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Герб России

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

of July 30, 2013 No. 61

About some questions of practice of consideration of the disputes connected with reliability of the address of the legal entity

Due to the questions arising in court practice on disputes on reliability of addresses of legal entities in case of their state registration the Plenum of the Supreme Arbitration Court of the Russian Federation based on article 13 of the Federal constitutional Law of 28.04.1995 No. 1-FKZ "About Arbitration Courts in the Russian Federation" decides to make to Arbitration Courts the following explanations.

1. In case of the dispute resolution, connected with reliability of the address of the legal entity, it is necessary to consider that owing to the subitem "v" of Item 1 of article 5 of the Federal Law of 08.08.2001 No. 129-FZ "About state registration of legal entities and individual entrepreneurs" (further - the Law) the address of permanent executive body of the legal entity (in case of absence of permanent executive body of the legal entity - other body or person having the right to act on behalf of the legal entity without power of attorney) is reflected in the Unified State Register of Legal Entities (further - the USRLE) for the purposes of implementation of communication with the legal entity.

The legal entity bears risk of effects of non receipt of the legally significant messages which arrived to its address specified in the USRLE, and also risk of absence to this address of the representative, and such legal entity has no right to refer in the relations with persons who were honesty relying on data USRLE on the address of the legal entity to the data which are not entered in the specified register and also to unauthenticity of the data containing in it (including to the inadequate notice during consideration of the case by court, within proceeedings about administrative offense, etc.), except as specified, when the relevant data are entered in the USRLE as a result of wrongful acts of the third parties or other way without volition of the legal entity (Item 2 of Article 51 of the Civil code of the Russian Federation; further - the Civil Code of the Russian Federation).

2. By consideration of the disputes connected with refusal in state registration of the legal entity <1>, Arbitration Courts need to take into account that the registering body based on the subitem "p" of Item 1 of article 23 of the Law has the right to refuse state registration in the presence of the confirmed information on unauthenticity of the provided data on the address of the legal entity, that is that such address was specified without intention to use it for implementation of communication with the legal entity.

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<1> Hereinafter as state registration of the legal entity it is understood including entering into the USRLE of the changes concerning data on the address of the legal entity (article 1 of the Law).

About unauthenticity of the called data can witness the following, in particular:

1) the address specified in the documents submitted in case of state registration according to data of the USRLE is designated as the address of large number of other legal entities, concerning all or considerable part of which there are data that communication with them to this address is impossible (representatives of the legal entity do not locate at this address and correspondence returns marked "the organization was disposed", "behind the storage expiration", etc.);

2) the address specified in the documents submitted in case of state registration actually does not exist or the real estate object which was to this address is destroyed;

3) the address specified in the documents submitted in case of state registration is the conditional postal address appropriated to object of construction in progress;

4) the address specified in the documents submitted in case of state registration obviously cannot freely be used for communication with such legal entity (addresses to which public authorities, military units, etc. are placed);

5) there is statement of the owner of the corresponding real estate object (other authorized person) for what it does not permit to register legal entities to the address of this real estate object.

In the presence of at least one of the listed circumstances of the data on the address of the legal entity are considered doubtful, if the applicant did not provide to registering body other data (documents), confirmatory that communication with the legal entity to this address will be performed.

At the same time courts should consider that in sense of item 4 of article 9 of the Law the registering body has no right to assign to person who filed the corresponding petition for state registration, burden of confirmation of reliability of the provided data on the address of the legal entity including by submission of additional documents in addition to provided by the Law.

3. The registering body shall motivate in an exhaustive way refusal in state registration, having specified not only the corresponding norm of the Law, but also all specific circumstances which, in his opinion, testify to unauthenticity of data on the address of the legal entity.

If by consideration of dispute on appeal of refusal in registration for motive of unauthenticity of the address the Arbitration Court determines that the refusal of registering body did not answer the mentioned criterion of disclosure of all motives of refusal, he is recognized illegal, at the same time the court obliges registering body to eliminate the allowed violation (Item 3 of part 4 of Article 201 of the Arbitral Procedure Code of the Russian Federation; further - the AIC of the Russian Federation).

4. Considering that the address of the legal entity is determined by the location of its permanent executive body, and in case of absence of permanent and executive body - other body or person having the right to act on behalf of the legal entity without power of attorney (Item 2 of article 54 Civil Code of the Russian Federation) and can differ from the address to which direct activities of the legal entity are performed, including economic (manufacture workshop, outlet, etc.), the registering body has no right to refuse state registration based on the fact that the room or the building which address is specified for the purposes of implementation of communication with the legal entity is unsuitable for implementation of activities of the legal entity in general or type of activity which is specified in the documents submitted for state registration. At the same time registration to the address of residential real estate object is admissible only when the owner of object gave on this consent; consent is supposed if the called address is the residential address of the founder (participant) or person having the right to act on behalf of the legal entity without power of attorney.

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