Administrative statement of claim challenging the actions of the bailiff. Administrative statement of claim for the invalidation of the decision of the bailiff-executor

Administrative statement of claim challenging the actions of the bailiff

As a rule, the reasons for filing a lawsuit against the actions of a bailiff are to delay the enforcement proceedings or the latter to commit actions that violate the rights of a citizen. The procedure for drawing up an administrative claim is provided for in Art. 125, 126 CAS RF.

Important: the applicant has only 10 days from the moment he found out about the violation of his rights (or should have found out about this fact) before going to court. If the time limit is missed, the claim must also file a petition for the restoration of the time limit, indicating the reasons for the missed time.

There is no fee for this category of cases. The court considers the statement of claim within 10 days, in case of difficulties, this period is extended to 1 month.

Note: if going to court is used as a way to delay enforcement proceedings, the plaintiff may be held liable for abuse of the right.

Sample administrative complaint letter to bailiff

To the Zasviyazhsky district court of the city of Ulyanovsk

Administrative plaintiff: Shatskaya Svetlana Petrovna,living at the address: Ulyanovsk, st. Vareikisa, 45-89

date of birth: 02/08/1991, diploma of higher legal education No. 1241235 dated 06/12/2012, I wish to personally represent my interests

Administrative defendant: Department of the Federal Bailiff Service for the Zasviyazhsky District of Ulyanovsk (Bailiff Vasechkina I. A.)

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Administrative lawsuit

On 04/04/2016, 23 thousand rubles were debited from my current account at VTB 24 OJSC. The bank employees explained that this was done on the basis of a request from the bailiff Vasechkina I.A. (request No. 2564586 of 04/01/2016).

This amount was collected on account of the outstanding fine from the traffic police, but then it turned out that the fine that served as the basis had nothing to do with me (as I was told in the traffic police).

Since the money has not yet been returned to me, I believe that my rights were violated by the actions of the bailiff.

I ask the court

1. Cancel the act of the bailiff Vasechkina I. A. (request No. 2564586 of 04/01/2016).
2. Return to my account 23,000 rubles, which were collected illegally.

List of documents attached to the claim:

1. Statement of claim in 1 copy. for 2 l.
2. Certificate from the traffic police about the absence of fines for 3 liters. in 2 copies.
3. Bank statement for 2 liters. in 2 copies.

Date: 04/07/2016

Signature: /signature/

Thus, the actions and decisions of the bailiff can be challenged in court, however, one should take into account the shortened period for filing an administrative claim (10 days from the date the administrative plaintiff learned about the violation of his rights), as well as the need to comply with the requirements provided for Art. 125, 126 of the CAS RF when drawing up an administrative claim.

Challenging decisions, actions (inaction)

bailiffs

8. Decisions, actions (inaction) of the bailiff and other officials of the FSSP of Russia can be challenged in court both by the parties to the enforcement proceedings (collector and debtor), and by other persons who believe that their rights and legitimate interests have been violated, created obstacles to the exercise of their rights and legitimate interests, or they are illegally assigned any duty (part 1 of article 218, article 360 ​​of the CAS RF, part 1 of article 198 of the Arbitration Procedure Code of the Russian Federation, part 1 of article 121

The right to challenge in court decisions, actions (inaction) of the bailiff and other officials of the FSSP of Russia belongs, among other things, to bodies and institutions that are administrators of the income of the corresponding budget, to whose accounts, according to the executive document, the funds specified in it are to be credited (Budget Code Russian Federation(hereinafter referred to as the RF BC).

In addition, in order to protect the rights and legitimate interests of other persons, the persons specified in Article 46 of the Code of Civil Procedure of the Russian Federation, Article 40 of the CAS of the Russian Federation and, 53.1 of the Arbitration Procedure Code of the Russian Federation, if it is provided for by federal laws.

9. Cancellation by a higher official of the contested decision of the bailiff during the period of consideration of the case by the court cannot serve as a basis for terminating the proceedings in this case, if the application of such a decision led to a violation of the rights, freedoms and legitimate interests of the applicant (administrative plaintiff). The termination or termination of the enforcement proceedings in itself does not prevent the court from considering the application on the merits to challenge a specific decision or actions (inaction) of the bailiff, which entailed adverse consequences for the applicant (administrative plaintiff).

10. At the request of the persons involved in the enforcement proceedings, or on their own initiative, the bailiff has the right to correct the clerical errors or obvious arithmetic errors made by him in the decision (part 3 of Article 14 of the Law on Enforcement Proceedings).

The bailiff-executor is not entitled to cancel the decision made by him. The senior bailiff and his deputy are vested with the appropriate powers to cancel this decision (paragraph 2 of article 8, paragraph 2 of article 9, paragraph 2 of article 10 of the Federal Law of July 21, 1997 N 118-FZ "On bailiffs" (hereinafter - the Law on judicial bailiffs), part 5 of article 14, part 9 of article 47, part 4 of article 108, of the Law on Enforcement Proceedings).

11. An administrative statement of claim, an application (hereinafter referred to as the application) to challenge the decision, actions (inaction) of the bailiff is filed with the court, arbitration court within ten days from the date when the citizen, organization became aware of the violation of their rights and legitimate interests (part 3 of article 219 of the CAS RF, part 4 of article 198 of the Arbitration Procedure Code of the Russian Federation and the Law on Enforcement Proceedings). Missing the deadline for applying to the court is not a reason for refusing to accept the application by the court of general jurisdiction or returning the application by the arbitration court.

If the decision, actions (inaction) of the bailiff were appealed in the order of subordination, then the courts of general jurisdiction should take into account the provisions of part 6 of Article 219 of the CAS RF that the untimely consideration or failure to consider the complaint by a higher authority, a higher official indicates the presence of a good reason missed the deadline for filing a lawsuit.

Missing the deadline for going to court without a good reason, as well as the impossibility of restoring the missed deadline for going to court, is the basis for refusing to satisfy the application (Part 8 of Article 219 of the CAS RF).

12. In cases of contesting decisions, actions (inaction) of bailiffs, claims are made by an administrative plaintiff, the applicant to the bailiff, whose decisions, actions (inaction) are being disputed, upon termination of his powers - to the official to whom these powers are transferred , and if powers were not transferred - to the senior bailiff of the corresponding structural unit of the FSSP of Russia (parts 4, 5 of article 38, chapter 22 of the CAS RF and chapter 24 of the APC of the Russian Federation). To participate in the case as an administrative defendant, body or official, whose decisions, actions (inaction) are being contested, it is also necessary to involve the territorial body of the Federal Bailiff Service of Russia, in the structural unit of which the bailiff performs (acted) the duties of the bailiff, since upon satisfaction of the applicant's demand court costs may be reimbursed at the expense of the named territorial body of the FSSP of Russia.

In case of challenging the decisions, actions (inaction) of the bailiff, the other party to the enforcement proceedings (collector or debtor) is subject to involvement in the case as an interested person.

When one of the claimants disputes the decision of the bailiff regarding the order of distribution Money within the framework of consolidated enforcement proceedings, the court shall involve in the case, as interested persons, other claimants whose rights and legitimate interests are affected by the contested decision.

13. Suspension by the court of the contested decision of the bailiff as a measure of preliminary protection or interim measure (part 1 of article 140 of the Code of Civil Procedure of the Russian Federation, CAS of the Russian Federation and part 3 of article 199 of the APC of the Russian Federation) is carried out on the grounds and in the manner provided for in Chapter 7 of the CAS of the Russian Federation or Chapter 8 of the Arbitration Procedure Code of the Russian Federation. In particular, the application is considered without notifying the persons participating in the case, no later than the next working day after it is received by the court (CPC RF, Part 3 of Article 87 of the CAS RF, Part 1.1 of Article 93 of the APC RF).

14. When considering an application to challenge the decisions, actions (inaction) of the bailiff, the court has the right in the same process to resolve the issue of suspension of enforcement proceedings in whole or in part at the request of the recoverer, debtor or bailiff (paragraph 4 of part 2 of Article 39 of the Law on enforcement proceedings). An application for the suspension of enforcement proceedings is considered within ten days in a court session with a notice to the recoverer, debtor, bailiff, whose failure to appear does not prevent the resolution of the said application part 2 of article 324, part 3 of article 327 of the Arbitration Procedure Code of the Russian Federation).

15. The requirements contained in the executive document must be executed by a bailiff within the time limits established by parts 1 - 6 of Article 36 of the Law on Enforcement Proceedings.

Failure to comply with the requirements of the executive document within the period provided for by the said Law, in itself, cannot serve as a basis for concluding that the bailiff committed illegal inaction.

The inaction of the bailiff may be declared illegal if he had the opportunity to take the necessary executive actions and apply the necessary enforcement measures aimed at the full, correct and timely execution of the requirements of the executive document within the statutory period, but did not do this, which violated the rights and legitimate interests of the parties to enforcement proceedings. For example, the inaction of a bailiff who established that the debtor did not have any funds, but did not take all the necessary executive actions to identify other property of the debtor that could be levied for the purpose of executing an executive document (in particular , did not send requests to tax authorities, to the bodies that carry out state registration of property and (or) rights to it, etc.). APK RF).

The burden of proving the presence of valid reasons for non-execution of the executive document within the period established by law rests with the bailiff.

16. When filing administrative statements of claim, statements challenging decisions, actions (inaction) of a bailiff, the state fee is not paid (paragraph three of subparagraph 7 of paragraph 1 of Article 333.36 of the Tax Code of the Russian Federation,

An administrative statement of claim is a document with a clearly defined drafting procedure and form. How to compose it correctly?

In drawing up, it is necessary to rely on Art. 125 of the CAS RF, informing the plaintiff about a number of information that must be indicated:

• the name of the court in which he submits the application;
• Full name of the applicant, current address of residence;
• Full name of the defendant directly (if information is available - his address of residence, maximum contact details);
• the reason for the appeal: what the defendant did, what rights, freedoms, interests of the plaintiff were violated;
• requirements to the court in this case with evidence of correctness and solid grounds;
• list of attached documents;
• certificate (receipt) of payment of state duty.

In addition, the application should include materials on pre-trial regulation (if any) and whether a complaint was filed.

After everything is dated and signed.

Important: if a situation arises when a citizen for some reason (necessarily objective) cannot independently submit an application and does it through a third party (for example, a prosecutor), it is necessary to indicate the basis for this and attach the relevant documents.

Contesting the decisions of the bailiff

If a citizen does not agree with the decision of the bailiff, he is given a period of 10 days to file a claim for challenging. This period begins to operate from the day he learned about the result, in his opinion, violating his rights and interests.

If a person did not have time to invest in these 10 days, the only thing that can return the deadline is the filing of a petition, without which the court has every right to refuse.

The claim must be filed with the district court. All applications of this kind are considered within 10 days.

The term may increase to an average of one month, if the court encounters difficulties related to the requirements put forward in the lawsuit.

There are a number of possible outcomes:

• the court sets a date for the hearing;
• the court may leave the application without motion;
• possible return of the claim;
• refusal.

Clearly, the plaintiff expects the first outcome. At the same time, he may not even attend a direct meeting: it will be held in any case, and a third party may speak for him, but then it will be necessary to provide a power of attorney.

If the appeal is approved, the plaintiff will be notified by the bailiff of the implementation of the decisions in the case no more than a month after the entry into force of the challenge. In case of refusal, the citizen has a month to appeal the decision.

Objection to the cadastral value

First of all, the objection to the cadastral value must go through a special commission created to consider disputes, which must be attended by a representative of Rosreestr. The demand of a citizen to reduce the cost may be rejected, while the commission is obliged to notify him, as well as local authority self-government.

In this case, he has the right to file an administrative claim.

For the most part, standard forms are used to fill in the objection. It may be followed by a statement of commission inaction if the property owner has not been notified of the results of the consideration.

A document previously adopted by the commission is attached, in which the following must be indicated: date, number, place of adoption and relevant regulations.

The required documentation also includes (as applicable):

• cadastral certificate from Rosreestr confirming the value of the property;
• conclusion of the expert commission on the real value;
• documents proving the unreliability of information or the presence of a technical error;
• a copy of the title deed certified by a notary.

From the moment the commission made a decision, the citizen has three months to submit an application. Important: a prerequisite is the application of a receipt for payment of the fee.

Filing an administrative claim against a bailiff

On September 15, 2015, a decision came into force, according to which an appeal against the activities of a bailiff requires filing an administrative claim with the court. The application is drawn up strictly in accordance with the requirements specified in Article 220 of the Code of Administrative Procedure of the Russian Federation.

The applicant has 10 days to file this claim to challenge the actions of the bailiff, starting from the moment when he was notified of the violation of his interests and rights. If the deadline is missed, an application for reimbursement of this deadline will also be required.

The claim itself must be filed with the district court - the direct place of work of the bailiff.

The court considers such applications for about 10 days, however, the period can be extended up to a month by a court decision in difficult situations that require a longer analysis of claims.

The court notifies all persons participating in a particular case in advance of the place and time of the meeting. The administrative case will not be adjourned even if none of the participants appears.

If the case turns out to be complicated, the consideration may be extended, but not more than 5 days. This is announced during the meeting.

From the date of the decision, the plaintiff has about 30 days to file an appeal.

If his requirements are satisfied, the court decision comes into force, and within a month the bailiff must inform the applicant about this.

State fee for filing an administrative claim

In any case, the payment of state duty is obligatory. Without a receipt of payment, the application simply will not be accepted. The fee itself varies greatly for different categories of persons.

• individual pay about 300 rubles;
• legal (organization) - from 2000 to 4500 (depending on the specific topic of the application).

Learn how to make your own administrative statement of claim from the video.

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Russian legislation provides for special requirements that relate to the execution of an administrative statement of claim and its filing with the court. In our article, we will talk in detail about how to prepare a competent claim in an administrative case, where it should be filed and when it will be considered.

With the entry into force of the Code of Administrative Procedure of the Russian Federation on September 15, 2015, many changes have taken place in the field of the judicial system. In particular, absolutely all administrative cases are now considered exclusively in the manner prescribed by the RF CAS, which accordingly affected the preparation of court documents, including administrative claims. Violations of the requirements of the law in the preparation of a claim and its filing may lead to the dismissal of an administrative claim without movement, therefore, significantly affect the time for consideration of the case, and in some cases may lead to a refusal to accept or return the claim.

According to Article 125 of the CAS RF, a statement of claim in an administrative case is drawn up in writing in legible form and signed with the date, signatures of the plaintiff or his representative, if the latter has the appropriate authority. An administrative complaint must include:

• Name judicial authority where the document is submitted;
• Plaintiff's full details:
  • name of the organization, its location, as well as information about its state registration - if the plaintiff is entity;
  • Full name, place of residence or place of stay, date and place of birth - if the plaintiff is an individual, as well as information about higher legal education if you intend to conduct an administrative case personally in cases that provide for the mandatory participation of a representative;
  • the name of the organization or full name of the representative, his postal address, if the application is submitted by a representative;
  • phone/fax number/e-mail address of the plaintiff or his representative;
• Respondent's full details:
  • name of the organization, its location, information about its state registration (if known) - if the defendant is a legal entity;
  • Full name, place of residence or stay, date and place of birth - if the defendant is an individual;
  • telephone/fax/e-mail address of the defendant (if known);
• information about what rights and legitimate interests of the plaintiff were violated or about the reasons that may entail their violation;
• the claims of the plaintiff to the administrative defendant, with a statement of the grounds and arguments of the plaintiff substantiating these claims;
• compliance information pre-trial procedure settlement of the dispute, despite the fact that this procedure is established by law;
• if a complaint was filed in the order of subordination, provide information on its filing and results;
• other information provided for by certain categories of administrative cases;
• a complete list of documents that are attached to the administrative statement of claim.

Administrative action to contest the decision of the authority

As a rule, filing a claim to challenge the decision of an authority precedes the plaintiff's application to this authority and receiving an official refusal or not receiving a response within the prescribed period. The authorities, whose actions are subject to judicial challenge, include the authorities of the Russian Federation, territorial, republican and regional authorities, as well as municipal authorities.

Important! The majority of statements of claim in administrative cases are connected precisely with challenging the decisions of the authorities. Here it is worth noting one feature - when compiling them, you can use the right to file a petition for the application of measures of preliminary protection, and thus suspend the decision or otherwise (Chapter 7 of the CAS RF).

Administrative claim against the actions of an official

Going to court with an administrative claim against the actions of officials will protect violated rights as part of solving problems with registration or receipt required documents. Any citizen or organization can file a claim with the court in case of violation or presence of obstacles to the exercise of their rights. A claim against the actions of officials is filed in the manner prescribed by Chapter 22 of the CAS RF.

Administrative claim against the actions of a bailiff

A statement of claim against the actions of a bailiff is filed when the execution of a court order is unduly delayed or the bailiff takes actions that contribute to the violation of the rights of the applicant. It should be noted that this opportunity is often used to delay the execution of a court order. A claim against the actions of bailiffs can be filed by any individual or legal entity whose rights have been violated.

Filing an administrative claim in court

Before filing an administrative claim with the court, the plaintiff should accurately determine the list of attached documents. So, in addition to the original receipt of payment of the state duty (the amount of the state duty is determined in accordance with the rules of the Tax Code of the Russian Federation), copies of the statement of claim and all case materials for delivery to the defendant, the statement of claim should be attached to:

• copy legal act, decisions of the authority, as a result of which the rights of the plaintiff were violated or evidence of the impossibility of obtaining such a decision;
• a document confirming compliance with the pre-trial procedure for settling a dispute in cases where it is mandatory;
• evidence that the plaintiff provides in support of his arguments.

If a representative is involved in the case, he must have a higher legal education, which is confirmed by a copy of the diploma. The representative participates in the case under a notarized power of attorney or at the written request of the person, provided that the latter is also present at the hearing. A statement of claim in an administrative case can be filed in person / through a representative or by mail. As in the case with civil litigation, the judge receiving the claim must make one of the following decisions:

• accept the claim for proceedings;
• leave the claim without motion;
• refuse to accept the claim;
• return the claim to the applicant.

The grounds for making an appropriate decision are regulated by Articles 127, 128, 129, 130 of the Code of Administrative Procedure of the Russian Federation. Also, when drawing up an administrative claim, we recommend that you familiarize yourself with the norms of articles of chapters 21-31 of the CAS RF, which regulate certain situations in the topic under discussion.

Important! In addition to all of the above, it should be noted that administrative proceedings have such a feature as the impossibility of filing a counterclaim by the defendant. So, for example, when challenging normative acts or appealing against decisions of authorities, filing a counterclaim is not allowed!