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Calculation of the Claim in Civil and Arbitral Procedure: Theoretical and Practical Problems
Doctor of Legal Sciences,
Professor of the Department of Civil Procedure and Business Law
of the Samara State University
The article discusses problems associated with the use of a such procedure as a calculation of the claim. The author describes the calculation of the claim at the same time as the procedural document and actions of plaintiff; discusses problems of representing by the plaintiff of a calculation of the claim, in particular, the mandatory submission and consequences of failure calculation; addresses questions of the respondent counter-calculation. Calculation of the claim, according to the author, is not among evidences in the case, what determines the particular mode of its study by the court and special effects of failure calculation. The author addresses to problems of discharge of the duty of the court to check the calculation, in particular with regard to cases where the payment is not disputed by the opposite party. The author makes a conclusion about the need to check the calculation by the court and the rectification (if it is detected) of counting errors, but this conclusion is accompanied by a number of reservations about limitations of rights of the court at adjust the calculation in cases where the plaintiff applied the most favorable to rate or, alternatively, in the manufacture of the calculation came from minimum values of relevant indicators. It is proved that, if it is necessary, expert submitted calculation may be appointed.
Keywords: calculation of the claim; subject of the claim; price of the claim; parties of civil and arbitral procedure; procedural rights of the parties of civil and arbitral procedure.
Yudin A.V. Pravovoj rezhim protsessual’nyh dokumentov, ishodjashchih ot lits, uchastvujushchih v dele, i ne javljajushchihsja dokazatel’stvami po grazhdanskim delam [The Legal Regime of Procedural Documents Emanating from Parties, Involved in the Case, and Which is not Proof in Civil Cases]. Sud’ja = Judge, 2013, no. 4, p. 27–32. (In Russian)
Reshetnikova I.V. (ed.). Praktika primenenija Arbitrazhnogo protsessual’nogo kodeksa Rossijskoj Federatsii [The Practice of Using of the Arbitration Procedure Code of the Russian Federation]. 2nd ed. Moscow, 2012, p. 163–164. (In Russian)
Osokina G.L. Isk: teorija i praktika [The Claim: Theory and Practice]. Moscow, 2000, p. 184. (In Russian)
Gurvich M.A. Javljaetsja li dokazyvanie v grazhdanskom protsesse juridicheskoj objazannost’ju? [Is the Proof in Civil Procedure a Legal Obligation?]. Sovetskaja justitsija = Soviet Justice, 1975, no. 5. (In Russian)
Information about the author
Yudin A.V. (Samara) – Doctor of Legal Sciences, Professor of the Department of Civil Procedure and Business Law of the Samara State University (443011, Samara city, Academic Pavlov st., 1a; e-mail: firstname.lastname@example.org).