Efficiency is difficult to attribute to characteristic features judicial procedure for resolving conflicts. Yes, and to execute a decision in favor of the organization is sometimes more difficult than to defend one's case in the courtroom. Meanwhile, there is an excellent procedural tool in order, if not to force the counterparty to back down, then at least to make them seriously think about a compromise and ways to resolve the dispute. These are enforcement measures.

Mikhail Grigoriev, expert of the Lawyer of the Company magazine

Thanks to interim measures, the opponent realizes the seriousness of your intentions and the precariousness of his position within a few days after filing a claim (clauses 2 and 6 of article 93 of the APC of the Russian Federation). But you can achieve the desired effect only by correctly substantiating your requirements. In this article, we'll cover what you need to know to use this tool effectively.

Applying for security is necessary but not sufficient

You can ask the court to take measures to secure a claim at any stage of the process - from filing a claim to making a final decision on the case. However, in most cases it is reasonable to do this at the same time as filing a claim. After all, this institution, in its essence, is an emergency means of protecting the interests of the plaintiff. Therefore, the application for security can be stated directly in the statement of claim. The main thing is that it contains all the information listed in Part 2 of Article 92 of the Arbitration Procedure Code of the Russian Federation.

The court may apply interim measures in the following cases (clause 2, article 90 of the Arbitration Procedure Code of the Russian Federation):

1. If failure to take these measures may make it difficult or impossible to enforce a judicial act
2. In order to prevent the applicant from causing significant harm

It is useless to cite other motives for applying interim measures to the court (Decree of the Federal Arbitration Court of the Moscow District of December 21, 2005 No. KG-A40 / 12285-05).

“Thanks to interim measures, the opponent realizes the seriousness of your intentions and the precariousness of his position within a matter of days after filing a claim”

How to justify the difficulties with the execution of a judicial act

One of the grounds under which there is a threat of non-execution of a judgment is listed directly in the text of the Arbitration Procedure Code of the Russian Federation - if the execution will take place outside the territory of the Russian Federation (clause 2, article 90 of the Arbitration Procedure Code of the Russian Federation). However this reason difficult to call the most common. Unfortunately, the judges are not particularly impressed by the well-known difficulties with the execution of decisions within this territory. Therefore, it is necessary to find a more convincing reason.

As a rule, such a reason is that the disputed property may be absent at the time of execution of the judgment. A hint on how to prove difficulties with the execution of a judicial act can be found in paragraph 9 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of October 12, 06 No. 55 “On the application of interim measures by arbitration courts”. The judges pointed out that the difficult nature of the execution of the judicial act or the impossibility of its execution may be associated with the lack of property of the debtor, the actions taken to reduce the amount of property.

The following example is indicative. The company filed a claim for the recovery of damages caused by the defendant's failure to fulfill obligations under the storage agreement. As security for the claims, the plaintiff asked the court to prohibit the defendant from alienating his property. real estate. The organization substantiated its petition by the fact that the defendant does not fulfill contractual obligations for a long time, citing the lack of money and a large accounts payable. And at the same time, he is taking action to sell his real estate. The court considered these arguments sufficiently convincing and granted the petition (Decree of the Federal Arbitration Court of the Far Eastern District of August 30, 2005 No. Ф03-А51 / 05-1 / 2441)

A guideline for proper argumentation of the assertion that it is difficult to enforce a court decision can be found in Resolution No. 11 of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 9, 2003 “On the practice of consideration by arbitration courts of applications for interim measures related to the ban on holding general meetings of shareholders”. In paragraph 4 of the said resolution, the Plenum pointed out that a situation should be considered a difficulty with the execution of a court decision when the plaintiff has to apply to the court with a new claim in order to exercise his rights.

The plenum of the Supreme Arbitration Court of the Russian Federation indicated that it may indicate a difficulty in the execution of the relevant act: if there are reasons to believe that after the recognition or confirmation of the rights of the plaintiff by a court decision, he will have to go to court with a new claim in order to make the decision of the general meeting of shareholders on a particular issue was declared invalid.

However, analysis judicial practice shows that the courts are very reluctant to accept the applicants' doubts about the possibility of enforcing the court's decision. Arbitration practice is replete with examples of refusals to take interim measures on this basis due to lack of evidence (for example, the decision of the Federal Arbitration Court of the West Siberian District of October 31, 06 No. F04-6524 / 2006 (27165-A46-16), the decision of the Federal Arbitration Court of the Moscow District of 29.11.06 No. KG-A41 / 11293-06, etc.).

Therefore, a more reliable way is to convince the court to take measures to prevent significant damage to the applicant.

“An analysis of judicial practice shows that judges are very reluctant to agree with the applicants’ doubts about the ability to enforce a court decision”

How to Convince the Court to Take Action to Prevent Significant Damage

The concept of "significant damage" is an estimate. Therefore, it is not possible to give a single recipe for all occasions. It is necessary to substantiate the significance of the damage individually in each case. specific case. Well, for example, to compare the concepts of "significant damage" and "major transaction" (more than 25 percent of the book value of the company's assets). But this is just for example. There is a chance to convince judges of the significance of the damage even with relatively small amounts. So the judges agreed with the need to prevent the plaintiff from causing damage in the amount of 400 rubles (Decree of the Federal Arbitration Court of the West Siberian District of October 17, 06 No. F04-6862 / 2006 (27433-A27-29)).

A clearer criterion, which judges will also be guided by, is given in the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 55. The supreme arbitration body indicated that in order to prevent significant damage to the applicant, interim measures may be aimed at preserving existing state relations between the parties. It is on justifying the need to preserve the status quo that the main emphasis should be placed.

Thus, the organization filed a lawsuit to remove obstacles to the use of land plot, on which the defendant, according to the plaintiff, illegally erected a metal structure, which the plaintiff demanded to be demolished. As security for the claim, the plaintiff applied for an injunction to continue construction works. The court agreed that the security was aimed at maintaining the existing state of affairs and granted the petition (Decree of the Federal Arbitration Court of the Far Eastern District of November 15, 2005 No. Ф03-А51 / 05-1 / 3416).

In another case, the bank filed a lawsuit to invalidate the auction from which its debtor sold real estate. As security, the plaintiff requested:
- prohibit the acquirer of property from carrying out actions related to the disposal of property;
- prohibit the bodies of state registration of rights to real estate and transactions to register any transactions and encumbrances in relation to the disputed building, committed by the acquirer;
- prohibit the bodies of state registration of rights to real estate and transactions with it to register any transactions, encumbrances and rights of subsequent purchasers of the disputed building.

The bank substantiated its petition by the fact that the failure to take the interim measures it asks for would entail a lengthy process of claiming the disputed property from subsequent purchasers. This will delay the bankruptcy proceedings and cause significant losses to the plaintiff and other bankruptcy creditors of the defendant. Federal Arbitration Court Northwestern District considered these arguments persuasive, indicated that they were aimed at maintaining the existing state of relations and granted the petition (decree dated 09.02.07 No. A56-21362 / 2006).

The provision must be adequate

However, even the most appropriate request for interim measures can fail if it is not adequate to the stated requirement. Here is what the judges will pay attention to, checking its validity (clause 10 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 55):
- the reasonableness and validity of the applicant's claim for the application of interim measures;
- the likelihood of causing significant damage to the applicant in the event of failure to take interim measures;
- ensuring the balance of interests of interested parties;
- prevention of violation of public interests, interests of third parties when taking interim measures.
- to what extent the interim measure is related to the subject of the claimed claim, is proportionate to it and how it will ensure the actual implementation of the objectives of interim measures (part 2 of article 90 of the Arbitration Procedure Code of the Russian Federation).

So the judges refused to take interim measures in the form of a ban on registering the transfer of ownership of real estate sold at auction, at the claim of a person who was not allowed to participate in the auction. According to the court, this measure is not aimed at securing the claim for recognition as invalid, refusal to allow the plaintiff to participate in the auction (Decree of the Federal Arbitration Court of the Central District dated April 20, 06 No. A14-1448-2006/32/30)

If the interim measure is directly related to the stated claim and corresponds to it, the court may accept security even to protect the public interest of persons not participating in the case (Resolution of the Federal Arbitration Court of the Urals District dated January 31, 2007 No. Ф09-236 / 07-С5).

Article 91 of the Arbitration Procedure Code of the Russian Federation lists the most common measures:
- seizure of funds or other property belonging to the defendant and being with him or other persons;
- prohibition of the defendant and other persons to perform certain actions relating to the subject of the dispute;
- imposing on the defendant the obligation to perform certain actions in order to prevent damage, deterioration of the disputed property;
- transfer of disputed property for storage to the plaintiff or another person. If necessary, you can ask to apply several interim measures at the same time. Note that this list is open, and the court may take other measures.

I. Basic provisions on the application of interim measures in civil proceedings

I. Basic provisions on the application of interim measures in civil proceedings

In accordance with Article 139 of the Civil Procedure Code of the Russian Federation (hereinafter referred to as the Code of Civil Procedure of the Russian Federation), at the request of the persons participating in the case, the judge or court may take measures to secure the claim. Securing a claim is allowed in any state of the case, if the failure to take measures to secure the claim may make it difficult or impossible to enforce the court decision.

Since it allows securing a claim in any state of affairs, securing a claim is also possible during the preparation of a case for trial (clause 12 of part 1 of article 150 of the Code of Civil Procedure of the Russian Federation, clause 29 of the Decree of the Plenum of the Supreme Court of the Russian Federation of June 24, 2008 N 11 "On the preparation of civil cases for judicial proceedings").

The measures taken by the court to secure the claim must meet the objectives specified in Article 139 of the Code of Civil Procedure of the Russian Federation, and in accordance with Part 3 of Article 140 of the Code of Civil Procedure of the Russian Federation must be proportionate to the claimant's claim.

The list of measures to secure a claim contained in Article 140 of the Code of Civil Procedure of the Russian Federation is not exhaustive, in connection with which the court may apply other measures that meet the goals provided for in Article 139 of the Code of Civil Procedure of the Russian Federation.

Securing a claim is one of the guarantees for the protection of rights for persons who have applied for judicial protection, which is aimed at the real and complete restoration of their property rights if their claims are satisfied. This institution protects the rights of the plaintiff in the event that the defendant acts in bad faith or when failure to take measures at all may lead to the impossibility of executing the judicial act.

The law does not define the range of evidence that must be submitted by the person who filed a petition for securing a claim, and provides that the very existence of both a real and potential threat of non-execution of a court decision or difficulty in its execution in the future is the basis for applying interim measures.

Therefore, when filing a petition for taking measures to secure a claim, a participant in the process (as a rule, the plaintiff acts as the initiator of securing a claim) must provide evidence confirming the existence of a threat of non-execution of a court decision related to the actions of the defendants, and the need to apply measures to secure a claim, since measures to securing a claim are accepted only in the event that there is a possibility of non-performance or improper performance defendant future decision.

The assessment of the circumstances that necessitate the application of measures to secure the claim is the prerogative of the court (judge) resolving the dispute, which resolves this issue, depending on whether it has reason to believe that in case of failure to take measures to secure the execution of the court decision, it may be difficult or the decision judgment will be unenforceable.

Thus, the mechanism established by the procedural law for establishing measures to ensure the claims declared in court is used, first of all, to protect the interests of the plaintiff. At the same time, when regulating the issue of taking interim measures, the principle of maintaining a balance of interests of the parties is taken into account, the legislation also provides for the protection of the interests of the defendant.

Thus, according to Part 1 of Article 143 of the Code of Civil Procedure of the Russian Federation, at the request of a person participating in the case, it is allowed to replace some measures to secure a claim with other measures to secure a claim in the manner established by Article 141 of the Code of Civil Procedure of the Russian Federation.

The replacement of some measures to secure a claim by others occurs not only when the previously established measure of securing a claim does not protect the rights of the plaintiff and cannot guarantee the execution of the decision in full or in one part or another, but also when this measure unjustifiably infringes on the rights of the defendant or he may be cause avoidable losses.

In addition, according to Article 146 of the Code of Civil Procedure of the Russian Federation, the defendant, after the entry into force of the court decision that dismissed the claim, has the right to bring a claim against the plaintiff for damages caused to him by measures to secure the claim, taken at the request of the plaintiff.

Below is an overview of the conclusions of the courts, set out in the decisions of specific cases, on the application of interim measures in civil proceedings, namely:

- reasonableness and proportionality of interim measures;

- replacement of interim measures;

- Cancellation of the security of the claim;

- compensation to the defendant for losses caused by securing the claim.

II. Conclusions of the courts on the application of interim measures in civil proceedings

1. Reasonableness and proportionality of interim measures

1.1. Appeal ruling of the Kemerovo Regional Court dated October 13, 2015 in case No. 33-11340/2015

Claim:

Citizen D. filed a lawsuit against citizen N. with a claim for the recovery of expenses for medicines, compensation for moral damage, expenses for paying for the services of a representative, motivated by the fact that through the fault of the defendant, harm of moderate severity was caused to his health, in connection with which the plaintiff is experiencing physical and moral suffering, and simultaneously filed a statement on the adoption of measures to secure the claim in the form of seizure of the defendant's car.

The court's decision:

By a court ruling, measures were taken to secure the claim of D. against N. for the recovery Money, compensation for non-pecuniary damage in the form of seizure of a vehicle belonging to N.

Court position:

Satisfying the petition of the plaintiff (D.) to take measures to secure the claim in the form of seizure of the car of the defendant (N.), the court proceeded from the fact that possession of a vehicle on the right of ownership allows the owner to dispose of the property at his own discretion at any time, while transactions for the alienation of a motor vehicle do not require state registration, in turn, data on the presence of N. other property, funds, at the expense of which it is possible to fulfill the requirements of D. if the claim is satisfied, there is no in the case, therefore, if the claims are satisfied full execution of the court decision may be difficult or impossible due to the defendant's refusal to voluntarily pay the recovered funds to the plaintiff, and N.'s alienation of the car will lead to the impossibility of foreclosing this car.

1.2. Appeal ruling of the Tula Regional Court dated September 17, 2015 in case No. 33-2845/2015

Claim:

Citizen K. filed a lawsuit against citizen S. with a claim for the recovery of material damage, consisting of arrears in payment for electricity and gas, arrears in rent, and asked in order to secure the claim, in order to prevent the impossibility in the future of the execution of the court decision to seize any transactions for the alienation, pledge of a vehicle owned by the defendant.

The court's decision:

K.'s motion to take interim measures to seize S.'s car was denied.

Court position:

Noting that proving the existence of the circumstances specified in

Measures to secure a civil claim are taken by the court at the request of the interested party in the litigation. They must not only have legal grounds for application, the applicant will have to provide evidence that only in this way can his interests be protected. That is, the failure of the court to adopt a ruling on interim measures may devalue the very need for a trial and a decision.

talking plain language, these measures are insurance aimed at protecting, as a rule, the property rights of the applicant. This may be an arrest of the disputed property or a prohibition on the party to the proceedings to take any actions that may lead to a violation of the property interests of the opponent or make it impossible to enforce the court decision.

What is securing a claim in a civil case

Interim measures are, often, significant restrictions on the material rights of one side of the case (usually the defendant, if we are not 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 could make it impossible to enforce the judicial act ( Article 139 Code of Civil Procedure of the Russian Federation).

In the Code of Civil Procedure of the Russian Federation, namely in article 140, requirements for such measures are established, and which of them can be considered security measures:

• prohibition to perform certain actions with property by one of the parties (sell, donate, lease, use, reconstruct; change the intended purpose, etc.)
• arrest of property (inventory), in respect of which the proceedings are being conducted;
• a ban on the performance by third parties of certain actions with a disputed object;
• temporary suspension of already started registration activities;
• suspension enforcement proceedings;
• seizure of valuables, which can subsequently be used for recovery in a lawsuit, 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 it is precisely such actions of the court that will ensure the exercise of the legitimate right of the interested party.

How to initiate enforcement of a claim

The only way to initiate the procedure is to apply to the court with a motion. This can be done both before the start of court proceedings, for example, by submitting an application along with a lawsuit, or already in the process, but before the court goes to the deliberation room.

The mandatory items that must be included in the application are:

• data of the court, as well as the applicant, the defendant and third parties;
• Title of the document;
• description of the essence of legal relations, as well as an indication of the mandatory nature of these measures;
• reasons why such action is 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 satisfied;
• 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 for 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 set out in article 141 of the Code of Civil Procedure of the Russian Federation. So, the petition is considered during the day of receipt by the court without calling and notifying the parties. Interested persons are notified only after the decision is made.

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

The procedure for the actual execution of the determination

The party that announced the adoption of measures to secure the claim receives an executive document and a ruling. Only the definition 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 expressed, the sheet is sent to the applicant by mail or handed over personally.

The writ of execution is transferred 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 a day from the moment of receipt (Article 36 of the Federal Law “On Enforcement Proceedings”).

If the object against which the measures are applied is real estate or transport, then the court independently sends a copy of the ruling to the body that performs the registration actions (Rosreestr, MREO STSI).

Consequences of interim measures

The main consequence of the application of 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 in nature, and as a result, the claims were not satisfied, the defendant has the right to file a separate claim for the recovery of the incurred losses.

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

Lawyer Exam

Question 196

Question 196

At the request of the persons participating in the case, the judge or the court may take measures to secure the claim. Securing a claim is allowed in any state of the case, if the failure to take measures to secure a claim may make it difficult or impossible to enforce a court decision (Article 139 of the Code of Civil Procedure).

Measures to secure a claim can be (Article 140 of the Code of Civil Procedure):

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

3) prohibition of other persons from performing certain actions relating to the subject of the dispute, including transferring property to the defendant or fulfilling other obligations in relation to him;

4) suspension of the sale of property in the event of a claim for the release of property from arrest (exclusion from the inventory);

5) suspension of recovery under an executive document challenged by the debtor in court.

In necessary cases, the judge or the court may take other measures to secure the claim that meet the goals specified in Art. 139 Code of Civil Procedure. A judge or court may allow several measures to secure a claim.

In case of violation of the prohibitions specified in paragraphs 2 and 3 of the first part of Art. 140 Code of Civil Procedure, the perpetrators are subject to a fine of up to one thousand rubles. In addition, the plaintiff has the right to demand in court from these persons compensation for losses caused by failure to comply with the court ruling on securing the claim.

Measures to secure the claim must be commensurate with the requirement stated by the plaintiff. The judge or court shall immediately notify the appropriate state bodies or local self-government bodies that register property or rights to it, their restrictions (encumbrances), transfer and termination of the measures taken to secure the claim.

An application for securing a claim is considered on the day of its receipt by the court without notifying the defendant, other persons participating in the case. The judge or the court issues a ruling on taking measures to secure the claim (Article 141 of the Code of Civil Procedure). A court ruling on securing a claim is enforced immediately in the manner established for the execution of court decisions (Article 142 of the Code of Civil Procedure). On the basis of a court ruling on securing a claim, the judge or court issues a writ of execution to the plaintiff and sends a copy of the court ruling to the defendant.

At the request of the person participating in the case, it is allowed to replace some measures to secure a claim with other measures to secure a claim in the manner prescribed by Art. 141 Code of Civil Procedure (Article 143 Code of Civil Procedure). When securing a claim for recovery sum of money the defendant, instead of the measures taken by the court to secure the claim, has the right to deposit the amount claimed by the plaintiff into the account of the court.

The provision for a claim may be canceled by the same judge or court at the request of the persons participating in the case, or at the initiative of the judge or court (Article 144 of the Code of Civil Procedure). The issue of canceling the securing of the claim shall be resolved at the court session. The persons participating in the case are notified of the time and place of the court session, however, their failure to appear is not an obstacle to considering the issue of canceling the securing of the claim.

If the claim is denied, the measures taken to secure the claim are retained until the court decision enters into legal force. However, the judge or the court, simultaneously with the adoption of the 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 execution of the court decision.

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

Guarantees of the defendant's interests.

A private complaint can be filed against all court rulings on securing a claim (Article 145 of the Code of Civil Procedure). If a court ruling on securing a claim was issued without notifying the person who filed the complaint, the term for filing the complaint shall be calculated from the day when such person became aware of this ruling.

Filing a private complaint against a court ruling on securing a claim does not suspend the execution of this ruling. Filing a private complaint against a court ruling to cancel the securing of a claim or to replace some measures to secure a claim with other measures to secure a claim shall suspend the execution of the court ruling.

The judge or the court, allowing the securing of the claim, may require the plaintiff to provide security for possible losses for the defendant. The defendant, after the entry into force of the court decision, by which the claim is denied, has the right to bring a claim against the plaintiff for damages caused to him by measures to secure the claim, taken at the request of the plaintiff (Article 146 of the Code of Civil Procedure).

Question 83 Concept, types, order of calculation. Limitation of actions. A term is a period of time that has a beginning, a duration, and an end. The term established by the law, other legal acts, the transaction or the term appointed by the court is determined by the calendar

Question 168 The parties in civil proceedings are the plaintiff and the defendant (Article 38 of the Code of Civil Procedure). The parties enjoy equal procedural rights and bear equal procedural obligations. The parties have

Question 169 Concept, purpose, grounds, types, difference between accomplices and third parties. A claim may be filed in court jointly by several plaintiffs or against several defendants (procedural complicity) (Article 40 of the Code of Civil Procedure). Procedural

Question 170 Conditions and procedure for replacing an improper defendant. Difference from procedural succession. Establishing and proving the proper character of the parties to the case means that the plaintiff must prove that

Question 171 Third parties are persons participating in the case, who enter into the initiated civil process, have a certain legal interest in the outcome of the case due to the impact of the court decision on their rights and

Question 172 government agencies, local self-government bodies, other persons acting in defense of other people's interests (purpose, grounds for joining and forms of participation). The prosecutor has the right to apply to the court with a statement in defense of the rights, freedoms

Question 186 Grounds and order of appointment. Procedural rights and obligations of experts. Additional and re-examination. If issues arise during the consideration of a case that require special knowledge in various

Question 187 Court orders in civil proceedings. The procedure for notarization of evidence. Persons participating in the case who have reason to fear that the submission of the necessary

Question 194 The plaintiff has the right (Article 39 of the Code of Civil Procedure): to change the basis or subject of the claim; to increase or decrease the amount of claims; to refuse the claim. Changing the basis or subject

Question 195 The defendant has the right, before the court makes a decision, to file a counterclaim against the plaintiff for joint consideration with the original claim. Counterclaim

Question 201. Leaving an application without consideration in civil proceedings (concept, grounds, consequences). Leaving an application without consideration is a form of ending a civil case caused by the fact that the applicant does not comply with the conditions established by law

Question 202 Termination of proceedings on a case is a form of termination of a case, conditioned by such circumstances provided for by law, which completely exclude

Question 215 The object of the cassation appeal is the court decisions that have entered into legal force, with the exception of court decisions. Supreme Court

Question 221 The difference between a review on newly discovered circumstances and a judicial supervisory review. civil procedural law provides

Question 241 Protection of the interests of the parties in the application of interim measures. The arbitration court, upon the application of a person participating in the case, and in cases provided for by the APC, and of another person, may accept

Question 244 Abandonment statement of claim without movement and its return (reasons, procedure for application and consequences). Initiation of proceedings in the arbitration process is carried out by filing a statement of claim or

Securing a claim is necessary if you suspect that the defendant may take action to get rid of existing valuables in order to hide them from bailiffs in the event of recovery.

You can file this application at the same time as the claim. Thus, you can not only get ahead of the enterprising defendant, but also speed up the acceptance of the claim for proceedings. If desired, the defendant has the right to replace the interim measures imposed by the court by depositing a sum of money into the account of the court.

The fact is that the Civil Procedure Code obliges to consider the issue of imposing interim measures on the day of receipt of the relevant application. After making a decision, the judge issues a ruling on the imposition of appropriate measures. On its basis, the plaintiff receives a writ of execution. The court considers the application for securing the claim as a matter of urgency. That is, you can find out whether the application is satisfied on the same or the next day at the court office.

The ruling on the imposition of interim measures shall be enforced immediately. This means that information about the measures immediately gets to the authorities responsible for the transfer of rights to property.

The process of deciding on the imposition of interim measures takes place without notifying the other parties to the dispute. Thus, the defendant learns about the arrest upon receipt of a copy of the court ruling.

In what situations may you need a measure to secure a claim:

Divorce and division of marital property

If you intend to recover from the defendant the amount of the debt or any compensation

To suspend the sale of seized property at auction when the seizure of this property is disputed

In the application for securing the claim, you must indicate what kind of property you consider important for the proceedings. That is, the property at the expense of which a court decision can be implemented in the future. Satisfy those measures, in case of non-acceptance of which at the end of the proceedings, difficulties with the execution of the court decision are possible.

To get a positive decision, it is important to show the court that the defendant intends to get rid of the listed property in order to make it impossible to levy execution on it. These can be sales announcements, confirmation of attempts to transfer non-cash money to other banks.

At the same time, the amount of assets seized by the court must be proportionate to the claims of the plaintiff. It is impossible to seize the defendant's apartment if his debt is one hundred thousand rubles, and the cost of the apartment is several million.

What are interim measures?

For civil proceedings between individuals most often characterized by the imposition of interim measures on the car, real estate and bank accounts.

In the case of a car when it is sold new owner simply will not be able to register it, since the Court will impose a ban on registration actions with it in the traffic police.

It is also easy to impose a ban on real estate - the registering authority will not be able to conduct a transaction with such real estate.

In order to freeze bank accounts, the plaintiff must indicate the specific bank in which the account is held.

Securities and shares in companies can also be sold in order to hide such property.

Also, an interim measure may be a ban on the commission of any actions. Often this is a ban on the defendant leaving the country.

In accordance with the Civil Procedure Code, the defendant has the right to demand compensation from the plaintiff for losses incurred due to the imposition of interim measures. For example, if the latter failed in a transaction for the sale of securities, on which a ban on alienation was imposed by a court ruling.

IN ____________________________

Name, address of the court

Plaintiff: ______________________________

Full name, residential address

Respondent: ______________________________

Name, address of residence or location

STATEMENT

on securing a claim

In the proceedings of the _____________ court is case No. _________, on the recovery of funds from _______ in the amount of _____________ rubles.

The defendant owns the residential premises located at the address: ______________________________.

Currently, the Respondent is taking actions aimed at alienating the above apartment, which is confirmed by correspondence and announcements on the Internet.

The Respondent also has a deposit account with PJSC Sberbank No. _______________.

In accordance with Art. 139 of the Code of Civil Procedure of the Russian Federation, at the request of the persons participating in the case, the judge or the court may take measures to secure the claim. Securing a claim is allowed in any state of the case, if the failure to take measures to secure the claim may make it difficult or impossible to enforce the court decision.

In accordance with Art. 209 of the Civil Code of the Russian Federation, the owner has the rights to own, use and dispose of his property.

In accordance with paragraph 2 of part 1 of Art. 140 of the Code of Civil Procedure of the Russian Federation, a measure to secure a claim may be a prohibition on the defendant from performing certain actions.

Failure to take interim measures may further complicate the execution of the decision, as well as lead to the alienation of the apartment and the transfer of funds from the account, as a result of which it will be impossible to foreclose on them.

Thus, in order to prevent damage to the applicant, it is necessary to take interim measures in the form of a ban on actions aimed at alienating the dwelling and seizing the bank account.

Based on the foregoing, guided by Articles 139, 140, 209 of the Code of Civil Procedure of the Russian Federation,

1. Prohibit ______________ (Respondent) from taking actions aimed at alienating the apartment, cadastral number ______________, located at: ______________;
2. Seize the account (of the Respondent) opened by ______________ (the Respondent) with PJSC "______________" No. ______________.

Applications: evidence in support of the claim.

______________ (plaintiff)

Application for securing a claim in civil proceedings - sample and rules