«Встречный претензионный порядок» как результат правотворчества Верховного суда Российской Федерации

Арбитражный и гражданский процесс. 2020. № 12. С. 52–55.

Фокин Е. А.

The subject of research is critical analysis of legal position of the Supreme Court of the Russian Federation on the need to go through the pre-claim procedure when filing a counterclaim. The reason for the analysis was the adoption on July 22, 2020 by the Presidium of the Russian Supreme Court of the Review of the practice of application by commercial courts of the provisions of procedural legislation on mandatory pre-trial claim. Point 17 of this document enshrined as a general rule the obligation of the defendant to file a pre-trial claim upon filing a counterclaim. The article shows the inexpediency and absence of any clear grounds for such an approach. Particular attention is paid to the fact that the nature of the pre-trial claim and the nature of the counterclaim are incompatible. Those exceptions were also criticized for which, according to the instructions of the Supreme Court of the Russian Federation, a counter-claim procedure is not needed.

Thus, the article comes to a fundamental conclusion that there is no need to comply with the claim procedure when filing a counterclaim. Along with this, the study touches upon other issues raised in connection with the adoption of the Review on the complaint procedure: about judicial lawmaking and the quality of clarifications of the highest court instance.

Keywords: правотворчество, judicial lawmaking, pre-trial claim procedure, counterclaim, Встречный иск, Досудебная претензия