Methods of defense in court
- How rights are protected
- Protection of rights – procedure before filing a claim
- Procedure for the consideration of the case
- Ways to protect the interests of entrepreneurs
- Ways to protect civil rights
- Liability for non-performance of acts
- Legal advice. Questions and answers
The Constitution guarantees the citizens of the Russian Federation the opportunity to defend their rights and freedoms through the courts. If you think that some person or organization has violated your rights, first try to resolve the conflict in a pre-trial manner. In many cases, the help of a qualified lawyer helps to come to an agreement without litigation. However, the situation may also develop in such a way that only professional methods of defense in court will allow justice to be restored.
The right to go to court also implies that you can demand personal participation in the proceedings, the provision of protection and legal assistance, without it is difficult to achieve the realization of your own rights. Remember that the defendant has the same rights, and everyone is equal before the court.
How rights are protected
If you decide to sue, immediately seek the help of a lawyer, a law firm or another qualified representative who will help you defend your rights and interests. It will be difficult to settle the dispute independently through the judicial authorities, since it will be necessary to file a lawsuit, collect evidence, and attend a whole series of meetings. At the same time, the defendant’s lawyers will take advantage of any of your miscalculation in favor of their client.
You can apply to a court of general jurisdiction or arbitration court. Arbitration courts consider commercial disputes between economic entities, and the competence of arbitration courts is based on the agreement of the parties. This is one of the most ancient types of judicial bodies. Accordingly, before filing a claim, you should understand exactly where to apply.
The way to protect rights is to take actions to prevent an offense and restore interests. One of the main documents that regulates the means of protecting the interests of citizens is the Civil Code. According to its provisions, you can defend your civil rights by the following methods:
- compensation for damages.
- through the recognition of the right.
- by invalidating the transaction.
- demanding compensation for moral damage.
- by forcing the defendant to perform his duties in court.
- terminating or changing legal relations.
To initiate a dispute process, you need to file a claim – a lawsuit that is subject to consideration in accordance with the procedure established by law. But let’s first take a closer look at the ways listed above to protect your interests and freedoms in court.
Recognition of the right implies that there is a dispute between the plaintiff and the defendant regarding whether one of them has a certain right (for example, the right to live at a certain address). Most often, this method of protecting rights is used in disputes related to the recognition of property rights. And then the subject of the claim is only the very statement of the fact that the plaintiff owns the property right. Please note that in this case, the defendant is not required to take any active actions, but a positive court decision gives the plaintiff the opportunity to own and dispose of the disputed property.
The next remedy is the recognition of the disputed invalid, as well as the consequences that such a decision entail. The court may invalidate the transaction if it violates the rights or interests of the plaintiff. After that, each of the parties is obliged to return to the other everything received under the transaction or reimburse its cost.
The award of a duty is a method of defense, which implies that the defendant will have to fulfill the plaintiff’s claim or his obligations. If the defendant cannot do this for objective reasons beyond his control, the court may choose another way to protect the interests of the plaintiff.
Compensation for damages is one of the most common ways to protect rights. If your interests have been violated, you can demand compensation for the losses caused. We are talking about expenses that could be required to compensate for damage or loss of property, lost income.
Compensation for moral damage is another remedy in court, it is fraught with some difficulties. The problem is that it is objectively impossible to estimate the amount of moral damage, this is an estimated category. The court may take the plaintiff’s side, but award compensation much less than the one he expected. The Court considers the degree of the defendant’s guilt and the nature of the plaintiff’s suffering.
Finally, the law provides for such a method of protection as termination or modification of legal relations. It is required if the parties are in a continuing civil relationship.
Protection of rights – procedure before filing a claim
A statement of claim is a document that is submitted to the court to initiate a process. It must contain:
- the name of the court.
- full name and address of the plaintiff.
- full name and address of the plaintiff’s legal representative (if the claim is filed by a lawyer).
- information about the respondent.
- description of the offense or threat of violation of the rights and freedoms of the plaintiff.
- plaintiff’s claims.
- evidence of wrongdoing.
- the price of the claim (if it is subject to evaluation).
- calculation of recoverable funds (if the claim implies it).
- information that the plaintiff tried to resolve the dispute in a pre-trial manner according to the law.
- information about actions that have already been taken for reconciliation.
- list of attached documents.
- receipt of payment of the fee.
The procedure for applying to the arbitration court also provides for the preparation and filing of a statement of claim or complaint. You can file a claim to arbitration in economic disputes and other cases related to economic activity. The court also considers bankruptcy cases.
Regardless of the method of protection, you should specify in the claim not only your name, surname, patronymic, but also the actual location, date and place of birth, place of work (or date of registration as an entrepreneur), TIN, PSRN, phone number and email address. If you demand monetary compensation from the defendant, you will also need to immediately provide the details of your bank account.
The list of documents that you attach to the claim is also important to draw up correctly. To do this, specify the name of the papers and the number of sheets. It is better to submit documents sewn together, with an inventory. Each document should contain no more than 150 sheets.
The law also obliges the plaintiff or his legal representative to send copies of the claim and the documents attached to it to all participants in the case. Accordingly, along with the application, you will have to submit to the court a notice of delivery of a copy or other papers that will confirm that you have fulfilled this requirement.
It is better to determine the method of defense in court and prepare a claim together with a qualified lawyer. He will ensure the correct execution of all documents and ensure that the application is registered. In addition, a lawyer will help collect evidence of an offense.
The fact is that your duties as a plaintiff include the justification of your position. Accordingly, you need to submit together with the claim the documents on which your position is based. A person who is far from jurisprudence cannot always correctly determine how to thoroughly prove his point of view in the meeting room, what papers may be required. Accordingly, it is better from the very beginning not to rely only on your own strength, but to use the support of a lawyer or a law firm.
Procedure for the consideration of the case
Filing a claim is only the first step. Then begins, in fact, the trial – the main stage of the case. The court considers the case in session, examining and analyzing the evidence of both sides. An independent judge will have to establish the circumstances of the case, determine the rights and obligations of the parties and make a decision.
Most cases, regardless of the method of defense, are considered at open meetings. The exception is disputes that affect state secrets, parental rights, adoption, or adoption issues. Moreover, the law requires that the case be considered within two months from the date of filing the application. But there is an exception to this rule: disputes about reinstatement in the workplace must be considered by the court within a month.
When a court decision concerns reinstatement in the workplace, recovery of wages or inclusion of a person in the voter list, it takes effect immediately. In all other cases, the decision takes effect only after thirty days. During this period, the second party may file a complaint with the appellate instance.
The courts try to resolve disputes quickly, but this does not mean that the meeting cannot be postponed for one reason or another. In addition, judges have the right to combine cases to speed up the process.
However, when choosing ways to defend yourself in court, keep in mind that your claim may not be accepted, returned, or left without movement. This is another reason why a qualified lawyer should be engaged in drafting a statement of claim and filing it. The support and support of a specialist will eliminate the possibility of formal, bureaucratic errors that may lead to the fact that the instance will refuse to consider the claim. If the court accepts the statement of claim, then the following sequence of actions will occur:
- The judge initiates the preparation of the case for the trial, will indicate what needs to be done by the parties and other participants in the process, and will also specify the deadlines for completing the tasks.
- Next, the judge will schedule a meeting and notify all participants of the time and place of consideration of the dispute.
- The court will consider the circumstances of the case and the evidence presented by the parties. Be prepared for the fact that the judge will remove from the case everything that he considers irrelevant to the essence of the dispute and the method of defense you have chosen.
The court session takes place in a certain order. The participants in the dispute and the people who are present in the hall should not interfere with the consideration of the case. If someone violates the order, the judge will give him a warning. If the violator does not stop his actions after that, he may be removed from the meeting room or even fined. It is important that such violators may be witnesses or one of the parties, so it is important to keep cool in the process.
The proceedings are conducted orally. There may be several meetings, but the judging panel must remain unchanged. Nevertheless, in practice, a replacement of the judge may occur. And then the consideration of the issue should begin from the very beginning. Each court session can be divided into four stages:
- Consideration of the case.
- Debate of the parties.
- Resolution and announcement of the court decision.
At the beginning of the meeting, their rights and obligations are explained in detail to all participants. During the debate, the plaintiff and/or his representative speaks, and then the defendant’s side can take the floor. Only after that, third parties can also speak, if they do not make independent claims.
The outcome of the proceedings is summed up by the resolution of the decision. Before accepting it, the court retires to the conference room. In the conference room, the court determines which law can be applied to this situation. Only the judges who are considering the case can be present at this.
Having decided, the court returns to the courtroom and publicly announces the results of the case. Only after that the meeting can be considered closed. Public disclosure is not allowed only when it may harm the rights and interests of one of the parties. For example, they do not publicly announce the results of adoption cases.
The legal decision that has entered into force goes to the executor. If we talk about such a method of protection in court as recovery, the executor receives a special sheet, which can be used within 3 (three) years to submit for execution. At the same time, if the court’s decision is not executed, law enforcement agencies can take measures to ensure the claim. The measures depend on the current situation. Thus, the court may seize the defendant’s property or prohibit certain actions.
Ways to protect the interests of entrepreneurs
Disputes between legal entities and individual entrepreneurs are considered by the arbitration court. Disputes involving creditors, possible bankrupts and citizens seeking to become individual entrepreneurs are under the jurisdiction of the same instance.
However, if you are going to start a dispute over a contract for the carriage of goods by any means of transport, the case should be filed with a court of general jurisdiction. In addition, by agreement of the parties, a dispute between entrepreneurs can be referred to an arbitration court. However, such an agreement must be fixed in writing. At the same time, it is impossible to transfer disputes on administrative, family and labor issues to the arbitration court – this is not provided for by law.
Entrepreneurs can also choose different ways to defend themselves in court. Disputes often involve financial and property issues. In addition, as a way of protection, business representatives often choose the recognition of a previously concluded commercial contract as invalid. It is not necessary to be present at each meeting independently – it is much more reasonable to entrust it to legal representatives: lawyers.
The decisions of the arbitration court made on disputes between entrepreneurs must be executed voluntarily. But if the defendant, even after the proceedings, refuses to fulfill obligations, compensate for damage, or cancel the transaction, coercion may be applied to him. As in the case of courts of general jurisdiction, the court hands the writ of execution to the relevant authority.
Some disputes affecting entrepreneurs are considered administratively. For example, it may be a case of refusal to grant a patent, violation of the norms of housing legislation. The main method of protection in this case is a complaint.
What does the mixed procedure of consideration of the case imply? In such situations, as an entrepreneur who believes that his rights have been violated, you must first file a complaint with the state authorities. If the issue is not resolved after that, then you will be able to file a claim. At the same time, it is important to document that you really tried to resolve the dispute administratively, otherwise the court will not accept the claim for consideration.
Ways to protect civil rights
Every citizen has the right to file a lawsuit if he believes that his rights and freedoms have been violated. The methods of defense in court in this case depend on the nature of the claims and the essence of the case. This may be a recognition of the right. It is relevant in situations where you literally require the defendant to recognize their rights to something tangible or intangible. For example, the right to live in a certain house or apartment.
Also, to defend yourself in court, you can choose to restore the situation that existed before the violation of your rights, or to demand that the defendant stop actions that threaten you. In contrast, a citizen may demand the performance of duties that the defendant evades, termination or change of legal relations.
The methods of protection in court also include the recovery of penalties and damages, compensation for moral damage, invalidation of the transaction and other methods that we discussed above. Moreover, you can sue not only with other citizens, but also with legal entities and state bodies, self-government bodies, demanding recognition of their acts as invalid.
If you believe that the act of a certain body contradicts the letter of the law, you can apply for protection in court. Legal practice knows many cases when in such cases the courts sided with the citizens. However, in this case, you will need the support of a competent lawyer who will help you draft a statement of claim and will represent your interests in the courtroom.
Civil law provides for two forms of protection: jurisdictional and non-jurisdictional. In the first case, we are talking about the work of state bodies, it is they who are charged with protecting your rights. We are talking about courts and higher authorities that have the authority to protect the rights of citizens. The jurisdictional form of protection implies the ability to defend one’s interests in a judicial or administrative manner.
But there is also self-protection of rights or, to put it more precisely, a non-judicial form of protection. It assumes that you are defending your interests without resorting to the help of competent authorities. Self-defense appeared in the Civil Code only in 1994, it is a relatively new practice. In some cases, the law allows the use of this practice even to defend material rights, however, before choosing exactly this form of protection of your interests, it is better to consult with a lawyer.
Liability for non-performance of acts
The law obliges the parties to the dispute to comply with the court’s decision. The Criminal Code provides for sanctions for non-execution of a sentence, decision or other judicial act, and the punishment may be serious. According to federal law, failure to comply with a court decision or obstruction of its execution is punishable by a fine. The amount of the fine can reach 50 thousand rubles. It can also be the full amount of the violator’s income for a six-month period.
Sometimes, instead of a fine, another measure of restraint is chosen mandatory or correctional labor, arrest or imprisonment. In other words, if the defendant does not comply with the court’s decision or prevents its execution, he may face three months’ arrest or even imprisonment for a year.
If an official evades the execution of the decision of the authorized body, the punishment may be even more severe. This applies to civil servants, government officials, officials, as well as representatives of commercial organizations. They face fines of up to 200 thousand rubles for an offense of the same nature. However, the amount of the fine may be equal to the amount of the violator’s income for 18 months.
Also, failure to comply with a court decision by officials may be punishable by deprivation of the right to hold certain positions or deprivation of the right to engage in certain types of activities. As a rule, the term of such a ban is 5 years. Official representatives who interfere with the enforcement of a court decision may face mandatory or forced labor. They can also be arrested for 6 months or imprisoned for up to 2 years.
In legal practice, there are many cases when it is more difficult to achieve the execution of a sentence than to get a court decision in your favor. A good example is the situation with non-payment of alimony, when even after the entry into force of a judicial act, one of the parents continues to evade his direct duties. If you are faced with a similar situation, you should involve lawyers in resolving the conflict.
The lawyer will try to settle the case by explaining to the second party the consequences that threaten her in case of non-execution of the court decision. If it is impossible to find the defendant, he categorically refuses to communicate with the plaintiff’s legal representative, avoids executive bodies, an experienced lawyer will help to draft a new statement of claim. This time it will concern the refusal of the second party to execute the judicial act.
Legal advice. Questions and answers
Contact the lawyers right away, do not take any active actions on your own. In the future, if the case comes to trial, the other party may use these actions against you. And even if justice is on your side, the court will be obliged to follow the letter of the law. In addition, an experienced lawyer will help settle the conflict in a pre-trial manner. Often the intervention of a lawyer is enough to resolve a dispute. If the situation only worsens, the lawyer will be able to competently collect evidence and make a statement of claim.
Lawyers recommend keeping calm and cool. This can be extremely difficult, especially if the other party is deliberately trying to make you angry with their statements. However, in the boardroom it is necessary to speak only on the merits of the case. Do not quarrel with your opponents in front of the judge – this may be regarded as a violation of order, and you will simply be removed from the hall. Also, you should not refer to your own regalia and achievements, ask unnecessary questions, obsessively refer to the Constitution. The main thing in protecting your own rights is to prepare well for the process, that is, to collect evidence and qualitatively substantiate your own position. Trust the lawyer who represents your case. He can even recommend certain turns of speech and formulations to you – do not neglect these tips, because a certain form of submission can really cause more confidence in the judges.
Formally, there is no such rule for the parties. Lawyers are obliged to adhere to a certain ethics in this matter, so they usually choose business clothes, always look neat and collected. However, the plaintiff also does not hurt to make a favorable impression on the judges, so it is better not to come to the meeting in too revealing, beach suits.
During the debate, the parties can speak out and ask questions, but it is better to entrust this to your legal representative – a lawyer. The fact is that there is an unwritten rule among lawyers: do not ask questions that you are not sure of the answers to. Why is that? Lawyers adhere to the principle of “do not harm the client”, and an unexpected question can present facts that are unfavorable for you or expose you in a false light. Therefore, entrust the work to professionals. You should also answer questions with caution. Talk to the lawyer in advance about what can be discussed during the debate. As a rule, lawyers understand the logic of the process well, so they can predict the actions of the second party. If uncomfortable questions are at risk of surfacing during the debate, it is important to think carefully about the answers to them in advance so as not to harm your own interests.
Unfortunately, this is unacceptable. It happens that the case is postponed due to the failure of one of the parties to appear in court or due to the appearance of additional facts that require careful study and consideration. However, it is simply impossible to appear at the trial without preparation. That is, of course, you can come without being prepared, but for the court this will not be an argument in favor of postponing the consideration of the case. However, a good lawyer simply will not allow such a situation. He will prepare for the case himself and make sure that his client is also ready for the process.
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