The defendant is who? Rights of the defendant. Civil defendant
According to Art. 38 ГПК the Russian Federation, in civil legal proceedings the parties are the respondent and the claimant. These entities are vested with equal responsibilities and rights within the process. Further in the article we will consider the procedural positiondefendants in the case.
The defendant issubject in respect of which the claimant is declaredclaims to the court. In brief, the legal status of this person is disclosed in Article 35 of the CCP. However, there are other legal norms that establish its procedural status.
If to speak simply,The defendant isa subject who, in the opinion of the plaintiff, must fulfill a certain duty.
In practice, individuals whose rights are infringed, claim for various reasons. The subject of the dispute may be property law, monetary or non-monetary obligation.
The CPC uses the notion of "civil defendant". As a rule, they are the subject guilty of a crime. Accordingly, the plaintiff in such cases is the victim. A civil defendant may also be a subject who is financially liable for the criminal actions of the accused.
For the court, the defendant is not always a person who knowingly transgresses the law. According to the presumption of innocence, it is the plaintiff who must prove the validity of the claims.
In civil proceedingsdefendants are, as a rule, physical persons. However, municipal / state bodies may participate in the dispute in the person of their representatives.
Rights of the defendant
Legislation provides parties with quite extensive legal capabilities.
The defendant, in particular, has the right:
- Written to object to the claim.
- Agree with the requirements or part of them.
- Participate in the case through a representative.
- To make informed bends to translators, judges, experts.
- Give an oral explanation of the circumstances of the case.
- Ask questions to the other party and other participants in the production.
The person to whom claims are made, is not obliged to refute them. However, this is extremely important for the resolution of the case in his favor.
Legislation provides for the defendant's rightto send an objection to the claim. Lawyers do not recommend neglecting it. The point is that if the objection is not declared, the court will have more grounds to calculate the plaintiff's arguments grounded.
Petitions of the defendant
Refutation of the plaintiff's arguments can be carried out in various ways. One of the means of proving is a petition. It expresses a request to the parties to the dispute to commit an action.
So, the respondent can, for example, file a petition for:
- appointment of expertise;
- calling witnesses;
- adjournment of the hearing;
- granting a deferment / installment installment of the decision;
- attracting co-respondents;
- recognition of evidence presented by the plaintiff, unacceptable, etc.
Petitions can be claimed in writing,both verbally and verbally. In the latter case, the respondent's request is entered in the minutes of the meeting. Lawyers, however, recommend that it is possible to prepare applications in writing in advance.
One of the most important protection toolsThe defendant isopportunity to file counter claims against the plaintiff.
The submission of such a claim is advisable if:
- The counter claim is aimed at offsetting the initial claim.
- Between the claims, there is a mutual relationship, and their simultaneous consideration will reduce the time of the proceedings.
- Satisfaction of counterclaims excludes the satisfaction of initial claims in full or in a certain part.
Counterclaimstatement of the defendantmay be filed before the court is removed for a decision on the merits.
The defendant, according to the law, has the right to get acquainted with the materials of production, make extracts and copies. At the same time he is allowed to use video, photo equipment.
In case of disagreement with the court decision, he has the right to appeal against him in an appeal, cassation or private order.
If between the parties the worldan agreement that more fully satisfies the interests of the defendant, he may demand compensation for the costs incurred by him. A similar possibility is also envisaged in case of partial / complete dissatisfaction with the plaintiff's claims.
The defendant in civil proceedings must:
- Observe discipline during the meeting.
- To comply with court orders.
- Do not abuse your rights.
- Promote a fair and comprehensive consideration of the dispute.
- Perform other duties stipulated by law.
One of the tasks in preparing for the judicialThe proceedings are the determination of a particular person (physical or legal) to whom the claimant makes his claims. At the same time there can be several defendants in the case.
The number of matchmakers depends on different circumstances: which right is infringed, in what way does the plaintiff intend to restore it, is there a claim for compensation of losses, etc.?
Proceedings involving all persons who,in the opinion of the applicant, violated his rights, allows for a substantial reduction in the time for the consideration of the case, and also saves money. If the requirements for different persons arise from some legal relationships, it is advisable to combine them in one statement.
As for the defendant, attracting others to his side will reduce court costs, distribute procedural duties, and increase the amount of evidence base.
The terms of participation
Attraction of several respondents to one process is possible, if they have common rights. For example, claims can be made against the parents of one child.
The participation of co-respondents can be determined by onethe basis of the claim or uniform claims. In the first case, we are talking about the application of eviction requirements for social funds, in the second case - about the release of several employees due to staff reduction.
Mandatory participation of co-defendants
Legislation secures the possibility of a courtTo involve other persons in the proceedings, if it is difficult to make an objective decision without them or it provides obligations for the subjects not participating in the case.
If the relevant circumstances are revealed in the course of the dispute, after the co-investors are involved, it will commence first.
The right to attract co-defendants is also granted to the plaintiff. However, the law does not limit the number of such persons.
If necessary, the plaintiff can declare an appropriate petition in the course of the dispute. In this case, also the proceedings will be initiated first.
In addition, the plaintiff can apply and replace the defendant.
Protection against claims
As stated above, the burden of proving the validity of claims is laid on the plaintiff. Accordingly, often the defense of the defendant from the claims is reduced to their denial.
A more effective way is to file an objection / withdrawal to the claim. In it, the defendant sets out his vision of the situation and supports arguments with evidence.
If there are grounds,counterclaim. Its compilation is no different from compiling the original requirements. In this case, the defendant acquires all the procedural duties and rights of the plaintiff.
Often during the trial defendants resortto the so-called tricks. For example, a subject can challenge a judge, ask for a postponement of a meeting or about the performance of an expert examination, and demand that the evidence be declared irrelevant. It must be said that all these requests and demands must be justified. Otherwise, the court can regard them as an abuse of the right, aimed at delaying the proceedings.
If the claims of the plaintiff are justified, it is advisableagree with them. This will not only speed up the process of considering the case and making a decision on it, but also significantly reduce legal costs. If the defendant intentionally drags out the proceedings, liability measures may be applied to him.