Arbitration process. Russian civil procedure Arbitration process. arbitration procedural form

  • Lawsuit
    • The concept and essence of claim proceedings
    • Concept of claim
    • Features characterizing a claim
    • Types of claims
    • Right to sue and right to satisfaction of claim
    • Procedural remedies for a defendant against a claim
    • Waiver of claim
  • Initiation of civil proceedings
    • Application to court by an interested person, acceptance of an application by a judge
    • Statement of claim
    • Legal consequences of initiating civil proceedings
    • Securing a claim
  • Preparing the case for trial
    • Objectives and content of case preparation
    • Performing optional preparatory actions
    • Assigning a case to trial
  • Civil litigation
    • Trial as a procedural function and procedural stage
    • Court hearing
    • Preparatory part of the court session
    • Consideration of the case on the merits
    • Judicial debate
    • Making and announcing the decision
    • Adjournment of the case
    • Suspension of proceedings in the case
    • Protocol of the court session
  • Decisions of the court of first instance
    • Concept and types court orders
    • Essence and meaning court decision
    • Requirements for a court decision
    • Contents of the court decision
    • Elimination of shortcomings of the decision by the court that issued it
    • Legal force of a court decision
    • Determination of the court of first instance
  • Absentee proceedings
    • Absentee proceedings – simplified procedure for trial of claims
    • Absentee decision
    • Protection of the rights and interests of the defendant in absentee proceedings
  • Legal proceedings in cases arising from management legal relations
    • The essence of legal proceedings in cases arising from managerial legal relations
    • Consideration of complaints about actions and decisions that violate the rights and freedoms of citizens
    • Judicial authorization of certain enforcement actions
    • Consideration of prosecutors' protests regarding the recognition of legal acts as illegal
  • Special production
    • General characteristics and composition of special production
    • Establishing facts of legal significance
    • Recognizing a citizen as missing and declaring the citizen dead
    • Recognition of a citizen as having limited legal capacity or incapacity
    • Declaring a minor fully capable (emancipation)
    • Recognition of a thing as ownerless
    • Determining incorrect records of acts civil status
    • Complaints about notarial acts or refusal to perform them
    • Restoration of rights under lost bearer documents (call proceedings)
    • Proceedings in cases of forced hospitalization of a citizen in a psychiatric hospital
    • Judicial adoption of children
  • Self-control of the court of first instance
    • Miscarriages of justice
    • Filling up the shortcomings of the trial
    • Cancellation of a court order
    • Redefinitions
    • Review of decisions
  • Review of decisions and determinations by the court cassation instance
    • The essence of cassation review of decisions that have not entered into legal force
    • The right to cassation appeal and protest decisions
    • Consideration of cases on cassation complaints (protests) by the court of second instance
    • Grounds for canceling and changing decisions
    • Powers of the cassation court
    • Cassation definition
    • Private appeal (protest) and review of rulings of the court of first instance
  • Review of decisions, determinations and regulations by way of supervision
    • Appointment of a supervisory review institution
    • Supervisory review is the exclusive way to verify the legality of decisions, determinations and regulations
    • Proceedings in presidiums of courts
  • Russian civil process with international elements
    • Legal status of foreigners in Russian civil proceedings
    • International jurisdiction of civil cases
    • Legal assistance in civil cases
  • Enforcement proceedings
  • The concept of arbitration proceedings
  • The concept of arbitration proceedings
    • The essence of arbitration proceedings
    • International commercial arbitration
    • Arbitration (arbitration) procedures and decisions
  • The concept of notarial proceedings
    • Organization and competence of the notary in Russia
    • Notarial proceedings and its principles
    • General rules notarial proceedings

Stages of the arbitration process

Arbitration proceedings in accordance with the APC are divided into eight stages, each of which is a set of actions united by the immediate procedural task. The composition of the stages and their content in arbitration proceedings are close to the stages of civil proceedings.

1. The initiation of legal proceedings covers the filing of a claim by an interested person and the actions of the arbitration judge in connection with such an appeal (acceptance of the statement of claim, refusal to accept, return of the statement of claim).

In the arbitration process, the previously mentioned rules for going to court apply.

In accordance with them, the applicant is obliged:

a) make up statement of claim in accordance with Art. 102.104 APC. The details of the statement of claim are basically the same as when applying to the courts. general jurisdiction. At the same time, the law requires that laws and other laws be indicated in the application. regulations, in accordance with which the claims and the case is subject to resolution. The Code also establishes a list of documents attached to the statement of claim;

b) send a copy of the statement of claim and the documents attached to it to other persons participating in the case;

c) pay state fee in accordance with current law.

If the applicant complies with the requirements of the law, the judge accepts the application for proceedings arbitration court. The judge based on Art. 107 of the APC refuses to accept an application if the applicant does not have the right to file a claim (the dispute is not within the jurisdiction of the arbitration court, there is an act of justice on an identical dispute that has entered into legal force, there is a case in progress on an identical dispute, etc.). Return of the statement of claim in accordance with Art. 108 of the APC is possible if the person who filed the application did not comply with the rules for going to court or violates the conditions for the lawful exercise of the right to file a claim.

Similar requirements apply to filing counterclaims (Article 110 of the APC).

2. Preparing a case for trial includes the following actions:

a) procedural preparatory actions listed in Art. 112 APK. The arbitration judge performs the actions required by the materials of a particular case. It is possible that the legal service will prepare the claim material so conscientiously that the judge will have no need to carry out preparatory actions;

b) clerical activities (a mandatory element of preparing a case): sending requests, sending subpoenas, summoning participants in the trial to a meeting of the arbitration court, etc. Without properly structured and clearly functioning clerical work, the successful administration of justice is impossible;

c) the appointment of a case for trial completes the preparation of the case and consists of determining the time and place of the trial of the case, calling the participants.

Preparing a case for trial, like other procedural activities, is unthinkable without intellectual activity.

Before performing any procedural action, the judge must consider:

what legal relations exist between the parties to a particular case;

what circumstances form the subject of proof;

who has a legal interest in the consideration and resolution of this case;

what preparatory actions need to be performed taking into account the level of preparedness for the examination of the submitted material.

Intellectual activity is required in every case, without exception.

3. The trial takes place in a meeting, the procedural form of which was significantly influenced by two mutually exclusive factors:

a) many years of stable and widespread practice of holding meetings in state arbitration, when the proceedings of the case were most similar to a meeting of business executives, and the procedural rules were reduced to a minimum;

b) the existing procedure for holding meetings in courts of general jurisdiction.

In the current APC regulations, meetings are devoted to Art. 115–120,122. In general, the procedure for trial is simple and expedient.

The trial covers not only the explanation of the parties, the examination of evidence and the making of a decision, but also the elimination of external shortcomings of the decision (its clarification, correction of typos, typos and arithmetic errors, adoption of an additional decision), familiarization of the participants in the arbitration process with the minutes of the court hearing, submission of comments, their acceptance or rejection by the judge.

4. Appellate review decisions. An appeal (from the Latin word appelatio - complaint, appeal) is one of the forms of appeal, referral for review of the case on the merits, review of decisions of the court of first instance that have not entered into legal force. During the review, the appellate authority checks the legality and validity of the resolution of the case. Having identified judicial errors, she has the right to cancel and change the decision and make a new decision on the case.

Appellate review is carried out on appeals by arbitration courts of the second instance. At the same time, they strive to detect irregularities committed during the trial of the case, the composition of which is the same in civil and arbitration proceedings (cf. Art. 158 of the Arbitration Procedure Code and Art. 306–308 of the Code of Civil Procedure). Based on the results of the review, a decision is made.

5. Cassation review of decisions in arbitration proceedings is carried out in relation to decisions of the court of first instance and decisions of the appellate instance that have entered into legal force. Cassation appeals can be filed interested parties within a month after the decision or ruling of the arbitration court comes into force. During the review, the cassation instance only checks the correct application of the law by the court and does not analyze the validity of its decision. Her powers are the same as those supervisory authority in civil proceedings (cf. Art. 175 of the Arbitration Procedure Code and Art. 329 of the Code of Civil Procedure). The legality of the arbitration court's rulings can be verified by cassation procedure.

6. Review of decisions and resolutions by way of supervision is carried out upon protests of the Chairman of the Supreme Arbitration Court and his deputy. Protests are considered by the Presidium of the Supreme Arbitration Court, to whose hearing the persons participating in the case may be summoned. The powers of the Presidium are the same as the powers of the presidiums of courts of general jurisdiction. The grounds for the exercise of their powers are illegality and unreasonableness judicial act(Article 188 of the APC).

7. Review of judicial acts based on newly discovered circumstances is carried out based on applications from persons participating in the case, submitted no later than a month from the date of discovery of these circumstances.

The composition of these circumstances is identical in arbitration and civil proceedings (cf. Art. 192 of the Arbitration Procedure Code and Art. 333 of the Code of Civil Procedure); the review is also of the same type in arbitration courts and courts of general jurisdiction.

8. The execution of judicial acts is far from completely regulated by the Arbitration Procedural Code. In arbitration proceedings, only the issuance of writs of execution, as well as their duplicates and presenting them to enforcement. The execution of arbitration court decisions itself is regulated by the Federal Law “On Enforcement Proceedings”.

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, the stage of the arbitration process is a set of procedural actions in a specific case, united by a single procedural goal.

The arbitration process consists of 6 stages:

1. proceedings in the arbitration court of first instance;

2. proceedings in the court of appeal;

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.

Each of these stages performs its own special functions in the arbitration process system.

The stage of proceedings in the arbitration court of first instance is aimed at resolving the dispute on the merits.

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 are 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 or 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 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 borne in mind that enforcement proceedings are 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 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 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: initiation of proceedings at the appropriate stage, preparation of the case for consideration and its resolution 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 stage of the trial itself 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 * (9).


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.
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 (Initiation of a process), preparing a case for trial, conducting a trial, etc.
The first (initial) stage of the arbitration process is the initiation of proceedings in the case. The object of procedural actions and legal assessment The arbitration judge at this stage is a statement of claim with all the materials attached to it, its study from the point of view of the jurisdiction and jurisdiction of the case, as well as other criteria necessary for accepting the case for proceedings. At this stage, the judge alone makes a decision to accept the case for proceedings. If there are grounds for this, the judge alone may leave the statement of claim without progress or return the statement of claim. The issue of accepting a statement of claim for the proceedings of the arbitration court is decided by the judge alone within five days from the date of its receipt by the arbitration court.
After the initiation of a case in an arbitration court, the stage of preparing materials for consideration at the hearing follows.
The purpose of this stage is to ensure the correct and timely resolution of the case by the court.
Preparation of the case for trial must be completed within a period not exceeding two months from the date of receipt of the application by the arbitration court, by holding a preliminary court hearing.
The judge, having recognized the case as prepared, makes a determination to assign the case to trial.
If the persons participating in the case are present at the preliminary court hearing and they do not object to the continuation of the consideration of the case in the court session of the arbitration court of the first instance, the court ends the preliminary hearing and opens the court session in the first instance, unless, in accordance with the Arbitration Procedure Code of the Russian Federation A collegial review of this case is required.
3. The main stage of the arbitration process is the trial. It is considered fundamental because it examines and resolves disputes on the merits and provides 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 the adoption of a decision, but it is possible to terminate the proceedings or leave the claim without consideration.
The case must be considered by the arbitration court of first instance and the decision must be made within a period not exceeding a month from the date of the court’s ruling on assigning the case to trial, unless otherwise established by the Arbitration Procedure Code of the Russian Federation.
4. Appeal proceedings. Persons participating in the case, as well as other persons in cases provided for by the Arbitration Procedure Code of the Russian Federation, have the right to appeal, through the appellate procedure, a decision of the arbitration court of first instance that has not entered into legal force.
The appeal is filed through the arbitration court that made the decision in the first instance, which is obliged to send it along with the case to the appropriate arbitration court of appeal within three days from the date the complaint was received by the court.
The appeal cannot state new claims that were not the subject of consideration in the arbitration court of first instance.
An appeal may be filed within a month after the arbitration court of the first instance makes the appealed decision, unless a different period is established by the Arbitration Procedure Code of the Russian Federation.
The arbitration court of appeal considers appeal to the decision of the arbitration court of first instance within a period not exceeding one month from the date of receipt of the complaint by the arbitration court of appeal, including the period for preparing the case for trial and the adoption of a judicial act.
5.

Cassation proceedings. Persons participating in the case, as well as other persons in cases provided for by the Arbitration Procedure Code of the Russian Federation, have the right to appeal, in cassation proceedings, the decision of the arbitration court of the first instance, which has entered into legal force, with the exception of decisions of the Supreme Arbitration Court Russian Federation, and (or) the decision of the arbitration court of appeal in whole or in part.
A cassation appeal is submitted to the arbitration court of the cassation instance, which is authorized to consider it, through the arbitration court that made the decision.
The cassation appeal is being considered in the federal arbitration court of the district.
The arbitration court that made the decision is obliged to send the cassation appeal along with the case to the appropriate arbitration court of the cassation instance within three days from the date of receipt of the complaint by the court.
A cassation appeal may be filed within a period not exceeding two months from the date of entry into force of the appealed decision or ruling of the arbitration court, unless otherwise provided by the Arbitration Procedure Code of the Russian Federation.
The arbitration court of cassation considers a cassation appeal against the decision of the arbitration court of the first instance and (or) the decision of the arbitration court of appeal within a period not exceeding one month from the date of receipt of the cassation appeal together with the case to the arbitration court of cassation, including the period for preparing the case for trial and adoption of a judicial act.
Review of judicial acts by way of supervision. Persons participating in the case, and other persons in cases provided for by the Arbitration Procedure Code of the Russian Federation, have the right to challenge a judicial act in the manner of supervision if they believe that this act has significantly violated their rights and legitimate interests in the field of entrepreneurial and other economic activities as a result of violation or incorrect application the arbitration court that adopted the contested judicial act, substantive law or procedural law. An application or submission for review by way of supervisory review of a judicial act may be submitted to the Supreme Arbitration Court of the Russian Federation within a period not exceeding three months from the date of entry into force of the last judicial act adopted in this case, if other available possibilities for verification have been exhausted. judicial procedure the legality of the said act. The application or presentation does not immediately go to the Presidium of the Supreme Arbitration Court of the Russian Federation for consideration, but is first considered by a single judge of the Supreme Arbitration Court of the Russian Federation within five days from the date of receipt. At this stage, the application may be accepted or returned to the applicant if there are grounds for this. Then, within a month, a collegial composition of judges of the Supreme Arbitration Court of the Russian Federation in a court session, without notifying the persons participating in the case, considers this application and determines whether there are grounds for review. If there are grounds, the case is referred for consideration to the Presidium of the Supreme Arbitration Court of the Russian Federation and is considered with the participation of interested parties, or the court issues a ruling refusing to transfer the case for consideration to the Supreme Arbitration Court of the Russian Federation, and then the same person re-applies on the same grounds with an application to review the same a judicial act by way of supervision is not allowed.
Revision of judicial acts based on newly discovered circumstances. A decision or ruling adopted by an arbitration court of first instance that has entered into legal force is reviewed based on newly discovered circumstances by the court that adopted this decision or ruling. The review, based on newly discovered circumstances, of decisions and rulings of the arbitration court of the appellate and cassation instances, adopted in the procedure of supervision of decisions and rulings of the Supreme Arbitration Court of the Russian Federation, which amended the judicial act of the arbitration court of the first, appeal and cassation instances or adopted a new judicial act, is carried out by the court that changed the judicial act or adopted a new judicial act. An application for revision of a judicial act that has entered into legal force due to newly discovered circumstances is submitted to the arbitration court that adopted this judicial act by the persons participating in the case no later than three months from the date of discovery of the circumstances that are the basis for revising the judicial act. An application for review of a judicial act that has entered into legal force due to newly discovered circumstances is considered by the arbitration court at a court hearing within a period not exceeding a month from the date of its receipt by the arbitration court.
8. The arbitration process in the case must end with the execution of the decision of the arbitration court 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.
NOTES
1 It should be noted that some of the arguments, both for and against, were expressed in theoretical studies devoted to arbitration, that is, before the creation of the system of arbitration courts of the Russian Federation.
2 See: Lesnitskaya L., Klein N. Concept of development of civil procedural and arbitration procedural legislation // Legal reform: concept of development Russian legislation. M.: Publishing house of the Institute of Legislation and Comparative Law under the Government of the Russian Federation. 1995. pp. 169-174.
3 See: Arbitration process / Ed. M. Treushnikova. M., 1995.
pp. 9-24.
4 See: Civil process/ Rep. ed. K. Komissarov and Y. Osipov. M., 1996. P. 13.
5 See: Civil procedure: Textbook / Ed. M.S. Shakaryan.
M., 1993. P. 14-15.
6 See: Shakaryan M. Protection of human and civil rights in civil proceedings // General theory human rights.
M., 1996. P. 235.
7 Fursov D. The branch of arbitration procedural law in the legal system // Legislation and economics. 1999. No. 1. P. 50.
8 See: Commentary on part one of the Civil Code of the Russian Federation. M., 1995. P. 32 (Commentary to art. 1-7 by M. Braginsky).
9 Decree. op. P. 32.
10 Fursov D. Decree. op. pp. 42-43.
11 See: Zhuikov V. Judicial protection of the rights of citizens and legal entities. M., 1997. P. 301.
12 See: Yakovlev V. New rules for resolving economic disputes. Russian newspaper dated July 27, 2002.
13 For more details, see: Travkin A.A., Karabanova K.I. Arbitration process in Russia: emergence and development // Legislation and economics. 2003. No. 1. P. 38-44.
14 See: Bulletin of the Supreme Arbitration Court of the Russian Federation. 1994. No. 11.
15 See: Russian Legal Journal. 1993. No. 2. P. 104-122.
16 See: Bulletin of the Supreme Arbitration Court of the Russian Federation. 1995. No. 11. P. 82-85.

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

There is an arbitration process established by standards Arbitration procedural law is a form of activity 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.

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.

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 on claims, as well as statements in cases of 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 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.

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 that regulate 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 borne in mind that enforcement proceedings are 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.

A new provision of arbitration procedural law is that at any stage of the arbitration process and during the execution of a judicial act, the parties can conclude settlement agreement(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 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.

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 stage of the trial itself at the stage of proceedings in the arbitration court of first instance are most fully regulated.

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 a 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 training manual, 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, which at that time considered trade, bill of exchange cases and cases of commercial insolvency, i.e., 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 in administrative procedure higher management bodies. With the development of economic relations, especially in the 20s. last century - during the period of the New Economic Policy (NEP), the need arose to create a special body to resolve disputes between state enterprises and institutions, in connection with which in 1922 Russia was created 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.

By a resolution of the Central Executive Committee and the Council of People's Commissars of the USSR on May 3, 1931, state arbitration was established, which resolved disputes between socialist institutions and enterprises and carried out 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).

The system of these arbitrations was abolished on October 1, 1991 with the introduction of the RSFSR Law “On the Arbitration Court,” which served as the basis for replacing arbitrations 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 in 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 business and other economic activities, with the participation of legal entities, citizens - individual entrepreneurs, as well as the Russian Federation, a subject of the Russian Federation, government agencies, organs local government 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 may be created that are separate divisions 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.

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.


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 highest court in relation to 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 check the legality of judicial acts of the first instance that have not entered into legal force and at the same time reconsider the merits in appeal procedure 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 judicial panels and chairmen of judicial panels of this court, decides other most important issues organization of work and judicial practice.

In approximately the same way it is determined internal structure arbitration courts of the constituent entities of the Russian Federation, with the only difference 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 panels.

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 ( latest edition The Regulations were approved by 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”.

§ 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, bodies state power of the Russian Federation, government bodies of the constituent entities of the Russian Federation, local government bodies, other bodies, officials in the specified 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 authority– The Plenum provides explanations to arbitration courts on the application of legislation in the economic sphere in order to ensure 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.”

Topic 2. Subject and system 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 legal protection 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 necessary 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– checking the legality of judicial acts, accepted by the courts 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").

See: Arbitration process: Textbook for universities / Ed. prof. M. Treushnikova. – M.: BEK, 1993. – P. 2-3.

See: Arbitration process: Textbook for universities / Ed. prof. M. Treushnikova. M.: BEK, 1993. – P. 3.

See: Gazette of the Supreme Soviet of the RSFSR. – 1991. – No. 30. – Art. 1013-1014; 1992. – No. 34. – Art. 1965.

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.



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