The procedure for securing a claim in civil proceedings. Interim measures in civil proceedings

1. At the request of the persons participating in the case, a judge or court may take measures to secure the claim.

Application for securing a claim, signed with an enhanced qualified electronic signature in the manner prescribed by law Russian Federation, can be filed with the court by filling out a form posted on the official website of the court on the Internet.

2. Securing a claim is allowed in any situation, if failure to take measures to secure the claim may complicate or make execution impossible.

3. On the grounds provided for in part two of this article and according to the rules of this chapter, measures to secure a claim may be taken by a judge or court at the request of a party to the arbitration proceedings at the location of the arbitration court, or at the location or place of residence of the debtor, or at the location debtor's property.

Article 140 of the Code of Civil Procedure of the Russian Federation - Measures to secure a claim

1. Measures to secure a claim may be:

1) seizure of property belonging to the defendant and located in him or other persons;

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;

3.1) 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;

4) suspension of the sale of property in the case of the release of property from seizure (exclusion from the inventory);

5) 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 this Code. A judge or court may take several measures to secure a claim.

2. In case of violation of the prohibitions specified in paragraphs 2 and 3 of part one of this article, the guilty persons are subject to a fine of up to one thousand rubles. In addition, the plaintiff has the right in court to demand from these persons compensation for losses caused by failure to secure the claim.

3. Measures to secure the claim must be proportionate to the claim stated by the plaintiff.

4. The judge or court immediately informs the relevant authorities about the measures taken to secure the claim. government bodies or local government bodies registering property or rights to it, their restrictions (encumbrances), transfer and termination.

Article 141 of the Code of Civil Procedure of the Russian Federation - Consideration of an application for securing a claim

An application for securing a claim is considered on the day it is received by the court without notifying the defendant or other persons participating in the case. The judge or court issues a ruling on taking measures to secure the claim.

Article 142 of the Code of Civil Procedure of the Russian Federation - Execution of a court ruling on securing a claim

1. A court ruling to secure a claim shall be executed immediately in the manner established for.

2. Based on the court ruling to secure the claim, the judge or court issues a writ of execution to the plaintiff and sends a copy of the court ruling to the defendant.

Article 143 of the Code of Civil Procedure of the Russian Federation - Replacement of some measures to secure a claim with other measures to secure a claim

1. At the request of a person participating in the case, it is permitted to replace some measures to secure a claim with other measures to secure a claim in the manner established by Article 141 of this Code.

2. When securing a claim for the recovery of a sum of money, the defendant, in return for the measures taken by the court to secure the claim, has the right to deposit into the court’s account the amount claimed by the plaintiff.

Article 144 of the Code of Civil Procedure of the Russian Federation - Cancellation of security for a claim

1. Security for a claim may be canceled by the same judge or court upon the application of persons participating in the case, or on the initiative of the judge or court.

2. The issue of canceling security for a claim is resolved at a court hearing. Persons participating in the case are notified of the time and place court session, however, their failure to appear is not an obstacle to considering the issue of canceling the security for the claim.

3. In case of refusal of the claim, the measures taken to secure the claim are preserved until the court decision enters into legal force. However, a judge or court, simultaneously with the adoption of a court decision or after its adoption, may issue a court ruling on the cancellation of measures to secure the claim. If the claim is satisfied, the measures taken to ensure it remain in effect until the court decision is executed.

4. The judge or court shall immediately notify the relevant state bodies or local government bodies that register property or rights to it, their restrictions (encumbrances), transfer and termination of the cancellation of measures to secure the claim.

Article 144.1 of the Code of Civil Procedure of the Russian Federation - Preliminary interim measures for the protection of copyright and (or) related rights in information and telecommunication networks, including the Internet

1. The court, upon a written application from an organization or citizen, has the right to take preliminary interim measures aimed at ensuring the protection of copyright and (or) related rights, except for the rights to photographic works and works obtained by methods similar to photography, of the applicant in information and telecommunication networks, including including on the Internet, before filing a claim. Such an application can also be submitted to the court by filling out a form posted on the official website of the court on the Internet, and signed with a qualified electronic signature in the manner prescribed by federal law.

2. Preliminary interim measures provided for by this article are taken by the court according to the rules provided for by this chapter, with the features established by this article.

3. An application for preliminary protection 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 the Internet, is submitted to the Moscow City Court.

4. When filing an application for preliminary protection 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 the Internet, the applicant submits to the court documents confirming the fact of use in information and telecommunication networks, including the Internet, objects of exclusive rights and the applicant’s rights to these objects. Failure to submit these documents to the court is the basis for issuing a ruling on refusal to provide preliminary protection 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 the “ Internet”, in which the court explains the right to re-submit the said application in compliance with the requirements of this part, as well as the right to file a claim in the general manner. When filing an application for preliminary protection 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 the Internet, in accordance with this article by by filling out the form posted on the official website of the Moscow City Court on the information and telecommunications network "Internet", documents confirming the fact of use in information and telecommunication networks, including the Internet, objects of exclusive rights and the applicant's rights to these objects can be submitted electronically.

5. The court issues a ruling on the preliminary protection 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 the Internet.

The ruling establishes a period not exceeding fifteen days from the date of the ruling for filing a statement of claim upon request, in connection with which the court has taken measures to ensure the property interests of the applicant. The said ruling is posted on the official website of the Moscow City Court on the Internet information and telecommunications network no later than the next day after the day the said ruling is issued.

6. If the court takes preliminary interim measures provided for in this article, statement of claim on the protection 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 the Internet, is submitted by the applicant to the specified court.

7. If the applicant has not filed a statement of claim within the period established by the court ruling on preliminary provision of protection 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 on the Internet, the preliminary security is canceled by the same court. A ruling is made on the cancellation of the preliminary security.

The ruling on the cancellation of preliminary security is posted on the official website of the Moscow City Court on the Internet information and telecommunications network no later than the next day after the day the said ruling is issued.

Copies of the determination are sent to the applicant, to the federal executive body exercising control and supervision functions in the field of the media, mass communications, information technology and communications, and other interested parties no later than the next day after the day the determination is made.

8. If the applicant files a statement of claim on demand, in connection with which the court has taken measures to preliminary ensure the protection 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 on the Internet, these measures act as measures to secure a claim.

9. An organization or citizen whose rights and (or) legitimate interests are violated by the adoption of measures to preliminary ensure the protection 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, in including on the Internet, before filing a claim, has the right to demand, at his choice, compensation for losses from the applicant in the manner established by Article 146 of this Code, if the applicant, within the period established by the court, did not file a statement of claim on the demand, in connection with which the court accepted the specified preliminary interim measures, or if the claim is rejected by a judicial act that has entered into legal force.

Article 145 of the Code of Civil Procedure of the Russian Federation - Appeal of court rulings on securing a claim

1. A private complaint may be filed against all court rulings on securing a claim.

2. If a court ruling on securing a claim was made without notifying the person who filed the complaint, the period for filing the complaint is calculated from the day when such person became aware of this ruling.

3. Filing a private complaint against a court ruling to secure a claim does not suspend the execution of this ruling. Filing a private complaint against a court ruling to cancel the security for a claim or to replace some measures to secure a claim with other measures to secure a claim suspends the execution of the court ruling.

Article 146 of the Code of Civil Procedure of the Russian Federation - Compensation to the defendant for losses caused by securing the claim

A judge or court, allowing security for a claim, may require the plaintiff to provide security for possible losses for the defendant. After the court decision, which rejected the claim, has entered into legal force, the defendant 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.

Judge Luchkin M.M. Case No. 33-866/2015

APPELLATION

Judicial Collegium for Civil Cases Supreme Court Udmurt Republic consisting of:

Presiding judge Bulatova O.B.,

Judges Matushkina N.V., Pitirimova G.F.

Under secretary Rogaleva N.V.

Considered in open court on March 4, 2015 in Izhevsk a private complaint from the representative of the plaintiff OJSC Alfa-Bank, A.E. Chernikov. to the ruling of the judge of the Leninsky District Court of Izhevsk, Udmurt Republic dated December 4, 2014, by which

The application of Alfa-Bank OJSC to take measures to secure the claim was rejected.

Having heard the report of the judge of the Supreme Court of the Udmurt Republic N.V. Matushkina, the judicial panel

Installation:

Open joint stock company ALFA-BANK (hereinafter referred to as Alfa-Bank OJSC) filed a lawsuit against S.M. Muzychko. about collection cash under a loan agreement in the amount of 101,518.62 rubles.

In order to secure the claim, the plaintiff asked to seize the cars, namely: DAEWOO NEXIA, state registration number No., DAEWOO NEXIA, 2012, color Valentine Blue, VIN No., engine No. No., body No. No., chassis: PTS: No., registration certificate: No. and transfer them for storage to OJSC "ALFA-BANK", prohibit the owner of the above vehicles from making any transactions, as well as registration and other actions related to the above vehicles. In addition, the plaintiff asked the court to make a request to the State Traffic Safety Inspectorate of the Ministry of Internal Affairs of Russia to confirm the ownership of Muzychko S.M. for the above vehicles. The application for interim measures is motivated by the fact that failure to take measures to secure the claim may complicate or make it impossible to enforce the court decision due to the fact that the defendant is evading repayment of the loan amount; the loan debt has not yet been repaid.

The judge made the above ruling.

In a private complaint, the representative of the plaintiff OJSC Alfa-Bank, Chernikov A.E. asked the court's ruling to be annulled, citing a violation by the court of procedural law. He believes that the basis for the court to take interim measures is the fact that currently the defendant Muzychko S.M. does not fulfill its obligations to repay the loan, monthly payments does not repay the loan, does not pay interest for using the loan. The plaintiff's lack of information about the property owned by the defendant is not an obstacle to the application of measures to secure the claim in the form of seizure of property. The specific property belonging to the defendant will be determined by the bailiff at the stage of executing the court ruling in accordance with Federal law"On enforcement proceedings." Establishing information about property and searching for it are within the competence of the bailiff service.

The appellate court in accordance with Part 1 of Art. considers the case within the limits of the arguments set out in the private complaint, presentation and objections to the complaint, presentation.

Prohibition of other persons to perform certain actions related to the subject of the dispute, including transferring property to the defendant or fulfilling other obligations in relation to him (Clause 3, Part 1, Art.).

By virtue of part 3 of the article, measures to secure the claim must be proportionate to the claim stated by the plaintiff.

As follows from the materials of the civil case, the plaintiff filed a lawsuit against the defendant to collect the amount of debt under the lending agreement in the total amount of 101,518.62 rubles.

Consequently, the plaintiff filed claims of a property nature.

On December 4, 2014, the judge issued three rulings: on accepting the case for proceedings, on preparing the case and scheduling it for trial, as well as the appealed ruling on the refusal to apply interim measures. Thus, the judge allowed the plaintiff’s request for interim measures at the stage of preparing the case for hearing.

In accordance with paragraph 29 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated June 24, 2008 N 11 “On the preparation of civil cases for trial,” since the article allows for securing a claim in any situation, the judge must keep in mind that securing a claim is possible during the preparation cases for trial (clause 12 of part 1 of article). In the conditions of judicial proceedings based on adversarial and equal rights of the parties, the judge does not have the right, on his own initiative, to take measures to ensure the requirements stated by the parties. Taking into account the requirements of Part 3 of the article, the judge, allowing measures to secure the claim at the stage of preparing the case for trial, is not bound by the initiative of the applicant and must ensure that the measures to secure the claim are proportionate to the stated requirements. An application for securing a claim is considered on the day it is received by the court without notifying the defendant or other persons participating in the case. The judge makes a ruling on taking measures to secure the claim (Article). Thus, the judge does not have the right, on his own initiative, to take measures to secure the claims stated by the parties, but taking into account the requirements of Part 3 of the article, the judge is not bound by the initiative of the applicant and must ensure the proportionality of the measures to secure the claim stated requirements.

In this case, the plaintiff, in accordance with Part 1 of Art. a petition was filed for interim measures in the form of seizure of the defendant’s property and in the form of prohibiting other persons from performing certain actions related to the subject of the dispute.

Thus, the initiative in applying measures to secure the claim comes from the plaintiff in the present case. At the same time, the judge is not bound by the applicant’s initiative, including regarding the composition of the property that may be seized, and must ensure that measures to secure the claim are proportionate to the stated requirements.

Since, when filing a statement of claim, the plaintiff did not provide reliable information about the ownership of the cars specified in the petition to the defendant, the judge should have seized the defendant’s property within the limits of the stated claims.

The panel of judges takes into account that the absence in the application for securing a claim of information about the list of the debtor’s property, or evidence of the ownership of specific property by the debtor, does not prevent the application of measures to secure the claim. The bailiff is vested with the authority to establish the property of the debtor.

So, clause 3, part 3, art. 80 Federal Law of October 2, 2007 N 229-FZ “On Enforcement Proceedings” provides for the seizure of the debtor’s property during the execution of a judicial act on the seizure of property belonging to the debtor and located with him or third parties.

In accordance with paragraphs 5, 8 of Art. 69 of the said law, if there is no information about the debtor’s property, then the bailiff requests this information from tax authorities, other bodies and organizations, based on the amount of debt (from bodies carrying out state registration of rights to property, persons carrying out registration of rights to securities, banks and other credit organizations, owners of nominal bank accounts). The debtor has the right to indicate the property on which he asks to foreclose first. The final order of foreclosure on the debtor’s property is determined by the bailiff.

In addition, the court did not take into account that the plaintiff asked the court to make a request to the State Traffic Safety Inspectorate of the Ministry of Internal Affairs of Russia to confirm the ownership of Muzychko S.M. for the above vehicles. The court did not allow this petition, which also indicates a violation of the plaintiff’s rights when deciding on taking measures to secure the claim.

From the statement of claim and the application to take measures to secure the claim, it follows that the defendant’s loan repayment obligations long time does not comply, which indicates the existence of a threat of non-enforcement of the court decision, and the need to apply measures to secure the claim.

The above arguments indicate the existence of a threat of non-fulfillment court decision if the claim is satisfied, which is the basis for the application of interim measures.

As stated above, the court must ensure that measures to secure the claim are proportionate to the stated requirements. That is, the court had to choose the optimal measure, or a combination of measures proposed by the plaintiff in such a volume that corresponds to the stated claim and contributes to the actual execution of the decision if the claim is satisfied.

Based on the above circumstances of the case, the court of first instance should have seized the debtor’s property within the limits of the stated claims in the amount of 101,518.62 rubles.

Under such circumstances, the judge’s decision to refuse to satisfy the request to seize the defendant’s property cannot be considered legal and justified. The ruling is subject to cancellation, with the resolution of the petition filed by the plaintiff on the merits.

The panel of judges considers it necessary to satisfy the stated petition in part, to seize the debtor's property within the limits of the stated claims in the amount of 101,518.62 rubles.

Since the plaintiff has not provided reliable evidence that the defendant owns the cars specified in the petition, the petition to prohibit the owner of the said cars from making any transactions, as well as registration and other actions related to the cars, must be denied. The plaintiff is not deprived of the opportunity to re-submit such a petition if reliable evidence confirms the defendant's ownership of the cars specified in the petition.

Measures to secure the claim in the form of seizure of the debtor's property within the limits of the claim in the amount of 101,518.62 rubles. are proportionate to the stated claims and will contribute to the actual execution of the decision if the claim is satisfied.

Guided by Art. , judicial panel

DEFINITIONS:

The ruling of the Leninsky District Court of Izhevsk of the Udmurt Republic dated December 4, 2014 is cancelled, and the petition of the representative of the plaintiff OJSC Alfa-Bank to take measures to secure the claim on the merits is allowed.

The request of Alfa-Bank OJSC to take measures to secure the claim is partially satisfied.

In order to secure the claim, seize the property of the defendant Muzychko S.M., DD.MM.YYYY year of birth, residing at the address: , within the limits of the claim in the amount of 101,518.62 rubles.

Private complaint from the representative of Alfa-Bank OJSC Chernikov A.E. satisfy.

Chairman O.B. Bulatova

Judges G.F. Pitirimova

N.V. Matushkina

Court:

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. First things first 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 (attorney), 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. To be more convincing, they will rub your nose into the concluded agreement, which will specify the scope of unaccompanied services provided 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 what is awarded from the debtor by a 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 essence, 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. We can just as well 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 situation. 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 may 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 of this publication we will not list them, so as not to complicate the perception of the information presented, which is general character. 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 it can find (as a rule, these are funds in bank accounts, 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 determination 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 issue 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 arbitration process(Article 99 of the Arbitration Procedure Code of the Russian Federation), civil proceedings do not provide for securing a claim until 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 lower than the volume 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 initial 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.

By 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 such replacement, as well as a ruling on refusal to cancel previously accepted security can 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 to run from the day following the day of announcement of this determination.

Pay attention!

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 determination 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 list of definitions significantly expanded in 2013, complaints against which are subject to consideration with proper notification of the participants in the process.

IN in this case we're talking about about notification, and not participation in the 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, appellate court may call the participants in the process, providing the information necessary for appearance (time and place).

During the consideration of the complaint against the ruling on securing the claim, execution this definition 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 those 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.

Measures to secure a civil claim are taken by the court at the request of an interested party trial. They must not only have legal grounds To apply, the applicant will have to provide evidence that this is the only way to protect his interests. That is, the court’s failure to accept a ruling on interim measures may devalue the very need for a trial and a decision.

Speaking in simple language, these measures are insurance aimed at protecting, as a rule, the property rights of the applicant. This may be a seizure of the disputed property or a prohibition on a party to the proceedings from performing any actions that could lead to a violation of the opponent’s property interests or cause the impossibility of executing a court decision.

What is security for a claim in a civil case?

Interim measures are often significant restrictions on the material rights of one party to the case (usually the defendant, unless we are talking about counterclaims), aimed at protecting the rights and interests of his opponent, as well as the possibility of ensuring the implementation of the court decision. Measures are applied only if their failure to take may make it impossible to execute a judicial act ( Article 139 of the Code of Civil Procedure of the Russian Federation).

In the Code of Civil Procedure of the Russian Federation, namely in Article 140, requirements have been established for such measures, and which of them can be considered interim:

• prohibition on one of the parties to perform certain actions with property (sell, donate, lease, use, reconstruct; change the intended purpose, etc.)
• seizure of property (inventory) in respect of which proceedings are ongoing;
• prohibition on third parties performing certain actions with the disputed object;
• temporary termination of already started registration actions;
• suspension of enforcement proceedings;
• seizure of valuables, which can subsequently be used for recovery under a claim, if there is reason to believe that the decision cannot be enforced in any other way.

In order for the security to be accepted, the interested party must prove that such actions of the court will ensure the implementation of the legal right of the interested party.

How to initiate a claim

The only way to initiate the procedure is to file a petition with the court. This can be done either before the start of court proceedings, for example, by filing an application along with the claim, or already during the process, but before the court goes to the deliberation room.

Among the mandatory points that must be contained in the application are the following:

• data of the court, as well as the applicant, defendant and third parties;
• name of the document;
• a description of the essence of legal relations, as well as an indication of the mandatory nature of these measures;
• reasons why such measures are necessary. For example, a reference to the fact that the defendant can and is going to sell the disputed object if it is not seized;
• a list of legal acts on the basis of which the request must be granted;
• list of applications. It will be necessary to attach all documents that directly or indirectly have an impact on the fact of proving the need to apply such a procedure. That is, evidence that substantiates the applicant’s position.

The document is signed by the applicant or his representative.

The procedure for considering an application is determined in Article 141 of the Code of Civil Procedure of the Russian Federation. Thus, the petition is considered within the day of receipt by the court without summoning or notifying the parties. Interested parties are notified only after the determination has been made.

After the ruling is made, the party will have a period of fifteen days to appeal in the manner prescribed for appealing any court decisions.

The order of actual execution of the determination

The party that declared taking measures to secure the claim receives a writ of execution and a ruling. Only the determination is sent to other participants in the process.

Attention! Upon application, the writ of execution is sent by the court to the bailiff service. If a separate request is not made, the sheet is sent to the applicant by mail or delivered in person.

The writ of execution is submitted to the bailiff service (at the place of residence of the defendant, or at the location of the disputed property). It belongs to the category of documents of immediate execution, that is, it is executed within 24 hours from the moment of receipt (Article 36 of the Federal Law “On Enforcement Proceedings”).

If the object in respect of which measures are applied is real estate or transport, then the court itself sends a copy of the ruling to the body that carries out registration actions (Rosreestr, MREO traffic police).

Consequences of taking interim measures

The main consequence of applying measures to secure a claim- the imposition of certain restrictions in order to ensure the execution of a court decision and, most often, the impossibility for the opponent to dispose of the thing.

If such restrictions were illegal or unreasonable, and as a result the claims were not satisfied, the defendant has the right to file a separate claim to recover the losses incurred.

Interim measures in civil proceedings are considered to be those designed to guarantee the execution of a court decision. That is, it is assumed that if such measures are not taken, the decision cannot be implemented in whole or in part. Most often in practice, the seizure of property is used, but the legislator allows the use of other measures, for example, a ban on specified actions or their partial restriction.

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, a statement (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 defendant’s property

suspension of the sale of property when appealing 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 determination of copyright, the court has the right to prohibit the publication of the disputed literary work before considering the dispute on its 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 refused, interim measures may not be canceled until the decision enters into legal force. The judge, simultaneously with making a 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.