of October 31, 2013 No. APL13-467
About leaving without change of the decision of the Supreme Court of the Russian Federation of 07.08.2013 No. AKPI13-612 about refusal in allowance of the application about recognition invalid the order of FSSP of Russia of 10.12.2010 No. 682 "About approval of the Instruction on clerical work in Federal Bailiff Service"
Appeal board of the Supreme Court of the Russian Federation in structure:
chairman Manokhina G. V.,
members of board of Korchashkina T. E., Nazarovoy A.M.,
in case of the secretary To.,
with participation of the prosecutor Masalova L. F.,
considered in proceeding in open court civil case according to the statement of Utility Technologies of Volgograd open joint stock company (further - JSC Kommunalnye tekhnologii Volgograda) about recognition invalid the order of Federal Bailiff Service of December 10, 2010 No. 682 "About approval of the instruction on clerical work in Federal Bailiff Service"
according to the petition for appeal of JSC Kommunalnye tekhnologii Volgograda on the decision of the Supreme Court of the Russian Federation of August 7, 2013 by which satisfaction of the declared requirement it is refused.
Having heard the report of the judge of the Supreme Court of the Russian Federation Manokhina G. V., explanation of representatives of the Ministry of Justice of the Russian Federation of R., the representative of Federal Bailiff Service of B. objecting to petition for appeal arguments, the conclusion of the prosecutor Masalova L. F., believing the petition for appeal unreasonable,
Appeal board of the Supreme Court of the Russian Federation
the order of Federal Bailiff Service of December 10, 2010 No. 682 (further - the Order) approves the Instruction on clerical work in Federal Bailiff Service (further - the Instruction).
According to the conclusion of the Ministry of Justice of the Russian Federation the disputed act is acknowledged not needing state registration (the letter of December 30, 2010 No. 01/31973-DK).
The paragraph two and third Item 18.104.22.168 of the Instruction is provided that the registered mailing with the assurance of receipt to the addressee the resolution on excitement of enforcement proceeding goes to the debtor; according to the solution of authorized officers of Federal Bailiff Service (further - FSSP of Russia) the registered mailings, including with the assurance of receipt to the addressee, other documents can go.
The paragraph of Item 4.8.5 of the Instruction orders third that delivery notes and registers on sending correspondence are drawn up in duplicate, one of which after sending correspondence returns to expedition with mark of the operator of department of mail service, the courier or the other person providing sending correspondence and is stored in nomenclature case of Management of clerical work.
JSC Kommunalnye tekhnologii Volgograda appealed to the Supreme Court of the Russian Federation with the statement for recognition invalid the Order, referring to the fact that the disputed legal act did not undergo state registration and is not published according to the procedure, No. 763 established by Items 8 and 9 of the Presidential decree of the Russian Federation of May 23, 1996 "About procedure for publication and entry into force of acts of the President of the Russian Federation, the Government of the Russian Federation and regulatory legal acts of federal executive bodies".
Follows from contents of the initial statement that the applicant connects violation of the rights with the stated above legal statuses of Items 22.214.171.124 and 4.8.5 of the Instruction which considers contradicting articles 24 and 50 of the Federal Law of October 2, 2007 No. 229-FZ "About enforcement proceeding" and interfering realization of its rights as the parties in enforcement proceeding.
By the decision of the Supreme Court of the Russian Federation of August 7, 2013 allowance of the application it is refused.
In the petition for appeal of JSC Kommunalnye tekhnologii Volgograda asks to cancel the judgment stated above, including its illegal and unreasonable and to pass the new judgment on satisfaction of the declared requirements. According to the applicant, the disputed act contains signs of regulatory legal act as it is directed to establishment of precepts of law and is expected repeated application, is applied by Arbitration Courts by consideration of specific cases in this connection is subject to state registration. Besides, the applicant refers to the fact that practice of application of the challenged Instruction provisions actually deprives of the party in enforcement proceeding of the right to acquaintance with the relevant documents.
In judicial session of Appeal board of the Supreme Court of the Russian Federation the representative of JSC Kommunalnye tekhnologii Volgograda was not, the applicant is informed on time and the place of consideration of the case properly.
Having checked case papers, having discussed petition for appeal arguments, the Appeal board of the Supreme Court of the Russian Federation does not find reasons for its satisfaction.
According to the Presidential decree of the Russian Federation of March 9, 2004 "About system and structure of federal executive bodies" FSSP of Russia is a part of the system No. 314 federal executive bodies and has no right to perform in the established field of activity normative legal regulation, except the cases established by presidential decrees of the Russian Federation or orders of the Government of the Russian Federation (Item 1, the subitem "v" of Item 4, Item 13).
At the same time for the purposes of the Decree functions on acceptance of regulatory legal acts are understood as the edition on the basis and in pursuance of the Constitution of the Russian Federation, the Federal constitutional Laws, the Federal Laws obligatory for execution by public authorities, local government bodies, their officials, legal entities and citizens of the rules of conduct extending to the uncertain group of people (the subitem "an" of Item 2).
According to part 2 of article 11 of the Federal Law of July 27, 2006 "About information, information technologies and on information security" in federal executive bodies documentation of information is performed No. 149-FZ according to the procedure, established by the Government of Russian Federatsii.41
The clerical work as the activities providing creation of official documents and the organization of work with them in federal executive bodies is performed according to the Rules of clerical work in federal executive bodies (further - Rules) approved by the order of the Government of the Russian Federation of June 15, 2009 No. 477. On the basis of the specified Rules federal executive bodies taking into account conditions and specifics of the activities in coordination with federal executive body in the field of archiving publish instructions on clerical work (Item 3).
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