Between the participants of civil turnover is oftenDisputes arise which can only be resolved in court. The dissatisfied party has the right to file a claim. In order for it to be satisfied, it is necessary not only to formulate the subject correctly, but also determine the cause of action.
There are only 2 of them: subject and cause of action. These elements characterize the content and legal nature of the application. In the procedural sense, they are essential for determining the identity of requirements. In simple terms, the subject and the cause of action is means of its individualization. One statement differs from another precisely in these elements.
For a correct understanding of the concept, it is necessary to refer to the procedural law. Requirements in civil proceedings are presented according to the rules established in GIC RF.
Cause of action the circumstances and facts are taken from which the stated claim follows. This understanding follows from the provisions of Article 131 of the Code of Civil Procedure.
Formulating requirements for the defendantThe applicant must refer to the circumstanceshaving legal value. That is, it must be such facts with which the legislation associates the termination, change or the emergence of duties and rights. In addition, the person concerned should lead evidence of cause of action.
The circumstances on which the applicant bases his claims are of 3 types:
So before sue, the interested party must collect the necessary evidence confirming the validity of the claims. They are just the facts from which the claims flow.
Traditionally, subjective right is based not on one, but on several legal facts that lie in Based on the claim. it means that the applicant within the civilthe process, which is adversarial in content and form, must present various facts proving the validity of the claims. Such an obligation is imposed on him by virtue of the law. The corresponding provision is fixed in sub. 5 2 points witht. 131 GIC.
На практике проблемы, как правило, возникают при bringing circumstances in accordance with regulations that include relatively definite and indefinite elements. In such cases, the court and participants of civil turnover are able to determine the legal significance of a variety of facts. Such situations take place, for example, when pointing out in a lawsuit on circumstances testifying to the defendant’s abuse of his rights, bad faith of persons and so on.
Such a division of the circumstances relied on by the applicant is of great practical importance.
Фактическое основание составляет комплекс legal facts, and legal (legal) - an indication of specific rules of law, which, according to the plaintiff, were violated. It should be said that, despite the fact that part 3 of Art. 131 GIC imposes the obligation to cite specific legal provisions only on the prosecutor, at present all applicants need to do this, since the burden of proof lies on them.
The claimant must determine the specific regulatorygrounds of action. References to the law, the Constitution, the Code as a whole will not be enough. For example, the requirement to recognize a transaction as invalid may be filed on various grounds, as provided for in Articles 168-179 of the Civil Code. The plaintiff needs to determine a specific rule corresponding to the disputed transaction.
These statements are also called executive. Subject of any award action связан с принудительным либо добровольным performance of the respondent’s duty, confirmed by the court. Simply put, means of protecting interests in such statements are aimed at forcing the respondent to perform certain actions in favor of the applicant or refrain from taking them.
The trial of such claims always ends with enforcement proceedings. Consider a few examples.
Such a claim is called vindication.Satisfaction of requirements entails, as a rule, the need for changes to the USRRP, eviction of the defendant from the premises, as well as removal from the register. In order for all these consequences to come, you must file them in the lawsuit.
As practice shows, this category of the case is considered the most difficult to deal with. At one time, such disputes were very common due to frequent cases of apartment fraud.
Тем не менее судебную практику по таким делам в The present time can not be called fully established. There are cases when fraudsters, using a fake power of attorney or misleading the owner, sell the property to a third party, and then the property is resold several more times. As a result, the third buyer and the following ones are bona fide purchasers of the property. Accordingly, it is rather difficult to reclaim an object from their possession under the provisions of Article 302 of the Civil Code.
Such a statement is aimed at restoringprovisions that occurred before the violation of rights. Claims of this kind are presented in the case when the tenant of the premises carries out his inseparable improvements, redevelopment, reorganization without the consent of the legal owner.
It is worth saying that the plaintiff may be deniedmeeting the requirements. For example, the court has the right to decide that the premises may remain in an altered state, if the interests and rights of citizens are not violated, and there is no threat to their life / health (Art. 29 LC).
Such a claim is usually claimed as a counter to the requirements described above. The basis is the provisions of Article 29 of the LCD.
Необходимо учесть, что, в связи с тем что из the disposition of the norm does not follow that the rules on redevelopment / redevelopment relate only to one room (apartment), the term "living room" is interpreted in a broad sense. In other words, Article 29 can be applied to 2 living spaces (apartments).
The violation of the interests and rights of citizens or the creation of the threat of their violation constitutes an essential legal fact that impedes the preservation of the object in a converted / re-planned state.
Legislation provides for the possibilitychange / clarify the subject or basis of the statement. Simultaneous adjustment of the object and the base is not allowed. Otherwise, you must file a new lawsuit.
When changing the basis of the claim, the court may review the rules relating to the dispute. Accordingly, additional reasons for the claims may be required from the claimant.
It involves the replacement of the circumstances given in the original demand with new facts, an indication of additional information, the exclusion of some facts while keeping the subject of the statement unchanged.
Not every plaintiff is well versed inlegal norms, procedural nuances of legal proceedings. Accordingly, in practice, situations often arise when during the proceedings the applicant understands that the circumstances he had formulated were not entirely correct. In such cases, it is necessary to change the basis of the claim. For example, at first the subject indicated that the defendant had violated the terms of the contract, and then referred to unreasonable enrichment.
Far from all cases, a change in the position of the claimant can be regarded as a change in the circumstances on which he bases his claims. For example:
The stated requirements may bereduced / increased or clarified due to a change in calculations, an increase in the duration of debt, etc. These circumstances also do not change either the basis or the subject of the claims.
