Institute of contumacious judgment is introduced in the Civil Procedure Code of Ukraine and is actively used in modern legal proceedings. The Apostolov district court of the Dnipropetrovsk region explained what default judgment is and how to appeal it.
ZiB reports with reference to the press service of the court: According to the statistics of the Apostolov District Court of the Dnipropetrovsk Region for 9 months of 2019, cases in which a default judgment is made, account for 54 percent of all civil cases considered in court for a given period.
Most frequently, default judgments are made on claims of the bank against debtors for debt collection under loan agreements and dissolution claims.
Consider the main features of the adoption of a default judgment and the mechanism for appealing against such a court decision, according to the norms of the Civil Procedure Code of Ukraine.
Under what conditions a court can make a default judgment?
According to Art. 280 of the Civil Procedure Code of Ukraine, a court may make a default judgment based on the evidence in the case, while the following conditions exist:
1) The defendant is duly notified of the time and place of the hearing;
2) The defendant did not appear at the hearing without reasonable excuse or without explanation;
3) The defendant did not provide a review;
4) The plaintiff has no objection to such a decision of the case.
If several defendants participate in the case, an absentee review of the case is possible if all the defendants did not appear at the hearing. In case the plaintiff changes the subject or the basis of the claim, changes in the size of the claims, the court postpones the trial to inform the defendant about this.
How to appeal a default judgment?
The decision may be reviewed by the court, which decided, upon a written statement of the defendant.
An application for review of a default judgment may be filed within 30 days from the date of its announcement. A participant in a case to whom a full default judgment was not presented on the day of proclamation has the right to restore the missed deadline for submitting an application for its review – if such an application is filed within 20 days from the date of delivery of the full default judgment.
The deadline for submitting an application for review of a default judgment may also be restored in case of absence due to other valid reasons.
The form and content of the application for review of the default judgment
An application for revision of the default judgment must be submitted in writing.
The application for revision of the default judgment should indicate:
1) name of court that made the decision;
2) the name (name) of the defendant or his representative who submit the application, their place of residence or location, means of communications;
3) circumstances attesting to the validity of the reasons for failure to appear at the hearing and (or) failure to inform their court, as well as the reasons for not submitting a recall, and evidence about it;
4) reference to evidence by which the defendant substantiates his objections to the plaintiff’s claims;
5) application for review of the default judgment;
6) list of materials attached to the application;
The application for review of the default judgment is signed by the person who submits.
Copies of the number of participants in the case and copies of all materials attached to it are attached to the application for review of the default judgment.
A power of attorney is attached to the application for revision of the default judgment or another document confirms its authority.
The application for the review of the default judgment should be accompanied by a document on the payment of the court fee and evidence to which the applicant refers.
The order of consideration of the application for review of the default judgment
The application for review of the default judgment is considered at the hearing. The failure to appear of persons duly notified of the time and place of the meeting does not preclude the consideration of the application.
The presiding judge opens the court session and finds out which of the participants in the case appeared, identifies them, checks the credentials of the representatives, after which he informs the contents of the application and finds out the opinion of the parties and other participants in the case regarding the requirements for the review of the default judgment.
As a result of consideration of the application for review of the default judgment, by its decision the court may:
1) may leave the application unsatisfied;
2) may cancel the decision and assign the case for consideration according to the rules of general or simplified lawsuit;
If the application for revision of the default judgment is left unsatisfied, the decision may be appealed in the general manner established by this Code. In this case, the time period for appeal of the decision starts from the date of the decision to leave the application for review of the default judgment without satisfaction.
Cancellation and appeal of the default judgment
A default judgment is subject to cancellation if the court determines that the defendant did not appear at the hearing and (or) did not report the reasons for the failure to appear, and also did not provide a response to the statement of claim for good reason, and the evidence to which he refers that have substantial importance for the proper resolution of the case.
The plaintiff has the right to appeal the default judgment in the general manner established by this Code. The plaintiff and the defendant may appeal the repeated default judgment in accordance with the general procedure established by the Civil Procedure Code of Ukraine.