Which is very often imposed on the consumer-borrower and can be recognized as invalid. This will reduce debt, or to recover from the bank illegally retained cash, without forgetting to return and interest (they are equal to the refinancing rates of the Central Bank of Russia and in August 2013 were 8.25% per annum). Immediately, it is mentioned that a normatively ban on attracting Rospotrebnadzor in your case as a third party was established by the Supreme Court of the Russian Federation. It was he who in his decision of the Plenum of the Armed Forces of the Russian Federation of June 28, 2012 for the number 17 entitled "On the consideration by the courts of civil cases on disputes on the protection of consumer rights" in the last sentence of the first paragraph of paragraph 27 indicated: "Authorized bodies carrying out obligations assigned to them to protect the rights and protected by the law of consumer interests, and organs local governments Before the adoption by the court, the decision on the case may enter into a case on their own initiative or on the initiative of those involved in the case, and are also involved in participation in the case of the court as authorized bodies entering the process in order to present the conclusion in the case (Articles 34, 47 GPK RF). In this case, attracting these bodies into the process as third parties is not allowed." It would seem here there is nothing to discuss, and there is little interesting with useful for a simple borrower man. It is difficult to disagree with this. I, in turn, decided to write this article only because I used to think that Rospotssople can be attracted as a third party, which declares or does not declare his own requirements, and the foundation for such an assumption was the words of the judge. That is, despite the fact that the court was in June 2013, therefore, has passed the year from the date of publication of this resolution. The judge when I was stated a petition for the involvement of Rospotrebnadzor as an expert orally, asked: "Do you want to attract it as a third party?" After that, added: "Third party declaring independent requirements, or not claiming." I was needed by Rospotrebnadzor as an expert, because voluntary insurance and its design in the loan agreement spared on the seams. What is this epos? Literacy and awareness of each judge are individual. In the regions, many phenomena, including: Collector agencies, legal processes for recovery of debt on the loan, the claim for the protection of consumer rights on the loan agreement and other cases appear much later than in the central regions. Not all the judges are ready, some are not particularly deliberate in the essence of the matter, some would be vnikley, but until you write where to look (articles on laws, rulings, sometimes, solutions to other courts) no one will look for them. In theory, the judge is obliged to maintain his level of knowledge at the proper level. All decrees, he should read and reread, and then know and apply! But not all do it. Some because they believe that once the judge means forever the judge. Some do not have time to follow all this, because they do not want, and there are no such cases yet. Accordingly, only you yourself or your representative should look for the information and legal framework that is necessary, otherwise it will be difficult! In addition, all people, everyone can make mistakes or not know something, therefore do not count on a judge or a lawyer or an expert. Try and delve into everything yourself, because you need it first. It will take time, and you can no longer change anything, but they could. Do not hope that all judges are dealt with all nuances of legislation. Moreover, credit theme requires some accounting knowledge, and, therefore, you will have to provide your counterproofs if you do not agree with banking. The judge will have to delveue some of the calculations more precisely and reasonably. Rescue savory, the work of the rescue themselves in most cases. If the judge also says to me, the Rospotrebnadzor can be attracted to the point as a third party, do not forget to justify the reason, referring to the ruling that, alas, it is impossible to do this. Do not think that you will look smarter judge! It is not necessary to go on the personality, the court is a system, and neither a person, and the system should, must !!!, perform certain functions in accordance with the rules. If you need a Rospotrebnadzor, then boldly try to attract it as an expert for giving conclusion, but remember that his response is not considered evidence in court, but this does not decease the need for a simple borrower in his participation in the process, since the court is obliged to in the motivation part Decisions to provide their judgments regarding the conclusion of the state.
04.07.2011
Approved
Decree of the Presidium
Third arbitration
court of Appeal
dated 04.07.2011 № 9/2011
Analysis of the judicial practice of attracting third parties who do not declare independent
Requires regarding the subject of the dispute (Article 51 of the APC RF)
1. Introductory part and analysis structure
In accordance with the work plan of the Third Arbitration Court of Appeal For the first half of 2011, an analysis of the judicial practice of attracting third parties, not claiming independent requirements Regarding the subject of the dispute (Article 51 of the Arbitration Procedure Code of the Russian Federation, hereinafter also - the APC RF), on cases considered by the Third Arbitration Court of Appeal in 2010.
The purpose of this analysis is to compilect the practice of the third arbitration court of attraction to participate in the case of third parties who do not declare independent claims on the subject of dispute (hereinafter also - third parties without independent claims), and transition to consideration of cases for the rules established for consideration of cases Court of First Instance, Part 3 of Article 266, Part 6.1 of Article 268, paragraph 4 of Part 4 of Article 270 of the Arbitration Procedure Code of the Russian Federation, explanations of the Plenum of the Supreme Arbitration Court of the Russian Federation contained in the decision of 28.05.2009 No. 36 "On the application of the Arbitration Procedure Code of the Russian Federation when considering cases in the arbitration court of the appellate instance. "
The subject of studying the present analysis was the decrees made by the Third Arbitration Court of Appeal in 2010, taking into account their verification by superior instances.
2. Basic statistics and general provisions
2.1. Analysis of statistical data showed that in 2010 from 4339 considered by the third arbitration appellate court of third-party cases without independent claims were brought to the third arbitration court after the transition to the case on the rules of first instance in 20 cases, which was 0.46% of the total Considered cases.
So, third parties without independent claims are attracted:
1) at the initiative of the court (including in connection with the arguments of appeal) - when considering 8 cases (40%):
A33-4215 / 2009 (Babenko A.N., Bellan N.N., Khasanova I.A.),
A33-429 / 2010 (Khasanova I.A., Kirillova N.A., Petrovskaya O.V.),
A33-6645 / 2010 (Gurova TS, Babenko A.N., Magda O.V.),
A33-9890 / 2008 (Khasanova I.A., Kirillova N.A., Petrovskaya O.V.),
A74-4212 / 2009 (Khasanova I.A., Kirillova N.A., Spotyuy L.E.),
A74-1103 / 2010 (Khasanova I.A., Gurova T.S., Magda O.V.),
A74-326 / 2009 (Khasanova I.A., Babenko A.N., Petrovskaya O.V.),
A74-3977 / 2009 (Khasanova I.A., Babenko A.N., Bellan N.N.);
2) at the request of the person participating in the case, when considering 2 cases (10%):
A33-7048 / 2010 (Kirillova N.A., Gurova T.S., Magda O.V.),
A74-1610 / 2010 (Borisov G.N., Bychkov O.I., Kolesnikova G.A.);
3) At the initiative of the person who was not attracted by the court of first instance to participate in the case and appealing with the appeal when considering 9 cases (45%):
A33-5408 / 2007 (Babenko A.N., Bellan N.N., Radzikhovskaya V.V.),
A74-2458 / 2009 (Kolesnikova G.A., Bychkov O.I., Pervukhina L.F.),
A69-1575 / 2009 (Khasanova I.A., Gurova TS, Spotyuli L.E.)
A69-2427 / 2008 (Radzikhovskaya V.V., Magda O.V., Spotyul L.E.),
A74-229 / 2010 (Bychkov O.I., Dunaeva L.A., Pervukhina L.F.),
A33-16415 / 2009 (Babenko A.N., Radzikhovskaya V.V., Spotyuy L.E.),
A33-19242 / 2009 (Petrovskaya O.V., Gurova TS, Khasanova I.A.),
A33-8166 / 2009 (Babenko A.N., Radzikhovskaya V.V., Khasanova I.A.),
A74-340 / 2010 (Spotyuy L.E., Magda O.V., Khasanova I.A.).
In case number A33-9528 / 2009 (Magda O.V., Babenko A.N., Kirillova N.A.) The court of appeal by the definition of his own initiative was attracted to participate in the case of a third party without a transition to the case on the rules of first instance .
To federal court of Arbitration The East Siberian District (hereinafter also - the FAS TOO) appealed the judicial acts of the third Arbitration Court of Appeal of 14 (70%) from the indicated 20 cases:
according to 8 cases of acts of the Third Arbitration Court of Appeal, unchanged,
for 6 cases of acts of the Third Arbitration Court of Appeal, canceled.
The court of cassation instance as the basis for the abolition of judicial acts of the Third Arbitration Court of Appeal is not indicated by the violation of the court of appeal procedural law In connection with the involvement of third parties and the transition to the consideration of the case on the rules of first instance.
In the order of supervision, the judicial acts of the Third Arbitration Court of Appeal for the analyzed cases were not revised (definitions of January 27, 2011, 04/06/2011 and 11.04.2011, respectively, the Board of Judges of the Supreme Arbitration Court of the Russian Federation (hereinafter also - the Russian Federation) refused the transfer of cases No. A74-3977 / 2009, A33-19242 / 2009 and a33-5408 / 2007 in the Presidium of the Russian Federation to revise in the order of supervision of the decisions of the Third Arbitration Court of Appeal and the Resolutions of the Federal Arbitration Court of the East Siberian District on these cases, which are left without change).
2.2. In accordance with Article 51 of the Arbitration Procedure Code of the Russian Federation, third parties, without independent claims, they can enter into a case on the side of the plaintiff or the defendant before the adoption of a judicial act, which endes the consideration of the case in the first instance of the Arbitration Court, if this judicial act It may affect their rights or responsibilities towards one of the parties. They can be attracted to participation in the case also at the request of the part or on the initiative of the court.
In the Arbitration Court of Appeal, according to part 3 of Article 266 of the Arbitration Procedure Code of the Russian Federation, the rules on attracting third parties to participate are not applied.
Except from specified rule According to the explanations contained in paragraph 27 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 28.05.2009 No. 36 "On the application of the Arbitration Procedure Code of the Russian Federation when considering cases in the Arbitration Court of Appeal" (hereinafter referred to as the Resolution of the Plenum of the Russian Federation No. 36), is the case When the court of appeal by virtue of Part 6.1 of Article 268 of the Arbitration Procedure Code of the Russian Federation considers the case on the rules established by the APC RF to consider the case in the court of first instance.
In addition, according to clause 1 of the Resolution of the Plenum of the Worth of the Russian Federation No. 36 of persons who do not participate in the case, it is entitled to appeal the judicial act in the case of appeal production in the event that it is taken on their rights and obligations, that is, this judicial act is directly affected by their rights and obligations. , including obstacles to implement them subjective right or the proper performance of the responsibility towards one of the parties to the dispute.
If the arbitration court of the appellate instance establishes that the applicable judicial act directly affects the rights or obligations of the applicant, then in accordance with paragraph 2 of the Decisions of the Plenum of the Civil Code of the Russian Federation No. 36 decides on the abolition of the judicial act of the court of first instance, guided by paragraph 4 of Part 4 of Article 270 of the Arbitration Procedure Code. Of the Russian Federation, and on attracting the applicant to participate in the case.
With the abolition of the judicial act of the court of first instance on the basis of paragraph 4 of part 4 of Article 270 of the Arbitration Procedure Code of the Russian Federation, the court of appeal should noted which conclusion of the court of first instance, set out in the motivative and / or operative part of the decision concerns the rights or duties of not involved in participation in Persons, as well as motivate the need to attract them (paragraph 29 of the Resolution of the Plenum of the Court of Russia No. 36).
3. Analysis of judicial acts issued by the Third Arbitration Court of Appeal in 2010 on cases under which third parties were involved in the appellate court without independent claims.
3.1. For Affairs No. A33-5408 / 2007, A74-2458 / 2009, A69-1575 / 2009, A69-2427 / 2008, A74-229 / 2010, A33-16415 / 2009, A33-19242 / 2009, A33-8166 / 2009, A74-340 / 2010 Persons who do not participate in the case were involved in participation in the case as third parties on the basis of appeals (petitions) of these persons.
In case No. A33-5408 / 2007, a public education is attracted for the recovery of debt under contracts to participate as a third party, a public education is attracted without independent claims - the holder of 100% of the defendant's shares, represented by the relevant authority, implementing the management of public education property, the court of appeal In violation of paragraph 29 of the Resolution of the Plenum of the Court of Russia, No. 36 did not motivate how the decision on the specified case affects the rights and obligations of the territorial administration of the Federal Agency for Management federal propertyattracted to participate in the case as a third party.
An individual entrepreneur appealed to the Arbitration Court Krasnoyarsk Territory With a suit to society about the recovery of debt under 8 contracts.
The definition of the court of first instance to participate in the case as a third party without independent claims on the side of the defendant was attracted by the Cedent - the initial contractor who gave way to the claimant's contracts.
By the decision of the Arbitration Court of the Krasnoyarsk Territory, the claims are satisfied.
The territorial administration of the Federal Agency for State Property Management appealed to the third Arbitration Court of Appeal with an appeal complaint, in which he asks to cancel the decision of the Arbitration Court of the Krasnoyarsk Territory due to the fact that the Director-General of the Company made a major transaction (several interrelated transactions) with a violation of the Company's Charter and Articles 78-79 Federal Law dated December 26, 1995 No. 208-FZ "On Joint-Stock Companies" without approval by its general meeting of participants or the Board of Directors of the Company; The dispute is considered by the court of first instance regarding the debt of the defendant, one hundred percent of whose shares belong to the state, the authority to implement the RF shareholder rights transferred to the territorial administration of the Federal Agency for Public Property Management, the said person to participate in the case is not attracted.
The court of appealing as the basis of the transition to the consideration of the case on the rules of first instance and the abolition of the decision of the court of first instance in relevant judicial acts indicated that a hundred percent of the defendant's shares belongs to the Russian Federation, which, represented by the Federal Agency for Federal Property Management, was not attracted to participation in Business, in connection with which the interests of the owner of the federal property - the Russian Federation - could not be protected properly.
According to the Charter of the Company, its founder is the Russian Federation in the person of the Commissioner federal Body executive power on the management of federal property. At the date of approval of the Charter, these powers carried out a federal federal property management agency.
By order of the Federal Agency for the Federal Property Management of 15.02.2007 No. 382-p Powers to implement the rights of shareholders of joint-stock companies delegated to the territorial departments of the Federal Property Management Agency at the place of registration of the joint-stock company as a legal entity.
In determining the transition to the consideration of the case on the rules of the first instance and in the decision on the cancellation of the decision of the court of first instance, the appellate court did not indicate which rights and obligations of the Russian Federation represented by the territorial administration of the Federal Agency for the Federal Property Management were affected by the decision of the court of first instance, how Public education rights may be protected on property that belongs to joint Stock Company. The circumstances of attributing a transaction to major transactions and the availability of approval of the transaction to the only shareholder could be tested on the basis of the evidence submitted by the defendant.
The definition of 11.04.2011 the Board of Judges of the Russian Federation refused the transfer of the case No. A33-5408 / 2007 to the Presidium of the Court of the Russian Federation to revise in the order of oversight of the court of appeal and the decision of the Court of Court of Industry.
In case number A74-2458 / 2009 The court of appeal on the basis of an appeal complaint of an individual switched to the consideration of the case on the rules of the first instance and attracted the said person to participate in the case as a third party without independent claims, in accordance with the provisions of paragraph 4 of paragraph 4 of Article 270 of the Arbitration Procedure Code of the Russian Federation.
The company appealed to the Arbitration Court of the Republic of Khakassia with a claim to the administration of the municipality Altai district on recognition of ownership of the land plot, transmitted by the Proprietary of the Company into the collective ownership of his employees.
By the decision of the Arbitration Court of the Republic of Khakassia, the claims are satisfied, the ownership of the Company to the specified land plot is recognized. At the same time, the court of first instance attracted to participate in the case of not all employees of the Company, who allocated a land share in the composition of the controversial land plot, including the person who appealing with the appeal complaint, which belonged to the proportion of ownership of the disputed land plot.
Court of appeal with reference to paragraph 4 of Article 4 of Article 270 of the Arbitration Procedure Code of the Russian Federation switched to the consideration of the case on the rules established for consideration of the case in the Arbitration Court of First Instance.
Attracting the applicant's appeal to participate in the case of the applicant, the court noted that the land share in the disputed land plot was allocated to the specified employee and issued a certificate for ownership, that is, he is a person whose rights and obligations affects the applicable judicial act. In this case, the appellate court pointed out what the right of a person who did not attracted to participation in the case affects the decision of the court of first instance.
Also, on the basis of Article 51 of the Arbitration Procedure Code of the Russian Federation, the Court of Appeal after the transition to the consideration of the case on the rules of the first instance on its initiative attracted all persons, the certificate of belonging to land shares are presented in the case file, as third parties that do not declare independent claims On the subject of the dispute, on the side of the defendant.
According to the results of consideration, the appellate court refused to satisfy the claims, indicating that society, stating the requirement to recognize the ownership of the land plot, actually challenges the rights of participants in general dolly ownership. Under such circumstances, the company elected an improper way to protect the rights, which it considers violated, and incorrectly determined the procedural situation of persons involved in the case, which, by virtue of Article 47 of the Arbitration Procedure Code of the Russian Federation, cannot be changed by the court without the will of the plaintiff.
By the decision of the FAS SDO, the decision of the Court of Appeal is left unchanged.
In case number A74-229 / 2010 Court of appeal in violation of part 3 of Article 266 of the Arbitration Procedure Code of the Russian Federation, paragraphs 1 and 2 of the Resolution of the Plenum of the Russian Federation No. 36 attracted to participate in the case as a third party who does not declare independent claims on the subject of the dispute, the antimonopoly authority on the basis of his petition Entry into business as a third party.
An individual entrepreneur appealed to the Arbitration Court with the requirement of the municipal authority on the recognition of the illegal results of the competition for the right to implement passenger traffic on the city bus route by lots in the form of a protocol of evaluation and comparing applications for participation in the competition. In this case, a prosecutor joined the Arbitration Procedure Code of Article 52 of the Arbitration Procedure Code of the Russian Federation.
According to paragraph 21 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 30.06.2008 No. 30 "On some issues arising from the use of arbitration courts of antimonopoly legislation" The antimonopoly authority by virtue of paragraph 7 of Part 1 of Article 23 of the Federal Law "On Competition Protection" has the right To participate in the consideration by the courts of cases related to the application and (or) violation of antitrust laws initiated on the basis of lawsuits, statements of other persons. At the same time, considering cases initiated on the basis of lawsuits, statements of other persons, the arbitral tribunal must notify the antimonopoly authority to ensure the possibility of his participation in the case under consideration, and procedural status The antimonopoly authority is determined on the basis of the nature of the dispute under consideration.
In court of the appellate instance, the representative of the prosecutor's office requested to attract the antimonopoly authority to participate in the case.
The court of appeal by the definition was notified by the antimonopoly authority on the consideration of the appeal and invited him to submit written explanations for its procedural status in the case under consideration.
The antimonopoly authority told the petition for bringing it as a third party without independent claims.
Guided by the above clarifications of the Plenum of the Supreme Arbitration Court of the Russian Federation, the court attracted the antimonopoly authority to participate in the case as a third party and moved to the consideration of the case on the rules of the first instance.
In this case, the attraction of an appeal court to participate in the case of the third person of the antimonopoly authority, which did not participate in the consideration of the case in the court of first instance, does not correspond to the explanations contained in paragraphs 1 and 2 of the Resolution of the Plenum of the Court of the Russian Federation No. 36, since the antimonopoly authority did not apply with the appeal complaint And did not substantiate how the decision of the court of first instance affects his rights and obligations.
In addition, in violation of paragraph 29 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 36 in the decree of the appellate instance, there is no reference to the conclusion of the court of first instance, set out in the motivative and / or the operative part of the decision, which concerns the rights or duties of the antimonopoly authority not attracted to participation.
On affairs numberA33-8166 / 2009, A33-16415 / 2009 Court of appeal ceased production on appeal complaints of persons not attracted to participation in the case, believing that the judicial act of the court of first instance does not affect the rights and obligations of these persons; After canceling the court of cassation instance of the termination of the cessation of the production complaints, the latter are considered by the appeals court on the merits.
Citizen T. applied to the Arbitration Court with a lawsuit against a limited liability company for the recovery of the actual share in authorized capital (Case number A33-8166 / 2009).
Citizen K., who did not participate in the case in the court of first instance, turned with an appeal complaint, indicating that he was a member of the same society, due to the wrong definition of the last size of the share in the authorized capital appealed to the Arbitration Court, which in case number A33-16008 / 2008 recovered from society the actual value of the share in the authorized capital, the decision of the court is not fulfilled. Citizen K. believes that the decision-making on the case number A33-8166 / 2009 on the recovery of a significantly overestimated actual value of the share violates its rights, since the execution of this decision will be carried out by the valid value of the actual value.
Court of Appeal Definition has ceased production by the Citizen Citizen's appeal under paragraph 1 of Part 1 of Article 150 of the Arbitration Procedure Code of the Russian Federation, recognizing that the decision of the court in case number A33-8166 / 2009 on the rights of citizen K.
The court of cassation canceled the definition of the termination of the production complaint, indicating that the other members of the Company declared the requirements for the recovery of the real share of share capital, considered in other arbitration courts, these actions are regarded as actions that testify to the intentional tightening by the company's real share of citizen by the C. and the use of judicial procedures to prefer the transfer of assets to other participants of the Company, who later came out of him a citizen of K. In connection with this, the conclusion of the appeal court not appropriate is recognized as a decision on the decision on case No. A33-8166 / 2009, rights and obligations are not affected Citizen K.
With the new consideration of the case, the appellate court switched to the consideration of the case on the rules of the first instance, attracted a citizen K. to participate in the case as a third party without independent claims, the CITY CITY appeal is considered essentially, the claims of a citizen of T. Satisfied partially.
An individual entrepreneur who did not participate in the case in the court of first instance appealed to the appeal against the court decision on recovery from the municipal enterprise in favor of the Limited Liability Company for the provision of legal services (Case number A33-16415 / 2009). The entrepreneur believes that the court decision on the specified case affects its rights, since he is a competitive lender of the municipal enterprise and the satisfaction of the requirements of the Company may entail the impossibility of meeting the requirements of the entrepreneur.
The court of appeal to the definition ceased production on the appeal of the entrepreneur, indicating that the latter challenges the reality of the contract for the provision of legal services in another arbitration businessAt the same time, evidence of the emergence of losses in connection with the recognition of the municipal enterprise of the Company's claim is not presented. In connection with the specified, the appellate court came to the conclusion that the appeal complaint was filed by a person who did not participate in the case, the rights and obligations of which by the decision of the court of first instance are not affected.
The court of cassation canceled the definition of the termination of the production complaint, indicating that the requirement of a society about the payment of the services of attracted persons at the expense of the debtor's property is carried out by the court considering the bankruptcy case of the municipal enterprise, therefore the requirements for the payment of the services of attracted persons on the basis of paragraph 4 Parts 1 of Article 148 of the Arbitration Procedure Code of the Russian Federation are subject to leaving without consideration.
With a new consideration of the case, the appellate court switched to the consideration of the case on the rules of first instance, attracted an entrepreneur to participate in the case as a third party without independent claims, left statement of claim Society to the municipal enterprise on the recovery of the cost of legal services without consideration.
3.2. A33-4215 / 2009, A33-4215 / 2010, A33-4215 / 2010, A33-6645 / 2010, A33-9890 / 2008, A74-4212 / 2009, A74-1103 / 2010, A74-326 / 2009, A74-3977 / The 2009 Court of Appeal In violation of Part 3 of Article 266 of the Arbitration Procedure Code of the Russian Federation and the explanations contained in paragraphs 1 and 2 of the Resolution of the Plenum of the Court of the Russian Federation No. 36 transferred to the consideration of the case on the rules of the first instance and attracted third parties without independent claims not previously participating in the case Persons without circulation of these individuals with appeals.
In case No. A33-4215 / 2009, third parties were brought to participate in the initiative of the court after the transition to the consideration of the case according to the rules of the first instance on the basis of paragraph 2 of Part 4 of Article 270 of the Arbitration Procedure Code of the Russian Federation.
According to this group of cases, a selective analysis of judicial acts was carried out for compliance with Article 51 of the Arbitration Procedure Code of the Russian Federation and the explanations contained in paragraph 29 of the Resolution of the Plenum of the Russian Federation No. 36.
In case No. A33-4215 / 2009 on a dispute about the recovery of the sum of undeveloped advance under the contract to participate in the case, representatives of which their signatures in the documents contained in the case materials were confirmed by the actual finding of building materials provided by the defendant As part of the execution of the contract.
The customer appealed to the arbitration court with a claim to the Contractor for the recovery of the sum of the undeveloped advance under the contract.
By the decision of the arbitral tribunal, the claim is satisfied completely.
Disagreeing with this decision, the defendant appealed to the appeal.
Court of appeal with reference to paragraph 2 of Part 4 of Article 270 of the APC RF passed to the consideration of the case on the rules established for the consideration of the case in the Arbitration Court of First Instance, in connection with the improper notification of the defendant, and attracted the organization as third parties without independent requirements of the organization, representatives Which with their signatures in the documents contained in the case files confirmed the actual finding of building materials provided by the defendant the plaintiff within the framework of contracting.
The definition by which the court of appeal was attracted to participate in third parties without independent claims, does not contain a conclusion how the judicial act of this case may be affected by their right or duties; in this definition The basis of the attraction of third parties is indicated by the establishment of actual circumstances that had a value for the full and comprehensive consideration of the case.
In this case, the attraction of third party appellate court does not comply with the provisions of Article 51 of the Arbitration Procedure Code of the Russian Federation. The establishment of actual circumstances of the importance should be carried out on the basis of the evidence specified in Article 64 of the APC RF.
By the decision of the FAS SJO, the decision of the Court of Appeal on the partial satisfaction of the claim and the refusal to satisfy the counterclaim on the results of consideration of the appeal after the transition to the consideration of the case on the rules of the court of first instance is left unchanged.
In case No. A33-429 / 2010, on a dispute about the termination of a land lease agreement, recovery of unjust enrichment and losses to participate in the case of a third party without independent claims, an entrepreneur was brought, who reserved the plaintiff's right to lease to the land plot.
An individual entrepreneur M. appealed to the Arbitration Court with a lawsuit against the municipal body and municipal education with the claims for termination of the land lease agreement, the recovery of unjustily received under the lease agreement of the land money and losses.
The court of first instance to participate in the case as third parties without independent claims was attracted by the organization, which the municipal formation instructed the organization of auction, as well as an organization engaged in issuing sanitary and epidemiological conclusions.
The defendant appealed to the third Arbitration Court of Appeal with an appeal complaint, in which he asked the decision of the Arbitration Court of the Krasnoyarsk Territory to cancel and take a new judicial act on the refusal to satisfy the claims.
The Court of Appeal by definition switched to the consideration of the case on the rules of the first instance and attracted to participate in the case as a third party without independent claims of the entrepreneur F. At the same time, the Court of Appeal proceeded from the fact that the results of trading the land lease agreement was concluded between municipal authority And the entrepreneur F., who subsequently referred to the plaintiff's right and obligations of the tenant of the land plot.
Determination of the appellate instance on the transition to the consideration of the case on the rules of first instance and attracting a third party, as well as the decree of the appellate instance contain a general reference to the decision of the first instance of the decision on the rights and obligations of the entrepreneur F., not attracted to participation in the case.
In this case, the specified court acts of the appellate instance do not comply with the explanations contained in paragraph 29 of the Resolution of the Plenum of the Countries of the Russian Federation No. 36, since they do not indicate the conclusions of the court of first instance set out in the motivative or operative parts of the contested judicial act, which directly affect the rights and obligations of the entrepreneur F.
In case No. A33-6645 / 2010, a person who signed an agreement on behalf of the defendant was brought by a third party without independent claims, to recover the debt on which the plaintiff turned.
The Company appealed to the arbitration court with a suit to the partnership of the owners of housing (hereinafter referred to as HOA) on the recovery of debt under the legal service provision agreement.
The decision of the court of first instance in satisfying the Society Requirement of the Company, since the contract submitted by the plaintiff does not indicate the responsibility of the responsibility for the payment of services, since it was signed on behalf of the defendant an unauthorized person (chairman board Tszh.) And in the subsequent defendant is not approved.
Court of appeal with reference to paragraph 4 of Article 4 of Article 270 of the APC RF passed to the consideration of the case on the rules established for consideration of the case in the Arbitration Court of First Instance, and attracted the Chairman of the Board of the HOA as a third party without independent claims, indicating that the conclusions of the court Instances in this case can affect the rights or obligations of the third party attracted, since there is a dispute about its authority to sign the contract, and by virtue of paragraph 1 of Article 183 Civil Code Of the Russian Federation, in the absence of authority to act on behalf of another person or when such powers are exceeded, the transaction is considered to be concluded on behalf of and in the interests of the person who committed it, if only another person (submitted) will subsequently unrest on this transaction.
In this case, the appellate court indicated what conclusions in the decision of the court of first instance affect the rights and obligations of a person not attracted to participation in the case.
When considering the case on the merits, the court of appeal came to the conclusion that the services were adopted by the defendant, since the Chairman of the Board and the Governing HOA, which has the right to act on his name without a power of attorney, are one person, therefore, the provisions of Article 183 of the Civil Code of the Russian Federation to the controversial relationship Not applicable.
By the decision of the FAS CJSC, the decision of the Court of Appeal was abolished, the decision of the court of first instance was left in force. The court of cassation, recognizing the correct application by the court of first instance of the provisions of Article 183 of the Civil Code of the Russian Federation, did not establish unconditional grounds provided for by paragraph 4 of Article 288 of the Arbitration Procedure Code of the Russian Federation, for the abolition of the decision of the court of first instance.
In case No. A74-1103 / 2010, a person who was brought to whom a disputed object was transferred to use, when considering a dispute about the invalidation of an invalid ownership of a disputed facility real Estate and recognition of the right state owned Subject of the Federation on the specified object of real estate.
The State Property Management Committee (hereinafter referred to as the State Committee) appealed to the Arbitration Court with a statement of claim to a society on recognizing invalid registered ownership of real estate - the building of the Fire Depot, on the recognition of the right of state ownership of the Republic of Khakassia to the specified object of real estate.
Definitions of the court of first instance to participation in the case are involved as third parties that do not declare independent claims regarding the subject of the dispute, the Office of the Federal Registration Service, management Federal Service bailiffs, Administration of the Municipal Education Shirinsky district, administration of the municipality of the Tsumsky village council, individuals.
By the decision of the arbitral tribunal, the lawsuit denied.
Disagreeing with this judicial act, the plaintiff appealed to the third arbitration court of appeal with an appeal complaint, in which he requested a court decision to cancel and take a new judicial act.
Court of appeal on the basis of part 4 of Article 4 of Article 270 of the Arbitration Procedure Code of the Russian Federation switched to the consideration of the case on the rules established for consideration of the case in the arbitration court of first instance, and attracted a detachment fire service As a third party without independent claims, since it is an institution to which the controversial building of the fire depot and which exercises its operation.
In the definition of the transition to the consideration of the case on the rules of the first instance, the appellate court indicated that the decision of the court of first instance affects the Rights of the Fire-Safe Service, which is the actual owner of the disputed property.
According to the results of the consideration of the case, the appellate court partially satisfied the claims, recognizing the right of state ownership of the Republic of Khakassia to the premises of the first floor of the building of the Fire Depot, in the rest of the claim refused.
At the same time, the court of appeal in violation of the explanations contained in paragraph 29 of the Resolution of the Plenum of the Court of Russia No. 36 in the decision taken on the results of the consideration of the case did not indicate which conclusion of the court of first instance set forth in the motivative and / or the operative part of the decision regarding the rights Or the duties of the Fire Service Details and did not motivate the need to attract it to participate in the case.
In court of cassation Case No. A74-1103 / 2010, it was considered with the participation of a third party attracted to participation in the case of the court of appeal, in accordance with Article 48 of the Arbitration Procedure Code of the Russian Federation, the replacement of this person was replaced. At the same time, by abolishing the decision of the Third Arbitration Court of Appeal at the specified case and leaving the decision of the court of first instance, the court of cassation indication that the court of first instance of violations of the procedural law, provided for by paragraph 4 of Article 288 of the APC RF, was not allowed.
In case number A74-326 / 2009 For third parties without independent claims, participants of the share ownership of the land plot in the dispute under the claim on recognition of ownership of the land plot are brought.
The participant of the share ownership appealed to the Arbitration Court with a suit to society on recognition of ownership of the land.
The decision of the arbitral tribunal is satisfied.
Disagreeing with the judicial act, the defendant appealed to the appeal against the third Arbitration Court of Appeal, in which he asked the decision of the Arbitration Court to cancel, to take a new judicial act.
Court of Appeal with reference to paragraph 4 of Article 4 of Article 270 of the APC RF passed to the consideration of the case on the rules established for consideration of the case in the Arbitration Court of First Instance, attracted to participate in the case as third parties without independent claims individuals - participants of equity property.
At the same time, the appellate court indicated that the extraordinary general meeting of the participants in the share ownership of the Company dated April 27, 2008, which was present 12 people (or 1.16% of the total number of participants in equity), including the plaintiff, the location was determined land plotsallocated to land shares. The plaintiff was allocated land plot, as published by a notice in newspapers.
The indicated publications are stated objections that are also published in the newspaper. According to these objections in accordance with Article 14 of the Federal Law "On Turnover of Agricultural Land" by the decision of the General Assembly of Participants in the Company's share ownership of September 7, 2008, another location location was determined to allocate land-owned land ownership participants. In this regard, they object to the allocation of the land plot at the expense of the land share at the address specified by the plaintiff, since it does not comply with the specified decision of the general meeting of participants in equity property and contradicts Articles 13, 14 of the title federal law.
The Constitutional Court of the Russian Federation in paragraph 4.2 of the Resolution of January 30, 2009 No. 1-P "On the case on the verification of the constitutionality of the provisions of paragraphs 2, 3 and 4 of Article 13 and paragraph of the second paragraph 1.1 of Article 14 of the Federal Law" On the Turnover of Agricultural Land "in connection with Complaints of citizen L.G. Possing "indicated that the law, protecting the private interest of the co-owl, provides him with the opportunity to determine the location of the land plot allocated to the landline through the publication of communication in the media, including for the case when general meeting Not carried out at all, provided that all the necessary actions for the convening of a general meeting were taken, confirmed by the concerned by the comprehension, confirmed. If there is at least one objection regarding the location of the allocated land plot, then the corresponding dispute is subject to permission using conciliation procedures.
As a conciliation procedure, participants in equity ownership of land can also use the general meeting to determine the location of the allocated land plots. In this case, the decision on the allocation of the participant's ownership of a particular land plot to the landline owned by him, adopted in compliance with the requirements of the paragraph of the second paragraph 1.1 of Article 14 of the Federal Law "On the Turnover of Agricultural Lands", will be personal in nature, and not agree with him It is entitled to challenge him in court.
Given the legal position Constitutional Court, the court of appeal in determining the transition to the consideration of the case on the rules of the first instance indicated that consideration of the claimant's claims and the satisfaction of the stated requirements led to a violation of the rights of other participants in equity ownership, the general meeting of which decided to determine other location of the land plot to allocate land plots to the account Land shares and attracted them as third parties without independent claims.
However, in the decision on the abolition of the court decision and adoption of a new judicial act on refusal to satisfy the claim of the appellate court in violation of paragraph 29 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 36 did not motivate the need to involve third parties and did not indicate how the court decision is directly affected by The rights and obligations of these persons.
By the decision of the FAS of the Court's decision and the decree of the appellate instance on the specified case were canceled in connection with the initiality of this dispute to arbitration courts, the proceedings were terminated.
In case number A74-3977 / 2009 Third parties without independent claims are attracted by the owners of bonds, the provision of which is disputed.
The prosecutor of the Republic of Khakassia appealed to the Arbitration Court with a lawsuit against the Government of the Republic of Khakassia, the Company on the recognition of invalid by virtue of the insignificance of the Treaty on the provision of a state guarantee concluded by the Government of the Republic of Khakassia and society, and directly a state guarantee provided by the Government of the Republic of Khakassia to society.
In this case, the legality of the state guarantee provided to society was challenged in order to ensure obligations to issue a bond loan with a placement period over three years and placed with the participation of the investment bank.
The definitions of the arbitral tribunal to participate in the case as third parties without independent claims are attracted by the Ministry of Finance of the Republic of Khakassia, some owners and nominal bond holders.
By the decision of the Arbitration Court, the claims are satisfied.
Disagreeing with the judicial act, the third party appealed to the third Arbitration Court of Appeal with an appeal complaint, in which he asked to cancel the decision of the Court and to take a new judicial act on the refusal to satisfy the claims.
Of the information provided by one of the third parties, the owners of bonds, the nominal holder of which he is, not involved in the case.
Court of appeal with reference to paragraph 4 of Article 4 of Article 270 of the Arbitration Procedure Code of the Russian Federation issued a definition about the transition to the consideration of the case on the rules established to consider the case in the Arbitration Court of First Instance, bringing to participation in the case as third parties of the Bonds owners, recognizing that the decision of the court of first instance is addressed by the rights and obligations of these persons, since the provision of bonds, in the form of contested transactions, is invalid.
A decree of the appellate instance, the court decision was canceled, a new judicial act was adopted about the refusal of the lawsuit. As a basis for the cancellation of the decision of the Court, the inconsistency of the conclusions set out in the decision, the circumstances of the case, violation or incorrect application of the norms of substantive law is indicated.
In violation of the explanations contained in paragraphs 27 and 29 of the Decisions of the Plenum of the Russian Federation No. 36 of the Court of Appeal, having considered the case on the rules of the first instance, did not indicate in the decision of the existence of unconditional grounds for the cancellation of the decision of the court of first instance, the motives of attracting third parties to participate in the case The rights and obligations of these persons who are affected by the decision of the court of first instance.
By the resolution of the FAS SJO, the decision of the Court of Appeal on refusal to satisfy the claims on the results of the consideration of the appeal after the transition to the consideration of the case on the rules of the court of first instance was left unchanged.
The definition of you of the Russian Federation dated January 27, 2011 denied revision of the specified case in supervisory procedure.
3.3. In case No. A33-7048 / 2010 Court of Appeal In violation of part 3 of Article 266 of the Arbitration Procedure Code of the Russian Federation and the explanations contained in paragraphs 1 and 2 of the Resolution of the Plenum of the Court of the Russian Federation No. 36, at the request of the plaintiff attracted third parties not previously participating in the case of persons Without the appeal of these individuals with appeal and transferred to the consideration of the case on the rules of the first instance.
In this case, the company appealed to the Arbitration Court with a claim for invalidation of the Solution of the Social Society for the appointment general Director and illegal solution tax author, on the basis of which changes are made to a single state Register legal entitiesnot related to amending the constituent documents.
The decision of the Arbitration Court is recognized as illegal decision of the tax authority, in the rest of the claims refused.
In the third Arbitration Court of Appeal with appeal, the plaintiff and the tax authority appealed.
When considering the case in the appellate instance, the plaintiff filed a petition for attracting third parties to participate without independent claims of citizens who concluded the sale and sale transactions in the authorized capital of the Company.
Court of Appeal, given that the plaintiff as a reason for the claim indicated the insignificance of the agreement on termination of the contract of sale in the authorized capital and the subsequent sale of the share of the share in the authorized capital, recognized that the assessment of contracts for their insignificance without attracting participation in the case Parties to transactions as third parties without independent claims is invalid.
According to these reasons, the appellate court adopted the definition of the transition to the case of the case under the rules provided for for the court of first instance, and attracting participants in the sale and sale transactions in the authorized capital of the Company to participate as third parties without independent claims.
In violation of part 3 of Article 266 of the Arbitration Procedure Code of the Russian Federation, paragraphs 1 and 2 of the Decisions of the Plenum of the Russian Federation No. 36 of the appellate court passed to the consideration of the case on the rules of the first instance and attracted to participate in the case as third parties not yet participating in citizens without Appeals the latest with independent appeals.
A decree of the appellate instance The decision of the court was canceled, a new judicial act was adopted about the satisfaction of the claims.
In this decision, the appellate court indicated the presence of an unconditional basis for the abolition of the judicial act, provided for in paragraph 4 of part 4 of Article 270 of the Arbitration Procedure Code of the Russian Federation, and also indicated that, taking into account the claimant, the foundations of the claim for agreements for their insignificance without attracting participation in The acts of the parties of the transactions are unacceptable, when making an emerged decision, the court of first instance made the conclusion about the insignificance of the contract of sale of a share in the authorized capital of the Company without attracting participation in the case of one of the parties to this transaction, thereby spoken about the rights and obligations of a person who did not attracted to participate in business.
By the decision of the FAS SJO, the decree of the appellate instance was left unchanged under the indicated case.
When considering the case No. A74-1610 / 2010, the Court of Appeal at the applicant's petition was attracted to participate in third parties without independent claims on the subject of the dispute after the transition to the consideration of the case under the rules of the first instance due to the presence of the foundation provided for in paragraph 7 of Part 4 of Article 270 Arbitration Procedure Code of the Russian Federation (violation of the rule on the secret of the meeting of judges when making a decision).
In this case, the legality of the actions of the bailiff for executive productionexcited on executive Sheet The arbitral tribunal, including those associated with the demolition of the unimpressed part of the building.
After the transition to the consideration of the case according to the rules of the first instance, the applicant was requested to attract to participate in the case as third parties without independent claims of an entrepreneur and society actually carrying out the demolition of the building.
In the definition of which third parties were involved, the appellate court pointed to the applicant's argument that the bailiff in the absence of legal grounds was attracted to fulfill the requirements of the executive list of an entrepreneur and society, whose rights and obligations are addressed by the dispute under consideration.
In this case, the Court of Appeal In violation of Article 51 of the Arbitration Procedure Code of the Russian Federation, did not indicate how the judicial act adopted on the merits of the dispute may affect the rights and obligations of third parties involved in the case.
By the decision of the FAS SJO, the decree of the appellate instance is left unchanged.
3.4. In case number A33-9528 / 2009 Court of appeal in violation of part 3 of Article 266 of the Arbitration Procedure Code of the Russian Federation, paragraphs 1, 2 and 27 of the Resolution of the Plenum of the Russian Federation No. 36 attracted as a third party without independent claims, the organization previously not participating in the case , without turning the latter with an independent appeal and without a transition to the consideration of the case under the rules provided for first instance. Also, the court of appeal in violation of Article 51 of the Arbitration Procedure Code of the Russian Federation did not indicate how the judicial act taken on the merits of the dispute may affect the rights and obligations of the third party attracted to participate, and only referred to the need to attract it for full and Comprehensive clarification of circumstances in the case.
4. Conclusions based on the results of analyzing the practice of attracting the third arbitration appellate court of third parties that do not claim independent claims regarding the subject of the dispute:
1. In violation of part 3 of Article 266 of the Arbitration Procedure Code of the Russian Federation and the explanations contained in paragraphs 1 and 2 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 28.05.2009 No. 36 "On the application of the Arbitration Procedure Code of the Russian Federation when considering cases in the Arbitration Court of Appeal The authorities ", the judges of the Third Arbitration Court of Appeal, allowed to attract third parties that were not previously involved in the case of individuals without the appeal of these persons with independent appeals. In one case, the attraction of a previously participating in the case of a person is allowed without transition to the consideration of the case according to the rules of first instance.
2. In all cases, judges of the Third Arbitration Court of Appeal are complied with the provisions of Article 51 of the Arbitration Procedure Code of the Russian Federation and the explanations contained in paragraph 29 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 28.05.2009 No. 36 "On the application of the Arbitration Procedure Code of the Russian Federation upon consideration Affairs at the Arbitration Court of Appeal ", the need to indicate the right and obligations of third parties involved in the relevant judicial acts, which are directly affected by the appealed judicial act or the consideration of the dispute on the merits.
3. In the absence of an appeal, the person who does not participate in the case, whose rights and obligations are affected by the appealed in appeal The judicial act, attracting such a person as a third party who does not declare independent claims regarding the subject of the dispute, on the initiative of the court or persons participating in the case are not permissible. In this case, the arbitration court of the appellate instance may notify such a person about the opportunity to familiarize themselves with the judicial act on the official websites of the third Arbitration Court of Appeal and the Supreme Arbitration Court of the Russian Federation and clarify him the right to contact the appeal of the appeal if this judicial act is addressed by his rights and obligations.
Deputy Chairman G.N. Borisov.
Head of Legal Statistics
and summarizing judicial practice A.V. Harmash
Appendix No. 1.
the draft analysis of the judicial practice of attracting third parties, which do not declare independent claims regarding the subject of the dispute (Article 51 of the APC RF)
When analyzing the resolutions of the Plenum of the Supreme Arbitration Court of the Russian Federation (hereinafter - the Russian Federation), including joint with the plenum Supreme Court Of the Russian Federation (hereinafter - the Armed Forces of the Russian Federation), identified the following cases in which the highest judicial instances They come to the conclusion about the need to attract third parties without independent demands on the initiative of the court or at the petitions of individuals.
1. If the pledger is not a debtor, and the third person, at the request of the mortgager, the pledgee or on the initiative of the court to participate in the case of recovery on the mortgaged property as a third party is attracted by the debtor on the security obligatory obligation, since satisfaction of the value of the mortgagee to The debtor at the expense of the property of the pledger is the basis for the transition to the mortgager of the creditor's rights on a secured pledge obligatory in accordance with article 387. Civil Code of the Russian Federation(Paragraph 9 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2011 No. 10 "On some issues of applying legislation on pledge").
2. When considering by the court, the claim for recovery to the mortgaged property tenants of the ladded property and other persons with the rights specified in article 40. Federal Law of July 16, 1998 No. 102-FZ "On Mortgage (Property Pledge)", involved in the case of the party or on the initiative of the court as third parties that do not declare independent claims regarding the subject of the dispute on the side of the defendant (paragraph 22 Resolutions of the Plenum of the Supreme Court of the Russian Federation of March 17, 2011 No. 10 "On some issues of applying legislation on pledge").
3. If there is a requirement for the demolition of unauthorized construction and if the unauthorized construction is burdened by the rights of third parties, such as the rights of the mortgagee, the tenant, these persons should be involved in participation in the case as third parties that do not declare independent claims regarding the subject of the dispute, The side of the defendant, since the judicial act may affect their rights. Thus, the decision of the Court to satisfy the claim for the demolition of unauthorized construction in this case isbase To make an entry in the USRP on the termination of the ownership of the defendant to the unauthorized construction, and the corresponding encumbrances also cease (paragraph 23 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 10, the Plenum of the Court of Russia No. 22 dated April 29, 2010 "On some issues arising in judicial practice when resolving disputes associated with the protection of ownership and other real rights»).
4. In the case when during judicial trial According to the claim for the recovery of property from someone else's illegal ownership, controversial property was alienated by the defendant to another person, and also transferred to the possession of this person, the court in accordance with part 1 of Article 41 Code of Civil Procedure of the Russian Federation orparts 1., 2 Articles 47. The APC RF allows for the replacement of an improper respondent properly. At the same time, the alienator is involved in the case as a third party who does not declare independent claims regarding the dispute subject, on the respondent's side in accordance with article 51. APC RF(Paragraph 32 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 10, the Plenum of the Wheel of the Russian Federation No. 22 dated April 29, 2010 "On some issues arising in judicial practice in resolving disputes related to the protection of ownership and other real rights").
5. According to the release of property from arrest, regardless of whether arrest is imposed in order to provide a claim or in order to recover the debtor's property in executive documents, the bailiff is involved in participating as a third party who does not declare independent claims regarding the subject of the dispute (paragraph 51 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 10, the Plenum of the Russian Federation No. 22 dated April 29, 2010 "On some issues arising in judicial practice upon resolution Disputes associated with the protection of property rights and other real rights ").
6. If the antimonopoly authority decided and issued a prescription for several persons (in particular, in relation to persons in the group of persons in accordance with the provisions articles 9. Federal Law dated July 26, 2006 No. 135-FZ "On Protection of Competition" (hereinafter - the Law on Protection of Competition)) and these persons appealed to the arbitration court with independent statements about challenging these decisions and (or) prescriptions, as part of the consideration of cases for each From applications, other persons should be involved in participation as third parties who do not declare independent claims regarding the subject of the dispute, since the solution to the recognition of the decision and / or prescriptions invalid affects their rights and obligations (paragraph 25 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 30.06. 2008 No. 30 "On some issues arising from the use of arbitration courts of antimonopoly legislation").
7. When considering cases on the application for appealing the decision or the prescription of the antimonopoly authority, a filed by the person in respect of which this decision was made (to which the prescription is issued), as third parties that do not declare independent claims regarding the subject of the dispute on the basis of part 1 of Article 51 APC RF into business can enter other persons participating on the basis ofarticles 42. The Law on the Protection of Competition in the case of violation of antitrust laws. These persons include: whose statements ( state bodies, local governments, whose materials) on the basis of part 2 of Article 39 The law on the protection of competition was the basis for initiating and consideration by the antimonopoly authority of the relevant business of violation of antitrust laws, as well as other interested persons whose rights and legal interests turned out to be affected in connection with the consideration of the referred business. These persons cannot be denied entry into force with reference to the fact that the judicial act on the case under consideration cannot affect their rights and obligations relative to one of the parties (paragraph 26 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 30.06.2008 No. 30 "On Some issues arising from the use of arbitration courts of antimonopoly legislation ").
8. When considering disputes on claims aimed at challenging registered law or encumbrance, or on claims aimed at challenging the rights or encumbrances arising from a registered transaction, a state registrar can be involved in the case as a third party who does not declare independent claims. Regarding the subject of the dispute (paragraph 53 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 10, the Plenum of the Court of Russia No. 22 of April 29, 2010 "On some issues arising in judicial practice in resolving disputes related to the protection of ownership and other real rights").
9. Courts should be borne in mind that third parties who do not declare independent claims regarding the subject matter of the dispute may also participate in the consideration of the application for disputation of the transaction. article 51. APC RF), for example, in consideration of an application for challenging the contract of guarantee as a third party, a debtor may participate on the main obligation, and in consideration of the application for challenging the transaction for the acquisition of the debtor, the thing he subsequently sold to another person is another person - the subsequent buyer (Paragraph 22 of the Resolution of the Plenum of the Russian Federation of the Russian Federation dated December 23, 2010 No. 63 "On some issues related to the use of chapter III 1 of the Federal Law" On Insolvency (Bankruptcy) ").
10. The antimonopoly authority by virtue of paragraph 7 of Part 1 of Article 23 of the Law on the Protection of Competition has the right to participate in consideration by the courts of cases related to the application and (or) violation of antitrust laws initiated on the basis of lawsuits, statements of other persons. Therefore, considering cases initiated on the basis of lawsuits, statements of other persons, the arbitral tribunal should notify the antimonopoly authority to ensure the possibility of his participation in the case under consideration. At the same time, the procedural status of the antimonopoly authority is determined on the basis of the nature of the dispute under consideration. In particular, when considering such cases, the antimonopoly authority can be attracted as a third person who does not declare independent claims regarding the subject of the dispute (Position from the analysis of paragraph 21 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of 30.06.2008 No. 30 "On some issues arising from the use of antitrust laws by the arbitration courts", since it is not discussed by a third party directly at the point of attracting the antimonopoly authority).
11. Persons, in the interests of which arrest is imposed on property, can be involved in participation in the case as third parties that do not declare independent claims regarding the subject of the dispute, when considering the application for challenging the decision of the judicial bailiff on the arrest (inventory) of this property (output position from the analysis of paragraph 50 of the Resolution of the Plenum of the Armed Forces of the Russian Federation No. 10, the Plenum of the Court of Russia No. 22 dated April 29, 2010 "On some issues arising in judicial practice in resolving disputes related to the protection of ownership and other real rights", since directly in The point of the question of attracting third parties is not discussed, including the procedure for such an attraction - on the initiative of the court or by the petition of persons participating in case or third parties).
When analyzing the decisions of the Presidium of the Russian Federation, the following cases in which the Presidium of the Russian Federation comes to the conclusion about the need to attract third parties without independent claims or to the need to study the issue of attracting.
1. When considering a dispute about recognition invalid contract concessions (applying the consequences of the invalidity of a negligible transaction) if the concession contract is concluded before entering into a lease agreement between the initial tenant (the auction winner) and municipal education - i.e. The right to conclude a lease agreement - Cedent (the winner of the auction) must be brought by a third party without independent claims (withdrawal position from the analysis of the decision of the Presidium of the Russian Federation No. 3351/08 dated June 24, 2008, since a direct question about attracting a third party is not discussed, but from motivative Parts of the Decision seen agreement with the courts of the need to attract it).
2. When considering a dispute about the eviction of a person from non-residential premises The question of the legality of finding such a person in the disposal premises should be resolved taking into account the study of the need to involve to participate in the face of the face whose lease rights are registered with the disposable premises to the USRP, as a third party without independent claims (output position from the analysis of the decision of the Presidium of the Russian Federation of the Russian Federation No. 11408/10 of 02/15/2011, since a direct question is not discussed directly to attract such a person without independent claims, however, it seems from the motivative part of the decision that the specified person on the basis of the circumstances of the case may not have independent claims, although the subject of the dispute initially allows Make this conclusion, and this issue is not found out by the courts when considering the case).
from 12/22/2018
In addition to the main participants in the process, the third party can participate in civil cases.
Who can act as such a participant in the process? What can third party use?
The basis and cause of participation in a third party is the interest of such a person to the subject of the dispute and the decision that the court will lead. That is, interest as a result of the consideration of the case. Such a person may have certain rights or obligations relative to or. The law calls 2 third-party groups - declare independent claims and those who have independent claims.
Third party with independent requirements
A striking example of a third party who declare independent claims may be the case of an accident involving 3 vehicle (). When contacting one of the victims with a claim to the injury and insurance company, the second victim can enter into a case with independent requirements as a third party.
Third parties should have excellent from the plaintiff legal interest - Satisfying the requirements of one of them, the court will be forced to refuse the plaintiff in this part. Therefore, to protect the interests and rights of the third person, the law gives such a participant in the process by all the rights of the sense of the dispute in full.
Own demands Third party can address both the defendant and the plaintiff. The third person in such cases is essentially an additional plaintiff. Your third party has the right to change, add or withdraw. To enter into a civil case, as a third party with independent requirements for the court. The entry into the case of a third party is certified by the submission.
Third party can enter civil Process With the requirements at any stage. It should be noted that no one can force the third person to declare independent requirements.
Third person who does not claim
One example of such participation in civil case may be the case of damage to the employee in the implementation labor activity. The plaintiff sues the employer and, if the Court decides a positive decision, to the employee can be presented. Thus, the employee is of interest to protect its rights to judicial process with a claim with respect to the employer. For example, prove no guilt.
Third members of the specified group in the process support the position of one of the parties, the plaintiff or the defendant. Therefore, they often call them: the third face on the side of the plaintiff or the third face on the defendant side.
There may be any participant in the legal proceedings, a person who wants to be attracted to the case in such quality. The court may attract a third party on its own initiative.
It seems that the person attracted as the third to participate in the case is entitled to file. However, in practice, such petitions are not always satisfied.
Do not ignore call challenges as a third party. The consequence of this may be the satisfaction of the claim in the order of regression. After all, the court decision on the previously discussed case has an urgent importance for participants.
The rights of third parties
Third parties are endowed with the rights and obligations of the parties, but are limited in procedural capabilities. Third parties cannot change the claims, conclude, or. Even if third parties will make such actions for the court they legal importance have no will.
The third person, without consonant with the court decision, has the right to submit on the general basis.
Clarifying questions on the topic
Legal Counsel
Legal Counsel
Legal Counsel
maria
Sergey
Dan
Arbitration Court of the Moscow Region
107053, GSP 6, Moscow, Avenue Akademika Sakharov, D.18
http://asmo.arbitr.ru/
Name of the Russian Federation
DECISION
The Arbitration Court of the Moscow region as part of Judge Soldatov R.S.,
when conducting the protocol, the secretary of Moskatova D.N.
examined in open court session Case number A41-82160 / 16
according to the statement of claim
LLC "Miz-8"
to LLC "Stimul"
for recovery 23761481.07 rubles.
With participation at the court hearing - according to the protocol.
Installed:
LLC "MIZ-8" (hereinafter - the plaintiff) appealed to the Arbitration Court of the Moscow Region with the statement of claim to LLC "Stimul" (hereinafter referred to as the defendant) on the recovery of debt in the amount of 21,212,977 rubles. 58 cop., Penalty in the amount of 2 121 297 rubles. 70 cop., Interest for the use of other people's money in the amount of 427 205 rubles. 79 cop. and payment costs state duty in the amount of 141 807 rubles.
The representative of the defendant stated the petition for attracting the case as a third party who does not declare independent claims regarding the subject of the dispute, the customer under the General Contract Agreement LLC "Register", in justification of this petition, the defendant pointed out that the recovery of debt from the defendant excluding possible payment from the customer LLC "Oblstroy" will affect the defendant, the plaintiff and the third person.
Arbitration Court in accordance with Art. The Arbitration Procedure Code of the Russian Federation was announced a break from 01/24/2017 to 01/31/2017.
The representative of the plaintiff objected to the satisfaction of the petition for attracting specified person As a third party who does not declare independent claims regarding the subject of the dispute, since it believes that the defendant delays the process.
The defendant did not agree with the claim, presented a written review to the claim, which indicated that the amount of the principal debt was to be reduced by the amount of the penalty in the amount of 2,147,945 rubles. 60 cop.
In addition, the defendant declared the application of the provisions of Art. Civil Code of the Russian Federation and reducing the penalty stated to the recovery.
The plaintiff presented written objections to the response review.
Exploring all the written evidence submitted in the case file, after hearing the arguments of the plaintiff and the defendant, the arbitral tribunal established the following.
The new name LLC "Grazel Development" - LLC "Register".
In accordance with the terms specified Treaty General Contractor General undertakes on behalf of the Customer on its own risk with its own and / or attracted forces and funds on the basis of working documentation within the agreement established by the Treaty, a certain agreement, perform work on the construction of an object, pass performed work on the object to the Customer, get ZOS, together with the customer to provide an object of commissioning, and the customer is to create a general contractor for the necessary conditions for the work, take the result of the work and pay the general contractor of the work performed in the amount of work and on The conditions provided for by the contract.
In pursuance of this contract LLC "Stimul" (hereinafter - the General Contractor) and MIZ-8 LLC (hereinafter - the subcontractor) concluded a subcontracting contract No. VP-MIZ-SP-723 for execution separate species and work complexes of 14.10.2015 (hereinafter referred to as a contract).
According to the terms of the contract, the subcontractor undertakes on behalf of the general contractor to its risk with its own and / or attracted forces and means on the basis of project documentation In the contract established by the contract, the term of the work, a certain agreement, to fulfill a complex of construction and installation work on the object (residential building (building) No. 23, located on land plot (Cadastral number 50: 45: 0040929: 48, total area 53 847 sq.m.) at the address: Moscow region, Korolev, ul. Gaidar, d. 31 (district Valentine), pass the work performed on the object of the general contractor, together with the general contractor to get ZOS, together with the customer and the general contractor to ensure the commissioning of the object into operation, and the general contractor is to take the proper performance of the work and pay the subcontractor the cost of completed and adopted by the general contractor of work in the amount and under the conditions provided for by the contract.
Clause 3.1 of the Agreement, the contract price is determined on the basis of the protocol signed by the Protocol and is 120 025,613 rubles. 55 kopecks.
In accordance with clause 3.3.2 of the contract, the payment of the work performed is made by the general contractor within 10 banking days from the date of signing the general contractor of acts in the form of CS-2 and certificates in the form of the COP-3 in the amount of the value of the acts carried out by the subcontractor and adopted to pay the general contractor -2 and certificates in the form of KS-3.
MIZ-8 LLC has completed work for a total amount of 120 025,613 rubles. 55 kopecks. Under the Agreement, which is confirmed by the acts of acceptance of work on the form of CS-2 and certificates of the cost of work and costs in the form of CS-3, signed on 08/26/2016 (t. 1 ld 37-75) .
Claims for the quality and timing of the work performed from the defendant did not receive, the act of reconciliation of mutual settlements was signed between the parties as of September 30, 2016 in the amount of 48,948,500 rubles. 94 kopecks.
The defendant performed works were paid part in the amount of 98 812 635 rubles. 97 kopecks, in connection with which unpaid work remained in the amount of 21,212,977 rubles. 58 kopecks.
The plaintiff sent a claim to the defendant with a requirement to pay for the resulting debt.
Since the specified claim was left by the defendant without satisfaction, the plaintiff appealed to the court with a present case.
The defendant in a written response to the statement of claim indicated that in accordance with paragraph 3.4 of the contract, the subcontractor does not object if the payment of the work performed and the work adopted by the general contractor will be carried out by the customer, bypassing the general contractor.
Thus, the respondent believes that the amount of the principal debt could be paid by the customer.
In addition, the defendant explained that the work was performed with delay, namely the last act in the form of the COP-2 was drawn up on August 26, 2016, at the same time, the end of the work was to be implemented on 06/30/2016. The respondent believes that in this regard, the amount of the principal debt is subject to a decrease in the amount of the penalty in the amount of 2,147,945 rubles. 60 cop.
The plaintiff in written objections to the response, indicated that the plaintiff did not really object to the payment by the customer of the work performed, but in reality the Customer never paid the work performed under the contract.
The plaintiff also pointed out that the amount of the principal debt of the defendant before the plaintiff could not be reduced to the amount accrued by him as a counter-penalty under the contract.
Paragraph 10.11 of the Agreement provides for cases of deduction from the claimant of funds to be paid to the claimant, subject to the immediate direction of the plaintiff appropriate notice with the calculation of the amount of the penalty. At the same time, until the plaintiff's appeal with a claim in court, the defendant was not sent to the plaintiff to the plaintiff with the corresponding calculation of the amount of the penalty.
Taking into account the above circumstances, the arbitration court came to the conclusion about the satisfaction of the recovery of debt in the amount of 21,212,977 rubles. 58 kopecks. For the following grounds.
The Court also proceeds from the fact that the plaintiff fulfilled the obligations in full without claims of the defendant, which is confirmed by the acts of acceptance of work in the form of CS-2 and certificates of work and costs in the form of COP-3, signed by the parties submitted to the case 08/26/2016.
Thus, the claimed claim for the recovery of debt in the amount of 21,212,977 rubles. 58 kopecks. to be satisfied in full.
Also, taking into account the clarifications, the plaintiff asks to recover a penalty in the amount of 2 121 297 rubles. 70 kopecks
Thus, the arbitration court came to the conclusion about the satisfaction of the stated claim for the recovery of a penalty in the amount of 2 121 297 rubles. 70 kopecks
Judicial practice on:
Under the contractArbitrage practice Using the norms of Art. 702, 703 of the Civil Code of the Russian Federation
Reducing a penalty
Judicial practice to apply the norm of Art. 333 of the Civil Code of the Russian Federation