Art. 49 APC RF: clarification of claims
If necessary, change the subject or basis of claims, reduce or increase their size, the participant should be guided by Art. 49 APC RF. Clarification of claims is allowed before the adoption of the act, the final consideration of the dispute on the merits. A person may also partially or completely abandon his claims to the defendant. This right, according to Part 2 of Art. 49 of the APC RF, is implemented in the first or appeal instance. The defendant, in turn, has the right to partially or fully recognize the claims made to him. Participants in a dispute may end the settlement by settlement. Refusal of the claim, reduction of the amount of claims, recognition of claims by the defendant, settlement agreement are not accepted by the court if it is contrary to the law and infringes the interests of other persons. In such cases, the matter is dealt with on the merits.
Art. 49 of the APC RF: comments
The considered rule describes the administrative actions of the participants, their special procedural rights.These include:
- Change of the basis or subject of the claim.
- Decrease / increase size.
- Waiver requirements.
- Confession of action.
- Acceptance of a settlement agreement.
In practice, there are many problems associated with the administrative acts of the parties. Court rulings adopted as a result of the approval of the settlement agreement, recognition or waiver of claims, are less appealed than ordinary decisions. In this regard, it is often difficult to determine the correct position of the authorities.
Change of grounds / subject
This administrative action is enshrined in the first part of Art. 49 APC RF. The sample of the new claim is made out similarly to the original one. The right to change the grounds / subject of the dispute is exercised exclusively in the first instance. In this case, according to Art. 49 of the APC of the Russian Federation, clarification of the claims is possible before the removal of the officials who are handling the case in the deliberation room. This right may be exercised when a new dispute is considered by the first instance after the annulment of the order in the supervisory / cassation proceedings and the transfer of materials for review. The defendant can make a counterclaim.The court accepts it for consideration with the original requirements. The grounds and subject matter may also change at this stage.
The application is in the order of art. 49 of the APC RF may suggest a change in either the subject or the basis of the claim. Simultaneous adjustment is not allowed. The literature describes two approaches to the subject of changing the subject. The first relates to the method of protection, the second to the object of the dispute. In their pure form, these approaches do not imply a change in the subject as a substantive requirement. However, in the framework of judicial practice, they are implemented in accordance with the provisions of Art. 49 APC RF.
They are presented by the general rules. If the additional claims are not related to the initial claims or the court considers their joint proceedings to be inexpedient, this complex will be refused. Accordingly, their presentation cannot be called a change in the subject matter of the dispute.
In accordance with the law, the plaintiff in some cases is given the opportunity to independently determine the method of protection. In particular, such a right is present in Article 475 of the Civil Code.Parts 1-2 states that if the seller did not stipulate defects of the product, the purchaser, who received the product of inadequate quality, may optionally demand a commensurate reduction in cost, free removal of identified deficiencies within a reasonable time, and compensation for the costs of self-correction. In this norm, alternative protection options are established. When choosing any of them, a person can replace it with another opportunity. This action does not mean changing the subject. It is worth saying that alternative options are also provided for in other articles of the Civil Code (Art. 460, 320, etc.).
Applying Art. 49 of the APC of the Russian Federation, the subject can exercise this right in two ways. In particular, the party may quantitatively change the methods of protection. For example, when presenting a requirement to recognize the invalidity of a contract, the claimant additionally requests that the appropriate consequences be applied. In addition, a person can quantitatively change the object of a claim within one method of protection. For example, the subject asks to eliminate the building between his house and the defendant’s building. So he demands to protect his right to use.In addition, he asks to remove not the whole building, but only a part of it. This leads to a change in requirements within a single facility.
Increase / Decrease Claims
These administrative actions may not concern the presentation of an additional claim not originally expressed. For example, a request to apply a property sanction does not act as an increase in the size of claims for the recovery of the principal debt. The adjustment of the size of the claim may relate not only to monetary claims - the value of the claim may also be increased or decreased due to changes in the amount of collection.
In Art. 49 of the APC of the Russian Federation enshrines the right of a person to refuse his claims in part or in full. At the same time, the law restricts its implementation by the first and the appeals instance. Accordingly, in cassation, the subject does not have such a right. In case of refusal of the claim in the appellate instance under Art. 49 APC RF court cancels the earlier decision. As for the defendant, he can recognize the claims in part or in full. This right is allowed to exercise in any instance. In this case, it is necessary to distinguish events.The recognition of the claim should not be confused with the recognition of the fact. The consequences of such actions are different. In the latter case, the opposite side does not get rid of the obligation to prove the fact. The recognition of the claim, in turn, leads to the termination of the proceedings. These actions do not have an absolute character.
In judicial practice, there is no consensus on the definition of this concept. Some authorities believe that the settlement is a concession of the participants, a compromise. According to other courts, it may include any conditions. The settlement agreement can be made in different ways. Often, it involves installment payment or waiver of claims. Some judges, asserting the agreement, offer to those who do not make claims on the subject of the dispute, confirm with their signature that it does not violate their interests. It should be noted, however, that verification of the absence of infringement of rights is prescribed not only in respect of these subjects, but also of all others, including those not participating in the proceedings.