General provisions of the Civil Code of the Russian Federation: the Russian Armed Forces clarifies. Does the clarification of the Supreme Court of the Russian Federation on the issues of judicial practice mandatory force? Questions requiring explanation by the Supreme Court

Separate judges are not sufficiently responsible for the preparation of processes, superficially studies cases made to judicial consideration. Sometimes court sessions without good reasons Opened with a large delay, the deadlines for the consideration of cases and materials established by law are violated.

There are cases of disregarding the relationship of judges to comply with the rules established by law. judicial trialEspecially in the preparatory part of the court session, non-compliance with the requirements of the law on the procedure for permission by the court of applications and petitions of persons participating in the process.

Judges do not always provide the realization of the rights of participants in the process. In particular, according to some cases, in the presence of the circumstances provided for by Art. 51 of the Code of Criminal Procedure of the Russian Federation, measures are not taken to the obligatory participation of the defender in the trial.

Separate judges are unsatisfactory by the court, do not provide a comprehensive, complete and objective study of the circumstances of the case and not only do not react to the unethical behavior of some participants in the process, but sometimes they themselves behave in court session.

The facts of making insufficiently motivated sentences, decisions, definitions and regulations are still found. Often there is no rationale for the qualifications of the crime, the legal argument of the decision has not been given.

Many judges pay attention to the completeness and correctness of the preparation of the minutes of the court session. Often, the protocols do not reflect all the circumstances specified in Article 229 of the Code of Civil Procedure of the Russian Federation and Article 259 of the Code of Criminal Code of the Russian Federation.

During the court session, measures are not taken to identify and research the causes and conditions that contributed to the commission of crimes and other offenses.

In solving the issue of consideration of the case in the away meeting, the judges sometimes do not take into account the public importance and the relevance of this case, the nature of the civil dispute or the perfect crime, the personality of the defendant, the plaintiff, the defendant and other important circumstances, in connection with which cases are made in the field sessions It is impractical to hear them. Greater damage to the authority of justice applies breakdowns of away meetings because of their poor training.

Heads and judges of higher courts when departures are rarely present at court sessions and do not always provide judges to the necessary assistance in ensuring the high educational role of trials; It is not sufficiently studied and a positive experience is distributed.

Separate courts, considering cases in the appellate, cassation and supervisory order, do not respond to the facts of violation by the lower courts of material and procedural legislation And often themselves make mistakes and violations of the law when considering cases.

Still there are facts of hasty, simplified and non-compliance with the requirements of the law when considering cases in appeal and cassation, which leads to the need to change or cancel court decisions In order of supervision.

On September 15, 2015, the Code of Administrative Judging (hereinafter referred to as CAS RF, Codex), regulating the rules for consideration of cases, which arise from public relations.

The practice of applying the new Code revealed many controversial issues requiring clarification and additions.

In this regard, on September 27, 2016, the Plenum of the Supreme Court of the Russian Federation adopted Resolution No. 36 "On some issues of applying the courts of administrative proceedings Russian Federation"In order to give clarification to the courts of general jurisdiction (hereinafter referred to as the decision).

The ruling touched almost all sections of the CAS RF. The most significant explanations concern:

Communication issues of administrative affairs;

The possibilities of succession at all stages of administrative proceedings;

Rules for consideration of collective claims;

Options for higher legal education For representatives who are - the only authorities of the organization, as well as legal representatives;

Expansion of the list of pre-protection measures, etc.

Condemiousness of cases depends on the implementation of administrative powers by government agencies

The Plenum of the Armed Forces of the Russian Federation introduced clarity to the distinction between private-protective (civil-law) and public legal (administrative) legal relations.

Article 1 of the CAC of the Russian Federation is dedicated to the subject legal regulation CAS RF with an open list of cases, which are considered by the rules of administrative proceedings. The article has long required refinement in connection with the inability to distinguish between private-level (civil-law) and public legal (administrative) legal relations, which led to difficulties in the process of its application.

In practice, there are quite often cases when the courts refuse to accept and consider the administrative of the statement Based on the fact that the case is subject to consideration in accordance with the procedure.

For example, within the framework of the appellate definition of Volgograd regional Court from 11.08.2016 in case No. 33-11176 / 2016 by the court supported the definition of Staripoltav district Court The Volgograd region dated July 20, 2016 on the refusal to accept the administrative statement, since in this case the dispute follows from the part-based relations and cannot be considered in the procedure for administrative affairs, arising from public relations, according to the rules of ch. 22 CAS RF. According to the court, the dispute is subject to consideration in accordance with the procedure for claim (similar practice: the appeal definition of the Moscow City Court of 18.08.2016 in case No. 33A-31952/2016; the appellate definition of the Moscow City Court of 18.08.2016 in case No. 33A-16556/2016 etc.).

At the same time, a mirror opposite practice is found when the courts refuse to accept the claimant's statement according to the rules of claim due to the availability of public relations to be considered according to the rules of the CAS RF (for example, the case No. 33-11424 / 2016; the appellate definition of the Novosibirsk Regional Court of 12.07. 2016 in case number 33-7602 / 2016; the appellate definition of the Moscow City Court of 14.06.2016 in case number 33-22846 / 2016).

Plenum tried to clarify the subject of legal regulation of the CAS RF. In particular, the decision establishes the criteria of cases that arise from administrative and other public relations, concluded by the courts of general jurisdiction, the Supreme Court, as well as cases that are not subject to consideration according to the rules of the CAS RF.

So, according to paragraph 3 of paragraph 1 of the decision in the CAC of the Russian Federation, cases arising from legal relations, which are not based on equality, autonomy of the will and property independence of its participants, while one of the participants in legal relations is implementing administrative and other public-authority authority and The use of laws and subtitle acts in relation to another participant.

However, this wording does not take into account the rule of article 8 Civil Code Of the Russian Federation, according to which civil rights and obligations may arise, among other things, from acts government agencies and organs local governments. Accordingly, such cases cannot be considered according to the rules of the CAS RF, and are subject to consideration in civil proceedings.

That is, ultimately, the appearance of legal proceedings is determined depending on the nature of the legal relations, which was not taken into account by the Plenum of the Armed Forces of the Russian Federation in its ruling.

As for the category of cases not subject to consideration in the CAC RF, then they include disputes on the invalid (illegal) acts of state bodies and local governments, if their execution led to the emergence, change or termination of civil rights and obligations (for example, Service disputes, cases related to the appointment and payment of pensions, the implementation of citizens social law, individual housing contracts).

The Plenum of the Russian Armed Forces clarified the wording of "other state bodies", whose decisions may be challenged according to the rules of the CAS RF (paragraph 2 of Part 2 of Article 1 of CAS RF). Among such bodies are named Counting Chamber RF, CEC Russia, as well as other election Commissions. In addition, in order of administrative legal proceedings, the case is subject to the disposal of decisions, actions non-Profit Organizationsendowed with individual public or public authority, as well as solutions to a self-regulating organization (clause 2 of the decision).

The jurisdiction is determined at the place of execution of the duties of government agencies, and not at the place of its location

The jurisdiction is determined in accordance with the place of executive actions.

In determining the jurisdiction on disputes in the CAS RF, legal significance is determined by the definition of the territory on which the relevant authority performs its duties. state power, not the place of his location. If the powers of the relevant state authority are distributed to several districts, then the claim should be submitted to the court of that area in whose territory arose or may arise legal consequences challenging the plaintiff (inaction), or on the territory of which the disputed decision is executed (paragraph 8 of the decision).

Thus, the legislator found that in determining the jurisdiction of the stated requirements, legal importance is the place of execution.

Rules of a collective administrative claim similar to the rules of a collective claim on the APC RF APC

Much attention was paid to the decision of the Institute of Collective Administrative Claim, since the CAC of the Russian Federation left many unresolved issues related to the rules for the preparation and consideration of a collective administrative lawsuit, methods for the notification of potential members of the Group, the procedure for the interaction of members of the Group, including the Plaintiff. Finally, the authorities of the group members were not clearly established in the CAS of the Russian Federation for personal participation at the court hearing.

It should be noted that at the moment under Article 42 of the CAS of the Russian Federation, regulating the possibility of appealing to the court of a group of persons with a collective administrative statement, there is not a single court case.

Most likely, this situation is developing due to insufficient regulation of the CAS RF Institute of CAS. Plenum Sun has tried to clarify the rules for regulating the institution of collective administrative statement.

The CAS of the Russian Federation provides that a collective administrative statement of claim can be accepted by the court to consider only when at least 20 persons joined the claim, otherwise the statement of claim is left without movement. At the same time, the Plenum of the Armed Forces of the Russian Federation clarifies that the court is obliged to explain to the remaining participants on the legal opportunity to apply to the court with individual administrative lawsuits.

If the citizen who applied to the court with a claim similar to the collective requirement refuses to join a collective application, his claim is considered by the court after the decision on a collective claim. At the same time, the decision on an individual lawsuage is made taking into account the facts established in the process of consideration of the collective claim. Otherwise, the court must motivate the inconsistency of such a decision of the previously established facts (paragraph 17 of the Resolution).

According to part 4 of article 2 of CAS of the Russian Federation, part 3 of Article 225.6 APC RF Persons, in defense of which a collective administrative statement of claim has been submitted, the right to get acquainted with the materials of the administrative case, to make discharge and make copies from them. However, the Plenum of the Armed Forces of the Russian Federation reminds that such persons do not participate in the court sessions, so the court is not obliged to notify them about the time and place of the venue.

Legal representatives are not required to have higher legal education

The question of faces that may be representatives of the administrative case were resolved in the CAS of the Russian Federation not to the end. The legislator limited the circle of representatives of administrative affairs by lawyers and other persons having a higher legal education.

At the same time, it remained unclear about the legal representatives who most often do not have higher legal education, but it is entitled to act by representatives by virtue of the law. In addition, the legislator did not specify what level higher education This is discussed in Article 55 of the CAS of the Russian Federation - specialists, bachelories or high schools.

Uncertainty in the level of higher education needed to implement the representation in administrative process, I left the judges of the Armed Forces of the Russian Federation.

Resolution clarifies the requirements for legal representatives and representatives acting for power of attorney. To implement a representative office in court, legal representatives are not necessary to have a higher legal education, in contrast to representatives acting by proxy, and their powers may be limited to various legal acts (for example, by the law or charter of the Organization) (paragraph 2 of paragraph 19 of the Resolution).

The practice of applying CAS RF contains examples when the courts refuse to consider cases involving representatives who do not have higher legal education. In particular, the definition of the Moscow City Court of 05.10.2015 No. 4G / 4-9987 / 15 was left without considering the cassation appeal of the Department of Urban Property of Moscow. The court motivated his refusal to the absence of documents confirming the presence of a higher legal education in Moscow representative from the representative of the Department of Urban Property.

In addition, part 1 of article 55 CAS of the Russian Federation served as a reason for appealing to constitutional Court Russian Federation Citizen Sheremethova I. T. with a complaint against the violation of the article under consideration of its constitutional rights.

The Constitutional Court of the Russian Federation refused to accept the complaint with the Sheremethov citizen I. T., justifying that constitutional law The judicial protection does not imply a choice of any ways and procedures of judicial protection at its discretion, and the right to keep their business in court through an independently chosen representative does not mean an unconditional right to choose any person as such. The establishment of qualified legal aid criteria and the conditions for the admission of certain persons as defenders (representatives) in specific types of legal proceedings is the prerogative of the legislator. In addition, the Constitutional Court separately indicates the lack of obstacles to the plaintiff to independently implement its constitutional right to judicial protection through personal participation at the court hearing (definition of the CS of the Russian Federation of March 29, 2016 No. 680-O).

The burden of proving the absence of notice is assigned to the face that declares

Government bodies are notified through SMS messages, email letters.

It should be noted that lawyers have positively perceived the norms of the CAS RF, allowing the use of modern communications (SMS messages, e-mail) to notify and call participants in the process. At the same time, the questions remaining unresolved were reflected in the ruling.

The consent of the person participating in the case to notice it by sending an SMS message, an email may be expressed or in a receipt, or in an administrative statement, written objections to the administrative statement of claim (clause 36 of the Resolution). The ruling separately indicates the possibility of notice through the direction of SMS messages, electronic letters of state bodies, local governments and officials In the presence of their consent.

However, the use of SMS messages and emails to notice the participants in the process is accompanied by additional difficulties that have not reflected in the ruling. For example, it remains an open question, who should track the delivery of a message or an email to the direct addressee and what should be understood under proper notice. Obviously, it is not necessary to do without the help of cellular operators.

The burden of proving that the court notice or challenge was not delivered to the person involved in the case, in circumstances, independent of it, assigned to this person (p. 39 decisions).

None in any other procedural code has no analogue to this rule. On the contrary, in the current procedural codes (Code of Civil Procedure of the Russian Federation, the APC RF), the persons participating in the case are obliged to prove the fact of delivering one or another notification or call.

From the point of view of the practice of applying an SMS message to notify persons involved in the case, it is interesting to see the case where the court canceled the decision of the court of first instance and sent a case to a new consideration in connection with the improper notice of the administrative plaintiff about the time and place of the court session. The position of the applicant was justified by the lack of consent of the plaintiff in the case of the case with the help of SMS messages. In addition, the court provides a report on sending a court message confirming the lack of information on the delivery of the message to the Subscriber (the appellate definition of the Sverdlovsk Regional Court of 15.06.2016 in case No. 33A-10447/2016).

Another example is the appeal definition of the court of Yamalo-Nenets autonomous District On 04.02.2016 in case No. 33A-222/2016, within the framework of which the court recognized as inappropriate notice of the plaintiff on the upcoming court session, made two hours before the start of the court hearing, which served as an obstacle to the participation of the plaintiff at the court hearing.

Pre-protection measures can be changed without court session

The decision expands the list of preliminary protection measures established in part 2 of Article 85 of the CAS RF. Thus, in addition to the suspension of the contested decision or ban on the commitment of certain actions, the courts are eligible to apply the following preliminary protection measures:

The imposition of arrest on property belonging to the administrative respondent. Most often, the courts are used by this measure, guided by Article 288 CAS of the Russian Federation (the appellate definition of the Moscow City Court of 04.08.2016 in case No. 33A-16358/2016; the appellate definition of the Moscow City Court of 20.04.2016 No. 33A-13508/2016). However, the opposite practice is also found (the appellate definition of the Supreme Court of the Republic of Buryatia dated 09/21/2016 in case No. 33A-5890/2016).

Imposition on the administrative respondent and other persons, including those who do not participate in the court process, the obligations of committing certain actions;

Suspending the recovery on the executive document.

It is worth noting that the last two measures of pre-protection are applied by ships in practice without any special difficulties (the definition of the Kursk Regional Court of 03.02.2016 in case No. 33A-434/2016; the appellate definition of the Supreme Court of the Republic of Dagestan dated July 12, 2016 in case No. 33A-2744 / 2016; Appeal definition of the Supreme Court of the Republic of Dagestan dated 06.23.2016 in case No. 33A-2564/2016).

In addition, the decision does not exclude the possibility of applying several preliminary protection measures for one administrative claim. At the request of those involved in the case, one pre-protection measure can be replaced by another. Replacing measures is carried out without court session and without notifying persons involved in the case (paragraph 28 of the Resolution).

The application of preliminary protection measures is possible only after the adoption of an administrative statement on the work of the court (paragraph 27 of the Resolution).

The court is not entitled to verify the feasibility of the contested acts of government agencies

Special attention is paid to clarification of the Armed Forces of the Russian Federation in order to challenge decisions, actions or inaction of power entities. According to Article 62 of the CAS RF, the courts are not related to the grounds and arguments of the stated requirements and can go beyond their limits for a comprehensive and complete study of the administrative case. At the same time, the Court cannot recognize the decision or the action of state authorities legitimate with reference to the circumstances that were not subject to the consideration of the authorities or their officials (paragraph 61 of the Resolution).

According to the explanations of the Plenum of the Armed Forces of the Russian Federation, the courts are not entitled to verify the feasibility of disputed solutions, actions and inaction of state authorities, but the excess of authority or their use, contrary to the interests and rights of citizens, organizations, states and society, is a sign of illegal action (inaction) or decision (paragraph 62 Decisions).

With the failure to appear the participants in the audio recording process, it is not necessary.

Article 204 CAS RF provides for the mandatory audioocolization of each meeting of the first or appeals instance (including a preliminary court session), as well as each individual procedural action outside of meetings. The plenum of the Armed Forces of the Russian Federation provided an exception to this rule: with the failure to appear the participants in the process or if their turnout is optional, audio production is not carried out. This rule finds confirmation in the bulletin judicial practice According to the Administrative Cases of the Sverdlovsk Regional Court for the Fourth quarter of 2015, approved by the Resolution of the Presidium of the Sverdlovsk Regional Court of 30.03.2016.

Written logging is necessarily in all cases. The parties may submit written comments on the protocol, as well as the results of audio and video recording within three days from the date of signing the Protocol.

The presentation of the participant of the court proceedings may be limited, or the court can at all deprive his words without making a definition in the form of a separate judicial act. The decision of the Court to limit the speech of the participant in the process or deprivation of his word is accepted by the presiding judge and should be reflected in the minutes of the court session. Appeal of such a measure procedure coercion Perhaps only when appealing the final judicial act (Article 202 of the CAS of the Russian Federation, paragraph 44 of the ruling).

The remaining measures of procedural coercion are used by making a court definition in the form of a separate judicial act and appeal by private complaints, prosecutor representations (decree item 45).

Proceeding measures are applied at any stage of the administrative process. The definition of the application of measures of procedural coercion is made by the judge alone (in the preparation of a case for consideration) or by the Court's collegial composition (paragraph 46 of the Resolution).

One of the distinguishing features of the administrative process is the active role of the court, expressed in an additional charge of the court to take the necessary measures to comprehensively and complete the actual circumstances of the administrative case, as well as to identify and refund on its own initiative of evidence in order to properly resolve the case (part 1 of Article 63, part 1 of article 63 8, 12 of Article 226, part 1 of article 306 CAS RF).

As for the evidence, the Plenum of the Armed Forces of the Russian Federation bypassed Article 59 of the CAS of the Russian Federation, requiring refinement. This article presents a list of evidence admissible in the administrative process, one of which is emails. At the same time, the Code does not explain that it should be understood under electronic documents and how to operate with such evidence.

To date, the practice of use electronic documents As evidence of the case, there is only a couple of cases and will gain a turnover in the process of applying Article 59 CAS of the Russian Federation (the definition of the Moscow City Court of August 23, 2016 No. 4GA-9033/2016; the appellate definition of the Moscow City Court of 18.12.2015 in case No. 33 47881/2015).

It should be noted that in connection with the adoption of this resolution, the Resolution of the Plenum of the Russian Federation of the Russian Federation dated February 10, 2009 No. 2 "On the practice of consideration by the courts of cases of challenging decisions, actions (inaction) of state authorities, local governments, officials, state and municipal bodies employees. "

Not all cases can be considered in the order of simplified production.

In the Cass of the Russian Federation, chapter 33 is devoted to simplified production, which contains only four articles. Therefore, the Plenum paid great attention to this chapter, in particular, specifying the grounds, timing and procedure of simplified production.

The decision lists cases that cannot be considered in the order of simplified production by virtue of the procedural characteristics of the CAC some categories Affairs related to the composition of the court, the timing of the trial, or by virtue of the direct indication of the law.

For example, disputes associated with restricting the rights and freedoms of a citizen require a mandatory presence of an administrative respondent or its representative. In this connection, such disputes cannot be considered in the order of simplified production.

Administrative cases, the term of consideration of which is less than the term established by the Code for Simplified Production, also cannot be considered according to the rules of chapter 33 CAC of the Russian Federation (paragraph 3 of paragraph 70 of the Resolution).

The term of consideration of the administrative case in the order of simplified (written) production is 10 days from the date of the determination of the consideration of the administrative case in the order of simplified (written) production. In one case, the court contrary to the petition about the consideration of the case in the order of simplified (written) proceedings considered the application in open court. He substantiated this by the fact that the case was appointed on the date emerging beyond the limits of the ten-day period, and, therefore, cannot be considered in simplified production (the appellate definition of the Tver Regional Court of 10.08.2016 in case No. 33-3332 / 2016).

By the end of last year, the Armed Forces of the Russian Federation prepared a lot of important decrees - he did not bypass the appointment and procedure for appointing criminal penalties by the courts. As a result of the generalization of the existing practice, a separate document was adopted, this procedure is regulated in detail (the decision of the Plenum of the Armed Forces of the Russian Federation of December 22, 2015 No. 58 ""; Further - Resolution No. 58).

Consider the most important findings of the Armed Forces of the Russian Federation.

Can the defendant informal spouse affect the sentence?

The Armed Forces insists on a strictly individual approach to the imposition of punishment (). At the same time, he prescribes to take into account the features of the person of the perpetrator. For example, data on its family and property situation, health, behavior in everyday life, may affect the verdict on the sentence. At the same time, the Armed Forces stressed that the presence of redeemed or discontinued convictions Cannot be taken into account as data, negatively characterizing the identity of the defendant.

The Criminal Code establishes that when prescribing punishment, it is necessary to take into account the influence of the imposed penalties on the living conditions of the sentence of the convicted person (). The Armed Forces clarified that the courts should be guided by this norm, when, for example, as a result of the deprivation of a man of freedom, his family members will lose their lives to existence due to their age and (or) health states. Wherein specified requirement It concerns not only relatives of the defendants and their spouses - according to the court, this provision may be distributed to persons consisting of accused in actual marital relations, not registered officially (). Thus, the Armed Forces of the Russian Federation prescribed to take into account the needs of a rather extensive category of persons whose interests were not previously protected directly.

Is the disability with a softening circumstance?

The Armed Forces of the Russian Federation stressed that the Criminal Code allows the courts to take into account certain circumstances not listed in the law as mitigating punishment). A similar position was both in the raised strength, but in a new document, the court expands the list of examples of those circumstances that can be considered mitigating, for example:

• recognition of guilt, including partial;
• repentance in the deed;
• the presence of minor children, provided that the guilty takes part in their upbringing, material content and the crime is not committed against them (the Criminal Code calls, without specifying, as mitigating circumstances only "the presence of young children");
• the presence on dependency of the guilty elderly persons;
• state of health of the perpetrator, the presence of disabilities;
• the presence of state I. departmental awards, as well as participation in the fighting on the protection of the Fatherland and others.

Recall that, according to the law, to the number of softening circumstances, it includes, for example, a minority of the accused, his turnout, which is the oppression of the behavior of the victim et al. (). In turn, aggravating such circumstances as relapse, reporting, the use of weapons, committing a crime from revenge, as well as against a defenseless person, special cruelty, etc. (). The list of the latter is exhaustive and expansion is not subject to. As the court explains, these circumstances should be indicated in the verdict as aggravating and precisely in such a wording that is enshrined in the Criminal Code of the Russian Federation (,). "The appointment of the sentence, taking into account the aggravating circumstances missing in the Criminal Code, is the basis for changing the sentence, the exclusion of such reference and mitigation of punishment," explains the requirements of the Armed Forces of the Russian Federation, the lawyer, a member of the Law Chamber of Moscow.

What can the condition be confirmed alcoholic intoxication defendant?

The unconditional proof of the persistence of the accused at the time of the crime is traditionally the conclusion of physicians.

But in his new decree of the Armed Forces of the Russian Federation clarified that the state of intoxication can be confirmed not only by medical documents, but also by the testimony of the victim, the defendant and other persons ().

Except the court recognized the commissioning of an accident drunk driver. In this case, the state of intoxication is recognized as proven only if:

• this fact was recorded during a medical examination conducted in medical organization;
• the driver abandoned the passage of medical examination (, paragraph 13 of the rules of examination of the person who manages vehicle, on the state of alcohol intoxication and designing its results, directions of this person on a medical examination on the state of intoxication, medical examination of this person to intoxicate and designing its results). Obviously, this is due to the fact that the state of intoxication for this crime is a qualifying sign, directly named in the Criminal Code of the Russian Federation (,). And if this circumstance, the punishment will be more severe. For example, the culprit of an accident, as a result of which the victim was applied grave harm Health, threatens imprisonment to two years - but if he was drunk, the maximum detention period is doubled. And this, in turn, presents special requirements for the evidentiary base.

Is the obequinny turnout, if the guilty face subsequently refused his testimony?

The current legislation unequivocally evaluates the appearance with a mantow as an circumstance that mitigating punishment (). But often a person who voluntarily reported on the perfect crime, subsequently during preliminary investigation Or at the court hearing does not confirm the reported information reported by them. The Armed Forces clarifies that in this case there is grounds for softening the punishment (). The former clarification of the courts did not give.

The Armed Forces of the Russian Federation recalled that as a softening circumstance takes into account the active promotion of the disclosure and investigation of crimes (). And, unlike previously acting, in new clarifications of the court, examples of such actions are given:

• specifying accomplices, data about them and about their location;
• listing persons who can give witness's testimonies, or those who have acquired abducted property;
• clarification of the place of concealment of the stolen, finding instruments of crime and other items, with the help of which the circumstances of the case can be established ().

The court also noted that in the active assistance of the defendant disclosure of a group crime, the court is entitled to appoint him a softer punishment even in the presence of aggravating circumstances ().

Are there any restrictions when prescribing a punishment in the form of a ban to occupy certain positions?

In, as in previously acting clarifications, the Russian Armed Forces once again recommended the courts to pay special attention to the fact that deprivation of the guilty of the right to occupy certain positions concerns the exclusive state or municipal service, but not the private sector (). The court clarified that in this sentence, a particular position should be specified, but a circle of posts defined by specific signs. For example, not the "senior accountant", but "the post associated with the implementation of administrative and economic powers."

OPINION

Konstantin Kudryashov, lawyer, member of the lawyer of Moscow:

"Clarification of the Court on this issue is quite fair - it is aimed at a reduction in the" relatively honest "ways of non-performance of the sentence. So, formally implementing a court decision on the ban on occupying the post" Senior Accountant ", a convicted person could be transferred to a position with a different name, for example," Deputy Chief Accountant ". It turns out, de-Yura sentence is executed, but in fact convicted even improved in position."

Another additional punishment is the deprivation of the right to engage in a certain type of activity. In the Old Decree No. 2 of the Armed Forces of the Russian Federation, separately mentioned the deprivation of the right to manage the vehicle, having recommended the courts to be thoughtfully approaching the appointment of this punishment if such activities are for the defendant profession (). Now the Russian Armed Forces has expanded the scope of this rule: the courts must be careful if the person is deprived of the right to deal with a certain type of activity in any case when it is associated with its only profession. This concerns, for example, doctors and teachers.

Such a conclusion of the court lawyers unconditionally welcome. "The Armed Forces of the Russian Federation pointed out the lower courts to the need to not discharge the disadvantaged people on the" hungry death "even for committing a crime," said Konstantin Kudryashov.

***

In general, the clarification of the Armed Forces of the Russian Federation is quite liberal. This is expressed not only in the already mentioned positions, but also in others, not so principled. For example, the court stressed that the deprivation of military personnel can be replaced by maintenance in the disciplinary military unit, even if the term of imprisonment below the lower limit provided for ("crimes against military service"). Considering that it is designed to bring to the uniform practice of all vessels, such an approach, apparently, will be perceived by the lower courts.

Right holder illustration PA Image Caption. Human rights defenders note that 90% of extremism cases are initiated on the basis of materials found on the network

The clarification of the Plenum of the Supreme Court of Russia, published this week in relation to Extremism cases clarify the procedure for the application of the laws of the law popular with law enforcement officers. It could limit arbitrary harassment in the sadly famous "cases for likes", but, as experts believe, in the reality of hopes for it.

Clarifications relate to previous clarification on how to interpret articles on extremism, they were published last time in 2011. During this time, the number of extremist crimes has grown at times. According to Plenum, the judges of Sun Zathekin, in 2011 for extremist calls (Article 282 of the Criminal Code) condemned 149 people, in 2015 - 444. According to the judicial department in the first half of the year, this article and related 280 applies to it in the first half of the year "" Public calls for the implementation of extremist activities "). According to Zapatain, "in the current half of the year" only on the 282nd condemned 398 people, so, obviously, the 2016 will install the next record.

• On Parnas members in Chuvashia, made business because of the photo of Milonov
• Demushkin's case: The expert could not give the definition of the word "Russian"

"... It should be proceeded from the set of all the circumstances of the deed and take into account, in particular, the context, form and content of the posted information, the availability and content of comments or otherwise expressing the relationship to it," the Plenum publication says.

These "context and form" and "expression of the relationship" could put a lot of inconvenient issues to investigators and the accusation. As the human rights defenders emphasize, the investigation does not care at all, it does not care about explaining how the statement posted on the network or copied from one post to another is a call to extremism or excitement of hostility.

Orthodoxy or T-shirt

During the time who passed from the adoption before the publication of the decision of the Plenum of the Sun, an excellent illustration of this was the case of two oppositionists from Chuvashia, who are judged over and evaluating the image of the Orthodox figure and deputy Vitaly Milonov in a T-shirt with the words "Orthodox or Death". The slogan itself has long been recognized as extremist. And here one of the defendants is already convicted and punished with two fines on a thousand rubles, the other is still waiting for the trial.

Right holder illustration AFP. Image Caption. Vitaly Milonov never attracted responsibility for his T-shirt

"I called Milonov a member of the ODG" Orthodoxy or ... "- here the Cheboksaret Dmitry Pankov makes a pause so that I myself speculate the ending. Celebrate God saves, and now Pankov (a new meeting is scheduled for the next week) does not want to pronounce this phrase even In an interview. According to him, in his statement, the sending to the inscriptions on the Milonov T-shirt could not be a call, but described the radical attitude of Milonov's deputy to religious values.

Pankov referred to the existence of a T-shirt with a prohibited slogan, which decorated the body of Milonov - and thereby expressed a critical attitude to the deputy. But Pankov's court is kept for the fact that he referred to the forbidden slogan. Milonov to justice for wearing T-shirts never attracted, although the image was done after the slogan was found illegal.

The fine is not terrible, but the main goal was to prohibit me to participate in the elections for the next year "Dmitry Semenov, a member of the Parnass Party

Theoretically, the court in Cheboksary could also use the document of the aircraft five years ago. It says: "The criticism of political organizations, ideological and religious associations, political, ideological or religious beliefs, national or religious customs in itself should not be considered as an action aimed at exciting hatred or hostility."

But - did not use and, taking into account the decision on the case of Dmitry Semenov, who also applied to the reposity of Pankova's statement and the photo of Milonov in that very Tieka, it is not necessary to expect Pankov. The fact that even Milon himself called not to judge his correspondence opponents, did not change anything.

"The fine is not terrible, but the main goal was to prohibit me to participate in the elections for the next year," this explains Dmitry Semenov, the coordinator of the "open Russia" in Chuvashia, the real motives of law enforcement officers. He is preparing to file an appeal and, although he was convicted not under criminal, but according to an administrative article, it is going to attract the logic of new clarification of the Supreme Court in appeal.

Infinite crime

Two oppositionists from Chuvashia faced accusations of extremism for the first time. Three years ago, Pankov, indignant to the news that the Fanata with a swastika flashed on a football match in Yaroslavl, made a collage. This creativity with a prohibited symbolism was worth him of another sentence and four thousand fines. "You can print this image in Sport-Express, and I don't have," Pankov is indignant.

"Law enforcement officers have nothing more to do, they need to somehow work out the salary. The boss comes to them -" What did you do anything about? "- And now they come up with such a fight against extremism," this is explained by Pankov an abundance of affairs on these articles.

Right holder illustration Ria Novosti. Image Caption. Patimat Hajiyev decided to discuss in the social network the activities of the IG prohibited in Russia and was punished with a large fine

His defender Alexei Glukhov draws attention to another clarification that the Supreme Court did - that the crime is considered to be completed from the moment of placement of the ruling material on the network. In the case of Chuvash "extremists", this would generally mean the lack of a case, since the time would have expired administrative responsibility. This would be related to many other accusations for articles of the COAMA all around Russia.

The lawyer believes that fighters with extremism from the FSB and the management of the Ministry of Internal Affairs on countering extremism actually collect material ahead.

"I am more than confident that these posts with Milonov have been documented in 2013 and 2014. When it took something to do something on Semenov, they got them, re-allegedly inspected in November 2016 and received two administrative cases. "," Alexey Glukhov argues.

When the ships are beneficial to use - they use. When it is not profitable - they will not even be mentioned in their decision "Alexey Glukhov, lawyer

A similar approach was with a roller Alexei Navalny, who dreamed of social networks in protest hours after the elections in the Duma five years ago. And in 2015, he says Glukhov, at once in several regions, these repographs were auctioned by their authors with the excitation of cases.

Do this practice cease? The courts of first instance are likely to neglect the new clarifications of the Supreme Court, he is sure. "When the ships are beneficial to use this - they are used. When it is not profitable - they will not even be mentioned in their decision. You know how many wonderful decisions of the Plenums of the Supreme Court of the Russian Federation, for which the judges were spoiled, is in the hot beloved country?" - Smiling deep spirits.

For example, there are explanations of the Plenum of the aircraft for consideration administrative offenses. There was indicated that disorders in the preparation of the protocol serve as the basis for cancellation of the case.

In Semenov and Pankov's affairs, the investigation could not establish the place of the offense, that is, it did not determine where they used the computer to publish their messages on the network. Suggested that it happened at home. The court was not embarrassed such a foggy definition, but on the objection to defend the judge suggested a lawyer ... to prove the opposite. The defective protocol did not become an obstacle that there would be a supreme court for many years ago.

Escaling intent

Considering some commentators clarification of the SUT will not help another accused of 282 article, director of the library of Ukrainian literature in Moscow Natalia Sharic. Extremism in which she is accused is not virtualized, does not have a relation to the Internet, according to the investigators, in the discovery of the Nationalist's book from Ukraine Dmitro Korchinsky, listed in the list of prohibited literature.

The library says that there was no this book in the meeting, and it appeared in the investigation only after the search of October 28 last year.

Other publications, which, according to the investigators, are extremist, are not specified in the respective Russian lists. The first meeting on this case will continue next week.

Right holder illustration Ria Novosti. Image Caption. Natalia Sharic's defense believes that the main proof of her guilt in extremism is the book of Korchinsky - it was asked

Lawyer Sharina Ivan Pavlov presents a community of lawyers and journalists "Team 29", which is working on many similar cases of extremism. He says that the explanation of the Supreme Court is part of the "Right Trend", but there are no special hopes for fast changes.

"The court probably noticed the problems when they begin to apply repressive measures of criminal procedural character, which always end in the same way - not one excited sentence Not made out, "he says.

The lawyer explains that the investigation operates only by objective signs of extremist offenses and is not boring to the proof of the intent and the analysis of the motives of the accused.

Media Playback IS Unsupported On Your Device

The director of the Ukrainian library in Moscow did not recognize himself guilty

"The Supreme Court expressed small, but still a wish to look for any confirmation of the existing intent - context, form, content of posted information. What was the expression on the part of the informed information? It's all right, but how will it be applied in practice?" - Ivan Pavlov asked questions.

One wording of the Plenum of the Supreme Court is not enough to correct the case, Pavlov is sure.

Good but very little

The Information and Analytical Center "Owl" emphasizes that new clarifications appeared in solving the Supreme Court under pressure from human rights defenders who sent on August 1 to the chairman of the Sun Vyacheslav Lebedev. They indicated that in the mass of cases on extremist statements, materials posted on the Internet appear in 90% of cases.

Separate concern the authors expressed regarding the list of extremist materials, "which has already included more than three and a half thousand items and cannot serve as a source of knowledge about what materials should not be distributed."

From the moment of publication, the list has reached 3902 positions.

Right holder illustration Ap. Image Caption. Russian nationalists are often pursued for extremism, but, approve human rights defenders, not all nationalist rhetoric gives grounds for this.

The judges responded to this appeal. But, recognizing the importance of the data of the Sun explanations, Maria Kravchenko, the curator of "owls" on "illegal anti-extremism", fears that they will not work. "We would need more detailed explanations about which context should be taken into account how to take into account comments, what is a statement form."

International recommendations on how to combine the protection of religious values \u200b\u200band freedom of speech, the duties of the state to prevent violence and the right to express a sharp negative opinion in principle give Russia enough tools in order to competently adjust this sphere, but so far about the "fine-tuning" speech Does not go.

"The existence of this legislation and the fact that it is very vigorously spelled out, allows the authorities to use it as an ideological control over the population," says Kravchenko.

And indicates that among the published explanations there are those that promise a tighter approach to suspect. For example, in terms of appeals to violation of the territorial integrity of Russia. As Sun stressed, in order to be suspected in violating Article 280.1 of the Criminal Code, it is absolutely not necessary to decline someone to specific criminal acts.

See a more recent publication on this topic - "Does the general contractor have to recover from the designer losses caused by the delay in the preparation of project documentation? "

On the last day of June, a sign decree of the Plenum of the Armed Forces of the Russian Federation dated June 23, 2015 No. 25 "On the application of the courts of some provisions of the I part of the First Civil Code of the Russian Federation" (hereinafter referred to as the decision) was published. Consider and comment on the most important provisions of this document, as well as tell me how they will affect the work of companies.

The decision is devoted to the interpretation of the amendments to the Civil Code of the Russian Federation, adopted in 2013-2014. Since then, enough time has passed, and the courts managed to develop certain positions on the considered plenum of the Russian Armed Forces. Since, when developing changes in the Civil Code of the Russian Federation, the conclusions of the courts were taken into account, including the Russian Federation, the practice was already quite defined for many issues. At the same time, some provisions of the Civil Code of the Russian Federation, amended, are not definitely pronounced enough.

Particular attention is paid to the principle of good faith, the powers of the courts and the provisions on damages.

Note that clarification on the last block of changes, which entered into force on June 1, 2015, did not enter the ruling.

The decision covers the norms of part I of the Civil Code of the Russian Federation on the most diverse issues:

• basic provisions;
• individuals;
• legal entities;
• civil rights objects;
• protection intangible benefits;
• general provisions about transactions;
• invalidity of transactions;
• meeting decisions;
• representation and power of attorney.

What is good faith?

In paragraph 1 of the Resolution, the Plenum of the Armed Forces of the Russian Federation gives an explanation on the promotion behavior of participants civil legal relations. First of all, the Plenum of the Armed Forces of the Russian Federation pointed out that laws containing civil law standards are interpreted in a systematic relationship with the principle of conscientiousness of participants civil turnover (paragraph 3 of Article 1, paragraph 5 of Art. 10 of the Civil Code of the Russian Federation). Explanations disclose conscientiousness through due behavior, i.e. This, to which the other party is entitled to calculate (for example, full and reliable informing the counterparty about the circumstances that are important for developing legal relations).

At the same time, the concept of good faith covers not only behavior, but also a state. For example, the presence of information about legally significant facts. So, according to para. 2 p. 2 Art. 51 of the Civil Code of the Russian Federation, a person relying on the EGRULA, has the right to proceed from the fact that they correspond to reality; p. 1 Art. 302 of the Civil Code of the Russian Federation contains the rules for the sealing of property from the acquirer who did not know and could not know what had acquired property from a person who had no right to alienate him. Therefore, the interpretation of the term of conscientiousness proposed by the Plenum of the Armed Forces of the Russian Federation gives some chances to bring out unscrupulous cases from under it, not covered by one only behavior.

Unfair can determine the court

The conscientiousness of civil turnover participants plays a very important role for the adoption of objective decisions by the courts. After all, in practice it happens that during trial Facts indicate the unscrupulousness of not only the defendant, but also the plaintiff itself.

Usually, the side of the process is recognized by the court of unscrupulous according to the application of the opponent. Now the courts prescribed to occupy an active position if the "obvious deviation" of the actions of the parties from good behavior is visible. The court must make a discussion of circumstances clearly indicating such behavior so that the parties can state their arguments. As an example, you can cite a small font of some of the terms of the contract compared to all other text.

Interestingly, the plenum of the Russian Armed Forces of the Russian Federation used the phrase "obvious deflection". The question arises, how to be in the case of implicit abuse of the right. Apparently, in such a situation, on their own initiative, the court should not make this issue for discussion. This can make an plaintiff or the defendant.

It should be noted that with this approach may be disturbed by the principle of competition of the process, when the parties bear the risk of consequences of the commission or not to make procedural actions (part 2 of Art. 9 of the APC RF). If one of the parties acts unfair, and the opponent does not declare anything about this, then it should take the risks of the adverse effects associated with such behavior. And in order not to violate the principle of adversarity, the Plenum of the Armed Forces of the Russian Federation limited the limit of the court intervention only by obvious abuse of the right.

But even in case of an obvious deviation from conscientious behavior, the obstacle's further activity of the court will be a statement of the parties that they do not see unscrupiance in each other's behavior. A situation is possible when the court decides the question of conscientiousness for discussion, but no side will present evidence confirming the abuse of the right one or both parties to the process. In this case, recognize the fact of unscrupulousness is unacceptable to avoid violation of the principle of adversarity.

Consequences of unscrupiance

If the unscrupulous behavior of the parties will be established and proved, the court has the right to fully or partially refuse to protect it or apply other measures to protect the other party from unfair behavior provided for by law (paragraph 2 of Article 10 of the Civil Code of the Russian Federation). But in the ruling, the phrase "provided for by law" is omitted, i.e. The Plenum of the Russian Armed Forces of the Russian Federation allows for the use of measures not provided for by any regulatory legal acts.

It should be noted that judicial practice and first allowed the use of measures not provided for by law: the failure of the arguments of the malfunction, refusal to apply the term of limitation etc. (paragraph 5 of the review of the practice of applying arbitration courts of Article 10 of the Civil Code of the Russian Federation (annex to the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of November 25, 2008 No. 127), defining the WHAT of the Russian Federation dated July 29, 2013 in case No. A70-3210 / 2012).

Recognition of an invalid transaction with an unscrupulous counterparty

In paragraph 7 and 8, the resolution of the Plenum of the Armed Forces of the Russian Federation continued the line of the Plenum of the Russian Federation, in fact, having equated the unfair behavior of the turnover participant to illegal. He pointed out that the transaction is invalid at the same time can be used by Art. 10 of the Civil Code of the Russian Federation on the limits of civil rights and art. 168 of the Civil Code of the Russian Federation on the invalidity of transactions that violate the requirements of the law. If the transaction is aimed at causing harm to another person, the abuse of the right or is carried out bypassing the law with an illegal goal, it can be recognized as invalid, as violating the requirements of the law. This was said even in the review of the judicial practice of the Armed Forces of the Russian Federation No. 1 (2015) (approved by the Presidium of the Armed Forces of the Russian Federation 04.03.2015). The Plenum of the Armed Forces of the Russian Federation added that the court can apply these rules to both challenging and insignificant transactions, but the criteria of distinction did not offer. Most likely, if the abuse of right violates public interests and interests of third parties, the transaction is considered negligible as violating the requirements of the law (paragraph 2 of Art. 168 of the Civil Code of the Russian Federation). In other cases, an apiece as violating the requirement of conscientiousness (paragraph 1 of Art. 168 of the Civil Code of the Russian Federation).

By the way, this rule also applied the Presidium of the Russian Federation for back in 2008 (paragraph 9 of the practice of practicing the arbitration courts of Article 10 of the Civil Code of the Russian Federation (annex to the information letter of the Presidium of the Supreme Arbitration Code of October 25, 2008 No. 127)). But then the highest arbitrators put mandatory condition The abuse of each participant of the transaction. In the considered case, the transaction challenged CJSC, director of whose director explicitly to the detriment of the company, and the buyer was abused by the right, taking advantage of this circumstance. Similarly, in pre-breasted transactions committed to the detriment of creditors, the buyer behaves dishonest when, for example, the assets at a low price is obtained.

However, in Art. 169 of the Civil Code of the Russian Federation it was enshrined that the transaction committed with the aim of the target of law enforcement or morality is negligible. Obviously, in cases where the deal is aimed at causing harm to another person, the abuse of the right or is carried out bypassing the law, it contradicts the principle of good faith and, in addition, immoral (especially when there is a desire to cause harm to another person). Therefore, this article successfully can replace the "duet" proposed by the Plenum of the Armed Forces of the Russian Federation.

For your information

Collapse

Clause 7 of the Resolution states that, depending on the circumstances of the case of a transaction with abuse of law can be invalid. And if the circumstances of the case are such that the party of the transaction is a bona fide person, and the obligatory side of the recognition of the transaction is submitted by an unfair side, the court must refuse a lawsuit.

Bypass the law

One of the forms of unscrupulous behavior are the actions bypassing the law with an illegal target (paragraph 1 of Article 10 of the Civil Code of the Russian Federation). The consequence of circumventing the law is the application of the standards that the parties managed (paragraph 8 of the Resolution).

Transactions made bypassing the law with an illegal goal may be recognized as invalid on general standards (we talked above) or on special grounds (Art. 170 of the Civil Code of the Russian Federation on imaginary and pretend transactions). At the same time, the actions bypassing the law do not always lead to the invalidity of the transaction.

The court did not explain the differences in the preliminary transactions (paragraph 2 of Art. 170 of the Civil Code of the Russian Federation), which are always insignificant, from transactions bypassing the law. From the meaning of explanation it follows that the preliminary transactions are special in relation to transactions committed bypassing the law with an illegal goal. In other words, there are situations where the bypass of the law is obvious, but there are no signs of a feigned transaction. But any preliminary deal can be at the same time committed bypass. By the way, the following example is given in the ruling. Member of LLC has concluded a contract for the donation of the part belonging to him in authorized capital Societies to the third party for the further sale of the remainder bypassing the rules about the principal right of other participants on its purchase. In this case, the contract of donation and the subsequent purchase and sale of part of the share can be qualified as a single contract of sale (clause 88 of the Resolution). At the same time, for the qualification of the transaction as a pretext, the intent of two sides is necessary.

Custom

In paragraph 2 of the decisions, the plenum of the Russian Armed Forces clarified the concept of custom. Under it should be understood as not stipulated by law, but established, i.e. A sufficiently defined, widely applied rule of behavior in the establishment and implementation of civil rights and execution civil duties. Custom can be fixed, for example, in the court decision or the Chamber of Commerce and Industry of the Russian Federation. An important explanation is given to prove the existence of customs should be the party that refers to it.

Customs in different spheres are quite a lot, therefore the document is supplemented by the rule that contradictory laws cannot be applied.

Registration of rights to property

In paragraph 3 of the Resolution Plenum of the Armed Forces of the Russian Federation generalized the long-standing idea of \u200b\u200bthe Russian Federation that unregistered written agreementsubject to state registration, all essential conditions which is agreed by the parties, does not generate all the consequences to which it is directed (paragraph 2 and 3 of the review of judicial practice on disputes related to the recognition of contracts of non-concrete (annex to the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of 25.02.2014 No. 165)). The resolution states that the parties in relations between themselves cannot fail to refer to the lack of recording in the State Register. For third parties, the right to state the right to property arise, change and terminate from the moment of making an appropriate entry in state Register. Another moment may be provided only by law. From June 1, 2015, this thought is fixed in paragraph 3 of Art. 433 Civil Code of the Russian Federation. It says that the contract to be state registration is considered for third parties concluded from the moment of its registration, unless otherwise established by law.

In addition, the Plenum of the Armed Forces of the Russian Federation directly recognizes that Art. 8.1 of the Civil Code of the Russian Federation on state registration of property rights is applied not only to real estate objects, but also to the share of LLC, and the EGRUL is for the purposes of this article by the register of rights to property.

Recharge Claim

The Plenum of the Russian Federation has finally recognized the court's right to retracted the claim, i.e. Determining the norms of law to be used in resolving the dispute. According to the document, if the plaintiff elected an improper way to protect the right (Art. 12 of the Civil Code of the Russian Federation), the court should help determine the correct method and cannot refuse to accept the claim, return it or leave it without movement.

Recommending the courts to make a discussion on the legal qualifications of legal relationship, the Plenum of the Russian Armed Forces comes from the meaning of the norms procedural law (Art. 9, 133 and 168 APC RF). The court creates the conditions for establishing actual circumstances, the nature of legal relations and determines the rights applicable to them. And by making a decision, it determines which norms apply to proven circumstances, and indicates the motives for which the norms did not apply to which the persons participating in the case (paragraph 3 of Part 4 of Article 170 of the APC RF).

Based on this, the legal justification of the claim proposed by the plaintiff is not mandatory for the court. Therefore, he cannot refuse a lawsuit when the plaintiff refers to the wrong rules of law. Moreover, the plaintiff will not be able to apply to the court for the protection of its rights in case of refusal (paragraph 2 of Part 1 of Art. 150 of the APC RF).

This position was set out in paragraph 3 of the Resolution of the COP of the Russian Federation of 21.04.2003 No. 6-P, and then in paragraph 3 of the joint decree of the Plenums of the Armed Forces of the Russian Federation and the Russian Federation of April 29, 2010 No. 10/22 "On some issues arising in Judicial practice in resolving disputes related to the protection of ownership and other real rights. "

The Constitutional Court of the Russian Federation in the specified case paid attention to the fact that the person real rights which is violated, has the opportunity to go to court with a claim, for example, on the recognition of an appropriate transaction for invalid and the use of restitution (Article 166-181 of the Civil Code of the Russian Federation) or the recovery of property from someone else's illegal ownership (Article 301-302 of the Civil Code of the Russian Federation). However, the courts may interpret the norms of the Civil Code of the Russian Federation ambiguously, so they solve them independently, what provisions are subject to use in a particular case.

It may seem that the courts are endowed with the right to change the subject and the basis of the claim in violation of the principle of adversarity in the process. In fact, it is not. When retracteding, no reason for the claim should not be changed. If the court retracted a claim, then the subject, as the material and legal requirement of the return of property or the recovery of the sum of money, remains unchanged (resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of November 16, 2010 No. 8467/10). It also does not change its foundation - the circumstances on which the plaintiff basses its requirements (paragraph 3 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of October 31, 1996 No. 13 "On the use of arbitration procedure Code Of the Russian Federation when considering cases in the court of first instance "). After all, the plaintiff must be indifferent to what rules are the right to use to receive money or property treated it.

At the same time, the court should not exceed his authority, going beyond the reacted claim and changing his subject or foundation, such as in disputes permitted by the Presidium of the Russian Federation in the regulations of 07/24/2012 No. 5761/12, from 11/16/2010 No. 8467 / 10. There is a fine face, which depends on the specific circumstances of each case, and therefore the courts are required to make this issue for discussion.

In such situations it will be reasonable if the court will postpone the consideration of the case in accordance with Part 5 of Art. 158 APC RF on its initiative or when satisfying the defendant's petition. In definition, the Court may indicate what additional evidence the parties may submit, thus, the subject of evidence. If the meeting does not postpone, the defendant will be extremely difficult for the defendant, because to have time to prepare for the meeting, he must know in advance from what a claim to defend.

Losses

The problem of damages is rising in paragraph 11-16 of the Resolution. In particular, the presumption of guilt is established in violation of the obligation or harm. The court noticed that in business activities, the presence of insurmountable obstacles, liberating a person from responsibility for violation of obligations, should prove this person (paragraph 3 of Article 01 of the Civil Code of the Russian Federation). This explanation fully complies with the rule that the person referring to certain circumstances should prove them (paragraph 1 of Art. 65 of the APC RF).

Losses should be reimbursed in full. Except may be cases provided for by law or contract (Article 15 of the Civil Code of the Russian Federation). Thus, the Plenum of the Russian Armed Forces of the Russian Federation confirmed that the courts are not entitled to arbitrarily reduce the amount imparted as losses.

The ruling practically copies the provisions of paragraph 5 of Art. 393 of the Civil Code, which entered into force on June 1, 2015: To meet the claim for the recovery of losses, it is enough for their size to be set with a reasonable degree of reliability. In satisfaction, the requirement cannot be refused only because of the inability to establish their exact size. This was told about the top arbitrators in paragraph 6 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of July 30, 2013 No. 62 "On some issues of compensation for losses by persons belonging to the legal entity bodies" and in the decision of the RF 06/06/2011 No. 2929/11 in the case No. A56-44387 / 2006.

As you know, losses are in the form of real damage and missed benefits. The document draws attention to the fact that the real damage includes not only actually incurred costs, but also the costs that the person should produce to restore the violated right (paragraph 2 of Art. 15 of the Civil Code of the Russian Federation). The formal damage includes all expenses for new materials to eliminate property damage that the person has already suffered or only should be incurred. And it does not matter whether the cost of damaged property increased due to these expenses.

Separately, it is indicated that a decrease in the value of the property is also real damage, even if it can directly manifest itself only when selling this property in the future (for example, with the loss of the vehicle value of the car damaged by the accident).

The missed benefit is an incomplete income, which would increase the property mass of the person whose right was broken if there were no violations. Formerly, things about the recovery of missed benefits were rare due to the complexity of proving its exact size and the causal relationship between the actions of the perpetrator and the inability to benefit. Although recently, the courts often satisfy the requirements (definition of the Presidium of the Wheel of the Russian Federation of 07.08.2015 No. A41-34105 / 12) No. A41-34105 / 12). The Plenum of the Russian Armed Forces of the Russian Federation pointed out the lower courts that the calculation of the missed benefits in principle cannot be accurate. As a rule, it is approximate and probabilistic. Therefore, it is impossible to refuse the lawsuit due to the presentation of approximate calculation. Thus, a new approach is supported in practice for recovery of missed benefits.

The resolution also explains how the plaintiff should act, presenting the requirement to compensate for damages to the authorities public power. The lawsuit is presented to the relevant public legal education. At the same time, if the requirement is concluded for a body that has permanently, the court is not entitled to refuse his adoption. In this case, he attracts public legal education as a respondent and at the same time determines which bodies will represent his interests in the process. This rule will be very useful in practice.

For your information

Collapse

Damage caused by legitimate actions of public authorities is also compensable in cases provided for by law. This happens, in particular, on the basis of the rules:

• art. 279 of the Civil Code of the Russian Federation on the withdrawal of land for state or municipal needs;
• art. 281 of the Civil Code of the Russian Federation on compensation for the removable land plot;
• paragraph 5 of Art. 90 of the Civil Code of the Russian Federation on compensation of the transport fee from the budget;
• h. 2 tbsp. eighteen Federal Law From 06.03.2006 No. 35-FZ "On Countering Terrorism" on the compensation of harm with the suppression of the terrorist attack.

Legal entities

The Plenum of the Russian Armed Forces of the Russian Federation presses that the person relying on the EGRUL is not known and should not be aware of the unreliability of the information contained in it (paragraph 22 of the Resolution). And any third parties, relying on these regions about the leaders of the organization, it is entitled to count on the unlimited authority of the director. At the same time, several directors can act separately and exercise authority on all issues of competence.

The court believes that internal coordination or restrictions on the company should not be the problem of its counterparty. Usually in the contract it is indicated that when signing it, the Director acts on the basis of the Charter of the Organization. And it may provide various limitations. The plenum of the Russian Armed Forces clarified that this is not for the court proof and does not indicate that another side of the transaction knew or knowingly had to know about such restrictions. And all the ambiguities and contradictions in the provisions of the constituent documents of the Company on the constraints of the authority of the director are interpreted in favor of their absence. Note that in certain cases the counterparty of the company should know its charter. For example, if these are affiliated, as well as in other circumstances at the discretion of the court.

The ruling will affect the liquidation of companies (paragraph 28-29). The possibility of liquidation on the suit of the participant is spelled out in sub. 5 p. 3 Art. 61 of the Civil Code of the Russian Federation. Forced liquidation is allowed if it is impossible to achieve the goals for which the company has been created, as well as with a long-term corporate conflict and in the circumstances of Dedlock (deadlock in the corporation management). The court believes that liquidation, as a way to resolve the corporate conflict, can be applied when all other measures have been exhausted or their application is impossible. As an example, such measures are given the exclusion of the participant, a voluntary way out of society, the election of the new director, etc. At the same time eliminate the participant from society in judicial order It is impossible if the requirement places a person to eliminate the grounds.

In addition, the court gave an extremely important clarification for non-profit organizations (paragraph 21 of the Resolution). If they carry out income activities (for example, paid educational, medical and other services), in terms of maintaining such activities, the provisions applied to persons implementing business activities. Consequently, non-profit organizations are responsible for violation of the contract even in the absence of guilt, as well as merchants (paragraph 3 of Art. 401 of the Civil Code of the Russian Federation). These should also be applied by Art. 406.1 of the Civil Code of the Russian Federation on the compensation of losses arising in the case of the occurrence of the circumstances defined in the contract and other norms of the Civil Code of the Russian Federation.

By the way, from June 1, 2015, Art. 426 of the Civil Code of the Russian Federation on the obligation to enter into public agreements with each applied person applies to any, incl. Non-commercial organizations. Thus, the Plenum of the Armed Forces of the Russian Federation has moved a little further in the unification of the status of companies and non-commercial organizations that income affecting the income.

The property

The plenum of the Russian Federation clarified the concept of real estate (clause 38 of the Resolution). These are land plots, plots of subsoil and everything that is firmly connected with the Earth - that is, objects, the movement of which is impossible without disproportionate damage to their appointment (including buildings, structures, objects of unfinished construction). At the same time, the immovable thing may be either due to its natural properties, or by virtue of the direct indication of the law. The court believes that a legitimate object under construction can recognize as real estate if the foundation structure has been fully completed or similar works were completed. In this case land plotnot responding with signs of facilities, is only part of the site. Further explains that state registration The right to the thing is not a prerequisite for recognizing it with real estate.

The real estate complex may be registered with the USRP as one thing (clause 39 of the Resolution). Without registering, such a totality of real estate is not a complex.

Transactions

The court explained the concept of the transaction and the order of one-sided refusal. The consequences of unscrupulous actions of the parties are also defined.

The resolution states that the transaction is the willingness that is aimed at establishing, changing or termination of civil rights and obligations (p. 50). The transaction includes such actions as the issuance of power of attorney, recognition of debt, a statement of competition, one-sided refusal to fulfill the obligation, consent to the transaction and others.

The Plenum of the Armed Forces of the Russian Federation pointed to the insignificance of a one-sided deal if it is wrongful or not complied with the requirements for its commitment. Such a deal does not entail legal consequences (paragraph 51).

With the invalidity of the transaction, each of the parties is obliged to return all obtained according to it (paragraph 2 of Art. 167 of the Civil Code of the Russian Federation). However, restitution is impossible to apply to one-sided transactions, because them legal Nature Does not imply execution as a transfer of property. Suppose the State Transparency refused to fulfill the fulfillment of obligations, despite the fact that such an opportunity is not provided by the contract (Part 9 of Art. 95 of the Federal Law of 05.04.2013 No. 44-FZ "On the contract system in the field of procurement of goods, works, services for providing state and municipal needs "). Such a refusal will be considered invalid independently of the recognition of his court. If the customer does not want to provide execution on the basis of its own decision, in court it does not need to initiate an argument on the invalidity of the decision. You can simply make a claim for recovery money in the amount of debt.

It is explained that the rules on the consent of the transactions provided for in federal laws of December 26, 1995 No. 208-FZ "On joint Stock Company"And from 08.02.1998 №14-ФЗ" On Limited Liability Societies "are special in relation to the provisions of Art. 157.1 of the Civil Code of the Russian Federation "Consent to the Making Transaction" (paragraph 53 of the Resolution).

Since silence is not a consent, if the third person or the relevant authority did not respond to the request side of the transaction in reasonable timeIt is believed that they did not agree. At the same time, this is not an obstacle to the expression of consent in the future (paragraph 54 of the Resolution).

Special attention of the Plenum of the Armed Forces of the Russian Federation paid the consent of a third party to the transaction. It can be expressed in any way and addressed to any of the counterparties of the transaction. The exception is the cases provided for by law. You can agree to both before, so approve the transaction subsequently (clause 55 of the Resolution).

A person who gives preliminary agreement may additionally specify the conditions on which it is in order to ensure that the transaction is committed. Failure to comply with the parties to the transaction of these conditions gives a third party the right to challenge the transaction (paragraph 56 of the Resolution). Of course, it was possible to determine the consent, and before the clarification of the court by virtue of the principle "All that is not prohibited is allowed, but many feared this.

The Plenum of the Russian Armed Forces of the Russian Federation allowed the right of third parties to feed the preliminary consent to the execution of a transaction (paragraph 57 of the Resolution). The judges believe that consent may be withdrawn by analogy with the provisions of the acceptance of acceptance (Art. 439 of the Civil Code of the Russian Federation): with the notification of the parties to the transaction until it is committed and compensation for damages caused by such a review. Although Art. The 15 Civil Code of the Russian Federation, for which the court also referred, talks about the right of a person to demand compensation for damages only in case of violation of its rights. At the same time, the response of consent, the message about which was received by the parties of the transaction after its commitment is considered to be unformed.

The rules about the revocation of the consent Plenum of the Armed Forces of the Russian Federation made useful additions. Consent to the transaction may be invalid. In particular, the consent given by the third face influenced by a significant error, deception, violence, threats or adverse circumstances may be challenged according to the rules of Art. 178 and 179 of the Civil Code of the Russian Federation. After that, the transaction itself can be invalid due to the lack of necessary consent (Art. 173.1 of the Civil Code of the Russian Federation).

Invalidity of transactions

According to paragraph 5 of Art. 166 of the Civil Code of the Russian Federation Statement on the invalidity of the transaction and the application of the consequences of the invalidity of the transaction (the requirement made to the court, the objection of the defendant against the claim, etc.) does not legal meaningIf the person referring to invalidity acts unfairly. The plenum of the Russian Armed Forces clarified that this rule is applied to both challenging and insignificant transactions (clause 70 of the Resolution).

At the same time, the court has the right on its initiative to state the insignificance of the transaction, if it violates, let's say, the foundations of law and order or is a pretender (paragraph 79 of the decision). In this case, it does not matter whether the person refers to the invalidity of the transaction and whether it acts in good faith.

The resolution also defines the conditions under which transactions are qualified as insignificant.

So, insignificant are the imaginary or preliminary deal (Art. 170 of the Civil Code of the Russian Federation). According to paragraph 1 of Art. 170 of the Civil Code of the Russian Federation, the imaginary transaction is committed for type, without intent to create the relevant legal consequences. Before the courts considered an imaginary exclusively the deal at which the parties do not have intentions to execute or require its execution (Decision of the Presidium of the Supreme Court of the Russian Federation of 07.02.2012 No. 11746/11 in case No. 76-18682 / 2010-12-587). But after all, the absence of intent to create certain legal consequences is not equivalent to the absence of intent to fulfill the contract. The plenum of the Russian Armed Forces clarified that it is possible to qualify as an imaginary, not only the transaction that was actually not performed, but the one that was fulfilled only formally (paragraph 86 of the Resolution). For example, to avoid the recovery of the debtor's property, sales contracts are concluded, but the property control is preserved for the seller.

The preliminary transactions are committed with the aim of covering another transaction (including a transaction on other conditions). The most common example is when the parties are prescribed a small price in the contract, while in fact it is performed on a large amount. In addition, the Court recognized that the transaction that covers the transaction with a different subject line can be pretended. Consequently, on the opinion of the Presidium of the Worth of the Russian Federation that a pretended deal must be committed between the same parties as "covered", it is impossible to refer to refer to the reference (RESOLUTION of 02.08.2005 No. 2601/05 in case No. 01-1783-2004-11 ).

Also negligible agreement on the transfer of his debt to another person in the absence of the consent of the lender (paragraph 2 of Art. 391 of the Civil Code of the Russian Federation) concluded in advance agreement on the elimination or restriction of liability for intentional violation of the obligation (paragraph 4 of Article 401 of the Civil Code of the Russian Federation) and T ..

In addition, the transaction that violates the requirements of the law or other legal Act And at the same time encroaching the interests of third parties (paragraph 2 of Art. 168 of the Civil Code of the Russian Federation). Under public interest, the Court understands the interests of an indefinite circle of persons, ensuring the safety of life and health of citizens, as well as the defense and security of the state, environmental protection.

The contract contrary to the substance of legislative regulation is negligible or in part, even if the law does not contain direct indication of its insignificance. For example, the condition of a trust management agreement is negligible that it becomes the property of the trust manager after the expiration of the contract. In the above example, no specific norms of law are violated, but in the sense of chapter 53 of the Civil Code of the Russian Federation on trust management of property is not allowed.

The transaction, when was being broken, a clearly expressed prohibition, established by law, is negligible as an encroaching interest in public interests (paragraph 75). For example, transactions about a pledge or assignment of requirements that are inextricably linked with the personality of the creditor (clause 1 of Article 336, Art. 383 of the Civil Code of the Russian Federation), transactions for the insurance of illegal interests (Art. 928 of the Civil Code of the Russian Federation).

For your information

Collapse

The Plenum of the Russian Armed Forces of the Russian Federation leads the following cases when the rules on the invalidity of the transaction do not apply:

• if the counterpart has no license necessary to fulfill the obligations on the transaction. In such a situation, a contract should be abandoned and demand damages (paragraph 3 of Art. 451 of the Civil Code of the Russian Federation). The court indicated that in the absence of a license, the transaction is still invalid, but only in cases established by law (paragraph 89 of the Resolution);
• if violated preemptive right Purchases (p. 91 decisions). The court believes that the owner of the right must declare the requirement for the transfer of the rights and obligations of the buyer, and not about the recognition of the transaction invalid;
• when the third party seized the goods from the buyer (paragraph 83 of the Resolution). In this case, contractual liability is valid, so the buyer has the right to demand from the seller to return the amount paid and compensate for damages.

Collections and their decisions

The plenum of the Russian Armed Forces unified approach to all types of meeting decisions. According to the settlement of the meeting, a certain group of persons endowed with the authority to take decisions at meetings, which enhate civil law consequences. In particular, they include the decisions of the collegial bodies of the Office of a legal entity (meetings of participants, board of directors, etc.), solutions of creditors' meetings, as well as the committee of creditors in bankruptcy, solutions to equity owners (p. 103 of the Resolution).

The court found that the decisions of meetings can be applied rules on the invalidity of challenging and insignificant transactions (paragraph 104 of the Resolution).

An important explanation is given regarding the certificate of meeting decisions. Solutions of full-time meetings of participants of societies, not certified by a notary or face, which is registering shareholders and serves as a counting commission, are insignificant. The exceptions are cases where a different method of certification is provided for by the charter of LLC or a unanimous decision. general Assembly Members of LLC (paragraph 107 of the Resolution).

If the decision of the meeting of participants in violation of the law was not certified by the notary, then the interested party is not entitled to apply to the court with the requirement of a notarized certificate of such a decision. The fact is that the replenishment by the court of a missing notarial certificate is allowed only in the case specified in paragraph 1 of Art. 165 of the Civil Code, i.e. When the transaction is already executed in whole or in part.

Representation. Power of attorney

In the decision (paragraph 121) it was said that only certain provisions of the Civil Code of the Russian Federation on the representation are applied to the legal entities.

• p. 1 and 3 art. 182 of the Civil Code of the Russian Federation on the concept of representation, about the ban to make a representative of the transaction on behalf of the person represented in relation to itself, as well as with respect to another person, whose representative he is at the same time,
• art. 183 of the Civil Code of the Russian Federation on the conclusion of a transaction with an unauthorized person;
• paragraph 5 of Art. 185 of the Civil Code of the Russian Federation on attorney for several representatives in case of empowerment of the sole executive organ Multiple people.

In this case, the ban set in paragraph 3 of Art. 182 of the Civil Code of the Russian Federation, does not apply if there is special rules Making transactions by the Director in relation to himself personally or with respect to another person, whose representative is at the same time. For example, in paragraph 1 of Art. 84 of the Federal Law of December 26, 1995 No. 208-FZ "On Joint-Stock Companies", paragraph 5 of Art. 45 of the Federal Law 08.02.1998 No. 14-FZ "On Limited Liability Societies" provides special rules for approval of transactions with interest. Thus, it is fixed that the director is still a representative of the organization. Previously, it existed that the director was part organizational structure legal entity. On this basis, the responsibility of the director could be limited (for example, with such a interpretation cannot be applied above the designated clause 3 of Article 182 of the Civil Code of the Russian Federation).

The court believes that if the body of a legal entity went beyond the limits of its powers when making a transaction, the agreement concluded by them can be recognized by invalid on the basis of paragraph 1 of Art. 174 of the Civil Code of the Russian Federation (about the transaction in the conditions of limited authority by the Charter). But paragraph 1 of Art. 183 of the Civil Code of the Russian Federation in this case does not apply (p. 122 of the decision).

The Plenum of the Russian Armed Forces also explained the situation when the power of attorney was issued to several representatives. In this case, they can exercise the authority separately, and the refusal to the authority of one of them entails the termination of the power of attorney only in relation to it alone. When, according to the terms of attorney, the authorities should be carried out together, the refusal of one of the representatives entails the termination of the power of attorney as a whole (clause 126 of the Resolution). Contribute to the powers are entitled only to all representatives together, unless otherwise assigned to the power of attorney (p. 127 of the Resolution).

Clarifications that lose force

In connection with the adoption of the document now not subject to use:

• decree of the Plenum of the Supreme Court of the Russian Federation of April 10, 2008 No. 22 "On some issues of the practice of consideration of disputes related to the application of Article 169 of the Civil Code of the Russian Federation";
• resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 05/14/1998 No. 9 "On some issues of the application of Article 174 of the Civil Code of the Russian Federation during the implementation by the authorities legal entities powers to make transactions ";
• most of the joint decree of the Plenum of the Russian Armed Forces of the Russian Federation and the Plenum of the Russian Federation of the Russian Federation dated July 01, 1996 No. 6/8 "On some issues related to the use of part of the First Civil Code of the Russian Federation";
• separate provisions of some other decisions of the Plenums of the Armed Forces of the Russian Federation and the Russian Federation.

Conclusion

The Supreme Court of the Russian Federation has far advanced in providing uniformity of judicial practice, civil turnover and economic relations. This is the first decree, prepared with the practice of not only the courts of general jurisdiction, but also arbitral vessels.

In the document, conclusions are fixed judicial practice (For example, that it is impossible to refuse a claim for damages if their exact size is proven). The initiative of the courts is expanded for cases when a person cannot invite a professional lawyer to protect his interests and was mistaken when applying for a claim. There is a departure from formal equality and promotion to justice.