LLC in court
Шрифт:
At the moment, the legislator does not impose special requirements for persons who can be representatives.
From the position of V. V. Vlasov, the occurrence of a dispute is a representative who has the appropriate knowledge, but does not have a higher legal education, can provide assistance no worse than a lawyer. Despite the ambiguity of this position, knowledge must also be confirmed by an appropriate document. According to L. V. Voitovich, the requirement of the CAS of the Russian Federation imposes such a criterion as the mandatory presence of a representative of higher legal education, enshrined in Part 1 of Article 48 of the Constitution of the Russian Federation. It is proposed to borrow the norm fixed by Part 1 of Article 55 of the CAS of the Russian Federation on the availability of higher legal education. It was proposed to make additions to Article 49 of the Civil Code of the Russian Federation.
Since the cost of services is currently quite high, legal entities are forced to turn to unqualified specialists.
According to Article 95 of the Civil Procedure Code of the Russian Federation, the cost of paying for the services of representatives refers to the costs associated with the consideration of the case. As noted by such figures as S. Y. Nekrasov and S. N. Fedulova, the representative is a participant in the civil process, but is not a person involved in the case. The composition of the persons participating in the case is defined in Article 34 of the Civil Procedure Code of the Russian Federation. According to such authors as A. S. Afanasyev and M. A. Vikut, a representative is a person who promotes justice. According to the Plenum of the Supreme Court of the Russian Federation in paragraph 17 of Resolution No. 11 of 06/24/2008, representatives of the parties are third parties or persons assisting justice. The main purpose of representation is to protect the rights and legitimate interests of its principal, and not to protect public interests or the interests of the state. Nevertheless, Article 54 of the APC of the Russian Federation indicates that representatives act as other participants who.
In the legal literature, general and special powers are distinguished. General powers are procedural actions that anyone has the right to perform on behalf of the principal. For example, familiarization with the case materials, statement of challenges, removal of copies, etc. (Article 35 of the Civil Procedure Code of the Russian Federation). Special powers are procedural actions performed by a representative when they are indicated in a power of attorney. These include , on the basis of 54 of the Civil Procedure Code of the Russian Federation :
1) signing of the statement of claim; 2) submission of a statement of claim to the court; 3) transfer of the dispute to the arbitration court; 4) filing a counterclaim; 5) full or partial waiver of claims; 6) reduction of the size of claims; 7) recognition of the claim; 8) change of the subject or the basis of the claim; 9) conclusion of a settlement agreement; 10) transfer of authority to another person (transfer of trust); 11) appeal of a court decision; 12) presentation of the enforcement document for collection; 13) receipt of the awarded property or money. For example, a lawyer appointed by the court has the right to appeal court rulings in this case (Article 50 of the Civil Procedure Code of the Russian Federation).
It is also worth noting that the requirements for the registration of the powers of a representative in civil proceedings are fixed in Article 53 of the Civil Procedure Code of the Russian Federation. Nevertheless, Article 185 of the Civil Procedure Code of the Russian Federation establishes the definition of “power of attorney”. So, a power of attorney is a written authorization issued by one person to another person for representation before third parties. Paragraph 125 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 23.06.2015 N 25, indicates that a written authorization, including representation in court, may be contained both in a separate document (for example, a power of attorney) and in a contract, a decision of the meeting, unless otherwise prescribed by law and does not contradict the essence of the relationship.
A power of attorney in court may be issued for representation on behalf of an individual or a legal entity. This document has a notarized form or is certified by organizations, their list is fixed in Part 2 of Article 53 of the Civil Code of the Russian Federation. Authorized by the right to certify a power of attorney on behalf of an individual: 1) the organization in which the principal works or studies; 2) homeowners' association; 3) a housing, housing and construction or other specialized consumer cooperative that manages an apartment building; 4) the managing organization at the place of residence of the principal; 5) the administration of the social service organization in which the principal is located, as well as the inpatient medical institution in which the principal is being treated; 6) the commander (chief) of the relevant military unit; 7) the powers of attorney of persons in places of deprivation of liberty shall be certified by the head of the relevant place of deprivation of liberty.
This list of entities that have the right to certify a power of attorney can be supplemented with an indication of the heads of legal entities. This is due to the fact that it is often necessary for a lawyer to present, in addition to a warrant in court, a power of attorney to perform certain procedural actions. This fact frees citizens from the need to apply to a notary and unnecessary costs. It should also be noted that Article 53 of the Civil Procedure Code of the Russian Federation, indicating that powers of attorney issued by citizens can also be certified by the head of the lawyer's education. The algorithm for issuing a power of attorney in notarial form is fixed by the “Fundamentals of the legislation of the Russian Federation on Notaries” dated February 11, 1993 N 4462-1. On behalf of organizations, powers of attorney may be certified by their managers or other persons to whom such a right is granted by constituent documents, orders, etc ., Part 3 of Article 53 of the Civil Procedure Code of the Russian Federation provides that a power of attorney on behalf of a legal entity is issued signed by its head with attached.
The head acts in court without a power of attorney from the organization. He submits to the court a document certifying the official status, and, if necessary, constituent documents, an order of appointment. With legal representation, a power of attorney is not needed. On the basis of Part 4 of Article 53 of the Civil Procedure Code of the Russian Federation, in order to confirm their powers in the judicial process, legal representatives must present documents confirming their professional status.
Based on paragraph 1 of Article 6 of the Federal Law of May 31, 2002 N 63 “On advocacy and advocacy in the Russian Federation”, the competence of a lawyer acting as a representative of the principal in the judicial process is regulated by the procedural legislation of the Russian Federation. According to Part 5 of Article 53 of the Civil Procedure Code of the Russian Federation, the powers of a lawyer are confirmed by a warrant issued by the relevant law school. An equally interesting example (the Resolution of the FAS of the Moscow District of 17.04.2013 in the case N A41-34105/12) is the concept in the Civil Code of the Russian Federation – lost profit: unpaid.
One of the most difficult moments in collecting lost profits is its calculation. And in this case there was a curious case.
The company "N" was supposed to supply the sole proprietor with vending machines for carbonated water, but it did not fulfill its obligations properly. Although the sole proprietor has already rented an area for them, ordered cups, etc . After applying to the court with a claim to compensate for losses, including in the form of lost profits. It is noteworthy that a profit calculator was used to calculate it, which was posted on the supplier's website (obviously for advertising purposes). And the district court found it lawful. It is also worth noting that at the beginning of 2022, the Consultant Plus system included 2 new calculators capable of calculating the penalty under N44-FZ. “Calculator of the penalty recovered from the customer according to N 44-FZ. Calculation of penalties and fines and "calculator of penalties collected from the supplier (contractor, contractor). Calculation of penalties and fines. This determines the amount of recovery from the supplier or the zac.
1. The introduction of innovations in electronic signatures has been postponed. The entry into force of the provisions on machine-readable powers of attorney was postponed to March 1. Moreover, before this date, commercial certification centers that have been accredited in 2021 can issue electronic signatures (EDS) to individual entrepreneurs and organizations for employees acting by proxy. In this case, the maximum validity period of certificates is until the end of 2022 (Federal Law No. 443–FZ of 30.12.21).