his legitimate interests and rights and does not contain a request to eliminate such a violation, but is aimed solely at realizing the interests and rights of the applicant or eliminating any shortcomings in the work of enterprises, organizations, institutions. Applications can be submitted either orally or in writing. The procedure for their consideration is similar to how complaints are considered.

Often, court proceedings end with a peaceful decision in favor of the plaintiff, when the defendant sends an application to the court to recognize the claim filed by the plaintiff against him. In this case, fill out a standard form in which the personal data of the defendant is indicated, describe the essence of the case and indicate that the claim filed by the plaintiff is recognized in full by the defendant, and this entails satisfaction in full of the plaintiff’s claims, unless the court decides otherwise. The statement sets out a request to the court to take into account the statement of recognition of the claim and to attach it to the documents in the case. The statement also indicates that the defendant has been informed of the consequences of the court’s acceptance of his statement and fully agrees with the existing situation.

“Civil Procedure Code of the Russian Federation” dated November 14, 2002 N 138-FZ (as amended on April 6, 2015) (as amended and supplemented, entered into force on May 1, 2015) Article 39. Change of claim, waiver of claim, admission of claim, settlement agreement

“Civil Procedure Code of the Russian Federation” dated November 14, 2002 N 138-FZ (as amended on December 30, 2015) (as amended and supplemented, entered into force on January 1, 2016)

Waiver of a claim in civil proceedings

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Nevertheless, such an expression of will does not in any way affect the substantive right itself and does not exclude its out-of-court protection, but may be associated with the inexpediency of the statement of claim or, which is much more common, especially if we are talking about the refusal of part of the claims, the defendant’s independent execution of actions for restoration the plaintiff's rights were violated. So, the refusal of judicial protection is consistent with the subjective nature of rights and the ability to dispose of them at discretion in accordance with the provisions of Article 9 of the Civil Code of the Russian Federation.
Reasons In most cases, the judge will easily accept the refusal if the plaintiff properly informs him of the reasons. The arguments that guide the applicant may vary.
If the claim is related to a material claim, then, most likely, the defendant could pay the amount of the debt before the court hearing and reimburse the legal costs.

Declaration of waiver of claim

Refusal of the claim by the plaintiff and its consequences.

This includes loss of interest in the process, awareness of the groundlessness of the demands, the decision to forgive the debt to the defendant, payment by the latter of the debt to the plaintiff during the consideration of a civil case, etc. The court finds out the reasons for abandoning the claim, and in cases where this does not correspond to the actual will of the plaintiff, is contrary to the law or violates the rights of other persons, the abandonment of the claim is not accepted.

Statement of Waiver of Claims

Home / Lawsuits / Waiver of claims 06/09/2017, Sashka Bukashka Sometimes it happens that after filing an application with the court, a person for some reason changes his mind about suing. Perhaps the debtor voluntarily repaid the debt or the relatives finally managed to come to an agreement.

Waiver of Claims

The refusal can be accepted both in the appellate and cassation instances, since its very essence does not contradict this outcome of the case. An essential condition for accepting a waiver of a claim is the absence of violations of substantive law.

Court ruling on accepting the waiver of the claim Based on the results of consideration of the petition for waiver of the claim, the court issues an appropriate ruling. The definition must have 4 parts: introduction, description, motivation and resolution.

The introduction indicates the composition of the court, a list of persons participating in the case, as well as a brief description of the plaintiff’s claims. The following describes the circumstances of the case in chronological order.
The court then establishes a regulatory framework as the basis for the legal admissibility of the refusal, in order to then issue a resolution to complete the proceedings with a brief description of the negative consequences of the refusal for the plaintiff.

Waiver of claims in civil proceedings (statement) in 2017

For example, after filing a claim for termination of the contract, return of money for the goods, as well as payment of the amount of the fine, the “dripping” penalty and reimbursement of legal costs, the defendant decided to transfer an amount equal to the cost of the goods (which does not exclude claims for a fine). Such an action limits the amount of the penalty to the date of return of money for the goods and forces the plaintiff to abandon the main claim in the process, since it has been fulfilled. Form for waiving claims in civil proceedings Before starting the hearing, the judge, in accordance with the rules of the proceedings, asks the plaintiff whether he has a desire to enter into a settlement agreement or an expression of will to waive the claim in civil proceedings. Article 173 of the Code of Civil Procedure implies two forms of refusal - oral and written.

Consequences of refusing a claim

Therefore, it is advisable to waive claims in two cases:

• when the defendant, after filing a statement of claim, satisfied your demands voluntarily - in this case, you also have the right to ask the court to recover from the defendant all legal costs incurred by you;
• when you realized that you were mistaken, and the court clearly will not satisfy the claims you made due to their illegality and groundlessness. In this situation, by waiving the claims, you will save not only your time and nerves, but also money, because The longer the lawsuit takes, the higher the legal fees you will end up paying.

If you and the defendant agreed to resolve the issue peacefully, then it is better to formalize this with a settlement agreement. But it's not always that simple.
Refusal of the claim by the plaintiff: general provisions The plaintiff has the right to abandon the claim in whole or in part at any time during the legal process until a judicial act is adopted, which ends the consideration of the case on the merits. A statement of waiver of a claim may be made at a court hearing orally or in writing.
An oral statement of refusal of the claim is entered into the minutes of the court session and signed by the plaintiff. The written application is attached to the case materials, and a corresponding note is made in the minutes of the court session. Persons participating in the case voice their position regarding the orally declared (stated in writing) refusal of the claim, and may object and ask questions about this fact. When accepting a waiver of a claim, the court explains to the plaintiff the consequences of such a procedural action.