Чтение книги "The implementation of the economic cycle: freedom, trust, duty" (страница 18)
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Code of Civil Procedure of the Russian Federation took the case on recovery of tax arrears to the writ proceedings (paragraph 6 of Article. 122). Application for issuance of a writ to recover debts from citizens for taxes, fees and other mandatory payments presented to the tax authorities. If the debtor declares an objection to the issuance of the order, the case will be treated according to the rules of claim process.
However, according to Art. 48 of the Tax Code in the event of default by the taxpayer – a natural person who is not a private entrepreneur in due time the obligation to pay tax authorities (customs authorities) may apply to court to collect taxes from the property, including cash balances with the Bank and cash, the taxpayer within the amounts specified in the request for payment of tax. Thus, in accordance with the Tax Code of the Russian Federation tax authorities filed a lawsuit against the debtor. The Code does not provide for filing the tax authorities the application for an injunction in connection with which this provision is not actually valid. It seems that it is necessary to make the Tax Code accordingly.
In any case, taking the statement, the judge must check the following circumstances: if the law provided for this type of payment, whether there are legitimate reasons for citizen involvement to this payment, whether the agency complied with penalties prescribed by law for public involvement for payment; taken into account by a penalty benefits if the law has the right to them.
Delayed payment of wages was the disease that undermines healthy labor relations. The reasons for this disease are many, but one of them – not the speed existed a general claim about permission essentially undisputed cases and delays in connection with the real protection of the rights of workers and employees.
Ability to collect the debt accrued, but unpaid wages in the order of writ of production, of course, does not allow all the problems associated with delays in salary payments. However, in cases where the forgone opportunity to claim money from the employer's real, writ proceedings because of its simplicity, more preferably, rather than a suit.
Referring to the court to grant the injunction, claimant must submit documents proving undeniably outstanding employer. These may include:
– a certificate issued by the employer and confirming that the debt to the employee, as well as indicating the size of the debt;
– a copy of the employment agreement between employer and employee;
– for employees who are paid piece rates, so the document can serve as a design book, which is kept by the employee and the administration of the enterprise is to record the payroll for the markers of change in working conditions.
According to Art. 136 of the Labor Code of the Russian Federation to the payment of wages the employer shall notify in writing to the employee about the constituent parts of the wages owed him for the new appropriate IRS, the amount of deductions made by the major, as well as the total cash sums to be paid. Issued to the employee a written notice is usually referred to as the «settlement sheet». Form approved by the employer, taking into account the views of the representative body of employees (Part 2 of Art. 136 Labor Code). That this document should have the magistrate in deciding whether to grant the injunction.
The employee is, whose rights have been violated is not payment of wages, as a rule, cannot recover from the employer's calculation of the accrued but not paid his wages (employers simply ignore such requests of the employee). Without this calculation, the appeal to the court to grant the injunction is meaningless. Indeed, in failing to provide the court payroll, issued by the employer, the employee has to ask the court to ask for help in gathering evidence. And such a request is associated with the need to have recourse to the courts in the manner of action proceedings.
The prosecutor of authority may recover from the debtor (in this case – the employer) «settlement sheet», confirm the amount of accrued but not paid to the employee's salary, which you can then apply to the court to grant the injunction.
Under the gross wage refers to the payment holiday, severance payments and other payments for work due to the employee. If the employer breaches of the payment of wages and other payments to the employer is obliged to pay them with interest at a rate of not less than 1/300 operating at this time of the refinancing rate of the Central Bank of the outstanding loan amount for each day of delay from the day after the due date of payment the day of actual payment, inclusive. The specific amount of compensation paid or determined by the collective labor contract. These payments must also be credited to the employee and may be recovered in the writ proceedings.
Such claims may be brought against the person sought, the debtor, who is wanted by the child or whose property has been in storage. In accordance with Art. 120 CCP RF judge must issue a ruling declaring the defendant only by tracing the requirements to protect the interests of the Russian Federation, the RF subjects and municipalities, as well as for claims for alimony, compensation for harm caused injury, other health impairment, or the death of a breadwinner. At the same search performed by the budget. In other cases, the plaintiff wanted the defendant made at his expense, and further costs are recovered from the losing party.
List of requirements on which the writ is issued, is exhaustive and is not subject to broad interpretation. Despite this, the broad interpretation of the requirements of the list still has a place in the jurisprudence. Thus, М.А. Черемин mentions that there are cases where court orders were issued on an application for recovery of arrears of child benefits and the application for the recovery of severance pay, which cannot be attributed to wages.
According to М.А. Черемин, the fact that a judge is ordered according to the requirements not provided for by law «should signal the legislator and the science of civil procedural law of the need to raise the issue of additions to the list».
Self М.А. Черемин offered to complete the list of requirements on which the writ shall be made to include a claim for damages in favor of the individual, if the earlier decision was made on the suit to protect the rights of an indefinite number of persons, as well as the above requirements to collect severance pay and child benefits.
An even more radical extension of the requirements for which may be imposed injunction, offers В.И. Решетняк.
First, in his opinion, it would be advisable to provide for the imposition of a court order for the application of any reasonable requirements, monetary value does not exceed a certain limit (eg, a hundred times the minimum wage at the time of application to the court).
Secondly, orders could be made simple in terms of legal evaluation, but requires an urgent solution requirements (for example, claims to evict citizens, arbitrary occupied dwellings, or living in homes that threaten to collapse.)
Make demands on any reasonable requirements, in principle, could be, but today it seems premature. The sharp increase in the number of claims for which the writ is issued, may lead to the fact that simplification of the civil procedural form, our plans to accelerate and improve the efficiency of the process, will prevent the lawful and reasonable settlement of disputes. Initially, you need to get strict adherence to the rule of law in making orders for the currently available quantity requirements, and then gradually increase the number of bases and possibilities of writ of production.
However, recently an increasing number of media reports about the recovery of housing debts with people through the execution of court orders.
The activities of the court to hear and determine civil cases develop in a certain sequence of stages, each of which represents a set of procedural actions directed toward a nearby target.
Writ proceedings as a member of the special and unique to his stage, it is the only type of production, which lacks the basic stages of the civil process – there is no trial and accordingly prepares a case for him.
The law contains no direct reference to its stage, but they can be identified by analyzing the RF section 11 of CPC:
– submission of application for issuance of an order (writ stimulation of production);
– a judicial order;
– notification of the debtor for a court order;
– abolition of the writ;
– issuance of a writ demanding payment.
Pay attention to particular stages of the writ of production in comparison with the stages of the general order of proceedings:
– the stages of the production clerk has reduced the flow time;
– the stages are characterized by the production clerk simplified procedure, each stage consists of a small number of legal proceedings.
In writ proceedings in the stages of the proceedings are not recorded, no stage, characteristic of other types of civil procedure: preparation of the case for trial, the trial, the stage of review for newly discovered fact, the stage of supervisory review.
Writ proceedings are characterized by a particular stage of the abolition of the writ by the judge who issued it. Consider all stages.
Terms of excitation writ of production consistent with the principle of discretionary: Production begins at the initiative of the interested party – the lender, which is called the recovered.
Demands for the extradition order are placed at the discretion of the creditor (plaintiff). He may declare an ordinary suit, and then this requirement the court must consider all the rules of action proceedings. But in this case he will be forced to pay the state fee for a regular claim, and, most importantly, do not have the opportunity to win over time.
Applying for an injunction is largely similar to the submission of the claim. Thus, the application for an injunction filed in court under the jurisdiction established for other types of civil litigation that is, by general rules of jurisdiction established by the Code of Civil Procedure Code (Article 123 Code of Civil Procedure Code). As a general rule application shall be submitted to the court at the place of residence or location of the debtor.
Cases involving the issuance of the injunction related to the jurisdiction of justices of the peace, considering them as the Court of First Instance (Article 23 of the Code of Civil Procedure Code).
When applying for an injunction claimant must pay the state fee, the amount of which is 50% of the rate established for the claims. Simplified procedure provides a kind of tax benefit, giving the parties an opportunity to more profitable for themselves to obtain a remedy. In case of refusal to accept the application for a court order or the cancellation of the state fee paid can be credited as part of the paid registration fee for filing a complaint. Possible and return state tax on general grounds provided for in Art. 93 Code of Civil Procedure of the Russian Federation.
Reduced the size of the state fee when applying for an injunction and set off in the event of a claim is a characteristic feature of writ of production, enabling lenders to go to court in the manner it is writ, rather than action proceedings.
The statement of claim, the claim for a court order contains specific details. The application for an injunction filed in writing and shall contain the following information (Article 124 Code of Civil Procedure Code):
– the name of the court in which the application is submitted;
– the name of the claimant, his place of residence or location;
– the name of the debtor, his place of residence or location;
– require the claimant and the circumstances in which it is based;
– documents supporting the requirements of the claimant;
– list of attached documents.
In the case of reclamation of movable property in the application must specify the value of the property. The cost of movables necessary to confirm the written documents. Specifying a cash equivalent – hedged way of performance, allowing secure implementation of the writ in the absence of the claimed property recovered.
The application for a court order signed by the recovered or have the appropriate authority of its representative. The application filed by a representative, shall be accompanied by a document certifying his authority (paragraph 3 of Art. 124 Code of Civil Procedure Code).
Refusal to accept an application for a court order is possible only in cases stipulated by Art. 125 Code of Civil Procedure of the Russian Federation. This list is not subject to broad interpretation.
Of Art. 134 Code of Civil Procedure Code provides for grounds for refusal of the court in making the claim:
– the application shall be considered and resolved in civil proceedings, as the application will be considered or permitted to be in a different court, a statement filed to protect the rights, freedoms and legitimate interests of another state body, local authority, organization or citizen of that Code of Civil Procedure of the Russian Federation or other federal laws are not granted such a right, in an application filed on his behalf, challenged acts, which do not affect the rights, freedoms or legitimate interests of the applicant;
– has entered into legal force of a court decision on the dispute between the same parties on the same subject and on the same grounds, or a court to terminate the proceedings in connection with the adoption of the refusal of the plaintiff's claim or a claim settlement agreement of the parties;
– has become binding on the parties and the decision on the dispute between the same parties, on the same subject and on the same grounds, the decision of the arbitral tribunal, unless the court refused to grant a writ of execution to enforce the arbitral award;
In Art. 125 Code of Civil Procedure Code does not provide for such effects as the inability to appeal to the court against the same defendant, on the same subject and on the same grounds, in connection with which claimant is not deprived of the right to be treated in the manufacture of claim.
The court returns the claim to the plaintiff (Article 135 Code of Civil Procedure Code) if:
– the plaintiff is not complied with the established federal law for this category of disputes stipulated in the contract or pre-trial order the parties settle the dispute or the claimant has not provided proof of compliance with the order of pretrial settlement with the defendant, if provided for by federal law for this category of disputes or contract;
– do not have jurisdiction of this court;
– the application is filed incapacitated person;
– the application is not signed, or a statement signed and filed by a person not authorized to sign it and presenting to the court;
– in the production of this or any other court or arbitration proceedings on a dispute between the same parties, on the same subject and on the same grounds;
– pending the court's decision to adopt a statement of claim to the production of the court received a statement from the plaintiff's claim for the return.
With regard to the application for a court order does not provide the RF HPA procedure return statement. If there are grounds under Art. 135 Code of Civil Procedure of the Russian Federation, the court in the writ proceedings refuses to accept the application. This provision is an innovation and not previously contained in the Code of Civil Procedure of the RSFSR.
Thus, the reason for rejecting the claim (Article 134 Code of Civil Procedure Code) and the reason for the return of the claim (Article 135 Code of Civil Procedure Code) are also grounds for refusal to accept the court order.
In addition, Art. 125 Code of Civil Procedure of the Russian Federation provides additional grounds for refusal to accept the application for an injunction:
– the stated requirement is not covered by Art. 122 Code of Civil Procedure of the Russian Federation;
– place of residence or location of the debtor is outside the Russian Federation;
– no documents to prove the stated requirement;
– of the statements and documents submitted by the existence of the dispute is seen on the right;
– the stated requirement is not paid for by state duty.
Thus, among the grounds for refusal to accept the application for an injunction of the Russian Federation Code of Civil Procedure refers to the statement of requirements not covered by Art. 122 Code of Civil Procedure of the Russian Federation. Due to the fact that not every requirement can be grounds for a court order, going beyond these requirements involves the refusal to accept the application. Innovation in the grounds for refusal to accept the application for an injunction in comparison with the Code of Civil Procedure of the RSFSR is the finding of the debtor's residence or outside the Russian Federation.
Since the imposition of the injunction based on the documents submitted to the court, their absence is an impediment to a court order. Existence of a dispute about the law is revealed in those cases where the applicant has no indisputable evidence of their claims and the imposition of the injunction requires a hearing.
If the statement is not paid for by state duty, the court may postpone the payment of state fees allow repayment by installments, to reduce its size or exempt from payment. The statement must be presented with the request the claimant and the circumstances that justify these claims.
Because the CCP does not provide the RF abandonment of the application for an injunction without motion, in the absence of a document on the payment of state tax court rejects the application.
Identification of the refusal to accept the application for an injunction imposed by the judge within three days from the date of receipt of application to the court. Removal of deficiencies identified in paragraphs 3 and 5 of Part 1 of Art. 125 Code of Civil Procedure of the Russian Federation does not prevent re-applying to the court for an injunction.
Refusal to accept an application for an injunction is not an obstacle to going to court with a claim for the same reasons, subject to the same respondent.
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