The ruling on securing the claim is enforced. Measures to secure a claim. Successful tactics of justification in court. What is security for a claim?

How often, when going to court or just intending to do so, do we think about the prospect of actually enforcing a court decision? Of course, if your problem is divorce, there are unlikely to be any problems with making a civil registration. But receiving child support from a negligent parent who does not work anywhere, has nothing, is hiding from bailiffs, or is generally unknown where he is, is already a problem. Moreover, there is no need to talk about collecting funds from a company that is in a pre-bankruptcy state, or even worse - at the stage of bankruptcy. Will a court decision made in your favor be enforced if the debtor is “naked as a falcon” and does not have any property to satisfy the claims? And it no longer matters whether the debtor had such property before the claim was filed, or whether he hid it during the consideration of the case - sold it, re-registered it in the name of his spouse, or otherwise made sure that he would not lose it in the future.

Unfortunately, not everyone thinks about what will happen after the trial. At the initial stage, most citizens who do not have special knowledge in the field of law mistakenly aim only at obtaining a decision that is positive for them. We need to look further, but... insight comes too late. It seems that everything was done correctly: the court took your side and there is a court decision that has entered into legal force, a writ of execution was received and enforcement proceedings were initiated, but the final result, for which, in fact, they went to court, is still not there. And time passes, and more and more often you begin to be tormented by questions: Why was all this necessary? What kind of state is this that cannot enforce the decisions of its own judicial system? Who do I pay taxes to? Many questions of a similar nature arise, but they have one thing in common - the lack of a clear and unambiguous answer.

First, remember, no one will do anything for you. You and only you will have to solve your problems and ensure that the court's decision reaches its logical conclusion. Your ability to analyze and predict will determine what the final outcome of the litigation will be.

It would be useful to note once again that you should not rely entirely on your legal representative. In most cases, a lawyer (advocate), taking on the functions of protecting your interests in court, proceeds from the same thing as you - a positive court decision is the achievement of the goal. Only for a specialist, this approach is not a consequence of his professional myopia; for him, a trial is just a job. If at the initial stage, in the absence of a proper analysis of the controversial situation, you see victory in court as the end result and solution to your problem, a specialist considers this victory as the end of his work, or less often the end of its stage. If the court's decision remains on paper, your attorney will always give an ironclad argument: if they wanted a trial, there was a trial; wanted the court to take your side - the decision is in your favor, here is the writ of execution. For greater persuasiveness, they will rub your nose into the concluded agreement, which will stipulate the scope of services provided without the support of enforcement proceedings. And the lawyer (lawyer) will be right, he did his job. Even if he undertakes to represent your interests in enforcement proceedings, if things go wrong, you will receive an ironclad argument - the decision was not executed due to the unsatisfactory work of the bailiff, and the representative is not to blame. And here the lawyer (attorney), who has so successfully handled your case in more than one instance, will also be right in the majority. Why? Because the representative does not have the authority to enforce a court decision, this is the exclusive competence of the bailiff, and he simply failed in his duties. All this in no way characterizes today's knights of law as some kind of cunning people. Just don’t forget that you will have to solve your problems, even through legal protection and resorting to the services of professionals. The “hired - paid - waited - got yours” format often produces very serious misfires.

If the court decision is highly unlikely to be enforced, think ten times about whether you need to initiate litigation.

Let's return to the topic at hand. Is everything really so hopeless and there is no way to influence such a minor situation? Of course, it is possible, but only to influence and nothing more. It is impossible to provide an absolute guarantee of execution of a court decision. As a way by which a plaintiff can increase his chances of enforcing a decision, current legislation provides for the use of such a procedural institution as securing a claim. Let's talk about this.

To make it clearer, let us characterize the provision of a claim as a kind of look into the future. Who looks to the future? As a rule, this is a plaintiff or a third party with independent claims on the subject of the dispute, or a prosecutor who goes to court to protect the rights or legitimate interests of third parties. For example, a plaintiff, having filed a petition for interim measures, is essentially showing concern for his future; in fact, he is concerned about whether he will receive an award from the debtor by court decision or not.

It cannot be said that interim measures on a claim will guarantee the execution of a court decision, but it increases the chances of its execution. Don’t forget, we are talking about minimizing the risks of non-execution of a court order.

For what purposes is security for a claim necessary? The answer is simple: to achieve the main goal of civil proceedings, which can be divided into two components:

1. Protection of violated or disputed rights, freedoms and legitimate interests;
2. Contributing to the strengthening of law and order, crime prevention, and the formation of respect for the law and the court.

As you can see, through legal proceedings the state not only restores what was violated, but takes preventive measures to prevent such violations. If the authority of the judiciary, strengthening the rule of law or preventing crime (the second component) is of little concern to the average citizen, then direct protection (the first component) is of increased interest to someone who has gotten into trouble and needs judicial protection.

First, you need to understand one simple truth: the protection of violated rights implies their full restoration, which cannot be discussed if the will of the state, as expressed in a court decision, remains unfulfilled.

Now let’s leave the discussion of the importance of taking interim measures in civil proceedings and analyze the main points of the topic raised. For a better understanding and assimilation of the information presented, we will once again use the convenient “Question - Answer” format.

What is security for a claim?

Securing a claim is understood as a procedural action of the court in the form of issuing a ruling on taking measures aimed at reducing the risks of non-fulfillment of a court decision by which the claims are satisfied in full or in part.

What is the basis for securing a claim?

The basis for taking measures to secure the claim is the statement of the persons participating in the case. At least that's what is written in the procedural law. However, this is a superficial approach to answering the question posed. From the formal side, everything is correct; the basis for securing a claim is the request of a participant in the process addressed to the court in the form of an application (petition) to take interim measures. As a rule, such security is initiated by the person who makes the claim (in most cases this is the plaintiff). But there is one BUT... the statement itself cannot be a sufficient basis for taking action. In fact, it is a reason to consider the need for security for the stated claim.

Upon deeper consideration, the basis for provision can be conditionally considered to be the internal conviction of the judge that in the future his decision may not be executed, and the adoption of interim measures will not be unnecessary. In this case, there is a legal analysis, a judge’s modeling of the future situation. With the same success we can say that the basis for making a decision in favor of the plaintiff is the court’s conviction that he is right, and not the statement of claim and the evidence presented. However, this is an important point related to psychology. To get the full picture, it needs to be understood and taken into account.

When can interim measures be taken?

Securing a claim is permissible in any state of the case. This can be either the stage of consideration of the case in the court of first instance, or the proceedings in the higher authorities. The main thing is to prevent a situation where failure to take interim measures could make the execution of a court decision difficult or impossible.

Despite the fact that Chapter 13 of the Code of Civil Procedure of the Russian Federation “Securing a claim” is located in subsection II “Claim proceedings” (section “Proceedings in the court of first instance”), interim measures can be taken not only in a claim, but also, for example, in a writ production.

What measures are there to secure a claim?

Measures to secure a claim are listed in Article 140 of the Code of Civil Procedure of the Russian Federation. The list of measures given in the article is not exhaustive and the court may take other measures to secure the claim. The main thing is that they contribute to achieving the main goal: reducing the risks of non-execution of a court order after it enters into legal force. In addition, the court may apply several interim measures.

Within the framework of this publication, we will not list them, so as not to complicate the perception of the information presented, which is of a general nature. The forms of interim measures are discussed in more detail in a separate article, which also outlines the relationship between the measures taken to secure a claim and the methods of protecting civil rights.

What is the proportionality of interim measures?

Taking measures to secure the claim must be necessary, legal and justified, and the measures themselves must be proportionate to the stated requirements.

Necessity means that if there is no need to secure the claim, the court should not take measures to secure it.

Legality is determined by the fact that measures must be applied in accordance with the letter of the law, i.e. the adoption of measures itself must be aimed at achieving the goal defined by law, and with strict adherence to the procedural procedure.

The third criterion is validity. When taking measures, the court must justify the need for their use. You cannot take action because the judge just wanted it that way.

The proportionality of interim measures, or rather their volume, is a very important criterion; it is easier to understand its meaning using an example. The plaintiff filed a demand to recover money from the defendant in the amount of 15,000 rubles to compensate for the damage caused. At the same time, the plaintiff filed a petition for interim measures in relation to the defendant’s real estate (for example, an apartment) worth 1,500,000 rubles. As you can see, the ratio of what is declared and what is provided differs by several tens of times (1:100) and such a ratio can hardly be called proportionate, i.e. equal or similar in size. Of course, it is very difficult to find property that will secure a claim and in its value exactly match the size of the stated claims, but the difference in the category of figures should tend to a minimum. Unfortunately, this does not always work out, and the court enforces the court decision with what can be found (as a rule, these are funds in bank accounts, a vehicle or real estate).

What is the procedure for considering an application for securing a claim?

An application for securing a claim must be considered on the day it is received by the court. At the same time, the defendant and other persons participating in the case are not notified about the consideration of such an application. Based on the results of the consideration, the court issues a ruling that resolves the issue of accepting or refusing interim measures on the stated claim.

When must the court make a ruling if a motion to secure a claim was filed simultaneously with the filing of the statement of claim?

At the initial application, a request addressed to the court for interim measures can be contained both in the statement of claim (in the pleading part) and in a separate statement (petition), which can be drawn up as an appendix to the statement of claim, or submitted as a separate document simultaneously with the statement of claim . Do not forget that the request must be justified, i.e. the plaintiff must justify the need to secure the claim, indicate what consequences may occur if measures are not taken, and also, if possible (which is very desirable), support his arguments with evidence.

In the case under consideration (simultaneous filing of a statement of claim and an application for its security), quite often one may encounter confusion regarding the day the ruling on interim measures is issued. The law states that the issue of security must be resolved on the day the application is received by the court. In this regard, many believe that securing a claim is possible before the issue of accepting the claim for proceedings and initiating a civil case in the court of first instance is decided. And if the claim is not accepted, for example, will the court return it due to lack of jurisdiction or failure to comply with the mandatory pre-trial procedure? At the same time, supporters of this misconception completely forget that securing a claim is a procedural decision of the court, which can only be made within the framework of judicial proceedings. While there are no proceedings, the court cannot enforce the claim. The exception is preliminary interim measures taken strictly for a specific category of cases (see next question).

The law establishes that the maximum period for consideration of the issue of accepting a statement of claim for proceedings is five days from the date of its receipt by the court. Based on the results of the consideration, a ruling is issued, on the basis of which a civil case is initiated. The issuance of such a determination is considered the date of commencement of judicial proceedings in the court of first instance, and, therefore, it becomes possible to consider the issue of taking interim measures.

Thus, in the absence of grounds for taking preliminary interim measures, the court is obliged to resolve the question raised by the applicant about securing the claim simultaneously with accepting the statement of claim for its proceedings.

Is it possible to take measures to secure a claim before the court accepts the statement of claim?

Unlike the arbitration process (Article 99 of the Arbitration Procedure Code of the Russian Federation), the civil process does not provide for securing a claim before it is accepted in the manner prescribed by law, i.e. before a ruling is made to accept the statement of claim for proceedings, on the basis of which a civil case is initiated in the court of first instance. An exception is Article 144.1 of the Code of Civil Procedure of the Russian Federation, which defines the right of the court to take preliminary interim measures to protect exclusive rights to films, including motion pictures, television films, in information and telecommunication networks, including the Internet. Only the Moscow City Court, which has jurisdiction over the designated category of civil cases, has the right to take such measures. Within 15 days from the date of the determination, the applicant must file a statement of claim on the claim for which preliminary measures have been taken. If the applicant has not done this, the court cancels the preliminary security and issues a ruling.

How is a court order to take interim measures implemented?

Pursuing its main goal - to minimize the risk of non-execution of a court decision - the court's decision to take interim measures is carried out immediately. This means that such a determination is subject to execution before it enters into legal force. Based on the ruling, the court issues a writ of execution to the plaintiff, and a copy of the ruling is sent to the defendant. The court is also obliged to notify state and municipal authorities, which, in cases established by law, carry out registration of property, rights to it, restrictions (encumbrances), transfer and termination. The procedure for executing a ruling on securing a claim is the same as for executing other court decisions, determined by Section VII of the Code of Civil Procedure of the Russian Federation and Federal Law No. 229-FZ of October 2, 2007 “On Enforcement Proceedings.” If the ruling is canceled by a higher court, the writ of execution is revoked.

Is it possible to replace some interim measures with others?

The law allows for the replacement of some interim measures with others. The main rule: do not allow the volume of security to decrease below that of the stated claims, i.e. not to jeopardize the execution of the court decision. The procedure for replacing measures is the same as in the case of their original adoption:

1. The basis is the statement of the persons participating in the case;
2. An application to replace measures to secure a claim is considered by the court on the day it is received without notifying the defendant or other persons participating in the case;
3. The court issues an appropriate ruling regarding replacement.

In addition, in cases where a claim is filed in court for the recovery of a sum of money, the defendant has the right, in exchange for previously taken interim measures, to deposit into the court’s account the amount claimed by the plaintiff.

How and when does the court cancel security for a claim?

Unlike taking measures to secure a claim, their cancellation can be carried out not only at the request of the persons participating in the case, but also at the initiative of the court. At the same time, the same court that applied them must cancel interim measures. Another significant point is that the resolution of the issue of canceling security, in contrast to the resolution of the issue of taking interim measures, is carried out only in a court hearing. The participants in the process must be properly notified; their failure to appear is not an obstacle to considering the issue of canceling the security. Based on the results of the consideration, the court issues an appropriate appealable ruling.

As a general rule, just as in the case of accepting security for a claim, the court has a procedural obligation to immediately notify the authorities registering property and rights to it, their restrictions (encumbrances), transfer and termination, of the cancellation of interim measures.

Interim measures remain in effect depending on the outcome of the civil case.

• If the court decision does not satisfy the claim, the measures taken are maintained until the court decision enters into legal force. Everything here is clear and logical, because the decision of the court of first instance can be canceled (changed) by the court of appeal.
• If the court decision satisfies the claim (in whole or in part), interim measures are maintained until the court decision is executed. It would not be superfluous to mention that in practice, sometimes a problematic situation arises around the removal of interim measures, when security for the claim was accepted in relation to real estate, and such security was state registered as an encumbrance. This problem is a consequence of a certain inconsistency between the designated provisions and the procedure for carrying out registration actions established by Federal Law No. 122-FZ of July 21, 1997 “On state registration of rights to real estate and transactions with it.”

Is it possible to appeal a court ruling to secure a claim?

Any ruling to secure a claim may be appealed by filing a private complaint with a higher court. You can appeal both a determination to take measures to secure a claim (including preliminary ones) and a refusal to satisfy an application for security. In addition, court rulings on the replacement of interim measures, refusal to replace them, as well as a ruling on refusal to cancel previously accepted security may be appealed. In general, everything related to securing the claim is appealed.

The appeal period is 15 days and is calculated as follows:

• If the determination to take interim measures was made in the presence of a person (his representative) who is appealing this determination, or this person was notified of the date and time of the court hearing at which the determination was made, the period is calculated from the day the determination was issued. In this case, the 15-day period begins on the day following the day of announcement of this determination.

Note!

Procedural legislation does not provide for the postponement of drawing up a reasoned ruling, as is permissible in relation to a court decision.

• If the person who filed the complaint did not know about the ruling or should not have known, the period is calculated from the day when such person became aware of this determination. A striking example of this is the situation when a ruling is made outside a court hearing on the day the application for interim measures is received by the court.

Note the wording used in the law – “when such person became aware of this definition.” It seems correct to make a semantic distinction between the phrases “the determination has become known” and “the determination has become known.” The first formulation implies that the person receives a copy of the definition and, accordingly, assumes familiarization with it. In the second case, we are talking about the person’s awareness, i.e. the presence of information about the very fact of the procedural decision of the court, which does not imply its mandatory receipt. In the case under consideration, the person must receive a copy of the ruling on securing the claim, which must be properly documented in the case materials.

It is important to note that a private appeal against any court ruling regarding the security of a claim is considered in the appellate instance without notifying persons involved in the case. The definitions of courts of this category are not included in the significantly expanded list of definitions in 2013, complaints against which are subject to consideration with proper notification of the participants in the process.

In this case, we are talking about notification, and not participation in a hearing of the appellate court. A participant in the process can independently find out about the time and place of consideration of a private complaint (for example, from the State Automated System “Justice” or by tracking and clarifying the information in the court office) and appear for its consideration or send a representative.

Despite the absence of the obligation of the appellate court to notify about the time and place of consideration of a private complaint, depending on the nature and complexity of the procedural issue being resolved, taking into account the arguments of the complaint and objections to it, the appellate court may summon the participants in the process, providing the information necessary for appearance (time and place).

During the period of consideration of the complaint against the ruling on securing the claim, the execution of this ruling not suspended, i.e. filing a private complaint is not a reason not to comply with the ruling. If a ruling to cancel interim measures or replace some measures with others is appealed, the execution of the court ruling suspended filing a private complaint.

Is the defendant compensated for losses caused by securing the claim?

In the case where the court decision is made in favor of the defendant, i.e. the court refuses to satisfy the plaintiff's demands, the defendant has the right to bring a claim against the plaintiff for compensation for losses caused by interim measures taken at the plaintiff's request. Partial satisfaction of the claims does not imply that the defendant has such a claim. The trial in advance, i.e. during the consideration of the main case, may worry about ensuring such compensation for losses by demanding it from the plaintiff who declared the need to take interim measures. Therefore, when making an application for interim measures, you need to weigh and think through everything several times.

It would not be out of place to say that the plaintiff also has the right to compensation for losses, but caused by neglect, i.e. failure to comply with a ruling on securing a claim. Compensation is carried out at the expense of the persons responsible for the fact that the court ruling on the adoption of interim measures was not executed. In addition, these guilty persons should be fined, but for a rather ridiculous amount of one thousand rubles.

Good to know

the need to distinguish between measures to secure a claim and measures to ensure the execution of a writ of execution when foreclosure on the property of a debtor (citizen or organization). These are different things that differ both in their subject composition: in the first case, measures are taken by the court, in the second - by the bailiff, and in the stages at which interim measures are taken: in the first case - within the framework of judicial proceedings, in the second - at stages of enforcement proceedings.

In some cases, securing a claim helps make a possible positive court decision enforceable in the future.

That is, the plaintiff takes measures to preserve the debtor’s property. And if the court satisfies the plaintiff’s demands, then the chance of enforcement of such a decision is higher.

Securing a claim is a special instrument of civil procedure. Chapter 13 of the Civil Procedure Code of the Russian Federation (Civil Procedure Code of the Russian Federation) is dedicated to it. To take such a measure, an application (petition) of any participant in the case is required.

Like any procedural instrument, securing a claim presupposes a certain algorithm of actions and a clear mechanism for executing the court’s ruling on the use of interim measures. We will talk about this in the publication, and you can ask additional questions to the site’s duty lawyer.

Securing a claim: application procedure

The Code of Civil Procedure of the Russian Federation does not regulate the provision of a future claim. That is, the court provides such security either after the initiation of the case. Or simultaneously with the acceptance of the claim for production. Prior to filing a claim, preliminary security for a copyright claim may be taken. The claim itself must be filed within 15 days from the date of such preliminary measures.

Security for a claim may be applied for. And also at any stage of the case. But under a mandatory condition: the presence that failure to take coercive measures may complicate the execution of the court decision. Or make it impossible.

Example of an application for securing a claim:

The judge considers the received application to secure the claim without the participants in the process on the day of receipt. A ruling is issued regarding the application of measures, providing for immediate execution.

Based on the adopted determination, the applicant is issued a writ of execution for presentation to the federal bailiff authorities for subsequent enforcement. The defendant is sent a copy of the court ruling.

When drawing up an application to secure a claim, the plaintiff must name a specific type of measure, such as:

seizure of the defendant's property. When the court applies such a measure, it also provides for the encumbrance of the property held

prohibition on performing certain actions (registration of transfer of ownership, sale, etc.)

prohibition of third parties from performing actions related to the disputed property, including transferring property to the defendant or fulfilling other obligations regarding the property of the defendant

suspension of the sale of property when appealing against the seizure of property or its exclusion from the inventory act

suspension of collection according to the writ of execution, appealed by the debtor.

The size of the declared measures must be commensurate with the size of the claims. Claims for recognition and award are subject to security. Thus, upon an application for a determination of copyright, the court has the right to prohibit the publication of a disputed literary work until the dispute is considered on the merits.

Initial and counterclaims may be subject to security. If necessary, the court may take several measures simultaneously. In addition, the court may determine other measures based on their purpose (ensuring the safety of the debtor’s property), not specified in the Code of Civil Procedure of the Russian Federation.

The security for the claim can be canceled by the judge himself who made the decision. To do this, it is necessary for the participant in the case to submit an application. In addition, an interested person can apply for a court ruling to secure a claim.

The chosen security for the claim is not effective

At the request of the plaintiff or participant in the process, the selected measures to secure the claim may be replaced by others. Such a need may arise in cases where the type of security initially chosen unreasonably restricts the rights of the defendant.

Any questions about changing the interim measure are also resolved in court with the interested parties. Participants in the trial have the right to give the necessary explanations on the case. The court establishes all the circumstances and evidence worthy of attention regarding possible actions on the part of the person acting as the defendant aimed at preventing the satisfaction of the claim.

To replace interim measures in a claim for the recovery of funds, the law allows the defendant to deposit a certain amount into the court's deposit account. This amount constitutes the amount of the claims.

In particular, according to the claim, the apartment was seized to secure the claim. If the plaintiff wishes to receive his share in monetary terms, the court may allow the defendant to deposit into the court account an amount equal to the cost of half the apartment. The main condition for the application of the measure is the absence of disputes about the amount of the value of joint property.

Cancellation of interim measures

Cancellation of interim measures is permitted in court. The court will notify the participants in the process of the time and date of the hearing. The absence of any of the participants in the trial will not be an obstacle to resolving the issue of canceling interim measures.

If the claim is rejected, interim measures may not be canceled until the decision enters into legal force. The judge, simultaneously with the decision or immediately thereafter, can completely cancel all measures to secure the claim.

The judge is obliged to immediately notify the relevant state or registration authorities that register property rights to it, transfer or termination, and their encumbrance about the cancellation of measures.

If the requirements are satisfied, the security for the claim is retained until the full actual execution of the decision.

Securing a claim - this is a procedural action of the court on a case accepted for consideration and resolution, caused by the need to apply measures provided for by law, when their failure to take them may lead to the impossibility of executing a subsequent award decision that has entered into legal force.

Grounds for securing a claim

Securing a claim is allowed in any situation in the case if failure to take measures to secure the claim may complicate or make impossible the execution of a court decision (Part 2 of Article 139 of the Code of Civil Procedure of the Russian Federation).

Measures to secure a claim may be:

• 1) seizure of property belonging to the defendant and located in his or other persons’ possession;
• 2) prohibiting the defendant from performing certain actions;
• 3) prohibiting other persons from performing certain actions related to the subject of the dispute, including transferring property to the defendant or fulfilling other obligations in relation to him;
• 4) imposing on the defendant and other persons the obligation to perform certain actions related to the subject of the dispute about the violation of copyright and (or) related rights, except for rights to photographic works and works obtained by methods similar to photography in information and telecommunication networks, including Internet networks;
• 5) suspension of the sale of property in the event of a claim for the release of property from seizure (exclusion from the inventory);
• 6) suspension of collection under a writ of execution contested by the debtor in court.

If necessary, a judge or court may take other measures to secure a claim that meet the goals specified in Article 139 of the Code of Civil Procedure of the Russian Federation. A judge or court may take several measures to secure a claim.

However, a judge or court may, at a court hearing, simultaneously with the adoption of a decision, make a ruling on the cancellation of measures to secure the claim.

Cancellation can also be made after a decision is made in a separate court hearing. Measures to secure the claim, if it is satisfied, remain in place until the court decision is executed.

Guarantees of the interests of the defendant when securing a claim

The law takes into account that securing a claim is associated with a limitation of the defendant’s rights and some damage to his interests. Taking this into account and based on the principle of procedural equality of the parties, the law provides guarantees for the interests of the defendant.

Any determination on the issue of securing a claim may be brought (Article 145 of the Code of Civil Procedure of the Russian Federation).

The time limit for filing a complaint in those (practically the most common) cases when a determination to secure a claim is made without notifying the person who filed the complaint is calculated from the day when the latter became aware of this determination.

The court, allowing security for a claim, may require that security be provided for possible losses for the defendant.

After the court decision, which rejected the claim, has entered into legal force, it has the right to bring a claim against the plaintiff for compensation for losses caused to him by measures to secure the claim, taken at the request of the plaintiff (Article 146 of the Code of Civil Procedure of the Russian Federation).

According to Art. 15 of the Civil Code of the Russian Federation, losses are understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (real damage), as well as lost income that this person would have received under normal conditions of civil circulation , if his right had not been violated (lost profits).

What is security for a claim in a civil case? What are they for? measures to secure a claim? Situations often arise when the debtor, having learned that the other party is going to go to court, tries to hide property, transfer money to other people’s accounts, transfer an apartment and car to relatives or friends, in order to hide the property from possible collection.

What to do in this case? The civil procedural legislation provides for special rules that apply after the filing of a statement of claim and filing it with the court, which make it possible to protect the interests of the plaintiff. Securing a claim is a means that may enable future enforcement of a judgment.

Securing a claim is urgent and temporary. That is, measures to secure the claim are taken immediately after the corresponding application is received by the judge, while they continue to operate only for a certain period of time, usually until the court decision is executed.

To secure a claim, the plaintiff must file a claim with the court. Such an application is submitted in any form; it can be filed simultaneously with the statement of claim, or at any other time, before the execution of the court decision.

Measures to secure a claim

The most common measures to secure a claim is the seizure of property or sums of money. This method should be used in relation to money in bank accounts, in relation to property held by the defendant, in relation to securities. If the court satisfies the request for seizure, a writ of execution will be issued, according to which the bailiff will describe the property, prohibit its disposal, and, if necessary, seize it.

Another effective way securing a claim is a prohibition to perform certain actions, both to the defendant and to other persons. This method is recommended for use in relation to real estate, vehicles, securities, and items in a pawnshop.

If the plaintiff has filed a claim for the release of property from seizure, it would be useful to file, if the writ of execution is disputed, a petition to suspend collection under the writ of execution.

The specified measures to secure a claim are expressly provided for in the law, specified in Article 140 of the Civil Procedure Code of the Russian Federation, however, this is not an exhaustive list; if it is necessary to apply any specific measures to secure a claim, the plaintiff has the right to file an application with the court and explain his arguments in detail.

Securing a civil claim

An important point that you should pay attention to when securing a civil claim is proving the fact of possible non-execution of a court decision. Special means of proof are not provided for by law; such evidence may include any data indicating the defendant’s dishonesty, for example, correspondence between the parties, actions by the defendant to clearly delay the process, the defendant’s actions to transfer property and funds to other persons, and submitting advertisements for the sale of property.

Measures to secure a civil claim must be proportionate to the claim stated by the plaintiff, that is, for example, the value of the property that is being asked to be seized must correspond.

Please note that it is necessary to use measures to secure a claim in good faith and carefully. The law provides for the protection of the rights of the defendant against the unfair application of interim measures. The defendant, after the entry into force of a court decision that rejected the claim, has the right to file a claim for compensation for losses caused to him by measures to secure the claim, taken at the request of the plaintiff.

22 comments to “ Measures to secure a claim”

When submitting an application to the court, a citizen can take additional care of protecting his rights. Securing a claim in civil proceedings represents the actions of a judge to take certain measures at the initiative of the applicant or official. They may be needed if it is necessary to protect the rights of the plaintiff or his property.

The grounds for securing a claim are regulated by Art. 139 Code of Civil Procedure of the Russian Federation. Measures are taken if, in case of inaction, there is a risk that the court decision will not be implemented in whole or in part. The process is initiated at the request of the plaintiff.

Measures to secure a claim in civil proceedings are as follows (Article 140 of the Code of Civil Procedure of the Russian Federation):

• seizure of disputed property;
• prohibition on the defendant from performing certain actions;
• suspension of payment under a writ of execution;
• prohibition of actions with disputed property to third parties (for example, registration of rights to it by authorized organizations);
• temporary restriction on the sale of real estate, if it is (excluded from the inventory).

Reference! Suspension of collection under a writ of execution is possible only if it is contested during legal proceedings.

Legislative acts allow the adoption of other measures to secure a claim in civil proceedings if they correspond to the purposes specified in Art. 139 Code of Civil Procedure of the Russian Federation. The imposition of a ban or restrictions is reported to the responsible organizations, which are obliged to take action. Several measures may be taken to secure a civil claim.

Procedure

The citizen must file an application to secure the claim. The document is considered by the judge on the day of application (Article 141 of the Code of Civil Procedure of the Russian Federation). . There is no requirement to notify the defendant or other interested parties of its receipt. Based on the document, the judge makes a decision to take the necessary measures.

There is no state fee for securing a claim in civil proceedings.. The amount of the treasury fee in court cases of general jurisdiction is regulated by Art. 333.19 of the Tax Code of the Russian Federation. The normative act does not indicate payment of the state duty for an application for securing a claim.

Fee for claim sent to the Supreme or Arbitration Court, indicated in Art. 333.21 Tax Code of the Russian Federation. According to the legislative act, the amount state duty is 3000 rubles.

A ruling is made on taking measures to secure the application. On its basis, the applicant receives a writ of execution. A copy of the document is given to the defendant. The determination must be executed immediately after issuance. The effectiveness of securing a claim in civil proceedings is due to the fact that the defendant, as a rule, is confronted with the fact after the restrictions are introduced.

Measures that must be taken by the court may be replaced by others if they give a better result in the given circumstances (Article 143 of the Code of Civil Procedure of the Russian Federation). If a case of collection of funds is being considered, then the defendant is allowed to deposit the amount required by the plaintiff into the account of the judicial authority until the conflict is resolved. Subsequently, it is transferred to the applicant or his opponent, depending on the decision of the official.

Application: sample design

An application to the court to seize property to secure a claim or take other measures to protect the interests of the plaintiff is recommended to be filed at the stage of legal proceedings. The document must indicate all the circumstances that may violate the applicant’s rights. If the petition does not provide compelling arguments, the court may refuse to accept it.

The application in civil proceedings (sample) must contain the following information:

• name of the judicial authority;
• information about the plaintiff;
• essence of the dispute;
• plaintiff's claims;
• Attached documents.

Attention! If the claim concerns property disputes, then the petition must indicate the value of the subject of the conflict and the expected actions on the part of the defendant with the property.

An application to the arbitration court (sample) is submitted both along with the claim and during judicial proceedings (Article 92 of the Arbitration Procedure Code of the Russian Federation). The petition may be stated in one document with the requirements to the defendant. It is possible to fill out the form through the official website of the arbitration court.

The document indicates the following: information about the plaintiff and defendant;

• name of the court;
• subject of conflict;
• property value;
• the reason for making the request to the official;
• the essence of the requirements;
• applications.

The petition is submitted both by the plaintiff himself and by his representative with a notarized power of attorney. A request to secure a claim may be indicated directly in the application submitted to the arbitration court.

Preliminary security for a claim

Preliminary security for a claim is regulated by Art. 144.1 Code of Civil Procedure of the Russian Federation. The procedure is aimed at protecting copyright or related rights, including on the Internet. An application for preliminary security of a petition can be submitted through the official website of a court of general jurisdiction.

The claim must be supported by evidence of the applicant's copyright. Otherwise, the court may refuse to accept the petition. Preliminary security for a claim does not apply to photographs and works obtained in a similar manner.

Appeal against the determination

Judicial practice shows that the procedure may violate the rights and interests of the defendant. Therefore, he can appeal the court ruling within the period established by law. Moreover, it begins to count from the moment when the defendant was notified of the initiation of the procedure (Article 145 of the Code of Civil Procedure of the Russian Federation).

A private complaint must indicate detailed circumstances of the case. The court will only accept the petition if there are compelling reasons. The statement also lists references to legislative acts that, in the defendant’s opinion, were violated. Examples of petitions are provided here.

Cancellation of claim security

The cancellation of the security for a claim is carried out by the same judge who issued a ruling on restrictive measures (Article 144 of the Code of Civil Procedure of the Russian Federation). The initiative can come from an official, a plaintiff or a defendant. The issue of canceling the petition is resolved during the court hearing. Both interested parties are notified of the date and time of its holding. If the plaintiff or defendant does not appear at the meeting, the issue is considered without their participation.

Cancellation of the procedure is carried out both during legal proceedings and after their completion. The decision of the official must be brought to the attention of local government bodies or other organizations that are authorized to register rights to property, encumbrances, etc. as soon as possible.

The plaintiff has the right to waive the original claims. Based on his application, the court decides to lift the restrictions. An official may make a determination to refuse to secure a claim on his own initiative.

Problems arise if the interests and rights of the defendant are violated as a result of the application of restrictions.

In this case, the following actions are allowed (Article 146 of the Code of Civil Procedure of the Russian Federation):

• the official has the right to demand from the plaintiff security for possible losses;
• filing by the defendant of a statement of claim to cover the costs he incurred in securing the petition.

The claim for the lifting of restrictions must be justified. The defendant must provide the court with valid reasons why the application security should be revoked. If evidence is not presented, the official may refuse to satisfy the request.

Compensation for damages is regulated by Art. 15 Civil Code of the Russian Federation. Expenses include not only damage caused to property, but also income not received as a result of imposing restrictions on property (for example, from rental property). A citizen has the right to demand from the other party an amount no less than he lost during the period of validity of the security.

A petition for the imposition of restrictions is filed both simultaneously with the claim and during the trial of the case. It is necessary if the lack of measures may harm the partial or full execution of the court decision. When considering civil cases, you do not need to pay a state fee when filing an application. An appeal to the arbitration court involves the transfer of a fee to the state treasury. If the defendant does not agree with the determination or his rights are violated, he can file a petition to remove the restrictions on the property.