R.G. Volkova *
JUDICIAL DISPUTING OF REGULATORY LEGAL ACTS OF A SUBJECT OF THE RUSSIAN FEDERATION
The problem of the quality of the current legislation, including the regional one, has given rise to various ways of identifying and eliminating the existing shortcomings of regulatory legal acts, one of which is their judicial challenge.
The concept of challenging regulatory legal acts. V Russian legislation, in relation to the verification by the court of the compliance of the contested legal acts with laws and regulations legal acts of higher legal force, different terms are used: “challenge” 1, “appeal” 2, “verification of constitutionality” 3, which does not contribute to clarity and unambiguity in the formulation of the relevant norms of legal acts, making it difficult to interpret and apply them. A variety of terms needs unification, the development of a single generalizing concept.
Of all the above terms used by the legislator to denote judicial control of the legality of the norm-
* Volkova Raisa Grigorievna - Researcher of the Department of Law of the Institute of Philology and Problems of the Ural Branch of the Russian Academy of Sciences.
1 Code of Civil Procedure Russian Federation(Ch. 24) // Collected Legislation of the Russian Federation, 2002. No. 46. Art. 4532; The Arbitration Procedure Code of the Russian Federation (Ch. 23) // Collected Legislation of the Russian Federation, 2002. No. 30. Art. 3012.
2 Law of the Russian Federation of April 27, 1993 No. 4866-1 "On appealing in court actions and decisions that violate the rights and freedoms of citizens" // Bulletin of the Council of People's Deputies and the Supreme Soviet of the Russian Federation, 1993. No. 19. Art. 685; Federal Constitutional Law of July 21, 1994 No. 1-FKZ "On the Constitutional Court of the Russian Federation" // Collected Legislation of the Russian Federation, 1994. No. 13. Art. 1447 (chapter XII).
3 Federal Constitutional Law of July 21, 1994 No. 1-FKZ "On the Constitutional Court of the Russian Federation" // Collected Legislation of the Russian Federation, 1994. No. 13. Art. 1447 (Art. 72, 84-87, etc.).
tive legal acts, the broadest in scope and general in meaning is “challenging a normative legal act”, therefore it can be used as a universal one. Its generalizing character is also noted in the literature. In particular, D.I. Cherkaev understands the term “challenging” legal acts “as the most common for court cases, during which the subject of the dispute is the verification of the legal force (binding) of a legal act” 1.
The term “challenging normative legal acts” was first officially applied by the legislator in the Federal Law of August 7, 2000 No. 120-FZ “On Amendments and Additions to the Civil Procedure Code of the RSFSR” 2. The current procedural legislation - the Arbitration Procedural Code of the Russian Federation of 20023 (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation) and the Civil Procedure Code of the Russian Federation of 20024 (hereinafter referred to as the Code of Civil Procedure of the Russian Federation) devote separate chapters to judicial consideration of cases on challenging regulatory legal acts, without defining the very concept of challenging regulatory legal acts.
In the general literary sense, the concept of "challenging" is interpreted as a declaration as controversial, a statement of disagreement with something5, which may well be used in determining the legal meaning of the term under study. Since in itself appeal to Judicial authority for resolving the issue of compliance of a specific regulatory legal act with the law or
1 Cherkaev D.I. How to challenge legal acts of authorities in court state power and local government// Russian tax courier, 2001. No. 12.
2 Collected Legislation of the Russian Federation, 2000. No. 33. Art. 3346.
3 Federal Law of the Russian Federation of July 24, 2002 No. 95-FZ // Collected Legislation of the Russian Federation, 2002. No. 30. Art. 3012.
4 Federal Law of the Russian Federation of November 14, 2002 No. 138-FZ // Collected Legislation of the Russian Federation, 2002. No. 46. Art. 4532.
5 Ozhegov S.I. Dictionary of the Russian language. M .: Russian language, 1989.S. 373.
another normative legal act of greater legal force indicates the presence of a dispute, the lack of agreement between the parties. In this case, there is a dispute, the subject of which is the conformity or inconsistency of a regulatory legal act with another regulatory legal act of great legal force.
The legality of a normative legal act can only be challenged in court. The law does not provide for any mandatory pre-trial procedures for resolving doubts about the legality of the contested act. Moreover, a legal act acquires the status of a contested one only if the rule-making body disagrees with its assessment as not complying with a normative legal act of higher legal force and the interested person applies to the court to resolve the contradiction that has arisen.
The following definition of the concept under study can be proposed: challenging a normative legal act is an official appeal of an interested person to the court with an application to resolve the issue of the legality of a normative legal act, which, in the applicant's opinion, does not correspond to a normative legal act of greater legal force.
To appeal to the court with an application for challenging a normative legal act, procedural legislation provides for general and special requirements. Common to all applicants is the requirement that the contested act does not comply with a normative legal act of higher legal force. As a special requirement (for citizens) is the violation by the contested act of the rights and legitimate interests the applicant. In this part, the concept of "challenge" includes the concept of "appeal" and acts in relation to it as broader in scope.
For a long time, the concept of “appeal” in the legal literature has been defined unambiguously with the concept of “complaint”, as “an appeal to a state or public body or their officials regarding the violation of the rights and legally protected interests of a specific person (citizen, public organization, enterprise, etc.). etc.) "1. M.V. Karasev, given the
1 Legal encyclopedic dictionary. M .: Sov. encyclopedia, 1987.S. 122.
changing the term "appeal" in the Constitution of the USSR of 1977, clarifies its previously valid meaning and defines it as "an appeal (in the sense of active action of a citizen) or a collective of citizens to the competent authorities in order to protect (restore) personally his (their) violated rights and legal interests "1. Therefore, an appeal is possible only in cases of violation of the rights and legally protected interests of a particular person.
Verification of the constitutionality of normative legal acts is a concept used in the consideration by the Constitutional Court of the Russian Federation of cases on the compliance of normative legal acts (including regional ones) with the Constitution of the Russian Federation and can be regarded as a special case of challenging normative legal acts in a particular court. Therefore, its scope, undoubtedly, is narrower than the scope of the concept of "challenging" regulatory legal acts.
Regulatory legal acts of the constituent entity of the Russian Federation that can be challenged in court. Types of regulatory legal acts of the constituent entities of the Russian Federation that can be challenged in judicial procedure are listed in the Federal Law of October 6, 1999 No. 184-FZ "On general principles the organization of legislative (representative) and executive bodies of state power of a constituent entity of the Russian Federation ”2. In accordance with paragraph 5 of Art. 27 of the above law, the laws of the constituent entity of the Russian Federation, legal acts of the legislative (representative) body of state power of the constituent entity of the Russian Federation, legal acts of bodies executive power of a constituent entity of the Russian Federation and legal acts of their officials that violate the rights and freedoms of man and citizen, the rights of public associations and local self-government bodies.
Depending on the legal force, the normative legal acts of the constituent entities of the Russian Federation are subdivided into laws and having less legal force
1 Karaseva M. V. Constitutional right of citizens of the USSR to appeal. Voronezh: Voronezh State Publishing House. University, 1989.S. 20.
2 Collected Legislation of the Russian Federation, 1999. No. 42. Art. 5005.
subordinate normative legal acts. The highest legal force among the laws of the constituent entities of the Russian Federation is the constitution or the charter of the constituent entity of the Russian Federation1.
Regulatory legal acts, depending on their status, can also be subdivided into valid and inactive. Normative legal acts adopted and published in accordance with the procedure established by law are in force. Inoperative are normative legal acts that have not entered into force, become invalid and acts that have been suspended.
An analysis of the norms of law allows us to conclude that only normative legal acts (their individual provisions), which at the time of applying to the court were valid and entailing a violation of civil rights and freedoms, requiring judicial restraint, can be challenged in court. This conclusion follows primarily from mandatory requirement the legislator to indicate in the application for challenging a normative legal act information about its publication2. “If the applicant does not provide information about the publication of the contested normative act, then the judge must leave the application without progress ”3 and give the applicant a time limit to eliminate the identified deficiencies. If the judge's instructions are not followed, the application is returned to the applicant (Article 136 of the Code of Civil Procedure of the Russian Federation).
By virtue of paragraph 3 of Art. 15 of the Constitution of the Russian Federation, laws are subject to official publication, unpublished laws are not applied. Also, any normative legal acts affecting the rights, freedoms and obligations of a person and a citizen cannot be applied if they are not officially published for everyone.
1 For more details see: M.F. Kazantsev. Legislative activity subjects of the Russian Federation: Problems of formation and experience of the draft legislative code. Ekaterinburg: Ural Branch of the Russian Academy of Sciences, 1998.S. 19-23.
2 Art. 251 Code of Civil Procedure of the Russian Federation, Art. 192 and 193 of the APC RF.
3 The Civil Procedure Code of the Russian Federation: the experience of the first year / Interview of the chairman of the judicial civil affairs Of the Supreme Court of the Russian Federation V.P. Knysheva and Judge of the Supreme Court of the Russian Federation Potapenko C.The. // Advocacy News, 2004. No. 2.
general information... An inapplicable legal act as absent does not give rise to any legal consequences, therefore it cannot be the subject of judicial challenge.
When applying to the court of citizens with an application for challenging regulatory legal acts, the law also established a special requirement: the contested act must violate the rights and legitimate interests of the applicant. Not entered into force in established order regulatory legal acts, including those of the constituent entities of the Russian Federation, do not entail legal consequences. Therefore, they cannot serve as a basis for the emergence of civil rights and obligations and, therefore, cannot entail any violations of the rights and freedoms of citizens protected by law.
In practice, the greatest difficulty is caused by the issues of challenging inoperative normative legal acts - not entered into force, temporarily suspended and invalidated. The legislation does not contain provisions expressly prohibiting challenging in court general jurisdiction or in an arbitration court of invalid normative legal acts.
Contestation of normative legal acts that have not entered into force (including due to their failure to be published in the manner prescribed by law) is not provided for by the legislation, but it is not directly prohibited either. In practice, the courts in such cases do not accept applications for consideration. Is no exception here and Constitutional Court Russian Federation. Thus, by Decision No. 50-O of March 4, 2004, the Constitutional Court of the Russian Federation refused to accept for consideration the request of the Assembly of Deputies of the Nenets autonomous region due to non-entry into force of the norms contested by the applicant1.
Probably, the legislator did not provide for the right to challenge normative legal acts that have not entered into force in order to prevent
2004 No. 50-0 “On refusal to accept for consideration the request of the Assembly of Deputies of the Nenets Autonomous Okrug on checking the constitutionality of clause 17 of Article 1 and paragraph 3 of Article 3 of the Federal Law“ On Amendments and Additions to the Federal Law “On General Principles of Organization of Legislative ( representative) and executive bodies of state power of the constituent entity of the Russian Federation ""
preventing unfounded appeals to the court. Meanwhile, checking the legality of a legal act that has not entered into force can be used as a preventive measure against the use of illegal regulatory legal acts, as well as to prevent illegal consequences generated by the use of such acts, which is much more effective than their subsequent correction. Given the huge array regional legislation a differentiated approach to determining the types of normative legal acts is possible, the legality of which can be verified in the order of preliminary judicial regulatory control. In this regard, the proposal of the Chairman of the Constitutional Court of the Republic of Buryatia K.A. Budaev "to introduce preliminary constitutional control of some of the most important laws of normative legal acts of the constituent entities of the Russian Federation (for example, on amending the constitution, charters of the constituent entities of the Russian Federation ...)".
The possibility of challenging a temporarily suspended normative legal act depends on the moment of its suspension. The act, which is temporarily suspended, is not valid for a certain period of time. Therefore, it is possible to apply, by analogy, the rules on challenging a regulatory legal act that has become invalid. The temporary suspension of the force of normative legal acts, it seems to us, serves as an obstacle to going to court during the period of blocking of their effect, but is not a basis for terminating the proceedings if the temporary termination of the contested act came after the court accepted an application for challenging it.
On the issue of challenging legal acts that have become invalid in the arbitration court, the Presidium of the Supreme Arbitration Court of the Russian Federation indicated that if “before the arbitration court makes a decision on the application for challenging the norm,
1 Budaev K.A. On the delimitation of powers of courts under the new Civil Procedure Code of the Russian Federation / Materials round table"The status and role of constitutional (charter) courts of the constituent entities of the Russian Federation in the system of state authorities" // Bulletin of the Statutory Court of the Sverdlovsk Region, 2003. No. 1 (6). P. 128.
of a valid legal act, this act was canceled in the prescribed manner, the case is not subject to consideration in an arbitration court, since the subject of the dispute in this case has ceased to exist ”1. Similar explanations for courts of general jurisdiction are contained in jurisprudence Of the Supreme Court of the Russian Federation. For a long time, the courts, guided by the above explanations, terminated proceedings on a case on challenging a normative legal act if it was canceled by the relevant rule-making body. So, due to the recognition of the contested act as invalid by the body that issued it, the decision of the St. Petersburg City Court of March 14, 2003 terminated the proceedings on the case on challenging certain provisions of the order of the Mayor of St. Petersburg dated November 29, 1993 No. 958-r ... The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation upheld the ruling of the St. Petersburg City Court. In support of the decision made with reference to Art. 253 of the Code of Civil Procedure of the Russian Federation, it was indicated that legal acts, the effect of which has been terminated, in themselves the basis for the emergence of rights and obligations are not and cannot entail any violations of the rights and freedoms of individuals and legal entities protected by freedom.
The Constitutional Court of the Russian Federation in its Decision No. 244-О dated May 12, 2005 indicated that the loss of force by a normative legal act after the submission of an application to the court by a person who believes that this act violates his rights and freedoms is not an unconditional basis for termination of the proceedings. The court cannot terminate the proceedings if in the process judicial trial the violation by the contested act of the applicant's rights and freedoms will be established, since in fact this will lead to the applicant's refusal to judicial protection his rights and freedoms and does not meet the public need for permission
1 Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 13, 2004 No. 80 "On some issues arising in judicial practice when considering by arbitration courts cases on challenging regulatory legal acts", clause 6 // Bulletin of the Supreme Arbitration Court of the Russian Federation, 2004 . No. 10.
dispute on the legality of the contested act on the merits 1. Thus, the discrepancies in the positions of the courts of general jurisdiction and arbitration courts with the position of the Constitutional Court of the Russian Federation with regard to challenging invalid normative legal acts.
So, according to Part 2 of Art. 43 of the FKZ "On the Constitutional Court of the Russian Federation", in the event of the cancellation of the contested act or its loss of force by the beginning or during the consideration of the case by the Constitutional Court of the Russian Federation, the proceedings on the case may be terminated, except for cases when the action of this act violated constitutional rights and freedom of citizens. Since, as a result of the recognition of the contested act as unconstitutional, it loses legal force from the moment of its publication, verification of the constitutionality of an invalid or canceled act is an important guarantee of the most complete restoration of the violated right.
Jurisdiction and jurisdiction of cases on challenging regulatory legal acts of a constituent entity of the Russian Federation. The jurisdiction of the case to the courts of constitutional jurisdiction. In accordance with the Constitution of the Russian Federation (Article 125), the exclusive competence of the Constitutional Court of the Russian Federation includes the resolution of cases on the compliance of the Constitution of the Russian Federation with laws and other normative acts of the constituent entities of the Russian Federation, issued on issues attributed to the jurisdiction of the bodies of state power of the Russian Federation and joint jurisdiction government bodies of the Russian Federation, as well as government bodies of the constituent entities of the Russian Federation.
A regional regulatory legal act issued on issues related to the jurisdiction of a constituent entity of the Russian Federation cannot be checked for compliance with the Constitution of the Russian Federation.
2005 No. 244-O “On the complaint of citizens Lyubov Aleksandrovna Vikhrova, Ekaterina Ivanovna Kareeva and Valentina Nikolaevna Maslova regarding violation of their constitutional rights p. 1 h. 1 tbsp. 134, art. 220 and 253 Civil procedural code Russian Federation // Collected Legislation of the Russian Federation, 2005. No. 2. Art. 3396.
Federation. Verification of the legality of such normative legal acts is possible in a court other than the Constitutional Court of the Russian Federation.
Thus, since no other body other than the Constitutional Court of the Russian Federation has the right to assess the compliance of normative legal acts with the Constitution of the Russian Federation, it can be concluded that the normative legal acts of the constituent entities of the Russian Federation issued on the jurisdiction of the constituent entities of the Russian Federation cannot be checked at all for compliance with the basic law of the state. This situation is contrary to the principle of direct action of the Constitution of the Russian Federation.
The main issues of regional constitutional justice are resolved in the Federal Constitutional Law of December 31, 1996 No. 1-FKZ "On judicial system Russian Federation "1, according to Art. 27 of which the constituent entities of the Russian Federation are granted the right to create constitutional (statutory) courts of the constituent entities of the Russian Federation on their territory. The constitutional (statutory) courts of the constituent entities of the Russian Federation consider the issues of compliance of the normative legal acts of the corresponding constituent entity of the Russian Federation and municipalities located on its territory with the constitution (charter) of this constituent entity. The problems of jurisdiction are resolved in the laws of the constituent entities of the Russian Federation on their constitutional (statutory) courts.
Since the Constitutional Court of the Russian Federation is not a superior the court in relation to the constitutional (statutory) courts of the constituent entities of the Russian Federation, the question of the jurisdictional jurisdiction of cases does not arise. At the same time, today “the point of view about the need to establish the instantiation of constitutional legal proceedings in Russia has become widespread,” according to which “when resolving disputes arising on issues of joint jurisdiction of the Russian Federation and its subjects, it is advisable for the constitutional (charter) courts to assign the role of the first instance with provided
1 Collected Legislation of the Russian Federation, 1997. No. 1. Art. 1.
the right to appeal against their decisions in the Federal Constitutional Court ”1.
Jurisdiction and jurisdiction of cases to arbitration courts. Cases on challenging regulatory legal acts (including the subjects of the Russian Federation) are subject to consideration in an arbitration court only in cases where the arbitration court is directly named in the federal law as a court competent to consider the case2.
The Presidium of the Supreme Arbitration Court of the Russian Federation in the Information letter dated August 13, 2004, explained that since in the Federal Law of October 6, 1999 No. are not indicated as courts competent to consider applications for challenging regulatory legal acts of the constituent entities of the Russian Federation; restriction of monopolistic activity in the commodity markets "acts of state authorities of the constituent entities of the Russian Federation, contradicting the antimonopoly legislation)" 3.
1 Gavryusov Yu.V. "Problems of improving the competence of the constitutional (charter) courts of the constituent entities of the Russian Federation" // Materials of the round table "The status and role of the constitutional (charter) courts of the constituent entities of the Russian Federation in the system of state authorities" / Bulletin of the Statutory Court of the Sverdlovsk Region, 2003. No. 1 (6) ... P. 77; Gelyakhov A.S. On the problem of the implementation of the "administration of justice" in Russia: (through constitutional and administrative proceedings) // Ibid. P. 129.
2 Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 9, 2002 No. 11 "On some issues related to the implementation of the Arbitration Procedure Code of the Russian Federation" // Bulletin of the Supreme Arbitration Court of the Russian Federation, 2003. No. 2.
3 Clause 14 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 13, 2004 No. 80 "On some
Based general position that the consideration of cases on challenging regulatory legal acts (including the subjects of the Russian Federation) can be attributed to the competence of arbitration courts only by federal law, the subjects themselves are not entitled to establish the jurisdiction of disputes on the legal acts issued by them to the arbitration court. Since on issues related to the jurisdiction of the constituent entities of the Russian Federation, normative legal acts are adopted by the constituent entities themselves, they also cannot be subject to challenge in an arbitration court.
Normative legal acts of the constituent entities of the Russian Federation can be challenged in the arbitration court of the constituent entity of the Russian Federation at the location of the law-making body, the act of which is being challenged (part 1 of article 34 and article 35 of the Arbitration Procedure Code of the Russian Federation). In accordance with Article 37 of the Arbitration Procedure Code of the Russian Federation, the territorial jurisdiction for this category of cases can be changed by agreement of the parties before the arbitration court accepts the application for its proceedings.
Jurisdiction and jurisdiction of cases by courts of general jurisdiction. The Civil Procedure Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) refers to the competence of the courts of general jurisdiction to check the legality of regulatory legal acts in all cases when this is not attributed to the competence of other courts (Article 245 of the Civil Code of the Russian Federation).
Cases on challenging regulatory legal acts of constituent entities of the Russian Federation are considered as a court of first instance by the Supreme Court of the Republic, the regional, regional court, the court of the city of federal significance, the court of the autonomous region and the court of the autonomous region at the location of the law-making body (Articles 26, 28 of the Code of Civil Procedure of the Russian Federation). Difficulties in this case arise when determining the jurisdiction of cases to a court of a city of federal significance.
Thus, in accordance with the current legislation, the legality of the same regulatory legal act of a constituent entity of the Russian Federation, except for its constitution (us-
tory issues arising in judicial practice when arbitration courts consider cases on challenging normative legal acts "// Economics and Life, 2004. No. 38.
tava), and normative legal acts issued on subjects attributed to the jurisdiction of the subject of the Russian Federation, can be checked in court at least twice, and in subjects where there is a constitutional (statutory) court - three times. This situation is possible due to the fact that the same regional legal act can be checked for compliance with its constitution (charter) in the constitutional (charter) court of the subject; for compliance with another regulatory legal act of the subject, and a regulatory legal act federal level- in a court of general jurisdiction or federal court; for compliance with the Constitution of the Russian Federation - in the Constitutional Court of the Russian Federation. At the same time, for the verification of the constitutionality of a normative legal act (including the subject of the Russian Federation) it does not matter whether the legality of the same act has been verified in another court and whether a decision has been made on the case.
Legal grounds for the court to satisfy the stated requirements. Common grounds for the court to make a decision on recognizing a normative legal act of a constituent entity of the Russian Federation as invalid, both its inconsistency with the law or another legal act and the violation by the said act of civil rights and the interests of a citizen protected by law, or legal entity who have applied to the court with a corresponding claim 1.
Since the current legislation does not establish clear criteria for the legality of a normative legal act, when considering cases on challenging a normative legal act, the question of the subject of proof raises a certain difficulty. At the same time, the recent practice of defining in the texts of newly adopted regulatory legal acts of the federal level the criteria for the inconsistency of other regulatory legal acts with them, which is a clear guideline for the courts and avoids judicial errors, deserves a positive assessment. An example is Art. 6 Tax Code
1 Clause 6 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 6 and the Plenum of the Supreme Arbitration Court No. 8 dated July 01, 1996 "On some issues related to the application of part one Civil Code Russian Federation"
dex of the Russian Federation, which established the rule according to which the normative legal acts on taxes and fees specified in clause 1 of Art. 6, are recognized as not complying with the Tax Code if at least one of the circumstances listed in the same paragraph 1 is present.
To recognize a normative legal act of a constituent entity of the Russian Federation as invalid, the court must check it not only in the form, content of the rules, but also in the procedure for its adoption and enforcement. With regard to the correlation of laws and other normative acts, the terms "contradiction" and "inconsistency" cannot be used as identical. The correspondence of acts to each other is a broader concept, and not always a normative legal act does not correspond to an act of higher legal force due to their contradiction.
According to the current legislation, not only normative acts of different legal force, but also single-level legal acts, as well as their individual provisions, can be checked for compliance with each other. The contradiction of individual norms can also take place within one normative legal act, therefore, the issue of compliance by a law-making body with the rules of legislative technology requires a separate consideration. Due to the lack of a federal law establishing binding rules legislative technique in rule-making activities, the court may involve an expert in the case.
V court session it is also necessary to clarify the subject of jurisdiction on which the contested act was adopted and the powers of the law-making body. It should be borne in mind that in cases where there is no clear delineation of the spheres of jurisdiction and powers between the Russian Federation and its subject, when checking the legality of legal acts issued in the sphere of jurisdiction of the subject of the Russian Federation, the issue of intrusion federal bodies In principle, the competence of the law-making bodies of a constituent entity of the Russian Federation cannot be placed in the competence of the law-making bodies of a constituent entity of the Russian Federation, since, according to the Constitution of the Russian Federation, the competence of a constituent entity of the Russian Federation is defined as residual2.
Federal Law of July 31, 1998 No. 146-FZ // Collected Legislation of the Russian Federation, 1998. No. 31. Art. 3824.
2 Constitution of the Russian Federation. Art. 73.
The legislator placed the burden of proving the legality of the contested normative act on the body that adopted it (Article 249 of the Code of Civil Procedure of the Russian Federation, Article 194 of the Arbitration Procedure Code of the Russian Federation), which is an exception to the adversarial principle and is aimed at correct and fair consideration of the case.
Legal consequences of a court decision in a case on challenging regulatory legal acts. Based on the results of the consideration of the case, the court may recognize the contested normative legal act of the constituent entity of the Russian Federation or its individual provisions as inconsistent with the normative legal act of higher legal force. The legal consequences for persons who have challenged a legal act are different and depend on which court made the decision.
The courts of constitutional jurisdiction recognize the contested act as illegal and not giving rise to legal consequences from the moment of its adoption.
Part 2 of Art. 100 FKZ "On the Constitutional Court of the Russian Federation" establishes that the recognition of a law as inconsistent with the Constitution of the Russian Federation in any case entails a review of the case resolved on its basis by the competent authority in the usual manner. In the Decision of January 14, 1999 No. 4-O "On the complaint of citizen Petrova Iraida Valeryanovna about violation of her constitutional rights by part two of Article 100 of the Federal Constitutional Law" On the Constitutional Court of the Russian Federation "", the Constitutional Court of the Russian Federation clearly indicated that such a review is being carried out regardless of the expiration of the pre-emptive terms of appeal to these bodies and regardless of the existence of grounds for reconsideration of the case, provided for by acts other than the Federal Constitutional Law "On the Constitutional Court of the Russian Federation", since this regulation is aimed at encouraging the legal activity of citizens that contribute to the elimination from the current legislation unconstitutional norms and, therefore, protection from violations of the rights and freedoms of others.
The basis for the protection of the violated right is also the provision of Part 3 of Art. 79 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation", in accordance with which decisions of courts and other bodies based on acts
known unconstitutional, are not subject to execution and must be revised in cases established by federal law, that is, using substantive legal grounds and procedural institutions enshrined in other legislation. Reconsideration of court decisions in connection with the recognition of the norm as unconstitutional is possible, in particular, both in the order of judicial review, and on newly discovered circumstances. At the same time, it should be borne in mind that there are pre-emptive time limits in procedural legislation for going to court with a corresponding statement, which requires the interested parties to take timely action to protect their rights and legitimate interests.
Courts of general jurisdiction, recognize the contested act as invalid in whole or in part from the date of its adoption or otherwise indicated by the court time (part 2 of article 253 of the Code of Civil Procedure of the Russian Federation). In this case, the legislator endowed the court decision with retroactive force and extended it to public relations that existed before its adoption.
Normative legal acts or their provisions, recognized as invalid by the arbitration court, are not subject to application from the moment the court decision enters into legal force (part 4 of article 196 of the Arbitration Procedure Code of the Russian Federation). The decision of an arbitration court in a case on challenging a normative legal act shall enter into force immediately after its adoption (part 4 of article 195 of the Arbitration Procedure Code of the Russian Federation). The date of making the decision is the date of making this decision in full (part 2 of article 176 of the APC RF), therefore, the decision to challenge the normative legal act comes into force after it is made in full.
The arbitration court, recognizing the contested act as invalid from the moment the court decision enters into legal force, does not allow the person who contested the normative legal act to fully restore his violated right. Since before the entry of the court decision, the contested act was in effect and gave rise to certain consequences, which during this period are indirectly recognized as legitimate, the right either cannot be fully restored, or the violation of the right is suppressed only for the future. In this sense, indicative is the case filed by the Federal State Unitary Enterprise Zabaikalskaya Railway"On the recovery from JSC Chitaenergo of unjust enrichment received from the Claimant in the form of payment for
consumed electricity at a rate that is subsequently recognized as invalid. The Presidium of the Supreme Arbitration Court of the Russian Federation, refusing to satisfy claim, explained that since the decision of the REC of the Chita region ceased to be effective from the moment the decision of the arbitration court entered into force, until that moment the payment for the supplied electricity was charged at the tariff in force at that time and the energy supplying organization had no unjustified enrichment1.
Differences in the consequences generated by decisions of different courts can be of fundamental importance for the applicant. Lack of uniformity on such an important issue leads to inequality of subjects challenging normative legal acts. The moment of blocking an illegal normative act is important here, since the volume of restoration of the violated right directly depends on it. So, if a normative legal act is recognized as invalid (invalid) from the moment of its adoption, all the consequences generated by it are also indirectly recognized as inconsistent with the current legislation, and the violated right must be restored in full. Therefore, this version of the court decision is the most preferable for the applicant.
A normative legal act is a document containing mandatory prescriptions for an indefinite circle of persons and designed for repeated use.
The following rules can be distinguished for filing an application in cases of challenging legal acts:
· Organizations have the right to submit an application; citizens-entrepreneurs; the prosecutor; state authorities of the Russian Federation, state authorities of the constituent entities of the Russian Federation; local government bodies;
· NLA must be adopted and published in accordance with the established procedure;
· The contested ABO or its individual provisions violate the rights and legitimate interests in the field of entrepreneurial and other economic activities;
· The contested ABO contradicts the law or ABO, which has great legal force.
Statement on disputing the regulatory legal acts of the Federal Tax Service, Federal Service in the field of customs can be filed with the Supreme Arbitration Court of the Russian Federation.
Filing an application with an arbitration court does not suspend the actions of the contested legal regulation. This provision excludes the possibility of applying an interim measure in the form of suspension of the contested legal act.
The issue of accepting an application for proceedings by the arbitration court shall be decided by the judge alone within five days from the date of receipt of the application by the arbitration court. The arbitration court shall issue a ruling on the acceptance of an application for proceedings, which shall be sent no later than the next day to the persons participating in the case.
The arbitration court judge takes actions to prepare the case for trial. After preparing the case, the judge makes a ruling on the appointment of the case to court proceedings, which is sent to the persons participating in the case.
Cases on challenging legal acts are considered by a collegial composition of judges. When considering these cases, participation is not allowed arbitration assessors... The term for consideration of these cases is no more than 2 months from the date of receipt of the application by the court. The arbitration court may recognize as mandatory the attendance of representatives of state bodies, officials who have adopted the contested act, and summon them to the court session to give an explanation. This is indicated in the ruling on the acceptance of the application for production. Failure to appear of these persons is the basis for the imposition of a fine.
When considering cases on challenging legal regulations, the arbitration court checks this act or its individual provisions for compliance with the Federal Law Code, Federal Law and other legal regulations that have great legal force. In addition, the arbitration court verifies the powers of the body or person to adopt the contested normative act. As an example of a legal regulation, which has great legal force, one can cite the decree of the Government of the Russian Federation in relation to the instructions of the Federal Tax Service, etc.
Verification of the legality of the contested NA cannot be carried out by several courts, therefore the APC provides for a rule to terminate the proceedings in the case if there is a final court decision on a previously considered case, which checked the contested act on the same grounds.
The refusal of an interested person who has applied to the arbitration court with an application to challenge the legal regulations cannot be accepted by the arbitration court, which must consider the case on the merits.
Based on the results of the consideration of the case, the arbitration court makes the following decisions:
· On the refusal to satisfy the application and the recognition of the contested act or its individual powers as corresponding to another legal regulation, which has great legal force;
· On the satisfaction of the application and the recognition of the contested legal regulation or its individual provisions as inconsistent with another legal regulation that has great legal force.
These types of decisions are detailed in the operative part of the decision. The decision of the arbitral tribunal on the case on challenging the normative legal acts comes into legal force immediately after its adoption, respectively, such a decision is not subject to appeal to the appellate instance. The decision can be appealed to the court of the cassation instance within one month from the date of entry into force.
Part 6 of Article 195 of the APC contains a rule on sending copies of a decision on a case on challenging the legal norm. The decision of the arbitration court is sent to the official publication of state bodies, local self-government bodies, other bodies, depending on whose legal regulation is challenged, and is subject to immediate publication. In addition, the decision is subject to publication in the Bulletin of the Supreme Arbitration Court of the Russian Federation.
In accordance with paragraph 12 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of January 20, 2003 No. 2 "On some issues arising in connection with the adoption and implementation of the Civil Procedure Code of the Russian Federation" then a public authority, local self-government body or official that establishes legal norms (rules of conduct) binding on an indefinite circle of persons, designed for repeated use, acting regardless of whether the legal relationship provided for by the act has arisen or terminated.
A citizen, an organization, who believe that their rights and freedoms are violated by an adopted and published normative act of a public authority, local government body or official, can file an application to the court to challenge a normative legal act (declaring it invalid, contrary to the law in whole or in part). guaranteed by the Constitution of the Russian Federation, laws and other normative legal acts, as well as the prosecutor within the limits of his competence.
The President of the Russian Federation, the Government of the Russian Federation, the legislative (representative) body of the constituent entity of the Russian Federation, the higher executive subject of the Russian Federation, local government, head municipality who believe that their competence has been violated by a normative act adopted and published in accordance with the established procedure.
In accordance with paragraph 3 of Article 251 of the Code of Civil Procedure, applications for challenging regulatory legal acts, the verification of which is attributed to the exclusive competence of the Constitutional Court of the Russian Federation, are not subject to consideration in court in the manner prescribed by Chapter 24 of the Code of Civil Procedure.
The competence of the Constitutional Court of the Russian Federation is defined in Article 3 of the Federal Constitutional Law of July 21, 1994, No. 1-FKS "On the Constitutional Court of the Russian Federation." In accordance with this competence, the Constitutional Court of the Russian Federation:
- 1) Considers cases on compliance with the Constitution of the Russian Federation: a) federal laws, regulations of the President of the Russian Federation, the Federation Council, The State Duma, The Government of the Russian Federation; b) constitutions of the republics, charters, as well as laws and other normative acts of the constituent entities of the Russian Federation, issued on issues related to the jurisdiction of the state authorities of the Russian Federation and the joint jurisdiction of the state authorities of the Russian Federation and the state authorities of the constituent entities of the Russian Federation; c) agreements between state authorities of the constituent entities of the Russian Federation; d) not entered into force international treaties RF.
- 2) Checks on complaints of violation of constitutional rights and freedoms of citizens and at the request of the courts, the constitutionality of the law applied or to be applied in a particular case.
- 3) Provides an interpretation of the Constitution of the Russian Federation.
Applications for challenging normative legal acts are submitted by jurisdiction in accordance with Articles 24, 26, 27 of the Code of Civil Procedure.
The competence of the district court includes applications challenging normative legal acts not specified in Articles 26.27 of the Code of Civil Procedure. An application is submitted to the district court at the location of the body or official that adopted the normative act.
The requirements for the application are established in Article 131 of the Code of Civil Procedure. In addition, the application must contain additional information on the name of the state authority, local self-government body or official that adopted the contested normative act, its name and date of adoption, an indication of which rights and freedoms of a citizen or an indefinite circle of persons are violated by this act.
A copy of the contested normative act shall be attached to the application, indicating which mass media and when it was published.
The submission of an application does not suspend the action of the contested act.
If there is a court decision that has entered into legal force, which verified the legality of the contested normative legal act on the grounds specified in the application, the judge refuses to accept the application.
The application is considered by the court within a month, and by the Supreme Court - within three months from the date of its submission. The refusal of the applicant from his claim does not entail the termination of the proceedings. The recognition of the claim by the entity that adopted the normative act is not obligatory for the court.
If the court recognizes that the normative act does not contradict the federal law or other normative act having great legal force, it decides to refuse to satisfy the corresponding application. Otherwise, the court recognizes the normative act as invalid in full or in part from the date of its adoption or other time specified by the court.
A court decision on the recognition of a normative act as invalid entails the loss of the force of this act, as well as other normative acts that are based on the invalidated normative act or reproducing its content.
The court decision is published in printed edition, in which the normative legal act was officially published. By repeated adoption of the same act, the court decision cannot be overcome.
O.A. Eremina, assistant judge of the Fifteenth Arbitration appellate court
APR: Often, the subject of a legal dispute is the verification of the legal force (binding) of a legal act. The very possibility of judicial challenge normative documents Is an essential sign of becoming civil society and the rule of law... When filing a claim to challenge a legal act, you need to find out whether it has the property of normativity or not. An important criterion for distinguishing normative acts from non-normative ones is the content of their prescriptions and the way of regulating the corresponding relations. The article analyzes the established arbitration practice in cases of challenging regulatory legal acts.
The procedure for considering cases on challenging regulatory legal acts is established in Ch. 23 of the Arbitration Procedure Code of the Russian Federation, it defines the conditions for going to court, the circumstances to be established in the court session, the rules for the distribution of the burden of proof in the case and other features of the consideration of the analyzed category of cases. Some issues of consideration of cases on challenging normative legal acts are explained in the Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of August 13, 2004 N 80 "On some issues arising in judicial practice when arbitration courts consider cases on challenging regulatory legal acts" (hereinafter - Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation N 80). However, despite such a detailed regulation in judicial practice, questions arise about the peculiarities of the application of certain procedural institutions in the process of considering a case on invalidating regulatory legal acts.
Establishing the property of normativity in the contested legal acts
When considering disputes on the legality of regulatory legal acts, separated into an independent category of court cases, arbitration courts are faced with a number of problems. An analysis of judicial practice shows that one of the most difficult issues when considering such cases is establishing the nature (character) of the contested legal act. This is connected with the determination of the jurisdiction of the case to the arbitration court and with the very nature of the object of judicial regulation, on which the procedure for considering this case depends. Chapters 23 and 24 of the Arbitration Procedure Code of the Russian Federation establish a different procedure for the proceedings of cases on challenging normative and non-normative legal acts.
According to Part 3 of Art. 191 of the Arbitration Procedure Code of the Russian Federation, consideration of cases on challenging regulatory legal acts should be attributed to the competence of arbitration courts by federal law. Therefore, in many court orders it is concluded that the ground for canceling court decisions is the lack of assessments of the nature of the contested legal act ( Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of 10.04.2007 N 1082/07; Resolution of the Federal Antimonopoly Service of the NKR dated 13.03.2006 N F08-455 / 2006).
Under legal act means a written document adopted by an authorized subject of law (state body, local self-government body, officials on behalf of these bodies), aimed at regulating public relations and mandatory. Difficulties arising for judges in establishing the nature of a legal act are associated with the lack of a clear and precise, legislatively enshrined definition of a normative legal act. This gap was partially filled in the resolution of the State Duma of the Federal Assembly of the Russian Federation of 11.11.1996 N 781-II GD "On an appeal to the Constitutional Court of the Russian Federation". According to this document, legal act Is "a written official document adopted (issued) in a certain form by a law-making body within its competence and aimed at establishing, changing or canceling legal regulations... In turn, a legal norm is understood as a generally binding state prescription of a permanent or temporary nature, designed for repeated application. ”Thus, rule of law characterized by the following features: is a generally binding rule of conduct, which is established or sanctioned by the state; is general, non-personalized and designed for repeated use; formally defined; provided by state coercion.
In their practice, the courts also use the definition set out in paragraph 12 Resolutions of the Plenum of the Supreme Court of the Russian Federation of January 20, 2003 N2"On some issues that have arisen in connection with the adoption and implementation of the Civil Procedure Code of the Russian Federation." It is noted here that a normative legal act is an act issued in accordance with the established procedure by an authorized government body, local government body or official, establishing legal norms (rules of conduct) binding on an indefinite circle of persons, designed for repeated application and acting independently on whether the specific legal relations provided for by the act have arisen or ceased.
But at the same time, additional difficulties should be taken into account, which are caused by the negative features of modern lawmaking in our country: the rules of legislative technique are violated; there is no established unified list of types and names of regulatory legal acts; the acts often contain provisions of both normative and non-normative nature, which is especially characteristic of municipal rule-making.
In the legal literature, there are conflicting definitions of a normative act and criteria for distinguishing between normative and non-normative legal acts. So, one cannot agree that the property of the normativity of an act is its adoption only by an authorized government body or official (). While recognizing in principle that a normative legal act should be issued by an authorized entity, it is also necessary to take into account that this is rather a sign of the legality of a normative act, and not its essential feature as a legal act. Judicial practice shows that up to the recognition of such an act as invalid, it can be used to regulate the relevant relations, and its failure to comply entails the liability established by law (decisions of the arbitration courts of the Republic of Khakassia of July 31, 2006 N A74-2083 / 2006, of the Republic of Sakha (Yakutia) of July 29 .2003 N А58-1198 / 2003, Kirov region dated 21.11.2003 N А28-10000 / 03-289 / 13).
Often, as a sign of a normative legal act, the repeated application of it or the frequency of action of the rule of law enshrined in it () is singled out. But if we proceed from the direction of the normative legal act to establish, change or abolish the norms of law, then the repeated application of it is in any case presumed. We believe that the lack of repeatability of the document does not exclude the general nature of legal prescriptions. Practice also testifies to this. regulation(federal laws of 04.11.2006 N 186-FZ "On the establishment of the Arbitration Court Perm Territory", dated 04.10.2003 N 130-FZ" On the establishment of the Northern District Court of the city of Orel ", etc.) To clarify our position, let us dwell in more detail on this feature of regulatory acts.
Judicial practice shows that the absence of repeated application of a legal act does not yet speak unambiguously about its non-normative nature. So, when checking the legality and validity of the decision of the Arbitration Court Rostov region dated 21.03.2006 N А53-35044 / 2005-С5-5, the cassation instance established that the order of the head of the Krasnosulinsky district administration dated 20.09.2005 N 913 on the creation of a controlling working group in places of organized trade in this administrative region is legal nature normative act ( FAS RMS resolution of 06.06.2006 N F08-2349 / 2006-967A). Although it seems obvious that in this case there was no repeated application as a sign of a normative legal act. After all, the creation of a working group is a one-time action.
In another case, FAS SKO in Resolution of June 16, 2005 N F08-2518 / 2005 directly pointed out the absence of such a feature of the contested legal act as the repeated application of it. The subject of the dispute was clause 4 of the resolution of the head of the administration of Rostov-on-Don dated 30.06.1994 N 931 "On the creation of regional municipal institutions with the functions of a customer in the sphere of housing and communal services of the city." It was stated in the contested part of this act that the district municipal institutions in the sphere of housing and communal services of the city, they are the legal successors for the budgetary debts of third parties; acts of acceptance and transfer of budgetary debts are approved by the head of the administration of the corresponding region. The court concluded that paragraph 4 of this decision was of an individual nature. It is designed for a one-time use by the persons named in it.
Following this logic, documents issued in the form of normative legal acts, but designed to be applied in one case (for example, on the creation or liquidation of an organization, institution, etc.), are normative and legal in the formal sense. Consequently, they can be challenged using the judicial control procedure. But examining the content of normative legal acts, one cannot fail to notice their high social significance, which cannot be inherent in non-normative acts aimed at individual actors and affecting only their interests. Therefore, it should be recognized that in judicial practice, when considering cases on challenging legal acts, difficulties arise in establishing the normative nature of those acts that are addressed to specific persons and (or) issued in relation to specific objects.
Thus, in the Arbitration Court of the Udmurt Republic, a case was considered against LLC JV Ecolog against the resolution of the head of the Glazov administration of 30.12.2004 N 350/5 "On prices for services of LLC JV Ecolog rendered to organizations financed from the budget." By the decision of the court of first instance, the claims were denied due to missing the appeal deadline. By revising cassation appeal The Federal Antimonopoly Service of the Urals District established that the contested act contains imperative prescriptions in the field of pricing for LLC JV "Ecolog" and the organizations using its services, financed from the budget. As a characteristic feature of this contested act, it was indicated that it is aimed at repeated application. It continued to operate regardless of whether legal relations arose or ceased between LLC JV "Ecolog" and a specific consumer. Therefore, the court of cassation concluded that the contested act by its nature is normative and subject to consideration according to the rules of Ch. 23 APC RF ( Resolution of the Federal Antimonopoly Service of the UO dated 10.10.2006 N F09-462 / 06-C4).
Similar arguments were made by the FAS of the North-Western District, which revealed signs of normality in the contested resolution of the Regional Energy Commission of the Republic of Karelia No. 13 dated February 27, 2004 "On payment for services for the transfer of electric energy to Petrozavodskmash." The court of first instance terminated the proceedings on the case, considering the fact of violation by the contested decision of the rights and legitimate interests of the applicant as unproven, as well as in connection with missing the deadline for filing an application in accordance with Part 4 of Art. 198 APC RF. When considering the cassation appeal, the FAS of the North-Western District pointed to the unlawful consideration of the dispute in the order of Ch. 24 APC RF. The contested resolution of the REC established a payment for services for the transfer of electric energy to Petrozavodskmash CJSC to ensure reliable and smooth operation substation No. 18, on the basis of which settlements were carried out with the applicant and other sub-subscribers. Consequently, this resolution did not clearly define the subject composition, but only indicated the name of the subject of tariff regulation. In addition, it established a payment for the transfer of electrical energy to an undefined circle of persons, contained mandatory prescriptions designed for repeated use. All these circumstances allowed the court of the cassation instance to classify the resolution of the REC of February 27, 2004 N 13 to the number of normative legal acts, and send the case for new consideration ( Resolution of the FAS SZO dated 01.02.2007 N? A26-4493 / 2006).
One more category of normative legal acts in relation to specific objects should be highlighted. We are talking about acts establishing public land easements, road signs defining the boundaries of red lines, and so on. Such legal acts entail consequences for an indefinite number of persons and have the property of general obligation.
So, by the decision of the arbitration court of first instance, clause 1 of the resolution of the head of the Volgodonsk city administration of the Rostov region No. 101 of 23.01.2004 was invalidated. In the contested clause of the ruling, the public easement granting the right to travel through the land plot leased by “Rynok Center” LLC was actually canceled. Considering that this easement is established in the manner prescribed by the Land Code of the Russian Federation for passage and travel through the land plot and in the interests of the local population, the decision to cancel it must be made by the local government in compliance with paragraph 2 of Art. 48 of the RF Labor Code. But the administration of the city of Volgodonsk, Rostov Region, did not provide the court with evidence that the public servitude was canceled due to the lack of social necessity for it. Therefore, the legality of the decision of the court of first instance was confirmed by the resolution of the Federal Antimonopoly Service of the NKR dated 03.05.2005 N F08-686 / 2005.
Differently court case the subject of the dispute was the actions of the administration of the municipal district "Arseniev City" and the police department of the city of Arseniev, connected with the installation of the sign "Entry prohibited except for transport carrying out the municipal order" on the station square, as well as clause 2 of the resolution of the head of the municipal district "Arseniev City" dated 01.10. 2004 N 314 "On ensuring security on the territory of the railway station in the city of Arsenyev". The Supreme Arbitration Court of the Russian Federation, when considering a complaint by way of supervision, directly pointed out the normative nature of the contested decision. As a result, the consideration of the case by the court of first instance in the order of Ch. 24 of the Arbitration Procedure Code of the Russian Federation (challenging non-normative legal acts) was declared unlawful and the case was sent for new consideration ( Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of July 18, 2006 N 2943/06).
When considering a dispute on recognizing as invalid the decision of the City Duma of the City of Krasnodar dated 26.05.2005 N 68 "On the approval of the red lines of Volodya Golovatyi Street between Kirov Street and Frunze Street in Krasnodar", the court found that the contested legal act is normative. The case was considered in the order of Ch. 23 of the Arbitration Procedure Code of the Russian Federation and the application was refused. The court's decision was upheld by FAS SKO in Decree of 11.04.2007 N Ф08-1460 / 2007.
The above examples from judicial practice confirm the conclusion that essential feature a normative legal act is the content of the rules of law in it, and all other distinguished features are formal and cannot predetermine the presence or absence of the normative property of the act.
It is important to note that a similar conclusion was made in the definition of the Constitutional Court of the Russian Federation of 20.10.2005 N 442-О, where it was stated, in particular, that when considering cases on challenging a normative legal act, arbitration courts have no right to limit themselves to formal establishment of compliance with the procedure and form of adoption of the contested act. Courts must establish the fact of violation of the rights and legally protected interests of citizens or legal entities by an unpublished normative act and, in each specific case, really ensure the effective restoration of violated rights (). Thus, non-observance of the form and procedure for the adoption of the act cannot be the basis for recognizing it as non-normative. The defining feature of a normative act is the presence of legal norms in it and, as a consequence, the ability to influence the interests of an unlimited number of persons, lead to certain legal consequences, which ultimately determines the high social significance of the document.
If we recognize that the only essential sign of a normative act is the content of the rules of law in it, then such criteria for distinguishing normative acts from non-normative ones, such as the internal structure, form of expression, procedure for adoption, entry into force and bringing to the attention of law enforcement officers, are not of fundamental importance. In itself, the compliance of a legal act according to the specified criteria with the form and procedure for adopting normative acts (for example, the name of the act, state registration, publication in an official publication, etc.) does not yet indicate the presence of legal norms in it. But the very content of the prescriptions and the way of regulating relations are really criteria for distinguishing normative acts from non-normative ones, since they indicate the presence of a rule of law.
It is this approach to determining the normative nature of legal acts that the Supreme Arbitration Court of the Russian Federation adheres to, which can be illustrated by the following example. In his decision of 06.03.2007 on recognizing as partially invalid the letter of the Ministry of Finance of Russia dated 16.01.2006 N 03-04-15 / 01, he indicated that the text of the contested letter contains the following provisions: construction works, including work performed by the taxpayer's own efforts and work performed by contractors involved. "Therefore, this letter establishes, taking into account subparagraph 5 of clause 1 of article 32 of the Tax Code of the Russian Federation, mandatory rules for the formation of the tax base when taxpayers perform construction and installation work for their own In addition, the Federal Tax Service of Russia with a covering letter dated 25.01.2006 N MM-6-03 / [email protected] sent the disputed letter of the Ministry of Finance of Russia N 03-04-15 / 01 to all lower tax authorities for use in work and informing taxpayers about it. This presupposes, in principle, the repeated application of the prescription contained therein, which will be used in the work. tax authorities when carrying out tax control measures and therefore generate legal implications for an indefinite circle of people.
In addition, the Supreme Arbitration Court of the Russian Federation, when considering this case, found that the contested letter of the Ministry of Finance of Russia violates the rights and legitimate interests of the applicant in the case of OJSC Chepetsk Mechanical Plant: Udmurt Republic dated 26.09.2006 N 12-46 / 68, the disputed by the society provision of the letter of the Ministry of Finance of Russia dated 16.01.2006 N 03-04-15 / 01 was actually applied to the company during the office tax audit value added tax declaration for June 2006. "In such circumstances, the court concluded that the letter of the Ministry of Finance of Russia established a legal norm (rule of conduct) binding for an indefinite circle of persons, which is a sign of a normative legal act. Therefore, the contested provision of this letter must be "qualified as a regulatory legal order issued by the federal executive body authorized to exercise the functions of developing public policy and legal regulation in the field of taxes and fees ".
The Supreme Arbitration Court of the Russian Federation did not limit itself to stating that the subject of the dispute was a letter, and the publication of normative legal acts in the form of letters and telegrams is not allowed (clause 2 of the Rules for the preparation of normative legal acts of federal executive bodies and their state registration, approved by decree Government of the Russian Federation of 13.08.1997 N 1009). The court established circumstances indicating the use of the contested letter for the normative regulation of public relations ( decision of the Supreme Arbitration Court of the Russian Federation of 06.03.2007 N 15182/06).
Similarly, the Supreme Arbitration Court of the Russian Federation considered the issue of the legal nature of the letter of the Federal Tax Service of Russia dated October 26, 2004 N 09-0-10 / 4223 "On the issue of amendments to the information on the legal entity contained in the Single state register legal entities. ”By this letter, the legal entity was obliged to submit to the registering authority an application in form NР14001, signed by the former head of the legal entity. . Non-compliance the specified requirement may entail consequences in the form of refusal to register on the basis of submission to the registering authority of an application signed by an unauthorized person. This is a violation of the rights and legitimate interests of business entities in the field entrepreneurial activity and imposes on them additional responsibilities ( decision of the Supreme Arbitration Court of the Russian Federation of May 29, 2006 N 2817/06).
However, this approach is not always maintained and there are cases of opposite judicial practice. Thus, the Supreme Arbitration Court of the Russian Federation received a statement from Vinny Mir LLC regarding the invalidation of par. 12 clause 18 of the order of the Federal Customs Service of Russia dated 11.06.2004 N 663 "On approval of the procedure for organizing and conducting customs audit". The contested provision stipulates that during a special customs audit, members of the audit commission have the right to take samples and samples of goods necessary for research (Article 383 of the Labor Code of the Russian Federation), the procedure for taking samples and samples is determined by the Labor Code of the Russian Federation and regulatory legal acts of the State Customs Committee of Russia. When considering the case, the Supreme Arbitration Court of the Russian Federation established that by the letter of the Ministry of Justice of Russia dated 06.07.2004 N 07/6472-YUD, the order of the Federal Customs Service of Russia dated 11.06.2004 N 663 was recognized as not requiring state registration, since it has an organizational nature and does not contain legal norms. In the decision of the Supreme Arbitration Court of the Russian Federation of 08.11.2006 N 12146/06 indicated that the contested act as unregistered does not entail the establishment of prescriptions and rules of conduct that are binding on the applicant and, therefore, cannot violate the rights and legitimate interests of the applicant. In this regard, it was concluded that the applicant's claim to invalidate this order of the Federal Customs Service of Russia was refused.
From the above example, it is clear that the Supreme Arbitration Court of the Russian Federation decided the issue of the legal nature of the contested act without examining the factual circumstances of the case on the violation by the contested order of the rights and legitimate interests of the applicant and did not analyze the content of the contested provisions.
In this aspect, of interest is the recently expressed position of the Ministry of Finance of Russia itself regarding its explanations and whether they should be guided in practice as normative acts. In a letter dated 07.08.2007 N 03-02-07 / 2-138"On clarification of the provisions of Article 34.2 of the Tax Code of the Russian Federation" it was noted that the written explanations of the Ministry of Finance of Russia on the application of the legislation of the Russian Federation on taxes and fees do not contain legal norms, are not aimed at establishing, changing or abolishing legal norms and are not normative legal acts. Clarifications of the Ministry of Finance of Russia are not subject mandatory publication... Such clarifications are published informally. It was also explained that the written explanations of the Ministry of Finance of Russia and the Department of Tax and Customs and Tariff Policy of the Ministry of Finance of Russia, provided at the request of specific taxpayers, are of an informational and explanatory nature. They should be perceived along with other publications of specialists in this field and do not prevent interested parties from being guided by the norms. tax legislation in a different interpretation, different from that stated by the Ministry of Finance of Russia.
In general, we believe that the line between normative and non-normative legal acts is very flexible, not always expressed clearly and definitely. Difficulties in distinguishing them lie in the specifics of a number of legal acts, where normative prescriptions are intertwined with non-normative ones, in the absence of an exhaustive list of issues regulated by normative and non-normative acts, respectively, as well as in many similar features of both types of legal acts. The decision on the normativity of the contested act in each disputable case should be carried out by the judges, based on a detailed analysis of the actual circumstances of the case, the content of the act itself, the way it regulates the relevant relations and the nature of the actions performed on its basis.
Application of interim measures in cases of challenging legal acts
Compliance cases are of an exclusively public law nature. The subject of the trial is a legal conflict in the field of rule-making. At the same time, there is no dispute about subjective rights and obligations, which predetermines the specifics of the process in the case of challenging regulatory legal acts. This part of the article is devoted to the consideration of some of the procedural features of the consideration of cases in this category.
According to Part 3 of Art. 193 of the APC RF, filing an application for invalidating a normative legal act does not suspend the contested act. In the comments to this article, it was noted that this norm does not entail automatic suspension of the contested act (). Based on this interpretation, the arbitration courts recognized that at the request of the persons participating in the case, the suspension of the contested act is possible ( Resolutions of the Federal Antimonopoly Service of Moscow dated 21.02.2005 N KA-A41 / 358-05, FAS PO of 22.03.2006 N A06-2626U / 3-23K / 05). The courts also recognized the possibility of taking other types of interim measures, for example, a ban on the execution of the contested act ( Resolutions of the FAS ZSO of 12.11.2003 N F04 / 5718-1087 / A70-2003, of 12.11.2003 N F04 / 5717-1086 / A70-2003).
At the same time, clause 5 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 80 explains that on the basis of this article, in cases of challenging regulatory legal acts, such an interim measure as suspension of the disputed act cannot be applied. The Supreme Arbitration Court of the Russian Federation has unequivocally acknowledged that such a suspension is impossible either automatically or at the request of the persons participating in the case. But the legality of such an interpretation of Part 3 of Art. 193 of the APC RF is questioned in the scientific literature (), in connection with which we will consider this issue in more detail.
The essential features of a normative act are its generally binding and impersonal character. If the arbitration court applies an interim measure in the form of suspension of the contested act, the court deprives the normative act of the indicated signs. On the basis of a court ruling on the adoption of an interim measure, a person challenging the normative act is excluded from the scope of regulation of the normative act (moreover, it has not yet been recognized by the court as invalid, that is, still having legal force). For other participants in regulated public relations, the contested act is mandatory and enforceable.
A similar situation arises in the case of the adoption by the court of other types of interim measures, for example, the suspension of the execution of a claim for payment mandatory payments and sanctions based on the contested normative act. As a result, a specific person is excluded from the sphere. legal regulation a normative act that has not yet been recognized by the court as illegal.
Based on these considerations, it should be recognized that there is a presumption of legality in relation to normative legal acts, in this regard, the application of interim measures in the process of challenging a normative act is impossible.
Refusal of the declared requirements and their recognition by the body (person) that adopted the contested act
When considering cases on challenging regulatory legal acts, there are peculiarities in the application of such procedural institutions as refusal of the stated requirements and recognition of requirements. The filing of such requests does not prevent the arbitration court from considering the case on the merits ( Resolutions of the Federal Antimonopoly Service of the UO dated 06/18/2003 N F09-1723 / 03-AK; FAS VVO dated 19.07.2007 N А79-1092 / 2007).
So, when considering the case on recognizing partially invalid the decision of the Council of the municipal formation "City of Syktyvkar" dated 28.12.2004 N 17 / 12-235, one of the applicants in the case declared a waiver of the requirements (case A29-13595 / 05A). The court with reference to paragraph 8 of Art. 194 of the Arbitration Procedure Code of the Russian Federation considered the case on the merits and made a decision to declare the contested normative act invalid.
In the practice of arbitration courts, applicants rarely resort to the opportunity to waive the stated requirements in the case of invalidating a regulatory legal act. The existing isolated cases of waiver of the requirement mainly concern normative legal acts that have already become invalid, i.e. canceled by the bodies or officials who adopted them ( Resolutions of the FAS DO dated 09/27/2006 N F03-A24 / 06-2 / 2009; FAS RMS of 14.12.2006 N F08-6250 / 2006).
Contestation of invalid normative legal acts
According to clause 6 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 80, if, before the arbitration court makes a decision on an application for challenging a normative legal act, it was canceled in the prescribed manner or its effect was terminated, the proceedings on the case must also be terminated. The reason for the termination is clause 1 of part 1 of Art. 150 of the APC RF, since the subject of the dispute in this case ceased to exist.
The legality of the termination of the proceedings on this basis was the subject of consideration by the Constitutional Court of the Russian Federation. V the definition of the Constitutional Court of the Russian Federation of 12.07.2006 N 182-О it is indicated that if in the course of the trial a violation of the applicant's rights and freedoms is established by the contested normative legal act, the court cannot terminate the proceedings when this normative legal act is declared invalid by the decision of the body or official that adopted it, or in the case when it has expired validity period of this normative legal act (). The right to judicial protection guaranteed in Art. 46 of the Constitution of the Russian Federation, assumes full, timely and effective restoration of rights through justice, as well as the inadmissibility of substituting another procedure for judicial protection and arbitrary termination of initiated proceedings.
Consequently, the loss of force by a normative legal act contested in an arbitration court does not in itself constitute a ground for terminating the proceedings.
Based on this position of the Constitutional Court of the Russian Federation, the courts make decisions according to which the termination of proceedings on the case of invalidation of a normative legal act on the basis of only the fact of its loss of legal force leads to the applicant's denial of judicial protection of his rights and freedoms. This does not meet the public need to resolve the dispute on the merits of the contested normative legal act, which takes place in proceedings on cases arising from public legal relations. Therefore, the further movement of the case cannot be related to the fact of the loss of force of the contested normative legal act ( Resolution of the Tenth Arbitration Court of Appeal dated 26.10.2006 N A41-K2-10633 / 06).
The Limits of the Court's Competence in Cases on Disputing Regulatory Legal Acts
According to Part 5 of Art. 194 of the Arbitration Procedure Code of the Russian Federation, when considering cases on challenging regulatory legal acts, the court is not bound by the arguments of the applicant and verifies the contested provision in full. This norm establishes the right of the court, not limited to the grounds given by the applicant for recognizing a regulatory legal act as invalid, to independently establish circumstances that indicate its illegality.
However, this does not mean that when considering a case on challenging any part a normative legal act, having established circumstances indicating the illegality of the entire normative act or its other provisions, the court has the right to go beyond the subject of consideration, recognizing all illegal provisions as invalid. The specified norm determines the scope of legal verification of the subject of judicial examination, and not the subject of judicial examination itself.
So, when checking the legality and validity of the decision, the court of cassation indicated a violation by the court of first instance of the norms procedural law... The subject of the dispute in the case was points 1.1 and 2.2 of the Resolution of the Mayor of Krasnodar of 29.04.1999 N 707 "On Approval of the Rates of Rent for Land in Krasnodar for 1999 and the Standard Form of the Land Lease Agreement" and application No. 1 to this resolution of the mayor. When considering an application for invalidating these provisions by the court of first instance, it was established that the resolution was issued by an unauthorized person - the mayor of the city, while the establishment of the procedure for the ownership, use and disposal of city property and land plots within the city boundaries belongs to the powers of the city council. By the decision of the court of first instance, the specified provision of the mayor of the city was declared invalid in full.
FAS North Caucasian District changed this decision of the court, invalidating paragraphs 1.1 and 2.2 of the contested decision and Appendix No. 1 to it, i.e. the decision was brought in line with the scope of the stated requirements in the case ( Resolution of the Federal Antimonopoly Service of the NKR dated 26.09.2006 N F08-4698 / 2006).
From the meaning of the provisions of Part 4 of Art. 194 of the Arbitration Procedure Code of the Russian Federation, it follows that arbitration courts are not entitled to determine the compliance of the contested normative act with the Constitution of the Russian Federation, which has been repeatedly drawn to the attention of arbitration courts ( Resolutions of the FAS VCO dated 05.05.2004 N A19-14896 / 03-36-F02-1282 / 04-C1; FAS DO dated 17.03.2006 N F03-A51 / 06-2 / 230). The decisions of the arbitration courts of the cassation instance indicate that a reference to the inconsistency of the Constitution of the Russian Federation with a normative legal act when deciding on its legality (and not constitutionality) is illegal, since the verification of normative acts for compliance with the Constitution of the Russian Federation is not attributed to the competence of the arbitration courts. However, the indication in the decision of the arbitration court to check the contested act of the Constitution of the Russian Federation as a violation of the rules of procedural law, entailing the adoption of an incorrect decision, is not recognized.
The considered limitation of the powers of the arbitration court should be recognized as legitimate.
The issue of the right of an arbitration court to assess the constitutionality of normative legal acts was initiated by a theoretical discussion about the identity of the content of the concepts of "constitutionality" and "legality" (). If we proceed from the recognition of the difference between these terms, then the constitutionality of a normative legal act is the established compliance of its content with the Constitution of the Russian Federation. Legality, on the other hand, is a phenomenon of a more private nature, implying a check of a regulatory legal act for compliance with the law. This position was reflected in Resolutions of the Constitutional Court of the Russian Federation of 16.06.1998 N 19-P, of 11.04.2000 N 6-P and of 27.01.2004 N 1-P... According to the legal positions of the Constitutional Court of the Russian Federation, the competence of courts of general jurisdiction in cases of normative control is limited to the establishment of the legality of normative legal acts. The Constitutional Court of the Russian Federation emphasized the inadmissibility of "intrusion" of courts of general jurisdiction into the assessment of the constitutionality of normative acts in the implementation of normative control. Although in these decisions the Constitutional Court of the Russian Federation did not consider the issues of the powers of arbitration courts in cases of normative control, but from Part 4 of Art. 194 of the Arbitration Procedure Code of the Russian Federation, it follows that this position is reflected in the procedural legislation.
Subject of Evidence in Cases on Disputing Regulatory Acts
The subject of proof for this category of cases includes the circumstances specified in Part 4 of Art. 194 and part 1 of Art. 192 APC RF. So, according to Part 4 of Art. 194 of the Arbitration Procedure Code of the Russian Federation, when considering these cases, the court checks the contested act or its separate provision, establishes its compliance with the federal constitutional law, federal law and other normative legal act having great legal force, as well as the powers of the body or person that adopted the contested normative legal act ... This norm defines the content of the audit of a normative legal act by a court.
When applying this provision, it should be borne in mind that the court verifies the content of a normative act or part of it for compliance with existing normative legal acts that have great legal force. At the same time, the court does not touch upon the issue of compliance of a normative act with legislation at the time of its adoption. Consequently, the compliance of the contested act with the legislation upon its adoption does not testify to its legality at the time of the consideration of the case by the court.
For example, when filing an application for recognizing as invalid the decision of the Duma of the Cheremkhovsky municipal formation dated September 20, 2001 N 18/4-DG "On the coefficients for calculating the rent for land for 2001-2002" in terms of establishing the contractual coefficient when calculating the rent for land for the placement of markets, the applicant pointed out the inconsistency of the specified normative act Art. 21 of the Law of the Russian Federation of 11.10.1991 N 1738-1 "On payment for land" (hereinafter referred to as the Law on payment for land), as well as Art. 22 and 65 of the RF Labor Code.
By the decision of the arbitration court of first instance, the application was rejected on the grounds that the determination of the amount of rent by type of land use and categories of tenants was made in accordance with the Law on Payment for Land. References to the discrepancy between the decision of the Duma Art. 22 and 65 of the RF LC were not adopted by the court due to the fact that the contested act was adopted before the RF LC entered into force (). Consequently, the RF LC cannot be applied to controversial legal relations.
The ruling of the cassation court indicated that since the contested normative act is subject to application to legal relations arising after 30.10.2001 - the date of entry into force of the RF LC, ch. 23 of the Arbitration Procedure Code of the Russian Federation does not contain obstacles to checking the act for compliance with a normative legal act that has great legal force and is valid in time simultaneously with the act being checked. Thus, the court of first instance unlawfully evaded checking the decision of the Duma of the Cheremkhovsky municipal formation for compliance with Art. 22 and 65 of the RF Labor Code. The court's decision was canceled, and the contested normative act was declared invalid as inappropriate to Art. 21 of the Law on Payment for Land, paragraph 4 of Art. 22 and paragraph 3 of Art. 65 of the RF Labor Code ( Resolution of the FAS VCO of 04.12.2003 N A19-15849 / 02-28-F02-4173 / 03-C1).
Establishing the compliance of the contested act with normative legal acts having great legal force includes checking the observance of the procedure for adopting a normative legal act established in the legislation.
For example, a special procedure for the adoption of normative legal acts is provided for in part 7 of Art. 28 of the Urban Planning Code of the Russian Federation, clause 2 of Art. 64 Budget Code RF, which the arbitration courts pay attention to (decision of the Perm Territory Arbitration Court dated September 14, 2004 N A50-24720 / 2004-A11; Resolutions of the FAS VVO dated October 31, 2006 N A29-13595 / 2005A; FAS TsO dated June 17, 2005 N A36- 243/2005).
In accordance with Part 1 of Art. 192 of the Arbitration Procedure Code of the Russian Federation, the basis for going to court is a violation of the rights and legitimate interests of a citizen or organization in the field of entrepreneurial and other economic activity. The absence of circumstances indicating a violation of the rights and legitimate interests of the applicant or the unlawful imposition of any duties on the applicant, or creating obstacles to the implementation of entrepreneurial or other economic activities, or their lack of evidence is the basis for refusing to satisfy the stated requirements. These circumstances must be documented, and a specific list of documents is formed based on the subject of the dispute (financial documents on cost increases, lease agreements municipal property, tax returns, etc.).
For example, the state enterprise "Zernogradmezhraivodokanal" applied to the arbitration court with a statement to invalidate paragraphs 2 and 4 of the decision of the meeting of deputies of the Zernograd urban settlement dated February 21, 2006 N 2, which changed the tariffs for the services rendered by the applicant. In accordance with the contested decision, the enterprise was obliged to recalculate the tariffs for water supply and sanitation services for the population from January 1, 2006 downward. However, during the consideration of the case by the court, it was established that, under an agreement with the administration of the urban settlement, the applicant in the case is compensated for the difference in tariffs and at the time of the consideration of the case, a part of the amount was transferred to the applicant. On the basis of the above, the court concluded that the contested points of the decision of the meeting of deputies of the urban settlement did not violate the rights and legitimate interests of the applicant in the form of illegal imposition of additional financial costs. By a court decision, the stated requirements were denied ( the decision of the Arbitration Court of the Rostov Region of 12.09.2006 N? А53-3669 / 2006-С5-5).
If the prosecutor applies for challenging the regulatory legal acts of state and municipal bodies, the applicant must confirm the facts of violation of the rights and legitimate interests of organizations and citizens in the field of entrepreneurial and other economic activities (Article 52 of the Arbitration Procedure Code of the Russian Federation). If an application for recognizing a normative act as invalid was submitted government bodies, local authorities, other bodies and officials, then in this case the violation of public interests must be proven (Article 53 of the APC RF). The absence of such evidence is also a ground for refusing to satisfy the stated requirements.
The lack of authority of a body or an official to adopt the contested normative act is an unconditional basis for declaring it invalid.
The scope of legal regulation carried out by a separate body or official is the powers that make up its competence to carry out any activity, in particular, rule-making. The limit of normative regulation and the powers of a law-making body are inseparable from each other, and a violation of the scope of legal regulation at the same time means a violation of the competence of a law-making body.
So, when considering a case on invalidation of clause 7.2 of the Rules for receiving wastewater into the municipal sewage system of the city of Vereshchagino and clause 2 of Appendix No. 1 to the Rules for receiving wastewater, approved. By the decision of the Zemsky Assembly of Vereshchagino dated 20.11.2003 N 31/261, the court found that the contested provisions of the normative act were adopted in violation of the competence ( Resolution of the Federal Antimonopoly Service of the UO dated July 26, 2005 N F09-3176 / 05-C7). According to clause 7.2 of the above Rules, the total amount of payment per month for exceeding the maximum permissible concentrations pollutants in wastewater cannot exceed the amount of the basic payment of subscribers per month for receiving wastewater into the municipal sewage system (except for concentrated wastewater discharged directly to sewage treatment plant by road). However, the decrees of the Government of the Russian Federation of 12.02.1999 N 167, of 31.12.1995 N 1310 and the decree of the Governor of the Perm Territory of 29.08.2003 N 167, regulating the procedure for collecting fees for the use of municipal water supply and sewerage systems, do not provide for the powers of local governments to establish either change the procedure for charging, calculating and the amount of payments for exceeding the standards for the discharge of wastewater and pollutants into the sewerage system settlements municipalities.
When determining the powers of this or that body or official, it is necessary to bear in mind the provisions of the legislation establishing the exclusive competence of the authorities or officials. For example, in Art. 35 of the Federal Law of 06.10.2003 N 131-FZ "On the General Principles of Organization of Local Self-Government in the Russian Federation", the exclusive competence is determined representative body local government. However, this provision of the Law is often violated.
So the arbitration court recognized as invalid paragraph 3.1 of the order of the administration of the Verkhnekamsk region of March 14, 2003 N 184 "On the indexation of land tax rates in 2003". This decree introduced unified land tax rates to be applied in 2003. According to clause 3.1 of the decree, taxes on land located outside settlements (industry, transport, communications, radio broadcasting, television, etc.) are levied at the rate of 4147 rub / ha The decision of the court indicates that the contested clause 3.1 of the order of the administration of the Verkhnekamsk region was adopted by the executive body of local self-government in contradiction to the current legislation, t.to. at executive body local self-government does not have the authority to introduce land tax rates on the territory of the municipality ( the decision of the Arbitration Court of the Kirov region of November 21, 2003 N A28-1001 / 03-290 / 13).
Thus, the subject of proof for the analyzed category of cases includes the following circumstances:
- verification of violation of the rights and legitimate interests of the applicant in the field of entrepreneurial and other economic activities;
- determination of the nature of the contested legal act;
- establishing compliance with the procedure for adopting a regulatory legal act;
- verification of the powers of a state authority, local self-government body or official for the adoption of the contested normative legal act;
- determination of the conformity of the contested normative legal act with the federal constitutional law, federal law and other normative legal act having great legal force.
The operative part of a court decision on challenging a normative legal act should include an indication of the recognition of this act as being in conformity with a normative legal act having great legal force, in connection with which it refuses to satisfy the application, or on recognizing the contested act as inconsistent with a normative legal act having a large legal force, and not acting in full or in part (Art. 195 of the APC RF). In the event that in the operative part of the decision on recognizing a normative act as invalid there is no reference to a law or other normative legal act that has great legal force, the principle of enforceability of court decisions is violated ( Resolutions of the FAS VSO dated 07.09.2004 N A69-435 / 04-12-5-F02-3601 / 04-C1; FAS RMS dated 02.10.2006 N F08-3849 / 2006). The body or official who adopted the contested act cannot fulfill the provisions of Part 5 of Art. 195 of the Arbitration Procedure Code of the Russian Federation, the obligation to bring the provisions of the contested act recognized as invalid in accordance with normative legal acts that have great legal force.
According to the provisions of Part 5 of Art. 195 of the Arbitration Procedure Code of the Russian Federation, if a normative legal act is recognized as invalid, it does not apply from the moment the court decision enters into legal force. In accordance with Art. 253 of the Code of Civil Procedure of the Russian Federation, the court, having established that the contested normative legal act or part of it contradicts federal law or other normative legal act having great legal force, recognizes the normative legal act as invalid in whole or in part from the date of its adoption or other time specified by the court. Thus, civil and arbitration procedural legislation provides for various consequences of recognizing a normative act as invalid, depending on the nature of the dispute and the jurisdiction of the case. Such differences do not have any grounds, in connection with which it is necessary to establish unified rules for considering the analyzed category of cases in arbitration courts and in courts of general jurisdiction.
The decision of the court affects the rights not only of the persons involved in the case, but also the interests of an indefinite number of subjects, therefore it has some signs of normativity, has the legal force of the normative act that has been declared invalid. This shows the high social significance of the analyzed category of cases. Consequently, the issue of uniform approaches to assessing the circumstances to be established when considering cases on invalidating a regulatory legal act requires further development.
* 1) See, for example: Tikhomirov Yu.A., Kotelevskaya I.V. Legal acts. M., 1999.S. 17.
* 2) Shugrina E.S. Legal writing technique. M., 2000.S. 12; Kerimov D.A. Culture and technology of lawmaking. M., 1991.S. 32-33.
* 3) See the definition of the Constitutional Court of the Russian Federation of 20.10.2005 N 442-O "On the complaint of CJSC SEB Russian Leasing" on violation of constitutional rights and freedoms by paragraph 1 of Article 29, paragraph 1 of part 1 of Article 150, part 2 of Article 181, Articles 273 and 290 of the Arbitration Procedure Code of the Russian Federation ".
* 4) Commentary to the APC RF / Ed. V.F. Yakovleva, M.K. Yukova. M., 2003.S. 523.
* 5) See: A.V. Abushenko. Interim measures in administrative proceedings: Practice of Arbitration Courts. M., 2006.
* 6) Determination of the Constitutional Court of the Russian Federation of 12.07.2006 N 182-C "On complaints of citizen A.E. Kaplin, OJSC Kuzbassenergo" and freedoms by the provisions of clause 1 of part 1 of article 150, article 192 and part 5 of article 195 of the Arbitration Procedure Code of the Russian Federation ".
* 7) See: Vitruk N.V. Constitutional Justice in Russia (1991 - 2001): Essays on Theory and Practice. M., 2001.S. 58; Kravets I.A. The constitutionality of normative legal acts: doctrine and practice in Russia // Law and Politics. 2006. No. 8; Constitution and law: stability and dynamism. M., 1998.S. 155.
* 8) According to Art. 1 of the Federal Law of 25.10.2001 N 137-FZ "On the Enactment of the Land Code of the Russian Federation", the RF LC comes into effect from the date of its official publication. The text of this law was published in " Russian newspaper"dated October 30, 2001 N 211-212.
Magazine "Arbitration Justice in Russia" N 11/2007, O.A. Eremina, assistant judge of the Fifteenth Arbitration Court of Appeal
New accounting, No. 3, 2008
A. Tyurin,
leading expert of AKDI "Economics and Life"
A person who believes that his rights and interests have been violated by a normative legal act (NLA) of public authorities or local authorities has the right to apply to the court to resolve the issue of its disputability and cancellation. Moreover, not everyone has the right to go to court to challenge the norms of the act. This article will discuss in what cases, in what court and in what order an application for challenging legal acts should be filed.
The structure of legal acts is composed of normative legal acts and individual legal acts that do not contain legal norms. At the legislative level, the definition of legal regulations is not fixed. At the same time, such a definition exists in the theory of law. Based on this definition, the Plenum of the RF Armed Forces clarified the signs of legal acts.
For the first time, the definition was formulated in the decree of the Plenum of the Armed Forces of the Russian Federation of January 20, 2003 N 2 "On some issues arising in connection with the adoption and implementation of the Civil Procedure Code of the Russian Federation."
This resolution became invalid due to the detailed regulation of the position of the Plenum of the RF Armed Forces on the issue under consideration in Resolution No. 48, adopted by the Plenum of the RF Armed Forces on November 29, 2007.
It is possible to determine whether an act belongs to a normative legal act, as indicated by the Plenum of the RF Armed Forces in clause 9 of Resolution N 48, if there are the following essential signs of a legal regulation:
Publishing it in accordance with the established procedure by an authorized government body, local government body or official;
The presence in it of legal norms (rules of conduct), binding on an indefinite circle of persons, designed for repeated use, aimed at regulating public relations or changing or terminating existing legal relations.
The Plenum of the RF Armed Forces united in one document practically all the controversial issues that arose before in judicial practice, setting out them taking into account the norms of the current legislation.
Which court has the right to consider cases on challenging regulatory legal acts?
Recall that the structure of courts in the Russian Federation is established by the Constitution of the Russian Federation and the Federal Constitutional Law of December 31, 1996 N 1-FKZ "On the judicial system of the Russian Federation" and includes federal courts, constitutional (statutory) courts and justices of the peace of the constituent entities of the Russian Federation, which, according to Article 4 of this Law, are classified into courts of general jurisdiction and arbitration courts.
The system of arbitration courts consists of the Supreme Arbitration Court of the Russian Federation; federal arbitration courts of districts (arbitration courts of cassation); arbitration courts of appeal; arbitration courts of the constituent entities of the Russian Federation (Article 3 of the Federal Constitutional Law of 28.04.1995 N 1-FKZ "On Arbitration Courts in the Russian Federation").
The system of courts of general jurisdiction consists of the Supreme Court of the Russian Federation, Supreme Courts constituent entities of the Russian Federation, courts of cities of federal significance and district courts(Clause 3 of Article 4 of the aforementioned Law "On the Judicial System ...").
Note! The judicial system of courts of general jurisdiction also includes military courts considering cases on challenging legal acts in the field of military service (Article 1 of the Federal Constitutional Law of 23.06.1999 N1-FKZ "On military courts of the Russian Federation").
Justices of the peace in accordance with Article 23 of the Code of Civil Procedure of the Russian Federation are not entitled to consider cases on challenging regulatory legal acts.
The choice of the court is influenced by both the type of the contested LA and the type of document that the contested LA contradicts.
The right to revoke the legal force of legal acts, which are listed in Article 125 of the Constitution of the Russian Federation, due to their contradiction with the Constitution of the Russian Federation, can only be the Constitutional Court of the Russian Federation, which has jurisdiction over cases of challenging (inconsistency with the Constitution of the Russian Federation) such documents as federal laws, regulations of the President of the Russian Federation, the Council Federation, the State Duma, the Government of the Russian Federation, the constitutions and charters of the constituent entities of the Russian Federation, as well as laws and other normative acts of the constituent entities of the Russian Federation, issued in excess of their powers, as well as treaties between the state authorities of the Russian Federation and the state authorities of the constituent entities of the Russian Federation, contracts between the state authorities of the constituent entities RF and international treaties of the RF that have not entered into force *.
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* The conclusion on the constitutionality of the established jurisdiction is contained in clause 1 of the operative part of the resolution of the Constitutional Court of the Russian Federation N 19-P of June 16, 1998 "In the case of the interpretation of certain provisions of Articles 125, 126 and 127 of the Constitution of the Russian Federation"
By federal laws and the laws of the constituent entities of the Russian Federation on the basis of Article 96 of the Federal Constitutional Law No. 1-FKZ of 21.07.1994 "On the Constitutional Court of the Russian Federation" (hereinafter - the Law "On the Constitutional Court of the Russian Federation") in the presence of a copy of an official document confirming the application or the possibility of applying the contested of the law when resolving a specific case, any person can apply to the Constitutional Court of the Russian Federation, including individual entrepreneur, a legal entity or its founder (participant, shareholder).
For the rest of the normative acts, this can only be done by persons or bodies listed in part two.