§ 9. Costs at arbitration process
Litigation costs are costs associated with the consideration and resolution of cases in the course of arbitration proceedings, imposed on the parties, third parties with independent claims in order to reimburse them to the state, encouraging interested parties to settle disputes in accordance with the law without court intervention.
There are two types of legal costs: state fee, legal costs ( Art. 101 APC RF).
The state duty is a statutory mandatory and effective throughout the territory of the Russian Federation payment collected for the commission of legally significant actions performed by arbitration courts for the consideration, resolution, revision of arbitration cases and the issuance of documents. The amount of the state fee is determined by federal law and depends on the nature of the dispute and the price of the claim.
The state duty precedes the filing by the plaintiff, the applicant or a third party who makes independent claims regarding the subject of the dispute, the corresponding statement of claim, statement, petition or complaint, is paid in rubles and credited to the federal budget. The fact of payment of the state duty in a non-cash form is confirmed by a payment order with a bank note about its execution, and in cash - by a bank receipt. Copies of payment documents cannot serve as proof of payment of the state fee ( p. 9 Instructions of the State Tax Service of the Russian Federation of May 15, 1996 N 42).
When increasing the size claims the missing amount of the state duty is paid in accordance with the increased cost of the claim. If the cost of the claim is reduced, the amount of the overpaid state duty is returned to established order... The arbitration court, based on the property status of the payer, has the right to reduce the amount of the state duty payable, or to postpone (extend) its payment ( Art. 333.22 Tax Code of the Russian Federation).
The postponement of payment of the state duty is reduced to the establishment of the moment at which it must be paid. In the case of an installment plan, the respective amounts are payable on a periodic basis.
A petition for a postponement, installment plan or reduction of the state duty is filed with the arbitration court simultaneously with the statement of claim, statement, complaint, or is stated directly in the statement of claim, statement, complaint itself. In this case, the application must contain appropriate justifications with the attachment of documents indicating that the property status of the interested party does not allow it to pay the state fee in the established amount. These documents are:
The list of settlement and other accounts, the names and addresses of banks and other credit institutions, in which these accounts are opened (including accounts of branches and representative offices), confirmed by the tax authority legal entity- interested party);
Confirmed by the bank (banks) data on the absence of the corresponding account (accounts) Money in the amount required to pay the state fee, as well as the total amount owed by the owner of the account (s) for enforcement orders and payment documents.
The application for the reduction of the amount of the state duty shall be accompanied by documents on the funds in the account (accounts).
Citizens can submit any documents proving that their property status does not allow them to pay the state duty in the required amount (in particular, certificates of salary, pension, disability, registered with the employment service, etc.).
The consideration of the petition is carried out by the court when considering the issue of accepting a statement of claim, statement or complaint for proceedings, based on the results of which a ruling is made. If the application is not granted, then statement of claim, application, complaint are returned to the applicant.
The grounds for granting benefits for the payment of the state duty, the grounds and procedure for the return or offset of the state duty are established ch. 25.3 Of the Tax Code of the Russian Federation.
According to clause 1 of Art. 333.41 The Tax Code of the Russian Federation, a deferral or installment plan for the payment of the state fee may be granted by the arbitration court to the plaintiff, the applicant, at his request, for a period until the end of the consideration of the case, but not more than six months. If, after the expiration of the period for which the deferral or installment plan for the payment of the state fee has expired, the case has not been considered, the court issues a ruling on the recovery of the unpaid state fee from the plaintiff, the applicant, issues a writ of execution and sends it for execution to tax authority.
V Art. 105 The Arbitration Procedure Code of the Russian Federation states that benefits for the payment state fee are provided in the cases and in the order that are established legislation RF on taxes and fees.
In accordance with clause 1 of Art. 333.37 The Tax Code of the Russian Federation is exempt from payment of the state duty in cases considered in arbitration courts:
1) prosecutors, state bodies, bodies local government and other bodies applying to arbitration courts in cases provided by law, in defense of state and (or) public interests.
When applying this provision Nc RF, it should be borne in mind that according to h. 1 tbsp. 53 Of the Arbitration Procedure Code of the Russian Federation, these bodies include those bodies that have been granted the right to appeal to an arbitration court in defense of state and public interests. federal law.
It is also necessary to pay attention to the fact that subn. 1 p. 1 of Art. 333.37 The Tax Code of the Russian Federation is not subject to broad interpretation and is applied only in cases where these bodies act as procedural plaintiffs. If such bodies act as defendants, then they are not provided with benefits in paying the state fee, and they must pay the state fee.
2) plaintiffs in claims related to violation of the rights and legitimate interests of the child.
According to clause 2 of Art. 333.37 Tax Code of the Russian Federation of payment of state fees in cases considered in arbitration courts are exempt:
1) public organizations of disabled people acting as plaintiffs and defendants;
2) plaintiffs - invalids of I and II groups.
It is necessary to pay attention to the fact that in relation to the persons specified in clause 2 of Art. 333.37 Tax Code of the Russian Federation, some features are established in terms of exemption from payment of duties. So, when filing claims with arbitration courts property nature and (or) statements of claim containing both property and non-property claims, these persons are exempted from paying state fees if the cost of the claim does not exceed RUB 1,000,000. If the value of the claim exceeds RUB 1,000,000, these persons shall pay a state fee in the amount calculated in accordance with subn. 1 p. 1 of Art. 333.21 Tax Code of the Russian Federation and reduced by the amount of the state duty payable at a claim price of 1,000,000 rubles. ( clause 3 of Art. 333.37 Tax Code of the Russian Federation).
Arbitration Procedure Code of the Russian Federation ( Art. 104) it is possible to return and offset the paid state duty. The grounds and procedure for the return or offset of the state duty are established in Nc RF.
So, in accordance with clause 1 of Art. 333.40 Of the Tax Code of the Russian Federation, the paid state duty is refundable in part or in full in the event of:
1) payment of state fees in a larger amount than provided Nc RF;
2) return of an application, complaint or other appeal or refusal to accept them by the arbitration courts.
If the state duty has not been returned, its amount shall be counted towards the payment of the state duty upon re-filing a claim, if a three-year period has not expired from the date of the previous decision and the initial document on payment of the state duty has been attached to the repeated claim;
3) termination of proceedings on the case or leaving the application without consideration by the arbitration court.
When an amicable agreement is concluded before a decision is made by the arbitration court, 50% of the amount paid by the plaintiff of the state fee is subject to refund. This provision does not apply if an amicable agreement is concluded in the course of execution judicial act arbitration court.
The paid state duty is not refundable if the defendant voluntarily satisfies the plaintiff's claims after the latter applies to the arbitration court and makes a ruling on the acceptance of the statement of claim for proceedings;
4) refusal of persons who have paid the state duty before applying to the arbitration court, from filing a statement of claim (statement, complaint).
To the payer who, after paying the state duty, refused to file a statement of claim (statement, complaint), the arbitration court issues, at his request, a certificate stating that the statement of claim, other statement, or complaint has not been submitted to the court. In this case, the ruling on the return of the state duty is not made.
In accordance with clause 3 of Art. 333.40 Tax Code of the Russian Federation, an application for the return of the overpaid (collected) amount of the state duty is submitted by the payer of the state duty to the authority ( official), authorized to perform legally significant actions for which the state fee has been paid (collected), i.e. in this case, to the arbitration court. The application must be accompanied by original payment documents, if the state fee is subject to full refund, and if it is partially refundable, copies of the said payment documents.
The decision to return the overpaid (collected) amount of the state duty to the payer in connection with the appeal to the arbitration courts is made by the relevant court.
The refund of the overpaid (collected) amount of the state duty is carried out by the body of the Federal Treasury.
An application for the return of the excessively paid (collected) amount of the state duty in cases considered in courts shall be submitted by the payer of the state duty to the tax authority at the location of the arbitration court in which the case was considered. The application is accompanied by decisions, rulings, decisions of arbitration courts on the circumstances that are the basis for the full or partial refund of the overpaid (collected) amount of the state fee, as well as original payment documents, if the state fee is to be returned in full, and if it is partially refundable - copies of the specified payment documents.
An application for the return of the overpaid (collected) amount of the state fee may be submitted within three years from the date of payment of the specified amount. The overpaid (collected) amount of the state duty shall be refunded within one month from the date of submission of the said application for refund.
According to clause 6 of Art. 333.40 Tax Code of the Russian Federation, the payer of the state duty has the right to offset the overpaid (collected) amount of the state duty against the amount of the state duty payable for performing a similar action.
Legal costs are the amounts payable for an expert examination appointed by an arbitration court, summoning a witness, on-site examination, and translation services.
The size legal costs does not directly depend on the nature of the dispute and the price of the claim and is different for each specific case depending on the actual costs incurred.
Legal costs associated with the consideration of a case in an arbitration court include the sums of money to be paid to experts, witnesses, translators, costs associated with the examination of evidence on the spot, costs of paying for the services of lawyers and other persons providing legal assistance (representatives), and other expenses incurred by the persons participating in the case in connection with the consideration of the case in the arbitration court ( Art. 106 Agro-industrial complex).
Since legal costs are a procedural category, the costs incurred by the persons participating in the case are reimbursed according to special rules established Agroindustrial complex... In addition, the following should be considered:
1) no separate claim is required to compensate for the relevant expenses - this issue is decided by the arbitration court when making a decision, ruling or ruling, which ends the proceedings, while Agroindustrial complex does not exclude the possibility of consideration by the arbitration court of the issue of distribution of court costs in the same case after the adoption of the judicial act by issuing a separate ruling;
2) the composition of legal costs does not include the lost profit of the person involved in the trial in connection with participation in it;
3) only those expenses that are directly related to the consideration of the case in the arbitration court are taken into account in the composition of legal costs.
The Arbitration Procedure Code of the Russian Federation establishes the rules for the distribution of court costs between the persons participating in the case ( Art. 110).
By general rule all legal costs incurred by the person participating in the case in whose favor the judicial act was issued, the arbitration court shall recover from the other party. In other words, if the decision is made in favor of the plaintiff, then the court costs incurred by him and the paid state fee are recovered from the defendant. The submitted state fee is not returned to the plaintiff.
If the claim is partially satisfied, the court costs are borne by the persons participating in the case, in proportion to the amount of the satisfied claims.
The costs of payment for the services of a representative, incurred by the person in favor of whom the judicial act was adopted, shall be recovered by the arbitration court from another person participating in the case, within reasonable limits.
When determining reasonable limits for the costs of paying for the services of a representative, the following may be taken into account: legal acts; the cost of economical transport services; the time that a qualified specialist could spend on the preparation of materials; the prevailing cost of payment for the services of lawyers in the region; available information from statistical authorities on market prices legal services; the duration of the consideration and the complexity of the case.
Reasonably recovering the costs of a representative from the losing party means that the arbitral tribunal may limit the amount recovered to reimburse these costs if it considers it excessive in the light of the specific circumstances of the case.
In addition, the very person participating in the case, who is entrusted with the reimbursement of court costs, is not deprived of the opportunity to present evidence of their excessiveness, taking into account which the arbitral tribunal has the right to reduce the amount of compensation ( h. 3 tbsp. 111 Agro-industrial complex).
It should be noted that Agroindustrial complex does not give a concept of the reasonableness of the limits when recovering the amount of costs for payment of services of persons providing legal assistance, does not define the criteria of reasonableness, referring these issues to the discretion of the court. Reasonableness is determined on the basis of objective criteria arising from the meaning of legislation and emerging law enforcement practice. The arbitration court, as a rule, determines the amount of expenses for payment of the services of a representative in each specific case. In this case, evidence confirming the reasonableness of the costs of paying for the services of a representative must be submitted by the party claiming reimbursement of these costs.
Judicial practice and legal doctrine have developed certain approaches to resolving the issues of reasonableness of limits when recovering the sums of expenses for payment of the services of a representative and criteria of reasonableness. In particular:
a) the costs of paying for the services of a representative and provided legal assistance must first be incurred, and then they must be reimbursed ( h.h. 1, 2 tbsp. 110 Agro-industrial complex). The sums of money that have not actually been paid to the representative under the contract are not subject to reimbursement, the person participating in the case must document his expenses for the provision of legal assistance by the lawyer;
b) not only expenses related to the participation of the representative in the court session, but also other expenses related to the provision of legal assistance to the party by the representative are subject to reimbursement. The expenses incurred to pay for the services of a representative and legal assistance are not reimbursed by the arbitration court on the basis of calculating a certain proportion, for example, from incurred expenses or collected amounts, etc .;
c) the amount of reimbursement to the party of expenses must be correlated with the volume of the protected right, be less than the volume of the protected right and benefit. Significant expenses that are not justified by the value of the right to be protected or by the simplicity of the case may be considered unreasonable;
d) criteria of reasonableness in determining the amount of reimbursement of expenses for payment of services of a representative, in particular, may also be: norms of expenses for business trips established by legal acts; the cost of economical transport services; the time that a qualified specialist could spend on the preparation of materials; the prevailing cost of payment for the services of lawyers in the region; available information of statistical authorities on prices in the market for legal services; the duration and complexity of the case; the cost of the claim, the time of the lawyer's participation in the arbitration process, the current price list for the provision of legal assistance by lawyers in the given region; the amount of work actually performed by the lawyer within the framework of providing legal assistance, including the actions taken to prepare for the court session, the selection of documents and writing an application to the court, representation of interests in court;
e) when the defendant contested the amount of expenses incurred by the plaintiff to pay for legal aid, the defendant must substantiate his arguments about the overestimated amount of compensation.
The persons participating in the case can independently decide on the distribution of court costs. If there is an agreement between the parties to the case, the arbitral tribunal makes a decision in accordance with this agreement.
The arbitral tribunal has the right to attribute all legal costs in the case to the person who abuses his procedural rights or not fulfilling his procedural duties, if this has led to the disruption of the court session, the delay in the trial, obstruction of the consideration of the case and the adoption of a lawful and well-grounded judicial act.
The arbitral tribunal has the right to reduce the amount of compensation if this person presents evidence of their excessiveness at the request of the person participating in the case, who is charged with the reimbursement of court costs ( h. 3 tbsp. 111 APC RF)
According to Art. 112 The Arbitration Procedure Code of the Russian Federation issues of distribution of court costs are resolved by the arbitration court considering the case in a judicial act, which ends the consideration of the case on the merits, or in a ruling. This determination can be appealed against.
Arbitration Procedure Code The Russian Federation does not exclude the possibility of consideration by an arbitration court of an application for the distribution of court costs in the same case when it is filed after the decision of the court of first instance, decisions of the courts of appeal and cassation instances.
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Solution of the arising in the process economic activity disputes with contractors, whether debt collection, recognition of the contract as invalid or any other dispute is always associated with the need to incur expenses.
Moreover, the costs can be borne by both the plaintiff and the defendant. So, the most effective is to attract or another person providing legal assistance for representing your interests in an arbitration court.
Today's article will focus on legal costs for the services of a representative, or rather, the reimbursement of such costs at the expense of his procedural opponent.
If earlier the Arbitration Procedure Code of the Russian Federation (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation) did not provide for how the costs of paying for services were reimbursed, which in turn deprived the party to the dispute to reimburse the costs incurred, then in the current Arbitration Procedure Code of the Russian Federation this issue is settled.
Regardless of whether the costs of paying for the services of a representative are attributed to losses in the civil law sense, or to court costs, and in the legal literature, before the adoption of the new Arbitration Procedure Code of the Russian Federation, discussions appeared on this topic, having decided to most effectively protect their rights and legitimate interests you can expect to be reimbursed for these costs.
Of course, on the issue of the distribution of the costs of paying for the services of a representative, as well as other court costs, the parties to the case may come to an agreement, in particular, to provide for an appropriate provision in. Moreover, the court has the right to approve the corresponding agreement of the parties on the distribution of court costs and at the stage of execution of the court decision.
However, in practice, the parties rarely agree on the distribution of court costs.
As you know, legal costs include the cost of paying state fees and legal costs (Art. 101 of the Arbitration Procedure Code of the Russian Federation).
Costs of a legal representative are legal costs, this is directly provided for by Art. 106 of the Arbitration Procedure Code of the Russian Federation, according to which court expenses include the costs of paying for the services of lawyers and other persons providing legal assistance (representatives).
According to Part 2 of Art. 110 of the APC RF, the costs of payment for services incurred by the person in whose favor the decision was made are recovered by the arbitration court from another person within reasonable limits.
Actually, the opportunity provided by the Arbitration Procedure Code of the Russian Federation to the court to independently reduce the amount of expenses recovered for a representative has already been the subject of consideration by the Constitutional Court of the Russian Federation (see Definition of 12/21/2004 No. 454-О), which indicated that it was to exercise its right to reduce the amount of costs subject to recovery per representative only if the court finds these costs excessive due to the specific circumstances of the case.
Also Constitutional Court The Russian Federation indicated that when making a decision to change the amount of the amounts recovered to reimburse the corresponding costs, the court has no right to reduce it arbitrarily, especially if the other party does not object and does not provide evidence of the excessive costs recovered from it.
Thus, the Constitutional Court of the Russian Federation recognized Part 2 of Art. 110 APC not contradicting the Constitution of the Russian Federation.
It is obvious that the right to determine the amount of the expenses to be collected for paying for the services of a representative is given to the court in order to fulfill the court's duty to maintain the balance of procedural rights and obligations.
As you know, it can be very different. How will the amount of expenses for a representative be determined to be collected?
The courts determine the amount of expenses for the services of a representative based on several facts, including the number of court hearings held on a particular case, the degree of complexity of the case, the need to collect evidence in the case, and, oddly enough, from the presence of similar cases in court proceedings with the participation of the same representative ...
As indicated in clause 20 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 13.08.2004 “On some issues of the application of the Arbitration procedural code Of the Russian Federation "when determining reasonable limits for the costs of paying for the services of a representative, the following may be taken into account, in particular: the rates of expenses for business trips established by legal acts; the cost of economical transport services; the time that a qualified specialist could spend on the preparation of materials; the prevailing cost of payment for the services of lawyers in the region; available information of statistical authorities on prices in the market for legal services; the duration of the consideration and the complexity of the case.
Moreover, the party that requires collect expenses for a representative is obliged to provide the court with evidence confirming the reasonableness of the costs of paying for the services of a representative.
Quite interesting is also the legal position concerning the reasonable limits for the recovery of costs for a representative in court, formed by the Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 2598/12 of 24.07.2012 in case No. A40-45684 / 11-99-202. The court pointed out that the equality of the amount of expenses for protecting the interests of society in the amount of the protected property interest or its exceeding does not indicate the unreasonableness or excessiveness of such expenses, since the amount of the property interest is not a factor that in itself indicates the reasonableness or excessiveness of the costs incurred to protect it ...
Thus, from all of the above, we can conclude that in order for your expenses to pay for the services of a representative to be reimbursed, you must:
First, to apply to the court for reimbursement of such costs.
Secondly, prove the fact that you incurred such expenses. Evidence of the costs of paying for the services of a representative is clearly a document confirming the payment, for example, payment order with the bank's mark of execution.
Third, to prove to the court the reasonableness of the expenses incurred for the representative.
Personally, I always include in a statement of claim a requirement to recover legal costs from the defendant.
Good day!
The question "what to do" is very abstract. I can only answer that you need to submit an objection to the defendant's statement to the court. But I can't tell you the grounds on which you can object without understanding the circumstances of the case.
In fact, if you deliberately, acting with the aim of causing harm to the transport company, filed a lawsuit against it, then, apparently, you will have to answer. And if the transport company itself is to blame for the fact that it was indicated as a defendant, then this is another question.Best wishes,
Lawyer Mugin Alexander S.Alexander, thank you. I will get acquainted with their claims and write an objection.
I did not act with the aim of harming, but with the aim of returning the money paid for the goods of inadequate quality. The goods were accepted, but the money was not returned for more than 2 months. I had a check from a transport agency, so he turned out to be the defendant.
Those. the transport agency provided cash services and delivery of the store's goods.
Good day!
If the parties recognize the amount of expenses for a representative, then nothing additional is required.Best wishes,
Lawyer Mugin Alexander S.Good day!
You can ask the court to reduce the amount of legal costs (you yourself cannot), referring to the circumstances set out in the article (unreasonableness, not reasonableness, excessiveness). At the same time, it is not clear to me on what basis the plaintiff is asking to recover legal costs (within the framework of relevant cases or as losses).Best wishes,
Lawyer Mugin Alexander S.-
Good day!
The court will arrange documents confirming the costs, from which it is clear who paid to whom and for what.Best wishes,
Lawyer Mugin Alexander S.
Kind! LLC SK Gasya filed a claim against LLC Zasya for reimbursement of the sum insured for the insured event - not the point. True, he chose Zasya LLC as a defendant only by name, filed it without bothering to make sure that the defendant was this one under the contract. Then there was the first meeting in the Moscow Arbitration Court - the judge left the claim without consideration (I will say right away that there were no motions for compensation for the representative) - then SK Gasya appealed to the ninth appeal court - there the judge also upheld the ruling of the first judge and both times the plaintiff did not appear in the court-question is whether it is realistic to recover from the IC Gasya the costs incurred for representation in the ninth court of appeal, for the director of LLC Zasya hired a representative for this process, concluded an agreement, paid for the services and all the documents are there ???? Thank you in advance for your answer!
Good evening. The final part of the court decision in my case has been announced today. The court recovered from my "offenders" the entire amount, incl. and examination costs. But since the car belongs to my father, I was his proxy. So, in court, I forgot to declare about the recovery of the cost of the power of attorney in the amount of 1,500 rubles, and about the cost of photographs for the case materials for 300 rubles. It's a trifle, but it's a shame that I didn't say it. As if I had lost 1800 rubles. Is it possible now to write a statement on the recovery of this money, and which article of the Code of Civil Procedure to refer to.
Thanks.
Hello.
Please tell me what to do in such a situation:
I am a plaintiff, I filed a statement of claim to recover money from the defendant (transport company). By correspondence decision the court made a decision to recover.
The defendant petitioned for its cancellation, t.to. was not present at the meeting and did not know anything. Another defendant (shop) was recognized by a new court decision, and that decision was canceled. I didn’t dispute the new decision (I didn’t attend the meetings), since I didn't care who paid me the money.
Now the first defendant (the transport company) is filing a statement of claim, where, as the defendant, I am, I must pay them the amount for the services of a representative.
Thanks.
Alexander, good afternoon! Help with advice, please, the situation is this: by amicable agreement, the Defendant agrees to compensate the Plaintiff for the costs of the services of the Plaintiff's representative and this is spelled out in the amicable, whether in this case it is necessary to confirm to the arbitration court the fact of these costs (attach the payment order) in the hearing before the approval of the amicable agreement. When filing the claim documents in confirmation of the fact of payment for the representative's services were not attached - only the contract was submitted. Thanks!
Good afternoon. I have such a situation: I divorced my husband and in judicial procedure we shared an apartment purchased with a mortgage. The mortgage must be paid at 1/2. Due to some circumstances, my husband drove me into debt and I could not voluntarily pay the mortgage. He went to court every six months and collected from me half of the money paid on the mortgage. Nobody went to court, I only resorted to the statements and wrote about the recognition of the claims and the money was collected through the bailiff service. Thus, he went to court 5 times. The applications are written the same with only a change in the filing date. I always collected the same amount.
After some time, he sold the apartment (his share) and in the same way collected from me another 3000 thousand (he wrote a statement, did not come to court, I agreed with the requirements).
Now he went to court to recover legal costs from me for filing applications in court for 5 tr. for each and for the last fact 30 thousand. The payment for the first five also includes the preparation of an application, legal documents and consultations, in different positions for different amounts (only 5 tr.)
Can I reduce the cost of a representative? Which articles should be guided by?
Court expenses - the sums of money paid by the participants in the process during the consideration of the case by the arbitration court and with the aim of fully or partially covering the funds that are necessary for the administration of justice.
In accordance with Art. 101 APC court costs consist from state fees and legal costs related to the consideration of the case by the arbitration court. Payment of court costs is a prerequisite for interested parties to initiate and conduct a case in the arbitration process. The need for their compensation by the participants in the process follows both from the principle of dispositiveness and procedural equality of the parties and reflects the need to independently conduct their cases in court.
The difference between the state fee and the costs associated with the consideration of a case by an arbitration court is as follows.
National tax is a fee fixed in the Tax Code of the Russian Federation, paid to the state (federal budget) when certain procedural actions are performed in an arbitration court. The payers of the state duty are organizations and individuals, including citizens of the Russian Federation, foreign citizens, stateless persons, Russian and foreign organizations.
The size of the state fee. The state duty is subdivided into 3 types:
Proportional the state fee is levied depending on the value of the claim, and the amount simple duties are fixed in the law. Mixed the duty is calculated and levied both in a fixed amount and on the cost of the claim.
A proportional government fee is tied to the value of the claim.
Under at the cost of a claim means the value of the claimed property, monetary funds or other rights that have a value. The cost of the claim is determined:
1) on claims for the recovery of funds based on the amount recovered;
2) on claims for recognition as not enforceable an executive or other document, according to which the collection is carried out in an indisputable (non-acceptance) manner, proceeding from the disputed amount of money;
3) on claims for the reclamation of property based on the value of the claimed property;
4) on claims for reclamation land plot based on the value of the land plot.
The price of the claim also includes the amounts of the forfeit (fine, penalties) and interest specified in the statement of claim.
Price of a claim consisting of several independent requirements, is determined by the sum of all requirements.
On statements of claim for the recognition of rights, including property rights, use rights, ownership rights, disposal rights, state duty is paid in the amount established for claims of a non-property nature.
Legal costs wear more compensatory nature and paid in connection with the need for the parties to bear various costs in the course of the case. In accordance with Art. 106 APK legal costs associated with the consideration of a case in an arbitration court include amounts of money payable to experts, witnesses, translators, costs associated with the examination of evidence on the spot, costs of paying for the services of lawyers and other persons providing legal assistance (representatives), costs of a legal entity for notification of a corporate dispute in the event that federal law provides the duty of such notification, and other expenses incurred by the persons participating in the case in connection with the consideration of the case in the arbitration court.
At the same time, both the state fee and legal costs are ultimately distributed among the persons participating in the case, depending on the results of the consideration of the case.
Objectives of legal regulation of court costs: At first , judicial system and in general, the legal infrastructure of modern society is quite costly, in connection with which it becomes necessary to compensate for the costs of its maintenance. Secondly , legal regulation institute of legal costs allows to a certain extent reduce the appeal to courts with obviously unfounded requirements, and can also stimulate debtors to civil circulation to fulfill their obligations under the threat of compensation in case of satisfaction of the claim of all legal costs. Thirdly , it should be borne in mind social functions justice, leaving an imprint on the regulation of court costs, especially the rates of state fees and the procedure for their payment.
Allocation of court costs between the persons involved in the case. In general the rule of court costs incurred by the persons participating in the case, in favor of whom the judicial act was adopted, shall be recovered by the arbitration court from the side ... If the claim is partially satisfied, the court costs are borne by the persons participating in the case in proportion to the amount of the satisfied claims.
The costs of payment for the services of a representative, incurred by the person in favor of whom the judicial act was adopted, shall be recovered by the arbitration court from another person involved in the case , within reasonable limits (part 2 of article 110 of the APC). According to Art. 25 FZ "On advocacy and the Bar in the Russian Federation ”the amount of remuneration for the provided legal assistance is fixed in the agreement between the lawyer and the client. The final amount of funds to pay for the services of a representative, collected by the arbitration court, may be less than the amount specified in the agreement, depending on the arbitration court's understanding of its reasonableness.
National tax, from the payment of which in the prescribed manner the plaintiff was released , recovered from defendant in income federal budget in proportion to the amount of satisfied claims if the defendant is not exempted from paying the state fee. Upon agreement of persons , participating in the case on the distribution of court costs, the arbitration court assigns to them the court costs in accordance with this agreement. Legal expenses incurred by the persons participating in the case in connection with the consideration appeal, cassation appeal are distributed according to the same rules.
Issues of distribution of court costs, attribution of court costs to the abuser their procedural rights, and other questions about legal costs are resolved by the arbitration court of the relevant judicial instance in a judicial act, which ends the consideration of the case on the merits, or in a ruling.
Arbitration Procedure Code, N 95-FZ | Art. 110 APC RF
Article 110 of the APC RF. Distribution of court costs between the persons participating in the case ( current edition)
1. Court costs incurred by the persons participating in the case, in favor of whom the judicial act was adopted, shall be recovered by the arbitration court from the side.
In the event that the claim is partially satisfied, the court costs are borne by the persons participating in the case, in proportion to the amount of the satisfied claims.
2. The costs of payment for the services of a representative, incurred by the person in whose favor the judicial act was adopted, shall be recovered by the arbitration court from another person participating in the case, within reasonable limits.
3. The state duty, from which the plaintiff was exempted in accordance with the established procedure, shall be collected from the defendant to the federal budget in proportion to the amount of the satisfied claims, if the defendant is not exempted from paying the state duty.
4. If the parties to the case agree on the distribution of court costs, the arbitration court shall charge them the court costs in accordance with this agreement.
5. Court costs incurred by the persons participating in the case in connection with the consideration of the appeal, cassation complaint shall be distributed according to the rules established by this article.
5.1. Legal costs incurred by third parties who do not declare independent claims regarding the subject of the dispute and who participated in the case on the side in favor of which the judicial act in the case was adopted can be reimbursed to them if their actual behavior as participants trial contributed to the adoption of this judicial act.
5.2. If a third party who does not declare independent claims regarding the subject of the dispute has exercised the right to appeal a judicial act and his complaint was dismissed, legal costs incurred by the persons participating in the case in connection with the consideration of this complaint may be recovered from this third party ...
6. Unpaid or incompletely paid expenses for the examination are subject to collection in favor of the expert or the state forensic institution from the persons participating in the case, in proportion to the size of the satisfied claims.
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Commentary on Art. 110 APC RF
1. Court costs incurred by the persons participating in the case, in favor of whom the judicial act was adopted, shall be recovered by the arbitration court from the other side, that is, from the side against whose interests the decision was made.
2. Amounts due to the costs of travel, rental of premises, the amount of daily subsistence allowance, as well as remuneration for the work performed, shall be paid from the amounts contributed by the parties, unless the parties are exempted from paying court costs in the case; in these cases, payment is made from the funds released according to the estimate.
3. When resolving by the courts disputes related to the execution of surety agreements, it is necessary to take into account that, based on paragraph 2 of Art. 363 of the Civil Code of the Russian Federation, the obligation of the surety to the creditor is that he must be liable for the debtor in the same amount as the debtor, including reimbursement of legal costs for collecting the debt and other losses of the creditor caused by non-performance or improper performance of the obligation by the debtor, unless otherwise stipulated by the surety agreement.
4. Unless otherwise provided by the contract, the mortgage also ensures payment to the pledgee of the amounts due to him in reimbursement of legal costs and other expenses caused by foreclosure on the pledged property (subparagraph 3 of part 3 of paragraph 1 of article 3 of the Federal Law of July 16, 1998 year N 102-FZ "On mortgages (pledges of real estate)").
5. The collection of court costs from the foreign firm - the defendant is carried out according to legal address a representative office (branch) of a foreign company in the Russian Federation or at the address of authorized representatives - residents of the Russian Federation. Namely, in the case when a foreign person has a branch or representative office on the territory of the Russian Federation and in the regulations on the branch, representative office (or in a power of attorney) it is provided that they are authorized to pay court costs in the territory of the Russian Federation, payment of court costs can be made from the accounts of these branches or representative offices. In the same case when a foreign party issues a power of attorney for representation for a Russian legal entity, stipulating the latter's obligations to pay the state fee, legal costs may be reimbursed by a proper representative of the foreign party.
6. The decision of the arbitration court or the ruling of the arbitration court adopted on the basis of the results of the consideration of the bankruptcy case shall establish the procedure for the distribution of court costs and expenses for the payment of remuneration to the arbitration manager.
7. Unless otherwise provided by the Federal Law "On Insolvency (Bankruptcy)" or the decision of the meeting of creditors, all legal costs, including the cost of paying the state fee, which was deferred or deferred, the cost of publishing information in the manner prescribed by Art. 28 of the Federal Law "On Insolvency (Bankruptcy)", and the costs of payment of remuneration to arbitration managers in a bankruptcy case and payment for the services of persons engaged by arbitration managers to ensure the performance of their activities are attributed to the debtor's property and reimbursed from this property out of turn.
8. The settlement agreement may provide for a different procedure for the distribution of these costs.
9. If, based on the results of the consideration of the validity of the creditors' claims by the arbitration court, a ruling has been made to refuse to introduce supervision and to leave the application without consideration or to refuse to introduce supervision and to terminate the proceedings on the case, except for satisfying the applicant's claims after filing the application for declaring the debtor bankrupt, the costs stipulated above are borne by the applicant who has applied to the arbitration court with the creditor's statement. If the bankruptcy creditors have combined their claims and set them out in one application, the above expenses are distributed among the applicants in proportion to the amounts of their claims (parts 1 and 2 of Article 59 of the Federal Law "On Insolvency (Bankruptcy)").
10. In the event of a refusal in a claim filed by the prosecutor in the interests of the enterprise, the state duty cannot be collected from the plaintiff.
11. The party in favor of which the decision was made has the right to reimbursement of legal costs at the expense of the other party, as well as to reimbursement of losses caused by the security of the claim, to recover remuneration for the loss of time.
12. When the cassation court makes a new decision, it provides for the distribution of court costs between the parties in the order. When a judicial act is canceled with the transfer of the case for a new consideration, the issue of the distribution of court costs shall be resolved by the arbitration court, which is considering the case again.
13. Part 2 comments. Article grants the arbitral tribunal the right to reduce the amount to be recovered in reimbursement of the corresponding costs of paying for the services of a representative. Since the implementation of this right by the court is possible only if it recognizes these costs as excessive due to the specific circumstances of the case, despite the fact that, as the Constitutional Court of the Russian Federation has repeatedly pointed out, the court is obliged to create conditions under which the necessary balance of procedural rights and obligations of the parties would be observed , this norm cannot be considered as violating constitutional rights and the applicant's freedom.
14. The obligation of the court to recover the costs of payment for the services of a representative, incurred by the person in favor of whom the judicial act was adopted, from another person participating in the case, within reasonable limits, is one of those provided by law. legal ways, directed against unreasonable overstatement of the amount of payment for the services of a representative, and thereby - on the implementation of the requirement of Part 3 of Art. 17 of the Constitution of the Russian Federation. That is why in ch. 2 comments. The article deals, in essence, with the obligation of the court to establish a balance between the rights of the persons participating in the case. Arbitration Procedure Code of the Russian Federation. Court costs incurred by the persons participating in the case, in favor of whom the judicial act was adopted, shall be recovered by the arbitration court from the losing party within reasonable limits (parts 1 and 2 of Article 110 of the Arbitration Procedure Code of the Russian Federation). Determination of reasonable limits for the costs of paying for the services of a representative is an evaluative concept and is concretized taking into account the legal assessment of the factual circumstances of the case considered ...
The courts recognized the requirements of the Entrepreneur in the indicated amount as justified. When accepting judicial acts in the part complained of by the applicant, the court of first instance, with which the court of cassation agreed, was guided by the provisions of Articles 101, 110 of the Arbitration Procedure Code of the Russian Federation and proceeded from the existence of legal grounds for imposing expenses on payment of the cost of examinations on the Company, since the law established the principle of attribution legal costs on the losing party ...
In the arbitration procedural legislation, the compensatory principle of reimbursement to a party in a dispute of all expenses incurred by it associated with joining or involving it in the trial is in effect, at the expense of the losing party. In accordance with Art. 110 of the APC, court costs incurred by the persons participating in the case, in favor of whom the judicial act was adopted, are recovered by the arbitration court from the side. Such a judicial act can be not only a decision of the court of first instance, but also a ruling on the termination of proceedings on a case, a ruling on leaving an application without consideration, a ruling or a ruling of a court of appeal, cassation, supervisory instance, which completed the proceedings on the case at the appropriate stage of the process.
The circle of persons entitled to reimbursement of court costs or performing a duty of the same name is not limited only to the parties. The right to reimburse legal costs is also vested in other persons participating in the case, namely: third parties, as well as interested parties. Persons who did not participate in the case, about whose rights and duties the court adopted a judicial act, persons whose rights, freedoms and legitimate interests are violated by a judicial act, when appealing these judicial acts, enjoy the rights and fulfill the duties of persons participating in the case, including associated with the reimbursement of legal costs.
From the burden of legal costs in arbitration released prosecutor (Article 52 of the APC). This means that if the arbitration court decides to refuse to satisfy the demands of the prosecutor, court costs will be reimbursed to the person in favor of whom the judicial act was adopted, at the expense of the treasury of the Russian Federation. Costs in cases involving government agencies and local self-government bodies, not in favor of which a judicial act was adopted, are subject to compensation by the relevant body.
General rules distribution of court costs are as follows.
If all claims are satisfied, the court will recover all legal costs from the defendant in favor of the plaintiff: namely, the amount of the paid state fee, as well as all legal costs incurred by the plaintiff in the case, including the costs of paying for the services of a representative. Conversely, if the claim is completely rejected, the plaintiff loses the right to reimbursement of costs, and all legal costs incurred by him are awarded in favor of the defendant.
Used by the legislator in Art. 110 APC the phrase "in favor of the person" characterizing the outcome of the case should be associated not only with specific wording in the operative part of the decision, but also with the circumstances of the substantive dispute that arose before the trial. "Winning" the case by the plaintiff is also possible if the claim is rejected, if the fact of satisfaction of the claim by the defendant after going to court is established in the court session. Conversely, the satisfaction of the claim does not always mean the “winning” the case by the plaintiff due to the need to establish in the process the facts of violation or challenge the rights of the plaintiff by the defendant.
Arbitrage practice
In cases where the satisfaction of the requirements for the establishment of its market value in relation to the real estate object is reduced to the implementation in court of the applicant's right to establish the cadastral value in the amount of the market value, which is not disputed by the interested person involved in the case, neither on the grounds of occurrence, nor on the content (in particular, in terms of market value), legal costs are borne by the applicant. However, since this position The RF Armed Forces disagreed with the RF Constitutional Court, which rightly pointed out that when considering selected categories cases, it is necessary to take into account their specifics, but any differences, including those related to the distribution of court costs, must be stipulated in the law and be justified.
The distribution of court costs at the end of the trial without making a decision is as follows. In most cases, the circumstances that are the basis for leaving the application without consideration (Art.148 of the APC) or termination of the proceedings (Art.150 of the APC) are due to the mistake of the person initiating trial(for example, treatment of inappropriate Judicial authority), therefore, legal costs will be attributed to him. Under circumstances of an objective nature, such as the death of a citizen or the liquidation of a legal entity, resulting in the termination of the proceedings, court costs are not allocated. If the proceedings are terminated due to the plaintiff's refusal from the claim in connection with the voluntary satisfaction of his claims by the defendant, after the plaintiff applies to the court, legal costs are recovered from the defendant.
In case of partial satisfaction of the claim, court costs are borne by the persons participating in the case, in proportion to the amount of the satisfied claims. This means that court costs are awarded to the plaintiff in proportion to the amount of the satisfied claims and to the defendant - in proportion to the part of the claims in which the plaintiff was denied. So, if the court declared by the plaintiff 100,000 rubles. will recover from the defendant only half, i.e. 50,000 rubles, then court costs will be recovered from the defendant only in half of their total amount.
However, this rule will not always apply. The provisions procedural legislation on proportional compensation (distribution) of legal costs shall not be applied when permitting:
- - a claim of a non-property nature, including a claim that has a monetary value, aimed at protecting personal moral rights(for example, on compensation for moral damage);
- - a claim of a property nature that cannot be assessed (for example, for the suppression of actions that violate a right or create a threat of its violation);
- - claims for the recovery of a forfeit, which is reduced by the court due to the disproportionate consequences of the violation of the obligation, the receipt by the creditor of unjustified benefits (Article 333 of the Civil Code).
Special rules distribution of court costs is predetermined by special circumstances specified in the law that are not related to the results of the resolution of the case on the merits.
First special rule allows the participants in the process to decide the fate of the legal costs incurred. The persons participating in the case may conclude attorney-fees agreement(for example, when concluding an amicable agreement). In this case, the arbitration court distributes the court costs in accordance with such an agreement (part 4 of article 110 of the APC).
The second special rule is associated with situations when the arbitration court, regardless of the results of the consideration of the case, can attribute all judicial costs to the abuser their procedural rights or not fulfilling their procedural responsibilities. This can happen in several cases:
- - if the dispute arose as a result of a violation by the person participating in the case, a claim or other pre-trial order settlement of a dispute provided for by federal law or an agreement, including violation of the deadline for submitting a response to a claim, leaving a claim unanswered (part 1 of article 111 of the APC);
- - if a person has abused his procedural rights or failed to fulfill his procedural duties and this has led to a disruption court session, delaying the trial, obstructing the consideration of the case and the adoption of a lawful and well-grounded judicial act (part 2 of article 111 of the APC).
Abuse of rights and failure to fulfill obligations as grounds for attributing court costs are specified by the APC in relation to two types of violations:
- - submission of evidence in violation of the procedure established by the APC, including in violation of the time limit for the submission of evidence established by the arbitration court (part 5 of article 65 of the APC);
- - the defendant's failure to submit a response to the statement of claim (part 4 of article 131 of the APC).
It is important to note that bearing the burden of legal costs will vary in legal nature depending on the basis of their distribution between the persons participating in the case.
General rules - there is a manifestation of adversarial principles, where the thesis "the one who loses pays" dominates.
The special rule on the agreement of the parties illustrates the operation of the principle of dispositiveness, which allows the parties to the dispute to dispose of substantive rights and procedural means of their protection at their discretion.
The attribution of court costs to a person who abuses his procedural rights or does not perform procedural duties is a measure of arbitration procedural responsibility (A. V. Yudin).
Questions about the distribution of court costs are resolved in the final judicial act on the case. In some cases, the question of the distribution of court costs may be decided in the determination.
If, based on the results of the consideration of the case in the first instance, as well as in the verification instances, the issue of court costs is not resolved, the person concerned has the right to submit an application to the arbitration court that considered the case as a court of first instance within six months from the date of entry into force of the last judicial the act, the adoption of which ended the consideration of the case on the merits. Skipped by good reason the term for filing such an application can be restored by the court (Art. 112 of the APC).
- See: Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of July 11, 2014 No. 46 "On the Application of Legislation on State Fees in Considering Cases in Arbitration Courts."
- See: Resolution of the Plenum of the Armed Forces of the Russian Federation of June 30, 2015 No. 28 "On some issues arising in the consideration of cases by courts challenging the results of determining the cadastral value of real estate objects."
- See: Resolution of the Constitutional Court of the Russian Federation of July 11, 2017 No. 20-P.