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INFORMATION LETTER OF PRESIDIUM OF THE SUPREME ARBITRATION COURT OF THE RUSSIAN FEDERATION

of November 25, 2008 No. 127

The presidium of the Supreme Arbitration Court of the Russian Federation considered the Overview of practice of application by Arbitration Courts of Article 10 of the Civil code of the Russian Federation and according to article 16 of the Federal constitutional Law "About Arbitration Courts in the Russian Federation" informs Arbitration Courts on the developed recommendations.

Appendix: the overview on 21 leaves.

Chairman of the Supreme Arbitration Court of the Russian Federation

A. A. Ivanov

Overview of practice of application by Arbitration Courts of Article 10 of the Civil code of the Russian Federation

1. The court of cassation instance refused satisfaction of the invalidation action of the solution of the board of directors of joint-stock company, having recognized presentation by the claimant of the specified requirement as abuse of the right to contest as violation of the charter of society in case of adoption of the disputed decision is caused by unfair actions of the claimant.

Citizen A., being the CEO of joint-stock company, appealed to Arbitration Court with the claim to joint-stock company (further - society) about recognition invalid solutions of the board of directors of society (further - the board of directors) which ahead of schedule stopped its powers and the new CEO is elected.

The resolution of the Trial Court left without change by the court order of appellate instance, the claim is satisfied in view of the following.

As followed from case papers, the charter of society provides: solutions of the board of directors concerning appointment and early termination of powers of the CEO of society are accepted by at least than five voices in case of compulsory attendance at meeting of all board members. The quantitative structure of the board of directors is determined by the charter of society in seven members.

The disputed decision is made at meeting of the Board of Directors in which six of his members participated. In spite of the fact that all being present at meeting voted for adoption of the mentioned decision, it, nevertheless, could not be accepted as contrary to requirements of the charter of society at meeting there were not all board members. Under such circumstances the disputed solution of the board of directors is illegal as accepted with violations of the requirements containing in the charter of society.

The court of cassation instance cancelled the called court resolutions, refused satisfaction of the claim for the following bases.

The provision of the charter of society according to which solutions of the board of directors concerning appointment of the CEO and early termination of its powers are accepted in case of compulsory attendance of all board members in itself does not contradict the legislation.

However in the case under consideration the claimant who, being the CEO of society, was also board member did not participate in meeting of the Board of Directors.

By court it is determined that the claimant was properly informed on the place and time of holding meeting of the Board of Directors, and also about its agenda, at the same time it did not dispute lack of reasonable excuses of nonparticipation in meeting.

Thus, the claimant, being person directly interested in rejection by the board of directors of the decision on early termination of own powers as the CEO used the specified provision of the charter of society in order that by means of absence in meeting of the Board of Directors to block adoption of this decision.

Refusing satisfaction of the declared requirement, the court of cassation instance recognized actions of the claimant as abuse of the right to contest of the solution of the board of directors as violation of the charter of society in case of adoption of the disputed decision is caused by unfair actions of the claimant (nonparticipation without valid excuse in work of the board of directors).

Taking into account the called circumstances the claim was not subject to satisfaction owing to provisions of paragraph one of Item 1 and Item 2 of Article 10 of the Civil code of the Russian Federation (further - the Civil Code of the Russian Federation, the Code).

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