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World Agreement where three defendants. Sample of the world agreement in civil case

Contract
08.05.2020

First mandatory condition The conclusion of the World Agreement recognizes the actual achievement by the Parties of the Agreement, the second - giving it a form, provided by lawThird - approval by his court.

First of all, it should be noted that the law makes various requirements for the form of a global agreement concluded in the Arbitration Court, and the World Agreement concluded in court general jurisdiction.

So, the settlement agreement concluded in the Arbitration Court, according to h.

1 tbsp. 140 APC RF must be clothed in writing. And, as reasonable emphasizes N.S. Masyutina, does not allow its design by making its conditions to the protocol court session.

See: Masyutina N.S. World Agreement // Arbitration practice. 2005. N 9. P. 56.

On the contrary, according to Part 1 of Art. 173 Code of Civil Procedure of the Russian Federation The conditions of the settlement agreement are recorded in the minutes of the court session and are signed by both parties, and if the statements of the parties are expressed in writing, they join the case, which is reflected in the trial of the court session. Thus, the written form for the global agreements in the court of general jurisdiction is not at all mandatory.

E. Rusinov writes that for world agreements in the court of general jurisdiction (in the first and appeal instance), a written form is not provided, whereas in the court of cassation law the law directly requires the written form of the settlement agreement (Art. 346 Code of Civil Procedure of the Russian Federation). According to the author named, non-compliance with the Form of the World Agreement in the court of cassation must be the reason why the Court should refuse its conclusion (see: Rusinova E. Control of the Court for the World Agreement // Ezh-lawyer. 2004. N 6).

Fixing in the Code of Civil Procedure of the Russian Federation the opportunity to commit global agreements in oral formThe legislator probably sought to simplify the registration of global agreements (especially in cases where it concerns small household transactions or, for example, family relationships), And besides, it was probably the established tradition: Russian procedural legislation always allowed the possibility of an oral settlement agreement.

Although, it must be recognized, the laws of the pre-revolutionary time insisted on the writing of the global transaction.

See, for example: Shershenevich G.F. Course civil law. P. 446; Victorious K.P. Credit law: at 3 t. T. 3. P. 183; Glyaev A.M. Russian civil law. P. 291; Paramonov A.S. World deal. P. 137.

Meanwhile, such an approach is possible, quite acceptable in the XIX - early XX century, when the population of Russia was at best of the most illiterate, today, I think, I outlined myself. Currently, when the parties to the dispute transferred to the Court of General Jurisdiction, in the overwhelming majority of cases are competent, the settlement agreement, which makes the willing of both parties, should be in a written form. The written design of the arrangement of the settlement arrangement of the dispute will first of all will discipline the parties themselves, excluding (or at least limiting) the situation of uncertainty in relations, the dispute in which was eliminated by the World Agreement. In addition, it is necessary to take into account the Russian mentality, which is characterized by a rather nihilistic attitude towards oral agreements and more serious - to the contract agreements ("that the pen is written, do not cut down and ax").

In addition to the execution of the global deal between citizens in writing, he will partly simplify the work of judges, since the parties will formulate the conditions of the settlement agreement, and the work of the court will be to verify their willingness for compliance with the law and the lack of violations of the rights of others.

In addition to the above, I would like to stay on the same nuance.

Contract for paragraph 2 of Art. 434 of the Civil Code of the Russian Federation can be concluded not only by drawing up a single document (document contract), but also by sharing documents through a postal, telegraph, teletype, telephone, electronic or other connection that allows you to reliably establish that the document comes from the contract.

By general rule In relation to the settlement agreement, this provision does not apply: the settlement agreement is issued as a single document. The decoration of the settlement agreement with a single document not only simplifies the verification of the settlement agreement for freedom of the will of the parties, its legality, the lack of violations of the rights of other persons, etc., not only facilitates the possibility of the enforcement of the settlement agreement, but also to a certain extent protects the interests of its parties from Action of unscrupulous persons.

The Civil Code of the Russian Federation in some cases prescribes the parties to the contract to the contract certainly in the form of a single document (for example, in Art. Art. 550, 560, 1017). Procedural legislation in terms of regulating the form of the global agreement of such a rule, unfortunately, does not contain, but it seems that it needs it.

So, the parties settled by the dispute arose between them came to the agreement. The next step was the signing of the text of the World Agreement (the text of the document of the document). Further, this world agreement must be submitted to the court.

Unfortunately, neither the APC of the Russian Federation nor the Code of Civil Procedure of the Russian Federation does not regulate the procedure for submitting a settlement agreement to the Arbitration Court, which causes certain problems. In particular, procedural legislation directly does not enshrine the obligation to support the settlement agreement for the statement of this global agreement.

In the absence of a petition (statement) on the approval of the settlement agreement, the court, in fact, would have to approve the settlement agreement on its own initiative, which is hardly correct: the movement of the process requires an appropriate action of the arguing parties. Consequently, the petition (application) containing the appeal to the court with a request to approve the global agreement presented is necessary. Such a petition (statement) implies investment in a written form; At the same time, it is desirable to design it in the form independent documentwhich, having an exceptionally procedural importance, will be attached to the case file.

There are situations when the parties include a petition (application) facing the court into the text of the settlement agreement. For this reason, refuse to approve the settlement agreement, of course, there is no reason. But since in such a "ballast" the contract (global agreement) does not necessarily need it, it seems to be more correct to execute a petition (application) on approval of the settlement agreement with a separate document.

See, for example, the resolutions of the FAS of the Volga-Vyatsky District of November 20, 2006 in case No. A82-17153 / 2005-9, the FAS of the North-West District of February 10, 2006 in case No. A56- 9416/2005. The conclusion by the parties to the settlement of the settlement will prescribe the termination of the dispute between them, by virtue of which, from the moment of submission of the Armed Forces of the World Agreement, the court is not entitled to carry out actions aimed at resolving the dispute on the merits. Thus, the Court cannot evaluate the circumstances that led to the emergence of a dispute, the facts preceding the settlement agreement, and the reasons for the achievement of the settlement agreement. It cannot evaluate the evidence and arguments given by persons participating in the case, to substantiate their requirements and objections, establish circumstances that are important for the proper resolution of the dispute, as well as the rights and obligations of persons participating in the case; Deciding whether the claim is subject to satisfaction, etc. In addition, the court is not entitled to evaluate judicial actswhich in the case of the approval of the settlement agreement will be canceled (at the stage of revising judicial acts in the order of appellate, cassation, supervisory production). Since the submission by the Parties of the World Agreement, the court should be aimed at checking the settlement agreement (its compliance with the requirements).

Checking the settlement agreement, the court must give him a legal assessment. And yet, in the implementation of this activity, the courts often go beyond the assessment of directly global agreements: when approving global agreements, they analyze not only (and not so much) the world agreement itself, but also the reason for the emergence of the dispute and the reason for the appeal for judicial protection, etc. Such court actions do not have legal grounds: the establishment and assessment of the actual circumstances of the case is permissible only when considering the case on the merits, when approving the World Agreement, the court is not entitled to carry out such actions, since the dispute is relumed to be settled, and the consideration of the case becomes unlimited.

It was not possible to avoid the mentioned error and the Presidium of the Supreme Arbitration Court of the Russian Federation. Having considered in order to oversee the case on the recovery of the loan, interest for the use of Her and the penalties for the late payment of interest, the Presidium of the Supreme Arbitration Court of the Russian Federation recognized the affirmative approval of the settlement agreement. In justification, it was stated that the Arbitration Court, when approving the settlement agreement, did not investigate the actual circumstances of the dispute and the submitted materials, did not give them a proper legal assessment. It was also noted that in the case there were no evidence confirming the requirements of the plaintiff: there were no documents, including the treaty, from which one could establish, for what time and under what conditions the borrower was provided to the borrower, the plaintiff's annual renewal is not confirmed Load debt, etc.

A similar situation took place in the consideration of another case, the parties of which concluded a settlement agreement. Canceling the definition of the approval of the settlement agreement, the Presidium of the Supreme Arbitration Court of the Russian Federation justified this by the fact that the court was not given an assessment of a controversial agreement for the provision legal servicesThere are no circumstances that are essential for business. What norms of law was guided by the highest judicial instanceReferring to the need to study the circumstances of the case when approving the settlement agreement, in these judicial acts was not indicated.

Such an approach naturally brought the appropriate fruits. Judicial practice reveals examples of the abolition of definitions on the approval of the settlement agreement on the motive that, when considering the settlement agreement, the court "did not figure out the amount of the amount of debt than violated the requirements of the current legislation," or they were not verified "the validity of the stated requirements as right and size: it is not established, which makes the specified amount of debt, which confirms the fact of the provision of services under the contract, "or because" the actual circumstances are not established about the actual value of the claimant's share authorized capital Societies, the availability of the Company's debt on the claimant of the value of this share, the obligation from which the recognized debt of the defendant arose before the plaintiff "and so on was not specified.

Resolution of the FAS Far Eastern District of October 22, 2005 in case No. F03- A24 / 05-1 / 2741.

Opinion on the need for research arbitration court The circumstances of the case when approving the settlement agreement is erroneous: when approving the settlement agreement, the court cannot be imputed in the duty to study the circumstances of the case. Statements about the need for approving a settlement agreement to verify the validity of the claim, on the obligation to study the actual execution of the disputed contract, clarify the legal relations of the Parties, assessing the contract, on the basis of which claims are claimed, etc., found in judicial practice, do not have a legal basis.

Part 3 of Art. 139 APC RF established that the settlement agreement is subject to approval by an arbitration court in the event that it does not violate the rights and legitimate interests of others and does not contradict the law, i.e. The priority of the court is to verify the global agreement for compliance with the requirement of legality. At the same time, the obligations of the court enshrined in the current procedural legislation, to check the presented world agreement corresponds to the court's right to refuse it to be approved in case of inconsistency of the specified Agreement established in the law. The court, refusing to approve the settlement agreement, should motivate its decision.

The requirements for the settlement agreement concluded in the process of arbitral proceedings, the legislator formulated somewhat wider: by virtue of paragraph 3 of Art. 32 of the Law on Arbitration Courts The World Agreement should not violate the rights and legitimate interests of others and cannot contradict the laws and other regulatory legal acts.

Thus, the court of cassation on the results of the revision of the case in which the court appeals instance Refused the approval of the settlement agreement, it was concluded that the court of appeal instance that did not indicate a single reason for refusal, violated the norms of procedural law. Canceling the judicial acts made in the case, the court of cassation stressed that the norms of the APC RF govern the parties to complete the dispute through the conclusion of the settlement agreement, while the Arbitration Court should take measures to reconcile the parties and to approve the global agreements for the declarations established by the law Based on mutual concessions (Resolution of the FAS of the Moscow District of June 6, 2000 in the case of N kg-A40 / 2149-00). A similar opinion was expressed, for example, in the resolution of the FAS of the North-West District of November 10, 2005 in case No. A13- 1194 / 03-16.

By virtue of h. 2, 3 Art. 184 APC RF The definition of a refusal to approve the settlement agreement is made in the form of a separate judicial act, By virtue of Part 9 of Art. 141 APC RF admires him to appeal by persons participating in the case. The consequence of refusal to approve the settlement of the settlement agreement is the consideration of the dispute of essentially (or if there is reasonable to that - leaving the claim without consideration or termination of production).

It should be noted that in pre-revolutionary legislation there was no norm, directly enshrining the possibility of the court to refuse to approve the settlement agreement, which was considered by pre-revolutionary Russian lawwered as a lack of law.

In particular, K. Annenkov, criticizing the norm contained in Art. 1366 Charter civilian proceedings, I said that it is formulated in such a way that it allows us to conclude that all the global transactions are "certainly and in all cases" without exception "should be subject to adoption by the court. He further wrote that at the court there should be a duty to check the conditions for the admissibility of the global transaction, because of which the Court should also belong to the obligation to reject global transactions committed with violation of these conditions (see: Annenkov K. Experience comment on the charter of civil proceedings. T. Vi. Pp. 243).

When checking the World Agreement, the Court must be verified for compliance with its number of requirements. As a result, it is advisable to designate the basic requirements that the settlement agreement must comply.

1. The legality. Obligatory for the settlement agreement is to compiless the requirements of the law and the absence of violations of rights and legitimate interests Other persons. At the same time, it is not only about the requirements stipulated by the procedural legislation, but also on the requirements arising from civil (material) legislation. In support of this approval, one should rely on the opinion of pre-revolutionary legal legal advisions, which indicated the subordination of the judicial global transaction and requirements civil law, and the rules of legislation on legal proceedings.

See, for example: Civil Code. The project of the Highestly established editorial commission on the preparation of civil deposits / Ed. THEM. Tyutryumova. T. 2. P. 1198; Paramonov A.S. World deal. Pp. 134 - 135; Civil Code. Kn. V: Obligations. P. 307.

As reasonably noted in the decision of the arbitration court of the cassation instance, "the judicial settlement agreement is a civil transaction, which should meet the requirements of the law and its reality." These requirements for the settlement agreement as a civil transaction are not disclosed in procedural legislation - they are set out in civil law. Checking the World Agreement for compliance with these requirements provides first of all verification that the world agreement is not a negligible transaction, perfect:

It will not be analyzed by the possibility of concluding a civil agreement with a citizen recognized as incapable due to a mental disorder (Article 171 of the Civil Code of the Russian Federation), or minors under the age of 14 (Article 172 of the Civil Code of the Russian Federation). -

with the aim of, nasty law enforcement grounds (Art. 169 of the Civil Code of the Russian Federation); -

for type, without intent to create the appropriate legal consequences (imaginary transactions - paragraph 1 of Art. 170 of the Civil Code of the Russian Federation); -

in order to cover another transaction (preliminary transactions - paragraph 2 of Art. 170 of the Civil Code of the Russian Federation); -

not in accordance with law or other legal Actregulating this category of transactions ( this species contracts) (Art. 168 of the Civil Code of the Russian Federation).

Proper verification of the compliance of the judicial global transaction to the provisions of civil legislation provided for for this category of transaction (given type of contracts) is possible if the court gave the right qualifications of the legal relationship arising from the world agreement. In this regard, it is impossible to disagree with the conclusion of O. Stepanova and G.V. Voronkov, who talk about the need to present in the definition of the approval of the settlement agreement not only the conditions of the latter, but also the legal qualifications of the legal relations arising (see: Stepanova O. World Transaction in the court of the second instance. P. 52; Voronkov G.V. Judicial definitions On approval of world agreements of the Parties and the protection of the rights of citizens in the Soviet Civil Procedure // Development of the rights of citizens of the USSR and the strengthening of their protection on modern stage Communist construction. Saratov, 1962. P. 227).

The above does not make it possible to agree with an increasingly encountered in court practice, according to which, when checking the settlement, there is no "the court's responsibility to verify whether the settlement agreement violates or does not violate the interests of this agreement, since when it is conclusted, the parties themselves act in their own interests." The verification of the settlement agreement for compliance with its requirement of legality (in particular, the verification of its reality) covers and verification on the subject of the world agreement between the world agreement itself is not violated by the global agreement. Here you can quote the statement A.G. Goyuhbarga noted that the court should "make sure that under the guise of the global agreement was not made any illegal transaction."

Resolution of the FAS of the Moscow District of February 8, 2005 in case N kg-A40 / 3-05-2. A similar opinion is expressed in judicial acts of some other vessels (see, for example, FAS Resolution North Caucasian District from November 22, 2005 in case No. F08-5493 / 2005, FAS of the West Siberian District of April 11, 2005 in case No. A56-28718 / 04).

Goyakhbarg A.G. Course civil process. M.; L.: Gosizdat, 1928. P. 206.

In order to conclude on the compliance of the World Agreement, the requirement of legality is also needed to properly apply whether to conclude a violation of the rights and legitimate interests of others (Part 3 of Art. 139 of the APC RF; paragraph 2 of Art. 160 Federal Law "On insolvency (bankruptcy)"; p. 3 art. 32 of the Law on Arbitration Courts). This circumstance usually involves the analysis of the object of the settlement of the settlement agreement, which, under the terms of the settlement agreement, dispose of its subjects and which should meet the conditions previously discussed. Thus, in order to say that the world agreement does not violate the rights and legitimate interests of other persons, at least it is necessary to establish that: -

the property transferred according to the settlement agreement is not made of turnover and is not limited to the turnover; -

the participants of the settlement agreement have the right to dispose of property in respect of which the settlement agreement is committed (which is confirmed by the relevant guidelines); -

the property transferred according to the settlement agreement is not arrested and there is no dispute with other persons against it.

2. Clarity. Checking the settlement agreement, the court must check it and for understanding by the parties to its conditions and consequences of the conclusion: the conditions of the settlement agreement must be clear and certain and not to cause doubts if its content is interpreted. An ambiguity (incomprehensibility) for the parties to the conditions of the settlement agreement may cause new disputes and eliminate the possibility of voluntary execution. Therefore, the analysis of the settlement agreement for clarity of its conditions for the parties is one of the manifestations of the court's assistance in resolving the dispute (reconciliation of the parties).

So, E. Pushkar reasonably indicates that the Court must ensure that the conditions of the settlement agreement are clear, certain and did not allow further disputes (see: Pushkar E. The World Agreement in Judicial Practice // Soviet Justice. 1973. N 10. P. 9).

It should also be emphasized by the inadmissibility of incorporating impracticable conditions into the world agreements, since, as V. Ryasynets emphasizes, the dispute in this case will not be eliminated - it will be only modified.

See: Ryastensev V. World transactions (agreements). Pp. 27.

Since the settlement agreement is subject to execution according to the rules, stipulated by law For the execution of the act (with the above, it was noted above that the world agreement itself is not a judicial act), some other requirements needed to ensure its compulsory execution are also imposed. These are the requirements of completeness, unconditional, certainty (categorical).

Procedural legislation directly does not enshrine such requirements, but here you should agree with the opinion of R.E. Gukasyan, who, in particular, notes that the statement by the court of a settlement agreement makes it suitable for compulsory implementation, due to which the settlement agreement should meet many requirements for a court decision (see: Gukasyan R.E. Problem of interest in the Soviet Civil Procedure right. 1970. P. 165). 3.

Fullness. The compliance of this requirement means that the fate of all the requirements have been declared in the settlement agreement. For example, the requirement of completeness must meet the global inconsistency agreements and global agreements concluded during the period of compulsion. But the settlement agreement meets this requirement not in all cases, since the conclusion of the settlement agreement is allowed both in relation to the whole claim and in relation to its part. Consequently, completeness requirement is not mandatory requirementspresented to all without exception to global agreements. four.

Unconditional. This is a requirement to which obligatory Must meet the settlement agreement, means that the settlement agreement is obliged to be free from any conditions on which the execution of the settlement agreement depends. Including such conditions in the global agreement when accessing execution would cause the need to establish whether this condition came or did not come; For this, a new legal study would be required and, therefore, a new trial, which is unacceptable. Compliance with the requirement of unconditional will allow forced to fulfill the imprisoned settlement agreement in the event of a refusal of one of the parties from the voluntary execution.

This point of view was reflected in the Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation on a specific case, which, establishing the content of the settlement agreement, that the parties to the fulfillment of obligations assumed to be addressed to the circumstances, which at the time of the signing of the settlement did not come, recognized as unlawful approval of the global agreement.

The same position is expressed in the decision of the court of cassation on a specific case, which indicates that the court of the lower instance approved the settlement agreement, the execution of which was made dependent on the receipt of funds to the accounting account of the defendant. Meanwhile, as the court of cassation instance emphasized, "the conditions of the settlement agreement concluded by the parties should be stated clearly and definitely, so that there were no ambiguities in its interpretation and disputes about its content during execution, as well as the possibility of execution."

5. Definition (or categorical). This requirement is directly related to the previous one and suggests that the settlement agreement must contain such conditions that will allow to make an unambiguous conclusion about its content. The requirement of certainty means the impossibility of formulating the conditions of the settlement agreement with an alternative way (the alternative right of the party or the alternative right to choose the procedure for the execution of the settlement agreement).

So, it is unacceptable to include in the world agreement that the Party transmits specific property, and in its absence it pays cash Or provides services. Violation of certainty a certainty makes it difficult for the compulsory execution of the settlement agreement, and sometimes leads to the impossibility of its compulsion.

For example, refusing to approve the settlement agreement, the court referred to the fact that in the text of the global agreement its condition is presented indefinitely, some points contradict others. Moreover, the plaintiff reserved the right to apply to the Arbitration Court for the compulsory execution of the settlement agreement, taking into account the initial claims. Under such circumstances, the conclusion of the court is justified that the parties have not been reached by the settlement agreement (the dispute was not resolved).

Taking into account all the above, it should be concluded that the settlement agreement should meet the requirements of clarity, unconditional and certainty, which generally constitute a criterion for the execution of the settlement agreement. Compliance with the evidence criterion will allow forced fulfillment of the settlement agreement if it was not voluntarily executed by the parties. An ambiguity in matters of compliance of the global agreement with the requirements of legality, the actual will of the Parties and the wording of its conditions, as P. Eliseikin emphasized, entails either to approve the illegal settlement agreement, or to the impossibility of its compulsory performance.

This is due to the indication of the need for clarity in the formulation of the conditions of the settlement agreement contained in the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of October 31, 1996 N 13 "On the use of arbitration procedure Code Russian Federation When considering cases in the court of first instance, "in which it was noted:" ... the conditions of the settlement agreement ... must be stated clearly and definitely, so that there are no ambiguities and disputes about its content when execution. "

See: Eliseikin P. Judicial Agreements // Soviet Justice. 1968. N 7. S.

In the development of this topic, it is impossible not to mention the problem of partial approval of the settlement agreement, unfortunately, occurring in practice. She detects themselves in cases where the court on his own initiative (and sometimes at the initiative of one of the parties of the settlement agreement) removes its individual conditions from the world agreement submitted by the Parties to the World Agreement, which, in their opinion, do not comply with the laws by law, approving the settlement agreement in the remaining part .

This problem occurs sometimes and when revising the court of cassation instance of definitions on the approval of the settlement agreement. For example, the court of cassation instance, recognizing the condition affiliated in the world agreement on the responsibility of one society to convey to another work and executive documentation (?) It was possible to exclude this item from the definition of the approval of the settlement agreement (Resolution of the FAS of the West Siberian District of October 9, 2006 in case No. F04- 5969/2006 (26416-A81-24)). It is noteworthy that in the ruling of the same court in another case, the opposite (absolutely sure) position is presented: "Since the coordination of the conditions of the settlement Agreement is entrusted with part 2 of Article 138 of the Arbitration Procedure Code of the Russian Federation on the parties, the Arbitration Court is not entitled to exclude any provisions from it or To approve a settlement agreement in part. By virtue of part 5 of article 49 and part 6 of Article 141 of the Arbitration Procedure Code of the Russian Federation, the Arbitration Court does not approve the World Agreement of the Parties, if this contradicts the law or violates the rights of others. Thus, the arbitration court in the absence of deficiencies, provided by part 5 of Article 49 of the Arbitration Procedure Code of the Russian Federation, approves the settlement agreement as a whole. If the settlement agreement as a whole or its individual parts contradict the law, the arbitration court must refuse to approve the settlement agreement, which does not deprive the right of the right to conclude a settlement agreement on other conditions "(Resolution of the FAS of the Wesnosibirsk District of October 5, 2006 in case No. F04-6440 / 2006 (27000-A45-16); see also the resolutions of the FAS of the Moscow District of December 14, 2004 in case N kg-A40 / 11397-04, from August 22, 2005 in case N kg-A40 / 5520-05 ).

Such an amateurness of the court is illegal. In case of detection in the Agreement submitted by the World Agreement, at least one condition that does not comply with the laws by law, the Court may suggest the parties to exclude it from the text of the World Agreement or lead it to the requirements of the law. If you refuse or evade the parties to the implementation of these actions, the court has the right to refuse to approve the settlement agreement as a whole, indicating the definition of the motives for which this condition was recognized as not relevant to the law or criterion of the implement. Thus, the court is not entitled to violate the will of the parties (or one of the parties) of the settlement agreement or exclude certain contractual conditions or change their content: thus the basic principle of civil law will be violated - the principle of the contractivity of the contract (art. Article 1, 421 of the Civil RF). In confirmation of this output, you can refer to the opinion of G.F. Shershevich, who emphasized that the court could not change the terms of the transaction, he was entitled to approve or reject it.

This point of view, and previously spent the author of the present chapter, found confirmation in judicial practice. So, in the ruling of the arbitration court of the cassation is the following: "The essence of the settlement agreement is to refuse judicial protection and resolving the parties themselves by the dispute about the right. Concluding the settlement agreement, the subjects act on their risk and are free in determining the terms of the contract; The court cannot influence the will of the parties, he has the right to approve the settlement agreement or refuse it to be approved "(Resolution of the FAS of the Volga-Vyatka District of March 28, 2006 in case No. A29-12263 / 2005-1 E). See also RESOLUTION FAS of the North Caucasus District of November 28, 2006 in case No. F08-6034 / 2006.

See: Shershevich G.F. Competitive process. M.: Statute, 2000. P. 453.

It should be noted that the decision on the refusal to approve the settlement agreement does not prevent the conclusion of the new settlement agreement and submit it to the arbitration court for approval. Such a norm is directly fixed in Art. 161 of the Federal Law "On Insolvency (Bankruptcy)" and is special, but there are no obstacles to of this right and at the conclusion of the settlement agreement in the claim or at the execution stage.

An important question is whether the judge may refer to the settlement agreement in determining the approval of the settlement agreement, to change some formulations of the conditions of the settlement agreement.

It seems that the judge committed in the World Agreement is entitled to correct, without transferring them to the definition and then to the executive list. However, in relation to lexical and stylistic shortcomings, such an adjustment is unlikely to bring positive results.

In the event that the style of presentation of the conditions of the settlement agreement is such that it makes it difficult to understand the settlement agreement, allows for various interpretations of its conditions (which may have negative consequences In the fulfillment of the settlement agreement), it is permissible to offer parties to formulate the conditions of the settlement agreement. When evading the parties from the execution of this action, the court has the right to refuse to approve the settlement agreement due to its uncertainty capable of creating obstacles at the execution stage (as mentioned above).

In the event that condition formulated by the parties can be interpreted unambiguously, but are not correctly correct from the point of view of Russian rules, it seems that the court is not entitled to offer to the parties to correct the errors admitted by them. In this case, the court sets out the settlement agreement in the definition in the form in which it was concluded by the parties (without bills and corrections).

Having established the obligation to approval of the settlement agreement by the court (paragraph 4 of Art. 139 of the APC; paragraph 3 of Art. 173 Code of Civil Procedure of the Russian Federation; paragraph 4 of Art. 150 of the Federal Law "On Insolvency (Bankruptcy)"; Art. 38 of the Law on Arbitration Courts, p. 3 h. 2, Art. 43 of the Law on executive work), the legislator, in essence, introduced the requirement of his division. In the absence of approval by the judgment of the World Agreement, the latter does not meet the requirements for its form, and cannot be considered as legal fact. In other words, in accordance with Art. Art. 432, 434 Civil Code of the Russian Federation The settlement agreement, which was not submitted to the court for approval or submitted, but in the statement of which the court refused will be an unscheduled contract. This position was reflected in judicial practice: the arbitration court of the cassation instance directly indicated that the global agreement, not approved by the court, did not come into force, and therefore not entails legal consequences.

Direct confirmation of this thesis is contained in paragraph 1 of Art. 161 of the Federal Law "On Insolvency (Bankruptcy)", according to which, in the event of an arbitration court, the definition of a refusal to approve the settlement Agreement is considered an inconclusive.

Thus, the moment of imprisonment of the settlement agreement is the approval by its court, which is issued by the definition; From that moment on, the settlement agreement is recognized as valid.

In paragraph 5 of Art. 150 of the Federal Law "On Insolvency (Bankruptcy)", which establishes that the settlement agreement comes into force for the debtor, competitive lenders and authorized bodies, as well as third parties participating in the World Agreement, from the date approval of the Arbitration Court and is mandatory for the debtor, Competition creditors, authorized bodies and third parties involved in the settlement agreement.

It is important to note that before approval by the court of a settlement agreement, any of the parties may refuse to conclude this contract, and the obligation of the court in this case will be a refusal to approve the settlement agreement. Thus, the Arbitration Court rejected the application for approval of the settlement agreement at the stage of execution of the judicial act due to the refusal of one of the parties to the conclusion of the settlement agreement. The court of cassation, supporting the position of the court of first instance, reasonably indicated that the conclusion of the settlement agreement is the right of the parties, none of them can be coordinated to the conclusion of the settlement agreement.

Resolution of the FAS of the Eastern Siberian District of July 13, 2000 in case N A10-337 / 00-19-F02-1288 / 00-C2.

After approval by the court of a settlement agreement, none of the parties have the right to withdraw the settlement agreement. The right to revocation of the settlement agreement, which is allowed, in particular, in the German process, unfamiliar to the modern domestic legislation and the doctrine. The Russian legal tradition suggests that the judicial global deal, properly witnessed, forever stops the dispute between the parties (or, following the provisions of Art. 1366 of the Charter of civil proceedings, forever ceased to the case). As a result, D.I. noted Azarevich, "the process is considered to be completed and cannot be caused to life even by agreement of the parties; the court must reject any attempt to continue to continue the process."

See: Davtyan A.G. Civic procedural law Germany. Pp. 161. Azarevich D. Judiciation and legal proceedings on civil cases. University course. T. 3: legal proceedings. S. 100. Subsequently, such a point of view was perceived by A.G. Goyhbarg, who specified that the case could neither resumed, neither again (see: Goyakhbarg A.G. Credit Course. P. 206).

Initially, it is necessary to understand that under the definition of "World Agreement" means a document in which all participants without exception trial determined for themselves certain order Settlement of available complaints.

For example, if the subject of the statement It is a need to recover the debt, then the parties may well reach the compromise regarding the forgiveness of part of the debt obligations or the transfer of the plaintiff by the defendant part of its property to debt and so on.

Design is only right, not the responsibility of the parties. The document can be concluded as in solving civil and household disputesand directly during the bankruptcy procedure.

It is allowed to achieve a settlement agreement at any stage of legal proceedings.

For example, without exception, the participants in the process can achieve the desired compromise not only in the decision-making process in the judicial authority, but also during the revision. If the parties expire their desire, it is fashionable to sign the settlement agreement at the execution stage.

The document is formed by the parties in standard writing as a common agreement. Initially you must specify the information Regarding:

  • the name of the document (in this case, the name will be the "settlement agreement");
  • dates and places of his conclusion (where exactly the fact of the signing of the document under consideration).

Main part The document under consideration contains in themselves the entire order of resolving the disputed situation. At the end of the document, the details of each side should be displayed, and after it is assigned to signatures.

The document under consideration is gaining its legal force Immediately after it is approved by the judiciary. For this, it is enough for the parties to provide a corresponding petition in the judicial authority.

In other words, the judicial authority should initially make sure that the formed document does not contradict the current legislation of the Russian Federation and does not violate / inflates someone or rights and interests.

The document under consideration includes several main stages, namely:

In fact, these steps are standard in the formation of a document on any controversial issues. The only difference is to the side of the plaintiff (it may not only be a lender).

The settlement agreement can be signed in cases of such directions, as:

  • labor;
  • civil and so on.

In fact, the document can be formed when solving any question. This is a kind of compromise that allows you to quickly resolve a conflict situation.

As executed

In the event that the signed document after approval in the judicial authority is fully fully voluntarily, it does not arise any additional questions.

One often there are situationsWhen, after approval of the document, one of the parties begins to malletsly shy away from the execution of their obligations prescribed. In this case, the opposite side has legal law contact the judicial authority for receiving executive Sheet.

Based on the received executive list, you can contact territorial department bailiffs For the need for compulsory fulfillment of obligations by a deconance.

Is it possible to terminate

The global agreement is approved exclusively judicial authority, Therefore, one of the parties has the legal right to react with the appropriate complaint against the court decision. In other words, submit an appeal.

If, when issuing a court decision, there was a violation of regulatory acts, then the higher judicial body has all the grounds for the transfer of the case for re-consideration.

Based on this, the so-called complaint is submitted not to the document itself, and not the solution judicial authoritywhich approved the contract. The compiled complaint should be filed in the same period as other court decisions. Other words are served for 15 days, and cassation - no later than half a year from the moment of the decision of the court decision.

The procedure for the consideration of the application on the development of the global treaty includes In yourself:

  • disputes regarding the termination of the document, which are considered by the Arbitration Court, which is considering court cases regarding bankruptcy;
  • a formed statement regarding the termination of the document under consideration should be signed by a competitive lender or other authorized authority, the requirements of which are not fulfilled by the debtor's condition on the terms of the global treaty or with respect to other requirements that violated conditions;
  • if there is a submission to the arbitration court of the appropriate application regarding the issue of termination of the document, the judge will be made to the definition of the meeting on termination of the contract signed earlier;
  • according to the results of the consideration of the submitted statement by the court will be made decision, the execution of which is mandatory (and it is important to remember that its repeated appeal May be on the basis of the Arbitration Procedure Code of the Russian Federation).

If there is a refusal to meet the requirements specified in the submitted statement regarding the termination of the previously signed global treaty, the court will decide the appropriate solution with all the necessary explanations.

What nuances should be known about

According to current legislation, announced the document is impossible. For this reason, you only need to form a statement regarding the wrongful decision of the court decision on this issue.

If the document is accepted in a clear accordance with regulatory acts RF, then suspend the Agreement will already be impossible.

In the process of forming a global contract be sure to remember It is about to categorically allow any typos or inaccurate information is key to refusal this document judicial authority.

Necessity

Speaking of the need for the signing of a global contract, then everything is quite trite here - peacefully solve the disputed situations.

For example, the parties can come to a mutual solution relative to the debt repayment algorithm (debt repayment scheme for months).

In other words, the trial may continue for a long time, which is unprofitable for both parties, since this will additionally entail financial expenses. The signing of the agreement avoids many bureaucratic procedures and save not only time, but also equity.

Sign or not a global agreement in court? The answer to this question is in this video.

The settlement agreement is an agreement on the termination of a judicial dispute based on a mutual agreement. Concluding the settlement agreement, the parties may foresee the procedure for distribution judicial expenditures, as well as expenses to pay for a lawyer, paying duties, etc. The settlement agreement can conclude not only during judicial trial, but also at other stages of the process - when considering the case of cassation instances, at the stage of execution of a court decision. Sometimes the settlement agreement is mistakenly identified with a pre-trial settlement of the issue. The settlement agreement is actually judicial decisionAnd it must be coordinated with the court.

The possibility of resolving the dispute through the settlement agreement is found out by the judge at the stage of preparation of a case for trial.

The control of the legality of the settlement agreement is assigned to the court, he approves the settlement agreement if it does not contradict the law or violates the rights and the laws protected by law of others. The conditions of the settlement agreement set forth in the court session are verbally, are entered into the minutes of the court session and are signed by both parties. The global agreement presented in writing must be attached to the case. When approving the World Agreement, the court makes a definition of the termination of the proceedings in which the settlement agreement is concluded.

The settlement agreement must contain the following items:

  • the name of the court in which the case is considered;
  • name and props of the claim;
  • list of participants in the case and their representatives by proxy;
  • the claimed claimant claims, and the counterclaim, if it is presented;
  • the list of requirements for which each part agrees;
  • a list of actions to execute the plaintiff, defendant and third parties, and their deadlines;
  • the distribution method between the parties of the trial incurred by them legal costs on business;
  • in the completion of the text of the World Agreement, it should be noted that the parties ask the court to approve the settlement agreement, and the proceedings are discussed, as well as the consequences of the termination of the proceedings in connection with the conclusion of the settlement Agreement, the parties are explained and understandable.

It is important to note that in the world agreement is not allowed to indicate any obligation of the participants in the judicial process that is not associated with the subject of the considered dispute.

Advantages of imprisonment of the settlement agreement in the Arbitration Court:

  • After the conclusion of the World Agreement, the plaintiff from federal budget Half of payment is returned state dutyExcept if the settlement agreement is concluded in the process of execution of the judicial act of the Arbitration Court.
  • Completion of the case by the World Agreement saves the Parties and Finance.
  • The settlement agreement comes into force immediately and subject to immediate execution Parties.
  • The definition of the termination of the proceedings is not subject to appeal, but can be appealed in the arbitration court of cassation instance.
  • The settlement agreement is fulfilled by persons voluntarily in the manner and within the deadlines provided for by this Agreement. If the settlement agreement does not fulfill voluntarily, the court decision is subject to forced execution Based on the executive list issued by the Arbitration Court at the petition of the person who has concluded the settlement agreement.

The disadvantages of the settlement agreement include what signing it, the parties agree that there are no more claims associated with this situation to each other. And, therefore, it is no longer possible to apply to court with additional requirementshow to present a claim for the recovery of a penalty and compensation moral harm other.

In the Reutov City Court of the Moscow Region

143969, Moscow region,

mr. Reutov, Jubilee Avenue, 56

Plaintiff:

Ivanov Ivan Ivanovich

Respondent:

LTD _____________

World Agreement

In order to terminate the dispute in case No. ________, the plaintiff and the defendant on the basis of Articles 39, 101, 173 of the Code of Civil Procedure of the Russian Federation concluded a settlement agreement on the following:

  1. The plaintiff refuses all claims for the defendant.
  1. The defendant undertakes no later than 20 May 2015 to transfer the plaintiff to the object of equity construction (hereinafter - the apartment), located at the address: __________________________, cadastral number land plot __________, Corps _____, section _____, _____ floor, number on site 4, Conditional number ______, area ___ sq. m., the right to receive which is available at the plaintiff in accordance with the Treaty No. _________ from __________, registered management Federal Service state registration, Cadastre and cartography on the Moscow region on July 24, 2013, entry to EGRP № _________________ (hereinafter referred to as a matter of participation in equity construction).
  1. The plaintiff undertakes to take an apartment no later than _____ 2015.
  1. The defendant undertakes no later than June 12, 2015 to pay the plaintiff for a violation of the term of transfer of an apartment provided for in agreement No. ___________ of June 3, 2013, for the period from 01.12.2014, on the date of acceptance of the claimant, the apartment, a penalty in the amount of ____________________________________________________________________________________ € rubles for the following details:

recipient - _________________________________________,

payee's bank - __________________________________,

Recipient account number - _________________________,

k / sch of the recipient bank - ________________,

Beach of the recipient bank - _______________.

  1. The deadlines for the defendant by the defendant stagnation, indicated in paragraph 4 of this world agreement, are proportionally extended for the period of delay in the adoption of the apartment by the plaintiff.
  1. From the moment of entry into force of this global agreement, the plaintiff does not have and will not have any demands and claims related to the defendant, related to the defendant directly or indirectly with the delay in the expansion of the plaintiff in accordance with the participation agreement in shared construction.
  1. In the event of a violation by the defendant of the timeline of the penalty, provided for in paragraph 4 of this world agreement, the defendant additionally pays a fine of 75,000 (seventy-five thousand) rubles for one working day after the post of payment, excess of the amount of the penalty specified in paragraph 4 of this World Agreement .
  1. The parties agreed that the provisions of this Agreement, as well as the fact of its conclusion, are confidential information. The transfer of such information to third parties is possible only upon receipt of consent to such a transfer by the transmitting party from the other side under this Agreement.
  1. Judicial expenses, expenses for payment for representatives and any other expenses of the parties related directly and / or indirectly with the case on the specified claim, the parties are not reimbursed by each other and lie exclusively on the side that suffered them.
  1. The settlement agreement was drawn up in 3 copies, one for each side and for the Reutov City Court of the Moscow Region.

11. The settlement agreement comes into force after its approval by the Reutov City Court of the Moscow Region.