ARTICLE-BY-ARTICLE COMMENTARY TO THE ARBITRATION PROCEDURE CODE OF THE RUSSIAN FEDERATION (CHAPTER 28.1)

2020 ◽  
Vol 10 (5) ◽  
pp. 134-179
Author(s):  
E.S. RAZDYAKONOV ◽  
I.N. TARASOV
Keyword(s):  
Russian Federation ◽  
Access To Information ◽  
Time Limits ◽  
Procedure Code ◽  
Legal Literature ◽  
The Supreme Court ◽  
Arbitration Procedure ◽  
Legitimate Interests ◽  
The Russian Federation ◽  
Interim Measures

This article is the author’s text of the article-by-article commentary to the Arbitration Procedure Code of the Russian Federation, which has not been previously published in the legal literature. It takes into account the latest changes in procedural legislation, including on the delimitation of jurisdiction over corporate disputes between arbitration courts and courts of general jurisdiction, conciliation in corporate disputes and their arbitrability, notifying participants in a corporate dispute about litigation in such a dispute and determining the procedural status of participants in a corporate dispute. The authors from the standpoint of the modern doctrine of the civil law process interpret the articles of Chapter 28.1 of the Arbitration Procedure Code of the Russian Federation, which regulate the consideration of cases by arbitration courts on corporate disputes. The content of the commented norms is revealed in their relationship with other norms of the APC RF, provisions of other federal laws and current legal positions of the Supreme Arbitration Court of the Russian Federation, the Supreme Court of the Russian Federation. The allocation by the legislator of the procedure for considering corporate disputes in a separate chapter of the APC of the Russian Federation is due to the nature of the disputed material legal relations and the task of considering such cases using procedural features that make it possible to better ensure the observance and protection of the rights and legitimate interests of participants in a corporate dispute. These procedural features are established by the legislator in terms of determining the competence of arbitration courts to consider corporate disputes, requirements for a statement of claim (statement) in a corporate dispute, providing access to information about a corporate dispute, conciliation in a corporate dispute, application of interim measures, time limits for performing certain procedural actions, including time limits for appealing judicial acts, composition of court costs, grounds for imposition and amounts of court fines. These features are disclosed by the authors during commenting on the relevant provisions of the law.

scholarly journals Legality and Validity of Property Seizure in the Investigation of a Criminal Case

Lex Russica ◽  
2021 ◽  
pp. 118-126
Author(s):  
O. A. Malysheva
Keyword(s):  
Russian Federation ◽  
Criminal Procedure ◽  
Criminal Case ◽  
Constitutional Court ◽  
Legal Institution ◽  
Procedure Code ◽  
First Case ◽  
The Supreme Court ◽  
Civil Lawsuits ◽  
The Russian Federation

The importance of the measure of procedural coercion in the form of seizure of property increases against the background of the high amount of damage caused by crimes, namely about 550 billion rubles annually. This measure of procedural coercion has a high security potential in order not only to satisfy claims in civil lawsuits, but also to recover a fine and other property claims provided for in Part 1 of Article 115 of the Criminal Procedure Code of the Russian Federation. Investigators (interrogators) annually initiate the seizure of property about 40 thousand times. 90% of cases are a success. The application of this measure is accompanied by the restriction of the property rights of both natural and legal persons, including those who are not recognized as a civil defendant in a criminal case, in the first case, and the accused (suspect).The seizure of property in criminal procedure practice is accompanied by the need for the investigator to overcome a number of difficulties, which are caused, firstly, by the intersectoral nature of the regulation of this legal institution; secondly, by the presence of gaps in the regulation of relations arising in connection with the imposition of this arrest; thirdly, by the inconsistency of the objectives of proof to establish the nature and amount of damage caused by a crime and the implementation of security activities in a criminal case. This gives rise to numerous violations of the legality and validity of the seizure of property on the part of not only the investigator, but also the court, despite the expression of a number of positions of the ECHR on this issue, despite the explanations of the Constitutional Court and the Supreme Court of the Russian Federation.The author concludes that without the release of the investigator as a subject of proof in a criminal case from performing an unusual function — providing compensation for property penalties in a criminal case — it is impossible to achieve the full legality and validity of the seizure of property.

SECURING EVIDENCE IN CIVIL PROCEDURE: DEVELOPMENT OF THEORY, LEGISLATIVE AND PRACTICE

2021 ◽  
Vol 11 (5) ◽  
pp. 159-190
Author(s):  
E.I. NOSYREVA ◽  
D.G. FILCHENKO
Keyword(s):  
Russian Federation ◽  
Legal Regulation ◽  
Civil Procedure ◽  
Point Of View ◽  
Theoretical Concepts ◽  
Civil Process ◽  
Procedure Code ◽  
Arbitration Procedure ◽  
The Russian Federation ◽  
Assessment Of Evidence

The article presents an analysis of the institution of securing evidence in the civil process from the point of view of the development of its legal regulation, doctrine and practice. The teaching of professor M.K. Treushnikov on the evidence is taken as a basis. Through the prism of his ideas, theoretical concepts of securing evidence are revealed, from prerevolutionary works to modern research; the sequence of the formation of norms on the securing evidence on the example of procedural codes of various periods; trends in the law practice of securing evidence. The correlation of the securing evidence with the elements of the judicial proof is revealed. It is substantiated that the securing evidence includes such elements of the structure of judicial proof as: indication of facts, indication of evidence and preliminary assessment. The end result of the procedural action to secure evidence is the possibility of implementing all subsequent elements – presentation, disclosure, investigation and final assessment of evidence. Conclusions are formulated on the results of the development of the institution of securing evidence, which from rather brief and obvious provisions of procedural legislation, a few practice has turned into an actual procedural activity. Its demand is predicted to grow in the context of digitalization of information, as well as due to the possibility of using it in the framework of arbitration. At the same time, an increase in the number of cases of unfounded appeal of interested parties to actions to secure evidence is noted. The authors support a critical assessment of the rule of the Arbitration Procedure Code of the Russian Federation that the securing evidence is carried out by the arbitration court according to the rules for securing a claim, and a proposal for a unified regulation of this institution in accordance with the rules of the Civil Procedure Code of the Russian Federation.

DIRECTION OF THE CASE ON JURISDICTION: PROBLEMS OF LEGAL REGULATION AND FEATURES OF PROCEDURAL REGISTRATION

2021 ◽  
Vol 11 (3) ◽  
pp. 293-315
Author(s):  
D.Yu. VORONIN
Keyword(s):  
Russian Federation ◽  
Legal Regulation ◽  
Appellate Courts ◽  
Judicial Practice ◽  
Wide Range ◽  
The Supreme Court ◽  
Universal Approach ◽  
Arbitration Procedure ◽  
The Russian Federation ◽  
The Difference

The paper presents a research of the new legal regulation for such an institute in relation to a regional and equal court, as the referral of a case received in accordance with part 4 of Article 39 of the Arbitration Procedure Code of the Russian Federation to a court of general jurisdiction, which is in jurisdiction to hear a case as it is assigned by law. The absence of procedural legal regulation of this action, which is, in author’s opinion, has an obvious procedural nature, and researched practice general jurisdiction courts demonstrate the uncertainty in implementation of the considered reform. The author analyzes the new procedural institution on the basis of his own vision of a number of procedural norms, as well as scholar works and historical experience. In particular, the author reasoning that the courts are to issue special rulings on the referral of cases received from arbitration to the courts of general jurisdiction. Moreover, the author considers the mechanism for adopting such a judicial act. The article presents a wide range of practical examples of the implementation of considered provision, as well as the difference in the approaches of the appellate courts to assess these implementation practice. In conclusion, the article presents the proposals for further improvement of the regulation of considered issue. Most likely such an improvement will be impossible without the universal approach established by the Supreme Court of the Russian Federation. Such improvements should result in uniform judicial practice, as well as further developments of procedural legislation.

scholarly journals Jurisdiction over claims made against public-legal institutions

2020 ◽  
pp. 1-8
Author(s):  
Nikolay Basmanov ◽  
Andrei Vladimirovich Ilin
Keyword(s):  
Law Enforcement ◽  
Russian Federation ◽  
Practical Importance ◽  
Legal Regulation ◽  
Legal Institutions ◽  
Legal Method ◽  
Procedure Code ◽  
Arbitration Procedure ◽  
The Subject ◽  
The Russian Federation

This article discusses the question of territorial jurisdiction over claims made against public-legal institutions (Russian Federation, constituent entities of the Russian Federation, municipal formations). The subject of this research is the current procedural norms regulating the questions of jurisdiction, and the established law enforcement practice. Attention is turned to the existence of gaps in legal regulation of the question of jurisdiction over claims made against public-legal institutions in the Civil Procedure Code of the Russian Federation and Arbitration Procedure Code of the Russian Federation. The authors analyze the established approaches in law enforcement practice towards solution of the aforementioned problem. Methodological framework includes the comparative-legal method and such formal-logical methods, as analysis, synthesis and induction. The relevance and practical importance are substantiated by the subject of research – the law enforcement practice formed by the Russian judicial authorities over the recent years. The conclusion is made on the need for elimination of the existing gap in the normative-legal regulation by amending the current procedural legislation.

scholarly journals On Requirements to a Claim in a Civil and Arbitration Procedure

2020 ◽  
Vol 12 ◽  
pp. 14-18
Author(s):  
Sergey A. Sapozhnikov ◽  
◽  
Olga N. Barmina ◽  
Keyword(s):  
Russian Federation ◽  
Institutional Reform ◽  
Civil Procedure ◽  
Global Changes ◽  
Procedure Code ◽  
Arbitration Process ◽  
Arbitration Procedure ◽  
The Russian Federation

The article discusses the requirements for the form and content of a statement of claim in civil and arbitration proceedings. The authors’ interest in this issue is due to global changes made to the civil and arbitration process as a result of the institutional reform and came into force in the fall of 2019. For example, the requirements for documents attached to a statement of claim have been clarified in the civil procedure. So, at present, the plaintiff, when applying to the court of general jurisdiction according to the rules of civil procedure, must submit a delivery receipt or other documents confirming the sending to other persons involved in the case, copies of the statement of claim and the documents attached to it. Such rules have long existed in the arbitration process. Along with that, as follows from part 3 of Article 114 of the Civil Procedure Code of the Russian Federation, at the same time as the court summons or other judicial notice addressed to the defendant, the judge sends a copy of the statement of claim. Thus, the existence of this rule preserves to the obligation of the court to send a copy of the statement of claim to the persons involved in the case, as, it this was before the introduction of global amendments. In this regard, in order to uniformly and accurately apply the rules of the process, the authors propose clarifying the norms of the Civil Procedure Code of the Russian Federation in this part. Also in the work, the authors raised the problems of unification of the process, proposed some approaches to improve procedural legislation.

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