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As part of the judicial reform in accordance with federal constitutional laws "On the judicial system of the Russian Federation" and "On Arbitration Courts in the Russian Federation" in the country created a single judicial system. It includes and arbitration courtswho have federal status.
Arbitration Courts are specialized courts to resolve property, commercial disputes between enterprises. They also consider the claims of entrepreneurs about invalid acts government agenciesviolating their rights and legitimate interests. These are tax, land and other disputes arising from administrative, financial and other legal relations. Arbitration courts are considering disputes with the participation of foreign entrepreneurs.
A.V. Misarov, lawyer
Briefly about Article 48 of the Arbitration Procedure Code of the Russian Federation.
The short time interval that is assigned to the Arbitration Manager for the promotion of the tangled club of the debtor's transactions within the framework of insolvency procedures (bankruptcy), requires the arbitration managers of competent actions to collect property, and in the bankruptcy management, as a rule, is the operational implementation of an insolvent enterprise. A carefully conducted bankruptcy procedure is practically nothing without resolving relations between creditors and debtors of the enterprise by appeal to the arbitration court.
The norm of Article 48 of the Arbitration Procedure Code of the Russian Federation (RF APC) is in recent times increasingly and more often occurs in the reviews and claims arbitration managers or his representative in one of the parties arbitration process.
It is about one article of the APC RF and the most important points of its application in arbitration practice and wanted to devote this article.
About the persons in respect of which procedural succession is allowed
Article 48 of the APC RF admits a procedural succession regarding a certain circle of persons. These persons are parties in the disputed or established judicial act of the arbitration court legal relationship. As follows from the chapter 5 of the APC RF, the parties in the arbitral process are the plaintiff, the defendant (Art. 44 of the APC RF), as well as third parties that declare independent claims on the subject of the dispute that enjoy rights and carry the obligations of the plaintiff, with the exception of the responsibility of compliance with claim or Other order pre-trial order dispute settlement (art. 50 APC RF).
It should be noted that part 2 of Article 51 of the APC of the Russian Federation establishes exceptions from the rights of the parties belonging to third parties without independent requirements Regarding the subject of the dispute. These exceptions relate to the administrative rights of the parties and are associated with the fact that, as expected, the third party without independent claims regarding the subject of the dispute is not a subject of controversial material legal relationship considered in the arbitration court and, therefore, cannot claim the object of the dispute.
Thus, the joint consideration of Articles 48 and 51 of the APC RF leads to the conclusion about the absence of a third party without independent claims regarding the subject of the dispute, which is not a party to the disputed or court of legal relationship, the possibility of procedural succession. In the case of succession in the material legal relationship, the successors of such persons will be forced to observe the stages of the arbitration process, despite the fact that the resultant judicial act It may affect their rights or obligations for attribute to one of the parties to the controversial relationship. The impossibility of the procedural succession in respect of a third party without independent claims regarding the subject of the dispute simultaneously deprives such a person and the rights to appeal against the judicial act as a joined and not entered into force.
About procedural succession at various stages of the arbitration process
Despite the fact that the procedural succession is possible at any stage of the process, the volume of the right of the parties to the dispute in the material legal relationship at different stages of the process is different, which significantly affects the differences in the possibility of occurrence from parties at different stages of the arbitration process of procedural succession. As you know, replacing the retired side by its successor in arbitration judicial process takes place only when the succession occurred in the material civil legal relationship. As A. Kozhemyako ("Subjects of Cassation Appeal in the Arbitration Process", "Russian Justice" No. 2 "2000), notes, judicial decision The legal force participating in the case is in a state of legal uncertainty about the disputed subject. At this stage, the succession in controversial relationships may arise from any of the parties and any permissible law. Meanwhile, after the entry into force of the judicial act, the situation varies significantly. Here, an earlier disputed legal relationship is specifically defined, and the parties can only have the rights that are recognized by the court.
The example given by the author is very indicative. By revising wINDICATION COST The arbitration court was denied his satisfaction, and the decision entered into force. Then the plaintiff gave way to the subject of the dispute to another person under the contract agreement, and the latter, considering the decision illegal, appealed cassation complaint, referring to the procedural succession in accordance with Article 40 of the APC RF (the old editorial office, now Art. 48 of the APC RF, approx.). The cassation instance seems to be legitimately refused to accept the complaint without recognizing the right to submit it. The motives were as follows. The plaintiff entered into legal force is denied the version of the Wine Covenant. As a result, he could not dispose of the right to him and transfer the requirement under a cessia agreement. Prior to the importance of the decision, property belonging was controversial, and the parties had the same counter-legal legal opportunities. But they existed only before eliminating legal uncertainty. Consequently, to transfer their procedural powers to the successor regarding such a right plaintiff and the defendant can only in the first and appeals instance (Before entering the judicial act into legal force). In the future, this opportunity will depend on the content of a court decision by consolidating the controversial right for one of the parties.
A similar situation can also be considered in relation to applications for revising the judicial act on newly discovered circumstances (part 1 of article 312 of the APC RF), which can only be filed by persons participating in the case or successors of these persons (paragraph 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation from 15 October 1998 No. 17 "On the application of the APC RF when revising the newly discovered circumstances of the lawsuits of arbitration courts").
Obviously, the considered situations do not affect the succession of the universal, which, as seen, the nature of the court decision does not affect.
The above examples clearly show the relationship of the occurrence of a procedural succession at the legal successor of the retired party in the arbitration law judicial process with the presence of the material law and the reality of the succession that occurred in the material civil relationship.
About procedural succession in executive work
Since this article was affected by the process stage, it is impossible not to notice the ambiguity of opinions regarding the possibility of classifying the proceedings related to the execution of judicial acts of arbitration courts to the stages of the arbitration process. Until now, the arbitral practice practically definitely determined this production as a stage of the arbitration process. So the position of the Supreme Arbitration Court of the Russian Federation (the Russian Federation) was most fully expressed in the Decree of the Presidium of the Whale of the Russian Federation of April 7, 1998 No. 4095/97. So, in accordance with the conclusions set out in the specified resolution, the Presidium indicated that the execution of judicial acts represents the stage of the process, and they are distributed general provisions The APC of the Russian Federation, including the norm of Article 40 (the old editorial office, now Art. 48 of the APC RF, approx.) Codex on the procedural succession. In accordance with this article, in cases of disposal of one of the parties in controversial legal relationship (in this case, the assignment of the claim), the arbitration court replaces this side by its successor, indicating this in the definition. The succession is possible at any stage of the arbitration process. The conclusion of the cassation instance of the Federal Arbitration Court of the Volga district that the arbitration process is considered completed after the decision and issuing executive Sheet, recognized by the Presidium of the Russian Federation an erroneous, and the definition of the court of first instance on the procedural succession of the recoverer at the stage of execution of judicial acts is reasonable and legitimate.
It should be borne in mind that after the adoption of the Federal Law "On Enforcement Proceedings" and on the draft new Code of Civil Procedure of the Russian Federation forced execution allocated from judicial and organizationally attributed to executive power. Therefore, this question needs a new understanding and an additional study.
The current arbitration practice, including federal arbitration courts, to attribute the execution of judicial acts to the stages of the arbitration process, as well as the norms of the Federal Law "On Enforcement Procedure", determine the obligatory observance by the parties to the executive proceedings of the procedural succession defined by Article 48 of the APC RF, in the case of The desires of the successor on the established court decision to take advantage of their procedural rights within the framework of the executive actions already committed. Taking into account the above, a very common mistake allowed by the executive bailiffs in determining their powers under Article 32 of the FZ "On Enforcement Proceedings", which obliges the bailiff in the event of the disposal of one of the parties to its decision to replace this party by its successor, defined in the manner prescribed federal law. Quite often, without driving himself with the difficulties of the order, to which the legislator refers, the bailiff independently on the evidence submitted assesses the possibility of replacing the part of the enforcement proceedings, the result of which it becomes its decision on the procedural succession in the executive proceedings without taking into account the requirements of Article 48 of the APC RF. As the arbitration practice shows, the decision of the bailiff, which was made in this order violates the norms of procedural law, which is the basis for its cancellation. Thus, by the decision of March 29, 2002 No. 4439/01 The Presidium of the Russian Federation clearly formulated his position that in accordance with Article 32 of the FZ "On Enforcement Proceedings" in the event of the disposal of one of the parties to the enforcement proceedings (the death of a citizen, reorganization legal entity, assignment of requirements, debt transfer) The bailiff must be replaced by its succession in the manner prescribed by the Federal Law. This procedure is defined by Article 40 of the APC RF (the old editorial office, now Art. 48 APC RF, approx.). The question of the replacement of the parties to its successor is considered by the Arbitration Court on the statement of the interested person in court session, about the time and place of which the parties are notified, as well as the bailiff. In the case of the recognition by the arbitration court of succession, the bailiff is obliged to replace the appropriate party in the enforcement proceedings.
Arbitration procedural Code Russian Federation:
Article 48 APC RF. Procedural succession
1. In cases of disposal of one of the parties in a controversial or established judicial act of the Arbitration Court, the legal relationship (the reorganization of the legal entity, the assignment of the requirements, the transfer of the debt, the death of a citizen and other cases of change of persons in obligations) The Arbitration Court replaces its successor to this side and indicates this In judicial act. The succession is possible at any stage of the arbitration process.
2. On the replacement of the parties to its successor or refusal to this arbitral tribunal, it is indicated in the relevant judicial act, which may be appealed.
3. For the successor, all actions committed in the arbitration process before the admonimor entry into the case are mandatory to the extent that they were mandatory for the person who renewed replaced.
Return to the category of document: Arbitration Procedure Code of the Russian Federation (APC RF)
Comments on Article 48 of the APC RF, judicial practice of application:
- General Provision for Propremit: " Properness - this is ... Definition of concept, species, samples of applications "
- Procedural succession in civil, arbitration and administrative process (general features)
- Transfer of the right to reimbursement of legal costs in order of succession
Samples of applications for succession in arbitration proceedings
- Application for procedural succession in the arbitration court on the basis of a cessia agreement in the executive production
Procedural succession in the arbitration process allows the company to retire from the participants of the dispute or join it instead of the previous participant. Read the material on what cases admit this succession.
The essence of the procedural succession in the arbitration process is the replacement of the participant of the proceedings on his successor. The succession in the arbitration process is a consequence of the transfer of substantive law to another person. If the rights and obligations of the participant of the dispute moved to someone else due to the change of persons in the obligation, there is a need for replacement and when considering the case. The adviser of the plaintiff will seek satisfactory requirements, the defendant's successor - the dispute resolution in its favor.
The succession in the arbitration process reflects the replacement of the person in material legal relations
The reason for the procedural succession in arbitration proceedings is the succession in the material civil legal relationship, which occurred during the proceedings or after it. For example, it may be the reorganization of the company, the assignment of the right of claim, the transfer of debt, etc. When replacing the parties in the arbitration process, a new participant receives procedural rights and duties from the former. Including, the new participant will have the same procedural statusAs the previous one. As part of the APC, the succession is regulated by the relevant standards ().
Procedural succession is possible in the arbitration process at any stage:
- when considering the case in the first instance;
- when appealing in appeals, cassation, supervisory instance;
- in the course of enforcement proceedings;
- in case of revision when new or newly discovered circumstances appear.
It should be borne in mind that changing the name of the company does not entail the need to replace the participant of the dispute on the new (Article 124 of the APC RF).
According to the rules of the APC, the succession is carried out on the basis of the court's identification of the participant
To replace the dispute member, it is necessary to submit a petition for the procedural succession in the arbitration process. In addition to the petition, the applicant conveys a set of documents to the court who will confirm the material advocacy. On the replacement of the case in the case in the arbitration process is entitled to declare both the former and a new participant of the proceedings.
The statement of procedural succession in the arbitration process is better to prepare in parallel transaction on the transfer of substantive law. Documents that will need to convey a court together with the application will differ depending on the nature of the contract. Without such documents, the court will not satisfy the petition.
If the material law has passed several times, the court has the right to replace the former participant immediately at the last of the successors, without having to solve the issue for each separately. Court will need documents that illustrate the chain of transactions ().
When replacing the parties in the arbitral process there are four legal consequences
Depending on the reasonableness of the replacement of the participant of the arbitration process, the court will make the definition of the satisfaction of the petition or refusal (part 2 of Art. 48 of the APC RF). This judicial act, if necessary, can be appealed. If the court agreed with the applicant, several consequences will arise:
- The previous member of the dispute is dropped out of it, its successor enters into business.
- The replacement of the participant does not entail the revision of the case first. The process will continue from the moment on which they stopped.
- All precursor actions are powerful for a new participant. For example, if the previous participant acknowledged a fact, the successor is not to challenge this fact.
- The procedural succession in the arbitration process means that if the previous participant did not do anything, the successor accepts the consequences of this. For example, the previous participant did not give a petition for