How to cancel interim measures imposed by the court?

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Securing a claim is a special measure provided for by civil procedure legislation.
The point of using these measures is to ensure that the defendant does not have even the minimum opportunity to hide his property from collection. The nature of the measures applied varies:

Property may be seized.
The property is prohibited from carrying out certain manipulations with it.
Etc.

These measures are adequate and completely justified, but they often become an obstacle for both individuals and organizations.

Procedure for canceling interim measures

The abolition of interim measures is quite expedient, since in this case no one has the right to dispose of a person’s property. The laws of the country regulate this possibility, so everything is done with official rights.

So, in order for the cancellation to be considered, it is necessary to write an application for the cancellation of interim measures, if the case has already been considered, or to petition within the framework of the case with this request.

An interested party can submit an application at the following stages:

during the consideration of the case;
after completion of the proceedings, if the court rejected the plaintiff;
if the defendant fully fulfilled his obligations and adhered to the court decision.

ATTENTION:

Submission and consideration of an application

The interested party submits an application to cancel the security for the claim to the court that is considering the case. If the court has already made a decision and there has been an appeal, then to the court of first instance (after all, the measures to secure the claim are preserved until the decision is executed). The one who considered the case on its merits.

The court considers the application to cancel the security for the claim at a court hearing. This means that the court will notify the parties to the case. And he will make a decision taking into account the opinions of other participants in the case. Therefore, in this case, a copy of the application must be sent to other participants in the case before filing documents with the court. Attach proof of dispatch (delivery) to the application.

On the issue of canceling the security for the claim, the court will issue a ruling, which can be appealed to a higher court. After the court ruling enters into legal force, the measures to secure the claim are cancelled.

In ___________________________ (name of court) Plaintiff: ____________________ (full name, address,

contact phone number, email address mail)

Respondent: ___________

(full name, address,

date and place of birth, place of work, one of the identifiers,

for the organization - corporate name,

address, INN and OGRN, representative details)

within the framework of case No. __________

What should be contained in an application for cancellation of interim measures?

In addition to general information about the applicant, the document must list specific measures that were taken against the defendant and a clearly stated reason for which the interim measures need to be canceled.

Unfortunately, the court can not only support the interested party and render a verdict in their favor, but also express the costs of the second party in objecting to the cancellation of interim measures (since these are legal costs and are subject to compensation from the losing party). This usually happens if the applicant made his request at the wrong time, provided an incomplete package of documents, made a mistake when drawing up the application, or did not have any grounds for removing the security at all.

In addition, if the court does not have the necessary facts that prove the wrongness of their decision, then the person may also be refused to cancel interim measures. Since the court is based on laws, the Constitution of the Russian Federation, the grounds for canceling interim measures also correspond to the articles that are prescribed in the law and in this case there is no point in waiting for a positive decision from the court. It is important to pay close attention to all these points.

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Application for cancellation of security for a claim

Sample application for cancellation of security for a claim, taking into account recent changes in the legislation of the Russian Federation.

The point of applying measures to secure a claim is to prevent the defendant from even the potential opportunity to hide his property from collection. These measures can be of a very different nature, from seizing a person’s property to prohibiting specific actions with him. Despite their validity and adequacy, such measures often prevent an individual from performing certain actions with his property, and even prevent organizations from carrying out business activities.

Therefore, their abolition is highly desirable. The procedure for canceling measures to secure a claim is provided for in Article 144 of the Civil Procedure Code of the Russian Federation.

This article establishes that such measures can be canceled at the request of interested persons (parties), both during the consideration of the case (for example, if the plaintiff has abandoned part of the claims), and in the event of completion of the process by refusing to satisfy the claims, as well as in the event that the defendant has faithfully executed the court decision. However, the above list of situations is not exhaustive.

To cancel measures to secure a claim, you must submit a corresponding application. There are no particular difficulties in its design. The defendant, in addition to competently completing the application itself, must indicate the reason why measures to ensure collection do not make sense, in accordance with the requirements of Article 144 of the Code of Civil Procedure of the Russian Federation, and also attach relevant documents confirming his correctness. A sample of a well-formatted application is presented below.

According to the norms of the Code of Civil Procedure of the Russian Federation, the court is obliged to consider such an application and, if it is satisfied, send the appropriate instructions to those authorities that previously carried out measures to secure the claim. After receiving the appropriate order, the authorities are obliged to ensure the defendant the right to freely dispose of his property.

B ___________________________ (Name of court, address)
In civil case No. _______
Plaintiff: _______________________ (full name, residential address, contact details)
Defendant: ____________________ (full name, residential address, contact details)
Statement
on cancellation of claim security
By the ruling of _______________________ (indicate the name of the court) in the framework of the consideration of civil case No. _________ on the claim of _______________________ (full name) of the plaintiff to ______________________ (full name of the defendant) about ______________________ (indicate the subject of the dispute), __________________________ (indicate specific measures taken to secure the claim).
At the same time, ___________________________ (indicate the reason why the need for measures to secure the claim has ceased, for example, the plaintiff’s claim was denied, or the decision was executed by the defendant in full, other reasons, in accordance with the requirements of Article 144 of the Civil Procedure Code of the Russian Federation).
Based on the above, taking into account the requirements of Article 114 of the Civil Procedure Code of the Russian Federation,
ASK:
Cancel ____________________ in relation to my property (indicate which measures to secure the claim must be cancelled), established in accordance with the definition of _______________________ (indicate the name of the court dated “___” “________” 20 ___ in civil case No. ____________ in the claim ___________________ (full name . plaintiff) to _______________________ (full name of the defendant) about _______________________ (indicate the subject of the dispute).
Applications:
1. A copy of this application;
2. Documents confirming that the grounds for maintaining measures to secure the claim have disappeared, for example, a copy of the court decision to reject the claim, etc.
“___” “_________” 20__ Signature _________________

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Where and how to submit

The application is submitted to the same court that is hearing the case against the defendant. As a rule, this is the same court that previously took interim measures (Article 144 of the Code of Civil Procedure of the Russian Federation). But there may be exceptions - when transferring a case from one court to another.

An application for cancellation of measures to secure a claim may be filed at any time while the interim measures taken by the court remain in force.

You can submit your application in person, by mail (by registered mail with acknowledgment of receipt), or electronically. The ability to submit electronic documents to courts of general jurisdiction and magistrates is implemented through a personal account on the website of the State Automated System “Justice”.

In arbitration courts for commercial disputes, electronic documents are submitted through the “My Arbitrator” system.

How to convince the arbitration court to take interim measures?

The court must be convinced that:

If the arbitration court does not take interim measures, the company will suffer significant damage.
If the arbitration court takes interim measures, then the interests of the budget will not suffer. This conclusion follows from paragraph 3 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 13, 2004 No. 83:

It must be borne in mind that the suspension of acts, decisions of state and other regulatory bodies is unacceptable if there is reason to believe that the suspension of the act or decision may upset the balance of the interests of the applicant and the interests of third parties, public interests, and may also entail the loss of an opportunity execution of the contested act, decision in case of refusal to satisfy the applicant’s claim on the merits of the dispute.

Drawing up an application

All appeals to the court are built on a single principle, that is, they consist of a standard set of structural elements - “heading”, name, as well as descriptive, motivational and operative parts.

As part of this article, you can download a standard template for an application (petition) to cancel restrictive measures. You only need to fill out the lines provided, including the following information:

name of the court or territorial body of the FSSP;
Full name (names) of address, procedural status of the plaintiff and defendant or claimant and debtor;
information about the case under consideration or existing enforcement proceedings;
the grounds on which the applicant requests the cancellation of interim measures;
a list of attachments, if the grounds for the application are supported by documents;
date and signature of the applicant.

Content

The interim measures introduced are valid until they are canceled by the court. They do not stop with the transfer of the case to another instance or the entry into force of a court decision. To terminate them early, an application from the defendant or plaintiff is required.

An application for the cancellation of measures to secure a claim is drawn up in free form; there is no uniform template for such applications. However, there are general requirements for the preparation of court documents. The application must indicate:

The name of the court in which it is filed;
The parties and other persons involved in the case, their contact information (the same as in the statement of claim and response to the claim);
Case number;
Description of the interim measures taken;
Justification why they should be abolished;
Request to the court to cancel the security of the claim;
Date and signature of the applicant - defendant in the case.

The application must be made in a separate written document. A petition to cancel the security for a claim can also be included in the response to the statement of claim. But a separate document is more convenient for the court and all participants in the process.

The application is accompanied by documents on which the defendant’s request to cancel interim measures is based. You can also attach judicial practice on similar cases or links to it.

Petition for a preventive measure in the form of bail

H O D A T A Y S T V O

Investigator D. of the Investigation Department at the Department of Internal Affairs of the Izmailovo District of Moscow is investigating a criminal case against D., accused of committing a crime under Part 2 of Art. 161 of the Criminal Code of the Russian Federation.

On August 2, 2007, the Izmailovsky District Court chose a preventive measure in the form of detention in relation to D. The investigator's request to extend the period of detention is being considered. The defense believes that there is no longer any need to maintain the previously chosen preventive measure. In accordance with Part 1 of Article 108 of the Code of Criminal Procedure of the Russian Federation, detention as a preventive measure is used if it is impossible to use another, milder preventive measure.

The chosen preventive measure is excessively harsh and unreasonable for the accused D. I believe that there is an opportunity to choose another, more lenient preventive measure, taking into account the personality of the accused.

Sample application for cancellation of interim measures in civil proceedings

Securing a claim is a special measure provided for by civil procedure legislation. The point of using these measures is to ensure that the defendant does not have even the minimum opportunity to hide his property from collection.

The nature of the measures applied varies:

Property may be seized.
The property is prohibited from carrying out certain manipulations with it.
Etc.

These measures are adequate and completely justified, but they often become an obstacle for both individuals and organizations.

Grounds for cancellation

The key to the application for cancellation of interim measures will be the justification of why the previously made decision to impose restrictions on the defendant needs to be canceled. There is no single advice for all occasions here. The defendant must independently determine the strongest arguments in favor of canceling the security.

For example, cancellation of security will be justified if the value of the claim has decreased significantly. This may happen if the plaintiff abandoned part of the claims, or the defendant partially fulfilled them.

Expert opinion

Lawyer Alexander Vasiliev comments

Cancellation of security will also be justified if the measures taken create unjustified inconvenience for the defendant or prevent him from fulfilling the legal demands of other persons. For example, on this basis, an individual entrepreneur can challenge the seizure of bank accounts from which he pays salaries to his employees.

The basis for cancellation may also be partial fulfillment of the claim, the conclusion of a settlement agreement by the parties and other grounds.

It is important in the application to clearly indicate what exactly should be canceled and why.

From judicial practice: the defendant asked the court to cancel the interim measures for the part of the building belonging to him, indicating that it was not the subject of the dispute. The court found that it does not follow from the application in respect of which property the security should be revoked, whether this property is the property of the applicant or a third party. On this basis the application was refused.

Plaintiff's application for cancellation

In some cases, the plaintiff may also request the cancellation of interim measures. For example, the parties may agree, and the defendant transfers to the plaintiff his property, which was seized. In this situation, the seizure of the property will prevent the plaintiff from transferring what he received to himself.

The plaintiff's request to cancel the interim measures requested by him in most cases is granted by the court. No special arguments or lengthy substantiation of the position are required.

Application example

When drawing up a paper, it is important to comply with all requirements. In the header of the document (upper right corner) you should indicate:

Name of the judicial authority.
His address.
Civil case number.
Full name, residential address and contact details of the plaintiff.
Address, full name and contact details of the defendant.

In the center of the sheet is written the name of the document, in this case - “application for cancellation of interim measures.”

The text of the paper must contain:

A list of specific measures that were taken against the defendant to secure a claim in a civil case.
Statement of the reason why this security is no longer required.
Petition to cancel the measures taken with reference to Article 144 of the Code of Civil Procedure of the Russian Federation.
List of attached documents.

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The Civil Code obliges the court to accept and consider this petition. If it is satisfied, everyone who was authorized to seize the applicant's property will be notified of this decision. Subsequently, the defendant will be given back the right to use personal property in any area at his own discretion.

Administrative claim for partial lifting of administrative restrictions

In __________ district court

Administrative plaintiff: ... (full name of the supervised person) address: ... (place of residence or stay), date and place of birth, telephone: ..., fax: ..., email address: ...,

Representative of the administrative plaintiff: ... (indicate data taking into account Articles 54, 55, 56, 57 CAS RF address: ..., telephone: ..., fax: ..., email address: ...

Administrative defendant: ... (name of the territorial internal affairs body) address: ..., telephone: ..., fax: ..., email address: ...

Administrative claim for partial lifting of administrative restrictions

By the decision of the _________ district court dated “__”________ __, administrative supervision was established in relation to the administrative plaintiff, providing for the following types of administrative restrictions: ... (indicate the administrative restrictions established in relation to the administrative plaintiff in accordance with Part 1 of Article 4 of the Law of 04/06/2011 N 64-FZ “On administrative supervision of persons released from prison”) for a period of ...

According to paragraph 1 of Art. 10 of the Federal Law of 04/06/2011 N 64-FZ “On administrative supervision of persons released from places of imprisonment”, the supervised person has the right to apply to the court for a partial lifting of the administrative restrictions established by the court.

According to Part 3 of Art. 270 of the Code of Administrative Proceedings of the Russian Federation, an administrative claim for partial cancellation of administrative restrictions can be filed with the court by an internal affairs body or a supervised person or his representative.

Based on the above and guided by paragraph 1 of Art. 10 Federal Law of 04/06/2011 N 64-FZ, Art. Art. 270 - 271 CAS RF,

ASK:

in connection with ... (indicate information about the lifestyle and behavior of the supervised person, other circumstances) to cancel the following types of administrative restrictions established in relation to the administrative plaintiff by the decision of the ________ district court dated "__"_______ ___ year: ... (indicate the administrative restrictions established in regarding the administrative plaintiff in accordance with Part 1 of Article 4 of the Law of 04/06/2011 N 64-FZ, the cancellation of which is requested by the administrative plaintiff).

Appendix: 1. Copy of the court decision dated “__”________ __ on the establishment of administrative supervision. 2. Materials characterizing the administrative plaintiff. 3. Notification of delivery to other persons participating in the case of copies of the administrative statement of claim and documents attached to it that they do not have. 4. Power of attorney of the representative of the administrative plaintiff dated “___”________ ___ year N __ and a document confirming that the representative has a higher legal education (if the administrative claim was filed by the representative). 5. Other documents confirming the circumstances on which the administrative plaintiff bases his claims.

“__”_________ ___ Administrative plaintiff (representative): _________ / Full name __________ / Signature