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Publication date: 28.10.2024
I am studying in the third year of the State University of Economics and Technology.I specialize in contractual, economic and corporate law, in particular, I provide consultations and write articles.
The return of the statement of claim is a procedural action in which the judge refuses to open proceedings in the case and returns the statement of claim together with the documents attached to it to the plaintiff. A judge may return a claim if the claimant has not complied with certain conditions or requirements associated with filing the claim. The return of the statement of claim does not deprive the plaintiff of the right to appeal to the court again after eliminating all violations. According to Part 4 of Article 185 of the Civil Procedure Code of Ukraine (CPC), a judge can return a statement of claim if there are certain grounds. Here are the main cases in which the claim is returned:
- The claim was filed by a person without procedural legal capacity: If the claim was filed by a person who does not have procedural legal capacity (for example, a minor or incapacitated), or it is not signed, signed by a person without the right to sign it, or signed by a person whose official position is not specified.
Violation of the rules for the consolidation of claims: In case of incorrect consolidation of several claims, which does not meet the requirements of the law.
- Withdrawal of the application or settlement of the dispute: If a statement on the settlement of the dispute or a statement on the withdrawal of the claim statement was received from the plaintiff before the decision to open proceedings.
- Absence of grounds for an appeal by a prosecutor or another person in the interests of the state or other persons: When there are no grounds for an appeal to the court by a prosecutor in the interests of the state or another person who is granted the right to appeal in the interests of another person by law.
- Filing a divorce petition during the wife's pregnancy or before the child reaches one year of age: If the divorce petition is filed during the wife's pregnancy or before the child reaches one year of age, without complying with the special requirements of the Family Code of Ukraine.
- Repeated lawsuit against the same defendant with the same subject and grounds: If the plaintiff has filed another lawsuit with the same subject and on the same grounds against the same defendant in the same court, and the decision to open or refuse to open has not yet been made in relation to the previous claim proceedings
- Lack of evidence of pre-trial settlement of the dispute: If the law provides for mandatory measures of pre-trial settlement of the dispute, but evidence of their use is not attached to the claim.
The return of the statement of claim in these cases allows the court to ensure compliance with all procedural norms and requirements that guarantee the effectiveness and order of the trial. The plaintiff, having received a returned application, has the right to correct the deficiencies and appeal to the court again.
The procedure for returning a claim:
The judge has the authority to return the statement of claim and the documents attached to it, if deficiencies are found that prevent the opening of proceedings in the case. Here are the main details of this process:
- Return period: The judge is obliged to return the statement of claim within five days from the day of its receipt to the court or from the day of expiry of the period given to the plaintiff to eliminate the identified deficiencies.
- Return order: The judge makes an order to return the statement of claim. This decision states the reasons for the return and is an official document that confirms the refusal to open proceedings due to procedural irregularities or deficiencies.
- The right to appeal the decision: The decision on the return of the statement of claim can be appealed in the appeal procedure. This gives the claimant an opportunity to remedy the situation if he believes the return decision is erroneous or unreasonable.
- Keeping a copy of the statement in court: Despite the return of the original statement of claim to the plaintiff, a copy of the statement remains in the court. This allows the court to keep a record of the application and all the details in case of further proceedings.
- Impossibility of re-return after annulment of the decision: In the event that the decision on the return of the statement of claim is canceled by the appellate court and the case is sent for further consideration, the court of first instance has no right to re-return the statement of claim on the same grounds. This ensures that the claim will be considered on its merits after the previous return decision is overturned.
This procedure provides the plaintiff with the possibility of re-applying to the court or appeal, and also helps to avoid abuses and prolongation of the legal process.
Question
Is it possible to appeal the decision to return the statement of claim?
Answer
In accordance with the provisions of the procedural legislation of Ukraine, the court's decision to return the statement of claim may be appealed by the plaintiff to the court of appeal. If the appellate court overturns the decision to return the claim and remand the case for further proceedings, this creates an obligation for the trial court to continue the proceedings. After the annulment of the decision on return by the appeals court, the court of first instance has no right to return the statement of claim again on the same grounds. This rule ensures that the claim will be heard on its merits and will avoid re-litigation on the same grounds that have already been challenged and reviewed.
Question
How to prevent the return of a statement of claim?
Answer
Check compliance with procedural requirements for the form and content of the application. The claim must be filed in the correct court. This is usually the court at the defendant's place of residence or registration, unless otherwise established by law. If you have multiple claims against the defendant, ensure that they are properly and reasonably consolidated in accordance with procedural law to avoid a violation of the consolidation rules. If the law provides for pre-trial dispute settlement measures, complete them and add confirmation to the application. The statement of claim must be signed by a person who has the right to do so (the claimant or his representative with an appropriate power of attorney). Incorrect signature is grounds for return.
Lawyer services when filing a lawsuit in court:
The services of a lawyer when filing a lawsuit in court can significantly increase the chances of a successful trial, as a lawyer ensures the correctness of documents, collection of evidence and representation of the client's interests. Here are the main types of legal services:
Lawyer consultation and legal analysis of the situation: The lawyer will help assess the legal basis of the case, explain to the client the possible consequences of filing a lawsuit and determine the optimal strategy. The consultation also includes a discussion of the evidence base, possible risks and chances of a positive outcome. The lawyer will provide information on the required amount of the court fee and help issue a receipt for payment.
Lawyer help in drafting a claim statement: Lawyers online will help to correctly draw up a claim statement, taking into account all the necessary legal requirements for its form and content, which will significantly reduce the risk of the claim being returned due to procedural errors. In the statement of claim, the lawyer clearly formulates the subject of the claim, the grounds and legal requirements, adding all the necessary evidence and justification.
Legal services in the collection and processing of evidence: The lawyer will help to collect and properly process documents confirming the validity of claims (testimony, contracts, payment documents, etc.). If necessary, a lawyer can prepare requests to organizations to obtain official certificates or other documents.
Court proceedings: A lawyer can represent a client at all stages of a trial, filing statements, speaking at court hearings, arguing the client's position, and responding to objections from the other side. The lawyer monitors the process, submits the necessary documents and motions on time, which minimizes the risk of missing important deadlines or procedural actions.
The services of a lawyer when applying to court with a claim are important, as they help ensure the correctness and efficiency of the entire process. A professional lawyer knows the nuances of legislation, procedural requirements and pitfalls that can be encountered when filing a lawsuit. A lawyer advice helps to correctly formulate requirements, collect evidence and prepare all the necessary documents in order to avoid the risk of a claim being returned due to non-compliance with formal requirements or omission of important details. In the court process, it is important not only to submit a statement, but also to be able to effectively argue one's position, respond to the objections of the other party, and conduct the case correctly at the court hearing.
