RESOLUTION OF THE PLENUM OF THE SUPREME ARBITRATION COURT OF THE RUSSIAN FEDERATION

of July 23, 2009 No. 57

About some procedural questions of practice of hearing of cases connected with non-execution or improper execution of contractual commitments

On the questions arising in court practice by consideration of the claims of creditors made in connection with non-execution or improper execution of contractual commitments, and also the claims which are intended for recognition of the relevant agreements invalid unconcluded or their change or termination, Arbitration Courts need to proceed from the following.

Owing to provisions of parts 2 and 3 of Article 41 of the Arbitral Procedure Code of the Russian Federation (further - the AIC of the Russian Federation, the Code) persons participating in case shall have honesty all procedural law belonging to them, including timely make counter claims (article 132 of the Code), to declare objections. Abuse of procedural law or non-execution of procedural obligations by persons participating in case attracts the adverse effects provided by the Code for these persons.

According to the provisions provided by part 2 Articles 9, parts 3 and 4 of Article of 65 AIC of the Russian Federation, persons participating in case, about each other arguments proofs on which they refer as to the basis of the requirements and objections, before other persons participating in case also shall reveal the having the right nobility, beforehand, prior to legal proceedings, considering at the same time that they bear risk of approach of effects of making or non-execution of the corresponding legal proceedings by them.

In view of stated, the Plenum of the Supreme Arbitration Court of the Russian Federation for the purpose of ensuring uniform approaches to permission of the arisen questions based on article 13 of the Federal constitutional Law "About Arbitration Courts in the Russian Federation" decides to make to Arbitration Courts the following explanations.

1. Initiation of independent production in the claim for contest of the agreement * including in case such claim is made by the founder, the shareholder (participant) of the organization or the other person to whom the right to presentation of the claim is granted by the law (Item 2 of Article 166 of the Civil code of the Russian Federation), in itself does not mean impossibility of consideration of the case about collection on the agreement ** in courts of the first, appeal, cassation and supervising instances owing to what shall not attract production suspensions on this case based on Item of 1 part of 1 Article of 143 AIC of the Russian Federation, and also execution suspension.

In that case courts should mean that effective judicial protection of the violated rights can be provided with the timely statement of objections or the counter action. Besides, the Arbitration Court considering case on collection on the agreement estimates the circumstances testimonial of zaklyuchennost and validity of the agreement irrespective of whether objections or the counter action are declared.

2. By preparation for legal proceedings of case on collection on the agreement the Arbitration Court determines circle of the circumstances important for the correct consideration of the case to which the circumstances testimonial of zaklyuchennost and validity of the agreement, including on observance of rules of its conclusion, about availability of powers to enter agreement at persons which signed it belong.

During consideration of the case the court researches the specified circumstances which, being established by the court resolution which took legal effect, are not subject to proof again by consideration of the claim for contest of the contract with participation of the same persons (part 2 Articles of 69 AIC of the Russian Federation).

Courts also should mean that irrespective of the list of persons participating in the case of collection under the agreement and in case on the claim for contest of the agreement, the assessment given by court to circumstances which are established in the case considered earlier is considered by the court considering the second case. If the court considering the second case will come to other conclusions, it shall specify the corresponding motives.

3. The court considering the claim for contest of the agreement in case of the statement the creditor of the counter action about collection under this agreement accepts it to production as between counter and initial claims there is interconnection and their joint consideration will lead to more bystry and correct permission of case (Item 3 parts 3 Articles of 132 AIC of the Russian Federation).

4. If case on collection on the agreement and case on the claim for contest of the agreement are initiated in one court, then such cases according to part 2 Articles of 130 AIC of the Russian Federation in view of coherence of matters in issue, availability of general list of persons can be united in one production for joint consideration provided that it will not lead to excessive delay in process on the first case.

5. As powers appeal (cassation, supervising) instances consist in check of court resolutions of subordinate instances in the limits determined by the AIC of the Russian Federation, courts need to consider that the court resolution of Arbitration Court or court of law which took legal effect which satisfies the claim for contest of the agreement does not attract cancellation (change) of court resolution on the case of collection under the agreement, and owing to Items 1 or 5 of article 311 of the Code is the basis for its review on newly discovered facts.

In this case in case of trial de novo the Arbitration Court suggests the claimant to specify claims (satisfies the petition of the claimant for refining of claims) in relation to article 49 of the Code.

6. The explanations containing in this resolution are applied also by hearing of cases, connected with non-execution or improper execution of obligations from unilateral transactions and contest of these transactions if it does not contradict their being.

_____________________________

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info