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Appeal to the economic court. Evidence part 2

Appeal to the economic court. Evidence - Part 2.

We prepare and systematize the evidence

So, a typical simple situation. Your company has manufactured and supplied products to Cactus.

You have completely fulfilled the contract on your part. Delivery time is not violated, the quantity and product range, meet the specifications. There were no complaints about the quality of the goods addressed to you. Your counterparty is not going to pay you. At first I tried to refer to something and somehow justify myself, and then completely calmed down.

You are simply doomed to go to the economic court, with a claim to recover the debt from your counterparty.

But first you need to make a claim. And to begin to make it, we offer you after the preparation of evidence and their systematization into a single evidence base.

At the same time collecting evidence, you must simultaneously predict what flaws in the evidence you collected can be found by the court and your opponent. And also, what assessment they will try to give these flaws, and what will take a legal position.

So, you refer to a violation of the terms of the contract by your opponent.

The first evidence will be a contract. In this case, you need to carefully examine it for the presence of all signatures and seals. Check whether the contract is signed by an authorized person, whether the signature matches the signature of the person indicated in the preamble of the contract.

If the contract is signed and. Director, attach, in addition to the claim, an order appointing him acting head. If the deputy signed the contract to speed up the process, secure by giving him the right number in the form of a power of attorney to sign the contract.

Thus, you will make a preemptive strike against attempts to speculate about the invalidity of the contract, by virtue of signing it unauthorized n th face. After all, it will be somewhat unpleasant if the opponent proves that there is no contract?

Further, you state that your contract has been completely fulfilled.

Based on this, the second proof is the documents confirming the shipment of the goods. For example, the expenditure invoice. Check it for compliance with the contract, the availability of its date, as this is the date of delivery. Are there signatures and stamps of your side? It is especially important whether the signature of the representative of the opponent. And whether it conforms to the sample of the signature of the representative in the power of attorney issued for the right to receive the goods. If another person is indicated in the invoice, or the one that is needed, but his signature does not match - this is a possible reason to deny on the part of the opponent the fact of receiving the cargo.

If such disgraces with the signatures on the invoice are detected by you, try to find other documents that directly or indirectly confirm the fact of receipt of the goods. This may be an accounting act of reconciliation of calculations, which is signed by the opponent and in which the value of the goods on the invoice is in his parish. This may be correspondence on other issues, from which, among other things, admission by the opponent of the fact of receipt of goods follows. If there is no such correspondence, you can try to initiate it and receive the necessary letter from the counterparty. At worst, you can refer to the tax invoices, the act of checking the STI, and others.

As a result, it is important to attach to the claim in addition to a somewhat flawed invoice, other documents confirming the fact of delivery of the goods. Let indirectly.

Third evidence is proof of late payment. And here we again need to return to the contract and see how the terms of payment are formulated. And practice says that it is formulated, it can be different.

Let's take, for example, three options for a possible statement of payment terms:

1. Payment for the delivered goods is made no later than five banking days from the date of signing the expenditure invoice.

2. Payment for the delivered goods is made no later than five days.

3. Payment for the delivered goods is made upon delivery.

The first of these options contains proof of late payment in conjunction with the invoice. In this case, you refer to the claim on the date of signing the expenditure invoice, emphasizing that the sixth banking (or business) day after the date of its signing is the first day of delay in payment under the contract.

Option 2 contains a period, but there is no starting point for this period.

Option 3 does not even contain a deadline.

Thus, based only on the terms of the contract for payment of the goods, you can overdue the fact of delay in court, with strong opposition from your opponent and not prove.

In these cases, it will be correct to prepare and file a claim to hold and slightly modify the proof of late payment.

You must first write your opponent a letter demanding payment of the debt within seven days. This will be based on the provisions of the law (if the term is not set or determined by the moment of demand). Accordingly, you will refer to the late payment from the eighth day, from the date the counterparty received your letter.

In order to know the date of receipt of the letter by the counterparty, you must send it by registered or valuable letter with acknowledgment of receipt. And in order for your opponent not to state later that he received a greeting card from you instead of a letter demanding to repay the debt, it must be sent with an inventory of the investment.

Based on this, with options 2 and 3 of the statement of payment terms in the contract, you will have a set of evidence confirming the delay in payment, which includes: a contract, a letter demanding payment, a receipt (sending it by valuable or registered mail), notification about his delivery, inventory of attachments of the letter.

It is also necessary to attach proof of payment of the court fee and evidence of sending a copy of the statement of claim and attachments to your opponent. At the same time, the proof of sending the claim must be the same as the proof of sending the above letter.

At the finish of the collection of evidence you need to remember that you can only submit evidence to the court once, simultaneously with the filing of a claim.

Therefore, the evidence that is necessary for 100% substantiation of your position must be divided into two groups. Those that are in stock, and those that are to be mined.

If you need an expert opinion, it is necessary to ask the court about its appointment simultaneously with the filing of the claim.

There are cases where evidence exists, but you do not have the opportunity to get it yourself. In this case, the law says that the participant in the case, if it is impossible to present evidence on his own, has the right to file a petition for the taking of evidence by the court.

Among other things, the petition states:

    • • the grounds from which it follows that this evidence has the person concerned;
    • • measures taken to obtain this evidence independently, evidence of such measures taken and / or reasons for not being able to independently obtain this evidence (for example, a written request for evidence and a negative answer to it);
    • • The reasons for not being able to obtain this evidence yourself by the person filing the petition.

It is important that this petition, as well as the petition for the appointment of an examination, must also be submitted simultaneously with the filing of the claim.

You doubt the completeness of the evidence base collected, before preparing a lawsuit?

Come to the law firm ALIBI!

We will accompany you completely, starting with the collection of evidence and ending with the receipt of a positive court decision!


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