Discussions on how to change the Code of Administrative Procedure (CAP) began immediately after it came into force. Thus, it is known that the Code will include writ proceedings, which will reduce the burden on the courts (see. “Changes have been prescribed for monthly CAS”). But There are other problems, lawyers point out: some of them were “inherited” by CAS, others he created himself. Some issues have been resolved by the Supreme Court's instructions, but legislative intervention may be required.

In mid-September, the Code of Administrative Procedure came into force, discussions about the need for which had been going on in legal circles for about ten years. But the long-awaited document required edits, and it is unknown how many more will be done. "Pravo.ru" asked experts to tell us what difficulties they encountered when working with CAS and what solutions they see.

Jurisdiction of public law disputes

The new CAS has not resolved the problem of jurisdiction over public law disputes, says Elena Ovcharova, head of the administrative and legal protection group for business, Pepeliaev Group:

The code does not contain clear criteria that would help distinguish between the concepts of “civil case” and “administrative case”. As a result, some disputes involving relationships of authority and subordination will continue to be dealt with in civil proceedings.

According to Ovcharova, an act of judicial interpretation may help here, stating that if the decision is declared invalid, the payments collected under it must be returned. Thus, the Supreme Arbitration Court resolved a similar problem in Plenum Resolution No. 57 of July 30, 2013. It states that in tax disputes there is no need to separately present property claims if they are related to non-property ones.

The legislator inconsistently implements the idea of ​​considering public law disputes in an administrative manner, because arbitration courts still consider administrative cases in accordance with the Arbitration Procedural Code (APC), Ovcharova points out. In her opinion, the provisions of the CAS should also apply to arbitration courts.

New requirements for representatives in administrative cases

Unlike the Civil Procedure Code (CPC), the CAS establishes that representatives must have a higher legal education. What documents confirm their powers is a very pressing question in practice, says Ovcharova. She knows of cases when judges did not allow not only lawyers, but also prosecutors to participate in a case, because they did not present a university diploma. Confirmation of the status and powers of a lawyer also causes contradictions in law enforcement, the specialist believes.

She points out that the Review contains answers to these questions judicial practice Supreme Court No. 3 of November 25, 2015. It states that lawyers and prosecutors do not need to show proof of higher education to participate in administrative proceedings. A lawyer confirms his authority with a power of attorney and a certificate, and if he is appointed by a court, only a warrant is sufficient, says the Review.

Appealing the prosecutor's submissions

The practice of arbitration courts (including decisions of the Presidium of the Supreme Arbitration Court) indicated that the prosecutor’s submissions cannot be appealed, because they cannot in themselves be considered as violating rights and legitimate interests, says Ovcharova. It is obvious to her that such an approach violated the constitutional guarantee of judicial protection. The situation was corrected by Review of Judicial Practice of the Supreme Court No. 3 dated November 25, 2015, which states that the prosecutor’s submission can be appealed not only under Chapter 22 of the CAS, but also under Chapter 24 of the Arbitration Procedure Code.

Appealing acts with normative properties

Acts with generally binding rules in the form of letters previously could not be appealed to the Supreme Court, since they did not meet the formal characteristics of normative legal acts, says Ovcharova. The situation changed after constitutional Court adopted resolution No. 6-P of March 31, 2015 (see “The Constitutional Court did not agree with the formal approach of the Supreme Court and the Supreme Arbitration Court”). To implement it, a bill “On Amendments to the Code of Administrative Procedure” was prepared Russian Federation(in terms of establishing the procedure for judicial consideration of cases of challenging individual acts)." It establishes the procedure for judicial consideration of cases of challenging acts that contain clarifications of legislation and have regulatory properties, says Ovcharova. She is confident that such changes in the CAS will become an additional guarantee of protection from illegal acts of government agencies adopted in violation of the requirements for order and form.

Class action lawsuits

The legislator introduced class actions formally and did not establish any specific features for them, draws attention Roman Rechkin, senior partner of Intellect-S. This entails many contradictions, which, in essence, deprive the institution of legal meaning, he criticizes.

For example, the CAS does not distinguish procedural complicity (when there are several administrative co-plaintiffs) from a class action, so it is impossible to answer the question of whether it is necessary to notify each of the “collective plaintiffs” about the time and place of the consideration of the case. If necessary, then the meaning of the new institution is lost, because the same notification rules apply to familiar co-plaintiffs, Rechkin believes.

In his opinion, the legislator has not determined any real legal consequences of exercising the right to judicial protection in a collective form. Its meaning is that the court considers the case once and makes a decision that is binding on all participants in the relationship, even if they decide not to join the lawsuit, says the senior partner of Intellect-S. However, CAS implements a strange half-structure, Rechkin is perplexed:

After such a claim has been resolved, a person other than the class may challenge the same subject matter. The court will make a separate decision on his request, and it is possible that it will contradict the decision on the class action, which in this case does not have any prejudicial significance.

A good example Rechkin considers Chapter 28.2 of the APC on the protection of the rights and interests of a group of persons, as well as the norms of the Civil Code on challenging the decisions of meetings, to solve the problem. So, paragraph 6 of Art. 181.4 of the Civil Code establishes that community members who did not join the claim do not subsequently have the right to challenge the decision (unless they have good reasons for doing so).

Modern technologies

Despite the fact that CAS was adopted in the 21st century, it ignores or complicates the use of modern technologies, says Rechkin. For example, a rule that allows documents to be sent to court in in electronic format, will come into force only on September 15, 2016. But there is a more serious problem:

Documents must be signed with strong digital signature persons who issued them (part 3 of article 45 CAS). This approach only formally gives the right to provide information in electronic form, but in fact makes it impossible.

According to Rechkin, transferring documents via the Internet should be made as simple and convenient as possible, for which you can take already proven solutions from current system"My referee."

Rechkin considers it significant that the main method of notification to the CAS is court summons, which is delivered by mail. There are other ways, such as SMS messages or Email, only for this purpose the court for some reason needs to have the written consent of the person, says the lawyer. He believes that the main method of notification should be electronic, because Cell Phones, almost all residents of Russia have email. To do this, you can use an account on State Services or Personal Area taxpayer, suggests Rechkin. “In this case, the court does not have to obtain consent to the notification,” he clarifies.

Anyone who witnesses an offense, regardless of whether it is a citizen or a legal entity, has the right to write a complaint to the prosecutor's office, which sets out the alleged violation. The duties of the prosecutor's office include responding to such requests. A response is usually considered to be a written response and further actions to resolve the violation. The prosecutor is preparing a written submission. However, in case of certain ambiguities in the document, everyone has the right to appeal the prosecutor’s submission.

What is a prosecutor's representation?

In accordance with the Law “On the Prosecutor's Office of the Russian Federation”, the representation of the prosecutor is the active actions of the prosecutor to respond to violations of the law. When making a determination, the prosecutor instructs the person to eliminate the mistakes and violations made. From the moment the determination is issued, exactly one calendar month is given to eliminate the violation. During this time, specific actions are taken to eliminate identified violations. All measures that have been taken are reported to the prosecutor who issued the ruling in the form of a written document.

The content of the definition is imperative, because if it is not fulfilled, the person will be punished. Often, the document indicates all the nuances and methods for eliminating the violation, so it is not at all difficult to carry them out, however, there are submissions that do not contain specific steps to resolve this or that issue. In this case, the person has the right to appeal. The fact is that federal law cannot boast of rules that regulate the correctness of the content of such a prosecutor’s document. At the same time, the fact that such norms do not exist does not mean that the prosecutor should not appeal under articles of law in his submission.

How to appeal the prosecutor's submission?

When a proposal comes from the prosecutor's office, the person who receives it has two options. Either the ruling is implemented or it is appealed. An appeal against the actions of the prosecutor is possible only through the courts, since not a single federal law contains a provision according to which a person who has received a representation in his name can write a response to the prosecutor. But, again, if there is no such norm, this does not mean that you can enter into controversy with the body that issued the decision. this document. Typically, the prosecutor's response is resorted to if the determination does not contain specific methods for eliminating violations.

Court as a method of appeal

If the party in whose name the representation was made decides to appeal it, he must go to court. A written form of appeal is mandatory, therefore a correctly drawn up document is the key to success in the process of appealing such a document. When appealing, the reasons why the prosecutor's presentation is incorrect are indicated. If it contradicts the norms, they must be indicated.

At the same time, failure to comply with the prosecutor's proposal must be carried out if a decision is made not to appeal it. The Code of Administrative Offenses contains an article that states that in case of failure to comply with the request, the person will be punished by a fine of a certain amount of money.

Prosecutor's protest

Another type of active action by the prosecutor to comply with his obligations, which were established by federal law, is a protest. This document is issued by the prosecutor in relation to an act of a particular body that contradicts the legislation of the Russian Federation; the implementation of such an act will be a violation. There is no information on how to appeal a prosecutor’s protest in more than one article of the federal law, but in fact the procedure for appealing a representation and a protest is not at all different. This issue is being resolved in court.

The protest itself must be considered within 10 days from the date of its issuance. The prosecutor must also be notified of the outcome of the review. Article 23 contains a clause according to which the prosecutor has the right to withdraw his protest without giving reasons.

The federal law contains a number of other methods of control and supervision over compliance with the law, which are perhaps the main activity of the prosecutor's office. If you need clarification on questions on this topic, the lawyers of our portal will be happy to advise you.

Sample objections to the prosecutor's submission on civil case, taking into account the latest changes in legislation. The prosecutor takes part in the consideration of a limited range of civil cases. The list of such cases is given in Article 45 of the Civil Procedure Code of the Russian Federation.

The prosecutor who took part in the case has the right. The failure of the prosecutor to appear to participate in the case does not deprive him of the opportunity to appeal. A prosecutor's complaint against a court ruling or decision is called a presentation. If the prosecutor was not involved in the case and does not have the right by law to participate in the case, he cannot appeal the court decision. Persons participating in the case, if the prosecutor submits a presentation, have the right to submit their objections to it.

If the prosecutor refers to a violation by the court of procedural norms when considering a case, to circumstances that he misinterpreted, filing objections for persons who agree with the court’s decision is mandatory. Objections are submitted in writing, addressed to the court of second instance, and submitted to the court that issued the judgment. The deadline for filing objections will be indicated in the notice from the court, which will include a copy of the prosecutor's submission.

No objections. The person who filed objections to the prosecutor's submissions is not required to attach additional evidence to it. Participation in a court hearing of the second instance is a right, but not an obligation, of citizens. However, it should be noted that the prosecutor usually takes part in this court hearing.

In __________________________ (name of court)

From: _________________________ (full name, address)

OBJECTIONS

to the prosecutor's submission

“___”_________ ____ the city of ____________ (name of the court) a decision (ruling) was made in the civil case of _________ (full name of the plaintiff) against _________ (full name of the defendant) about _________ (indicate the essence of the claims). The decision (ruling) of the court _________ (indicate how the case (issue) was resolved on the merits).

The prosecutor _________ participated in the consideration of the case (indicate in what capacity the prosecutor participated in the case, as an applicant in the interests of a specific citizen, an indefinite number of persons, or the state, or was brought by the court to participate in the case to give an opinion). “___”_________ ____ the prosecutor received a submission to the court order, which stated _________ (indicate what the prosecutor requires in his submission).

I object to the arguments presented by _________ (indicate why the arguments of the prosecutor’s presentation are not justified, what circumstances the prosecutor presented incorrectly, what laws are interpreted incorrectly).

The court's decision (determination) fully complies with the law. The circumstances of legal significance in the consideration of the case were correctly established by the court. The prosecutor's arguments were checked by the court of first instance, but the court did not reasonably agree with them on the grounds specified in the decision. I believe that there are no grounds for satisfying the prosecutor’s request and canceling the court decision.

Based on the above, guided by Articles 327.1, 330 of the Civil Procedure Code of the Russian Federation,

Ask:

Leave the decision (ruling) of the court dated “___”____ ____ without change, the prosecutor’s proposal is not satisfied.

List of documents attached to objections(copies according to the number of persons participating in the case):

1. Copy of objections
2. Additional evidence supporting existing objections

Date of filing objections: “___”_________ ____ Signature of the applicant: _______ ________________________________________________________________