Abstract: Arbitration process and its stages. The concept of arbitration courts and their system

The activities of the arbitration court to consider and resolve disputes within its jurisdiction are carried out in a certain logical sequence, according to the stages of the process.

At each stage of the arbitration process, procedural relations have a specific character, determined by the object of these relations, the subject composition of the participants at each stage, the content and purpose of procedural actions.

First ( initial) stage arbitration process - acceptance of a statement of claim for proceedings in claims cases, as well as statements in non-claim proceedings. The object of procedural actions and the legal assessment of the arbitration judge at this stage is the presented statement of claim with all the materials attached to it (Articles 125 - 129 of the Arbitration Procedure Code of the Russian Federation), studying them from the point of view of the jurisdiction and jurisdiction of the case, as well as other criteria necessary for acceptance of the case for proceedings. At this stage, the judge alone makes a ruling on accepting the statement of claim for proceedings (Article 127 of the Arbitration Procedure Code of the Russian Federation). If there are grounds for this, the judge alone can return the application (Article 129 of the Arbitration Procedure Code of the Russian Federation) or leave the statement of claim without progress (Article 128 of the Arbitration Procedure Code of the Russian Federation).

After initiating a case in the arbitration court, you should preparation stage him for trial (Chapter 14 of the Arbitration Procedure Code of the Russian Federation). The purpose of this stage is to ensure the correct and timely resolution of the case by the court, preferably in one court hearing. The totality and content of procedural actions at this stage are provided for in Art. Art. 133 - 137 Arbitration Procedure Code of the Russian Federation.

Main stage arbitration process - trial (Chapter 19 of the Arbitration Procedure Code of the Russian Federation). It is defined as the main one, because it considers and resolves disputes on the merits, and gives a final answer to the stated requirements. The form of hearing the case is a meeting of the arbitration court. As a rule, this stage ends with a decision, but there are cases of termination of the case or leaving the claim without consideration.

There is a different idea about the stages of the arbitration process: the stage of accepting an application, preparing the case for trial and trial are combined into one stage - proceedings in the court of first instance.

In the arbitration process, the new legislation provides legality check stage and the validity of the acts of the arbitration court in the court of appeal (Chapter 34 of the Arbitration Procedure Code of the Russian Federation). Previously, such a stage did not exist in the activities of state arbitration and decisions were reviewed only by way of supervision.

In addition to the appeal, three more stages have been established for reviewing decisions of arbitration courts: proceedings in the court of cassation(Chapter 35 of the Arbitration Procedure Code of the Russian Federation), supervisory proceedings(Chapter 36 of the Arbitration Procedure Code of the Russian Federation) and revision joined legal force acts of arbitration courts due to newly discovered circumstances(Chapter 37 of the Arbitration Procedure Code of the Russian Federation).

The arbitration process in the case must end with the execution of the arbitration court decision that has entered into legal force. The decision of the arbitration court is subject to mandatory execution by all organizations, institutions, officials, citizen-entrepreneurs throughout the territory Russian Federation. There are certain rules of enforcement proceedings regulating the relationship between the debtor and the claimant (Section VII of the Arbitration Procedure Code of the Russian Federation).

A new provision of arbitration procedural law is that at any stage of the arbitration process and during the execution of a judicial act, a settlement agreement can be concluded by the parties (Part 1 of Article 139 of the Arbitration Procedure Code of the Russian Federation). The idea of reconciliation of the parties at all stages of the process and the procedure for conciliation procedures are enshrined in special chapter(Chapter 15 of the Arbitration Procedure Code of the Russian Federation). This means that it is not necessary for every case to go through all the possible stages required by law.

Procedural actions performed by participants in the arbitration process, depending on the purpose of their implementation and content, form the stages of the arbitration process. Thus, the stage of the arbitration process is a set of procedural actions in a specific case, united by one goal. Each of these stages performs its own special functions in the arbitration process system.

The arbitration process consists of six stages:

1) proceedings in the arbitration court of first instance. The goal is to resolve the dispute on the merits;

2) proceedings in the appellate instance. The goal is to re-examine the case on the merits on the basis of existing and newly presented (subject to certain conditions) evidence. Checking the legality and validity of judicial acts of arbitration courts of constituent entities of the Russian Federation adopted by them in the first instance;

3) proceedings in the cassation court. The goal is to check the legality of judicial acts adopted by arbitration courts of constituent entities of the Russian Federation and arbitration courts of appeal of the Russian Federation;

4) supervisory proceedings. The goal is to review judicial acts of arbitration courts. This proceeding is an exceptional (extraordinary) stage of the arbitration process, in which judicial acts of arbitration courts are reviewed. At the same time, in accordance with Art. 292 of the Arbitration Procedure Code of the Russian Federation, the initiation of supervisory proceedings is possible only if there are significant violations of the rights of persons participating in the case, substantive and procedural law;

5) review, based on newly discovered circumstances, of judicial acts of the arbitration court that have entered into legal force. The goal is to revise judicial acts, aimed at correcting judicial errors;

6) execution of judicial acts. The goal is the practical implementation of decisions, determinations, and regulations in the actions of obligated subjects.

The passage of a case through all stages of the arbitration process is not mandatory, but is ultimately determined by the interested parties - participants in the proceedings in this case. It is only necessary to resolve the case at first instance and then, at the will of the plaintiff, to execute the decision of the arbitration court.

In turn, each stage of the arbitration process is divided into three stages:

Initiation of proceedings at the appropriate stage;

Preparing the case for consideration;

Resolving it at the appropriate stage.

Introduction

In accordance with Article 118 of the Russian Constitution, justice in the Russian Federation is carried out only by the court. Judicial power is exercised through constitutional, civil, administrative and criminal proceedings.

From this constitutional provision it follows that the activities of arbitration courts represent a form of exercise of judicial power in the field of civil and administrative proceedings, and the arbitration courts themselves are part of the system of civil jurisdiction bodies.

In this regard, arbitration courts are simultaneously courts of private and public law, resolving disputes arising from relevant legal relations.

Arbitration courts are a special type of judicial body that exercises judicial power by resolving economic disputes and other cases within their jurisdiction.

Arbitration courts have their own jurisdiction, the procedure for legal proceedings in them has specifics established by the Arbitration Procedural Code of the Russian Federation. Therefore, the topic of this work is relevant.

Stages of the arbitration process

The arbitration process is a form of activity established by the rules of arbitration procedural law of state arbitration courts in Russia, aimed at protecting the disputed or violated rights of organizations, citizen-entrepreneurs, and shareholders in accordance with the concept of these courts.

The activities of the arbitration court to consider and resolve disputes within its jurisdiction are carried out in a certain logical sequence, according to the stages of the process.

A stage of the arbitration process is a set of procedural actions aimed at one immediate goal. The immediate purpose of the action of the arbitration court (judge) may be to resolve issues related to the acceptance of a statement of claim from an organization, i.e. initiating a process, preparing a case for trial, conducting a trial, etc.

Treushnikov A.A. identifies the following stages of the arbitration process. The first (initial) stage of the arbitration process is the acceptance of the statement of claim for proceedings in claims cases, as well as statements in non-claim proceedings.

The object of procedural actions and the legal assessment of the arbitration judge at this stage is the presented statement of claim with all the materials attached to it (Articles 125-129 of the Arbitration Procedure Code of the Russian Federation), studying them from the point of view of the jurisdiction and jurisdiction of the case, as well as other criteria necessary for acceptance of the case for proceedings.

At this stage, the judge alone makes a ruling on accepting the statement of claim for proceedings (Article 127 of the Arbitration Procedure Code of the Russian Federation). If there are grounds for this, the judge alone can return the application (Article 129 of the Arbitration Procedure Code of the Russian Federation) or leave the statement of claim without progress (Article 128 of the Arbitration Procedure Code of the Russian Federation).

After the initiation of a case in an arbitration court, the stage of preparing it for trial follows (Chapter 14 of the Arbitration Procedure Code of the Russian Federation). The purpose of this stage is to ensure the correct and timely resolution of the case by the court, preferably in one court hearing. The totality and content of procedural actions at this stage are provided for in Art. Art. 133 - 137 of the Arbitration Procedure Code of the Russian Federation.

The main stage of the arbitration process is judicial proceedings (Chapter 19 of the Arbitration Procedure Code of the Russian Federation). It is defined as the main one, because it considers and resolves disputes on the merits, and gives a final answer to the stated requirements.

The form of hearing the case is a meeting of the arbitration court. As a rule, this stage ends with a decision, but there are cases of termination of the case or leaving the claim without consideration.

In the arbitration process, the new legislation provides for the stage of checking the legality and validity of the acts of the arbitration court in the court of appeal (Chapter 34 of the Arbitration Procedure Code of the Russian Federation). Previously, such a stage did not exist in the activities of state arbitration, and decisions were reviewed only by way of supervision.

At the stage of proceedings in the appellate instance, the case is reconsidered on the merits on the basis of existing and newly presented (subject to certain conditions) evidence.

In addition to the appeal, three more stages have been established for reviewing decisions of arbitration courts: proceedings in the court of cassation (Chapter 35 of the Arbitration Procedure Code of the Russian Federation), proceedings by way of supervision (Chapter 36 of the Arbitration Procedure Code of the Russian Federation) and review of acts of arbitration courts that have entered into legal force based on newly discovered circumstances ( Chapter 37 of the Arbitration Procedure Code of the Russian Federation).

Cassation proceedings are aimed at verifying the legality of decisions and rulings adopted by arbitration courts of constituent entities of the Russian Federation in the first and appellate instances.

Appeal and cassation proceedings are ordinary stages of the arbitration process, since the right to initiate them is granted to all persons participating in the case, as well as other persons whose rights and interests are affected by a judicial act.

Supervisory proceedings are an exceptional (extraordinary) stage of the arbitration process, in which judicial acts of arbitration courts are reviewed.

Moreover, in accordance with Article 292 of the APC, the initiation of supervisory proceedings is possible only if there are significant violations of the rights of persons participating in the case, substantive and procedural law.

Review of judicial acts of the arbitration court that have entered into legal force based on newly discovered circumstances is also a stage of the arbitration process aimed at correcting judicial errors.

The arbitration process in the case must end with the execution of the arbitration court decision that has entered into legal force.

The decision of the arbitration court is subject to mandatory execution by all organizations, institutions, officials, and citizen-entrepreneurs throughout the Russian Federation.

There are certain rules of enforcement proceedings regulating the relationship between the debtor and the claimant (Section VII of the Arbitration Procedure Code of the Russian Federation).

The stage of execution of judicial acts of arbitration courts is aimed at the practical implementation of decisions, determinations, and regulations in the actions of obligated entities. It should be kept in mind that enforcement proceedings organizationally separated from the judicial branch and assigned to the executive branch.

In terms of the powers of the arbitration court to control the execution of judicial acts of arbitration courts and the resolution of disputes arising here, enforcement proceedings are at the same time a stage of the arbitration process.

The idea of reconciliation of the parties at all stages of the process and the procedure for conciliation procedures are enshrined in a special chapter (Chapter 15 of the Arbitration Procedure Code of the Russian Federation). This means that it is not necessary for every case to go through all the possible stages required by law.

V.V. Yarkov identifies other stages of the arbitration process. In his opinion, the arbitration process consists of six stages:

1) proceedings in the arbitration court of first instance;
2) proceedings in the appellate instance;
3) proceedings in the cassation court;
4) supervisory proceedings;
5) review, based on newly discovered circumstances, of judicial acts of the arbitration court that have entered into legal force;
6) execution of judicial acts.

In turn, each stage of the arbitration process is divided into three stages:

- initiation of proceedings at the appropriate stage,
- preparing the case for consideration,
- its resolution at the appropriate stage.

The passage of a case through all stages of the arbitration process is not mandatory, but is ultimately determined by the interested parties - participants in the proceedings in this case. It is mandatory to resolve the case at first instance and then, at the will of the plaintiff, to execute the decision of the arbitration court.

Plan:

1 The concept of arbitration courts and their system

2 Tasks and functions of arbitration courts

3 Questions for consolidating the material

The concept of arbitration courts and their system

According to the Constitution of the Russian Federation and the Federal Constitutional Law “On Arbitration Courts in the Russian Federation” arbitration courts- these are federal courts, the formation and regulation of whose activities fall under the jurisdiction of the Russian Federation (federal legislation) and whose competence includes the consideration of economic disputes arising in the field of business and other economic activities, with the participation of legal entities, citizens - individual entrepreneurs, as well as the Russian Federation, a constituent entity of the Russian Federation, state bodies, local governments and citizens in cases provided for by law.

Accordingly, the constituent entities of the Russian Federation do not have the right to create any judicial bodies that consider economic disputes within the jurisdiction of arbitration courts.

The system of arbitration courts, their organizational structure, and general structure are determined by the Constitution of the Russian Federation, the federal constitutional laws “On the Judicial System in the Russian Federation” and “On Arbitration Courts in the Russian Federation”, in accordance with which there is currently a four-level system of arbitration courts:
1) arbitration courts of constituent entities of the Russian Federation (regions, republics, cities federal significance- Moscow and St. Petersburg), which are courts first instance;

2) 20 ships appellate court, which are geographically located within the existing 10 federal arbitration (cassation) districts - two courts of appeal per one federal arbitration (cassation) district. In addition, in the courts of first and appellate instances, in order to bring justice closer to the location or place of residence of persons participating in the case who are located or living in remote areas, and also taking into account the number of cases under consideration, judicial presences can be created, which are separate divisions of the relevant courts;
3) 10 federal arbitration courts of districts, which are courts cassation authority;
4) The Supreme Arbitration Court of the Russian Federation, which is the court of first instance in cases determined by the Arbitration Procedure Code of the Russian Federation and other federal laws, and supervisory authority in relation to all lower arbitration courts (courts of first, appellate and cassation instances) when checking their judicial acts in the manner of supervision.

Supreme Arbitration Court of the Russian Federation is highest judicial body in the arbitration court system for resolving economic disputes and other matters, subordinate to arbitration courts and referred to the jurisdiction of the Supreme Arbitration Court of the Russian Federation, and the highest court in relation to the arbitration courts of the first, appellate and cassation instances, since it carries out supervision over their activities in the form established by the Arbitration Procedure Code of the Russian Federation (revision of cases in the manner of supervision). In addition, the Supreme Arbitration Court of the Russian Federation provides arbitration courts with clarifications on issues judicial practice and uniform application of legislation by all arbitration courts throughout the Russian Federation Federal Arbitration Courts of Districts as Courts of Cassation designed to verify legality entered into legal the force of judicial acts of courts of appeal and first instance. A total of 10 were formed federal districts, which includes several constituent entities of the Russian Federation. The district court carries out cassation review of judicial acts of arbitration courts of the constituent entities of the Russian Federation - courts of first instance and two courts of appeal located on the territory of this federal district. The name of the federal arbitration courts of the districts is based on the name of the district established by law (for example, the Federal Arbitration Court of the Moscow District, the Federal Arbitration Court of the Central District).
Arbitration courts of appeal are courts of legality and reconsideration not entered into legal force judicial acts of courts of first instance. They verify the legality of judicial acts of the first instance that have not entered into legal force and at the same time re-examine on the merits in an appellate manner judicial acts of the first instance - arbitration courts of the constituent entities of the Russian Federation, the list of which is legally assigned to each court of appeal. Geographically, the courts of appeal are located as follows: two courts of appeal per one federal arbitration (cassation) district. Each appellate court has its own number (for example, the 19th appellate court); appellate courts do not have names.
Arbitration courts of the constituent entities of the Russian Federation are considering essentially economic disputes within the jurisdiction of arbitration courts of the first instance, the number of which corresponds to the number of subjects of the Russian Federation in accordance with the existing state administrative-territorial structure of Russia.
Under composition any arbitration court is understood as its internal structure - structure.
Thus, the Supreme Arbitration Court of the Russian Federation acts as part of the Plenum of the Supreme Arbitration Court of the Russian Federation; Presidium of the Supreme Arbitration Court of the Russian Federation; Judicial panel for consideration of disputes arising from civil and other legal relations; Judicial panel for consideration of disputes arising from administrative legal relations.
To prepare and review materials of court cases, study the practice of applying legislation, and perform other functions of arbitration courts, an apparatus of the arbitration court is created, including departments and other divisions.
The Federal Arbitration Court of the District operates as part of the Presidium, judicial panels on disputes arising from civil and administrative legal relations. The Presidium of the district court approves, on the proposal of the chairman of the court, members of the judicial panels and chairmen of the judicial panels of this court, and decides other most important issues of organization of work and judicial practice.

The internal structure of arbitration courts of the constituent entities of the Russian Federation is determined in approximately the same way, with the only difference being that in some courts with a small number of judges, only judicial panels can be formed from among the judges of this court, i.e., without the formation of collegiums.

Each arbitration court consists of a chairman, his deputies or deputy, judges and court staff.
Questions internal activities arbitration courts and their relationships with each other, including issues related to the formation of judicial panels and judicial panels, are regulated in the Rules of Arbitration Courts, approved by a resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation (the latest version of the Rules was approved by a resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 30, 2002 No. 12).

According to Art. 128 of the Constitution of the Russian Federation, all judges of the Supreme Arbitration Court of the Russian Federation are appointed by the Federation Council on the proposal of the President of the Russian Federation, and judges of other arbitration courts - by the President of the Russian Federation in the manner established by the Federal Law “On the Status of Judges in the Russian Federation”.

2. Tasks and functions of arbitration courts

Tasks Arbitration courts are determined by the goals of judicial activity; in general, they can be divided into two groups:

a) characteristic of all arbitration courts;

b) assigned only to the Supreme Arbitration Court of the Russian Federation. General tasks of all arbitration courts are enshrined in Art. 2 APC of the Russian Federation:
1) protection of violated or disputed rights and legitimate interests of persons engaged in entrepreneurial and other economic activities, as well as the rights and legitimate interests of the Russian Federation, constituent entities of the Russian Federation, municipalities in the field of entrepreneurial and other economic activities, government bodies of the Russian Federation, government bodies authorities of the constituent entities of the Russian Federation, local governments, other bodies, officials in this area;

2) ensuring accessibility of justice in the field of business and other economic activities;
3) a fair public trial within a reasonable time by an independent and impartial tribunal;
4) strengthening the rule of law and preventing offenses in the field of business and other economic activities;
5) formation of a respectful attitude towards the law and the court;

6) assistance in the formation and development of partnerships business relations, formation of customs and business ethics.
In addition, as follows from the practice of economic justice, the task of arbitration courts is also to protect equally both private and public rights and interests.

The Supreme Arbitration Court of the Russian Federation is also entrusted with the following tasks:

study and generalize the practice of application of legislation by arbitration courts;

provide explanations on issues of judicial practice;

prepare proposals for improving legislation when implementing the right of legislative initiative;
maintain judicial statistics and control their maintenance in lower courts, implement measures to ensure the activities of arbitration courts in general (including in matters of material, technical, staffing and etc.).
The main task of legal proceedings in arbitration courts is the protection of violated or disputed rights in the field of business and other economic activities, which is implemented in a court decision.
Functions arbitration courts are as follows:

A) resolution of disputes arising in the field of business and other economic activities, i.e., implementation of economic justice;

b) prevention of violations of legislation in the economic sphere;

c) maintaining law and order and ensuring legal stability. In addition to general functions, the Supreme Arbitration Court of the Russian Federation, represented by its highest judicial body - the Plenum, provides explanations to arbitration courts on the application of legislation in the economic sphere for the purpose of its uniform and correct application. The practical significance of the decisions of the Plenum of the Supreme Arbitration Court of the Russian Federation is that “this is a development based on an analysis of judicial practice solely correct interpretation the law applied by arbitration courts and the organization of the work of courts in accordance with the position verified and communicated to them by the relevant resolution of the Plenum.”

Questions to prepare for the seminar

1.Give the concept of the Arbitration Court

2. How many links does the system of arbitration courts consist of?

3. Expand the concept of the 1st link of the AC

4. Expand the concept of the 2nd link of the AC

5. Expand the concept of the 3rd link of the AC

6. Expand the concept of the 4th link of the AC

7. Give the basic principles of AS

8. What are the principle of unity and the principle of division of powers?

9. Expand the concept of the principle of multi-instance and the principle of jurisdiction

10. What is the principle of formation of AS

Lecture topic 2

Subject and system of arbitration procedural law

Plan:

2. Concept and subject of arbitration procedural law

3. Sources of arbitration procedural law

1. Concept and stages of the arbitration process

Arbitration process- this is a form of activity of arbitration courts established by the rules of arbitration procedural law, aimed at protecting the disputed or violated rights of organizations, government bodies and citizen-entrepreneurs, and in cases provided for by law, and citizens, and represents a certain sequence of procedural actions of the arbitration court and other participants arbitration proceedings when considering a specific case.
In the arbitration process, the court, persons participating in the case, and other participants can perform only those actions that are provided for by the arbitration procedural rules, i.e., the Arbitration Procedure Code of the Russian Federation and other federal laws containing procedural rules. The arbitration court, the parties and other participants in the process are granted rights by arbitration procedural legislation, on the one hand, and, on the other hand, are assigned responsibilities corresponding to their procedural status.

Subject arbitration process are economic disputes and other cases within the jurisdiction of arbitration courts, and the actions that are performed by the arbitration court and the participants in the arbitration process when considering a specific case are procedural actions by their nature.

The arbitration process is a formalized process, i.e. all actions of the participants in the arbitration process within the framework of procedural relations are carried out in a certain procedural form, established by the Arbitration Procedure Code of the Russian Federation. Its compliance is aimed at the timely consideration and resolution of the dispute by the arbitration court and, accordingly, at the judicial protection of violated or disputed rights.

The activities of the arbitration court to consider and resolve disputes within its jurisdiction are carried out in a certain sequence, i.e. stages of the process. Each stage covers a certain set of procedural actions aimed at achieving an independent procedural goal, and performs its own procedural function.

The arbitration process has eight stages(scheme 2):

Scheme 2. Stages of the arbitration process.

1st stage– initiation of proceedings in the case. At this stage, the judge examines the received statement of claim, application and documents attached to it, finds out whether the case is within the jurisdiction of the arbitration court, whether jurisdiction has been met, whether the statement of claim has been signed by the proper person, whether the state duty has been paid in the prescribed manner and amount, whether requirements have been formulated for each of them. defendants, are there any references to laws, are they attached to the statement of claim, statement Required documents. At this stage, the judge alone, within five days from the date of receipt of the statement of claim by the arbitration court, must decide the issue of accepting the statement of claim for proceedings, about which a ruling is made on accepting the case for proceedings, which initiates proceedings in the case (Article 127 of the Arbitration Procedure Code of the Russian Federation). If there are grounds, the judge alone may leave the statement of claim without progress and set a deadline for eliminating the shortcomings, and if they are not eliminated, as well as on other grounds provided for by the Arbitration Procedure Code of the Russian Federation, return the statement of claim (Articles 128-129 of the Arbitration Procedure Code of the Russian Federation).

2nd stage– preparation of case materials for consideration in court. In order to prepare the case for consideration at the hearing, the court essentially carries out the preparatory actions provided for by the Arbitration Procedure Code of the Russian Federation - carries out with the parties interview And preliminary hearing(Articles 135, 136 of the Arbitration Procedure Code of the Russian Federation). The purpose of this stage is to ensure the correct and timely consideration and resolution of the case by the arbitration court in a court hearing. The judge, having considered the case prepared, subsequently schedules a trial on the merits of the dispute.

3rd stage(main) – the trial itself. It is considered the main one because it considers and resolves the dispute on the merits in the first instance, and makes a decision that either satisfies the stated requirements or refuses to satisfy them. However, the court, in cases established by the Arbitration Procedure Code of the Russian Federation, may terminate the proceedings or leave the claim without consideration. The procedural form of proceedings is court hearing arbitration court (Article 137 of the Arbitration Procedure Code of the Russian Federation).

4th stage– verification of the legality and validity of decisions and determinations made by the court of first instance and not entered into legal force by the court of appeal, i.e. proceedings in the court of appeal (Articles 257-272 of the Arbitration Procedure Code of the Russian Federation).
5th stage– verification of the legality of judicial acts adopted by the court of first and appellate instances and entered into legal force by the court of cassation, i.e. proceedings in the court of cassation (Articles 273-291 of the Arbitration Procedure Code of the Russian Federation).
6th stage– verification of the legality of judicial acts adopted by the courts of three instances and entered into legal force, in the manner of supervision by the Supreme Arbitration Court of the Russian Federation, i.e. proceedings in the manner of supervision (Articles 292-308 of the Arbitration Procedure Code of the Russian Federation).
7th stage– review of judicial acts of arbitration courts that have entered into legal force based on newly discovered circumstances (Articles 309-317 of the Arbitration Procedure Code of the Russian Federation).

8th stage– execution of a judicial act of an arbitration court that has entered into legal force, i.e. enforcement proceedings (Articles 318-332 of the Arbitration Procedure Code of the Russian Federation, Federal Law “On Enforcement Proceedings”).

§ 2. Concept and subject of arbitration procedural law

Arbitration procedural law – this is a set of legal norms regulating the organization, competence, procedure for the activities of arbitration courts of the Russian Federation and the procedure for considering economic disputes within the competence of arbitration courts.

The rules of arbitration procedural law implement mechanism judicial protection of violated or disputed rights and legitimate interests of subjects of law in the field of entrepreneurial activity and other economic activities. At the same time, the norms of arbitration procedural law are studied taking into account the established arbitration practice, i.e., taking into account judicial interpretations of the norms of arbitration procedural law.

By its nature, arbitration procedural law belongs to the branches of public law, since the predominant number of rules of the arbitration process, which fundamentally regulate the very foundations of the arbitration process and its main institutions in the field of procedural relations, are imperative in nature (i.e. the nature of the authoritative regulations established by public authorities - state and accordingly regulated by the public law method). However, at the same time, the rules of arbitration procedural law also contain elements of private law regulation that reflect dispositive (permissible) principles, especially regarding the implementation by participants in the arbitration process of procedural rights, allowing, for example, to change the general and alternative jurisdiction of disputing subjects of law by concluding an appropriate agreement (i.e. . establish contractual jurisdiction), transfer the consideration of the dispute not to the state, but to an arbitration court, conclude a settlement agreement, etc.

However, despite the complex complex composition, which includes elements of public law and private law regulation, arbitration procedural law is characterized primarily by the authoritative activity of the court as a state body, as well as the compulsory execution of judicial acts that have entered into legal force, which in itself already predetermines the largely public nature of relationships in the sphere of procedural relations.
The subject of arbitration procedural law are the direct procedural actions of the arbitration court in the administration of justice, subjects of law (interested persons) who have applied to the arbitration court for protection of their violated or disputed rights, the rights and obligations of the participants in the arbitration process, their position, the conditions and procedure for initiating and considering the case, the procedure for making a decision court and the procedure for appealing it to higher courts, as well as the execution of decisions of the arbitration court.

The arbitration court, as a non-state body, has the significance of an alternative form of dispute resolution in relation to arbitration courts in the field of business and other economic activities. Therefore, the subject of arbitration procedural law is also the rules governing the organization and activities of arbitration courts.

System arbitration procedural law is a set of legal norms that represent the structure, composition of institutions and norms in a certain sequence. Traditionally, the system of arbitration procedural law consists of general and special parts.

The rules that govern the entire arbitration process constitute its common part, and the rules governing individual stages of the process are special part.

TO common part include institutions and norms governing issues:

organization, structure, tasks and functions of arbitration courts;

goals and principles of the arbitration process; jurisdiction and jurisdiction; circle

subjects of arbitration procedural law and rules on persons participating in the case; representation in arbitration proceedings; evidence and proof; interim measures in arbitration proceedings; suspension of the proceedings;

termination of proceedings; leaving the claim without consideration; court expenses; procedural deadlines; court fines.

Norms special part regulate:

procedure for initiating a case in an arbitration court;

preparing the case for consideration in court; proceedings in the court of first instance and resolution of disputes through claims, special, administrative proceedings; verification of decisions of arbitration courts that have not entered into legal force in the court of appeal; verification of decisions of arbitration courts that have entered into legal force in the court of cassation; review of decisions of arbitration courts that have entered into legal force in the manner of supervision by the Supreme Arbitration Court of the Russian Federation and due to newly discovered circumstances; execution of judicial acts.

§ 3. Sources of arbitration procedural law

Sources arbitration procedural law are normative legal acts containing rules governing relations in this branch of law.

According to paragraph “o” of Art. 71 of the Constitution of the Russian Federation, the judicial system and arbitration procedural legislation are assigned to the exclusive jurisdiction of the Russian Federation. Accordingly, the bodies of the constituent entities of the Russian Federation and local government bodies do not have the right to carry out legal regulation of the arbitration process.

Part 2 Art. 3 of the Arbitration Procedure Code of the Russian Federation determines the main sources of arbitration procedural law, it should be noted that this norm of the Arbitration Procedure Code of the Russian Federation establishes that the procedure for legal proceedings in arbitration courts is carried out only by the Constitution, federal constitutional laws, the Arbitration Procedure Code of the Russian Federation itself and other federal laws adopted in accordance with them, and international treaties Russia. Accordingly, other normative legal acts cannot regulate the procedure of legal proceedings in arbitration courts.

The sources of arbitration procedural law include (diagram 3):

1) Constitution of the Russian Federation(Basic Law), which sets out a number of fundamental provisions that are fundamental to the arbitration process. The Constitution of the Russian Federation determines who administers justice, including determining that economic justice is administered by arbitration courts; the procedure for the formation of bodies exercising judicial power, their position in the system of government authorities of the Russian Federation; basic principles of justice (Articles 19, 20, 47, 50, 51, 118, 123, 128). The Constitution of the Russian Federation guarantees judicial protection of rights and freedoms and the possibility of appealing to the court decisions and actions (inaction) of state authorities, local governments, public associations and officials (Article 46);

Diagram 3. Sources of arbitration procedural law.

2) federal constitutional laws and federal laws that are the main normative acts regulating the organization, competence and procedure of the arbitration courts. These include the federal constitutional laws “On the judicial system of the Russian Federation” (establishes the judicial system of the Russian Federation, the main purpose of the courts and their tasks), “On arbitration courts in the Russian Federation” (establishes the system of arbitration courts in the Russian Federation, the basic principles of their activities, powers and procedure for the formation and activities of arbitration courts at various levels, organizational support for the activities of arbitration courts, the binding nature of judicial acts of arbitration courts).

Of the federal laws, the main one is the Arbitration Procedural Code of the Russian Federation, which contains a set of rules that regulate in detail the entire arbitration process and the procedure for legal proceedings in economic disputes within the jurisdiction of arbitration courts. The Arbitration Procedure Code of the Russian Federation regulates both the activities of the arbitration court in the administration of justice and other participants in the arbitration process.

The Federal Law “On Arbitration Assessors” contains rules defining the procedure for involving arbitration assessors in the consideration of a case in an arbitration court, establishes the requirements that are presented to them, and the term of office of arbitration assessors.

The Law of the Russian Federation “On the Status of Judges in the Russian Federation” establishes the requirements for a judge, the procedure for the appointment of judges of arbitration courts and the termination of their powers, the term of their powers, guarantees of their independence and responsibility.
The Federal Law “On Arbitration Courts in the Russian Federation” contains rules that establish arbitration proceedings as a method of resolving civil disputes if there is an agreement to this effect between the parties, the procedure for considering these disputes in an arbitration court, and the procedure for enforcing the decision of an arbitration court.
The Federal Law “On Insolvency (Bankruptcy)” contains procedural rules governing the procedure for presenting creditors’ claims against the debtor and recording them in the register of creditors’ claims, the procedure for introducing supervision, external management, the procedure for declaring a debtor bankrupt, appointing arbitration managers and considering creditors’ complaints.
The Federal Law “On Enforcement Proceedings” establishes the rules governing the procedure for the execution of judicial acts, foreclosure of the debtor’s property and its sale, the procedure for suspending and terminating enforcement proceedings.
Other federal laws can also serve as a source of arbitration procedural law, but they should not contradict the provisions of the Arbitration Procedure Code of the Russian Federation. In case of conflict, the norms of the Constitution of the Russian Federation, the above-mentioned federal constitutional laws and the Arbitration Procedure Code of the Russian Federation have priority;

3) international treaties of the Russian Federation on issues of the arbitration process, in particular the Agreement of the CIS countries “On the procedure for resolving disputes related to the implementation of economic activities” (Kiev, March 20, 1992), the European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4, 1950 .);

4) arbitrage practice in the form of decisions and rulings of the Constitutional Court of the Russian Federation, decisions of the Plenums of the Supreme Arbitration Court of the Russian Federation on issues of application of legislation, as well as decisions of the European Court of Human Rights is additional source arbitration procedural law. Judicial practice in these forms has not only law enforcement, but also special law-forming significance, i.e., the significance of the source of legal regulation. This follows not only from the legal content of these forms of judicial practice, but primarily from their legislative consolidation as such.

According to the Federal Constitutional Law “On the Constitutional Court of the Russian Federation” Constitutional Court of the Russian Federation checks the norms of laws for their compliance with the Constitution, carrying out a constitutional interpretation of the norms of the laws being checked. Acts or individual provisions thereof recognized as unconstitutional shall lose force; International treaties of the Russian Federation that are recognized as inconsistent with the Constitution of the Russian Federation and have not entered into force are not subject to entry into force or application. Decisions of courts and other bodies based on acts recognized as unconstitutional are not subject to execution and must be reviewed in cases established by federal law (Part 3 of Article 79).

The legal force of decisions of the Constitutional Court of the Russian Federation is characterized by the fact that they are binding throughout the Russian Federation for all representative, executive and judicial bodies of state power, local governments, enterprises, institutions, organizations, citizens and their associations (Article 6).

The interpretation of the Constitution of the Russian Federation, given by the Constitutional Court of the Russian Federation, is official and binding for all representative, executive and judicial bodies of state power, local governments, enterprises, institutions, organizations, officials, citizens and their associations (Article 106).

The legal position of the Constitutional Court of the Russian Federation, which serves as a basis for the decisions taken, is also of precedent significance, since the Constitutional Court of the Russian Federation resolves exclusively questions of law and, accordingly, gives a constitutional and legal analysis of the norm under review, while developing certain legal approaches (legal positions) when assessing the norm of law for its compliance or non-compliance with the Constitution of the Russian Federation. Thus, the decisions of the Constitutional Court of the Russian Federation (if they recognize the norms of laws as unconstitutional) and the rulings of the Constitutional Court of the Russian Federation (if they even refuse to consider the applicant’s appeal on the merits, but contain a constitutional interpretation of the norms of current laws) and the legal positions contained in them are mandatory in law enforcement activities for all government bodies and officials are of a general, normative nature, since a norm of law recognized as unconstitutional loses force, and the precedent of constitutional interpretation of the norms of existing laws is mandatory for the courts, since in law enforcement activities the constitutional interpretation of the norms to be applied must be ensured and the courts do not has the right to attach to the considered norms a meaning that diverges from their constitutional and legal meaning (Articles 74, 79).

Decisions of the Constitutional Court of the Russian Federation are an additional source of law in relation to the Constitution of the Russian Federation, which is a normative act of direct action, due to the fact that their regulatory significance occurs only in the case when direct application of the norms of the Constitution of the Russian Federation is impossible due to the need to give interpretations of individual provisions of the Constitution of the Russian Federation or the need to check the contested norms of laws for their compliance with the Constitution of the Russian Federation and their constitutional interpretation. Accordingly, the acts of the Constitutional Court of the Russian Federation and the legal positions contained in them are derived from the norms of the Constitution of the Russian Federation.

According to the Federal Constitutional Law “On Arbitration Courts in the Russian Federation” resolutions of the Plenum of the Supreme Arbitration Court of the Russian Federation on issues of judicial practice are mandatory for arbitration courts (Article 16). These resolutions are adopted in order to clarify the current legislation, specify and detail the rules of law, fill gaps found in the law and eliminate contradictions, i.e., they are aimed at the correct application of the current law.

Resolutions of the Plenum of the Supreme Arbitration Court of the Russian Federation on the application of legislation are, therefore, an additional source of procedural law to the current law, since the legal provisions developed in them (rules of a legal nature) are derived from the existing norms of law and are aimed at their effective implementation. Arbitration courts can make reference to these decisions in the reasoning part of the decision in the same way as to laws and other regulatory legal acts (Part 2 of Article 13 of the Federal Constitutional Law “On Arbitration Courts in the Russian Federation”, Article 170 of the Arbitration Procedure Code of the Russian Federation).
It should be noted that information letters of the Presidium of the Supreme Arbitration Court of the Russian Federation on certain issues of judicial practice are not mandatory for courts, but are advisory in nature (Article 16 of the Federal Constitutional Law “On Arbitration Courts in the Russian Federation”), however, they are taken into account by arbitration courts, since decisions made without taking into account these recommendations are canceled by higher authorities.

Within the framework of international jurisprudence, judicial practice is of paramount importance European Court of Human Rights. By the Federal Law “On the Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols,” the Russian Federation declared that both the jurisdiction of the European Court of Human Rights and the decisions of this Court are binding on Russia.

At the same time, not only those decisions that were made against Russia (i.e., with its participation), but also decisions with the participation of other parties to the dispute are of binding importance. The entire practice of the European Court of Human Rights as a whole has precedent significance, since the decisions of the Court are standard-setting interpretations of the Convention.

4.Questions about consolidating the material

1. Expand the concept of a sign of a procedural legal relationship

2. Define the concept of AP stage

3. Name the mandatory stages of AP.

4. Expand the concept of optional stages

5.What methods of APP do you know?

6. Expand the concept of the imperative method of APP

7. Expand the concept of the dispositive method of APP

8.What is the multi-level system of AMS sources?

9. What sources of the AP system do you know?

10. Define international legal instruments

11. Define Federal laws and regulations

12.Explain the concept of judicial practice and precedents

Lecture topic 3

Principles of arbitration procedural law

Plan:

1. The concept of the principles of arbitration procedural law

2. Principles of arbitration procedural law

§ 1. Concept of principles of arbitration procedural law

Principles are understood as fundamental principles, initial legal ideas that determine the content of the norms of a branch of law, its purpose in the legal system. Legal principles are the legal basis on which the regulatory framework of the field of law as a whole is built.

Under principles arbitration procedural law refers to the general guidelines enshrined in the norms of arbitration procedural law, in the legislation on arbitration courts, the fundamental principles of a normative nature on the basis of which proceedings are carried out in arbitration courts, justice in the field of business and other economic activities.

By their legal nature, the principles of the arbitration process are rules of law that differ from ordinary rules in their more general, fundamental content. They regulate the most important aspects of the law enforcement activities of arbitration courts and the arbitration process.

The principles of arbitration procedural law are developing on the basis of the development of national law as a whole, primarily on the basis of the development of the principles enshrined in the Constitution of the Russian Federation, as well as under the influence of acts of international and European law, precedents of the European Court of Human Rights, which enshrine international principles justice.

§ 2. Principles of arbitration procedural law

Composition of principles of arbitration procedural law for mastering academic discipline shown in Figure 4 and can be mainly divided into two groups:

a) organizational principles, i.e., determining the organizational structure of arbitration courts;
b) functional principles, i.e., determining the procedural activities of the court and other participants in the process.

Scheme 4. Principles of arbitration procedural law.

Organizational

1. The principle of appointment of judges of arbitration courts to positions by the highest authorities. The Chairman, deputies and judges of the Supreme Arbitration Court of the Russian Federation are appointed to the position by the Federation Council. Chairmen, deputies, judges of district courts, courts of appeal and courts of constituent entities of the Russian Federation are appointed to positions by the President of the Russian Federation on the recommendation of the Chairman of the Supreme Arbitration Court of the Russian Federation, subject to the recommendation of the relevant qualification board of judges. The term of office is limited only by the age of 70 years, termination of powers is carried out by decision of the relevant qualification board of judges (Article 8 of the Federal Constitutional Law “On Arbitration Courts in the Russian Federation”, Article 11 of the Law of the Russian Federation “On the Status of Judges in the Russian Federation”).

2. The principle of combining individual and collegial composition of the court when considering cases(Article 17 of the Arbitration Procedure Code of the Russian Federation). Cases in the first instance are considered by judges alone, with the exception of cases of challenging regulatory legal acts, as well as cases of insolvency (bankruptcy), which are considered collectively. Cases within the jurisdiction of the Supreme Arbitration Court of the Russian Federation and cases sent to the arbitration court of first instance for a new trial with an indication of a collegial hearing of the case are considered collectively.

In a collegial hearing of a case, the court must include three judges or a judge and two arbitration assessors.
The arbitration court of first instance, consisting of a judge and two arbitration assessors, considers economic disputes and other cases arising from civil and other legal relations if any of the parties submits a request to consider the case with the participation of arbitration assessors. However, the following cases are not considered with the participation of arbitration assessors: those related to the jurisdiction of the Supreme Arbitration Court of the Russian Federation; cases of challenging regulatory legal acts, insolvency (bankruptcy) cases; cases sent to the arbitration court of first instance for a new trial with an indication of a collegial trial; cases arising from administrative and other public legal relations, and cases of special proceedings.

A request to consider a case with the participation of arbitration assessors must be submitted by a party no later than one month before the start of the trial (Part 2 of Article 19 of the Arbitration Procedure Code of the Russian Federation). If the request to consider the case with the participation of arbitration assessors is granted, each party selects a candidate arbitration assessor to consider the case from the list of arbitration assessors approved in the prescribed manner for a given arbitration court, and informs the arbitration court about the selected candidate no later than 10 days before the start of the trial .

If a party does not declare the selected candidate of the arbitration assessor within the specified period, the arbitration court has the right to independently determine such a candidate (Part 3 of Article 10 of the Arbitration Procedure Code of the Russian Federation). When considering a case, arbitration assessors enjoy the rights and bear the responsibilities of a judge (Part 5, Article 19 of the Arbitration Procedure Code of the Russian Federation), however, the arbitration assessor cannot preside over the court hearing (Part 7, Article 19 of the Arbitration Procedure Code of the Russian Federation).

All cases considered in the courts of appeal and cassation, as well as by way of supervision, are considered collegially by three or another odd number of judges (Part 4 of Article 17 of the Arbitration Procedure Code of the Russian Federation), i.e. by a collegial composition of professional judges.

Issues arising during the consideration of cases by an arbitration court in a collegial composition are resolved by judges by a majority vote. None of the judges has the right to abstain from voting. The chairperson of the meeting votes last. A judge who does not agree with the decision of the majority is obliged to sign this decision and has the right to express in writing his dissenting opinion, which is attached to the case, but is not announced. Persons participating in the case are not informed of the judge's dissenting opinion.
The trial of the case is carried out with the same composition of the court. If a judge or one of the judges is replaced during a collegial hearing of a case, the trial of the case must be carried out from the very beginning (Part 2 of Article 18 of the Arbitration Procedure Code of the Russian Federation).
3. The principle of independence of judges of arbitration courts(Article 5 of the Arbitration Procedure Code of the Russian Federation). This principle means that arbitration court judges are independent and subject only to the Constitution of the Russian Federation and federal law. Any outside influence on judges, interference in their activities by any state bodies, local governments, other bodies, organizations, officials or citizens is prohibited and entails liability established by law.
Guarantees of independence of judges of arbitration courts are established by the Constitution of the Russian Federation and federal law (Part 3 of Article 5 of the Arbitration Procedure Code of the Russian Federation).
The Law of the Russian Federation “On the Status of Judges in the Russian Federation” enshrines provisions aimed at ensuring the independence of judges on the basis of political, economic and legal guarantees (Articles 9-11 of the Law).

Political guarantees of the independence of judges include provisions that prohibit judges of arbitration courts from being representatives of any state or other organizations, from being members of political parties, movements, associations, from representing the interests of officials, nations, social groups. The decisions of the arbitral tribunal must be free from considerations of practical expediency and the political inclination of the judges.

The economic guarantee of the independence of judges includes provisions enshrined in the relevant regulatory legal acts, which provide judges of arbitration courts with material and social security at the expense of the state.
Legal guarantees include, in particular, the following provisions:

securing the irremovability of judges;

a judge of an arbitration court is not obliged to give any explanations on the merits of cases considered or pending before him;

internal affairs bodies are obliged to take measures to ensure the safety of the arbitration court judge, his family members, and the safety of his property;

the personality, home, transport and correspondence of the judge are inviolable.

4. The principle of equality of all before the law and the court(Article 7 of the Arbitration Procedure Code of the Russian Federation). This principle means that justice in arbitration courts is carried out on the basis of equality before the law and the court, regardless of gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership in public associations and other circumstances , equality of all organizations before the law and the court, regardless of their organizational and legal form, form of ownership, subordination, location and other circumstances. The arbitration court is obliged to provide equal judicial protection of the rights and legitimate interests of all persons participating in the case.
5. The principle of publicity of judicial proceedings(Article 11 of the Arbitration Procedure Code of the Russian Federation). In the arbitration process, cases are heard in open court. Hearing a case in closed session is permitted in cases provided for by the Federal Law “On State Secrets”, as well as when the court satisfies the petition of a person participating in the case, citing the need to preserve commercial, official, or other secrets protected by law, and in other cases provided for by federal law. Judicial acts of the arbitration court are announced publicly.
6. National language principle. According to Art. 12 of the Arbitration Procedure Code of the Russian Federation, legal proceedings in the arbitration court are conducted in Russian - the state language of the Russian Federation. However, persons participating in the case who do not speak Russian are guaranteed the right to fully familiarize themselves with the case materials, participate in judicial actions through an interpreter, and the right to speak in court in their native language. Court documents are served on the persons participating in the case in Russian, and, at their request, translated into the language they used in court actions. Functional principles of the arbitration process.

1. Principle of legality(Article 6 of the Arbitration Procedure Code of the Russian Federation). Legality when considering cases by an arbitration court is ensured by the correct application of federal laws and other regulatory legal acts, as well as by the observance by judges of arbitration courts of the legal norms established by the legislation on legal proceedings in arbitration courts. Legality in essence means full compliance of all judicial acts of arbitration courts, procedural actions of the court and participants in the arbitration process with the current norms of substantive and procedural law. In accordance with Art. 13 of the Arbitration Procedure Code of the Russian Federation, arbitration courts resolve disputes on the basis of the Constitution of the Russian Federation, federal laws, decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation, regulatory legal acts of federal executive authorities (departmental regulatory legal acts), regulatory legal acts of constituent entities of the Russian Federation and international treaties of the Russian Federation.

The arbitration court, having established during the consideration of the case that the acts of a state body, local government body, or other body do not comply with the law, makes a decision in accordance with the law. If, when considering a specific case, the arbitration court comes to the conclusion that the law applied or to be applied in the case under consideration does not comply with the Constitution of Russia, it applies to the Constitutional Court of the Russian Federation with a request to verify the constitutionality of this law.
If an international treaty of the Russian Federation establishes rules other than those provided by law, then the rules of the international treaty apply.

In the absence of rules of law regulating a disputed relationship, the arbitration court applies rules of law regulating similar relationships (analogy of law), and in the absence of such rules, resolves the dispute based on the general principles and meaning of laws (analogy of law).

In accordance with the law or international treaty of the Russian Federation, the arbitration court applies the rules of law of other states, as well as business customs.

According to Part 4 of Art. 170 of the Arbitration Procedure Code of the Russian Federation, in support of the decision, the arbitration court may also refer to the decisions of the Plenum of the Supreme Arbitration Court of the Russian Federation on issues of judicial practice.

2. The principle of carrying out legal proceedings within a reasonable time(Article 6.1 of the Arbitration Procedure Code of the Russian Federation). The essence of this principle is that legal proceedings in arbitration courts and the execution of a judicial act must be carried out within a reasonable time. The deadline for the proceedings of cases is established by the Arbitration Procedure Code of the Russian Federation, while procedural legislation even provides for the possibility of extending the deadlines, but in any case, proceedings in arbitration courts must be carried out within a reasonable time.
When determining a reasonable period of legal proceedings in arbitration courts, which includes the period from the date of receipt of the statement of claim or statement in the court of first instance to the day of the adoption of the last judicial act in the case, such circumstances as the legal and factual complexity of the case, the behavior of the participants in the arbitration process, are taken into account. the sufficiency and effectiveness of the court’s actions taken for the timely consideration of the case, as well as the overall duration of the trial. Circumstances related to the organization of the work of the court, as well as the consideration of the case by various authorities cannot be taken into account as grounds for exceeding the reasonable time limits for the legal proceedings in the case.
If it's long time is not considered and the judicial process is delayed, interested parties have the right to apply to the chairman of the arbitration court with an application to expedite the consideration of the case, which is considered by him within five days by issuing a ruling, which may set a date for holding a court hearing in the case and (or) may indicate actions which should be done to speed up the consideration of the case.

The implementation of this principle in the arbitration process allows us to avoid unreasonably delaying the consideration of the case by all judicial authorities of the arbitration proceedings and the execution of the judicial act, since effective judicial protection and restoration of violated rights are possible only if both the trial itself and the execution of the court decision are carried out within a reasonable time.

3. The principle of dispositivity. This principle means that persons participating in the case have the opportunity to dispose of their substantive and procedural rights. In Article 1, paragraph 1 of Art. 9 of the Civil Code of the Russian Federation stipulates that citizens and legal entities acquire and exercise civil rights of their own will and in their own interest and exercise them at their own discretion.

In accordance with the principle of discretion, persons participating in a case exercise procedural rights at their own discretion in order to judicially protect their violated or disputed rights. Thus, by agreement of the parties, a dispute arising from civil legal relations, before the court of first instance makes a decision, can be referred for resolution not to an arbitration court, but to an arbitration court (Part 6 of Article 4 of the Arbitration Procedure Code of the Russian Federation).

The plaintiff has the right to declare security for the claim, or may not do so; the plaintiff has the right to combine several related claims in one claim, or may file several statements of claim for each claim separately. The defendant has the right to submit a response to the statement of claim or, before a decision is made on the case, to file a counterclaim with the plaintiff.

The plaintiff has the right, in accordance with Art. 49 of the Arbitration Procedure Code of the Russian Federation, before making a decision on the case, change the grounds or subject of the claim, declare a waiver of the claim. The defendant has the right to admit the claim in whole or in part. The parties can end the dispute by concluding a settlement agreement (Part 2 of Article 138 of the Arbitration Procedure Code of the Russian Federation).

However, the freedom of administrative actions of the parties has some restrictions allowed in the interests of the principle of legality. For example, the arbitration court does not accept a waiver of a claim, a reduction in the amount of claims, or approve a settlement agreement if these procedural actions contradict laws, other regulations or violate the rights and legitimate interests of other persons (Part 3 of Article 139, Part 5 of Art. 49 Arbitration Procedure Code of the Russian Federation).

4. The adversarial principle(Article 9 of the Arbitration Procedure Code of the Russian Federation). The content of this principle is that the parties and other persons involved in the case, if they wish to achieve a favorable decision in their favor, must inform the arbitration court of all legal facts significant for the consideration of the case and provide relevant evidence confirming or refuting these facts, as well as perform other procedural actions provided for by law in order to convincingly convince the arbitration court that you are right.

Persons participating in the case have the right to know about each other’s arguments before the start of the trial. Each person participating in the case is guaranteed the right to present evidence to the court and the other party in the case, and is provided with the right to submit petitions, express their arguments and considerations, and give explanations.

Each person participating in the case must prove the circumstances to which he refers as the basis for his claims and objections. Evidence is presented by persons participating in the case (part 1 of article 65, part 1 of article 66 of the Arbitration Procedure Code of the Russian Federation).

According to Art. 41 of the Arbitration Procedure Code of the Russian Federation, persons participating in the case have the right to familiarize themselves with the case materials, make extracts from it, make copies, file challenges, present evidence, ask questions, file motions, know about motions filed by other persons participating in the case, give explanations arbitration court and use other rights that ensure adversarial proceedings in the process aimed at establishing the factual circumstances of the case.
The entire course of the court hearing has an adversarial form, while the arbitration court manages the process, assisting in the implementation of the rights of the persons participating in the case and their performance of procedural duties.

5. The principle of direct trial(Article 10 of the Arbitration Procedure Code of the Russian Federation). By virtue of this principle, the arbitration court, when considering a case, is obliged to directly examine all the evidence in the case. Evidence that was not the subject of examination at the court hearing cannot be used by the arbitration court as the basis for the judicial act adopted. A judicial act can only be substantiated by evidence that is directly examined in court during the trial of the case. Copies of documents and extracts from them must be properly certified and, if necessary, verified with original documents. Some circumstances, according to the law, can only be confirmed by original documents.

The principle of immediacy is closely related to the requirement established by procedural legislation for a constant composition of judges considering a particular case. If a judge or one of the judges is replaced during a collegial hearing of a case, the trial of the case must be carried out from the very beginning (Part 2 of Article 18 of the Arbitration Procedure Code of the Russian Federation). A break in a court hearing is possible for a period of no more than five days (Article 163 of the Arbitration Procedure Code of the Russian Federation).

3. Questions about consolidating the material

1. Give the concept of a system of principles of arbitration procedural law.

2. Expand the concept of a system of principles

3. Separate the principles by qualification

4. Give the concept of the level of regulatory reinforcement

5. Give the concept of a source of normative reinforcement

6. What role do principles have in the administration of justice?

7. Division of principles by scope

8. Give the concept of the principle of publicity

9. What is the principle of competition?

10. Disclose the rights of the litigants

11. What is meant by the principle of dispositivity

12. Expand the main element of dispositivity as a subject of dispute.

Lecture topic 4.

Jurisdiction and cognizance of cases before the arbitration court

Plan:

1. Jurisdiction of cases to the arbitration court, main criteria and types

2. Jurisdiction of cases by arbitration courts

4.Practical tasks

§ 1. Jurisdiction of cases to the arbitration court, main criteria and types

Procedural rules on jurisdiction establish which disputes are subject to consideration in the arbitration court.

Jurisdiction defines a mechanism that allows, through the characteristics of legal disputes and other cases, to differentiate and distribute cases between various bodies, including between arbitration courts and courts of general jurisdiction.

The general rules on the jurisdiction of cases by the arbitration court are established by Art. 27 of the Arbitration Procedure Code of the Russian Federation, according to which the arbitration court has jurisdiction over cases of economic disputes and other cases related to the implementation of entrepreneurial and other economic activities.

Main criteria, which determine the jurisdiction of cases to the arbitration court, unless otherwise established by law or the Arbitration Procedure Code of the Russian Federation, are collectively:

A) the nature of the disputed legal relationship;

b) the subject composition of the parties to the dispute. is determined by the essence of the relationship between the disputing parties, and subject composition parties to the dispute is associated with the presence of a certain legal status.

However economic content of the dispute, characterizing a controversial legal relationship can act in a number of cases as the main criterion of jurisdiction.

Thus, according to paragraph 5 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 9, 2002 No. 11 “On some issues related to the implementation of the Arbitration Procedural Code of the Russian Federation,” cases on disputes about the creation, reorganization and liquidation, as well as on disputes refusal of state registration, evasion of state registration of other organizations (non-profit organizations, including public associations and organizations, political parties, public foundations, religious associations, etc.) that do not have profit as the main purpose of their activities are not subject to consideration by arbitration courts.

Subjects disputes within the jurisdiction of the arbitration court, in accordance with Part 2 of Art. 27 Arbitration Procedure Code of the Russian Federation can be:

a) organizations that are legal entities;

b) citizens - individual entrepreneurs;

c) the Russian Federation, constituent entities of the Russian Federation, municipalities, state bodies, local government bodies, other bodies, officials;

d) entities that do not have the status of a legal entity;

e) citizens who do not have the status of an individual entrepreneur;

e) Russian organizations, citizens of the Russian Federation, as well as foreign organizations, international organizations, foreign citizens, stateless persons engaged in entrepreneurial activities, organizations with foreign investments, unless otherwise provided by an international treaty of the Russian Federation.
The nature of the disputed legal relationship as a criterion of jurisdiction is manifested in the fact that, according to the Arbitration Procedure Code of the Russian Federation, the arbitration court administers justice by resolving economic disputes and other cases within its competence by the Arbitration Procedure Code of the Russian Federation and other federal laws.

Economic disputes resolved by the arbitration court include two groups of disputes:

1) economic disputes arising from civil legal relations (Article 28 of the Arbitration Procedure Code of the Russian Federation);

2) economic disputes arising from administrative and other public legal relations (Article 29 of the Arbitration Procedure Code of the Russian Federation).

1st group economic disputes are considered in the procedure of claim proceedings, which, in particular, include disputes:

on recognition of rights;

on restoring the situation that existed before the violation of the right and suppressing actions that violate the right or create a threat of its violation;

about disagreements under the contract;

about changes or termination of contracts;

about non-fulfillment or improper fulfillment of obligations;

on the claim by the owner or other legal owner of property from someone else’s illegal possession;

on declaring a transaction invalid and applying the consequences of its invalidity, applying the consequences of invalidity of a void transaction;

on the award of duties in kind;

on compensation for losses and others.

2nd group economic disputes are considered in administrative proceedings, which, in particular, include disputes:
on challenging regulatory legal acts affecting the rights and legitimate interests of the applicant in the field of business and other economic activities, if federal law places their consideration within the competence of the arbitration court;
on challenging non-normative legal acts of state authorities of the Russian Federation, state authorities of constituent entities of the Russian Federation, local government bodies, decisions and actions (inaction) of state bodies, local government bodies, other bodies and officials affecting the rights and legitimate interests of the applicant in the field of business and other economic activities;

on administrative offenses, if federal law places their consideration within the competence of the arbitration court;
on the collection of mandatory payments and sanctions from organizations and citizens engaged in business and other economic activities, unless federal law provides for a different procedure for their collection;

other cases arising from administrative and other public legal relations, if federal law places their consideration within the competence of the arbitration court.

As a special procedure, arbitration courts consider cases arising from civil legal relations - on the establishment of facts that have legal significance for the emergence, change and termination of the rights of organizations and citizens in the field of business and other economic activities (Article 30 of the Arbitration Procedure Code of the Russian Federation).

The above categories of disputes relate to general jurisdiction cases assigned to arbitration courts, since when deciding on the assignment of cases to the jurisdiction of arbitration courts, both criteria (the nature of the controversial legal relationship and the subject composition of the parties to the dispute) are taken into account together.

TO special jurisdiction cases to arbitration courts, in the consideration of which the subject composition does not matter, by force of law the disputes specified in Part 1 of Art. 33 Arbitration Procedure Code of the Russian Federation:

a) about insolvency (bankruptcy);

b) cases of corporate disputes;

c) in disputes regarding refusal of state registration, evasion of state registration of legal entities and individual entrepreneurs;

d) on disputes arising from the activities of depositories related to the recording of rights to shares and other securities and the implementation of other rights and obligations provided for by federal law;

e) on disputes arising from the activities of state corporations and related to their legal status, the procedure for managing them, their creation, reorganization, liquidation, organization and powers of their bodies, the responsibility of persons included in their bodies;

f) on the protection of business reputation in the field of entrepreneurial and other economic activities;

g) other matters arising during the implementation of entrepreneurial and other economic activities, in cases provided for by federal law.

These cases are considered by the arbitration court, regardless of whether the parties to the legal relations from which the dispute or claim arose are legal entities, individual entrepreneurs or other organizations and citizens.

Despite the fact that production and consumer cooperatives are legal entities, cases of disputes between these cooperatives and their members fall under the jurisdiction of courts of general jurisdiction, since these cooperatives are not business partnerships or societies (clause 5 of the Plenum resolution Supreme Court RF dated January 20, 2003 No. 2 “On some issues that arose in connection with the adoption and entry into force of the Civil Procedure Code of the Russian Federation”).
An application accepted by the arbitration court for its proceedings in compliance with the rules of jurisdiction must be considered by it on its merits, even if in the future a citizen who does not have the status of an individual entrepreneur is brought to participate in the case as a third party who does not make independent claims regarding the subject of the dispute (Part 4 of Article 27 of the Arbitration Procedure Code of the Russian Federation).

If several related claims are combined, some of which are within the jurisdiction of a court of general jurisdiction, others of an arbitration court, all claims are subject to consideration in a court of general jurisdiction (clause 1 of the joint resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated August 18, 1992 No. 12/12 “On some issues of jurisdiction of courts and arbitration courts”).

If the case is not within the jurisdiction of the arbitration court, the proceedings are subject to termination (clause 1, part 1, article 150 of the Arbitration Procedure Code of the Russian Federation).
Proceedings in the case are also subject to termination on the grounds of lack of jurisdiction if, during the consideration of the dispute, it becomes clear that it is necessary to involve by force of law (Part 2 of Article 46 of the Arbitration Procedure Code of the Russian Federation) a citizen who is not an individual entrepreneur as an appropriate defendant or a second defendant.

By agreement of the parties, a dispute arising from civil legal relations and within the jurisdiction of the arbitration court, before the court of first instance adopts a judicial act on the merits, can be referred to the arbitration court (Part 6 of Article 4 of the Arbitration Procedure Code of the Russian Federation).
This means that a dispute arising from administrative or other public legal relations cannot be submitted to an arbitration court.

§ 2. Jurisdiction of cases by arbitration courts

Jurisdiction– an institution regulating the relevance of cases subordinate to arbitration courts to the jurisdiction of specific courts of a given judicial system for consideration at first instance.

Jurisdiction as an institution of procedural law makes it possible to distinguish cases within the jurisdiction of arbitration courts between various parts of the arbitration court system.

In the arbitration process, there are mainly two types of jurisdiction - generic And territorial.
Ancestral Jurisdiction allows, depending on the category of dispute, to differentiate the competence between arbitration courts different levels. The criterion for generic jurisdiction is the subject of the dispute. Basically, all disputes within the jurisdiction of arbitration courts are considered in the first instance by arbitration courts of the constituent entities of the Russian Federation (Part 1 of Article 34 of the Arbitration Procedure Code of the Russian Federation), with the exception of those cases that are directly assigned to the jurisdiction of the Supreme Arbitration Court of the Russian Federation and the federal arbitration courts of the districts acting in this case as courts of first instance.

In accordance with Part 2 of Art. 34 of the Arbitration Procedure Code of the Russian Federation, as a court of first instance, the Supreme Arbitration Court of the Russian Federation considers cases:
a) on challenging regulatory legal acts of the President of the Russian Federation, the Government of the Russian Federation, federal executive authorities affecting rights and legitimate interests in the field of business and other economic activities;
b) cases of challenging non-normative legal acts of the President of the Russian Federation, the Federation Council and State Duma Federal Assembly of the Russian Federation, Government of the Russian Federation, Government Commission for Control of Foreign Investments in the Russian Federation that do not comply with the law and affect rights and legitimate interests in the field of business and other economic activities;
c) economic disputes between the Russian Federation and the constituent entities of the Russian Federation and economic disputes between the constituent entities of the Russian Federation.

According to Part 3 of Art. 34 of the Arbitration Procedure Code of the Russian Federation, federal arbitration courts of districts consider, as a court of first instance, applications for the award of compensation for violation of the right to legal proceedings within a reasonable time or the right to execution of a judicial act within a reasonable time.

Territorial Jurisdiction is the basis for delimiting the competence of arbitration courts of the same level, depending on the place of consideration of the dispute.

Territorial jurisdiction, according to the Arbitration Procedure Code of the Russian Federation, can be:

a) general;
b) alternative;
c) contractual;
d) exceptional.
According to the rule general jurisdiction, the claim is brought to the arbitration court of the constituent entity of the Russian Federation at the location or place of residence of the defendant (Article 35 of the Arbitration Procedure Code of the Russian Federation). In this case, the location of the organization or institution is the place of its state registration as a legal entity, as indicated in the certificate of state registration and constituent documents. The rule of general jurisdiction is applied when no other rules for determining jurisdiction are established.
Article 36 of the Arbitration Procedure Code of the Russian Federation establishes alternative jurisdiction, which means that the plaintiff is given the opportunity to choose, at his own discretion, the arbitration court to which he intends to apply for the protection of his rights.

Thus, a claim against a defendant whose location is unknown may be brought to the arbitration court at the location of his property or at his last known location or place of residence in the Russian Federation.

A claim against defendants located on the territory of different constituent entities of the Russian Federation is filed in an arbitration court at the choice of the plaintiff at the location or place of residence of one of the defendants.

A claim against a defendant located or residing in the territory of a foreign state may be brought to the arbitration court at the location of the defendant’s property on the territory of the Russian Federation.
A claim arising from an agreement that specifies the place of its execution may also be brought to the arbitration court at the place of execution of the agreement.

A claim against a legal entity arising from the activities of its branch or representative office located outside the location of the legal entity may be brought to the arbitration court at the location of the legal entity or its branch or representative office.
Claims for compensation for losses caused by a collision of ships, recovery of remuneration for assistance and rescue at sea may be brought to the arbitration court at the location of the defendant’s ship or the home port of the defendant’s ship, or at the place where the losses were caused.

Rules about negotiable jurisdiction allows the parties, by agreement, to change general and alternative jurisdiction (Article 37 of the Arbitration Procedure Code of the Russian Federation). However, the law does not allow a change in exclusive jurisdiction, as well as the jurisdiction of the Supreme Arbitration Court of the Russian Federation.
Exceptional jurisdiction excludes the possibility of the plaintiff choosing jurisdiction of his own free will or desire or by agreement of the parties - this is established by law for the consideration of a certain category of disputes. The basis for determining exclusive jurisdiction is the subject of the claim, the specifics of which determine the place of consideration of the dispute.
So, according to Art. 38 of the Arbitration Procedure Code of the Russian Federation, claims for rights to real estate are presented to the arbitration court at the location of this property.

Claims for rights to real estate include, in particular: claims for reclaiming property from someone else’s illegal possession, for eliminating violations of rights not related to deprivation of possession, for establishing an easement, for dividing property in common ownership, for recognizing rights, setting boundaries land plot, on the release of property from seizure. If real estate, about the rights to which a dispute has arisen between the Russian Federation and the constituent entities of the Russian Federation, between the constituent entities of the Russian Federation, is assigned to other persons by property law or is in their actual possession, the dispute over the rights to such property is subject to consideration by the arbitration court of the constituent entity of the Russian Federation (paragraphs 1, 2 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 12, 2006 No. 54 “On some issues of jurisdiction of cases on claims for rights to real estate”).

A claim in a dispute in which one of the parties is an arbitration court is filed with the Arbitration Court of the Moscow Region, except if one of the parties to the dispute is an arbitration court located on the territory of the Moscow Judicial District. In this case, the claim is brought to the Arbitration Court of the Tver Region.
A statement of claim or statement regarding a corporate dispute is filed with the arbitration court at the location of the legal entity.
Claims for rights to ships and aircraft, inland navigation vessels, and space objects are filed with the arbitration court at the place of their state registration.
A claim against the carrier arising from a contract of carriage, including if the carrier is one of the defendants, is filed with the arbitration court at the location of the carrier.
An application to declare a debtor bankrupt is submitted to the arbitration court at the location of the debtor.
An application for the establishment of facts of legal significance is submitted to the arbitration court at the location or place of residence of the applicant, with the exception of an application for the establishment of facts of legal significance for the emergence, change or termination of rights to real estate, which is filed with the court at the location of the real estate property.
An application to challenge decisions and actions (inaction) of a bailiff is submitted to the arbitration court at the location of the bailiff.
Applications regarding disputes between Russian organizations operating or having property on the territory of a foreign state are submitted to the arbitration court at the place of state registration on the territory of the Russian Federation of the defendant organization.
Applications regarding disputes between Russian organizations operating or having property on the territory of a foreign state and not having state registration on the territory of the Russian Federation are submitted to the Arbitration Court of the Moscow Region.
Applications for challenging the arbitration court decision and for extradition writ of execution for forced execution of an arbitration court decision are submitted to the arbitration court of the constituent entity of the Russian Federation on the territory of which the arbitration court decision was made.
An application for recognition and enforcement of decisions of foreign courts and foreign arbitration awards is submitted by the party in whose favor the decision of the foreign court was made to the arbitration court of the constituent entity of the Russian Federation at the location or place of residence of the debtor or, if the location or place of residence of the debtor is unknown, at location of the debtor's property.
A counterclaim, regardless of its jurisdiction, is filed with the arbitration court at the place where the original claim was considered.
A case accepted by an arbitration court for its proceedings in compliance with the rules of jurisdiction must be considered by it on its merits, at least in the future it becomes subject to the jurisdiction of another arbitration court (Article 39 of the Arbitration Procedure Code of the Russian Federation).
The arbitration court transfers the case to another arbitration court of the same level if:
the defendant, whose location or place of residence was not previously known, will file a petition to transfer the case to the arbitration court at his location or place of residence;
both parties filed a motion to consider the case at the location of the majority of the evidence;
when considering the case in court, it turned out that it was accepted for proceedings in violation of the rules of jurisdiction;
when considering the case in court, it was established that one of the parties to the dispute is the same arbitration court;
after the recusal of one or more judges or for other reasons, it is impossible to form the composition of the court to consider this case in other cases.
A ruling is made on transferring the case to another arbitration court, which is not subject to appeal.
A case sent from one arbitration court to another must be accepted for consideration by the court to which it was sent. Disputes about jurisdiction between arbitration courts in the Russian Federation are not allowed.
It should be noted that the determination on the basis of which a case is transferred for consideration from one arbitration court to another must indicate the grounds (circumstances) on which the case cannot be considered in this arbitration court.
Diagram 5 summarizes data on the jurisdiction and jurisdiction of cases before the arbitration court.

Diagram 5. Jurisdiction and cognizance of cases before the arbitration court.

3. Questions about consolidating the material

1. The concept of jurisdiction. Criteria for determining departmental authority.

2. Types of jurisdiction.

3. Jurisdiction of cases to arbitration courts. The difference between the institution of jurisdiction and jurisdiction.

4. Types of jurisdiction.

5. The procedure for transferring cases from one court to another.

4. Practical tasks

Task No. 1

Determine the jurisdiction of the dispute:

- requirement of the shareholder of Iskra OJSC Petrov I.I. on the recognition of the agreement for the sale and purchase of shares to his neighbor Byvaloy S.S. not valid;

Requirement of entrepreneur S.S. Gorbunkov on the protection of honor and business reputation to the newspaper “Novosti”;

Requirement of Neznaykina A.A. on declaring OJSC “Tourist” insolvent;

Request by Rodnik LLC to declare the debtor Istochnik OJSC insolvent;

Request from the tax authority to collect arrears of income tax from individual entrepreneur G.D. Vasiliev

Problem No. 2

Citizen Vasechkin A.A. filed a claim with the Arbitration Court of the Moscow Region against OJSC Vacation for the recovery of 300,000 rubles of debt under a simple partnership agreement “On the conditions for the use of industrial property objects: a trademark and a utility model for thermal insulation material,” and 120,000 rubles of interest for the use of other people’s funds.

Is this claim subject to arbitration?

What cases fall within the special jurisdiction of the arbitration court?

Problem No. 3

The consumer society "Zemlyane" (legal entity) filed a claim in the arbitration court against the Union of Consumer Societies (legal entity) for the return of a share contribution in the amount of 1,000,000 rubles in connection with the withdrawal of shareholders.

By decision of the court of first instance, the proceedings in the case were terminated. When making a ruling to terminate proceedings in the case, the court, guided by clause 4, part 1, art. 33 Arbitration Procedure Code of the Russian Federation and clause 5

Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 20, 2003 No. 2 “On some issues that arose in connection with the adoption and enforcement of the Civil Procedure Code of the Russian Federation”, came to the conclusion that this dispute is within the jurisdiction of a court of general jurisdiction.

Are the court's actions lawful? Name the criteria for determining the jurisdiction of disputes to the arbitration court.

Indicate the procedure for determining the jurisdiction of cases in disputes between production workers?

Lecture topic 5.

Participants in the arbitration process

Plan:

2. Persons participating in the case, their procedural rights and obligations

3. Representation in arbitration court

4. Questions about consolidating the material

5.Practical tasks

1. The concept of participants in the arbitration process

Participants in the arbitration process– these are those subjects whose actions can contribute to the correct and timely consideration of a dispute to protect the rights and legally protected interests of subjects of an economic dispute within the jurisdiction of the arbitration court.

All participants in the arbitration process can be divided into three groups (Figure 6):

1) arbitration courts (judges, arbitration assessors);

2) persons participating in the case;

3) persons contributing to the administration of justice and the normal course of dispute resolution.

Each participant in the arbitration process has certain procedural rights and bears procedural responsibilities in accordance with the purpose of his participation in the process and corresponding to his procedural position.
The arbitration court and the parties (plaintiff and defendant) are obligatory participants in the process; without them, in principle, the process of a specific dispute is impossible. The participation of other persons is not always necessary, and their composition and number are dictated based on the specific circumstances of each case considered by the arbitration court.

The legal status of the arbitration court is characterized by its leading role in the process; its actions are aimed at promoting, through legal means, compliance with the rule of law in resolving disputes, at realizing the rights and fulfilling the procedural duties of other participants in the process.

At the same time, the law provides for the possibility of challenging a judge and an arbitration assessor.

So, according to Art. 21 of the Arbitration Procedure Code of the Russian Federation, a judge cannot participate in the consideration of a case and is subject to recusal if he:
1) during the previous consideration of this case, he participated in it as a judge and his repeated participation in the consideration of the case in accordance with the requirements of the Arbitration Procedure Code of the Russian Federation is unacceptable;

Diagram 6. Participants in the arbitration process.

2) during the previous consideration of this case, participated in it as a prosecutor, assistant judge, court secretary, representative, expert, translator or witness;

3) during the previous consideration of this case, participated in it as a judge of a foreign court, arbitration court or arbitration court;
4) is a relative of a person participating in the case or his representative;

5) is personally, directly or indirectly interested in the outcome of the case or there are other circumstances that may raise doubts about his impartiality;

6) is or was previously in official or other dependence on a person participating in the case or his representative;
7) made public statements or gave an assessment on the merits of the case under consideration.

The composition of the arbitration court cannot include persons who are related to each other.
An arbitration assessor is also subject to challenge on the grounds provided for the challenge of a judge.
If these and other grounds provided for by the Arbitration Procedure Code of the Russian Federation exist, the judge or arbitration assessor must recuse himself. In addition, the right to challenge a judge belongs to the persons participating in the case. The challenge must be motivated and declared before the hearing of the case in court. When the grounds for challenge become known after the start of the consideration of the case, the judge may be challenged during the consideration of the case (Article 24 of the Arbitration Procedure Code of the Russian Federation).

2. Persons participating in the case, their procedural rights and obligations

Persons involved in the case, according to Art. 40 Arbitration Procedure Code of the Russian Federation are:

a) parties;
b) applicants and interested parties - in cases of special proceedings, in cases of insolvency (bankruptcy) and in other cases provided for by the Arbitration Procedure Code of the Russian Federation;

c) third parties;

d) prosecutor, state bodies, local government bodies, other bodies and organizations, citizens who applied to the arbitration court in cases provided for by the Arbitration Procedure Code of the Russian Federation.

Persons involved in the case they have a right get acquainted with the case materials, make extracts from them, make copies; challenge; present evidence and become familiar with evidence presented by others before the start of the trial; participate in the examination of evidence; ask questions to other participants in the process, submit motions, make statements, give explanations to the court, present your arguments on all issues that arise; get acquainted with the requests of other persons; object to the requests and arguments of other persons; know about the judicial acts adopted in this case and receive copies of them; appeal court decisions; use other procedural rights provided by the Arbitration Procedure Code of the Russian Federation.
Persons participating in the case must conscientiously use their procedural rights; abuse of procedural rights entails adverse consequences for them, provided for in Parts 1 and 2 of Art. 41 Arbitration Procedure Code of the Russian Federation.
Persons participating in the case bear procedural duties, assigned to them by the Arbitration Procedure Code of the Russian Federation, other federal laws or an arbitration court. Failure to fulfill procedural duties entails the consequences provided for in Part 3 of Art. 41 Arbitration Procedure Code of the Russian Federation.
Parties in the arbitration process are plaintiff And defendant(Article 44 of the Arbitration Procedure Code of the Russian Federation). The plaintiffs are organizations and citizens who filed a claim in defense of their rights and legitimate interests. The defendants are the organizations and citizens against whom the claim is brought. The parties enjoy equal procedural rights.

Thus, plaintiffs and defendants can be participants in the arbitration process only in cases of claim proceedings, when the case is initiated by the arbitration court on the basis of a claim brought by the plaintiff against the defendant.

In all cases, the parties to the arbitration process are the subjects of a controversial material legal relationship.
Procedural rights that belong only to the parties include such discretionary rights as the right of the plaintiff, before the court makes a decision, to change the subject or basis of the claim, to increase or decrease the size of the claim, or to abandon the claim. In turn, the defendant has the right to admit the claim in whole or in part (Article 49 of the Arbitration Procedure Code of the Russian Federation)

Changing the subject of the claim means a change in the substantive claim of the plaintiff against the defendant.
Changing the cause of action means a change in the circumstances on which the plaintiff bases his claim against the defendant (clause 3 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated October 31, 1996 No. 13 “On the application of the Arbitration Procedural Code of the Russian Federation when considering cases in the court of first instance”). A change or other clarification of the legal grounds (rules of law) of the claims presented does not constitute a change in the grounds of the claim.
Simultaneous change of the subject and basis of the claim is not allowed, since this is actually a new independent claim, the consideration of which by the arbitration court is possible in a separate proceeding by filing an independent claim in the general manner.

An increase in the amount of claims cannot be associated with the presentation of additional claims that were not stated in the claim.

The parties have the right to end the case with a settlement agreement at any stage of the arbitration process, including during the execution of a judicial act (Part 4 of Article 49, Articles 139-141 of the Arbitration Procedure Code of the Russian Federation).

The parties also have a number of procedural obligations. Thus, the plaintiff is obliged to comply with the requirements for the form and content of the statement of claim (Article 125 of the Arbitration Procedure Code of the Russian Federation), and is obliged to send to other persons participating in the case copies of the statement of claim with attached documents that they do not have, by registered mail with notification. The parties bear legal costs in the case (Articles 108, 110 of the Arbitration Procedure Code of the Russian Federation).

The Arbitration Procedure Code of the Russian Federation provides for the possibility of replacing only one improper party - defendant (Article 47 of the Arbitration Procedure Code of the Russian Federation).
Thus, if, when preparing the case for trial or during the trial in the court of first instance, it is established that the claim has been brought against the wrong person who should be liable for the claim, the arbitration court may, at the request or with the consent of the plaintiff, allow the replacement of the improper defendant with the proper one.

If the plaintiff does not agree to replace the defendant with another person, the court may, with the consent of the plaintiff, involve this person as a second defendant. After the replacement of an improper defendant or the entry of a second defendant into the case, the case is considered from the very beginning (Parts 2, 3 of Article 47 of the Arbitration Procedure Code of the Russian Federation).

The Arbitration Procedure Code of the Russian Federation does not provide for the possibility of replacing the plaintiff by the court. If the arbitration court finds that the plaintiff in the case is inappropriate, his claim will be denied.

The replacement of one party to the process by another person can also occur as a result of procedural succession (Article 48 of the Arbitration Procedure Code of the Russian Federation), when the replacement of the parties of both the plaintiff and the defendant occurs in the event of the departure of one of the parties in a controversial legal relationship or established by a judicial act of the arbitration court, in particular : as a result of reorganization, conclusion of a transaction (assignment of a claim, transfer of debt), death of a citizen, when there is an heir and other cases of change of persons in obligations. Procedural succession is possible at any stage of the arbitration process.

At the same time, for the legal successor, all actions performed in the arbitration process before the legal successor entered into the case are mandatory to the extent that they were mandatory for the person whom the legal successor replaced (Part 3 of Article 48 of the Arbitration Procedure Code of the Russian Federation).

The applicants are organizations and citizens who apply to the arbitration court with an application in the cases provided for by the Arbitration Procedure Code of the Russian Federation and other federal laws and enter into the arbitration process on these applications. Applicants enjoy procedural rights and bear procedural responsibilities as a party, unless otherwise provided by the Arbitration Procedure Code of the Russian Federation (Article 45 of the Arbitration Procedure Code of the Russian Federation).

For example, by filing applications, normative legal acts (Article 191 of the Arbitration Procedure Code of the Russian Federation) and non-normative legal acts (Article 197 of the Arbitration Procedure Code of the Russian Federation), decisions of administrative bodies on bringing to administrative responsibility persons carrying out entrepreneurial activities (Article 207 of the Arbitration Procedure Code of the Russian Federation), and cases of special proceedings are also considered - on the establishment of a fact of legal significance (Article 217 of the Arbitration Procedure Code of the Russian Federation), and on declaring the debtor bankrupt (Article 224 of the Arbitration Procedure Code of the Russian Federation).
Interested parties are persons whose rights may be affected by the decision in the case (Articles 40, 221 of the Arbitration Procedure Code of the Russian Federation). These are participants in the process in cases of special proceedings, in particular on the establishment of a fact of legal significance, and in other cases established by law.

Third parties are divided into two types:

1) third parties filing independent claims regarding the subject of the dispute (Article 50 of the Arbitration Procedure Code of the Russian Federation);
2) third parties who do not declare independent claims regarding the subject of the dispute (Article 51 of the Arbitration Procedure Code of the Russian Federation).
Third parties filing independent claims regarding the subject of the dispute may intervene in the case before the arbitration court of first instance makes a decision. By making independent demands regarding the subject of the dispute, they enjoy the rights and bear the responsibilities of the plaintiff, with the exception of the obligation to comply with a claim or other pre-trial dispute resolution procedure, if this is provided for by law for this category of disputes or by agreement (Parts 1-2 of Article 50 of the Arbitration Procedure Code of the Russian Federation). When entering the process, they must pay a state fee.

A third party making independent claims enters into the arbitration process, believing that the subject of the dispute belongs to him and not to the original parties (plaintiff and defendant).

Third parties who do not make independent claims regarding the subject of the dispute may enter into the case on the side of the plaintiff or defendant before the adoption of a judicial act that ends the consideration of the case in the first instance of the arbitration court, if this judicial act may affect their rights or obligations in relation to one from the sides. They can be brought to participate in the case at the request of a party or at the initiative of the court (Part 1 of Article 51 of the Arbitration Procedure Code of the Russian Federation).

Third parties who do not make independent claims are not direct participants in the disputed relationship, but have a legal connection with the plaintiff or defendant (acting on their side), as a result of which the decision in the case may subsequently affect their rights and obligations in relation to one of the parties. sides

Third parties who do not make independent claims regarding the subject of the dispute enjoy the procedural rights of the party and bear the procedural responsibilities of the party, with the exception of the right to change the basis or subject of the claim, change the amount of the claim, abandon the claim, admit the claim or enter into a settlement agreement, or file a counterclaim , the requirement for the forced execution of a judicial act (Part 2 of Article 51 of the Arbitration Procedure Code of the Russian Federation), as well as with the exception of the right to declare the application of the statute of limitations (clause 4 of the joint resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated November 12/15, 2001 No. 15/18 “On some issues related to the application of the provisions of the Civil Code of the Russian Federation on the limitation period”).

Prosecutor has the right to apply to the arbitration court in cases specified in Art. 52 of the Arbitration Procedure Code of the Russian Federation, while the list of such cases is closed. In these cases, the prosecutor can intervene in the case at any stage of the arbitration process with the procedural rights and responsibilities of the person participating in the case in order to ensure the rule of law.

The prosecutor has the right to appeal to the arbitration court:

a) with applications to challenge regulatory legal acts, non-regulatory legal acts of state authorities of the Russian Federation, state authorities of constituent entities of the Russian Federation, local governments affecting the rights and legitimate interests of organizations and citizens in the field of business and other economic activities;
b) with a claim to invalidate transactions made by government bodies of the Russian Federation, government bodies of constituent entities of the Russian Federation, local government bodies, state and municipal unitary enterprises, government agencies, as well as legal entities in the authorized capital of which there is a share of participation of the Russian Federation, a share of participation of constituent entities of the Russian Federation, a share of participation of municipalities;

c) with a claim for the application of the consequences of the invalidity of a void transaction made by state authorities of the Russian Federation, state authorities of the constituent entities of the Russian Federation, local governments, state and municipal unitary enterprises, state institutions, as well as legal entities in whose authorized capital (fund) there is the share of participation of the Russian Federation, the share of participation of the constituent entities of the Russian Federation, the share of participation of municipalities.

The prosecutor enjoys procedural rights and bears the procedural responsibilities of the plaintiff. However, the claim brought by the prosecutor is not paid with state duty. The prosecutor's refusal of the claim brought by him does not deprive the plaintiff of the right to demand consideration of the case on the merits, if the plaintiff is participating in the case.

Procedure for participation state bodies, local governments and other bodies defined in Art. 53 of the Arbitration Procedure Code of the Russian Federation, according to which, in cases provided for by federal law, state bodies, local government bodies and other bodies have the right to file claims or applications to the arbitration court in defense public interests. Besides, organizations and citizens also has the right to apply to the arbitration court in defense rights and legitimate interests of other persons in cases provided for by the Arbitration Procedure Code of the Russian Federation and other federal laws. At the same time, the appeal must indicate what the violation of public interests or the rights and (or) legitimate interests of other persons is, which served as the basis for applying to the arbitration court.
The body, organizations and citizens who apply to the arbitration court enjoy procedural rights and bear the procedural responsibilities of the plaintiff. The refusal of the body, organizations and citizens from the claim brought against them does not deprive the plaintiff of the right to demand consideration of the case on the merits, if the plaintiff is involved in the case.

Persons promoting the administration of justice, the normal course of dispute resolution, are: experts, witnesses, translators, an assistant judge and a court secretary (Article 54 of the Arbitration Procedure Code of the Russian Federation). These persons are bearers of certain procedural duties and rights.

An expert in an arbitration court is a person who has special knowledge on issues related to the case under consideration and is appointed by the court to give an opinion in cases and in the manner provided for in Art. 55 Arbitration Procedure Code of the Russian Federation.
The expert is obliged, when summoned by the arbitration court, to appear in court and give an objective opinion on the questions raised. He has the right, with the permission of the arbitration court, to familiarize himself with the case materials, participate in court hearings, ask questions to persons participating in the case and witnesses, and file a petition for the provision of additional materials to him.
An expert has the right to refuse to give an opinion on issues that go beyond the scope of his special knowledge, as well as if the materials presented to him are insufficient to give an opinion.

For giving a knowingly false conclusion, an expert bears criminal liability, about which he is warned by the arbitration court and gives a signature.

Witness is a person who has information about factual circumstances relevant to the consideration of the case (Article 56 of the Arbitration Procedure Code of the Russian Federation). The witness is obliged, when summoned by the arbitration court, to appear in court and provide the court with information on the merits of the case under consideration, which is known to him personally, and to answer additional questions from the arbitration court and persons participating in the case. For giving knowingly false testimony, as well as for refusing to testify, the witness bears criminal liability, about which he is warned by the arbitration court and gives a signature. In this case, judges and other persons involved in the administration of justice are not subject to questioning as witnesses about the circumstances that became known to them in connection with their participation in the consideration of the case, representatives in civil and other cases - about the circumstances that became known to them in connection with performing the duties of representatives, as well as persons who, due to mental disabilities, are not able to correctly understand the facts and testify about them.
No one is obliged to testify against himself, his spouse and close relatives, whose circle is determined by federal law.

Experts, by presenting an expert opinion to the court, and witnesses, by giving evidence to the court regarding facts known to them personally, generally contribute to the presentation in the case file of evidence necessary for an objective and comprehensive consideration of the case, and to the court making a lawful and informed decision.

Translator is a person who is fluent in a language, knowledge of which is necessary for translation in the process of legal proceedings, and is invited by the arbitration court to participate in the arbitration process in cases and in the manner provided for in Art. 57 Arbitration Procedure Code of the Russian Federation.

The translator is obliged to appear in court when summoned by the arbitration court and carry out the translation completely, correctly, and in a timely manner.
The translator has the right to ask the persons present during the translation questions to clarify the translation, get acquainted with the protocol of the court hearing or a separate procedural action and make comments regarding the correctness of the recording of the translation.
For a deliberately incorrect translation, the translator bears criminal liability, about which he is warned by the arbitration court and gives a signature.

The possibility of an interpreter participating in the arbitration process follows from the essence of the national language principle (Article 12 of the Arbitration Procedure Code of the Russian Federation), according to which a person who does not speak the state language - Russian, must be provided with the opportunity to participate in judicial actions, speak in court in his native language or a freely chosen language communication.

Assistant referee assists the judge in preparing and organizing the trial and is not entitled to perform the functions of administering justice. The assistant judge may keep minutes of the court session and perform other procedural actions in cases and in the manner provided for by the Arbitration Procedure Code of the Russian Federation. At the same time, the assistant judge does not have the right to perform actions entailing the emergence, change or termination of the rights or obligations of the persons participating in the case and other participants in the arbitration process (Parts 1-3 of Article 58 of the Arbitration Procedure Code of the Russian Federation). An assistant judge, on behalf of the judge, can participate in preparing the case for trial (clause 2 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 20, 2006 No. 65 “On preparing the case for trial”).
Secretary of the court session keeps minutes of the court hearing. He is obliged to fully and correctly state in the protocol the actions and decisions of the court, as well as the actions of the participants in the arbitration process that took place during the court hearing. The secretary of the court session, on behalf of the presiding judge, checks the appearance in court of persons who must participate in the court session (Parts 4, 5 of Article 58 of the Arbitration Procedure Code of the Russian Federation).
Since, as follows from the essence of the procedural rights of an assistant judge, court secretary, expert and translator, these persons have a certain impact on the preparation and organization of the trial, the presentation of evidence in the case file, ensuring the rights of persons participating in the case who do not speak Russian, the law also provides for the possibility of their removal on the same grounds as judges (Article 23 of the Arbitration Procedure Code of the Russian Federation).

3. Representation in arbitration court

Under representation refers to the activities of a representative in the arbitration process, carried out on behalf and in the interests of the person he represents (the principal). This presupposes not only the representation of a representative in the arbitration court on behalf of the person he represents, participating in the case, but also the protection of his interests by providing him with qualified legal assistance in exercising his rights and preventing their violation by other participants in the process.
Competent representation in the arbitration process by representatives of the interests of the persons participating in the case contributes to the correct and timely consideration and resolution of the dispute in the arbitration court.

Representation, depending on the will of the represented persons, can be divided into two types:

a) voluntary representation, which can arise only if there is an expression of the will of the represented (in particular, with contractual representation, which is based on contractual relations: agency agreement, employment contract);
b) legal representation, the emergence of which does not require the consent of the represented, since it arises by force of law.
The procedure for conducting cases in an arbitration court through representatives is enshrined in Art. 59 Arbitration Procedure Code of the Russian Federation. Citizens can conduct their cases in the arbitration court in person or through their representatives. Conducting a case in person does not deprive a citizen of the right to have representatives.
The rights and legitimate interests of incapacitated citizens are protected in the arbitration process by their legal representatives - parents, adoptive parents, guardians or trustees, who can also entrust the conduct of the case in the arbitration court to another representative chosen by him.
Lawyers and other persons providing legal assistance may act as representatives of citizens, including individual entrepreneurs and organizations, in the arbitration court. At the same time, based on the legal position of the Constitutional Court of the Russian Federation, set out in paragraph 5 of the reasoning part of the resolution of July 16, 2004 No. 15-P34, the fact of providing legal assistance must be confirmed by the existence of a corresponding civil law agreement.

The affairs of organizations are conducted in the arbitration court by their bodies, acting in accordance with federal law, other regulatory legal acts or constituent documents of organizations. An authorized representative of the liquidation commission acts in court on behalf of the liquidated organization.

Representative in the arbitration court there may be a competent person with duly formalized and confirmed powers to conduct the case (Part 6 of Article 59 of the Arbitration Procedure Code of the Russian Federation).

The following cannot be representatives in the arbitration court: judges, investigators, prosecutors, assistant judges and court staff, except for cases when these persons act in the arbitration court as representatives of relevant bodies or legal representatives. Persons who do not have full legal capacity or who are under guardianship or trusteeship cannot also be representatives (Article 60 of the Arbitration Procedure Code of the Russian Federation).

The Arbitration Procedure Code of the Russian Federation establishes the procedure for registering and confirming the powers of a representative.
The powers of the heads of organizations acting on behalf of organizations within the powers provided for by federal law, other regulatory legal acts or constituent documents are confirmed by documents submitted by them to the court certifying their official position, as well as constituent and other documents.
The powers of legal representatives are confirmed by documents submitted to the court certifying their status and powers (Parts 1, 2 of Article 61 of the Arbitration Procedure Code of the Russian Federation).

The powers of a lawyer to conduct a case in an arbitration court are certified in accordance with federal law. This is, as a rule, a warrant and a power of attorney.

The powers of other representatives to conduct a case in an arbitration court must be expressed in a power of attorney issued and executed in accordance with federal law. A power of attorney on behalf of the organization must be signed by its head or another person authorized to do so by its constituent documents and affixed with the seal of the organization. A power of attorney on behalf of an individual entrepreneur must be signed by him and affixed with his seal or certified by a notary or in another manner prescribed by law. A power of attorney on behalf of a citizen can be certified by a notary or in another manner established by federal law (Parts 5, 7, Article 61 of the Arbitration Procedure Code of the Russian Federation).

A representative has the right to perform all procedural actions on behalf of the person he represents. However, the authority to sign a statement of claim and respond to a statement of claim, an application for securing a claim, transferring a case to an arbitration court, complete or partial waiver of claims and recognition of a claim, changing the grounds or subject of a claim, concluding a settlement agreement, transfer of trust, as well as the right to sign an application for review of judicial acts based on newly discovered circumstances, to appeal a judicial act of an arbitration court, to receive awarded funds or other property must be specifically provided for in the power of attorney issued to the represented person.

4. Questions about consolidating the material

1. Give the concept of subjects of the arbitration process and their classification.

2.Explain the concept of an arbitration court as a subject of the arbitration process. Composition of the court.

3. What is meant by arbitration legal personality?

4. What rights and obligations do the parties have?

5. What is meant by the concept and types of third parties, their procedural rights and obligations?

6. Determine the meaning of procedural participation in the arbitration process.

7. What is the participation of the prosecutor in the arbitration process?

8. What is the participation of state bodies and local government bodies in the arbitration process?

9. Determine the circle of persons contributing to the administration of justice, their rights and responsibilities.

10. Expand the meaning of the concept and types of representation

11. What are the powers of representatives and the procedure for their execution.

4. Practical tasks

Task No. 1

The Moscow City Property Department filed a claim with the Arbitration Court against JSC New Year» about termination of the lease agreement and vacating non-residential premises.

At the preliminary court hearing, New Year CJSC filed a motion to consider the case with the participation of arbitration assessors, since the rented premises are its production base and are necessary for carrying out commercial activities. Also, a representative of New Year CJSC noted that previously the arbitration court had other claims pending from the department regarding the termination of lease agreements for premises occupied by New Year CJSC, which were considered by the arbitration court consisting of a judge and two arbitration assessors.

The court rejected the motion and scheduled the case for trial.

Are the court's actions lawful? Which categories of cases are considered individually and which collectively?

State the conditions and procedure for attracting arbitration assessors to consider a case in an arbitration court.

Problem No. 2

The company Ivan Corporation filed a complaint with the arbitration court against the actions of the bankruptcy trustee of Podsnezhnik OJSC. The complaint was signed by A.V. Shpak, who has a power of attorney issued in accordance with the requirements of the law.

At the court hearing Shpak A.V. did not provide documents indicating that he has the status of a lawyer or a full-time employee of the company.

The arbitration court left the complaint without consideration on the grounds that the company representative who signed the complaint is neither its full-time employee nor a lawyer, and therefore cannot represent the company’s interests in the arbitration court in a bankruptcy case.

Are the court's actions lawful?

Who can act as a representative in the arbitration court? Are there differences in the requirements for candidacy of a representative in claims proceedings and in insolvency (bankruptcy) cases?

Problem No. 3

The first deputy prosecutor of the Tyumen region appealed to the arbitration court with an application to invalidate the lease agreement for the building concluded between public organization"May" and LLC "Rodnik". In the statement, the prosecutor indicated that this building was transferred to the ownership of the organization "May" by the Administration of the city of Tyumen for organizing leisure time for preschool children and if the building is leased to LLC "Rodnik", the rights of children in Tyumen will be violated.

Is it legal for the prosecutor to appeal to the arbitration court?

Indicate the reasons for the prosecutor's appeal to the arbitration court.

Lecture topic 6.

Evidence in arbitration proceedings

1. The concept of evidence and means of proof

2. Types of evidence

3. Questions for consolidating the material

4. Practical tasks

1. The concept of evidence and means of proof

Proof in the arbitration process acts as a logical activity of the persons participating in the case and the court to establish the presence or absence of circumstances that are important for the correct resolution of the case. Evidence, as a component of the adversarial principle, acts as a means of convincing the arbitration court of the correctness of the parties’ position, and the court, on the basis of the presented and directly examined evidence, draws a conclusion on the case as a whole, which is reflected in the judicial act.
Subject of proof are circumstances of legal significance, the establishment of which is necessary for the correct resolution of the case, as well as a set of other facts, including those of procedural significance.
The formation of the subject of proof is carried out by the arbitration court on the basis of the stated demands and objections of the persons participating in the case, based on the rules of law to be applied (Part 2 of Article 65 of the Arbitration Procedure Code of the Russian Federation), which can subsequently be clarified during the consideration of the case, in particular if the plaintiff changes grounds for the claim, the amount of the claim, clarification of the subject of the claim, the presence of reasoned arguments from third parties.

Since evidence is a means of persuasion of the arbitration court, each person participating in the case must prove the circumstances to which he refers as the basis for his claims and objections. However, the obligation to prove the circumstances that served as the basis for the adoption by state bodies, local self-government bodies, other bodies, officials of contested acts, decisions, actions (inaction) is assigned to the relevant body or official (Part 1 of Article 65 of the Arbitration Procedure Code of the Russian Federation).

Each person participating in the case must disclose evidence to other persons participating in the case before the start of the court hearing, unless otherwise established by the Arbitration Procedure Code of the Russian Federation. In this case, persons participating in the case have the right to refer only to that evidence with which other persons participating in the case were familiarized in advance (Parts 3, 4 of Article 65 of the Arbitration Procedure Code of the Russian Federation).
Concept forensic evidence given in Part 1 of Art. 64 of the Arbitration Procedure Code of the Russian Federation, according to which evidence in the case is obtained in the manner prescribed by the Arbitration Procedure Code of the Russian Federation and other federal laws information about facts, on the basis of which the arbitration court establishes the presence or absence of circumstances justifying the demands and objections of the persons participating in the case, as well as other circumstances that are important for the correct consideration of the case.

Information about facts can be obtained by the court only from the means of proof provided for by law - written and material evidence, explanations of persons participating in the case, expert opinions, testimony of witnesses, audio and video recordings, other documents and materials. The use of evidence obtained in violation of federal law is not allowed (parts 2, 3 of article 64 of the Arbitration Procedure Code of the Russian Federation).

A person participating in the case and not having the opportunity to independently obtain the necessary evidence from the person in whose possession it is located may petition the arbitration court to request this evidence, indicating what circumstances relevant to the case can be established by him, the reasons preventing independent receipt of evidence, and its location (part 4 of article 66 of the Arbitration Procedure Code of the Russian Federation).

A distinctive feature of judicial evidence is the presence of a procedural form, i.e. evidence is presented to the arbitration court in a certain form in compliance with the order of its presentation in accordance with the requirements of the law.
If there are circumstances that allow the persons participating in the case to fear that submitting the necessary evidence to the arbitration court will become impossible or difficult, they may apply to the arbitration court with an application to secure this evidence. The application must indicate the evidence that needs to be provided, the circumstances to confirm which this evidence is needed, and the reasons that prompted the application to provide it.
The provision of evidence is carried out by the arbitration court according to the rules established by the Arbitration Procedure Code of the Russian Federation for securing a claim, while the court has the right to take measures to secure evidence before filing a claim in the manner prescribed for taking preliminary interim measures (Article 72 of the Arbitration Procedure Code of the Russian Federation).

2. Types of evidence

Basically, in the arbitration process, the traditional classification of judicial evidence is used, which is divided into the following types:

direct and indirect;

original and derivatives;

personal and material.

Direct evidence– this is evidence from which an unambiguous conclusion follows about the presence or absence of a fact. For example, a certificate of state registration of a right is direct evidence of the existence of a registered ownership right or other proprietary right to an object of real estate.

Circumstantial evidence- this is evidence from which several probable conclusions can be drawn about the presence or absence of facts relevant to the case. Therefore, circumstantial evidence can have evidentiary value only in its totality or in combination with other evidence.

Initial evidence These are original documents.

Derivative proofs– these are duly certified copies of documents or extracts from documents.
Personal evidence come from the individual, i.e. an individual, - these are explanations of the parties, testimony of witnesses, expert opinion.
Evidence– this is written and material evidence, i.e. documents and things bearing traces, imprints of events.

By methods of proof evidence is divided into (part 2 of article 64 of the Arbitration Procedure Code of the Russian Federation):

a) written;
b) real;
c) explanations of the persons participating in the case;

d) expert opinions;

e) testimony of witnesses;

f) audio and video recordings, other documents and materials.

Written evidence are those containing information about circumstances relevant to the case, contracts, acts, certificates, business correspondence, other documents made in the form of a digital, graphic record or in another way that allows one to establish the accuracy of the document, including minutes of court hearings, protocols of certain procedural actions and applications to them (parts 1, 2 of article 75 of the Arbitration Procedure Code of the Russian Federation).

Documents received by facsimile, electronic or other communication, as well as documents signed with an electronic digital signature or other analogue of a handwritten signature, are accepted as written evidence in cases and in the manner established by federal law, other regulatory legal acts or agreements. Documents submitted to the arbitration court and confirming the commission of legally significant actions must comply with the requirements established for this type of document. Written evidence submitted to the arbitration court, executed in whole or in part in a foreign language, must be accompanied by duly certified translations into Russian. Document received in foreign country, is recognized in the arbitration court as written evidence if it is legalized in the prescribed manner (Parts 3, 6, Article 75 of the Arbitration Procedure Code of the Russian Federation).

Written evidence shall be submitted to the arbitration court in the original or in the form of a duly certified copy. If only part of the document is relevant to the case under consideration, a certified extract from it is submitted. Original documents are submitted to the arbitration court if the circumstances of the case are in accordance with federal law or other regulatory legal act are subject to confirmation only by such documents, as well as at the request of the arbitration court (parts 8, 9 of article 75 of the Arbitration Procedure Code of the Russian Federation).

The original documents available in the case, according to the statements of the persons who presented them, may be returned to them after the decision enters into legal force, and if the arbitration court comes to the conclusion that the return of the original documents will not prejudice the proper consideration of the case, these documents may be returned during the proceedings in the case before the decision enters into legal force (Articles 10, 11, Article 75 of the Arbitration Procedure Code of the Russian Federation).

Physical evidence are objects that, by their appearance, properties, location or other characteristics, can serve as a means of establishing circumstances relevant to the case. The arbitration court issues a ruling on the inclusion of material evidence in the case (Article 76 of the Arbitration Procedure Code of the Russian Federation).

Physical evidence is stored at its location. They must be described, sealed, and, if necessary, captured on photo or video tape. Physical evidence may be stored in an arbitration court if the court finds it necessary (Article 77 of the Arbitration Procedure Code of the Russian Federation).

After the decision enters into legal force, physical evidence is returned to the persons from whom it was received, unless it is subject to transfer to other persons. Items that, according to federal law, cannot be in the possession of individuals are transferred to the appropriate organizations. On issues of disposal of material evidence, the arbitration court issues a ruling (Article 80 of the Arbitration Procedure Code of the Russian Federation).

The arbitration court may conduct an inspection and study of written and material evidence at its location if it is impossible or difficult to deliver to the court, about which a ruling is made (Part 1 of Article 78 of the Arbitration Procedure Code of the Russian Federation).
Explanations of persons involved in the case. A person participating in the case presents to the arbitration court his explanations about the circumstances known to him that are important for the case, in written or oral form. Explanations set out in writing by the persons participating in the case are announced at the court hearing and attached to the case materials. Written explanations of the parties are also contained in the statement of claim and in the response to it (Article 81 of the Arbitration Procedure Code of the Russian Federation).

Oral explanations are given during the trial. The person who gave the explanation is obliged to answer questions from other persons and the court.

Expert opinion. A forensic examination is appointed by the arbitration court at the request of the persons participating in the case, or with the consent of the persons participating in the case, to clarify issues arising during the consideration of the case that require special knowledge. In cases prescribed by law or provided for by contract, or the need to verify an application for falsification of the evidence presented, or the need to conduct an additional or repeated examination, the arbitration court may order an examination on its own initiative. The court issues a ruling on the appointment of an examination (Article 82 of the Arbitration Procedure Code of the Russian Federation).
The range and content of issues on which an examination must be carried out is determined by the court, however, persons participating in the case have the right to submit to the court questions that must be clarified during the examination.
A forensic examination is appointed by a court ruling, which also indicates the expert’s warning about criminal liability for giving a knowingly false conclusion (Parts 2, 4 of Article 82 of the Arbitration Procedure Code of the Russian Federation).
The examination can be carried out both in a state forensic institution and in a non-state expert organization, or persons with special knowledge can be involved in the examination. A request for an examination may be filed in the court of first instance or appellate instance. The objects of the examination may be material evidence, documents, objects, samples for comparative research, as well as materials of the case in which the forensic examination is being carried out (clause 2, 10 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of December 20, 2006 No. 66 “On some issues practice of application of legislation on examination by arbitration courts”).

Types of forensic examinations can be different: technical, construction, merchandising, accounting, handwriting. The examination is carried out either by specialists from relevant expert institutions, or by specialists with the necessary knowledge in a certain field. The examination resolves questions of fact, not law, i.e. the examination must give an answer about the presence or absence of certain circumstances, based on the questions posed to the expert, and not draw conclusions of a legal nature. Legal issues and legal consequences assessments of evidence fall within the exclusive competence of the court (clause 8 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of December 20, 2006 No. 66).

If necessary, the court may appoint a commission or comprehensive examination.

At commission examination The group includes at least two specialists of the same specialty. If, based on the results of the research, the experts’ opinions on the questions raised coincide, the experts draw up a single conclusion. In case of disagreement, each of the experts who participated in the examination gives a separate opinion on the issues that caused disagreement between the experts (Article 84 of the Arbitration Procedure Code of the Russian Federation).

Comprehensive examination carried out by at least two experts of different specialties, i.e. specialists in different fields of knowledge. Each expert who participated in the comprehensive examination signs that part of the report that contains a description of the research he conducted and bears responsibility for it. The general conclusion is made by experts competent in assessing the results obtained and formulating this conclusion (Article 85 of the Arbitration Procedure Code of the Russian Federation).

The means of proof in court is expert opinion given based on the results of the study. Giving an objective opinion and, if necessary, appearing in court is the responsibility of the expert. The expert's opinion is given in writing, which is announced at the court hearing and examined along with other evidence. If, during the examination, an expert establishes circumstances that are important to the case and about which questions were not put to him, he has the right to include conclusions about these circumstances in his conclusion (Article 86 of the Arbitration Procedure Code of the Russian Federation).

3. Questions about consolidating the material

1. Give the concept of judicial proof and evidence.

2. Expand the concept of subjects of proof and the rules for the distribution of responsibilities for proof.

3. Give the concept of means of proof and their content.

4. Determine the order of examination and evaluation of evidence.

5.What is the provision of evidence?

6. What circumstances do not require proof?

7. What is the disclosure of evidence in arbitration proceedings?

4. Practical tasks

Task No. 1

Kommersant LLC filed a claim with the arbitration court to terminate the contract with Masterok CJSC and to recover Money, interest for their use and losses caused in connection with violation of the timing of the opening of the shopping center. At the court hearing, a representative of Kommersant LLC indicated that under a contract concluded on April 20, 2005, Kommersant LLC transferred an advance payment to Masterok JSC for construction work on the construction of a shopping center. However, construction work on the site never began.

Determine the subject of proof in the case?

What evidence must be provided to Kommersant LLC?

How are the responsibilities of proof distributed in the arbitration process?

Problem No. 2

Commercial bank Malina filed a claim with the arbitration court to recover a penalty for failure of Krug LLC to fulfill its obligations to provide communication services.

A copy of the agreement on the provision of communication services concluded between the bank and Krug LLC was attached to the statement of claim sent to the court. At the court hearing, a representative of Krug LLC admitted that from January 31, 2006 to February 10, 2006, there were interruptions in communication lines that were caused by power failures caused by severe frosts. Weather conditions, in accordance with the concluded agreement for the provision of communication services, are considered force majeure circumstances and are the basis for releasing Krug LLC from liability.

What should the court do?

Specify circumstances that are not subject to proof?

List the requirements for judicial decisions based on facts that are not subject to proof?

Problem No. 3

CJSC Tiger filed a claim with the Arbitration Court of the Irkutsk Region to invalidate the purchase and sale agreement for non-residential premises concluded with Malysh LLC. The representative of Malysh LLC presented to the court documents confirming the fulfillment by the parties of the concluded agreement: a copy of the receipt for the receipt of funds by the director of Tiger CJSC, a copy of the transfer and acceptance certificate of non-residential premises.

This evidence was considered by the court at the preliminary hearing.

At the court hearing, a representative of Tiger CJSC presented an expert opinion, from which it follows that on the documents presented by Malysh LLC, the signatures of the director of Tiger CJSC are not authentic.

What should the court do?

Carried out in a certain logical sequence. The arbitration process is not just a set of actions regulated by the rules of arbitration procedural law, but a specific system of them. Procedural actions performed by participants in the arbitration process, depending on the procedural purpose of their implementation and their content, form stages of the arbitration process.

Thus, stage of the arbitration process - a set of procedural actions in a specific case, united by a single procedural goal (aimed at one immediate procedural goal).

Each stage has a specific character, namely:

- your tasks;
- subject composition;
- implementation methods.

Stages of the arbitration process:

1) proceedings in the court of first instance:

- initiation of proceedings in the case (Articles 125-127 of the Arbitration Procedure Code of the Russian Federation);
- preparing the case for trial (Articles 133-137 of the Arbitration Procedure Code of the Russian Federation);
- trial (Articles 152-176 of the Arbitration Procedure Code of the Russian Federation).

2) stages of reviewing judicial acts (decisions, rulings, decrees):

- proceedings in the arbitration court of appeal;
- proceedings in the arbitration court of cassation;
- proceedings for review of judicial acts by way of supervision;
- proceedings to review judicial acts that have entered into legal force due to new or newly discovered circumstances.

The stages of the arbitration process for reviewing judicial acts are called optional stages; they are not mandatory, but depend on the will of the persons participating in the case.

Note on enforcement proceedings

Some textbooks mention such a stage as enforcement proceedings. However, here it is necessary to take into account that judicial acts that have entered into legal force are executed by all state bodies, local governments, organizations, officials and citizens throughout the Russian Federation. The Arbitration Procedure Code of the Russian Federation does not essentially regulate the procedure for the execution of decisions of arbitration courts; its norms are of an organizational nature and regulate procedural issues arising in connection with the issuance of a writ of execution and during their forced execution. In this regard, not all authors consider enforcement proceedings as a stage of the arbitration process.

Indeed, enforcement proceedings are regulated not by the Arbitration Procedure Code of the Russian Federation, but by the Federal Law of October 2, 2007 No. 229-FZ “On Enforcement Proceedings”. In accordance with this Law, arbitration courts are not participants (subjects) of relations for the execution of their acts. At the same time, arbitration courts perform certain control functions (Section VII of the Arbitration Procedure Code of the Russian Federation).

Alternative opinion on the stages of the arbitration process

Yarkov V.V. (ed.). Arbitration process. Textbook. - M.: Infotropik Media, 2010. - 880 p. (4th ed., revised and supplemented)

The arbitration process consists of 6 stages:

1. proceedings in the arbitration court of first instance;
2. proceedings in the appellate court;
3. proceedings in the court of cassation;
4. supervisory proceedings;
5. review, based on newly discovered circumstances, of judicial acts of the arbitration court that have entered into legal force;
6. execution of judicial acts.

Passage of the case through all stages of the arbitration process optional, but is ultimately determined by interested parties - participants in the proceedings in this case. It is mandatory to resolve the case in the first instance and then, at the will of the plaintiff, to execute the decision of the arbitration court.

In turn, each stage of the arbitration process is divided into 3 stages:

1. initiation of proceedings at the appropriate stage;
2. preparing the case for consideration;
3. resolution of the case at the appropriate stage.

The degree of complexity and the number of procedural actions performed at each stage of development of a particular stage of the arbitration process depends on the tasks performed by a specific stage. The stages of initiating a case, preparing for the trial and the very stage of the trial at the stage of proceedings in the arbitration court of first instance are most fully regulated. To one degree or another, the initiation of the corresponding stage, preparation for consideration and proceedings also take place in subsequent stages of the arbitration process.

Stages of arbitration proceedings in the court of first instance

Proceedings in the arbitration court of first instance are aimed at resolving the dispute on the merits.

The first stage is the initiation of proceedings in the case, which requires submission by one of the persons listed in Art. 4 of the Arbitration Procedure Code of the Russian Federation, statement of claim, application in compliance with the rules established in Art. 125-127 of the Arbitration Procedure Code of the Russian Federation, and the issuance of a ruling by the judge on the acceptance of the statement of claim for the proceedings of the arbitration court. If there are grounds for this, the arbitration judge may:

- leave the statement of claim without progress or
- return the statement of claim without consideration.

The second stage is preparing the case for trial is carried out in order to ensure the correct and timely resolution of the case by the court.

The tasks of preparing a case for trial are (Article 133 of the Arbitration Procedure Code of the Russian Federation):

1. determination of the nature of the controversial legal relationship and the legislation to be applied, circumstances relevant for the correct consideration of the case;
2. resolving the issue of the composition of persons participating in the case and other participants in the arbitration process;
3. providing assistance to persons participating in the case in presenting the necessary evidence;
4. reconciliation of the parties.

The tasks and content of preparatory actions in an arbitration court are somewhat different from the tasks and content of preparatory actions in courts of general jurisdiction. This is due to the specifics of the subject composition, the nature of the legal relations that are the subject of the trial. The judge issues a ruling on preparing the case for trial, indicating the actions that need to be performed by the persons participating in the case and the time frame for their completion.

The preparation of the case for trial ends with a preliminary court hearing (Article 136 of the Arbitration Procedure Code of the Russian Federation), unless the Arbitration Procedure Code of the Russian Federation establishes otherwise. At the preliminary court hearing, the judge, having recognized the case as prepared, makes a determination to assign the case to trial.

The main stage of the arbitration process is trial is important in that it examines and resolves the dispute on its merits, and gives a final answer to the stated requirements in the form of a court decision. At this stage, the principles of arbitration procedural law are most fully implemented, evidence is examined and its assessment is given. The hearing of the case takes place in the form of a court hearing. In exceptional cases, the court session ends without considering the case on the merits by issuing a ruling to terminate the proceedings or to leave the application without consideration.

These stages are necessary for the arbitration process when considering each case. They are united by the general concept of proceedings in the court of first instance.

Stages of arbitration proceedings for the revision of judicial acts (decisions, rulings, decrees)

At the stage of proceedings in the appellate instance the case is reconsidered on the merits on the basis of existing and newly presented evidence (subject to certain conditions). Cassation proceedings are aimed at verifying the legality of decisions and rulings adopted by arbitration courts of constituent entities of the Russian Federation and arbitration courts of appeal. Appeal and cassation proceedings are ordinary stages of the arbitration process, since the right to initiate them is granted to all persons participating in the case, as well as other persons whose rights and interests are affected by a judicial act.

Supervisory proceedings is an exceptional (extraordinary) stage of the arbitration process, in which judicial acts of arbitration courts are reviewed. At the same time, in accordance with Art. 308.8 of the Arbitration Procedure Code of the Russian Federation, initiation of supervisory proceedings is possible only if there are significant violations:

1. human and civil rights and freedoms guaranteed by the Constitution of the Russian Federation, generally recognized principles and norms international law, international treaties of the Russian Federation;
2. rights and legitimate interests of an indefinite number of persons or other public interests;
3. uniformity in the application and (or) interpretation of legal norms by courts.

Revision due to newly discovered circumstances judicial acts of the arbitration court that have entered into legal force is also a stage of the arbitration process aimed at correcting judicial errors.

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N. A. Rogozhin
Arbitration process: course of lectures

Preface

The improvement of economic relations has necessitated the creation of a judicial system adequate to them. The basis of modern economic relations of the Russian Federation is market economy, i.e., an economy based on entrepreneurial activity. Therefore, a system of arbitration courts was created in the Russian Federation, whose task is to protect the violated rights and legitimate interests of subjects of law in the field of business and other economic activities.

Recently, interest in arbitration procedural law has increased, since knowledge of arbitration proceedings is necessary not only for obtaining a higher legal education, but also for meaningful and effective participation in the arbitration process in specific disputes in practice. The rules of arbitration procedural law establish a mechanism for judicial protection of violated or disputed rights and legitimate interests of subjects of law in the field of business and other economic activities, and therefore knowledge of the rules of the arbitration process allows one to achieve effective judicial protection.

The current Arbitration Procedural Code of the Russian Federation of 2002 (hereinafter referred to as the Arbitration Procedure Code of the Russian Federation) has become significantly more complicated compared to the two previous Codes of 1992 and 1995. Knowledge and correct application of the current rules of arbitration procedural law is one of the main conditions for the successful practical protection of violated or disputed rights and legitimate interests of legal entities in arbitration court.

This publication is tutorial, which systematizes, in a simple and accessible form, the main provisions of the current arbitration procedural legislation, taking into account the approaches developed by judicial arbitration practice, and highlights the main institutions of arbitration procedural law.

The educational publication not only enables the student to study the arbitration process in order to successfully pass the exams, but also allows the practicing lawyer to update his knowledge in this area.

This educational publication will also be useful to graduate students, teachers of law schools, as well as other persons interested in modern arbitration procedural legislation.

Topic 1. The system of arbitration courts in the Russian Federation

§ 1. History of the formation of arbitration courts in the Russian Federation

The prototype of arbitration courts in pre-revolutionary Russia can be considered commercial courts, considering at that time trade, bill of exchange and commercial insolvency cases 1
Cm.: Vaskovsky E. V. Textbook of civil procedure. – M., 1917. – P. 130-132.

That is, they had their own special competence.

In the first years after October revolution 1917, in conditions of weakening commodity-money relations and weak economic relations in general, legal disputes between state institutions were not allowed. Disagreements between entrepreneurs and organizations were resolved administratively by higher management bodies. With the development of economic relations, especially in the 20s. last century - during the period of the New Economic Policy (NEP), there was a need to create a special body to resolve disputes between state enterprises and institutions, and therefore in 1922 arbitration commissions. Property disputes between government agencies and enterprises of different departments were resolved by the Higher Arbitration Commission under the Council of Labor and Defense and arbitration commissions at regional economic meetings, and then arbitration commissions at the executive committees of regions and provinces. 2
See: Arbitration process: Textbook for universities / Ed. prof. M. Treushnikova. – M.: BEK, 1993. – P. 2-3.

Resolution of the Central Executive Committee and Council of People's Commissars of the USSR dated May 3, 1931. 3
NW USSR. – 1931. – No. 26. – Art. 26.

State arbitration was formed to resolve disputes between socialist institutions and enterprises and fulfill the task of strengthening contractual, planning discipline and economic accounting. At the same time, two types of arbitration were formed: state and departmental. In state arbitration, disputes between enterprises and organizations of various subordination were resolved, and in departmental arbitration - subordination to one department (ministry, committee). 4
See: Arbitration process: Textbook for universities / Ed. prof. M. Treushnikova. M.: BEK, 1993. – P. 3.

The system of these arbitrations was abolished on October 1, 1991 with the introduction of the RSFSR Law “On the Arbitration Court” 5
See: Gazette of the Supreme Soviet of the RSFSR. – 1991. – No. 30. – Art. 1013-1014; 1992. – No. 34. – Art. 1965.

Which served as the basis for replacing arbitration with arbitration courts. The reason for the replacement of Soviet arbitrations with arbitration courts was Russia's transition to new economic conditions of management - from administrative-command relations to market relations. Accordingly, resolving disputes between legally equal business entities using the old administrative-command methods used under the Soviet economic system has become impossible. Therefore, a system of arbitration courts was created - a judicial system corresponding to modern economic relations in the Russian Federation, the basis of which is a market economy, that is, an economy based on entrepreneurial activity.

Subsequently, in the Constitution of the Russian Federation of 1993, arbitration courts were finally established as an independent component of the judicial power of the Russian Federation.

Since 1995, the activities of arbitration courts in the Russian Federation have been regulated by the Federal Constitutional Law “On Arbitration Courts in the Russian Federation”.

§ 2. The concept of arbitration courts and their system

According to the Constitution of the Russian Federation and the Federal Constitutional Law “On Arbitration Courts in the Russian Federation” arbitration courts- these are federal courts, the formation and regulation of whose activities fall under the jurisdiction of the Russian Federation (federal legislation) and whose competence includes the consideration of economic disputes arising in the field of entrepreneurial and other economic activities, with the participation of legal entities, citizens - individual entrepreneurs, as well as the Russian Federation. Federation, subject of the Russian Federation, state bodies, local governments and citizens in cases provided for by law.

Accordingly, the constituent entities of the Russian Federation do not have the right to create any judicial bodies that consider economic disputes within the jurisdiction of arbitration courts.

The system of arbitration courts, their organizational structure, general structure are determined by the Constitution of the Russian Federation, the federal constitutional laws “On the Judicial System in the Russian Federation” and “On Arbitration Courts in the Russian Federation”, in accordance with which a four-level system of arbitration courts currently operates:

1) arbitration courts of the constituent entities of the Russian Federation (regions, republics, cities of federal significance - Moscow and St. Petersburg), which are courts first instance;

3) 10 federal arbitration courts of districts, which are courts cassation authority;

4) The Supreme Arbitration Court of the Russian Federation, which is the court of first instance in cases determined by the Arbitration Procedure Code of the Russian Federation and other federal laws, and supervisory authority in relation to all lower arbitration courts (courts of first, appellate and cassation instances) when checking their judicial acts in the manner of supervision.

All arbitration courts form a single system, headed by the Supreme Arbitration Court of the Russian Federation (Diagram 1).

Scheme 1. System of arbitration courts in the Russian Federation.

Arbitration courts of appeal are courts of legality and reconsideration not entered into legal force judicial acts of courts of first instance. They verify the legality of judicial acts of the first instance that have not entered into legal force and at the same time re-examine on the merits in an appellate manner judicial acts of the first instance - arbitration courts of the constituent entities of the Russian Federation, the list of which is legally assigned to each court of appeal. Geographically, the courts of appeal are located as follows: two courts of appeal per one federal arbitration (cassation) district. Each appellate court has its own number (for example, the 19th appellate court); appellate courts do not have names.

Arbitration courts of the constituent entities of the Russian Federation are considering essentially economic disputes within the jurisdiction of arbitration courts of the first instance, the number of which corresponds to the number of subjects of the Russian Federation in accordance with the existing state administrative-territorial structure of Russia.

Under composition any arbitration court is understood as its internal structure - structure.

Thus, the Supreme Arbitration Court of the Russian Federation acts as part of the Plenum of the Supreme Arbitration Court of the Russian Federation; Presidium of the Supreme Arbitration Court of the Russian Federation; Judicial panel for consideration of disputes arising from civil and other legal relations; Judicial panel for consideration of disputes arising from administrative legal relations.

To prepare and review materials of court cases, study the practice of applying legislation, and perform other functions of arbitration courts, an apparatus of the arbitration court is created, including departments and other divisions.

The Federal Arbitration Court of the District operates as part of the Presidium, judicial panels on disputes arising from civil and administrative legal relations. The Presidium of the district court approves, on the proposal of the chairman of the court, members of the judicial panels and chairmen of the judicial panels of this court, and decides other most important issues of organization of work and judicial practice.

Each arbitration court consists of a chairman, his deputies or deputy, judges and court staff.

Issues of the internal activities of arbitration courts and their relationships with each other, including issues related to the formation of judicial panels and judicial panels, are regulated in the Rules of Arbitration Courts, approved by a resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation (the latest version of the Rules was approved by a resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 30 December 2002 No. 12 6
See: Bulletin of the Supreme Arbitration Court of the Russian Federation. – 2003. – No. 3.

§ 3. Tasks and functions of arbitration courts

Tasks arbitration courts are determined by the goals of judicial activity, in general they can be divided into two groups: a) characteristic of all arbitration courts;

b) assigned only to the Supreme Arbitration Court of the Russian Federation. General tasks of all arbitration courts are enshrined in Art. 2 APC of the Russian Federation:

1) protection of violated or disputed rights and legitimate interests of persons engaged in entrepreneurial and other economic activities, as well as the rights and legitimate interests of the Russian Federation, constituent entities of the Russian Federation, municipalities in the field of entrepreneurial and other economic activities, government bodies of the Russian Federation, government bodies authorities of the constituent entities of the Russian Federation, local governments, other bodies, officials in this area;

2) ensuring accessibility of justice in the field of business and other economic activities;

3) a fair public trial within a reasonable time by an independent and impartial tribunal;

4) strengthening the rule of law and preventing offenses in the field of business and other economic activities;

5) formation of a respectful attitude towards the law and the court;

6) promoting the formation and development of partnership business relations, the formation of customs and ethics of business transactions.

In addition, as follows from the practice of economic justice, the task of arbitration courts is also to protect equally both private and public rights and interests.

The Supreme Arbitration Court of the Russian Federation is also entrusted with the following tasks:

study and generalize the practice of application of legislation by arbitration courts;

provide explanations on issues of judicial practice;

prepare proposals for improving legislation when implementing the right of legislative initiative;

maintain judicial statistics and control their maintenance in lower courts, implement measures to ensure the activities of arbitration courts in general (including in matters of logistics, personnel support, etc.).

The main task of legal proceedings in arbitration courts is the protection of violated or disputed rights in the field of business and other economic activities, which is implemented in a court decision.

Functions arbitration courts are as follows:

a) resolution of disputes arising in the field of business and other economic activities, i.e. implementation of economic justice;

b) prevention of violations of legislation in the economic sphere;

c) maintaining law and order and ensuring legal stability. In addition to general functions, the Supreme Arbitration Court of the Russian Federation, represented by its highest judicial body - the Plenum, provides explanations to arbitration courts on the application of legislation in the economic sphere for the purpose of its uniform and correct application. The practical significance of the decisions of the Plenum of the Supreme Arbitration Court of the Russian Federation is that “this is the development, based on an analysis of judicial practice, of the only correct interpretation of the law applied by arbitration courts and the organization of the work of courts in accordance with the position verified and communicated to them by the relevant resolution of the Plenum.” 7
See the resolutions of the Plenum of the Supreme Arbitration Court of the Russian Federation, adopted from April 1992 to November 2000 // Special supplement to the Bulletin of the Supreme Arbitration Court of the Russian Federation No. 1, January 2001 / Preface by V.F. Yakovleva. – P. 7.

Topic 2. Subject and system of arbitration procedural law

§ 1. Concept and stages of the arbitration process

In the arbitration process, the court, persons participating in the case, and other participants can perform only those actions that are provided for by the arbitration procedural rules, i.e., the Arbitration Procedure Code of the Russian Federation and other federal laws containing procedural rules. The arbitration court, the parties and other participants in the process are granted rights by arbitration procedural legislation, on the one hand, and, on the other hand, are assigned responsibilities corresponding to their procedural status.

The arbitration process has eight stages(scheme 2):

Scheme 2. Stages of the arbitration process.

1st stage– initiation of proceedings in the case. At this stage, the judge examines the received statement of claim, application and documents attached to it, finds out whether the case is within the jurisdiction of the arbitration court, whether jurisdiction has been met, whether the statement of claim has been signed by the proper person, whether the state duty has been paid in the prescribed manner and amount, whether requirements have been formulated for each of them. defendants, whether there are references to laws, whether the necessary documents are attached to the statement of claim or application. At this stage, the judge alone, within five days from the date of receipt of the statement of claim by the arbitration court, must decide the issue of accepting the statement of claim for proceedings, about which a ruling is made on accepting the case for proceedings, which initiates proceedings in the case (Article 127 of the Arbitration Procedure Code of the Russian Federation). If there are grounds, the judge alone may leave the statement of claim without progress and set a deadline for eliminating the shortcomings, and if they are not eliminated, as well as on other grounds provided for by the Arbitration Procedure Code of the Russian Federation, return the statement of claim (Articles 128-129 of the Arbitration Procedure Code of the Russian Federation).

5th stage– verification of the legality of judicial acts adopted by the court of first and appellate instances and entered into legal force by the court of cassation, i.e. proceedings in the court of cassation (Articles 273-291 of the Arbitration Procedure Code of the Russian Federation).

6th stage– verification of the legality of judicial acts adopted by the courts of three instances and entered into legal force, in the manner of supervision by the Supreme Arbitration Court of the Russian Federation, i.e. proceedings in the manner of supervision (Articles 292-308 of the Arbitration Procedure Code of the Russian Federation).

7th stage– review of judicial acts of arbitration courts that have entered into legal force based on newly discovered circumstances (Articles 309-317 of the Arbitration Procedure Code of the Russian Federation).

Abstract: Arbitration process and its stages. The concept of arbitration courts and their system

Introduction

Stages of the arbitration process

Plan:

1 The concept of arbitration courts and their system

2 Tasks and functions of arbitration courts

3 Questions for consolidating the material

The concept of arbitration courts and their system

2. Tasks and functions of arbitration courts

Lecture topic 2

Subject and system of arbitration procedural law

Plan:

2. Concept and subject of arbitration procedural law

3. Sources of arbitration procedural law

1. Concept and stages of the arbitration process

§ 2. Concept and subject of arbitration procedural law

§ 3. Sources of arbitration procedural law

Lecture topic 3

Principles of arbitration procedural law

Plan:

1. The concept of the principles of arbitration procedural law

2. Principles of arbitration procedural law

§ 1. Concept of principles of arbitration procedural law

§ 2. Principles of arbitration procedural law

3. Questions about consolidating the material

Lecture topic 4.

Jurisdiction and cognizance of cases before the arbitration court

Plan:

1. Jurisdiction of cases to the arbitration court, main criteria and types

2. Jurisdiction of cases by arbitration courts

4.Practical tasks

§ 1. Jurisdiction of cases to the arbitration court, main criteria and types

§ 2. Jurisdiction of cases by arbitration courts

3. Questions about consolidating the material

Indicate the procedure for determining the jurisdiction of cases in disputes between production workers?

Lecture topic 5.

Participants in the arbitration process

Plan:

2. Persons participating in the case, their procedural rights and obligations

3. Representation in arbitration court

4. Questions about consolidating the material

5.Practical tasks

1. The concept of participants in the arbitration process

2. Persons participating in the case, their procedural rights and obligations

3. Representation in arbitration court

Lecture topic 6.

Evidence in arbitration proceedings

1. The concept of evidence and means of proof

2. Types of evidence

3. Questions for consolidating the material

4. Practical tasks

1. The concept of evidence and means of proof

2. Types of evidence

Stages of the arbitration process:

Stages of arbitration proceedings in the court of first instance

Stages of arbitration proceedings for the revision of judicial acts (decisions, rulings, decrees)

N. A. Rogozhin Arbitration process: course of lectures

Preface

Topic 1. The system of arbitration courts in the Russian Federation

§ 1. History of the formation of arbitration courts in the Russian Federation

§ 2. The concept of arbitration courts and their system

§ 3. Tasks and functions of arbitration courts

Topic 2. Subject and system of arbitration procedural law

§ 1. Concept and stages of the arbitration process

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N. A. Rogozhin
Arbitration process: course of lectures