How to write pre-trial settlement. Pre-trial claim (letter). What to do if the other party refuses to receive a claim

The written form of the document is usually used, although the legislation does not establish a corresponding requirement. Sending the document by registered mail allows the person concerned to obtain proof that the alleged debtor received the message. It is possible to deliver the letter directly to the recipient, if the addressee puts an appropriate mark on the copy of the sender.

A pre-trial claim can be sent by fax or by e-mail, if such a method of document delivery is expressly stipulated in the contract as appropriate. But in the course of further proceedings it will be difficult to establish whether the addressee received the message. The defendant, wishing to delay the process, may deny the fact of the claim settlement. In order for the claim to be considered, the applicant will need to provide evidence, such as a postal document.

Mandatory order

The legislation describes several situations when a pre-trial claim must be sent if the interested parties wish to subsequently apply for the protection of their interests in court. If this does not happen, it will remain without consideration.

Legal entities are required to take action on an independent dispute in the following cases:

• there was an unjust enrichment (for example, funds were erroneously transferred);
• collection of money on the basis of the concluded transaction;
• in other cases determined by federal legislation.

These provisions are enshrined in Article 4 of the Arbitration Procedure Code of the Russian Federation.

Most often, legal entities specify in contracts that the parties will make every possible effort to resolve disputes without going to court. This means that the claim procedure becomes mandatory.

Pre-trial settlement of a dispute in civil process required in the following situations:

• termination of the lease agreement (Article 619 of the Civil Code of the Russian Federation);
• the dispute concerns a land easement (Article 274 of the Civil Code of the Russian Federation);
• conflict over legal relations arising on the basis of a communication agreement (Article 55 of Law No. 126-FZ of July 7, 2003);
• the dispute concerns cargo transportation by wheeled transport, by rail, air transportation, water transport (Article 797 of the Civil Code of the Russian Federation, Article 120 of the Charter of Railway Transport, Article 124 of the Air Code, Article 161 of the Internal Water Code);
• termination of the contract for the rental of residential premises and the eviction of citizens (Articles 35, 91 of the LC RF);
• disagreements on the amount of payments under OSAGO (Article 16.1 of Law No. 40-FZ of April 25, 2002)
• in other cases expressly provided for by federal law.

Compilation rules

To understand the structure of the document will help to consider case study. A sample claim under a service agreement will contain the following data:

• information about the parties: names of organizations (full name individuals), legal addresses (or place of residence), telephone for communication;
• details of the contract and the date of conclusion, its subject matter;
• indication of the term for the provision of services and their cost;
• the essence of the claims (for example, the deadlines for the execution of the agreement have been violated or the services do not meet the quality requirements);
• references to regulations, documents, physical evidence that confirm the presence of violations;
• claims (for example, a reduction in the cost of services or compensation for damage caused);
• deadline for responding to a claim (if the contract is concluded with an individual, then the response must be sent within 10 days on the basis of Article 31 of the Law "On Protection of Consumer Rights");
• an indication that in the absence of a response or rejection of the claim, the applicant reserves the right to file a claim with the court;
• list of attached documents;
• date, signature, surname and initials.

The claim under the contract for the provision of services must be sent before the expiration of the limitation period for applying to the court. Otherwise, the recipient may rightly leave the document without consideration.

Advantages and disadvantages

Pre-trial settlement is used for several reasons:

1. The claim procedure saves a lot of time. Litigation may take several months, subject to possible appeals. The actual one can also drag on for a long time.
2. The procedure allows you to reduce material costs. There is no need to pay lawyers for the work, no need to pay a fee for the consideration of the case.
3. Participants in legal relations retain their reputation. Commercial organizations avoid entering into contracts with companies that do not fulfill their obligations or prefer to resolve disputes in court.

The main disadvantage of the claim procedure is the delay of the inevitable trial. For example, the procedure under consideration is mandatory in disputes between individuals and insurance companies if a citizen disagrees with the amount of damage. However, organizations respond to such requests only in exceptional cases. Disputes are still considered in court.

Violations of certain civil rights are not so rare.

Out-of-court settlement is widespread and practiced as legal entities as well as citizens.

The pre-trial dispute settlement procedure is proposed by law and in a number of cases is mandatory (CPC art. 131, 132,; APC art. 4 p. 5).

By ignoring this relatively peaceful stage of resolving the conflict, the participants in the proceedings will face a denial in court (Arbitration Procedure Code Art.

It does not matter how the other side of the conflict reacts to the claim made. The very fact that an attempt has been made makes it possible to count on the favor of the judges and increases the chance of the claim being satisfied.

The obligatory pre-trial settlement of the vast majority of civil disputes (with some exceptions) was introduced by the Federal Law No. 47 2016/02/03 edition 2016/23/06, art.

Thus, the procedure for pre-trial settlement of a dispute in a civil process can be of the following nature:

• forced (it is also legalized);
• voluntary.

Considering the likely ways of resolving the conflict, enshrined in legal acts and / or provisions of the agreement, we can distinguish:

• claim settlement;
• contractual settlement.

When drawing up and signing the original contract, the parties often prescribe the option (s) for resolving disputes that arise in the process of cooperation.

The situation is not always provoked by deliberate actions or inaction of the partner, and therefore the participants prevent the development of the conflict in advance by notifications, correspondence and at the negotiating table. A similar clause of the contract indicates the conscientiousness and foresight of the partners who intend not to bring the matter to a showdown in the courtroom.

With the notification / warning of the partner about the violations and infringement of rights, the process of correction-reconciliation should begin.

Upon ignoring the warning message, the “offended party” takes the actions prescribed by law.

Documents confirming the attempt made to resolve the issue without the intervention of the court must be attached to the statement of claim (CPC Art. 131,; APC Art. 125,). Otherwise, the claim will not be given a course or consideration will not take place.

Special federal laws, professional charters and codes establish the terms and sequence of out-of-court settlement of relations, not allowing the transfer of the case to the courtroom (CC art. 797,,,,,, 284-286; Tax Code, art. Article 120; Decision of the Plenum of the Supreme Arbitration Court No. 30 2005/06/10; Law on Communications Article 55; Order of the Ministry of Railways No. 42 2003/18/06; Letter of the Supreme Arbitration Court No. C5-7 / UZ-886 2003/05/08).

What is a pre-trial claim and how is it made?

Consider what pre-trial dispute resolution procedure is.

The claim, or demand, is the main point of the procedure for the pre-trial settlement of the dispute that has arisen.

The claim is drawn up in writing by the injured party and expresses the requirement to take measures to eliminate the identified violations.

Claim resolution of the issue involves a number of steps, including compensation payments, which should restore justice, cover the damage and suit both sides of the conflict. Pre-trial measures of a claim or other order are considered successful if it was possible to reach an agreement without judicial intervention.

The claim does not have a standard form, but must contain:

• name of the addressee - in the header (if the claim is made to a legal entity, then the addressee is the head of the organization);
• Name and contact details of the applicant;
• the essence of the claim, indicating the consequences of failure to fulfill obligations by the guilty party;
• claims of the infringed person with reference to the articles of legislation and / or clauses of the contract;
• proposals to resolve the conflict;
• the amount of compensation with reduction of calculations;
• a list of documents confirming the validity and objectivity of the requirements put forward;
• number and painting with decoding.

The claim is formed in two copies, one of which is sent by registered mail with a return receipt, and the second is kept as proof of the measures taken when filing an application with the court.

The response time to a claim is determined by a number of federal laws(APK, CAS, NK, GK, FZ No. 212, 311, 129, 40, 18, 259, 87, 176, etc., ZhK and SK) and varies from 5 days (communication services and OSAGO) to 1 month. By default, waiting for a response is limited to 1 month. In the absence of positive dynamics within 30 days, there is every reason to go to court (Federal Law No. 47; APC Art. 4).

The indication of the deadline in the written request should be based on a reasonable calculation of the number of days to be executed (for example, the addressee, at a minimum, must receive a message, which directly depends on the “rate of fire” of the Russian Post).

When is pre-trial dispute resolution possible?

Even the legislative obligation (FZ No. 47, version 2016/23/06) of pre-trial settlement of the conflict is not a guarantee of the success of the ongoing procedures: the entry of a case to the claim stage, as a rule, is accompanied by an outburst of emotions with the ensuing consequences.

This leads to the fact that one of the parties categorically does not want a peaceful settlement (30 days leaves the law for the predominance of common sense).

Often, the intervention of a lawyer(s) is required to reach an agreement, which helps to keep the peace between the parties, hear speeches and excuses, and avoid litigation.

Disputes are amenable to settlement without the intervention of the court, if the parties deliberately included such a clause in the body of the original cooperation agreement. Moreover, usually the contractual procedure for resolving a conflict provides for a certain regulation of out-of-court settlement of problems, restoration of rights and obligations, which leads to mutual satisfaction.

Benefits of the procedure

The settlement of a conflict situation without third-party judicial intervention has undoubted advantages:

1. Relatively fast resolution of the issue. Based on the fact that the expected response to a submitted claim is limited to 30 days, and litigation can last for years, the advantage of a civilized settlement is not discussed.
2. The process is economically beneficial to both parties. Expenses associated with filing an application with the court (duty, copying of papers, legal services, etc.) are excluded as unnecessary.
3. Lack of nervous and responsible work on filing a claim. The slightest deviation from the requirements or omission of details in the statement of claim will lead to the fact that he will not be given a move. The use of professional help will lead to additional costs.
4. Pre-trial settlement allows the parties to the dispute to “save face”, make sure that each other is honest and professional, and consider the possibility of continuing business relations. Pre-trial settlement of the dispute leads to an agreement that suits both parties.

Even if an attempt at pre-trial settlement fails, the very fact of its use is an argument in favor of the plaintiff.

What are the steps involved in pre-trial dispute resolution?

Based on the analysis of the situation and upon the fact of violation of rights, the injured party notifies the partner about the incident (if there is an agreement with a conflict resolution clause included in it) or immediately sends a claim outlining the essence of the case and the requirements set out. In some cases, it will not be superfluous to send copies of the claim to all addresses that are known.

If the decision is positive, the response shall indicate the amount recognized as the offender, the dates and numbers of payment documents, etc.

It is possible to offer alternative options for resolving the conflict.

At negative decision indicate the reasons for the refusal with reference to the articles of the law, as well as evidence of the reasonableness of the refusal.

Pre-trial settlement is understood as a procedure by which the subjects of the dispute try to resolve the conflict that has arisen within the framework of the obligation before applying to the courts.

Being one of the forms of protection of subjective rights aimed at resolving disputes in legal relations before filing a corresponding claim with the court, pre-trial settlement can be both mandatory and voluntary.

Mandatory pre-trial settlement is either enshrined in law or agreed in the contract. For a voluntary settlement, the will of the conflicting parties is sufficient.

The pre-trial settlement algorithm is as follows.

• In the event of a disputable situation, depending on the legal relationship, we find out the “obligation” of pre-trial settlement.
• We will learn about the procedure for such regulation, the conditions under which it is considered to be observed.
• We draw up and send a claim to the counterparty (in accordance with the procedure approved by law/contract or in accordance with business practices).
• We draw up an agreement on the settlement of the dispute or, if the counterparty refuses, we send a lawsuit to the court.

How to write a notice of pre-trial settlement - sample

By virtue of Art. 126 of the Arbitration Procedure Code of the Russian Federation and 132 of the Code of Civil Procedure of the Russian Federation, when filing a claim, it is necessary to confirm compliance with the claim or other mandatory procedure for resolving the dispute. As a rule, notification of pre-trial settlement occurs by sending a claim (another document) to the counterparty.

The claim is made in writing and, in addition to the details of the parties, must contain:

• grounds for sending indicating the violated obligation - for example, it should be clear from the claim what actions the counterparty does not agree with (ASMO ruling dated 06/07/2016 in case No. A41-30785 / 16);
• the demand itself (for example, the demand for the payment of a debt, the fulfillment of an obligation, etc.);
• warning about going to court.

In a continuing legal relationship, the claim must correspond to each specific violation. The claim must be signed by an authorized subject.

The pre-trial settlement notification form can be downloaded from the link: notification of pre-trial settlement - sample.

Is a simple letter considered a pre-trial settlement document?

To qualify a simple letter as a claim, it must contain signs of claims, namely: such a letter must contain a list of violations, a requirement to perform something, a warning about applying for judicial protection.

In the absence of relevant qualifying features, a simple letter cannot be considered a document of pre-trial settlement (for example, resolution of the FAS MO dated January 19, 2012 No. A40-57240 / 11-127-517).

Sample letter of pre-trial settlement can be downloaded from the link: pre-trial settlement letter - sample .

Agreement on pre-trial settlement of the dispute - sample, drafting rules

An agreement on pre-trial settlement is a document expressing the reconciliation of the parties to the conflict in a disputed legal relationship.

The preparation of this document is optional, but desirable, since through such an agreement it will be easier for the parties to control the process.

According to the results of mutually beneficial decisions, the agreement reflects:

• details of the parties;
• the subject of the dispute;
• obligations agreed by the parties;
• conditions and terms of fulfillment of the assigned obligations.

The agreement must necessarily be signed by the subjects of the disputed legal relationship.

The form of the agreement on pre-trial settlement of the dispute can be downloaded from the link: agreement on pre-trial settlement of the dispute - sample.

When is an application for pre-trial settlement made?

An application for pre-trial settlement (consideration) of a dispute must be drawn up in the event of a dispute related to the establishment of regulated prices (tariffs) in the areas of activity of subjects of natural monopolies, as well as in the field of water supply and sanitation.

The procedure and rules for preparing this application are established by Decree of the Government of the Russian Federation of April 30, 2018 No. 533.

The statement states the following:

• name, details of the FAS;
• name and details of the applicant;
• the name and details of the person in respect of whom the application was submitted (respondent);
• the requirements of the applicant to the respondent;
• reasons for applying.

The pre-trial settlement application form can be downloaded from the link: application for pre-trial settlement - sample.

In conclusion, we note that the claim is the most frequently used document of pre-trial dispute settlement. In order to legally differentiate a claim from other documents, it must contain signs of claim requirements, namely a list of violations, a requirement to perform something, a warning about applying for judicial protection.

from 31/12/2018

In what cases is a pre-trial claim needed and when is it needed? let's figure it out.

It would seem that when the inevitability of going to court is obvious from the behavior and actions of the other party to the transaction (contract), the pre-trial claim is useless and powerless.
But attention should be paid to the fact that sometimes, by virtue of the Law or (most often) the text of the contract, a pre-trial claim is mandatory. The absence of the fact of its delivery (and the right way) leads to .

Almost all examples of documents posted on the site in the Claims section are pre-trial claims (with the exception of). This means that such documents precede the court, contain the legal justification for the position of the complainant and are aimed at amicable settlement of the dispute. Since any claim can be regarded as pre-trial, such a document is drawn up in writing, and the person who sent the claim provides evidence of its direction (delivery).

An example of a pre-trial claim

Mr. RF Voskov Andrey Arkadyevich,

446028, Syzran, st. Ak. Sakharova, 17-34

from Masterov Sammuil Iosifovich

446026, Syzran, st. October, 34-48

pre-trial claim

On 10/19/2016, a loan agreement was concluded between me and a citizen of the Russian Federation Anna Vyacheslavovna Voskova, in accordance with the terms of which I transferred to the ownership of the said person cash in the amount of 350,000 rubles. with the condition of payment of the said funds by December 19, 2016, at 30% per annum.

In addition, on 10/19/2016, you acted as a guarantor for this transaction, which is confirmed by the suretyship agreement dated 10/19/2016, as well as the movable property pledge agreement dated 10/25/2016, namely the KAMAZ vehicle, 1989 onwards, state number O198РВ.

In accordance with Art. 343 of the Civil Code of the Russian Federation, one of the obligations of the pledgor (since the right of possession and use remains with the Pledgor) is the obligation to insure against the risks of loss and damage to the pledged property for an amount not lower than the amount of the claim secured by the pledge. A similar requirement is contained in clause 3.7 of the Vehicle Pledge Agreement dated October 25, 2016. To date, despite numerous requests, a copy of the insurance agreement has not been provided to me. In addition, in violation of Part 2 of Art. 343 of the Civil Code of the Russian Federation, you have not ensured the exercise of the right to check according to the documents and in fact the presence, quantity, condition and conditions of storage of the pledged property.

Based on part 3 of Art. 343 of the Civil Code of the Russian Federation in case of a gross violation by the pledgee of the obligations assigned to him, including insurance of the subject of pledge, when such actions create a threat of loss or damage to the pledged property, the pledgee has the right to demand early fulfillment of the obligation secured by the pledge, and in case of its failure - to levy execution on mortgaged property.

November 20, 2016 Voskovoy A.V. sent in writing, left unanswered. Based on the foregoing and in accordance with Art. 349 of the Civil Code of the Russian Federation, taking into account the existence of an agreement on the extrajudicial procedure for foreclosing the pledged property, I demand that within 10 days from the date of receipt of this claim, take measures to transfer the pledged vehicle to my ownership. Otherwise, I will be forced to go to court with a statement of claim to foreclose on the mortgaged property, and to Voskova A.The. – .

December 10, 2016 Masterov S.I.

How to make a pre-trial claim

A pre-trial claim is practically a statement of claim. The text of the claim must contain the legal justification, factual circumstances, requirements.

A pre-trial claim is made according to the following template:

• the addressee of the claim is indicated - the counterparty in the transaction, the person who violated his obligations, in some cases - other persons (for example, when compensating for damage to health caused by a minor, his parents will become the addressee of the claim);
• personal data of the sender of the claim: full name, address, phone number, e-mail;
• name: pre-trial claim to emphasize the intention to go to court in case of refusal to satisfy the legal requirements of the party to the transaction;
• the grounds for the emergence of an obligation between the parties: about an agreement, an action, causing harm, if necessary, to file, etc.
• references to the rules of law that govern the relations that have arisen between the parties;
• claimant's claims;
• the period during which the claim must be answered;
• appeal to the court with a claim in case of refusal to satisfy the requirements of the claim.

If the obligation between the parties is of a monetary nature and in the future filing, whether to include such a requirement or ask only for the return of the principal debt is the right of the person filing the claim.

Delivery of pre-trial claim

A claim prepared in writing shall be served in the manner prescribed by the contract. If this method is not specifically agreed, send the document by registered mail with a description of the attachment and notification. You can track the date of receipt of the pre-trial claim on the website of the Russian Post. And it is from this date that the countdown to submission begins. statement of claim to court.

Clarifying questions on the topic

Olga

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Alexander Alekseevich

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Adil

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