of March 23, 2012 No. 15
About some questions of participation of the prosecutor in arbitral procedure
Due to the questions arising in court practice concerning participation of the prosecutor in arbitral procedure and for the purpose of ensuring uniform approaches to their permission the Plenum of the Supreme Arbitration Court of the Russian Federation 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. Owing to Item 3 of article 1 of the Federal law "About Prosecutor's Office of the Russian Federation" prosecutors are involved in hearing of cases by Arbitration Courts according to the procedural legislation. Thus, Arbitration Courts in case of determination of powers of the prosecutor according to the appeal to Arbitration Court with the action for declaration (statement) or according to the introduction in the case considered by Arbitration Court should be guided by Article 52 of the Arbitral Procedure Code of the Russian Federation (further - the AIC of the Russian Federation, the Code).
Taking into account part 1 of Article 202 and part of 1 Article of 207 AIC of the Russian Federation as Chapter 25 of the Code does not establish other, powers of the prosecutor on participation in cases on administrative offenses are determined according to the Russian Federation Code of Administrative Offences.
Arbitration Courts should mean that the prosecutor has the right to appeal to Arbitration Court, in particular, with the requirement about liquidation of the legal entity owing to numerous or gross violation by this legal entity of exclusive rights on results of intellectual activities and at the expense of individualization, and also with the requirement about demolition of unauthorized construction for the purpose of protection of public interests (Articles 1253, 222 Civil codes of the Russian Federation).
In cases if the prosecutor appeals to Arbitration Court with the action for declaration (statement) on the cases which are not provided by the Federal Law, the court stops proceeedings in relation to Item of 1 part of 1 Article of 150 AIC of the Russian Federation.
2. On the cases specified in Item 1 of this resolution, the prosecutor has the right to enter at any stage of process in relation to part 5 of Article of 52 AIC of the Russian Federation.
If the prosecutor appeals to Arbitration Court with the declaration of accession to case according to the procedure of part 5 of Article of 52 AIC of the Russian Federation on the cases which are not provided by the Federal Law, the court refuses the introduction of the prosecutor in case about what takes out determination. The rules established respectively by Article 50 or 51 of the AIC of the Russian Federation are applied to such determination.
3. The prosecutor has the right to appeal to Arbitration Court with the application for cancellation of the substandard legal act if he believes that the challenged act does not correspond to the law or other regulatory legal act and violates the rights and legitimate interests of the uncertain group of people or other public interests in the sphere of business and other economic activity (paragraph one of part of 1 Article 52, part 2 Articles of 198 AIC of the Russian Federation).
If in case of consideration of the application of the prosecutor about contest of the substandard legal act the Arbitration Court determines that it is shown for the benefit of the particular person (persons) concerning whom the act is adopted, the court with reference to Item 1 of Article of 150 AIC of the Russian Federation stops proceeedings about contest of the substandard legal act.
The explanations concerning contest of substandard legal acts containing in this resolution are applied also in case of contest of decisions and actions (failure to act) of the bodies performing public powers.
4. In case of the appeal of the prosecutor to Arbitration Court on the cases listed in paragraphs second and third to part of 1 Article of 52 AIC of the Russian Federation if the agreement contains regulations on transfer of disputes from this contract for consideration of reference tribunal the prosecutor shall prove how the public interests in connection with the conclusion of this transaction are violated.
The Arbitration Court leaves the statement of the prosecutor without consideration in relation to Item 5 parts of 1 Article of 148 AIC of the Russian Federation if determines that the challenged transaction does not violate the public interests which the prosecutor in the address specifies.
5. If after adoption of the statement of the prosecutor by Arbitration Court to production and initiation of proceeedings of the party according to part 6 of Article of 4 AIC of the Russian Federation signed the devolution agreement of dispute for consideration of reference tribunal, the court continues substantive prosecution, without leaving the statement of the prosecutor without consideration.
6. If case, the possibility of the address on which is provided in paragraphs second and third part of 1 Article of 52 AIC of the Russian Federation, is considered by reference tribunal, the prosecutor has the right to challenge the decision of reference tribunal or to object to its forced execution if the decision infringes on interests of the Russian Federation, the subject of the Russian Federation, municipalities (further - public legal entity) which was not participating in arbitration.
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