Determination on refusal to cancel the court order. Complaint against the decision to cancel the court order - JSC `shzhkh`
Magistrate FULL NAME2
<номер>
<номер>
APPEALS DEFINITION
<дата><адрес>
Oktyabrsky District Court<адрес>UR consisting of:
presiding Frolova Y.V. at the secretary FULL NAME3
examined in open court session civil case at the request of the Federal Tax Service<адрес>to FULL NAME1 on extradition court order recovery of income tax arrears individuals, fines and private complaint debtor FULL NAME1 on DEFINITION <адрес>FULL NAME2 about the refusal to cancel the court order,
installed:
<дата>IFTS for<адрес> <адрес>FULL NAME2 with an application for the issuance of a court order for the recovery of arrears in personal income tax, penalties from FULL NAME1.
<дата> <адрес>FULL NAME2 issued a writ for the recovery of the recovery of arrears in personal income tax, penalties from FULL NAME1.
<дата>debtor FULL NAME1 appealed to the magistrate of the court district<номер>with a statement on the cancellation of the court order in connection with the presence of objections.
<дата>magistrate application debtor FULL NAME1 to cancel the court order left unsatisfied due to the fact that they filed in violation of the 10-day period and the lack of reasons to respect his omission.
<дата>received private complaint debtor FULL NAME1, in which he asks to cancel DEFINITION justice of the peace court district no.<адрес>and set aside the court order<дата>Debtor FULL NAME1 motivates his claims by the fact that he did not receive a court order personally because, during the period from<дата>By<дата>he was and lived in<адрес>and did not have the opportunity to timely apply to the magistrate to cancel the court order.
Debtor FULL NAME1, being duly notified of the date, time and place of the court hearing, did not appear, did not present reasons for valid failure to appear to the court.
The representative of the defendant - FULL NAME4, acting on the basis of a power of attorney, supported the arguments set forth in the private complaint, asked the court to cancel DEFINITION justice of the peace court district no.<адрес>.
The representative of the claimant - FULL NAME5, acting on the basis of a power of attorney, did not object to the arguments of the debtor.
Having listened to the opinion of the persons participating in the case, having studied the private complaint, the documents attached to it, the materials of the civil case court comes next.
<дата>IFTS for<адрес>appealed to the magistrate of court district no.<адрес>FULL NAME2 With an application for the issuance of a court order for the recovery of arrears in personal income tax, penalties from FULL NAME1.
<дата>magistrate of court district No.<адрес>FULL NAME2 the application was considered and a court order was issued for the recovery of arrears in personal income tax, penalties from FULL NAME1
The court order sent to the registration address of the debtor FULL NAME1:<адрес>.
<дата>the court order received by the debtor and return notice is signed «FULL NAME1». (case file 30)
In accordance with Article 57 of the Code of Civil Procedure of the Russian Federation, the court requested information from the post office<номер>with a request to clarify who exactly received the court order in the name of the debtor FULL NAME1
According to answer<номер>.67.01-14/1908 dated<дата>reported that the court order addressed to FULL NAME1 with the address:<адрес>arrived at the post office<дата>and handed<дата>wife FULL NAME1 upon presentation of a passport proving her identity.
According to Article 128 of the Code of Civil Procedure of the Russian Federation, the judge sends a copy of the court order to the debtor, who, within ten days from the date of receipt of the order, has the right to file objections regarding its execution.
Thus, from the essence of the decree norm it follows that the delivery of a copy of the court order involves the personal receipt of a copy of the court order by the debtor.
According to Article 129 of the Code of Civil Procedure of the Russian Federation, the judge cancels the court order if the debtor raises objections regarding its execution within the prescribed period.
Application for cancellation of the court order debtor FULL NAME1 submitted to the justice of the peace outside the 10-day period.
According to reference<номер>from<дата>FULL NAME1 In the period from<дата>By<дата>lived in the hotel complex "Arctic", owned by LLC "Naryan-Marktorg" at the address: Nenets Autonomous Okrug,<адрес>, ne<адрес>number 5.
Finding debtor FULL NAME1 in the period from<дата>By<дата>also confirmed by air tickets from<адрес>in the city<адрес>And<адрес>V<адрес>. (ld 39.40).
Taking into account the above, the debtor FULL NAME1 was not able to personally obtain a copy of the court order, since on the date of receipt of the court order on<дата>was outside the Udmurt Republic.
In accordance with Article 334 of the Code of Civil Procedure of the Russian Federation, the court of appeal has the right, checking the case in full, to find out the legality and validity of the particular ruling made in the case and, if it is established that it was erroneously decided, to cancel it.
According to Article 330 of the Code of Civil Procedure of the Russian Federation SOLUTION Justice of the Peace may be canceled or changed in appeal on the grounds provided for by Articles 362 - 364 of the Code of Civil Procedure of the Russian Federation.
According to Article 364 of the Code of Civil Procedure of the Russian Federation, violation or incorrect application of the norms procedural law is grounds for annulment of the decision of the court of first instance only on the condition that this violation or incorrect application has led or could have led to an incorrect resolution of the case.
However, when making a decision<дата>about leaving the application of the debtor FULL NAME1 to cancel the court order without satisfaction, the debtor was pointed to the restoration of the term when providing evidence of the reasons for the valid missed deadline. debtor FULL NAME1 evidence of valid reasons for missing the deadline were not presented to the justice of the peace.
According to Article 327 of the Code of Civil Procedure of the Russian Federation, the consideration of the case by the court of appeal is carried out according to the rules of proceedings in the court of first instance. The court has the right to establish new facts and examine new evidence.
Since the debtor FULL NAME1 presented the validity of the reasons for missing the deadline for filing an application to cancel the court order, the court concludes that the application for the cancellation of the court order by the debtor FULL NAME1 filed outside the statutory period, and the court recognizes valid reasons for its absence due to circumstances objectively excluding the possibility of filing an application.
Thus it is private complaint debtor FULL NAME1 subject to satisfaction, DEFINITION justice of the peace court district no.<адрес>FULL NAME2 is subject to cancellation.
Based on the foregoing, guided by Articles 324,224-225 of the Code of Civil Procedure of the Russian Federation, the court
DEF E L I L:
Private complaint of the debtor FULL NAME1 about the cancellation of the determination dated<дата>to leave the application for the cancellation of the court order to satisfy.
DEFINITION justice of the peace court district no.<адрес>FULL NAME2 to leave the application FULL NAME1 to cancel the court order without satisfaction cancel.
Cancel the court order<дата>court district no.<адрес>on the recovery of FULL NAME1 arrears in personal income tax, penalties.
Appeal DEFINITION enters into legal effect from the date of its issuance.
Judge Yu. V. Frolova
APPEALS DETERMINATION
Shchekinsky District Court of the Tula Region, consisting of:
presiding Alekseeva T.V.,
under the secretary Zelenkova N.N.,
with the participation of the applicant-debtor Danilova N.V.,
bailiff-executor of the OSB of the city of Shchekino and the Shchekino district - Sidorova T.A.,
having considered in an open session in the court premises a private complaint against the decision of the magistrate of the court district No. 83 of the Shchekino district of the Tula region dated 11.01.2011 to cancel the court order,
installed:
12.08.2008 year magistrate court district № 48 Shchekino district of the Tula region, acting magistrate court district № 83 of the same judicial district for the period of the vacancy, with Traeva The.Yew. and Danilova N.V. in favor of MP "Shchekinskoye Housing and Public Utilities" the debt on rent and utilities for the period from 01.12.2005 to 30.06.2008 inclusive was collected in the amount of <данные изъяты>. and state duty in the amount <данные изъяты>., paid by the applicant when filing an application for a writ.
The court order is being executed.
25.11.2010 year in the judicial district № 83 Shchekino district of the Tula region from the debtor Danilova H.The. an application was received to cancel the said court order on the basis of payment of a debt in the amount of <данные изъяты>. March 14, 2006. At the same time, the debtor filed a petition for the restoration of the missed procedural period for filing objections regarding the execution of the court order.
Determination of the justice of the peace from 08.12.2010, the deadline for filing objections regarding the execution of the court order Danilova H.The. reinstated, the said ruling was not challenged on appeal.
Determination of 11.01.2010, the magistrate of the judicial district № 83 Shchekinskogo district court order of 12.08.2008 year to recover from Traeva The.Yew. and Danilova N.V. jointly and severally in favor of SE "Shchekinskoye Housing and Public Utilities" debts on rent and utilities for the period from 12/01/2005 to 06/30/2008 inclusive in the amount <данные изъяты>. and state duty in the amount <данные изъяты>but only <данные изъяты>. canceled. Claimant explained the right to apply to the court in the same requirement in the order of action proceedings. Produced by turning the execution of the judgment by recovering in favor of Danilova H.The.<данные изъяты>
In a private complaint, the applicant-recoverer JSC "Shchekinskoye ZhKKH" asks for the specified ruling of the justice of the peace to cancel the court order to cancel, to transfer the case for consideration to the same court. In support of the arguments of the private complaint, it referred to the fact that, in violation of the requirements of Part 2, the application for the restoration of the missed procedural period was considered without notifying the claimant. In addition, since the debt in the amount <данные изъяты>was recovered from the debtors jointly and severally in favor through the bailiff service, the recoverer has no reason to go to court with the same requirement in the course of action proceedings.
At the hearing of the Court of Appeal the applicant-debtor Danilova H.The. requested the decision of the justice of the peace dated 11.01.2011 on the cancellation of the court order to be left unchanged, the private complaint of JSC "SCHZhKH" - without satisfaction.
Bailiff Sidorova T.A. objected to the satisfaction of a private complaint.
The representative of the recoverer JSC "Shchekinskoye ZhKKH" did not appear at the court session of the court of appeal, and asked in writing to consider the case in his absence.
After listening to the persons who appeared, examining the submitted written materials, the court of appeal comes to the following.
Determination of the justice of the peace judicial district № 83 Shchekino district from 26.11.2010, to consider the application Danilova H.The. on the restoration of the deadline for filing objections regarding the execution of the court order, a hearing was scheduled for 09 h. 30 min. 12/08/2010 (case sheet 16).
The representative of the recoverer of Shchekinskoye Housing and Public Utilities OJSC was duly notified of the time and place of the said court session, as evidenced by the receipt in the case for receipt of the court summons (case sheet 24)
Thus it is the argument of the representative of JSC «Shchekinskoye housing and communal services» that the claimant was not notified of the consideration of the application Danilova H.The. on the restoration of the missed procedural deadline for filing objections regarding the execution of the court order, contained in a private complaint, did not find its confirmation in the court session of the court of appeal.
The Court of Appeal finds that at the hearing 08.12.2010, the statement Danilova H.The. on the restoration of the deadline for filing objections regarding the execution of the court order was reasonably considered by the justice of the peace in the absence of the representative of the recoverer of Shchekinskoye Housing and Public Utilities, since the provisions allow consideration of the issue of restoring the missed procedural period in the absence of the persons participating in the case, notified of the time and place of the court settlement .
When resolving the application for the annulment of the writ of justice, the justice of the peace was reasonably guided by the provisions of Art. Art. 128, 129 Code of Civil Procedure Russian Federation, according to which the debtor has the right within 10 days from the date of receipt of a copy of the order to submit objections regarding its execution. The judge cancels the order if the returns regarding its execution are received within the prescribed time.
Taking into account that the objections regarding the execution of the court order filed one of the joint and several debtors on time, as well as the circumstance, on the basis of this court order with Danilova H.The. through the bailiff service was collected in favor of Shchekinskoye Housing and Public Utilities OJSC <данные изъяты>., justice of the peace, canceling the specified court order, properly applied the provisions of Article. Art. 443, 444 of the Code of Civil Procedure of the Russian Federation on the reversal of the execution of the canceled court order, recovering the said amount from JSC «Shchekinskoe housing and communal services» in favor of Danilova H.The.
At the same time, the justice of the peace, in accordance with the provisions, explained to the claimant his right to appeal in the same requirement in the order of action proceedings.
The Court of Appeal considers that the rules of procedural law when issuing a ruling dated 11.01.2011 to cancel the court order dated 12.08.2008 to recover from Traeva The.Yew. and Danilova N.V. jointly and severally in favor of SE "Shchekinskoye Housing and Public Utilities" debts on rent and utilities for the period from 12/01/2005 to 06/30/2008 inclusive in the amount <данные изъяты>and state duty in the amount <данные изъяты>., but in total <данные изъяты>applied correctly by the magistrate.
In view of the foregoing, the court considers correct definition leave the magistrate of 11.01.2011 unchanged, and the private complaint of JSC "Shchekinskoye Housing and Public Utilities" without satisfaction.
Guided by Art. Art. 333, 334, 335 Code of Civil Procedure of the Russian Federation, the court determined:
the decision of the justice of the peace of the court district No. 51 of the Shchekino district of the Tula region of 01/11/2011 is left unchanged, the private complaint of JSC "Shchekinskoye Housing and Public Utilities" is not satisfied.
The definition comes into force from the date of its adoption.
The court order may be canceled by the court that issued it at the request of the debtor within twenty days from the date of its issuance, if the debtor proves that, for a good reason, he did not have the opportunity to state his objections to the applicant's claim. The applicant retains the right to consider his claim in a lawsuit.
If the cancellation of the court order is refused, the debtor may appeal the ruling on refusal in cassation.
According to part 2 of Art. 1251 CPC the court order is valid writ of execution, recovery on it is carried out in the manner prescribed for the execution judgments, But special attention deserves the circumstance that the legislation establishes a ten-day period after which the collection is made. This means that the debtor's application for the cancellation of the order, which is submitted within twenty days, is appealed on the merits of the enforcement document and the debtor raises the issue of canceling or, in any case, suspending the enforcement proceedings.
The order is canceled if the debtor, for a good reason, did not have the opportunity to timely (i.e., within 20 days after the notification of the receipt of the application) declare his objections to the creditor's claim.
Is it possible to check the court order on the merits? Such a check is obviously possible after the debtor is denied the cancellation of the court order by a court ruling. On this definition they may file a private complaint. Within the meaning of the law, such a complaint is filed with a higher court within the time limits provided for cassation complaint, i.e. within 10 days after the decision was made.
If the court of second instance cancels the ruling of the court that refused to cancel the court order, then, obviously, this should mean recognizing, on the basis of the act of the court of second instance, the previously issued court order as not meeting the requirements of the law, in any case, the court ruling on refusing to cancel such court order.
But this cannot mean that the Court of Second Instance checks the writ on the merits, since it checks, in accordance with the exact meaning of the law, only the legality court ruling court of first instance. It was noted above that the court of first instance, which issued the order, can cancel it only on formal grounds, on the basis of a missed deadline for the debtor to submit objections to the stated claims of the creditor for a good reason.
It follows from this that verification of the court order on the merits on the basis of the statements of the debtor (defendant) cannot be carried out. The creditor, in any state of the case, including after the abolition of the decision of the court of first instance on the refusal to cancel the court order, retains the right to file a claim with a requirement to consider the case in a lawsuit. The decision made on the claim may be appealed, in which case the case is checked on the merits by the court of second instance.
Questions to prepare for practical (seminar) classes
1. Give general characteristics writ proceedings: its difference from claim and notarial proceedings.
2. List the requirements for which the issuance of an order is possible.
3. What is the procedure for issuing an order and appealing it?
4. What is the execution of a court order?
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