Security measures in the civil process: application features

Security measures in the civil process ensure the enforcement of the court decision in the future. The law provides a list of measures and the procedure for their application.

What the law says

The purpose of filing a lawsuit in property disputes is, first of all, the collection of funds. The defendant, who does not want to pay, tries to do everything in his power to take his property out from under attack.

Security measures in the civil process - ways to limit the defendant's ability to get rid of the property or re-register it to third parties.

The importance of the institution of securing the claim in guarantees of execution of the court decision in the future, if the case is won by the plaintiff. After all, the purpose of legal proceedings is to achieve full restoration of the rights and interests of citizens and organizations.

Who and at what stage of the process applies

Security measures in the civil process are allowed to apply at any stage, from the time of filing of the claim and ending with the last court session. The application is submitted exclusively within the framework of the process, this can not be done in advance. The earliest stage is the simultaneous filing of the application along with the claim. Some lawyers write a request for applying these measures directly to the claim. This somewhat reduces the amount of work.

However, the law provides for one exception, it will be described below.

The issue is decided by the court at the request of the plaintiff or other participant in the case, who participates in the case as a third person (prosecutor, guardianship authority).

What are the actions of the judge?

Once the application is in court, a decision is made on it. Neither the parties, nor any other persons whose interests may be affected by interim measures in the civil process, are allowed not to be summoned according to the CCP. The judge makes a decision without their participation, based on the arguments provided by the applicant.

One or more security measures are applied, depending on the situation. The judge has the right to agree with the application of only one or part of the measures that were proposed.

Arsenal of impact

Art. 140 CCP RF gives an approximate list of what the plaintiff or other participant in the process is entitled to request:

• Seizure of disputed property;
• Prohibition to perform certain actions to the respondent;
• Prohibition to perform certain actions to unauthorized persons who have property;
• Obligation to perform certain actions in a case where the subject matter of the dispute is exclusive rights to film and television films and other works;
• Suspension of enforcement proceedings.

Applications

The imposition of property seizure means a ban on actions aimed at ending the property rights of the debtor. The register is entered a mark, after which the conclusion of transactions is no longer technically possible.

The prohibition to perform certain actions may be associated with a change in the subject matter of the dispute, for example, the suspension of the reconstruction or re-equipment of the house.

Similarly, the ban on the actions of third parties, but it is more specific. Art. 140 ГПК the Russian Federation gives the right to court to forbid transfer of property to the respondent, to other persons, performance of the obligations connected with the given property.

In a dispute involving exclusive rights, the prohibition concerns restrictions on the display of content, its distribution or copying for the purpose of further distribution. Very controversial way, because its implementation is limited due to the technical features of the Internet.

Suspension of enforcement proceedings is claimed especially at the stage of preparation of property for sale at tenders.

The court's decision gives specific instructions on the prohibition, which actions are banned or vice versa, which actions are mandatory.

The lack of specificity in the court decision makes interim measures in the civil process or meaningless, or excessively infringes the rights of the defendant or another person.

Who executes the judicial definition

Rosreestr and other bodies involved in the maintenance of property rights registers are sent a court ruling. The registers are entered marks, after which the transaction is technically impossible. Without registration, they are not considered prisoners.

The court decision is sent to the bank, which independently blocks accounts according to the court decision. In the two situations described, it is shown how the seizure of property is effected.

In other cases, the document is transferred to the bailiff, who is further obliged to act within the framework of the enforcement proceedings.

If it is a question of banks or credit organizations, the document is transferred directly by the applicants, so the execution procedure is accelerated.

The earlier the judge decides on interim measures, the easier it will be to achieve the goal of their application. So at the stage of filing the suit, the defendant does not know about the application or the size of the claims, and the measures to secure the claim are most effective.

For banks and other financial organizations, a certified copy of the court ruling is sufficient. In other cases, a writ of execution is issued, after which the relevant enforcement proceedings commence.

The law does not list all types of interim measures in the civil process and only outlines their range. This approach makes sense, because the code does not have the ability to list all forms of encumbrances taken by the courts. Absence of an exhaustive list, therefore, is rather a positive moment.

What are the conditions of use

The applicant submits arguments confirming that the absence of arrest or other restrictions will render the adopted court decision useless.

According to the Civil Procedural Code of the Russian Federation, interim measures in the civil process must be proportionate.

For example, the amounts on the accounts are arrested in the amount that covers the claims. If the amount of arrested funds in the accounts exceeds a reasonable size, such actions are simply simply appealed to a higher authority.

How to protect your rights to the defendant

GIC gives two ways to protect their rights:

• To ask the court to replace one measure to secure the claim for another;
• To ask the higher court to revoke the ruling on interim measures.

Replacement procedure

The defendant has the right to offer his version of the restrictions imposed by the court. The application is submitted to the judge who is considering the case, and is considered without the participation of the parties. This is if it is submitted outside the meeting. If the petition is declared in the court session, the judge makes a decision on it immediately.

Measures to secure a claim are easier to replace in a case where it deals exclusively with a money dispute without recognizing the rights to real estate or other property.

The law gives the right to deposit on the court's deposit an amount equal to the claims of the plaintiff. Refusal of the court in the case for monetary claims is not provided. Such a move ensures the execution of the court's decision if it is accepted in favor of the plaintiff, and the defendant is able to dispose of his property without obstacles.

A court deposit is a special account of the judicial department, where funds are transferred that are blocked until the dispute is over.

Complaint about measures taken

Disagreement with the court gives the right to a private complaint, according to the law, it is given for 15 days. It is submitted to a higher court. Complaints against magistrates are submitted to district courts, district judges - federal, regional, regional and republican courts.

Absence in the meeting, provided that it was not notified, gives the right to count the time limit for the complaint from the day that it became known about the interim measures.

If a complaint is filed for the cancellation or replacement of interim measures, the execution of the court ruling is suspended. If the application of support measures is appealed, the filing of the complaint will not be suspended.

Pre-trial claims

The law gives such a right to a citizen or organization that has copyright and related rights. Preliminary interim measures in the civil process are not taken with respect to photographs.

Consideration of applications lies in the plane of work of the Moscow City Court.

It is necessary to prove the existence of copyright and the fact of their violation by outsiders through the use of telecommunications networks or the Internet.

The court's refusal to take interim measures does not prohibit the applicant from reapplying the same request, as well as filing a lawsuit combined with an application for interim measures.

The court ruling that has taken restrictive measures is sent to the Media Surveillance Service, Roskomnadzor and other persons whose interests may be affected by the actions of the court.

Adoption of interim measures in the civil proceedings in this case obliges the applicant to submit a claim. He is served in the Moscow City Court.

Refusal to file a claim within the allotted time or omission of the term obliges the court to cancel the previously adopted determination without the will of the applicant or potential plaintiff.

The right of persons affected by interim measures to claim damages from the applicant is granted if they are quashed by the court or the claim was filed, but the court did not agree with him and ruled in favor of the defendant.

Drawing up an application

The request to the court for interim measures may be part of the statement of claim and is listed on the list of requests to the court. The explanation of why the court must agree with them is set out directly in the text of the claim.

If the application is submitted in a separate document, it looks something like this:

• The name of the court, the number of the section of the magistrate;
• FI IO plaintiff, defendant, where they live, telephone numbers or other means of communication;
• The reasons that made the plaintiff appeal to such a statement;
• A request or several requests (to seize an account with a bank, prohibit registration actions, transactions and other actions);
• Application as copies of existing documents;
• Date, signature of the applicant.

This is an exemplary template, each statement has its own characteristics, taking into account the nuances of the case.

Grounds for cancellation

The court's decision to refuse the suit and other cases of termination of the proceedings in the case lead to the removal of interim measures in the civil process.

However, the issuance of these decisions does not automatically cancel all restrictions.

In the registration authorities need to transfer a copy of the court decision with a note on its entry into force. Otherwise, Rosreestr or another organization will continue to believe that the arrest or other restrictions are still effective. The same applies to bailiffs and banks.

The procedure forces you to spend a lot of time interested person, and it is not necessary to postpone it.

How to remove interim measures in the civil process, the Civil Procedural Code of the RF does not describe in detail, only indicates the direction of the action. The process of withdrawal in each organization has its own nuances, citizens have to write applications with attached documents.