Attraction of the customer as a third party. Cassation analyzed the impact of third-party attractions without independent claims

Arbitration Court of the Republic of Buryatia

Ul. Communist, 52, Ulan-Ude, 670001

e-mail: [Email Protected], Web-site: http://buryatia.arbitr.ru

Name Russian Federation

DECISION

The Arbitration Court of the Republic of Buryatia as part of Judge Marhayeva G.D.-S., when conducting a trial of the court session, secretary of Gulgenova E.B., examined in the open court session case on the application of the Limited Liability Company "IRS" (OGRN 1080326011919, TIN 0323343020) to the territorial body Federal Service to supervise the health sector in the Republic of Buryatia on the abolition of the decision on the case of administrative offense №16 of May 19, 2015,

with participation in the meeting:

applicant: Vanchikova I.S. Representative by proxy from 1.06.2013, Erdyneva S.P. Representative by proxy of 1.10.2015,

respondent: Sambieva I.A. Representative by proxy of January 11, 2015, Polhonova V.E. Representative by proxy of January 11, 2016, Guruleva G.V. Representative by proxy of 01/12/2016,

third Party: Swampoeva T.A. Representative by proxy of 03/25/2015,

installed:

Limited Liability Company "IRS" (hereinafter - LLC IRS, Society) to the territorial body of the Federal Service for Supervision of Health in the Republic of Buryatia (hereinafter referred to as Roszdravnadzor) on the abolition of the decision on the case of an administrative offense No. 16 of May 19, 2015 .

On October 7, 2015, the definition of the court the above statement was made to be proceeding with a simplified procedure.

November 2, 2015 by definition, the court switched to the consideration of this case on general rules administrative production.

December 3, 2015 by the definition of a court to participate in the case as a third party who does not claim independent requirements Regarding the subject of the dispute, the Ministry of Health of the Republic of Buryatia (hereinafter referred to as the Ministry) was attracted.

Representatives of the applicant at the court hearing supported the stated requirements and explained that the contested ruling is illegal and is subject to cancellation. Roszdravnadzor did not participate in the inspection and he does not have authority to draw up a protocol on an administrative offense. The Company did not violate the existing rules, since recipes for drugs included in the minimum range of medicines are serviced within a period not exceeding five working days from the moment of circulation of the patient in the pharmacy organization. The evidence obtained as a result of the inspection cannot serve as evidence of an administrative offense, due to the fact that the subject of verification is the presence of drugs not included in licensing requirements. About the time, the place of consideration of the case of an administrative offense, the Company was not notified. Approacited to restore the missed deadline in view of the fact that the appealed by the resolution became known only on September 23, 2015 from the bailiff. The Company made a request for the post office, from which it follows that an employee of the notice of postal departments to the Company did not deliver society asked to satisfy the stated requirements, cancel the contested decision.

Representatives of Roszdravnadzor at the hearing declared requirements were not recognized, explained that the contested ruling is legitimate and reasonable. The company does not provide a minimum range of drugs required to provide medical careWhat was admitted to an administrative offense, provided for by part 1 of the article of the Codex of the Russian Federation on Administrative Offenses. The presence in the actions of the company of the accumulated administrative offense is confirmed by the materials of the case. About the time, place of drawing up the protocol, consideration of an administrative offense case, the Company was properly notified, which is confirmed by registered letters with marks on the expiration of the storage period, the absence of the address at the specified address. On envelopes there are marks about trying to give the letter. The procedure for attracting society to administrative responsibility Complied with. They asked to leave the contested decree, refuse to satisfy the stated requirements.

A third person representative considers the claimed requirements to be illegal and inexpret satisfaction. Compliance check licensed requirements Under exercise pharmaceutical activity With regard to the Company, a ministry was conducted taking into account the requirements of the current legislation within the credentials provided. During the inspection, disorders were revealed in terms of the absence of drugs in the pharmacy, which are included in the mandatory minimum range of drugs necessary to provide medical care, which is an administrative offense, provided for by part 1 of the Codex of the Russian Federation on administrative offenses. Since Roszdravnadzor is authorized to consider cases on the specified article, then the test materials were sent to him for consideration. The direction of verification materials was indicated in the act of verification, as the representative of the Company was acquainted.

As follows from the case file, LLC IRS is registered as a legal entity.

March 5, 2015 official The ministries issued an order to hold a planned audit in relation to the Company in order to fulfill control measures for 2015 (ld.34-36).

The following orders were assigned persons authorized to conduct the inspection - Halbaeva L.G., Swampoeva T.A., determined the timing of the inspection from March 24, 2015 to March 25, 2015.

In the period from March 24, 2015 to March 25, 2015, the officials of the ministry in relation to society carried out a planned verification, as compiled an act of inspection No. 293 (LD 21-28).

The named act was established that the minimum range of drugs needed to provide medical care does not comply with the requirements of the Order of the Government of the Russian Federation of December 30, 2014 No. 2782.

So, in the pharmacy at the time of checking there are no drugs: bisacodil suppositories, rectal, tablets, hydrochloride pills, co-trimaksazol suspension for intake, oseltamivir powder for cooking suspension for intake or capsules, chloropiramine pylocarpine pylocarpine chloropiramine.

On March 27, 2015, the Ministry sent the materials to Roszdravnadzor to address the issue of attracting a public to administrative responsibility provided for in paragraph 1 of Article 14.4.2 of the Codex of the Russian Federation on Administrative Offenses.

On April 1, 2015, time, place (April 9, 2015, 16 hours 00 minutes) was appointed (April 9, 2015 for 16 hours) compilation of a protocol on the administrative offense, provided for by part 1 of Article 14.4.2 of the Code of Administrative Offenses (LD 56).

April 9, 2015 state inspector The department of control and supervision in the field of health care of Roszdravnadzor for the company was drawn up a protocol on the administrative offense, provided for by part 1 of Article 14.4.2 of the Code of Administrative Offenses (ld59-61). The protocol was drawn up in the absence of representatives of the Company.

On April 17, 2015, time, place (April 27, 2015 at 11 o'clock 00 minutes) is scheduled for the definition of the Official of Roszdravnadzor (April 27, 2015) on an administrative offense company (ld63).

On April 27, 2015, the definition of an official of Roszdravnadzor's consideration of an administrative offense case with respect to the Company was postponed on May 19, 2015 for 11 hours 00 minutes (ld65).

On May 19, 2015, by Resolution of the head of Roszdravnadzor LLC IRS was found guilty of committing an administrative offense, provided for by part 1 of Article 14.4.2 of the Code of Administrative Offenses, expressed in violation of the established rules wholesale trade drugs and order retail Medicinal preparations. Society has been punished in the form of a fine of 20,000 rubles. The decision was submitted in the absence of a representative of the Company.

Disagreeing with a decree on the case of an administrative offense, LLC IRS appealed to the court with this statement.

After examining the proof presented, the court comes to the following conclusions.

Regarding the term for appealing the decision of Roszdravnadzor in the case of an administrative offense, the court takes into account the following.

In accordance with part 2 of Articles section III. Production in the arbitration court of first instance on cases arising from administrative and other public relations\u003e Chapter 25. Consideration of cases of administrative offenses\u003e § 2. Consideration of cases of disposal of decisions of administrative bodies on attracting administrative responsibility\u003e Article 208. Application for challenging decision administrative authority On attracting administrative responsibility "target \u003d" _ blank "\u003e 208 arbitration procedure Code Of the Russian Federation, a statement on challenging the decision of the administrative authority on attracting administrative responsibility can be filed to the Arbitration Court within 10 days from the date of receipt of a copy of the contested decision, unless otherwise established by federal law.

Part 2 of the articles of the Arbitration Procedure Code of the Russian Federation, it was determined that the Arbitration Court restores a missing procedural term if the causes of the skipping is respectful.

Since the legislator did not establish any criteria for determining the reasons for skipping the specified period, this issue is resolved taking into account the circumstances of the case at the discretion of the court.

As follows from the case file, the decree is challenged under this case is made by the service of May 19, 2015.

IRS LLC appealed to the court with this statement on October 2, 2015, that is, with the pass, established to appeal to the court for appealing the contested resolution.

In the case under consideration, the company stated a petition for the restoration of the missed deadline for submitting an application for challenging the above-mentioned resolution.

The substantiation of this petition is indicated that the appealed by the decision was received by the Company on September 23, 2015. On the existence of the contested resolution, the applicant became known from the bailiff of the Contractor. The appealed by the decision was not received by the Company, since the employee of the post office was not given notice to the arrival of letters, which is confirmed by the answer of the Ulan-Ude Post Office.

According to the legal position of the Constitutional Court of the Russian Federation, set out in the definition of 18.11.2004 No. 367-o, in itself, the establishment of deadlines in the law to appeal to the court with statements on the recognition of abnormative legal acts invalid, and decisions, actions (inaction) illegal is due to the need ensure the stability and certainty of administrative and other public legal relations and cannot be considered as violating the right to judicial protection, since non-compliance established period By virtue of the relevant norms of the Arbitration Procedure Code of the Russian Federation, it is not grounds for refusing to accept applications for cases arising from administrative and other public relations. The question of the causes of the passage of the term is solved by the court after the initiation of the case, that is, at the court hearing.

At the same time, specific criteria for determining respect for the causes of the duration of the term was not established, the restoration of the permitting of the administrative authority missing on attracting the term is the right of court and is solved by it, taking into account the specific circumstances of the case.

In the meaning of the legal position, contained in paragraph 2 of the motivation part of the decision of the Constitutional Court of the Russian Federation of March 17, 2010, N 6-P, the legislative regulation of the term restoration should ensure the proper balance between the provision of the Constitution of the Russian Federation legal definition and the right to a fair trial involving a legitimate and reasonable judicial decisionSo that the restoration of the missed deadline could take place only for a period limited to the reasonable limits and in the presence of significant objective circumstances that did not allow the interested person to seek his recovery, to protect their rights within the framework of the established procedural term.

In accordance with the article of the Arbitration Procedure Code of the Russian Federation, the task of legal proceedings in arbitration courts is to ensure the availability of justice in the field of entrepreneurial and other economic activity.

Taking into account the above circumstances, the court finds the applicant's reasonable arguments to substantiate respect for the reason for the ability to challenge the decree on the appointment of administrative punishment, and as a result, recognizes the causes of the term of the term respectful, in connection with which the petition declared by society is subject to satisfaction.

At the same time, making a conclusion about the need to restore the applicant's missing term to appeal against the decision of Roszdravnadzor, the court takes into account that the administrative body of any evidence of the applicant's refuting position on the late receipt of the contested decree is not represented. On the contrary, from the response submitted by Roszdravnadzor to the request of the Ulan-Ude Post Office also follows that the notice of postal shipments was not delivered to society, because at the specified address there is a pharmacy "Evalar".

In accordance with part 6 of Articles section III. Production in the arbitration court of first instance on cases arising from administrative and other public legal relations\u003e Chapter 25. Consideration of cases of administrative offenses\u003e § 2. Consideration of cases of challenging the decisions of administrative bodies on attracting administrative responsibility\u003e Article 210. Judicial proceedings on cases of challenging the decisions of the administrative bodies "target \u003d" _ blank "\u003e 210 of the Arbitration Procedure Code of the Russian Federation when considering the case on challenging the decision of the administrative authority on attracting the arbitration court at the court hearing checking the legality and validity of the disputed decision, establishes the existence of the appropriate authority of the administrative authority The contested solution establishes whether legal grounds had to attract administrative responsibility, whether the established procedure for bringing to responsibility did not expire for limitation Attracting administrative responsibility, as well as other circumstances that are important for business.

Part 4 of the above article found that, on cases of challenging the decisions of administrative bodies on attracting administrative responsibility, the obligation to prove the circumstances that served as the basis for bringing to administrative responsibility is assigned to the administrative body that has accepted the contested decision.

Part 7 of Articles section III. Production in the arbitration court of first instance on cases arising from administrative and other public legal relations\u003e Chapter 25. Consideration of cases of administrative offenses\u003e § 2. Consideration of cases of challenging the decisions of administrative bodies on attracting administrative responsibility\u003e Article 210. Judicial proceedings on cases of The challenges of the decisions of the administrative authorities "target \u003d" _ blank "\u003e 210 of the Arbitration Procedure Code of the Russian Federation established that when considering a case on challenging the decision of the administrative authority, the arbitration court is not related to the arguments contained in the application, and checks the challenge solution in full.

In fulfillment of the requirements of part 6 of the article section III. Production in the arbitration court of first instance on cases arising from administrative and other public legal relations\u003e Chapter 25. Consideration of cases of administrative offenses\u003e § 2. Consideration of cases of challenging the decisions of administrative bodies on attracting administrative responsibility\u003e Article 210. Judicial proceedings on cases of Challenges the decisions of the administrative authorities "target \u003d" _ blank "\u003e 210 of the Arbitration Procedure Code of the Russian Federation, checking compliance with the administrative body of the procedure for attracting IRS LLC to administrative responsibility under Part 1 of the Russian Federation, the arbitration court established the following.

By virtue of Part 1 of the article of the Codex of the Russian Federation on Administrative Offenses, the person attracted to administrative responsibility cannot be subjected to administrative punishment Otherwise, both on the grounds and in the manner prescribed by law.

From the above rule procedural law It follows that the person can be attracted to administrative responsibility only subject to the procedure for the proceedings on the administrative offense case.

With regard to the case under consideration, Roszdravnadzor, such an order of production was violated, which was expressed in the absence of appropriate (permissible) evidence of the notice of the legal representative of LLC IRS on the time and place of consideration of the administrative case.

Based on part 1 of the article section IV. Production on Administrative Offenses\u003e Chapter 25. Participants of the Production Affairs of Administrative Offenses, their Rights and Responsibilities\u003e Article 25.1. The person in respect of which proceedings in the case of an administrative offense "target \u003d" _ blank "\u003e 25.1 Code of Administrative Code of the Russian Federation, a person in respect of which proceedings on an administrative offense are being carried out, it is entitled to get acquainted with all the materials of the case, give explanations, to submit evidence to declare applications and taps, enjoy the legal assistance of the defender, as well as other procedural rights in accordance with this Code.

Part 2 of the same article provides that the case of an administrative offense is considered with the participation of a person in respect of which proceedings in the case of an administrative offense. In the absence of this person, the case can be considered only in cases provided for by part 3 of Article 28.6 of this Code, or if there are data on the appropriate notice of the face about the place and time of consideration of the case and if the person did not receive a petition for postponement of the case or if such a petition was left without satisfaction.

In accordance with Part 1 of Article 6, the protection of the rights and legitimate interests of a legal entity in respect of which the proceedings on the administrative offense, or a legal entity, which is the victim, carry out its legal representatives.

By virtue of Part 3 of Article RF, the case of an administrative offense, a committed legal entity, is considered with the participation of his legal representative or defender. In the absence of these persons, the case can be considered only in cases provided for by part 3 of Article 28.6 of this Code, or if there are data on the appropriate notification of persons about the place and time of consideration of the case and if they did not receive a petition for postponement of the case or if such a petition is left without satisfaction.

According to paragraph 4 of Part 1 of the Article Article, when considering an administrative offense case, it turns out whether participants in the proceedings in the case are notified installed mannerThe reasons for the failure to appear participants in the proceedings and decides on the consideration of the case in the absence of these persons or about the depositing of the consideration of the case.

Thus, from the above rules it follows that when considering a case on an administrative offense, the administrative body is obliged to find out whether the person attracted to administrative responsibility is notified about the place and time of consideration of the case.

Consideration of the case in the absence of this person is possible only if there are data on its proper notice of the place and time of consideration of the case. Otherwise, the consideration of the case must be postponed.

According to the position of the administrative authority about the time, the place of consideration of an administrative offense case, the Company was notified properly, as evidenced by the registered letter No. 67000085080466 of April 29, 2015 with information about time, place (May 19, 2015 for 11 hours 00 minutes) With a mark on the absence of a destination at the specified address.

User relationships with postal service and public postal operators in the conclusion and execution of the contract for the provision of postal services, as well as the rights and obligations of these operators and users settled by the Order of the Ministry of Communications of Russia dated July 31, 2014 N 234 "On approval of the rules for providing postal service services" (hereinafter referring to the provision of postal services).

Paragraph 32 of the above-mentioned rules determined that postal sections (postal transfers) are delivered (paid) in accordance with the addresses specified on them or are issued (paid) in postal communication facilities.

The order of delivery of postal shipments (postal transfer payments) to a legal entity is determined by the contract between him and the postal service operator.

By virtue of paragraph 34 of the Rules for the provision of postal mail services and postal transfers If it is impossible to provide them (payments) to the addressees (their authorized representatives) are stored in postal objects within 30 days from the date of the post office entry into the postal communication object. The deadline for storing mail and postal transfers can be extended by the sender or addressee (its authorized representative).

When the destination of the destination for mailing and postal transfer within 5 working days after the delivery of the primary notice is delivered to it and a secondary notice is provided under receipt.

Not received by the addresses (their authorized representatives) registered mails and postal transfers are returned to senders for their account in the reverse address, unless otherwise provided by the contract between the postal service and user.

In turn, on the basis of paragraph 35 of the same rules, the postal or mail transfer is returned to the reverse address: according to the sender's application; when refusing to the addressee (his authorized representative) from its receipt; in the absence of a destination at the specified address; If it is impossible to read the addressee address; Under circumstances, eliminating the possibility of executing the postal service by the employee under the contract for the provision of postal service, including the absence of the address specified on the sending address of the addressee.

The provisions are set by the rules for the delivery of mail correspondence, according to which the possibility of delivery to the addressee of two notices is provided.

Thus, only with the actual direction, the addressee of two notices should be recognized that the procedure established above the procedure for the provision of a postal service procedure and only subject to the specified procedure should be recognized that the addressee is considered to be notified of that or in a different action.

Nevertheless, in the case under consideration, the rules for the delivery of postal correspondence, in particular the primary and secondary notice to the Company not complied with, which allows to recognize the established fact of the unchec of society, its legal representative about the time and place of consideration of the case of an administrative offense.

So, from the case files available in the case structural unit Ulan-Ude Post Office UFPS of the Republic of Buryatia - branch of FSUE "Post of Russia" of November 30, 2015 No. 01-17-3-25 / 2057, dated December 14, 2015 101.1.171- 31/2162 follows, including A letter No. 67000085080466 of April 29, 2015 was enrolled in the post office of Ulan-Ude 670031 April 30, 2015. On the same day (April 30, 2015), on May 5, 2015, notifications were discharged and transferred to the delivery post.

However, from explanations of the employee of the post office, it follows that notifications for postal departments were not delivered, because at the specified address is the pharmacy "Evalar". The inscription LLC "IRS" is located on the sign of the mode of operation and is indicated in very small font. Until September 2015, all letters were returned to senders, the notifications of the form 22 were not delivered.

Considering the above, the court is forced to recognize that the case of the case did not prove the fact of the notice of the Company, its legal representative about the time and place of consideration of the case of an administrative offense.

The above circumstances of the administrative authority were not taken into account and the case was considered in the absence of evidence of appropriate notification of LLC IRS

Failure to meet the rules for the provision of postal services, and as a result, an uninuncing of society about the time, the place of consideration of the case is essential violations, since the person involved in administrative responsibility was deprived of the possibility of implementing guaranteed Administrative Code of the Russian Federation.

In the presence of significant violations made by the administrative authority in the work on the administrative offense, the applicant's claims are subject to satisfaction regardless of the presence or absence of an administrative offense in the actions of the person involved in administrative responsibility.

There are no other evidence to come to the conclusion that the materials of this case do not contain.

Violations admitted by the administrative authority - an uninuncing of society about the time, the place of consideration of the administrative case, in the opinion of the court, of course, testifies to the illegality of the decision on the case of an administrative offense No. 16 of May 19, 2015.

In accordance with part 2 of Articles section III. Production in the arbitration court of first instance on cases arising from administrative and other public legal relations\u003e Chapter 25. Consideration of cases of administrative offenses\u003e § 2. Consideration of cases of challenging decisions of administrative bodies on attracting administrative responsibility\u003e Article 211. Decision of the Arbitration Court of the case On challenging the decision of the administrative authority on attracting administrative responsibility "target \u003d" _ blank "\u003e 211 of the Arbitration Procedure Code of the Russian Federation in case, when considering an application for challenging the decision of the administrative authority, the arbitration court will establish that the contested decision or order of it adoption does not comply with the law or there are no grounds for bringing to administrative responsibility or applying a specific responsibility measure, or the disputed decision taken by the authority or an official with exceeding their powers, the court The decision on recognizing illegal and on the abolition of the contested solution is completely or in part or on the change of decision.

Guided by articles -, section III. Production in the arbitration court of first instance on cases arising from administrative and other public legal relations\u003e Chapter 25. Consideration of cases of administrative offenses\u003e § 2. Consideration of cases of challenging decisions of administrative bodies on attracting administrative responsibility\u003e Article 211. Decision of the Arbitration Court of the case On challenging the decision of the administrative authority on attracting administrative responsibility "target \u003d" _ blank "\u003e 211 of the Arbitration Procedure Code of the Russian Federation, the Arbitration Court

I DECIDED:

The stated requirements of the Limited Liability Company "IRS" (OGRN 1080326011919, TIN 0323343020) to satisfy completely.

Recognize illegal and cancel the resolution of the territorial body of the Federal Service for Health Supervision in the Republic of Buryatia dated May 19, 2015 in the case of administrative offenses No. 16 in relation to the Limited Liability Company "IRS".

The decision of the present case enters into legal force after ten days from the date of its adoption, if the appeal is not submitted. If the appeal is submitted, the decision, if it is not changed or not canceled, enters into force from the date of the adoption of the decision by the Arbitration Court of the appellate instance.

The decision may be appealed to the fourth Arbitration Court of Appeal for 10 days from the date of adoption (manufacturing it in full).

The appeal is applied to the arbitration court of appeal through the arbitration court, which decided.

Judge Dn. Marhaeva

Court:

As of the Republic of Buryatia

Plaintiffs:

LLC IRS (TIN: 0323343020 OGRN: 1080326011919)

Respondents:

Federal Health Supervision Service (Roszdravnadzor) Territorial body Federal Health Supervision Service in the Republic of Buryatia (TIN: 0326031149 OGRN: 1060326020523)

The judicial practice was studied and analyzed on the basis of the influence of attracting third parties to participate in the case, which do not claim independent claims regarding the subject of the dispute, reported in the court's materials.

Statistical data of the FAS software indicates that 16% of cases considered with the involvement of third parties that do not declare independent claims regarding the subject matter of the dispute, including foreign persons.

In accordance with Article 51 of the Arbitration Procedure Code of the Russian Federation, third parties, who do not declare independent claims regarding the subject of the dispute, can enter into a case on the side of the plaintiff or the defendant before the adoption of a judicial act, which endes the consideration of the case in the first instance of the Arbitration Court, if this judicial act It may affect their rights or responsibilities towards one of the parties.

The Institute of Third Parties allows in a single trial to protect the rights and legitimate interests of the participants of different, but at the same time related legal relations. The main feature of participation in the process of third parties is that they help the plaintiff or defendant in protecting their interests, ensuring their future protection. In addition, the opportunity to participate in the law arbitration process third parties is additional warranty To protect the rights and legitimate interests of the participants in the economic turnover.

The purpose of the participation of third parties without independent claims regarding the subject of the dispute is to prevent adverse effects for them in the future, and their interest in the case is both procedural and logistical nature. Procedural interest is in the desire of third parties through the assistance of this or that side to achieve a positive decision (other act) in favor of this party. At the same time, to attract into the process, these persons should have brightly pronounced material interest on the future. After the permission of the case by the court in third parties, which do not declare independent requirements may arise, change or stop material and legal relations with one of the parties.

The main rules associated with the procedure for entering into the process and participation in it by third parties that do not declare independent claims for the subject of the dispute are enshrined in Article 51 of the APC RF.

First, the initiative of the entry into the process of third parties without independent claims can belong to themselves: they are submitted to the arbitration court a statement of entry into business. In this statement, they must indicate the circumstances that the future judicial act can affect their rights or responsibilities relative to one of the parties in the process already begun. In fact, the statement should indicate such circumstances that, being established by the court in the present process, could play the role of prejudicially established facts (Article 69 of the APC RF) or in a process initiated by a third party himself in relation to one of the parties, or in the process, Where such a third party can act as a defendant.

Secondly, if the initiative in attracting such subjects belongs to the parties, they submit a petition for attracting specific subjects as third parties, motivating that the future judicial act may affect the rights or obligations of such a subject in relation to the side that declares the petition , or in relation to the other side.

Thirdly, if the initiative to attract third parties that do not declare independent claims belongs to the Arbitration Court, the court makes the definition of attracting specific subjects into the process. Such a definition should be motivated and circumstances confirming that the future judicial act of the Arbitration Court may affect the rights and obligations of third parties in relation to one of the parties in the case. This provision illustrates the difference in the procedural position of third parties without independent claims from the status of third parties with independent requirements. By virtue of the principle of the disposition of third parties with independent requirements, they can join the process only on their own initiative, since only the decision of the need to protect their subjective rights or interests themselves depends on the subjects of the entrepreneurial (other economic) activity.

Fourth, the introduction or involvement of third parties that do not declare independent claims, the process is issued by the definition of the Arbitration Court. Upon admission to the court of a third party or petition of the parties to the court, checking it, solves the issue of third-person entry into RF).

Fifth, modern arbitration procedural legislation Recognizes third parties that do not declare independent claims, full-fledged subjects of evidence. They enjoy the same rights and obligations as the parties in the process, with the exception of the right to change the basis or object of claim, an increase in or decrease in the amount of claims, refusal of the claim, recognition of the claim or the conclusion of the settlement agreement, the presentation of the counterclaim, the requirement forced execution Judicial act (part 2 of Article 51 of the APC RF).

Sixth, with a third party entry into the process after the start judicial trialThe consideration of the case in the first instance begins again: a preliminary meeting should be held, after which the meeting is appointed. This is necessary so that all persons participating in the case can prepare their arguments and considerations on the circumstances of the case, taking into account the presence in the process of additional participants (part 4 of article 51 of the APC RF).

1. When considering disputes on the recognition of the right to unauthorized construction, it should be involved in the case as a third party who does not declare independent claims for the subject of dispute, the Office of the Federal Registration Service.

Analysis of judicial practice on the recognition of the right to unauthorized construction showed that the courts attract to participate in the case of the registering authority as a third party who does not declare independent claims regarding the dispute subject

Given the subject of claims, as well as the fact that when satisfying the requirements on the basis of a court decision, the right to register the right to object of real estate, attracting a registering authority to participate in the case should be recognized as reasonable and appropriate, despite the lack of the last direct interest in the object.

Regardless of the permission of the question of attracting participation in the case as a third party of the registering authority, it seems necessary receipt Information about the presence of registered rights and encumbrances both on land and real estate objects located on this land plot.

Since the recognition of ownership of the unauthorized construction, based on the norms of Article 222 of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation), was addressed to the lack of violations of rights and protected by the law of interests of other persons, the availability of information on registered rights and burden on the land plot and Located real estate objects will ensure the possibility of protecting the rights and interests of other persons who, when establishing those, are subject to attracting participation in the case.

2. Third parties who do not declare independent claims regarding the subject of the dispute are entitled to require compensation to them judicial expenditures Only in connection with the appealing of the judicial act. At the same time, the judicial act on the complaint should be adopted in favor of the plaintiff or defendant accordingly, on the side of which the third party entered into the case.

In accordance with Part 1 of Article 110 of the APC RF, the court costs incurred by persons participating in which the judicial act is adopted, are charged with an arbitration court from.

Third parties who do not declare independent claims regarding the subject of the dispute, in contrast to third parties, claiming such requirements, cannot be considered as a person in favor of which a judicial act is being taken. Nevertheless, they are interested in the case, since the adopted judicial act may affect their rights or responsibilities in relation to one of the parties to the controversial relationship.

In accordance with Part 2 of Article 51 of the APC RF, such third parties enjoy the procedural rights and carry the procedural responsibilities of the parties, with the exception of a number of rights. Among the rights that cannot be implemented by third parties that do not claim independent claims, the right to reimburse judicial expenses is not specified. When appealing the judicial act, the third party is actively involved in the process and protects its rights affected by the appealed judicial act. From the system interpretation of part 1 of article 41, part 2 of article 51, part 3 of Article 271 of the APC RF, it follows that the court costs for the payment of services incurred by third parties who do not claim independent claims regarding the subject of the dispute, in connection with the appealing of judicial acts may be Reimbursed according to the rules of chapter 9 APC RF. In addition, this provision follows from paragraph 14 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of 05.12.2007 No. 121 "A review of judicial practice on issues related to the distribution between the parties to court costs for the services of lawyers and other persons acting as representatives in Arbitration Courts. "

The arbitration court when considering the requirements for reimbursement of court costs, referring to Part 1 of Article 110 of the APC RF, proceeded from the fact that third parties that do not claim independent claims regarding the subject of the dispute can be considered as a person in favor of which a judicial act is taken only in the case of presenting and satisfying fully or partially their cassation complaint.

Thus, the third person who does not claim independent claims regarding the subject of the dispute may require compensation of court expenditures only if the costs were incurred in connection with the appealing of the judicial act, provided that the judicial act on the complaint was adopted in favor of respectively plaintiff or defendant, Party whose third party entered into business.

This conclusion corresponds to the position of the Presidium of the Supreme Arbitration Court of the Russian Federation, set out in the decision of 22.06.2010 No. 11839/09 in case No. A27-2981 / 2008-5. If the third person who does not declare independent claims has not appealed against the case file acts, it cannot be recognized as a person who has the right to reimburse the legal costs incurred by him in connection with the participation in the consideration of this case. The interest of the third person who does not declare independent claims is not the basis for reimbursement in this case of legal costs.

3. Considering cases initiated on the basis of lawsuits, statements of other persons related to violation of antitrust laws, the Arbitration Court should notify the antimonopoly authority to ensure the possibility of its participation in the case as a third party who does not declare independent claims.

The organization appealed to the arbitration court with a statement on the recognition of invalid conditions for holding a competition for the right to conclude a municipal contract, as a number of criteria established for the participants of the competition, according to the organization, limits competition. At the same time, the Arbitration Court of First Instance did not inform the antimonopoly authority on the consideration of this case.

By virtue of part 1 of Article 51 of the APC RF, third parties, who do not declare independent claims regarding the subject of the dispute, can enter into a case on the side of the plaintiff or the defendant before the adoption of a judicial act, which endes the consideration of the case in the first instance of the Arbitration Court, if this judicial act may affect For their rights or duties towards one of the parties. They can be attracted to participation in the case also at the request of the parties or at the initiative of the court.

According to clause 21 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 30.06.2008 No. 30 "On some issues arising from the application of arbitration courts of antitrust laws", in addition to the right to appeal to the arbitration court with claims, statements on violation of antimonopoly legislation (paragraph 6 Part 1 of Article 23 Federal Law From 26.07.2006 No. 135-FZ "On Protection of Competition"), the antimonopoly authority by virtue of paragraph 7 of Part 1 of Article 23 of this Law has the right to participate in consideration by the courts of cases related to the application and (or) violation of antitrust laws initiated on the basis of lawsuits , statements of other persons. Therefore, considering cases initiated on the basis of lawsuits, statements of other persons, the Arbitration Court must notify the antimonopoly authority to ensure the possibility of its participation.

Thus, the unacciation of the court of first instance to participation in the antimonopoly authority is contrary to the requirements of these procedural law.

4. When dealing with a stakeholder in an arbitration court with a statement on the recognition of trades invalid, the winner of the trading should participate in the case as a defendant, and not a third party who does not declare independent claims regarding the subject of the dispute.

From the provisions of Article 447 and paragraph 1 of Article 449 of the Civil Code of the Russian Federation, it follows that trading is a way to enter into an agreement and the consequence of recognition by their invalid is the invalidity of the contract. The requirement for invalidation of trading is actually aimed at recognizing the contract invalid and can be considered as a requirement for the invalidity of the transaction concluded on the results of trading. Accordingly, such requirements are actually addressed to the parties of the transaction, including the winner of the auction.

For cases of disposal of transactions, the defendants are parties to such transactions. In the situation under consideration, one of the parties to the Treaty concluded through trading is the winner of these bidding (paragraph 1 of Article 447 of the Civil Code of the Russian Federation), which must be attracted as the defendant.

It should be noted that the arbitration court, attracting the winner of the auction as a defendant, often indicates that by virtue of Part 2 of Article 51 of the APC of the Russian Federation, third parties who do not declare independent claims regarding the subject of the dispute, use less procedural rights compared to the parties of the arbitration process . And therefore the participation of the winner of the auction in the case as a third party, and not the defendant deprives him of using certain procedural protection methods, in particular the right to change the basis or object of claim, an increase in or decrease in the amount of claims, refusal of the claim, recognition of the claim or the conclusion of the world Agreements, presentation of a counterclaim, the requirement of the compulsory execution of the judicial act. Consequently, the attraction of the winner of the auction as a part of the case is necessarily, since he is primarily a member of the contract, while third parties are limited to procedural rights and are deprived of the right to make counter-claims, to declare of limitation etc. This conclusion corresponds to the position of the Presidium of the Supreme Arbitration Court of the Russian Federation, set out in the decision of July 15, 2010 No. 2814/10 in case No. A56-7912 / 2008.

In addition, in paragraph 44 of the Resolution of the Plenum Supreme Court Of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of 29.04.2010 No. 10/22 "On some issues arising in judicial practice in resolving disputes related to the protection of property rights and other real rights"It is said that disputes on the recognition of trading are invalidated by the rules established to recognize invalid challenging transactions. These explanations confirm the conclusion that the winner of the auction should act as a defendant in the case. It does not matter the fact that the specified explanations concern the disposal of trading. conducted in the manner prescribed for the execution of judicial acts as the courts only defined general order and an approach to consideration of the category of cases related to disposal of trading.

5. Arbitration procedural legislation provides for the consideration of the dispute involving individuals, however, individuals who do not possess status individual entrepreneurcan be involved in participation in the case only as third parties that do not declare independent claims on the subject of the dispute, with the exception of the rules of special jurisdiction of cases.

In practice, there are situations where there is a need to attract a citizen who is not an individual entrepreneur as a third party who does not declare independent claims regarding the subject of the dispute.

An individual entrepreneur appealed to the Arbitration Court with a claim for the establishment of the plaintiff in non-residential premises. The statement of claim is motivated by the plaintiff the right to rent premises belonging to the respondent on the right of ownership. The defendant asked to stop the proceedings in mind due to the contrary to the dispute of the arbitration court, since the defendant does not have the status of an individual entrepreneur and does not carry out business activities.

In accordance with Article 27 of the APC RF, arbitration courts allow economic disputes and consider cases involving organizations that are legal entities, citizens who carry out entrepreneurial activities and having the status of an individual entrepreneur, and in cases provided for by this Code and other federal laws with the participation of education not having the status of a legal entity and citizens who do not have the status of an entrepreneur.

Clause 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of July 2, 1996 No. 6/8 "On some issues related to the use of part of the First Civil Code of the Russian Federation" provided that from the moment of termination state registration Citizen as an individual entrepreneur, in particular in connection with the expiration of the duration of the certificate of state registration, the cancellation of state registration, etc., cases involving these citizens, including those associated with them earlier business activitiesSupported by the courts general jurisdictionExcept when such cases have been taken to the production of the arbitration court in compliance with the rules on the jurisdiction before the onset of the above circumstances.

These provisions indicate the possibility of consideration of the case on the merits, if at the time of appeal to the arbitration court, the person possessed the status of an individual entrepreneur and subsequently lost it.

Under the circumstances presented above, given that the defendant in the case should be an individual who does not possess the status of an individual entrepreneur, the court of cassation confirmed the conclusions of the courts of the first and appeal instance on the termination of the proceedings in connection with the initiality of the dispute to the arbitration court due to the fact that the defendant is An individual not registered as an individual entrepreneur.

6. The prosecutor in the process has a special status, as it acts in defense of public interests, so it cannot participate in the case as a third party that declares or not declare independent claims regarding the subject of the dispute.

In judicial practice, there are cases when prosecutors, insisting on attracting them in the process already begins, or it is difficult to justify their procedural statusOr declare a petition for bringing them to the case as third parties that do not declare independent claims regarding the subject of the dispute. In the substantiation of the last prosecutors indicate that according to Article 40 of the APC RF, the prosecutor is a person participating in the case, therefore, it can also be attracted to participate in the process as a third party. At the same time, Article 40 of the APC of the Russian Federation establishes that the prosecutor is a person involved in the case in cases provided for by this Code.

The right of the prosecutor to enter into the process is provided for in Article 52 of the APC RF, however, in the arbitration process, the prosecutor has a special status, as it acts as a public interest in defense, so it cannot participate in the case as a third party that declares or not declare independent claims regarding the subject of the dispute .

It should also be noted that according to part 1 of Article 51 of the APC of the Russian Federation, third parties that do not declare independent claims regarding the subject of the dispute may enter into the case if the judicial act ending with the consideration of the case on the merits may affect their rights or duties with respect to one From the parties. Thus, to participate in the case as a third party, the subject must have a material interest in the outcome of the case, which has no prosecutor.

7. D.evalous arbitration procedural legislation does not provide for the possibility of appealing the definitions on the accession of third parties who do not declare independent claims into the arbitration process (comprehensive analysis of the articles 50, 51 and 188 of the APC RF).

Plaintiff - a limited liability company appealed to the arbitration court with a claim for recovery money. However, the defendant indicated that the claim was declared in the improper party, since the plaintiff joined another society and all rights switched to the legal successor. The Court's definition, a limited liability company was involved in participation in the case as a third party who does not declare independent claims on the subject of the dispute.

Disagreeing with this definition, a limited liability company appealed cassation complaintin which he asked him to cancel in connection with the violation by the court of the norms of material and procedural law. The court of cassation refused to satisfy the complaint, pointing out that part 3 of Article 51 of the APC RF does not contain provisions that definitions about the entry into the case of a third party who do not declare independent claims regarding the subject of the dispute, or on the involvement of a third party to participate in Business, or a refusal to this may be appealed.

In addition, it should be noted that, according to paragraph 6 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 28.05.2009 No. 36 "On the application of the Arbitration Procedure Code of the Russian Federation, when considering cases in the Arbitration Court of Appeal" in relation to the definitions of adoption for the production of a claim or Applications (except for determining the adoption of a statement on the recognition of the debtor bankrupt), on the restoration of the missed procedural term, on the remaining of the claim (statement) without movement, on the appointment of a case to the court proceedings, about the announcement of the break at the court hearing, on the deposition of a trial, replacement or to refuse to replace the inadequate defendant, about bringing to participate in case or refusing to attract another defendant, a third party who does not declare independent claims regarding the subject of the dispute to attract the second defendant (except for the definitions of refusal to satisfy the petition of third parties and with independent requirements for entry into business), on the allocation of some requirements in separate production or about the union of cases, on the appointment of expertise, about the recovery of evidence, on the adoption or rejection of comments on the trial of the court session, on the refusal of imposing or adding trial Objections may only be announced when appealing the judicial act, which the consideration of the case is enemy.

Summing up the foregoing, FAS software notes that the Institute of Third Parties, which do not claim independent claims, in the arbitration process is enough effective toolcontributing to rapid, objective and comprehensive consideration household disputes. Stabled with law The possibility of participation in the arbitration process of third parties is an additional guarantee to protect the rights and legitimate interests of the participants in the economic turnover. This warranty is optional, because participants in the economic turnover, rights and legal interests which are depending on the dispute on the right of the right, the parties of which they are not deprived of the opportunity to protect their rights and legitimate interests, participating in the case as parties. This will be acquired after consideration and permission of this case on the merits, but this option is related to them with certain complications. At the same time, their participation in the case as third parties provides them with the opportunity to protect their rights and legitimate interests in the already existing process.

Arbitration Court of the Moscow Region

107053, GSP 6, Moscow, Avenue Akademika Sakharov, D.18

http://asmo.arbitr.ru/

Name of the Russian Federation

DECISION

The Arbitration Court of the Moscow region as part of Judge Soldatov R.S.,

when conducting the protocol, the secretary of Moskatova D.N.

examined in open court case No. A41-82160 / 16

according to the statement of claim

LLC "Miz-8"

to LLC "Stimul"

for recovery 23761481.07 rubles.

With participation at the court hearing - according to the protocol.

Installed:

LLC "MIZ-8" (hereinafter - the plaintiff) appealed to the Moscow Region Arbitration Court with lawsuit LLC "Stimul" (hereinafter referred to as the defendant) on the recovery of debt in the amount of 21,212,977 rubles. 58 cop., Penalty in the amount of 2 121 297 rubles. 70 cop., Interest for the use of other people's money in the amount of 427 205 rubles. 79 cop. and payment costs state duty in the amount of 141 807 rubles.

The representative of the defendant stated the petition for attracting the case as a third party who does not declare independent claims regarding the subject of the dispute, the customer under the General Contract Agreement LLC "Register", in justification of this petition, the defendant pointed out that the recovery of debt from the defendant excluding possible payment from the customer LLC "Oblstroy" will affect the defendant, the plaintiff and the third person.

Arbitration Court in accordance with Art. The Arbitration Procedure Code of the Russian Federation was announced a break from 01/24/2017 to 01/31/2017.

The representative of the plaintiff objected to the satisfaction of the petition for attracting the said person as a third party, which does not declare independent claims regarding the subject of the dispute, because it believes that the defendant delays the process.

The defendant did not agree with the claim, presented a written review to the claim, which indicated that the amount of the principal debt was to be reduced by the amount of the penalty in the amount of 2,147,945 rubles. 60 cop.

In addition, the defendant declared the application of the provisions of Art. Civil Code of the Russian Federation and reducing the penalty stated to the recovery.

The plaintiff presented written objections to the response review.

Exploring all the written evidence submitted in the case file, after hearing the arguments of the plaintiff and the defendant, the arbitral tribunal established the following.

The new name LLC "Grazel Development" - LLC "Register".

In accordance with the terms specified Treaty General Contractor General undertakes on behalf of the Customer on its own risk with its own and / or attracted forces and funds on the basis of working documentation within the agreement established by the Treaty, a certain agreement, perform work on the construction of an object, pass performed work on the object to the Customer, get ZOS, together with the customer to provide an object of commissioning, and the customer is to create a general contractor for the necessary conditions for the work, take the result of the work and pay the general contractor of the work performed in the amount of work and on The conditions provided for by the contract.

In pursuance of this contract LLC "Stimul" (hereinafter - the General Contractor) and MIZ-8 LLC (hereinafter - the subcontractor) concluded a subcontracting contract No. VP-MIZ-SP-723 for execution separate species and work complexes of 14.10.2015 (hereinafter referred to as a contract).

According to the terms of the contract, the subcontractor undertakes on behalf of the general contractor to its risk with its own and / or attracted forces and means on the basis of project documentation In the contract established by the contract, the term of work, a specific agreement, to fulfill a complex of construction and installation work on the object (residential building (body) No. 23, located on the land plot (Cadastral number 50: 45: 0040929: 48, the total area of \u200b\u200b53,847 sq. M. m.) at: Moscow region, Korolev, ul. Gaidar, d. 31 (district Valentine), pass the work performed on the object of the general contractor, together with the general contractor to get ZOS, together with the customer and the general contractor to ensure the entry of the object in Operation, and the general contractor is to take properly performed the result of the work and pay the subcontractor the cost of the work performed and adopted by the general contractor of work in the amount and on the conditions provided for by the Treaty.

Clause 3.1 of the Agreement, the contract price is determined on the basis of the protocol signed by the Protocol and is 120 025,613 rubles. 55 kopecks.

In accordance with clause 3.3.2 of the contract, the payment of the work performed is made by the general contractor within 10 banking days from the date of signing the general contractor of acts in the form of CS-2 and certificates in the form of the COP-3 in the amount of the value of the acts carried out by the subcontractor and adopted to pay the general contractor -2 and certificates in the form of KS-3.

MIZ-8 LLC has completed work for a total amount of 120 025,613 rubles. 55 kopecks. Under the Agreement, which is confirmed by the acts of acceptance of work on the form of CS-2 and certificates of the cost of work and costs in the form of CS-3, signed on 08/26/2016 (t. 1 ld 37-75) .

Claims for the quality and timing of the work performed from the defendant did not receive, the act of reconciliation of mutual settlements was signed between the parties as of September 30, 2016 in the amount of 48,948,500 rubles. 94 kopecks.

The defendant performed works were paid part in the amount of 98 812 635 rubles. 97 kopecks, in connection with which unpaid work remained in the amount of 21,212,977 rubles. 58 kopecks.

The plaintiff sent a claim to the defendant with a requirement to pay for the resulting debt.

Since the specified claim was left by the defendant without satisfaction, the plaintiff appealed to the court with a present case.

The defendant in a written response to the statement of claim indicated that in accordance with paragraph 3.4 of the contract, the subcontractor does not object if the payment of the work performed and the work adopted by the general contractor will be carried out by the customer, bypassing the general contractor.

Thus, the respondent believes that the amount of the principal debt could be paid by the customer.

In addition, the defendant explained that the work was performed with delay, namely the last act in the form of the COP-2 was drawn up on August 26, 2016, at the same time, the end of the work was to be implemented on 06/30/2016. The respondent believes that in this regard, the amount of the principal debt is subject to a decrease in the amount of the penalty in the amount of 2,147,945 rubles. 60 cop.

The plaintiff in written objections to the response, indicated that the plaintiff did not really object to the payment by the customer of the work performed, but in reality the Customer never paid the work performed under the contract.

The plaintiff also pointed out that the amount of the principal debt of the defendant before the plaintiff could not be reduced to the amount accrued by him as a counter-penalty under the contract.

Paragraph 10.11 of the Agreement provides for cases of deduction from the claimant of funds to be paid to the claimant, subject to the immediate direction of the plaintiff appropriate notice with the calculation of the amount of the penalty. At the same time, until the plaintiff's appeal with a claim in court, the defendant was not sent to the plaintiff to the plaintiff with the corresponding calculation of the amount of the penalty.

Taking into account the above circumstances, the arbitration court came to the conclusion about the satisfaction of the recovery of debt in the amount of 21,212,977 rubles. 58 kopecks. For the following grounds.

The Court also proceeds from the fact that the plaintiff fulfilled the obligations in full without claims of the defendant, which is confirmed by the acts of acceptance of work in the form of CS-2 and certificates of work and costs in the form of COP-3, signed by the parties submitted to the case 08/26/2016.

Thus, the claimed claim for the recovery of debt in the amount of 21,212,977 rubles. 58 kopecks. to be satisfied in full.

Also, taking into account the clarifications, the plaintiff asks to recover a penalty in the amount of 2 121 297 rubles. 70 kopecks

Thus, the arbitration court came to the conclusion about the satisfaction of the stated claim for the recovery of a penalty in the amount of 2 121 297 rubles. 70 kopecks

Judicial practice on:

Under the contract

Arbitrage practice Using the norms of Art. 702, 703 of the Civil Code of the Russian Federation

Reducing a penalty

Judicial practice to apply the norm of Art. 333 of the Civil Code of the Russian Federation

Which is very often imposed on the consumer-borrower and can be recognized as invalid. This will reduce debt, or to recover from the bank illegally retained cash, without forgetting to return and interest (they are equal to the refinancing rates of the Central Bank of Russia and in August 2013 were 8.25% per annum). Immediately, it is mentioned that a normatively ban on attracting Rospotrebnadzor in your case as a third party was established by the Supreme Court of the Russian Federation. It was he who in his decision of the Plenum of the Armed Forces of the Russian Federation of June 28, 2012 for the number 17 entitled "On the consideration by the courts of civil cases on disputes on the protection of consumer rights" in the last sentence of the first paragraph of paragraph 27 indicated: "Authorized bodies carrying out obligations assigned to them to protect the rights and protected by the law of consumer interests, and organs local governments Before the adoption by the court, the decision on the case may enter into a case on their own initiative or on the initiative of those involved in the case, and are also involved in participation in the case of the court as authorized bodies entering the process in order to present the conclusion in the case (Articles 34, 47 GPK RF). In this case, attracting these bodies into the process as third parties is not allowed." It would seem here there is nothing to discuss, and there is little interesting with useful for a simple borrower man. It is difficult to disagree with this. I, in turn, decided to write this article only because I used to think that Rospotssople can be attracted as a third party, which declares or does not declare his own requirements, and the foundation for such an assumption was the words of the judge. That is, despite the fact that the court was in June 2013, therefore, has passed the year from the date of publication of this resolution. The judge when I was stated a petition for the involvement of Rospotrebnadzor as an expert orally, asked: "Do you want to attract it as a third party?" After that, added: "Third party declaring independent requirements, or not claiming." I was needed by Rospotrebnadzor as an expert, because voluntary insurance and its design in the loan agreement spared on the seams. What is this epos? Literacy and awareness of each judge are individual. In the regions, many phenomena, including: Collector agencies, trials For the recovery of debt on the loan, the lawsuits on the protection of consumer rights on the loan agreement and other cases appear much later than in the central regions. Not all the judges are ready, some are not particularly deliberate in the essence of the matter, some would be vnikley, but until you write where to look (articles on laws, rulings, sometimes, solutions to other courts) no one will look for them. In theory, the judge is obliged to maintain his level of knowledge at the proper level. All decrees, he should read and reread, and then know and apply! But not all do it. Some because they believe that once the judge means forever the judge. Some do not have time to follow all this, because they do not want, and there are no such cases yet. Accordingly, only you yourself or your representative should look for the information and legal framework that is necessary, otherwise it will be difficult! In addition, all people, everyone can make mistakes or not know something, therefore do not count on a judge or a lawyer or an expert. Try and delve into everything yourself, because you need it first. It will take time, and you can no longer change anything, but they could. Do not hope that all judges are dealt with all nuances of legislation. Moreover, credit theme requires some accounting knowledge, and, therefore, you will have to provide your counterproofs if you do not agree with banking. The judge will have to delveue some of the calculations more precisely and reasonably. Rescue savory, the work of the rescue themselves in most cases. If the judge also says to me, the Rospotrebnadzor can be attracted to the point as a third party, do not forget to justify the reason, referring to the ruling that, alas, it is impossible to do this. Do not think that you will look smarter judge! It is not necessary to go on the personality, the court is a system, and neither a person, and the system should, must !!!, perform certain functions in accordance with the rules. If you need a Rospotrebnadzor, then boldly try to attract it as an expert for giving conclusion, but remember that his response is not considered evidence in court, but this does not decease the need for a simple borrower in his participation in the process, since the court is obliged to in the motivation part Decisions to provide their judgments regarding the conclusion of the state.

04.07.2011

Approved
Decree of the Presidium
Third arbitration
Court of Appeal
dated 04.07.2011 № 9/2011

Analysis of the judicial practice of attracting third parties who do not declare independent
Requires regarding the subject of the dispute (Article 51 of the APC RF)

1. Introductory part and analysis structure

In accordance with the work plan of the Third Arbitration Court of Appeal For the first half of 2011, an analysis of the judicial practice of attracting third parties, which do not declare independent claims regarding the subject of the dispute (Article 51 of the Arbitration Procedure Code of the Russian Federation, hereinafter also - the APC RF), on cases considered by the third Arbitration Court of Appeal in 2010.

The purpose of this analysis is to compilect the practice of the third arbitration court of attraction to participate in the case of third parties who do not declare independent claims on the subject of dispute (hereinafter also - third parties without independent claims), and transition to consideration of cases for the rules established for consideration of cases Court of First Instance, Part 3 of Article 266, Part 6.1 of Article 268, paragraph 4 of Part 4 of Article 270 of the Arbitration Procedure Code of the Russian Federation, explanations of the Plenum of the Supreme Arbitration Court of the Russian Federation contained in the decision of 28.05.2009 No. 36 "On the application of the Arbitration Procedure Code of the Russian Federation when considering cases in the arbitration court of the appellate instance. "

The subject of studying the present analysis was the decrees made by the Third Arbitration Court of Appeal in 2010, taking into account their verification by superior instances.

2. Basic statistics and general provisions

2.1. Analysis of statistical data showed that in 2010 from 4339 considered by the third arbitration appellate court of third-party cases without independent claims were brought to the third arbitration court after the transition to the case on the rules of first instance in 20 cases, which was 0.46% of the total Considered cases.

So, third parties without independent claims are attracted:

1) at the initiative of the court (including in connection with the arguments of appeal) - when considering 8 cases (40%):

A33-4215 / 2009 (Babenko A.N., Bellan N.N., Khasanova I.A.),

A33-429 / 2010 (Khasanova I.A., Kirillova N.A., Petrovskaya O.V.),

A33-6645 / 2010 (Gurova TS, Babenko A.N., Magda O.V.),

A33-9890 / 2008 (Khasanova I.A., Kirillova N.A., Petrovskaya O.V.),

A74-4212 / 2009 (Khasanova I.A., Kirillova N.A., Spotyuy L.E.),

A74-1103 / 2010 (Khasanova I.A., Gurova T.S., Magda O.V.),

A74-326 / 2009 (Khasanova I.A., Babenko A.N., Petrovskaya O.V.),

A74-3977 / 2009 (Khasanova I.A., Babenko A.N., Bellan N.N.);

2) at the request of the person participating in the case, when considering 2 cases (10%):

A33-7048 / 2010 (Kirillova N.A., Gurova T.S., Magda O.V.),

A74-1610 / 2010 (Borisov G.N., Bychkov O.I., Kolesnikova G.A.);

3) on the initiative of the person who did not attracted the first instance by the court to participate in the case and applied to appeal complaint When considering 9 cases (45%):

A33-5408 / 2007 (Babenko A.N., Bellan N.N., Radzikhovskaya V.V.),

A74-2458 / 2009 (Kolesnikova G.A., Bychkov O.I., Pervukhina L.F.),

A69-1575 / 2009 (Khasanova I.A., Gurova TS, Spotyuli L.E.)

A69-2427 / 2008 (Radzikhovskaya V.V., Magda O.V., Spotyul L.E.),

A74-229 / 2010 (Bychkov O.I., Dunaeva L.A., Pervukhina L.F.),

A33-16415 / 2009 (Babenko A.N., Radzikhovskaya V.V., Spotyuy L.E.),

A33-19242 / 2009 (Petrovskaya O.V., Gurova TS, Khasanova I.A.),

A33-8166 / 2009 (Babenko A.N., Radzikhovskaya V.V., Khasanova I.A.),

A74-340 / 2010 (Spotyuy L.E., Magda O.V., Khasanova I.A.).

In case number A33-9528 / 2009 (Magda O.V., Babenko A.N., Kirillova N.A.) The court of appeal by the definition of his own initiative was attracted to participate in the case of a third party without a transition to the case on the rules of first instance .

The federal Arbitration Court of the East Siberian District (hereinafter also - the FAS of NDO) appealed the judicial acts of the third Arbitration Court of Appeal of 14 (70%) from the indicated 20 cases:

according to 8 cases of acts of the Third Arbitration Court of Appeal, unchanged,

for 6 cases of acts of the Third Arbitration Court of Appeal, canceled.

The court of cassation as a basis for the abolition of judicial acts of the third Arbitration Court of Appeal does not indicate violations by the court of the appellate court of procedural law due to attracting participation in third parties and the transition to the case on the rules of first instance.

In the order of supervision, the judicial acts of the Third Arbitration Court of Appeal for the analyzed cases were not revised (definitions of January 27, 2011, 04/06/2011 and 11.04.2011, respectively, the Board of Judges of the Supreme Arbitration Court of the Russian Federation (hereinafter also - the Russian Federation) refused the transfer of cases No. A74-3977 / 2009, A33-19242 / 2009 and a33-5408 / 2007 in the Presidium of the Russian Federation to revise in the procedure for the supervision of the resolutions of the Third Arbitration Court of Appeal and the Resolutions of the Federal Arbitration Court of the East Siberian District according to these cases, which are left to the appellate court without change).

2.2. In accordance with Article 51 of the Arbitration Procedure Code of the Russian Federation, third parties, without independent claims, they can work on the side of the plaintiff or the defendant to the adoption of a judicial act, which the consideration of the case in the first instance of the Arbitration Court, if this judicial act may affect their rights or obligations in relation to one of the parties. They can be attracted to participation in the case also at the request of the part or on the initiative of the court.

In the Arbitration Court of Appeal, according to part 3 of Article 266 of the Arbitration Procedure Code of the Russian Federation, the rules on attracting third parties to participate are not applied.

Except from specified rule According to the explanations contained in paragraph 27 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 28.05.2009 No. 36 "On the application of the Arbitration Procedure Code of the Russian Federation when considering cases in the Arbitration Court of Appeal" (hereinafter referred to as the Resolution of the Plenum of the Russian Federation No. 36), is the case When the court of appeal by virtue of Part 6.1 of Article 268 of the Arbitration Procedure Code of the Russian Federation considers the case on the rules established by the APC RF to consider the case in the court of first instance.

In addition, according to clause 1 of the Resolution of the Plenum of the Russian Federation No. 36, persons who do not participate in the case, have the right to appeal the judicial act in order appeal production In the event that it is accepted about their rights and obligations, then these judicial acts directly affect their rights and obligations, including obstacles to implementing them subjective right or the proper performance of the responsibility towards one of the parties to the dispute.

If the arbitration court of the appellate instance establishes that the applicable judicial act directly affects the rights or obligations of the applicant, then in accordance with paragraph 2 of the Decisions of the Plenum of the Civil Code of the Russian Federation No. 36 decides on the abolition of the judicial act of the court of first instance, guided by paragraph 4 of Part 4 of Article 270 of the Arbitration Procedure Code. Of the Russian Federation, and on attracting the applicant to participate in the case.

With the abolition of the judicial act of the court of first instance on the basis of paragraph 4 of part 4 of Article 270 of the Arbitration Procedure Code of the Russian Federation, the court of appeal should noted which conclusion of the court of first instance, set out in the motivative and / or operative part of the decision concerns the rights or duties of not involved in participation in Persons, as well as motivate the need to attract them (paragraph 29 of the Resolution of the Plenum of the Court of Russia No. 36).

3. Analysis of judicial acts issued by the Third Arbitration Court of Appeal in 2010 on cases under which third parties were involved in the appellate court without independent claims.

3.1. For Affairs No. A33-5408 / 2007, A74-2458 / 2009, A69-1575 / 2009, A69-2427 / 2008, A74-229 / 2010, A33-16415 / 2009, A33-19242 / 2009, A33-8166 / 2009, A74-340 / 2010 Persons who do not participate in the case were involved in participation in the case as third parties on the basis of appeals (petitions) of these persons.

In case No. A33-5408 / 2007, a public education is attracted for the recovery of debt under contracts to participate as a third party, a public education is attracted without independent claims - the holder of 100% of the defendant's shares, represented by the relevant authority, implementing the management of public education property, the court of appeal In violation of paragraph 29 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 36 did not motivate how the decision on the specified case affects the rights and obligations of territorial administration Federal Agency According to the management of federal property attracted to participation in the case as a third party.

An individual entrepreneur appealed to the Arbitration Court Krasnoyarsk Territory With a suit to society about the recovery of debt under 8 contracts.

The definition of the court of first instance to participate in the case as a third party without independent claims on the side of the defendant was attracted by the Cedent - the initial contractor who gave way to the claimant's contracts.

By the decision of the Arbitration Court of the Krasnoyarsk Territory, the claims are satisfied.

The territorial administration of the Federal Agency for State Property Management appealed to the third Arbitration Court of Appeal with an appeal complaint, in which he asks to cancel the decision of the Arbitration Court of the Krasnoyarsk Territory due to the fact that the Director-General of the Company made a major transaction (several interrelated transactions) with a violation of the Company's Charter and Articles 78-79 of the Federal Law of December 26, 1995 No. 208-FZ "On Joint-Stock Companies" without approval by its general meeting of participants or the Board of Directors of the Company; The dispute is considered by the court of first instance regarding the debt of the defendant, one hundred percent of whose shares belong to the state, the authority to implement the RF shareholder rights transferred to the territorial administration of the Federal Agency for Public Property Management, specified face Not attracted to participation.

The court of appealing as the basis of the transition to the consideration of the case on the rules of first instance and the abolition of the decision of the court of first instance in relevant judicial acts indicated that a hundred percent of the defendant's shares belongs to the Russian Federation, which, represented by the Federal Agency for Federal Property Management, was not attracted to participation in Business, in connection with which the interests of the owner of the federal property - the Russian Federation - could not be protected properly.

According to the Charter of the Company, its founder is the Russian Federation in the person of the Commissioner federal Body executive power on the management of federal property. At the date of approval of the Charter, these powers carried out a federal federal property management agency.

By order of the Federal Agency for the Federal Property Management of 15.02.2007 No. 382-p Powers to implement the rights of shareholders of joint-stock companies delegated to the territorial departments of the Federal Property Management Agency at the place of registration of the joint-stock company as a legal entity.

In determining the transition to the consideration of the case on the rules of the first instance and in the decision on the cancellation of the decision of the court of first instance, the appellate court did not indicate which rights and obligations of the Russian Federation represented by the territorial administration of the Federal Agency for the Federal Property Management were affected by the decision of the court of first instance, how Public education rights may be protected on property that belongs to joint Stock Company. The circumstances of attributing a transaction to major transactions and the availability of approval of the transaction to the only shareholder could be tested on the basis of the evidence submitted by the defendant.

The definition of 11.04.2011 the Board of Judges of the Russian Federation refused the transfer of the case No. A33-5408 / 2007 to the Presidium of the Court of the Russian Federation to revise in the order of oversight of the court of appeal and the decision of the Court of Court of Industry.

In case number A74-2458 / 2009 The court of appeal on the basis of an appeal complaint of an individual switched to the consideration of the case on the rules of the first instance and attracted the said person to participate in the case as a third party without independent claims, in accordance with the provisions of paragraph 4 of paragraph 4 of Article 270 of the Arbitration Procedure Code of the Russian Federation.

The company appealed to the Arbitration Court of the Republic of Khakassia with a claim to the administration of the municipality Altai district on recognition of ownership of the land plot, transmitted by the Proprietary of the Company into the collective ownership of his employees.

By the decision of the Arbitration Court of the Republic of Khakassia, the claims are satisfied, the ownership of the Company to the specified land plot is recognized. At the same time, the court of first instance attracted to participate in the case of not all employees of the Company, who allocated a land share in the composition of the disputed land plotIncluding a person who appeal to the appeal complaint was not attracted to the ownership of the disputed land plot.

Court of appeal with reference to paragraph 4 of Article 4 of Article 270 of the Arbitration Procedure Code of the Russian Federation switched to the consideration of the case on the rules established for consideration of the case in the Arbitration Court of First Instance.

Attracting the applicant's appeal to participate in the case of the applicant, the court noted that the land share in the disputed land plot was allocated to the specified employee and issued a certificate for ownership, that is, he is a person whose rights and obligations affects the applicable judicial act. In this case, the appellate court pointed out what the right of a person who did not attracted to participation in the case affects the decision of the court of first instance.

Also, on the basis of Article 51 of the Arbitration Procedure Code of the Russian Federation, the Court of Appeal after the transition to the consideration of the case on the rules of the first instance on its initiative attracted all persons, the certificate of belonging to land shares are presented in the case file, as third parties that do not declare independent claims On the subject of the dispute, on the side of the defendant.

According to the results of consideration, the appellate court refused to satisfy the claims, indicating that society, stating the requirement to recognize the ownership of the land plot, actually challenges the rights of participants in general dolly ownership. Under such circumstances, the company elected an improper way to protect the rights, which it considers violated, and incorrectly determined the procedural situation of persons involved in the case, which, by virtue of Article 47 of the Arbitration Procedure Code of the Russian Federation, cannot be changed by the court without the will of the plaintiff.

By the decision of the FAS SDO, the decision of the Court of Appeal is left unchanged.

In case number A74-229 / 2010 Court of appeal in violation of part 3 of Article 266 of the Arbitration Procedure Code of the Russian Federation, paragraphs 1 and 2 of the Resolution of the Plenum of the Russian Federation No. 36 attracted to participate in the case as a third party who does not declare independent claims on the subject of the dispute, the antimonopoly authority on the basis of his petition Entry into business as a third party.

An individual entrepreneur appealed to the Arbitration Court with the requirement of the municipal authority on the recognition of the illegal results of the competition for the right to implement passenger traffic on the city bus route by lots in the form of a protocol of evaluation and comparing applications for participation in the competition. In this case, a prosecutor joined the Arbitration Procedure Code of Article 52 of the Arbitration Procedure Code of the Russian Federation.

According to paragraph 21 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 30.06.2008 No. 30 "On some issues arising from the use of arbitration courts of antimonopoly legislation" The antimonopoly authority by virtue of paragraph 7 of Part 1 of Article 23 of the Federal Law "On Competition Protection" has the right To participate in the consideration by the courts of cases related to the application and (or) violation of antitrust laws initiated on the basis of lawsuits, statements of other persons. At the same time, considering cases initiated on the basis of lawsuits, statements of other persons, the arbitral tribunal should notify the antimonopoly authority to ensure the possibility of its participation in the case under consideration, and the procedural status of the antimonopoly authority is determined on the basis of the nature of the dispute under consideration.

In court of the appellate instance, the representative of the prosecutor's office requested to attract the antimonopoly authority to participate in the case.

The court of appeal by the definition was notified by the antimonopoly authority on the consideration of the appeal and invited him to submit written explanations for its procedural status in the case under consideration.

The antimonopoly authority told the petition for bringing it as a third party without independent claims.

Guided by the above clarifications of the Plenum of the Supreme Arbitration Court of the Russian Federation, the court attracted the antimonopoly authority to participate in the case as a third party and moved to the consideration of the case on the rules of the first instance.

In this case, the attraction of an appeal court to participate in the case of the third person of the antimonopoly authority, which did not participate in the consideration of the case in the court of first instance, does not correspond to the explanations contained in paragraphs 1 and 2 of the Resolution of the Plenum of the Court of the Russian Federation No. 36, since the antimonopoly authority did not apply with the appeal complaint And did not substantiate how the decision of the court of first instance affects his rights and obligations.

In addition, in violation of paragraph 29 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 36 in the decree of the appellate instance, there is no reference to the conclusion of the court of first instance, set out in the motivative and / or the operative part of the decision, which concerns the rights or duties of the antimonopoly authority not attracted to participation.

On affairs numberA33-8166 / 2009, A33-16415 / 2009 Court of appeal ceased production on appeal complaints of persons not attracted to participation in the case, believing that the judicial act of the court of first instance does not affect the rights and obligations of these persons; After canceling the court of cassation instance of the termination of the cessation of the production complaints, the latter are considered by the appeals court on the merits.

Citizen T. applied to the Arbitration Court with a lawsuit against a limited liability company for the recovery of the actual share in authorized capital (Case number A33-8166 / 2009).

Citizen K., who did not participate in the case in the court of first instance, turned with an appeal complaint, indicating that he was a member of the same society, due to the wrong definition of the last size of the share in the authorized capital appealed to the Arbitration Court, which in case number A33-16008 / 2008 recovered from society the actual value of the share in the authorized capital, the decision of the court is not fulfilled. Citizen K. believes that the decision-making on the case number A33-8166 / 2009 on the recovery of a significantly overestimated actual value of the share violates its rights, since the execution of this decision will be carried out by the valid value of the actual value.

Court of Appeal Definition has ceased production by the Citizen Citizen's appeal under paragraph 1 of Part 1 of Article 150 of the Arbitration Procedure Code of the Russian Federation, recognizing that the decision of the court in case number A33-8166 / 2009 on the rights of citizen K.

The court of cassation canceled the definition of the termination of the production complaint, indicating that the other members of the Company declared the requirements for the recovery of the real share of share capital, considered in other arbitration courts, these actions are regarded as actions that testify to the intentional tightening by the company's real share of citizen by the C. and the use of judicial procedures to prefer the transfer of assets to other participants of the Company, who later came out of him a citizen of K. In connection with this, the conclusion of the appeal court not appropriate is recognized as a decision on the decision on case No. A33-8166 / 2009, rights and obligations are not affected Citizen K.

With the new consideration of the case, the appellate court switched to the consideration of the case on the rules of the first instance, attracted a citizen K. to participate in the case as a third party without independent claims, the CITY CITY appeal is considered essentially, the claims of a citizen of T. Satisfied partially.

An individual entrepreneur who did not participate in the case in the court of first instance appealed to the appeal against the court decision on recovery from the municipal enterprise in favor of the Limited Liability Company for the provision of legal services (Case number A33-16415 / 2009). The entrepreneur believes that the court decision on the specified case affects its rights, since he is a competitive lender of the municipal enterprise and the satisfaction of the requirements of the Company may entail the impossibility of meeting the requirements of the entrepreneur.

The court of appeal by the definition ceased production on an appeal complaint of the entrepreneur, indicating that the latter challenges the reality of the contract for the provision of legal services in another arbitration case, while evidence of the emergence of losses in connection with the recognition of the municipal enterprise of the Company's claims is not presented. In connection with the specified, the appellate court came to the conclusion that the appeal complaint was filed by a person who did not participate in the case, the rights and obligations of which by the decision of the court of first instance are not affected.

The court of cassation canceled the definition of the termination of the production complaint, indicating that the requirement of a society about the payment of the services of attracted persons at the expense of the debtor's property is carried out by the court considering the bankruptcy case of the municipal enterprise, therefore the requirements for the payment of the services of attracted persons on the basis of paragraph 4 Parts 1 of Article 148 of the Arbitration Procedure Code of the Russian Federation are subject to leaving without consideration.

With a new consideration of the case, the appellate court switched to the consideration of the case on the rules of first instance, attracted an entrepreneur to participate in the case as a third party without independent claims, left the statement of the Company to the municipal enterprise on the recovery of the cost of legal services without consideration.

3.2. A33-4215 / 2009, A33-4215 / 2010, A33-4215 / 2010, A33-6645 / 2010, A33-9890 / 2008, A74-4212 / 2009, A74-1103 / 2010, A74-326 / 2009, A74-3977 / The 2009 Court of Appeal In violation of Part 3 of Article 266 of the Arbitration Procedure Code of the Russian Federation and the explanations contained in paragraphs 1 and 2 of the Resolution of the Plenum of the Court of the Russian Federation No. 36 transferred to the consideration of the case on the rules of the first instance and attracted third parties without independent claims not previously participating in the case Persons without circulation of these individuals with appeals.

In case No. A33-4215 / 2009, third parties were brought to participate in the initiative of the court after the transition to the consideration of the case according to the rules of the first instance on the basis of paragraph 2 of Part 4 of Article 270 of the Arbitration Procedure Code of the Russian Federation.

According to this group of cases, a selective analysis of judicial acts was carried out for compliance with Article 51 of the Arbitration Procedure Code of the Russian Federation and the explanations contained in paragraph 29 of the Resolution of the Plenum of the Russian Federation No. 36.

In case No. A33-4215 / 2009 on a dispute about the recovery of the sum of undeveloped advance under the contract to participate in the case, representatives of which their signatures in the documents contained in the case materials were confirmed by the actual finding of building materials provided by the defendant As part of the execution of the contract.

The customer appealed to the arbitration court with a claim to the Contractor for the recovery of the sum of the undeveloped advance under the contract.

By the decision of the arbitral tribunal, the claim is satisfied completely.

Disagreeing with this decision, the defendant appealed to the appeal.

Court of appeal with reference to paragraph 2 of Part 4 of Article 270 of the APC RF passed to the consideration of the case on the rules established for the consideration of the case in the Arbitration Court of First Instance, in connection with the improper notification of the defendant, and attracted the organization as third parties without independent requirements of the organization, representatives Which with their signatures in the documents contained in the case files confirmed the actual finding of building materials provided by the defendant the plaintiff within the framework of contracting.

The definition by which the court of appeal was attracted to participate in third parties without independent claims, does not contain a conclusion how the judicial act of this case may be affected by their right or duties; in this definition The basis of the attraction of third parties is indicated by the establishment of actual circumstances that had a value for the full and comprehensive consideration of the case.

In this case, the attraction of third party appellate court does not comply with the provisions of Article 51 of the Arbitration Procedure Code of the Russian Federation. The establishment of actual circumstances of the importance should be carried out on the basis of the evidence specified in Article 64 of the APC RF.

By the decision of the FAS SJO, the decision of the Court of Appeal on the partial satisfaction of the claim and the refusal to satisfy the counterclaim on the results of consideration of the appeal after the transition to the consideration of the case on the rules of the court of first instance is left unchanged.

In case No. A33-429 / 2010, on a dispute about the termination of a land lease agreement, recovery of unjust enrichment and losses to participate in the case of a third party without independent claims, an entrepreneur was brought, who reserved the plaintiff's right to lease to the land plot.

The individual entrepreneur M. appealed to the Arbitration Court with a lawsuit against the municipal body and municipal education with the claims for termination of the land lease agreement, the recovery of unreasonably received under the lease of the land plot of funds and losses.

The court of first instance to participate in the case as third parties without independent claims was attracted by the organization, which the municipal formation instructed the organization of auction, as well as an organization engaged in issuing sanitary and epidemiological conclusions.

The defendant appealed to the third Arbitration Court of Appeal with an appeal complaint, in which he asked the decision of the Arbitration Court of the Krasnoyarsk Territory to cancel and take a new judicial act on the refusal to satisfy the claims.

The Court of Appeal by definition switched to the consideration of the case on the rules of the first instance and attracted to participate in the case as a third party without independent claims of the entrepreneur F. At the same time, the Court of Appeal proceeded from the fact that the results of trading the land lease agreement was concluded between municipal authority And the entrepreneur F., who subsequently referred to the plaintiff's right and obligations of the tenant of the land plot.

Determination of the appellate instance on the transition to the consideration of the case on the rules of first instance and attracting a third party, as well as the decree of the appellate instance contain a general reference to the decision of the first instance of the decision on the rights and obligations of the entrepreneur F., not attracted to participation in the case.

In this case, the specified court acts of the appellate instance do not comply with the explanations contained in paragraph 29 of the Resolution of the Plenum of the Countries of the Russian Federation No. 36, since they do not indicate the conclusions of the court of first instance set out in the motivative or operative parts of the contested judicial act, which directly affect the rights and obligations of the entrepreneur F.

In case No. A33-6645 / 2010, a person who signed an agreement on behalf of the defendant was brought by a third party without independent claims, to recover the debt on which the plaintiff turned.

The Company appealed to the arbitration court with a suit to the partnership of the owners of housing (hereinafter referred to as HOA) on the recovery of debt under the legal service provision agreement.

The decision of the court of first instance in satisfying the Society Requirement of the Company, since the contract submitted by the plaintiff does not indicate the responsibility of the responsibility for the payment of services, since it was signed on behalf of the defendant an unauthorized person (chairman board Tszh.) And in the subsequent defendant is not approved.

Court of appeal with reference to paragraph 4 of Article 4 of Article 270 of the APC RF passed to the consideration of the case on the rules established for consideration of the case in the Arbitration Court of First Instance, and attracted the Chairman of the Board of the HOA as a third party without independent claims, indicating that the conclusions of the court The instances of the present case may affect the rights or obligations of the third party attracted, since there is a dispute about its authority to sign the contract, and by virtue of paragraph 1 of Article 183 of the Civil Code of the Russian Federation, in the absence of authority, to act on behalf of another person or when such powers are exceeded, the transaction is considered Prisoner on behalf of and in the interests of her face, if only another person (represented) subsequently will not directly approve this transaction.

In this case, the appellate court indicated what conclusions in the decision of the court of first instance affect the rights and obligations of a person not attracted to participation in the case.

When considering the case on the merits, the court of appeal came to the conclusion that the services were adopted by the defendant, since the Chairman of the Board and the Governing HOA, which has the right to act on his name without a power of attorney, are one person, therefore, the provisions of Article 183 of the Civil Code of the Russian Federation to the controversial relationship Not applicable.

By the decision of the FAS CJSC, the decision of the Court of Appeal was abolished, the decision of the court of first instance was left in force. The court of cassation, recognizing the correct application by the court of first instance of the provisions of Article 183 of the Civil Code of the Russian Federation, did not establish unconditional grounds provided for by paragraph 4 of Article 288 of the Arbitration Procedure Code of the Russian Federation, for the abolition of the decision of the court of first instance.

In case No. A74-1103 / 2010, a person who was brought to whom a disputed object was transferred to use, when considering a dispute about the invalidation of an invalid ownership of a disputed facility real Estate and recognition of the right state owned Subject of the Federation on the specified object of real estate.

The State Property Management Committee (hereinafter referred to as the State Committee) appealed to the Arbitration Court with a statement of claim to a society on recognizing invalid registered ownership of real estate - the building of the Fire Depot, on the recognition of the right of state ownership of the Republic of Khakassia to the specified object of real estate.

The definitions of the court of first instance to participation in the case are involved as third parties that do not declare independent claims regarding the subject of the dispute, the Office of the Federal Registration Service, the Office of the Federal Service bailiffs, Administration of the Municipal Education Shirinsky district, administration of the municipality of the Tsumsky village council, individuals.

By the decision of the arbitral tribunal, the lawsuit denied.

Disagreeing with this judicial act, the plaintiff appealed to the third arbitration court of appeal with an appeal complaint, in which he requested a court decision to cancel and take a new judicial act.

Court of appeal on the basis of part 4 of Article 4 of Article 270 of the Arbitration Procedure Code of the Russian Federation switched to the consideration of the case on the rules established for consideration of the case in the arbitration court of first instance, and attracted a detachment fire service As a third party without independent claims, since it is an institution to which the controversial building of the fire depot and which exercises its operation.

In the definition of the transition to the consideration of the case on the rules of the first instance, the appellate court indicated that the decision of the court of first instance affects the Rights of the Fire-Safe Service, which is the actual owner of the disputed property.

According to the results of the consideration of the case, the appellate court partially satisfied the claims, recognizing the right of state ownership of the Republic of Khakassia to the premises of the first floor of the building of the Fire Depot, in the rest of the claim refused.

At the same time, the court of appeal in violation of the explanations contained in paragraph 29 of the Resolution of the Plenum of the Court of Russia No. 36 in the decision taken on the results of the consideration of the case did not indicate which conclusion of the court of first instance set forth in the motivative and / or the operative part of the decision regarding the rights Or the duties of the Fire Service Details and did not motivate the need to attract it to participate in the case.

In court of cassation Case No. A74-1103 / 2010, it was considered with the participation of a third party attracted to participation in the case of the court of appeal, in accordance with Article 48 of the Arbitration Procedure Code of the Russian Federation, the replacement of this person was replaced. At the same time, by abolishing the decision of the Third Arbitration Court of Appeal at the specified case and leaving the decision of the court of first instance, the court of cassation indication that the court of first instance of violations of the procedural law, provided for by paragraph 4 of Article 288 of the APC RF, was not allowed.

In case number A74-326 / 2009 For third parties without independent claims, participants of the share ownership of the land plot in the dispute under the claim on recognition of ownership of the land plot are brought.

The participant of the share ownership appealed to the Arbitration Court with a suit to society on recognition of ownership of the land.

The decision of the arbitral tribunal is satisfied.

Disagreeing with the judicial act, the defendant appealed to the appeal against the third Arbitration Court of Appeal, in which he asked the decision of the Arbitration Court to cancel, to take a new judicial act.

The court of appeal with reference to paragraph 4 of Article 4 of Article 270 of the APC RF passes to the consideration of the case on the rules established to consider the case in the Arbitration Court of First Instance, attracted to participate in the case of third parties without independent requirements of individuals - participants in equity ownership.

At the same time, the appellate court indicated that the extraordinary general meeting of the participants in the share ownership of the Company dated April 27, 2008, which was present 12 people (or 1.16% of the total number of participants in equity), including the plaintiff, the location was determined land plotsallocated to land shares. The plaintiff was allocated land plot, as published by a notice in newspapers.

The indicated publications are stated objections that are also published in the newspaper. According to these objections in accordance with Article 14 of the Federal Law "On Turnover of Agricultural Land" by the decision of the General Assembly of Participants in the Company's share ownership of September 7, 2008, another location location was determined to allocate land-owned land ownership participants. In this regard, they object to the allocation of the land plot at the expense of the land share at the address specified by the plaintiff, since it does not comply with the specified decision of the general meeting of participants in equity property and contradicts Articles 13, 14 of the title federal law.

The Constitutional Court of the Russian Federation in paragraph 4.2 of the Resolution of January 30, 2009 No. 1-P "On the case on the verification of the constitutionality of the provisions of paragraphs 2, 3 and 4 of Article 13 and paragraph of the second paragraph 1.1 of Article 14 of the Federal Law" On the Turnover of Agricultural Land "in connection with Complaints of citizen L.G. Possing "indicated that the law, protecting the private interest of the co-owl, provides him with the opportunity to determine the location of the land plot allocated to the landline through the publication of communication in the media, including for the case when general meeting Not carried out at all, provided that all the necessary actions for the convening of a general meeting were taken, confirmed by the concerned by the comprehension, confirmed. If there is at least one objection regarding the location of the allocated land plot, then the corresponding dispute is subject to permission using conciliation procedures.

As a conciliation procedure, participants in equity ownership of land can also use the general meeting to determine the location of the allocated land plots. In this case, the decision on the allocation of the participant's ownership of a particular land plot to the landline owned by him, adopted in compliance with the requirements of the paragraph of the second paragraph 1.1 of Article 14 of the Federal Law "On the Turnover of Agricultural Lands", will be personal in nature, and not agree with him It is entitled to challenge him in court.

Given the legal position Constitutional Court, the court of appeal in determining the transition to the consideration of the case on the rules of the first instance indicated that consideration of the claimant's claims and the satisfaction of the stated requirements led to a violation of the rights of other participants in equity ownership, the general meeting of which decided to determine other location of the land plot to allocate land plots to the account Land shares and attracted them as third parties without independent claims.

However, in the decision on the abolition of the court decision and adoption of a new judicial act on refusal to satisfy the claim of the appellate court in violation of paragraph 29 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 36 did not motivate the need to involve third parties and did not indicate how the court decision is directly affected by The rights and obligations of these persons.

By the decision of the FAS of the Court's decision and the decree of the appellate instance on the specified case were canceled in connection with the initiality of this dispute to arbitration courts, the proceedings were terminated.

In case number A74-3977 / 2009 Third parties without independent claims are attracted by the owners of bonds, the provision of which is disputed.

The prosecutor of the Republic of Khakassia appealed to the Arbitration Court with a lawsuit against the Government of the Republic of Khakassia, the Company on the recognition of invalid by virtue of the insignificance of the Treaty on the provision of a state guarantee concluded by the Government of the Republic of Khakassia and society, and directly a state guarantee provided by the Government of the Republic of Khakassia to society.

In this case, the legality of the state guarantee provided to society was challenged in order to ensure obligations to issue a bond loan with a placement period over three years and placed with the participation of the investment bank.

The definitions of the arbitral tribunal to participate in the case as third parties without independent claims are attracted by the Ministry of Finance of the Republic of Khakassia, some owners and nominal bond holders.

By the decision of the Arbitration Court, the claims are satisfied.

Disagreeing with the judicial act, the third party appealed to the third Arbitration Court of Appeal with an appeal complaint, in which he asked to cancel the decision of the Court and to take a new judicial act on the refusal to satisfy the claims.

Of the information provided by one of the third parties, the owners of bonds, the nominal holder of which he is, not involved in the case.

Court of appeal with reference to paragraph 4 of Article 4 of Article 270 of the Arbitration Procedure Code of the Russian Federation issued a definition about the transition to the consideration of the case on the rules established to consider the case in the Arbitration Court of First Instance, bringing to participation in the case as third parties of the Bonds owners, recognizing that the decision of the court of first instance is addressed by the rights and obligations of these persons, since the provision of bonds, in the form of contested transactions, is invalid.

A decree of the appellate instance, the court decision was canceled, a new judicial act was adopted about the refusal of the lawsuit. As a basis for the cancellation of the decision of the Court, the inconsistency of the conclusions set out in the decision, the circumstances of the case, violation or incorrect application of the norms of substantive law is indicated.

In violation of the explanations contained in paragraphs 27 and 29 of the Decisions of the Plenum of the Russian Federation No. 36 of the Court of Appeal, having considered the case on the rules of the first instance, did not indicate in the decision of the existence of unconditional grounds for the cancellation of the decision of the court of first instance, the motives of attracting third parties to participate in the case The rights and obligations of these persons who are affected by the decision of the court of first instance.

By the resolution of the FAS SJO, the decision of the Court of Appeal on refusal to satisfy the claims on the results of the consideration of the appeal after the transition to the consideration of the case on the rules of the court of first instance was left unchanged.

The definition of you of the Russian Federation dated January 27, 2011 denied revision of the specified case in supervisory procedure.

3.3. In case No. A33-7048 / 2010 Court of Appeal In violation of part 3 of Article 266 of the Arbitration Procedure Code of the Russian Federation and the explanations contained in paragraphs 1 and 2 of the Resolution of the Plenum of the Court of the Russian Federation No. 36, at the request of the plaintiff attracted third parties not previously participating in the case of persons Without the appeal of these individuals with appeal and transferred to the consideration of the case on the rules of the first instance.

In this case, the company appealed to the Arbitration Court with a claim for invalidation of the Solution of the Social Society for the appointment general Director and illegal solution tax author, on the basis of which changes are made to a single state Register legal entitiesnot related to amending the constituent documents.

The decision of the Arbitration Court is recognized as illegal decision of the tax authority, in the rest of the claims refused.

In the third Arbitration Court of Appeal with appeal, the plaintiff and the tax authority appealed.

When considering the case in the appellate instance, the plaintiff filed a petition for attracting third parties to participate without independent claims of citizens who concluded the sale and sale transactions in the authorized capital of the Company.

Court of Appeal, given that the plaintiff as a reason for the claim indicated the insignificance of the agreement on termination of the contract of sale in the authorized capital and the subsequent sale of the share of the share in the authorized capital, recognized that the assessment of contracts for their insignificance without attracting participation in the case Parties to transactions as third parties without independent claims is invalid.

According to these reasons, the appellate court adopted the definition of the transition to the case of the case under the rules provided for for the court of first instance, and attracting participants in the sale and sale transactions in the authorized capital of the Company to participate as third parties without independent claims.

In violation of part 3 of Article 266 of the Arbitration Procedure Code of the Russian Federation, paragraphs 1 and 2 of the Decisions of the Plenum of the Russian Federation No. 36 of the appellate court passed to the consideration of the case on the rules of the first instance and attracted to participate in the case as third parties not yet participating in citizens without Appeals the latest with independent appeals.

A decree of the appellate instance The decision of the court was canceled, a new judicial act was adopted about the satisfaction of the claims.

In this decision, the appellate court indicated the presence of an unconditional basis for the abolition of the judicial act, provided for in paragraph 4 of part 4 of Article 270 of the Arbitration Procedure Code of the Russian Federation, and also indicated that, taking into account the claimant, the foundations of the claim for agreements for their insignificance without attracting participation in The acts of the parties of the transactions are unacceptable, when making an emerged decision, the court of first instance made the conclusion about the insignificance of the contract of sale of a share in the authorized capital of the Company without attracting participation in the case of one of the parties to this transaction, thereby spoken about the rights and obligations of a person who did not attracted to participate in business.

By the decision of the FAS SJO, the decree of the appellate instance was left unchanged under the indicated case.

When considering the case No. A74-1610 / 2010, the Court of Appeal at the applicant's petition was attracted to participate in third parties without independent claims on the subject of the dispute after the transition to the consideration of the case under the rules of the first instance due to the presence of the foundation provided for in paragraph 7 of Part 4 of Article 270 Arbitration Procedure Code of the Russian Federation (violation of the rule on the secret of the meeting of judges when making a decision).

In this case, the legality of the actions of the bailiff for executive productionexcited on executive Sheet The arbitral tribunal, including those associated with the demolition of the unimpressed part of the building.

After the transition to the consideration of the case according to the rules of the first instance, the applicant was requested to attract to participate in the case as third parties without independent claims of an entrepreneur and society actually carrying out the demolition of the building.

In the definition of which third parties were involved, the appellate court pointed to the applicant's argument that the bailiff in the absence of legal grounds was attracted to fulfill the requirements of the executive list of an entrepreneur and society, whose rights and obligations are addressed by the dispute under consideration.

In this case, the Court of Appeal In violation of Article 51 of the Arbitration Procedure Code of the Russian Federation, did not indicate how the judicial act adopted on the merits of the dispute may affect the rights and obligations of third parties involved in the case.

By the decision of the FAS SJO, the decree of the appellate instance is left unchanged.

3.4. In case number A33-9528 / 2009 Court of appeal in violation of part 3 of Article 266 of the Arbitration Procedure Code of the Russian Federation, paragraphs 1, 2 and 27 of the Resolution of the Plenum of the Russian Federation No. 36 attracted as a third party without independent claims, the organization previously not participating in the case , without turning the latter with an independent appeal and without a transition to the consideration of the case under the rules provided for first instance. Also, the court of appeal in violation of Article 51 of the Arbitration Procedure Code of the Russian Federation did not indicate how the judicial act taken on the merits of the dispute may affect the rights and obligations of the third party attracted to participate, and only referred to the need to attract it for full and Comprehensive clarification of circumstances in the case.

4. Conclusions based on the results of analyzing the practice of attracting the third arbitration appellate court of third parties that do not claim independent claims regarding the subject of the dispute:

1. In violation of part 3 of Article 266 of the Arbitration Procedure Code of the Russian Federation and the explanations contained in paragraphs 1 and 2 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 28.05.2009 No. 36 "On the application of the Arbitration Procedure Code of the Russian Federation when considering cases in the Arbitration Court of Appeal The authorities ", the judges of the Third Arbitration Court of Appeal, allowed to attract third parties that were not previously involved in the case of individuals without the appeal of these persons with independent appeals. In one case, the attraction of a previously participating in the case of a person is allowed without transition to the consideration of the case according to the rules of first instance.

2. In all cases, judges of the Third Arbitration Court of Appeal are complied with the provisions of Article 51 of the Arbitration Procedure Code of the Russian Federation and the explanations contained in paragraph 29 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 28.05.2009 No. 36 "On the application of the Arbitration Procedure Code of the Russian Federation upon consideration Affairs at the Arbitration Court of Appeal ", the need to indicate the right and obligations of third parties involved in the relevant judicial acts, which are directly affected by the appealed judicial act or the consideration of the dispute on the merits.

3. In the absence of an appeal complaint of a person who does not participate in the case, whose rights and obligations are affected by the judicial act appealed on appeal, attracting such a person as a third party who does not declare independent claims regarding the subject of the dispute, on the initiative of the court or those involved in the case, Not permissible. In this case, the arbitration court of the appellate instance may notify such a person about the opportunity to familiarize themselves with the judicial act on the official websites of the third Arbitration Court of Appeal and the Supreme Arbitration Court of the Russian Federation and clarify him the right to contact the appeal of the appeal if this judicial act is addressed by his rights and obligations.

Deputy Chairman G.N. Borisov.

Head of Legal Statistics

and summarizing judicial practice A.V. Harmash

Appendix No. 1.

the draft analysis of the judicial practice of attracting third parties, which do not declare independent claims regarding the subject of the dispute (Article 51 of the APC RF)

In the analysis of the decisions of the Plenum of the Supreme Arbitration Court of the Russian Federation (hereinafter - the Russian Federation), including jointly with the Plenum of the Supreme Court of the Russian Federation (hereinafter - the Armed Forces of the Russian Federation), the following cases were revealed in which the higher judicial instances They come to the conclusion about the need to attract third parties without independent demands on the initiative of the court or at the petitions of individuals.

1. If the pledger is not a debtor, and the third person, at the request of the mortgager, the pledgee or on the initiative of the court to participate in the case of recovery on the mortgaged property as a third party is attracted by the debtor on the security obligatory obligation, since satisfaction of the value of the mortgagee to The debtor at the expense of the property of the pledger is the basis for the transition to the mortgager of the creditor's rights on a secured pledge obligatory in accordance with article 387. Civil Code of the Russian Federation(Paragraph 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2011 No. 10 "On some issues of applying legislation on pledge").

2. When considering by the court, the claim for recovery to the mortgaged property tenants of the ladded property and other persons with the rights specified in article 40. Federal Law of July 16, 1998 No. 102-FZ "On Mortgage (Property Pledge)", involved in the case of the party or on the initiative of the court as third parties that do not declare independent claims regarding the subject of the dispute on the side of the defendant (paragraph 22 Resolutions of the Plenum of the Supreme Court of the Russian Federation of March 17, 2011 No. 10 "On some issues of applying legislation on pledge").

3. If there is a requirement for the demolition of unauthorized construction and if the unauthorized construction is burdened by the rights of third parties, such as the rights of the mortgagee, the tenant, these persons should be involved in participation in the case as third parties that do not declare independent claims regarding the subject of the dispute, The side of the defendant, since the judicial act may affect their rights. Thus, the decision of the Court to satisfy the claim for the demolition of unauthorized construction in this case isbase To make an entry in the USRP on the termination of the ownership of the defendant to the unauthorized construction, and the corresponding encumbrances also cease (paragraph 23 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 10, the Plenum of the Court of Russia No. 22 dated April 29, 2010 "On some issues arising in judicial practice when resolving disputes related to the protection of ownership and other real rights ").

4. In the case when during the trial on the claim for the recovery of property from someone else's unlawful ownership, controversial property was alienated by the defendant to another person, and also transferred to the possession of this person, the court in accordance with part 1 of Article 41 Code of Civil Procedure of the Russian Federation orparts 1., 2 Articles 47. The APC RF allows for the replacement of an improper respondent properly. At the same time, the alienator is involved in the case as a third party who does not declare independent claims regarding the dispute subject, on the respondent's side in accordance with article 51. APC RF(Paragraph 32 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 10, the Plenum of the Wheel of the Russian Federation No. 22 dated April 29, 2010 "On some issues arising in judicial practice in resolving disputes related to the protection of ownership and other real rights").

5. According to the release of property from arrest, regardless of whether arrest is imposed in order to provide a claim or in order to recover the debtor's property in executive documents, the bailiff is involved in participating as a third party who does not declare independent claims regarding the subject of the dispute (paragraph 51 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 10, the Plenum of the Russian Federation No. 22 dated April 29, 2010 "On some issues arising in judicial practice upon resolution Disputes associated with the protection of property rights and other real rights ").

6. If the antimonopoly authority decided and issued a prescription for several persons (in particular, in relation to persons in the group of persons in accordance with the provisions articles 9. Federal Law dated July 26, 2006 No. 135-FZ "On Protection of Competition" (hereinafter - the Law on Protection of Competition)) and these persons appealed to the arbitration court with independent statements about challenging these decisions and (or) prescriptions, as part of the consideration of cases for each From applications, other persons should be involved in participation as third parties who do not declare independent claims regarding the subject of the dispute, since the solution to the recognition of the decision and / or prescriptions invalid affects their rights and obligations (paragraph 25 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 30.06. 2008 No. 30 "On some issues arising from the use of arbitration courts of antimonopoly legislation").

7. When considering cases on the application for appealing the decision or the prescription of the antimonopoly authority, a filed by the person in respect of which this decision was made (to which the prescription is issued), as third parties that do not declare independent claims regarding the subject of the dispute on the basis of part 1 of Article 51 APC RF into business can enter other persons participating on the basis ofarticles 42. The Law on the Protection of Competition in the case of violation of antitrust laws. These persons include: whose statements ( state bodies, local governments, whose materials) on the basis of part 2 of Article 39 The law on the protection of competition was the basis for initiation and consideration by the antimonopoly authority of the relevant case of violation of antitrust laws, as well as other interested persons, whose rights and legitimate interests were affected in connection with the consideration of the mentioned case. These persons cannot be denied entry into force with reference to the fact that the judicial act on the case under consideration cannot affect their rights and obligations relative to one of the parties (paragraph 26 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 30.06.2008 No. 30 "On Some issues arising from the use of arbitration courts of antimonopoly legislation ").

8. When considering disputes on claims aimed at challenging registered law or encumbrance, or on claims aimed at challenging the rights or encumbrances arising from a registered transaction, a state registrar can be involved in the case as a third party who does not declare independent claims. Regarding the subject of the dispute (paragraph 53 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 10, the Plenum of the Court of Russia No. 22 of April 29, 2010 "On some issues arising in judicial practice in resolving disputes related to the protection of ownership and other real rights").

9. Courts should be borne in mind that third parties who do not declare independent claims regarding the subject matter of the dispute may also participate in the consideration of the application for disputation of the transaction. article 51. APC RF), for example, in consideration of an application for challenging the contract of guarantee as a third party, a debtor may participate on the main obligation, and in consideration of the application for challenging the transaction for the acquisition of the debtor, the thing he subsequently sold to another person is another person - the subsequent buyer (Paragraph 22 of the Resolution of the Plenum of the Russian Federation of the Russian Federation dated December 23, 2010 No. 63 "On some issues related to the use of chapter III 1 of the Federal Law" On Insolvency (Bankruptcy) ").

10. The antimonopoly authority by virtue of paragraph 7 of Part 1 of Article 23 of the Law on the Protection of Competition has the right to participate in consideration by the courts of cases related to the application and (or) violation of antitrust laws initiated on the basis of lawsuits, statements of other persons. Therefore, considering cases initiated on the basis of lawsuits, statements of other persons, the arbitral tribunal should notify the antimonopoly authority to ensure the possibility of his participation in the case under consideration. At the same time, the procedural status of the antimonopoly authority is determined on the basis of the nature of the dispute under consideration. In particular, when considering such cases, the antimonopoly authority can be attracted as a third person who does not declare independent claims regarding the subject of the dispute (Position from the analysis of paragraph 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 30.06.2008 No. 30 "On some issues arising from the use of antitrust laws by the arbitration courts", since it is not discussed by a third party directly at the point of attracting the antimonopoly authority).

11. Persons, in the interests of which arrest is imposed on property, can be involved in participation in the case as third parties that do not declare independent claims regarding the subject of the dispute, when considering the application for challenging the decision of the judicial bailiff on the arrest (inventory) of this property (output position from the analysis of paragraph 50 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 10, the Plenum of the Court of Russia No. 22 dated April 29, 2010 "On some issues arising in judicial practice in resolving disputes related to the protection of ownership and other real rights", since directly in The point of the question of attracting third parties is not discussed, including the procedure for such an attraction - on the initiative of the court or by the petition of persons participating in case or third parties).

When analyzing the decisions of the Presidium of the Russian Federation, the following cases in which the Presidium of the Russian Federation comes to the conclusion about the need to attract third parties without independent claims or to the need to study the issue of attracting.

1. When considering a dispute about recognition invalid contract concessions (applying the consequences of the invalidity of a negligible transaction) if the concession contract is concluded before entering into a lease agreement between the initial tenant (the auction winner) and municipal education - i.e. The right to conclude a lease agreement - Cedent (the winner of the auction) must be brought by a third party without independent claims (withdrawal position from the analysis of the decision of the Presidium of the Russian Federation No. 3351/08 dated June 24, 2008, since a direct question about attracting a third party is not discussed, but from motivative Parts of the Decision seen agreement with the courts of the need to attract it).

2. When considering a dispute about the eviction of a person from non-residential premises The question of the legality of finding such a person in the disposal premises should be resolved taking into account the study of the need to involve to participate in the face of the face whose lease rights are registered with the disposable premises to the USRP, as a third party without independent claims (output position from the analysis of the decision of the Presidium of the Russian Federation of the Russian Federation No. 11408/10 of 02/15/2011, since a direct question is not discussed directly to attract such a person without independent claims, however, it seems from the motivative part of the decision that the specified person on the basis of the circumstances of the case may not have independent claims, although the subject of the dispute initially allows Make this conclusion, and this issue is not found out by the courts when considering the case).