Collegium for Economic Disputes. Is the judicial panel for economic disputes an arbitration court?

In the legal literature, even during the preparation of the draft constitutional and legal changes regarding the establishment of a new status Supreme Court Russian Federation The issue of promising forms of resolving economic disputes was actively discussed. At this stage, many researchers assumed that the changes would provide for, to a certain extent, an average version of the merger of courts. In their opinion, “arbitration courts will remain at the level of the first and second instances; their consideration of cases and decisions will continue to be carried out on the basis of the Arbitration Procedural Code. The reform will take place only at the level of the Supreme Arbitration Court, which will be abolished, and its functions transferred to the updated Supreme Court The court, which will now consist of 170 judges (Part 4 of Article 2 of the Law of the Russian Federation on the amendment to the Constitution of the Russian Federation "On the Supreme Court of the Russian Federation and the Prosecutor's Office of the Russian Federation"). The functions of the abolished Supreme Arbitration Court will be assumed by the Judicial Collegium for Economic disputes." As V.V. stated Yarkov, “in the new Supreme Court of the Russian Federation, the main function is to ensure the unity judicial practice Only the Judicial Collegium for Economic Disputes will be able to actually carry out this work - for example, together with the Collegiums for Civil and administrative matters, which will depend on the distribution of powers between them. To increase the capacity of the newly formed Supreme Court of the Russian Federation, it is also necessary active work separate judicial panels within the judicial chambers of the Supreme Court of the Russian Federation. Judicial statistics indicate the possibility of implementing this approach. Comparison of the number of civil cases considered by the Judicial Collegium civil cases Supreme Court of the Russian Federation (296) and the Presidium of the Supreme Arbitration Court of the Russian Federation (249) for the same period of time - the first half of 2013, shows approximately the same amount of work."
Already the drafts of the relevant laws, including amendments to the Constitution of Russia, stipulated that the Supreme Court of the Russian Federation “will no longer relate to the courts general jurisdiction, since it will also administer justice in cases within the jurisdiction of arbitration courts. The functions of resolving specific economic disputes previously within the jurisdiction of the Supreme Arbitration Court of the Russian Federation will be carried out by the Judicial Collegium for Economic Disputes, consisting of 30 judges, as part of the new Supreme Court of the Russian Federation. Thus, according to some experts in the field of legal proceedings, the system of arbitration courts will lose its existing status associated with the independence of the Supreme Arbitration Court of the Russian Federation from the activities of the Supreme Court of the Russian Federation, and the position of arbitration courts may become similar to the position of military courts in the system of courts of general jurisdiction. Moreover, structurally and organizationally, arbitration courts will retain relative independence, but the future activities of the Supreme Court of the Russian Federation to establish uniformity of judicial practice in economic disputes will actually have a decisive influence on the administration of justice in arbitration courts."
As of December 2014, within the framework of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation, the Judicial Composition for Corporate Disputes and the Judicial Composition for Property Disputes were formed and began work. Familiarization with the materials of the official website of the Supreme Court of the Russian Federation (www.vsrf.ru/struct.php) allows us to assert that it is the system of “electronic justice in economic disputes” that is singled out and functions most actively.
In the press one can already find the first positive assessments of the activities of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation. Thus, researchers, characterizing one of its acts, note that “The definition of the “Economic” Collegium of the Supreme Court of the Russian Federation attracts attention with the detail of the theoretical justification of the legal positions formulated and applied to the real case. One cannot but be surprised by the use of unusual for the Russian legal system terms (for example, “false legal purism,” the inadmissibility of which is drawn attention to in a judicial act, or “ effective method protection" of the violated right). The main significance of the legal positions formulated by the court lies in the clear distinction between the highest court of two claims - restitution and conditional. In addition, experts note the importance of the court's conclusions that the basis for the claim is considered new, provided that the circumstances of the case are in any way -transformed in this way, and also that a different qualification of a similar claim may indicate a difference in the subject of the claim." The essence of the dispute, for which the Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation, which is so highly regarded by researchers, was made as follows. In 2007, Versiya CJSC decided to purchase property (a mill) from Agrokom LLC for 1.5 million rubles, the transaction was completed, and the transfer of ownership was registered. In 2008, the mill was resold (for 1.7 million rubles) to PKF Ros LLC. However, in October 2008, the original seller (Agrokom LLC) filed a claim with the arbitration court to invalidate the purchase and sale agreement mill with the first buyer - CJSC "Versiya", indicating that the transaction on behalf of the company was made by an unauthorized person - a former member of the company. The court satisfied the demand and declared the agreement void. 8 months later, at the claim of the same LLC "Agrokom", the second contract was also declared void purchase and sale, according to which the mill was resold to PKF Ros LLC. In this regard, the first buyer (CJSC Versiya) filed a lawsuit to apply the consequences of the invalidity of the purchase and sale agreement for the mill, in pursuance of which he gave the seller 1.5 million rubles. .
The court refused to satisfy the claim, “recalling, in particular, that the plaintiff who wants to receive the 1.5 million rubles paid must return to the defendant the received property (mill), which was resold to the Ros company in 2008, the right of ownership which was recorded in the Unified State Register of Real Estate Rights (USRE), so the plaintiff, in order to receive his 1.5 million rubles, had to give the defendant exactly the same amount - as compensation for the cost of the mill. Thus, the court came to the conclusion that the obligations the plaintiff and the defendant cover each other completely, and therefore there is no reason to apply the consequences of the invalidity of the purchase and sale agreement. The situation changed significantly in 2011, when the original seller (Agrokom LLC) achieved recognition of the ownership of the once alienated mill, that is formally returned it to himself. Referring to this, JSC "Versia" again went to court, demanding 1.5 million rubles, this time as a return of unjust enrichment, because the mill returned to the proper person - the owner, which was impossible talk about 1.5 million rubles paid in 2007 for its purchase. The court of first instance, however, terminated the proceedings, citing the existence of a previous court decision, which denied the plaintiff the return of 1.5 million rubles. The court considered the next claim identical to the previous one. The courts of appeal and cassation agreed with him."
On this dispute, a Ruling of the Supreme Court of the Russian Federation was issued on September 16, 2014. The application for review of the above judicial acts was considered by the newly formed Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation, which rejected the arguments of the lower courts about the identity of the stated claim with the previous one and , formulating its legal position, made a number of important conclusions. Thus, the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation indicated that the identity of the claim always presupposes: (a) the coincidence of the subject of the claim (that is, the coincidence of the substantive legal claim of the plaintiff against the defendant); (b) the coincidence of the cause of action (the circumstances on which the plaintiff bases his claim) and (c) the presence of the same parties to the dispute. Meanwhile, there is no coincidence of these elements in the two claims for the following reasons.
Firstly, the stated claim and the previous one have miscellaneous subject, namely:
a) the stated claim is conditional - its subject is the demand for the return of unjust enrichment, since Agrocom LLC received the property back, but refused to return the previously paid funds to Versiya CJSC. The subject of the previous claim was the application of restitution (return made under an invalid contract). However, the courts, terminating the proceedings on the new claim, considered that the same - restitution - requirement took place in it;
b) the grounds for the two claims were also different (that is, the circumstances on which the plaintiff’s claim is based): the new claim was filed in the conditions when Agrokom LLC regained ownership of the mill, while the money was not returned to the plaintiff, although The plaintiff returned the 1.7 million rubles received. society "Ros". When the previous claim was filed, the mill could not be returned in kind.
The lower courts, as researchers note, identify these two claims based on the fact that both were based on references to the purchase and sale agreement dated December 13, 2007 and the payment order dated January 21, 2008 No. 1, and the main requirement was recovery 1.5 million rubles paid by the plaintiff to the defendant under the agreement dated December 13, 2007.
The Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation stated: the courts ignored the changed circumstances of the case and gave them a purely formal assessment, based on the equality of the amount of claims when both claims were presented.
According to the judges of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation, this led “to false legal purism” and did not allow, on the basis of a formal approach, to restore the balance of rights of the parties, and therefore the case was sent for a new trial to the court of first instance.
Of course, positive reviews of the activities of the new collegium of the Supreme Court of the Russian Federation do not exclude the presence of problems, including those related to the institution of jurisdiction. Some authors argue that “if we proceed from the terms used by the Constitution of the Russian Federation, then it would be more correct to use the term “jurisdiction” to indicate the distribution of cases between arbitration courts and courts of general jurisdiction, but, unfortunately, even after the decision to liquidate the Supreme Arbitration Court Russian Federation and the emergence of the "new" Supreme Court of the Russian Federation, the terminology has not changed and the legislator still uses the previous term for the Soviet civil process - "jurisdiction"... According to these authors, "the set of procedural remedies when initiating cases in violation of jurisdiction and jurisdiction is not very big. This is primarily due to the fact that one of the main provisions civil proceedings is a provision prohibiting disputes between courts about jurisdiction. Accordingly, the legislator believed that the very existence of a ban on disputes about competence between courts is a guarantee of the protection of the right to legal protection. However, practice has shown that this provision protects the parties from disputes about jurisdiction only between courts of the same branch of the judiciary, only within courts of general jurisdiction or only in the system of arbitration courts, but does not protect from disputes about lack of jurisdiction when both branches of the judiciary come to a conclusion about the lack of jurisdiction of the dispute." In addition, according to A.R. Sultanov, practice shows that when using "various schemes with an artificial change of jurisdiction and jurisdiction, a person whose right to consider a case in a court to whose jurisdiction it is assigned by law is practically not protected. Long time in arbitration courts, the ban on disputes about jurisdiction between courts overshadowed the right of persons participating in a case to argue about the competence of the court to consider a particular case. For a long time, the Arbitration Procedure Code of the Russian Federation did not provide for the possibility of challenging lack of jurisdiction except by appeal judicial act essentially. Sometimes there was even the impression that when a scheme involving a change in jurisdiction was launched, everything depended only on the discretion of the judge, and that nothing depended on the person involved in the dispute with a change in jurisdiction."
Based on the Federal Law of June 28, 2014 N 186-FZ "On Amendments to the Arbitration procedural code Russian Federation" entered into force on August 8, 2014 legal force changes in the Arbitration Procedure Code of the Russian Federation about many things related to the abolition of the Supreme Arbitration Court of the Russian Federation. The law, as researchers note, determined the procedure for conducting cassation and supervisory proceedings in the Supreme Court of Russia on disputes considered on the merits by arbitration courts. Thus, the Law introduces a two-step procedure cassation appeal judicial acts of arbitration courts - in the federal district arbitration courts (previous order) and in the Judicial Collegium of the Supreme Court of the Russian Federation for economic disputes.
The Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation, as a court of the second cassation instance, considers judicial acts of arbitration courts, including federal district arbitration courts and the Intellectual Rights Court, that have entered into legal force. For example, in the Ruling of the Supreme Court of the Russian Federation dated November 12, 2014 in case No. 306-ES14-146, A72-10017/2013, it was the judicial acts of arbitration courts that entered into legal force that were analyzed. The panel noted that, as established by the courts of first and appellate instances and seen from the case materials, between the Property Management Committee of the city of Ulyanovsk (lessor; hereinafter referred to as the committee) and the bank (tenant) on May 1, 2005, a lease agreement for non-residential premises N was concluded 7766/2358. Under the terms of the transaction (taking into account the additional agreement), the monthly rent from April 1, 2009 amounted to 581,885 rubles. 93 kop. plus value added tax. Subsequently, the premises rented by the bank were acquired by the company, which, from May 28, 2010, by virtue of Art. 617 Civil Code The Russian Federation (Civil Code of the Russian Federation) became the new lessor. Additional agreement Due to a change in the owner of the rented premises, information about the lessor has been changed in the lease agreement. Referring to the bank’s failure to pay the company the amount of value added tax as part of the payments provided for in the contract, the latter filed a lawsuit. Having established that in the period from August to December 2010 the amount of tax was not paid by the bank either to society or to the budget, the courts satisfied the claims in this part, finding that payment of the transaction price in full, including that part of it that constitutes the amounts tax, is a civil liability of the tenant to the landlord under the lease agreement.
Meanwhile, as indicated in the analyzed Determination of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation, the courts did not take into account the following. The lease agreement explicitly states that the monthly fee established therein does not include the amount of value added tax. The presentation by the seller, in addition to the price of the goods (works, services) being sold, to be paid by the buyer, of the amount of value added tax follows from the provisions of paragraph 1 of Art. 168 of the Tax Code of the Russian Federation (TC RF). The corresponding condition cannot be the subject of agreement between the parties and is mandatory for them (clause 1 of Article 422 of the Civil Code of the Russian Federation).
According to paragraph 2 of Art. 346.11 of the Tax Code of the Russian Federation, organizations that have switched to a simplified taxation system are not recognized as taxpayers of value added tax, with the exception of this tax payable when importing goods into the territory of the Russian Federation and other territories under its jurisdiction, as well as the tax paid in accordance with Article 174.1 of the Tax Code of the Russian Federation. At the same time, in sub. 1 clause 5 art. 173 of the Tax Code of the Russian Federation provides for the obligation of persons who are not tax payers, if they issue an invoice to the buyer with the allocation of the tax amount, to transfer the corresponding amount to the budget.
In the case under consideration, the company informed the bank in writing that it was on a simplified taxation system and was not a payer of value added tax. During the disputed period, it formed the price without taking into account the amounts of the specified tax and issued an invoice to the bank for payment of rental payments in the amount of 581,885 rubles. 93 kop. (without highlighting the amounts of value added tax). The company did not transfer this tax to the budget.
Thus, as indicated in the analyzed Determination, the amounts of value added tax, three years later calculated by the company at a rate of 18 percent, were groundlessly presented to them for collection. The violations of substantive law committed during the consideration of the case by the courts were considered significant by the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation, without their elimination it is impossible, in the opinion of its judges, to restore and protect the rights and legitimate interests of the bank in the field of entrepreneurial activity, in connection with which the appealed judicial acts were canceled.
General submission deadline cassation appeal to the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation is 2 months from the date of entry into force of the last appealed act. Before transferring the case for consideration to the Judicial Collegium, the complaint can be studied by a judge of the Supreme Court of the Russian Federation within 3 months (if the case is requested by the judge) and up to 2 months if the case was not requested during the study of the complaint. A ruling refusing to transfer a cassation appeal for consideration to the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation may be canceled by the Chairman of the Supreme Court of the Russian Federation or his deputy.
As already noted, the grounds for canceling or amending a judicial act by the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation are significant violations norms of substantive law and (or) norms procedural law. Thus, in the Ruling of the Supreme Court of the Russian Federation dated November 10, 2014 No. 305-ES14-1452 in case No. A40-59220/2013, the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation came to the following conclusions.
Art. 210 of the Civil Code of the Russian Federation, the burden of maintaining property is assigned to its owner. An exception to this rule, as specified in this legal provision, must be specifically established by law or contract. Part 3 art. 154 of the Housing Code of the Russian Federation (LC RF) stipulates that owners of premises in residential buildings bear the costs of their maintenance and repairs, and also pay for utilities in accordance with agreements concluded with persons carrying out the relevant types of activities. According to Part 4 of the said article, fees for utility services include fees for hot water supply, cold water supply, sewerage, electricity supply, gas supply (including supplies domestic gas in cylinders), heating (heat supply). The Civil Code of the Russian Federation and the Housing Code of the Russian Federation do not contain provisions on imposing the obligation to pay for utility services on tenants of non-residential premises, including those located in residential buildings.
In the above-mentioned Ruling of the Supreme Court of the Russian Federation it is noted that, in collecting payment for utility services provided from the MALTA ELECTRONICS company, the courts proceeded from the presence in clause 5.4.4 of the lease agreement of a condition on the obligation of the company to conclude contracts for the supply of premises with energy and other resources, which , according to the courts, confirms the existence of an exception to general rule, established by Art. 210 Civil Code of the Russian Federation. However, an agreement that would provide for the obligation of the MALTA ELECTRONICS company to the Remstroyservice company to pay for the utilities actually consumed by it when using the premises was not concluded. The Remstroyservice company is not a party to the lease agreement dated December 14, 2006, and, therefore, this agreement did not provide for the right of the Remstroyservice company to demand payment for utilities from the MALTA ELECTRONICS company. Since the lease agreement regulates the relationship between the owner and the tenant, the courts had no reason to believe that it contained a condition on the fulfillment by the tenant in favor of a third party of the owner’s obligations to bear utility costs.
According to the position of the Judicial Collegium for Economic Disputes of the Supreme Court, the courts’ reference to Art. 616 Civil Code of the Russian Federation; Clause 2 of this article provides for the tenant’s obligation to maintain the property in good condition, carry out routine repairs at his own expense and bear the costs of maintaining the property, unless otherwise provided by law or the lease agreement. This legal norm regulates the legal relations between the parties to the lease agreement and does not constitute the basis for the tenant to be obligated to pay expenses for the maintenance of the leased property in favor of third parties.
In accordance with Part 1 of Art. 36 Housing Code of the Russian Federation to owners of premises in apartment building The common property in an apartment building belongs by right of common shared ownership. By virtue of Art. 249 of the Civil Code of the Russian Federation, each participant in shared ownership is obliged, in proportion to his share, to participate in the payment of taxes, fees and other payments on common property, as well as in the costs of its maintenance and preservation. According to Part 1 of Art. 39 of the Housing Code of the Russian Federation, owners of premises in an apartment building bear the burden of expenses for maintaining common property in an apartment building.
Thus, it is the owner of non-residential premises located in an apartment building who, by virtue of the direct instructions of the law, is obliged to bear the costs of maintaining the common property. Therefore, the MALTA ELECTRONICS company, as a tenant of non-residential premises, was unreasonably charged with the costs of maintaining the common property of the house.
At the same time, the courts unreasonably, as indicated by the Judicial Collegium for Economic Disputes of the Supreme Court, exempted the Moscow City Property Department as the owner of the disputed non-residential premises from liability in the claim. Thus, the Judicial Collegium came to the conclusion that the courts committed a significant violation of the rules of substantive law, entailing the cancellation of the contested judicial acts. The case was transferred for a new trial to the court of first instance.
So, by the end of 2014, within the framework of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation, the Judicial Panel for Corporate Disputes and the Judicial Panel for Property Disputes were formed and began work. Familiarization with the materials of the official website of the Supreme Court of the Russian Federation (www.vsrf.ru/struct.php) allows us to assert that it is the system of “electronic justice in economic disputes” that is singled out and functions most actively. In addition, it seems necessary to emphasize the presence in the legal literature of positive assessments of the activities of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation.

Bibliography:

1. Blankenagel A., Levin I.G. The new Supreme Court of the Russian Federation - a solution to supposedly existing old ones or the creation of new problems? // Comparative constitutional review. 2014. N 3. P. 72 - 80.
2. Yarkov V.V. An association higher courts: expectations and consequences // Law. 2014. N 3. P. 98 - 106.
3. Fokov A.P. New the federal law on the Supreme Court of the Russian Federation and the Prosecutor's Office of the Russian Federation // Russian Judge. 2014. N 1. P. 3 - 7.
4. Article: “The Supreme Court of the Russian Federation explained on what grounds it is necessary to distinguish between contingency and restitution claims, what are the criteria for the identity of claims, and also pointed out the inadmissibility of “false legal purism” in the activities of Russian courts” // ATP “ConsultantPlus”. 2014.
5. Sultanov A.R. Thirst for justice: the fight for justice. M.: Statute, 2014. 304 p. P. 13.
6. Article: “Law firm “Shchekin and Partners”: Federal Law No. 186-FZ introduced changes to the Arbitration Procedure Code of the Russian Federation related to the abolition of the Supreme Arbitration Court of the Russian Federation and the empowerment of the RF Armed Forces to verify judicial acts of arbitration courts” // ATP “ConsultantPlus”. 2014.

Konstantinov Andrey Alekseevich
Student at Peoples' Friendship University of Russia
st. Miklouho-Maklaya, 6, Moscow, Russia, 117198
Email: [email protected]

This article analyzes the norms of arbitration procedural law of the Russian Federation relating to the consideration of cases in the cassation instance of the Supreme Court of the Russian Federation, reveals the essence of cassation proceedings, the features of its powers to consider cassation complaints, as well as the nature and limits of these powers.

Key words: Arbitration Procedural Code of the Russian Federation, cassation proceedings, powers and tasks cassation proceedings.

In conditions where legislation in the field of business activity is constantly changing, judicial errors often occur in the work of arbitration courts due to both objective and subjective reasons. Therefore, the presence of a legal mechanism for correcting judicial errors is especially important when judicial acts have entered into legal force.

The system of appealing judicial acts in every society is built in accordance with the economic, political and social interests of various sectors of society.

Russian cassation in the arbitration process, formed in accordance with the Federal Constitutional Law of April 28, 1995 No. 1-FKZ “On Arbitration Courts in the Russian Federation”, and also accepted at On this basis, the Arbitration Procedural Code of the Russian Federation (hereinafter- APK RF), secured the right to appeal of judicial acts entered into legal force, which is an additional guarantee of protection of rights and legitimate interests of those involved in case of persons. This provides them the opportunity to achieve, in an accessible way, changes or cancellation of erroneously decided judicial acts.

Chapter 35 is devoted to proceedings in the court of cassation in the Arbitration Procedure Code of the Russian Federation. This chapter regulates both the consideration of cassation complaints in arbitration district courts (there are 10 of them in total) and the consideration of cassation complaints in the judicial panel for economic disputes of the Supreme Court of the Russian Federation (Article 291.1 - 291.15 Arbitration Procedure Code of the Russian Federation).

The cassation instance in the Supreme Court of the Russian Federation was established by Federal Law No. 186-FZ of June 28, 2014 “On Amendments to the Arbitration Procedural Code of the Russian Federation.”

Unlike the cassation instance of district arbitration courts, which check the legality of judicial acts, while establishing the correct application of the rules of substantive and procedural law, based on the arguments and objections of the parties regarding the cassation appeal (Article 286 of the Arbitration Procedure Code of the Russian Federation), the reason for verification took place in the case of judicial acts of all three instances in the newly formed judicial panel for economic disputes of the Supreme Court of the Russian Federation according to Article 291.1 of the Arbitration Procedure Code of the Russian Federation, there are only significant violations of the norms of substantive and procedural law that influenced the outcome of the case and without eliminating which it is impossible to restore and protect violated rights, freedoms, legal interests in the field of business and other economic activities, as well as protection of public interests protected by law.

Thus, the amendments introduced by the above-mentioned Law No. 186-FZ to the Arbitration Procedure Code of the Russian Federation entail significant changes in legal proceedings at the cassation level.

Many lawyers call the consideration of cases in the judicial colleague of the Supreme Court of the Russian Federation the second cassation and see the same functions inherent in the cassation instance of the district.

Among practicing lawyers, the system of two rounds of cassation also caused a lot of controversy. For example: why was cassation review introduced in the Supreme Court of the Russian Federation; what is his role because old order cassation review allowed the losing party to immediately file a complaint with the supervisory authority, which was the last.

In our opinion, the introduction of cassation consideration of economic disputes in the Supreme Court of the Russian Federation provides the parties with additional guarantees of protection of their rights, and already at this stage makes it possible for cassation to correct mistakes made during the consideration of cases in the cassation instance of the district. For example: in one of the cases No. A40-97501/2012, considered on the cassation appeal of the Interdistrict Inspectorate of the Federal Tax Service No. 50 for Moscow against the decision of the Arbitration District Court of Moscow dated May 16, 2014 in the case of the application of CB INTERKOMMERTS LLC to the specified tax inspectorate to invalidate the decision, the judicial panel for economic disputes of the Supreme Court of the Russian Federation indicated that the cassation instance of the district, canceling the judicial acts taken in the case, actually went beyond its powers established by Article 286 of the Arbitration Procedure Code of the Russian Federation, allowing a reassessment of the factual circumstances and evidence presented by the parties . The violations of the law were significant and influenced the outcome of the case. Without eliminating them, it is impossible to restore and protect violated rights and interests in the field of business activity, as well as protect public interests protected by law. On the contrary, the courts of the first and appellate instances regarding the inconsistency of transactions for the purchase and sale of foreign currency gave a correct assessment of the circumstances in relation to the provisions of paragraph 5 of Article 304 of the Tax Code of the Russian Federation as the absence of actual execution of such transactions.

This example clearly demonstrates that already at the stage of cassation consideration in the judicial panel, where you can apply within two months from the date of entry into force of the last judicial act (without delay) to correct the gross mistake made without waiting for the Presidium of the Supreme Court of the Russian Federation.

In addition, as is known, the European Court of Human Rights did not recognize Russian surveillance effective means protection of human rights. In this regard, the Russian civil process withstood several reforms. In particular, the European Court has indicated in specific cases that the supervisory review procedure was an indeterminate remedy, subject to discretionary powers, requiring exhaustion for the purposes of Article 35 § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

A situation arose where the highest court practically did not ensure the effectiveness of the protection of rights and freedoms. The principle of subsidiarity - according to which the protection of rights and freedoms should be carried out primarily by national law - did not work. With the reform of judicial proceedings, cassation was recognized as a remedy subject to exhaustion. Objections are possible: cassation in the arbitration process is represented by district courts and is entrusted with the task of verifying the legality of judicial acts of lower courts that have entered into force. However, with ongoing reform judicial system In light of the above, this is not enough. The unification of cassation proceedings into one chapter is aimed at unifying civil and arbitration processes.

What is the role of the judicial panel for economic disputes of the Supreme Court of the Russian Federation and its powers.

The cassation instance does not consider factual circumstances, but checks whether the lower courts complied with the rules of law when resolving the dispute, and whether the judicial body interpreted the law correctly. However, this task is entrusted to the cassation instance of the district courts. The amendments introduced by Law No. 186-FZ to the Arbitration Procedure Code of the Russian Federation entail significant changes at the cassation level. The question arises as to what violations of substantive and procedural law are sufficiently significant for the case to be considered by the judicial panel for economic disputes of the Supreme Court of the Russian Federation.

Currently, this provision of the law (Part 1 of Article 291.11 of the Arbitration Procedure Code of the Russian Federation) has not received a more precise theoretical or practical formulation. What is meant by a significant violation of the law? The concept of “material violation” is not new in the law. This concept is contained in the Civil Procedure Code and the Code of Criminal Procedure of the Russian Federation. The Arbitration Procedural Code of the Russian Federation does not disclose the concept of significant violations. This is an evaluative criterion.

Let's give an example: in one of the cases No. A56-23366/2013, considered by the arbitration courts of the city of St. Petersburg and the Leningrad region, the courts of all three instances rejected the claim of DOSAAF of Russia to the territorial administration for recognition, by virtue of acquisitive prescription, of the right of ownership of the building of a shooting range as a general with an area of ​​2051.6 square meters. The judge of the Supreme Court of the Russian Federation, during the initial consideration of the cassation appeal, did not find grounds for considering the case in the cassation board and rejected the appeal. The Deputy Chairman of the Supreme Court of the Russian Federation - Chairman of the Judicial Collegium for Economic Disputes canceled the above-mentioned ruling of the judge and transferred the complaint for consideration to the judicial session of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation. The ruling states that when resolving the dispute, the courts did not take into account the provisions of Article 234 of the Civil Code of the Russian Federation, as well as paragraph 58 of the explanations of the joint Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated April 29, 2010 No. 10/22 “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights." According to the law, a person has the right to file a claim in court to recognize the right of ownership of real estate, the right to which is registered with another entity, if this property is under his jurisdiction. The documents submitted to the case file confirm that the facility is under the jurisdiction of the Main Directorate of the Ministry of Internal Affairs, which has the registered right of operational management of the building, and it is used by the DOSAAF of Russia. Thus, the disputed property did not come into the actual possession and use of the Russian Federation and the Main Directorate of the Ministry of Internal Affairs. The above circumstances are significant and influenced the outcome of the case. Without their elimination, it is impossible to restore violated rights and freedoms, legitimate interests in the field of entrepreneurial activity, as well as the protection of public interests protected by law. The definition states that the courts did not create equal grounds for the parties to exercise their rights, including the provision of evidence in adversarial process. The courts do not have the right to put any of the parties in a preferential position, nor to diminish the rights of one of them. The above example shows that judges have different approaches to assessing the concept of “significant violation of the law.”

An analysis of a number of rulings of the Supreme Court of the Russian Federation (for example, ruling No. 305-ES14-3530 dated November 18, 2014 and others) does not contain a sufficiently motivated indication of what violations of substantive and procedural law the judges consider sufficiently significant. Basically, the determinations state that the applicant's arguments are meritorious. In our opinion, by analogy with the Code of Civil Procedure of the Russian Federation, the concept of a significant violation of the norms of substantive and procedural law should be understood as violations of uniformity in the application and interpretation of the law, bearing in mind the importance, significance of the errors made and the need to eliminate them, taking into account the specific circumstances of the case. For example, violation of the basic principles of legal proceedings, such as adversarial proceedings, ensuring equal conditions for the parties to present evidence, violation of the powers of the district cassation authority, as in the above example, and others.

By guaranteeing everyone judicial protection of their rights and freedoms, the state, through legislative enshrinement, ensures accessibility to justice. The approaches of the Supreme Court of the Russian Federation to the grounds for repealing or amending judicial acts in cassation have changed.

Compliance with the principle of legal certainty when adopting a judicial act is guaranteed.

The grounds for reviewing judicial acts that have entered into legal force have been narrowed to fundamental violations of the rights and freedoms guaranteed by the Constitution of the Russian Federation.

At the same time, when considering cases in cassation proceedings in the Supreme Court of the Russian Federation, a number of questions arise. First of all, how to use the established judicial practice of the arbitration court, expressed in information letters. The assessment criteria established by law for a significant violation of the norms of substantive and procedural law are not specified. Requires clarification to what extent the question of initiating proceedings in the court of cassation depends on the judge of the Supreme Court.

The article attempts to make some judgments on a range of problems and issues related to the implementation of the rights of the cassation instance of the Supreme Court of the Russian Federation. It seems that courts, when reviewing specific cases, should more clearly indicate what constitutes a significant violation of the rules of substantive and procedural law that influenced the correctness of judicial decisions. This will enable the Plenum of the Supreme Court of the Russian Federation to outline approximate criteria for the above-mentioned concepts in the future.

List of used literature

1. Federal Constitutional Law of April 28, 1995 N 1-FKZ (as amended on February 15, 2016) “On Arbitration Courts in the Russian Federation” // “Collection of Legislation of the Russian Federation”, 05/01/1995, N 18, Art. 1589.
2. Arbitration Procedural Code of the Russian Federation" dated July 24, 2002 N 95-FZ (as amended on February 15, 2016) // "Parlamentskaya Gazeta", N 140-141, July 27, 2002.
3. Yulia Litovtseva and Stepan Puchkov: “A new court for old disputes”
4. Results of the work of the Judicial Collegium for Economic Disputes of the Supreme Court of the Russian Federation
5. “Tax Code of the Russian Federation (Part Two)” dated 08/05/2000 N 117-FZ (as amended on 04/05/2016, as amended on 04/13/2016) (with amendments and additions, entered into force on 06/01/2016 ) // “Collection of Legislation of the Russian Federation”, 08/07/2000, N 32, art. 3340.
6. Sultanov A.R. “Improving the system of human rights and freedoms” // Law 2012 No. 2 pp. 25-27;
   Sultanov A.R. “Improving the Code of Civil Procedure of the Russian Federation in the light of decisions of the European Court of Human Rights” // Russian Legal Journal 2008 No. 6 pp. 107-114.
7. Federal Law of June 28, 2014 N 186-FZ “On Amendments to the Arbitration Procedure Code of the Russian Federation” // “ Russian newspaper", N 148, 07/04/2014.
8. “Civil Procedure Code of the Russian Federation” dated November 14, 2002 N 138-FZ (as amended on March 2, 2016) // “Collection of Legislation of the Russian Federation”, November 18, 2002, N 46, Art. 4532.
9. “Criminal Procedure Code of the Russian Federation” dated December 18, 2001 N 174-FZ (as amended on May 1, 2016) // “Parlamentskaya Gazeta”, N 241-242, 12/22/2001.
10. Review of judicial practice of the Supreme Court of the Russian Federation
11. Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10, Plenum of the Supreme Arbitration Court of the Russian Federation No. 22 of 04/29/2010 (as amended on 06/23/2015) “On some issues arising in judicial practice when resolving disputes related to the protection of property rights and other property rights” // “Rossiyskaya Gazeta”, N 109, 05/21/2010.
12. Review of judicial practice of the Supreme Court of the Russian Federation

Elena, hello!

Hello!!! Tell me, is the Supreme Court of the Russian Federation (judicial panel for economic disputes) arbitration court and whether applications for review of their court decisions are sent there. acts (definitions) acc. from Article 309-317 of the Arbitration Procedure Code of the Russian Federation due to newly discovered circumstances?
Thank you

Cassation has become, as it were, double: decisions made by the courts as a result of the first cassation appeal, and decisions of district courts adopted in the first instance, are now appealed not to the Presidium, but to the Judicial Collegium of the Armed Forces of the Russian Federation, which has essentially become second cassation authority(Article 291.1 of the Arbitration Procedure Code of the Russian Federation).

After the panel has considered the issue on its merits, supervisory proceedings may be initiated.

Decisions of district courts made following the results of the first cassation appeal cannot be appealed in a supervisory manner directly to the Presidium of the Armed Forces of the Russian Federation, bypassing the Judicial Collegium.
A complaint to the Judicial Collegium can be filed within two months from the date of entry into force of the last appealed judicial act, and the Chairman of the RF Supreme Court and his deputies can restore or refuse to restore the missed deadline for filing a complaint (Article 291.2 of the Arbitration Procedure Code of the Russian Federation).
The complaint indicates what significant violations of the law influenced the outcome of the case and resulted in the infringement of his rights and legitimate interests in the field of entrepreneurial and other economic activities, and provides the corresponding arguments (clause 5, part 2, article 291.3 of the Arbitration Procedure Code of the Russian Federation), and for filing complaints must be certified in courts by the disputed acts (clause 1, part 5, article 291.3 of the Arbitration Procedure Code of the Russian Federation).
The second cassation appeal is preliminarily studied for two months by one of the judges of the Supreme Court of the Russian Federation, after which he alone makes a decision to transfer the cassation appeal to the Judicial Collegium or to refuse such transfer (Part 7 of Article 291.6 of the Arbitration Procedure Code of the Russian Federation). A rejected ruling made based on the results of studying the second cassation appeal cannot be appealed to the Presidium of the RF Armed Forces. However, if the judge refuses to transfer the complaint, then the Chairman of the RF Supreme Court or his deputy will be able to cancel his ruling and still transfer the case to the Judicial Collegium (Part 7 of Article 291.6 of the Arbitration Procedure Code of the Russian Federation). If the case is requested by the chairman or his deputy, the period for its consideration may be extended to five months.
The deadline for consideration of a complaint is court hearing should not exceed two months from the date of the ruling on its transfer along with the case to the Judicial Chamber (Part 1 of Article 291.12 of the Arbitration Procedure Code of the Russian Federation). Thus, the total period for consideration of a cassation appeal by the RF Supreme Court may be seven months.
Based on the results of consideration of the complaint, a determination is made. The grounds for the cancellation or amendment of judicial acts by the board are enshrined in Article 291.11 of the Arbitration Procedure Code of the Russian Federation: “The grounds for the cancellation or amendment of judicial acts by the Judicial Collegium of the Supreme Court of the Russian Federation in the cassation procedure are significant violations of the norms of substantive law and (or) norms of procedural law that affected the outcome of the case and without eliminating which it is impossible to restore and protect violated rights, freedoms, legitimate interests in the field of business and other economic activities, as well as the protection of public interests protected by law.”
If the board has issued a refusal ruling, it can be revised in the manner of supervision by the Presidium of the RF Armed Forces.