Ukrainian procedural law establishes the Claimant's right to change a subject or cause of a lawsuit prior to the commencement of a case consideration on the merits.
Considering the importance and incomprehensibility of this issue for ordinary people, we believe that it is necessary to provide a consultation on this issue.
However, you should pay attention to the complexity of this consultation, because of absence of legal definitions of the subject and cause of a lawsuit, and also because of the diverse interpretations of such concepts by judges of commercial, general and administrative courts.
There are also different interpretations of the subject and grounds of the dispute, which are the reason for filing a claim. The essence of the subject and grounds of the dispute does not always coincide with the subject and cause of a lawsuit. The mentioned facts should be also taken into account when considering the complexity of the issue.
Whereas, the terms "subject" and "cause" of the lawsuit are repeatedly applied in the current procedural legislation of Ukraine, in particular but not exclusively in the following cases:
- in the Part 1 of the Article 31 and in the paragraph 2 of the Part 1 of the Article 205 of The Civil Procedural Code of Ukraine;
- in the paragraph 4 of the Article 22 and in the paragraph 2 of the Part 1 of the Article 81 of the Code of Commercial Procedure of Ukraine;
- in the Part 1 of the Article 51 and in the paragraph 5 of the Part 3 of the Article 108 of the Code of Administrative Proceedings of Ukraine.
Unfortunately judges provide different interpretations of concepts of “subject” and “cause” of the lawsuit. Due to the mentioned fact we are compelled to clarify this issue considering our reckoning and the theory and jurisprudence.
It should be considered that the Plenums of the Supreme and Superior Courts of Ukraine also interpret the forgoing concepts in different ways. The mentioned Courts adhere to the notion, which is offered by the theory of state and law. The mentioned theory determines the subject and cause of the lawsuit in blurred and incomprehensible words that are incomprehensible not only for the average citizen, but also for lawyers.
Civil procedural legislation.
In accordance with the item 9 of the Resolution of the Plenum of the Supreme Court of Ukraine "On application of the legal norms of the civil procedural legislation, which regulates pre-trial proceedings" dated June 12, 2009 No 5 the mentioned concepts are interpreted in the following way:
"In particular, the court should find out the subject of the lawsuit (the plaintiff’s demands), the grounds of the lawsuit (how the plaintiff establishes the demands) and scope of the demands (the chosen method of the right protection)."
"The grounds of the lawsuit are actual facts that shall be specified in the lawsuit. Due to the above mentioned fact the specification of the particular legal provision in the lawsuit is not relevant for the judge when defining the legislation under which the case is being considered".
Thus, the Supreme Court of Ukraine defines the subject of a lawsuit as specific demand of the plaintiff and the cause of a lawsuit as the reasoning circumstances which establish the plaintiff’s demands.
The above-mentioned interpretations coincide with requirements to the lawsuit. In accordance with the provisions of the Article 119 of the Civil Procedural Code of Ukraine the lawsuit shall contain the relief or remedy sought and circumstances which establish the demands.
Commercial procedural legislation.
In accordance with the provisions of the item 3.12 of the Resolution of the Plenum of the Superior Commercial court of Ukraine, dated December 26, 2011 No 18, "On certain questions of application of the Code of Commercial Procedure of Ukraine by the first-instance courts" the concepts of "subject" and "cause" of a lawsuit are interpreted as follows:
"The certain substantive demand of the plaintiff, in respect of which the plaintiff asks to resolve the case, shall be understood as the subject of a lawsuit. The circumstances, which establish the demands to defend the rights and law protected interests, constitute the cause of a lawsuit".
"At the same time new amendments to a lawsuit may not be recognized as changes of the cause of a lawsuit, unless they change the original facts of the case. The replacement of legal norms of substantive or procedural law may not also be considered as the change of the cause of a lawsuit. At the same time the judgment may contain references to other legal norms, which are undetermined in a lawsuit. In the mentioned occasion, such references may not be recognized as fall outside the claims under the lawsuit".
Thus, the Superior Court of Ukraine identifies the subject of a lawsuit as a specific plaintiff’s demand and the cause of a lawsuit as the reasoning circumstances which establish the demands.
Separately, we have to pay attention to the definition of the claim as “substantive” one.
Taking into account the theory of law we may affirm, that the substantive demand is a legitimate claim to the defendant. This demand is based on rules of substantive law. Furthermore, the court should pass a judgment, which determines the way of the restoration of the violated right and eliminate the consequences of illegal actions.
Whereas, in accordance with the decision of the Superior commercial court of Ukraine, dated January 18, 2011 in the court case No 29/200-10 “The subject of the lawsuit is a substantive request to the defendant. The subject of the lawsuit also corresponds with legal remedies, which are determined, for example, by the Article 16 of the Civil Code of Ukraine. Moreover, remedies are interpreted as special actions that are determined by the law and aimed at ending arguments, violations of civil rights and/or eliminating the consequences of illegal actions”.
At the same time, in accordance with the provisions of the Part 1 of the Article 16 of the Civil Code of Ukraine, each person has the right to file a lawsuit to protect personal non-property or property rights and interests.
In addition, the demand may be property or non-property by its essence.
In accordance with the provisions of the Article 54 of the Code of Commercial Procedure of Ukraine, the lawsuit shall contain relief or remedy sought, statement of facts, which establishes the demands, conforming evidences and justified calculation of the claimed amount. The lawsuit shall also include legal norms which allow you to file the lawsuit.
To summarize the above mentioned information, we consider that the commercial procedural legislation as well as the civil procedural legislation establishes the requirements to the lawsuit which coincide with the definitions of concepts of the “subject” and the “cause” of a lawsuit provided by the cassation courts of the relevant jurisdiction.
Administrative procedural legislation.
In accordance with the provisions of the item 10 of the Resolution of the Plenum of the Superior administrative court of Ukraine "On the judgment in administrative case", dated May 20, 2013 No 7, «the judicial disposition is a closing stage of the judicial procedure which expresses the solution of administrative cases. Thus it shall contain a clear and complete conclusion in respect of all demands, which are the subject of a lawsuit, appeal or cassation appeal».
At the same time, the administrative court of a cassation instance has not provided the determination the concept of "cause" of a lawsuit.
Whereas, in accordance with the provisions of the item 4 of the Part 1 of the Article 106 of the Code of Administrative Legal Proceedings of Ukraine the administrative lawsuit shall include the following components: relief or remedy sought, which is determined by the parts 4 and5 of the Article 105 of the Code of Administrative Legal Proceedings of Ukraine, and groundings of a lawsuit.
Taking into account the mentioned information and the fact that requirements to a lawsuit in administrative, civil and commercial proceedings are the same, we may conclude that the “subject” and “cause” of a lawsuit in administrative proceeding are identical with the mentioned concepts in civil and commercial proceedings.
To summarize the above mentioned information, we reckon that the concepts of "subject" and "cause" of a lawsuit may be interpreted in the following way.
The “subject” of a lawsuit is a particular demand (claim) of the plaintiff. In accordance with the provisions of the Article 16 of the Civil Code of Ukraine the demands may be property or non-property. The mentioned claims shall also determine the method of the protection of the rights and interests of the plaintiff.
The “causes” of a lawsuit are the facts which prove the demands of the plaintiff.
Managing Partner of the Law Firm "FOX" Vladimir Marinich