In everyday life, a statement of claim for consumer protection is widely used. This is because the legislation in this area has been worked out in detail. And judicial practice is extensive and in most cases predictable. The law and the court often side with the consumer.
Did the purchased product turn out to be of poor quality? The contractor completed the work, but did not meet the deadline? Did the paid service not meet your expectations? Knowledge of consumer rights will help you feel confident not only in court, defending violated rights. This knowledge will also help in pre-trial dispute resolution.
Download a sample statement of claim for the protection of consumer rights, read the recommendations of a lawyer in the field of consumer rights. If necessary, you can contact the site’s duty lawyer.
:
Statement of claim for consumer protection
Consumer rights subject to protection in court
The law protects the rights of the consumer, because it is he who is dependent on the seller (performer). Who carry out their activities to make a profit. And the consumer uses their labor for personal purposes. Since these are completely different areas of life, the list of requirements for violation of rights can be extensive.
We recommend that you read:
|
The law protects consumer rights when:
- defects in the product that were not previously agreed upon with the seller were identified (low quality);
- the work or services are not satisfied with the quality;
- the performer violated the deadlines. Both the beginning of work and its completion;
- requirements for maintenance and repair of goods are not met;
- safety requirements are violated;
- moral damage was caused.
Do not forget that we are consumers not only when buying and selling. Legislation in this area applies to insurance, banking services, medical services, construction services (developer) and many others. When a person turns to a professional market participant for personal or family purposes. And he receives some services and benefits.
The fact is clear
The claim will also be rejected if the arbitrators consider that an unpleasant fact about the organization’s activities, covered in the press, has taken place. Thus, the FAS North Caucasus Region, in its Resolution dated February 15, 2013 in case No. A63-9498/2012 , rejected the plaintiff’s request to refute the disseminated information, since it came to the conclusion that this episode took place.
The public organization “Union for the Protection of the Rights of Consumers and Entrepreneurs” held a round table meeting on the topic of gross violations of legislation in the field of protecting consumer rights in the retail trade of petroleum products (the results are recorded in the minutes). Media representatives were invited to participate in the meeting. At the same time, representatives of the newspaper, which later became a defendant in the case, were not present at the meeting, but at its end they received the corresponding protocol and resolution. Based on these documents, the newspaper published an article “Underfilling Continues,” in which the author closely recounted the reports of the officials (public activists, state inspectors) who spoke at the round table, and also expressed his opinion. Here is a short excerpt from the article: “In ... the regional Union for the Protection of Consumer Rights last week they discussed the results of a raid by public activists on gas stations in the city, where about a dozen gross violations were identified. In particular, many gas stations simply did not add enough fuel.”
The plaintiff (one of the organizations in whose activities violations were identified) argued that by publishing the contested article, the publishing house disseminated information discrediting its business reputation, since representatives of the newspaper were not present at the meeting, and statements by officials about fuel shortages are not verbatim reproduction of a fragment of their speech. However, the court rejected this argument and, having assessed the information presented in the article and its semantic content as a whole, came to the conclusion that there were no grounds for satisfying the claims, since the quote reproduced in the article, in its content and semantic load, corresponded to the protocol and did not contain information not stated in it.
Let us also consider the Resolution of the Federal Antimonopoly Service of the North-West District dated 04/04/2012 in case No. A56-10903/2011. The newspaper <…> in the article “Sausages: starch and soy instead of meat” published the following information: “For two years in a row, LLC <…> has not been able to leave the “swindle hit parade”. If in 2009, experts found soy isolate, as well as thickeners (gum and corragen) in a sample of “Slivochnye” sausages, but this time, starch and starch-containing grain components were found in the minced meat of a sample of “Molochnye” sausages.” These data were confirmed by test results for the corresponding periods. As a result, the claim of the food industry enterprise (meat processing plant) was denied.
What to do before going to court
We send a written claim to the seller indicating the desired procedure for restoring the violated right. Their list is contained in the Law “On Protection of Consumer Rights”. This could be a refund, repairs, additional work to eliminate deficiencies, etc. And then the citizen submits a statement of claim for the protection of consumer rights.
It is important to correctly formulate a consumer complaint. A citizen must take into account possible ways to compensate for the damage caused and protect his rights. Legal support may also be useful. Moreover, when going to court, the amount can be reimbursed to the representative. There are many organizations where lawyers provide assistance to consumers free of charge. Very often, the buyer and seller can resolve the dispute without filing a claim.
In addition, a citizen has the opportunity to resolve issues out of court by contacting other consumer rights protection authorities.
Sample statements of claim
- Statement of claim against the consumer service for compensation for damaged items and compensation for moral damage
- Statement of claim demanding replacement of goods, payment of penalties and compensation for moral damage
- Statement of claim for termination of the contract with the travel agency and compensation for moral damage
- Statement of claim for the exchange of defective goods (for termination of the sales contract and recovery of the amount paid)
- Statement of claim for return of deposit and protection of consumer rights
- Statement of claim for a reduction in the purchase price of a car and payment of a penalty
- Statement of claim demanding a replacement car
- Statement of claim for the recovery of a penalty for delay in fulfilling the requirement to eliminate defects in the goods
- Statement of claim for recovery of the amount paid for goods of inadequate quality, recognizing the sale and purchase agreement as terminated
- Statement of claim for payment of double the price of the damaged item, payment of a penalty and collection of a fine
- Statement of claim for bringing the home into proper condition, for recovery of damages, penalties and compensation for moral damage
- Statement of claim demanding a refund of money for poor-quality communications, payment of a penalty and compensation for moral damage
See also How to prepare a statement of claim See also How to submit documents to court and to which
How to draw up a statement of claim for consumer protection
We are guided by Article 131 of the Civil Procedure Code of the Russian Federation (general requirements for filing a claim). When assessing violated consumer rights, we proceed from the content of the Law on the Protection of Consumer Rights.
The rules of jurisdiction in cases of violation of consumer rights are very flexible: the plaintiff himself chooses where to send the statement of claim. The claim is sent to the place of residence, the conclusion of the contract, the place of execution of the contract or the location of the defendant. If the plaintiff estimates the cost of compensation for violated consumer rights (excluding moral damages and fines) to be over 100,000 rubles, then the statement of claim for the protection of consumer rights is sent to the district court. If less than or exactly 100,000 rubles. - to the world court.
The retained documentation will help determine the extent of violated property claims and possible moral damage. Receipts, contracts, financial documents. The plaintiff assesses moral damage independently.
The state court fee for this category of cases is paid in cases where the cost of the claim exceeds 1,000,000 rubles. In other cases, you do not need to pay it.
The plaintiff may include a fine for refusal to satisfy the consumer’s demands in pre-trial proceedings in the claim. Or maybe not include it. The Supreme Court indicates that the court itself must impose a fine when it satisfies the claim. By the way, this can be stated in the claim. The fine as a general rule is up to 50% of the amount of the claim. But it may be reduced by the court.
Protection of the rights of entrepreneurs and legal entities - ways to ensure
The Law on the Protection of the Rights of Entrepreneurs in Article 24 provides for two ways to ensure the interests of small and large businesses. This is necessary in cases where it is necessary to prove the illegality of the actions of authorized government officials. Bodies for protecting the rights of entrepreneurs include:
- Prosecutor's office.
An appeal to the specified authority is carried out if it is necessary to file a protest against legal acts that do not comply with the law and are used as a basis for conducting an inspection. Such a defense procedure requires the preparation of a complaint and the presentation of evidence confirming the applicant’s position.
Next, the prosecutor's office independently conducts an inspection, establishes all the circumstances, evaluates the controversial legal act and reports its decision.
This procedure is called administrative. Compliance with it is optional. In practice, most entrepreneurs immediately go to court if they are unable to obtain a review of decisions and acts through higher authorities of the supervisory structure.
- Court.
All disputes arising as a result of inspections by government agencies are considered in court. The subject of the dispute may be challenging acts of officials, recovering damages, establishing non-compliance of regulations with the provisions of the law, and so on.
Protecting the rights of entrepreneurs and legal entities in court presupposes certain rules for carrying out the procedure.
In some cases, it is possible to contact higher authorities that carry out a specific type of inspection.
For example, if the act of the Federal Tax Service of the Russian Federation based on the results of the inspection is unfounded, in the opinion of the entrepreneur, then it can be challenged by appealing to a higher federal body - the Federal Tax Service of the Russian Federation.
Court consideration of claims for consumer protection
The time frame for consideration of a case depends on its nature. Simple matters: I bought a product, they refused to exchange it, they didn’t repair it, they didn’t return the money, etc. – are considered quickly enough. The total period is 2 months. First, a preliminary hearing will take place (magistrates call it a “conversation”). Then the main court hearing. The court will make a decision that will come into force a month later. If the defendant does not file an appeal.
The winning party receives a writ of execution. Then 2 options for the development of events. You can send an application to initiate enforcement proceedings to the bailiffs. Or you can immediately contact the bank (foreclosing on the debtor’s property). The second method is much faster.
If the case is complex, then the court will most likely take longer to consider it. The case may undergo a forensic examination. Witnesses and specialists may be invited to the court. A court decision on a claim for consumer protection will enter into force according to general rules.
Sample claims
If a consumer believes that his rights have been violated or legitimate interests have been infringed, the first thing to do is to write and send a complaint to the person to whom the consumer, in accordance with the law, holds responsibility for this, stating in it one of the requirements provided for by law, or demanding removing obstacles to the realization of the legitimate interests of the consumer.
Before writing a claim, check who exactly sold the product, or who provided the service or performed the work. If the consumer has retained a sales or cash receipt, or an agreement, his details must necessarily include information about the seller of the goods or provider of services, his Taxpayer Identification Number (TIN), OGRN and legal form.
Please note that now, in accordance with clause 5 of the new Rules for the retail sale of goods, the seller is obliged to respond to the consumer’s complaint by sending him a response regarding the stated requirements. Thus, according to the Law, he must satisfy the demand or refuse within the prescribed period. In this case, a refusal means not only a written or oral notice of refusal, but also the absence of any response. This must be taken into account when writing a claim. If the claim concerns monetary payments (return of the cost of goods, compensation for damage, payment of penalties or losses), it is recommended to indicate in the text of the claim the full details of the consumer’s bank account, where the addressee, if he agrees to satisfy the stated requirements, will be able to transfer funds.
If the claim is not satisfied, you should once again evaluate the legality of the claims and, if you are confident in their correctness, go to court. For questions regarding the protection of consumer rights and preparation of documents, you can contact the Consumer Union of the Republic of Tatarstan at the address: Kazan, st. Dekabristov, 81a, telephone.
