Procedural forms of protection of rights and legitimate interests. Accessibility of justice and alternative forms of protection of disputed law Concept and types of forms of protection

GENERAL (JUDICIAL) PROCEDURE FOR THE PROTECTION OF CIVIL RIGHTS

The general procedure for protection is the most popular form of protection of civil rights among participants in civil transactions. Since in this form there is a certain sequence of actions established and sanctioned by the state. In the general order, the bulk of cases are considered through civil, constitutional proceedings.

The judicial (general) form among all possible forms of protection plays an important role, as it is historically formed, structured in detail by the rules of procedural law and is universal in the legal context. It acts as a grenade for the reliable application of the law in the field of delimitation of the rights and obligations of the parties.

Judicial activity, which exists primarily to protect the interests of citizens, as well as in cases and organizations established by law, projects the principle of democracy. It should be noted that the right to judicial protection is a constitutional right. Everyone is guaranteed judicial protection of his rights and freedoms - proclaims the Constitution of the Russian Federation (clause 1, article 46). No one can be deprived of his property except by a court decision (clause 3, article 35 of the Constitution of the Russian Federation).

Judicial power in the protection of civil rights and legitimate interests by courts of general jurisdiction is exercised through civil proceedings.

Civil proceedings (civil process) is the procedure for civil proceedings, determined by the rules of civil procedural law.

Civil cases are understood as cases arising from a wide range of legal relations - constitutional, administrative, financial, land, civil, labor, housing, family legal relations. The objectives of civil proceedings are the protection of violated or contested rights, freedoms and legally protected interests of citizens, organizations and their associations, as well as the protection of state and public interests, the prevention of offenses.

The beginning of the implementation of the judicial procedure for the protection of civil rights is the will of the person concerned, expressed in a statement (claim, in cases of special proceedings), which reflects the requirements and their justification. The judge checks the presence or absence of the court's competence to consider the legal relationship. If the specified legal case is within the framework of the judicial form of protection from the procedural and material side, then the court issues a ruling on accepting the application for proceedings. This legal fact will mark the moment of the emergence of a civil case.

The court, interested persons, persons assisting justice and other participants in the civil process, in the course of consideration and resolution of the case, perform certain actions (participate in the meeting, challenge, give explanations, etc.) Such actions are related to the consideration of the case, the adoption of a decision, its appeal, execution, the court, the persons participating in the case, the persons assisting justice and other participants in the civil process in a civil case, can be carried out only within the framework of the procedural law and, on this basis, are called procedural actions that constitute a single whole civil process.

Civil process as a collective category covers the procedural actions of the court, persons participating in the case and other participants in the process, as well as their procedural rights and obligations. In order to achieve justice, the court and other participants are endowed with certain procedural rights that correspond to procedural legislation with duties. During the process there is a real application of rights and obligations. The court, all other participants, in order to achieve the goals of justice, are granted by law certain procedural rights with the assignment of appropriate procedural duties to them. Procedural rights and obligations are implemented in the course of the process. For example, the right to apply to the court is exercised by filing a statement of claim, the right to defense against a claim - by filing objections to it or presenting a counterclaim. The right of the plaintiff and the defendant to participate in the court session corresponds to the obligation of the court to properly notify the parties of the time and place of the session. The participants in the process enter into social relations with the court as an authoritative body, which are regulated by the norms of civil procedural law and are therefore civil procedural relations.

Thus, the civil process is the unity of procedural actions, procedural rights and obligations of the court, other participants in the process. The main, but not the only subject of civil procedural activity is the court (first instance, cassation instance, court considering protests in the order of supervision). The process includes the activities of other persons interested in the outcome of the case, namely: plaintiffs - citizens and organizations that ask the court to protect their rights and legitimate interests; defendants - citizens and organizations held accountable for the stated claim; third parties; applicants in cases of special proceedings. Interested in the outcome of the case, citizens and organizations, their representatives, the procedural law provides the opportunity for active participation at all stages of the process. The court, as its main participant, must not only comply with all procedural rules of law, but also seek their implementation by all participants in the process.

Civil process (civil proceedings) is the activity of the court of first instance regulated by the norms of civil procedural law in considering, resolving civil cases, appealing or protesting judicial acts, considering complaints and protests by higher courts in the cassation and supervisory procedure, as well as the activities of the court in enforcement proceedings.

The peculiarity of the relations arising in legal proceedings lies in the fact that they can be carried out only in the manner and forms established by the norms of civil procedural law, and all participants in the process are endowed by law with certain procedural rights and obligations.

In the process of this activity, only those actions are performed that are predetermined by procedural norms, and therefore civil procedural relations always act in the form of procedural legal relations, and the civil process itself (civil proceedings) is an inextricable link (system) of actions and legal relations.

Thus, all the activities of the court, as well as the persons participating in the process, take place in a special form, called procedural.

The characteristic features of the civil procedural form are that:

a) the procedure for consideration and resolution of court cases is predetermined by the rules of procedural law;

b) persons interested in the outcome of the case enjoy the right to participate in the court session during the consideration of the case and defend their rights and interests;

c) the court decision on the case must be based on the facts established in the court session with the help of evidence, and comply with the law (Article 197 of the Code of Civil Procedure).

The civil procedural form of protection of the right provides the parties interested in the outcome of the case with certain legal guarantees of the correctness of the resolution of the dispute, the equality of procedural rights and procedural obligations. It obliges the court to consider and resolve disputes about the law and at the same time strictly observe the norms of substantive and procedural law, make lawful and reasoned decisions in court in compliance with the law.

SPECIAL ORDER

Administrative (special) form of protection of civil rights, as well as the judicial form, it acts as a legislatively provided system of significant actions of a person whose rights, legitimate interests are violated or disputed by illegal actions of the competent state bodies or officials, by appealing to the supervisory authorities or higher authorities, which are in charge of considering complaints.

A distinctive feature of the administrative form from the judicial one is the procedural means by which the protection of violated civil rights is carried out. In court, the main remedy is a lawsuit, and for an administrative one, a complaint is filed with the appropriate body.

The content of the administrative form of protection is a set of rights and obligations arising in connection with filing a complaint. Characteristic of the administrative protection of civil rights is the fact that the content of administrative protection for a person whose rights have been violated is characterized by the existence of only rights. So, the victim has the right to file a complaint with a higher authority, and can apply for protection to the court. But if he has chosen an administrative procedure for protection, then the relevant state body is obliged to consider the complaint within a certain period of time, take measures on it, and inform the person complaining about the wrong actions of state bodies and their officials in writing.

Paragraph 2 of Art. 11 of the Civil Code of the Russian Federation contains a provision according to which the protection of civil rights in the administrative procedure is carried out only in cases provided for by law. I would like to note that this rule on the possibility of appealing against unlawful actions of state bodies and their officials only in specially provided cases implies a mandatory administrative procedure for appealing against such actions. Since no one has the right to forbid a person whose civil rights have been violated by the actions of a civil servant to turn to his superior with a demand to stop the violation committed by his subordinates, which, in principle, he, as a leader, is even obliged to do. If the leader refuses the relevant request, then the victim retains the right to appeal against the actions of both the violator and his leader in court.

Along with the alternative possibility to appeal the illegal actions of state bodies and their officials to higher or judicial bodies, there continues to be a procedure for mandatory initial administrative justification. Which, of course, infringes on the rights of citizens and, in principle, contradicts the Law “On Amendments and Additions to the Law of the Russian Federation “On Appeal to Court of Actions and Decisions Violating the Rights and Freedoms of Citizens””, which expanded the circle of bodies and persons, decisions and actions ( or inaction) which can be challenged in court. All civil servants are now included in their number. The responsibility of a civil servant in this case, in accordance with Art. 5 of the Federal Law of July 31, 1995 “On the Fundamentals of the Public Service of the Russian Federation” No. 119 - FZ, comes in connection with his obligation to recognize, observe and protect the rights and freedoms of man and citizen. It establishes the principles of public service and the decisions taken, non-performance or improper performance of their official duties.

Collective and individual actions, which can now be appealed to the court, also include the provision of official information that has become the basis for the commission of actions that violate the rights and legitimate interests of citizens. This circumstance is of great importance, for example, for obtaining permission from the bodies of the State Committee for Antimonopoly Policy to conclude a transaction for the acquisition of a block of shares with the right to vote in the authorized capital of a business company, in which such a person acquires the right to dispose of more than 20 percent of these shares.

An example of such an appeal against the decision of the antimonopoly service can be cited from the judicial practice of arbitration courts case No. A40-71572 / 05-72-185. The applicant Novichkov S.B. to the Office of the Federal Antimonopoly Service of Russia for the city of Moscow (hereinafter - OFAS) on the recognition of illegal inaction, expressed in the failure to take measures to correct the violations committed during the issuance of the conclusion of November 24, 2004 No. 5-7793 on the satisfaction of the petition of Babaev M.A. on the acquisition of a 38% stake with voting rights in OAO Mosoblprommontazh, as well as on the obligation to cancel the said opinion.

Article 33 of the Basic Law of the Russian Federation - the Constitution establishes the basis for the legal regulation of the administrative form of protection, which consists in the fact that citizens of the Russian Federation are guaranteed the right to apply personally, as well as send individual and collective appeals to state bodies and local governments.

In accordance with this rule, the possibility of appealing against unlawful actions and decisions of state bodies in higher bodies is provided for in almost all regulatory legal acts that provide authority to commit such actions.

In the absence or adoption of an unlawful decision and action of the administrative body, paragraph 2 of Art. 46 of the Constitution of the Russian Federation provides the right to appeal in court. It should be borne in mind that the law provides for a period of one month for filing a similar complaint with the court against an administrative body, from the date of receipt of a refusal to satisfy it. Other normative legal acts may also establish a different period for judicial challenging of such actions.

In cases where the complaint is satisfied, the decision must be canceled, or the actions or inactions of the lower bodies or officials who adopted them are recognized as unlawful. A complaint, like a statement of claim, can be satisfied in full or in part. If a complaint is filed against the actions of law enforcement agencies that issued a decision to bring to administrative responsibility, then if it is satisfied, the proceedings on the case of an administrative offense are terminated or an order is issued to appoint an additional check (if such, for example, is necessary to prove the guilt of the person involved as an offender).

Sometimes, when satisfying a complaint, a higher body or official recognizes the action or inaction of a lower body or official as unlawful and at the same time determines a list of actions that must be taken in order to eliminate the violations committed (or a higher body, official independently performs such actions, if applicable). to his jurisdiction).

In the event of an administrative appeal, the decision of a lower body or official may be changed, for example, the amount of the fine may be reduced or another penalty may be imposed instead of the fine. At the same time, the law prohibits imposing a more severe penalty, for example, replacing a warning with a fine or increasing the amount of the fine.

Refusals to consider complaints are possible if the written form of filing an appeal is not observed, the deadlines for appealing are violated. A refusal will follow if the document is not signed by the applicant or is signed by a person who does not have the appropriate authority to carry out representation (see "Representation"). Your appeal will not be considered if it does not contain an indication of the subject of appeal, the body (official) whose actions are being appealed, as well as the person on whose behalf the complaint is filed.

In these and other cases, the applicant must be sent a written refusal to consider the complaint, indicating the reasons. The decision to refuse to accept the complaint for consideration may be appealed in accordance with the general procedure. In addition, having received an explanation of the reasons for the refusal and having eliminated the shortcomings, you have the right to file a complaint with a similar content again.

The decision on the complaint must explain the procedure for further appealing against the decision, actions or inaction of the authorized bodies and their officials with reference to the relevant legislative norms that provide for the possibility of such an appeal.

The secondary appeal of decisions, actions or inaction of control bodies and their officials is carried out in the courts. However, you can also contact the prosecutor.

It should be noted that in many cases, the higher authorities and their officials learn about violations committed by lower bodies and their officials precisely from complaints received from legal entities and individuals. A guilty official may be subject to disciplinary liability (reprimand, reprimand, warning of incomplete official compliance, release from a civil service position to be replaced, dismissal from the civil service).

The subject of the complaint, unlike other appeals, is the applicant's demand for the restoration of his violated rights. If the applicant requests the fulfillment (implementation) of his legitimate aspirations, then such an appeal is not essentially a complaint. When filing a complaint, the applicant, firstly, reports a violation of his rights, and secondly, demands their restoration.

The grounds for the complaint, its “legal structure” are circumstances indicating non-compliance with the requirements of the current legislation of the decisions, actions or inaction of the authorized bodies and their officials, affecting the applicant directly and individually.

A characteristic feature of the complaint is the presence in the text of the document (as a rule, in its final part) of the person's demand for the restoration of his violated rights and legitimate interests, which is based on the recognition of illegal decisions and actions of control bodies and their officials.

The difference between complaints and other appeals in terms of legal consequences is that the response to a complaint is the basis for a second appeal against decisions, actions or inaction of control bodies in court. The remaining appeals are considered in the prescribed manner in accordance with the rules of office work.

One can give a specific example of appealing against the actions or inaction of the court apparatus, namely the activities of the court office. In practice, a frequent phenomenon of delaying the execution of judicial acts is artificially created red tape by court employees. You can file a complaint with the immediate supervisor - the chairman of the court in which the office is located. The complaint should indicate that in case of inaction of the authorized official considering the violation of the office, the complaint will be sent to the High Qualification Board of Judges of the Russian Federation.

You can file a complaint in three ways:

Directly at a personal appointment with the judge to convey a complaint;

File a complaint with the office. Having given a copy of the complaint with you: give one to the office workers, and keep the second with you after the person who received the complaint puts a mark on the acceptance of the complaint.

Send the complaint by mail, as a registered letter with acknowledgment of receipt and description of the attachment.

On September 15, 2015, the Code comes into force, providing for a specially systemically regulated procedural law, the implementation of the protection of violated or contested rights, freedoms and legitimate interests of citizens, the rights and legitimate interests of organizations, as well as other administrative cases arising from administrative and other public legal relations and related with the implementation of judicial control over the legality and validity of the exercise of state or other public powers.

A significant problem of using the procedures of the administrative form of protection of civil rights is the lack of desire of citizens to protect their rights in an administrative manner. This is often caused by an overly bureaucratic system and the position of the built hierarchy of administrative bodies, originally aimed at protecting the honor of the uniform. Another problem can be called the low level of publication of norms by departments aimed at protecting civil rights.

ARBITRATION COURT

Alternative methods of resolving legal disputes are becoming more common in the Russian Federation. In our country, along with the resolution of disputes in the administration of justice by state courts, an alternative system for resolving disputed legal situations between subjects of civil legal relations has also developed. The elements of this system are mediation, negotiations and arbitration.

Arbitration occupies an important place in the system of protection of civil rights, being an alternative jurisdictional form of their protection. Such an interpretation is given in the Resolution of the Constitutional Court of the Russian Federation, which confirmed that the arbitration court is not an authority, but an institution of civil society, endowed with publicly significant functions.

Arbitration is the consideration and resolution of a dispute by an independent neutral judge of the arbitration court (or a panel of judges), who is authorized to make a binding decision for the parties. Arbitration proceedings have a more complicated procedure for considering a dispute. The procedure for considering a dispute in an arbitration court is similar to the proceedings in a state court, but reasonably dispositive. To initiate arbitration proceedings, it is also necessary to draw up and send a statement of claim to the arbitration court, the court must make a ruling on accepting the case for proceedings, appoint an arbitration court session, notify the parties of the time and place of arbitration proceedings, etc. With regard to negotiations or mediation, the law does not impose such requirements. Unlike mediation, arbitration ends with the adoption of a binding decision for the parties. These issues are regulated by the Federal Law on Arbitration Courts. Thus, the arbitration proceedings are more complicated in their structure than other methods of alternative dispute resolution in terms of procedure, only the arbitration court has its own procedural form.

The activities of arbitration courts are aimed at resolving disputes submitted for their consideration arising from civil legal relations, and adopting acts of legal significance based on the results of such consideration. This activity is carried out exclusively in procedural forms. However, the procedure for the formation of procedural norms on the basis of which arbitration courts operate has significant features. The source of the relevant procedural forms is both the norms of the current legislation and those norms that are established by agreement of the parties submitting the dispute to arbitration. The regulation of the procedure, the procedural order of the activity of the arbitration court is aimed at ensuring the rights of persons whose dispute is referred to the arbitration court for resolution. Outside of the established procedure, the activities of the arbitration court cannot be carried out. Any action performed within the framework of the arbitration process by the arbitral tribunal and the persons participating in the arbitration proceedings is of a procedural nature and can only be implemented within the framework of a certain procedure. This is one of the signs of the jurisdictional nature of the activities of the arbitration court. Arbitration concluded in a procedural form is a system of established rules familiar to the parties, the observance of which is necessary to resolve the case.

The procedure for arbitration proceedings is regulated in most detail by the legislation of the Russian Federation. The use of other forms of ADR, such as mediation and negotiations, does not guarantee that as a result of them the parties will come to a unanimous decision, while when the case is referred to an arbitral tribunal, the parties transfer the right to make a decision to an arbitrator or a panel of judges. In this case, the arbitral tribunal makes a decision after examining all available evidence and after hearing the arguments of both parties to the dispute.

In particular, the guarantee of ensuring the equality of the rights of the parties and objectivity in the consideration of a dispute is the direct participation of the parties to the dispute in the formation of the composition of the Arbitration Court, the parties to the dispute have more opportunities in creating an evidence base, researching and disclosing evidence; the right of the parties to independently agree on the application of the rules of arbitration that are convenient for them is provided, which contributes to the achievement of a compromise and the conclusion of a settlement agreement.

The decision in the case will be binding and the legislation also provides for the enforcement of the decision of the arbitration court by issuing a writ of execution by the state court. Thus guaranteeing the parties the strict execution and implementation of this type of decision, not by the state jurisdictional body, into an act binding for execution in a specific legal relationship.

Thus, in the ADR system, it is arbitration proceedings that play the most significant role, and it is this type of proceedings that can rightly be called the main form of alternative dispute resolution.

Tax regulation and insurance

At the same time, the administrative procedure does not deny the possibility of subsequently applying for protection to the court, or an alternative procedure for protecting the rights of subjects of tax legal relations is provided. At the same time, the Tax Code of the Russian Federation establishes two conditions, the observance of which is necessary to protect the violated rights of taxpayers or tax agents: non-normative acts of tax authorities, as well as actions of inaction of official bodies of these bodies, should, in the opinion of the taxpayer or tax agent, violate their rights; regulatory legal...

Administrative procedure for the protection of violated rights of taxpayers.

The administrative method involves applying for protection and restoration of the violated right to a higher authority (in relation to the authority that made the decision or performed the action). At the same time, the administrative procedure does not deny the possibility of subsequently applying for protection to the court, or an alternative procedure for protecting the rights of subjects of tax legal relations is provided.

At the same time, the Tax Code of the Russian Federation establishes two conditions, the observance of which is necessary to protect the violated rights of taxpayers or tax agents:

non-normative acts of the tax authorities, as well as actions (inaction) of the official bodies of these bodies, in the opinion of the taxpayer or tax agent, should violate their rights;

normative legal acts of tax authorities are appealed in the manner prescribed not by the Tax Code of the Russian Federation, but by other federal legislation.

Also subject to appeal are decisions of higher tax authorities made on the consideration of taxpayers' applications for illegal actions, inaction or acts of lower tax inspectorates.

Acts of tax audits are not subject to administrative or judicial appeal, since they do not in themselves contain prescriptions binding on taxpayers that entail legal consequences.

In tax law, the administrative appeal procedure does not have the nature of a pre-trial procedure, therefore filing a complaint with a higher tax authority (superior official) does not exclude the simultaneous or subsequent filing of a similar complaint with the court.

A complaint against an act of a tax authority, actions or omissions of its official shall be filed respectively with a higher tax authority or a higher official of this authority.

A complaint to a higher tax authority (superior official) shall be filed, unless otherwise provided by this article, within three months from the date when the taxpayer found out or should have found out about the violation of his rights. Substantiating documents may be attached to the complaint.

The complaint is submitted in writing to the relevant tax authority or official.

A higher body or a higher official within a month from the date of receipt of the complaint is obliged to consider it and take one of the following decisions:

dismiss the complaint;

cancel the act of the tax authority and appoint an additional audit;

cancel the decision and terminate the proceedings on the case of a tax offense;

change the decision or issue a new decision on the merits of the circumstances of the case.

Any of the decisions taken within 3 days is reported to the person who filed the complaint.

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dated November 28, 2018 N 451-FZ "On amendments to certain legislative acts of the Russian Federation" concept " jurisdiction of the arbitration court" is replaced by the concept of "competence of the arbitration court" (from the date of commencement of the activities of the courts of cassation of general jurisdiction and courts of general jurisdiction, but no later than October 1, 2019).

Depending on whether the law refers the resolution of a certain category of cases to the jurisdiction exclusively of any one body or several different bodies, jurisdiction is divided into

exceptional (special);
multiple.

Exclusive jurisdiction

Special Jurisdiction Rules are characterized by the fact that certain categories of cases are assigned to the jurisdiction of the arbitration court, regardless of the subject composition and other criteria. The use of these rules makes it possible to distinguish between the jurisdiction of arbitration courts and courts of general jurisdiction.

According to the terminology of the Arbitration Procedure Code of the Russian Federation, the following categories of cases are assigned to the special jurisdiction of arbitration courts (Article 33 of the Arbitration Procedure Code of the Russian Federation):

on insolvency (bankruptcy);
on disputes specified in Article 225.1 of the Arbitration Procedure Code of the Russian Federation (cases on corporate disputes);
on disputes on refusal of state registration, evasion of state registration of legal entities, individual entrepreneurs;
on disputes arising from the activities of depositories related to the registration of rights to shares and other securities and the exercise of other rights and obligations provided for by federal law;
on disputes arising from the activities of state corporations and related to their legal status, the procedure for managing them, their creation, reorganization, liquidation, organization and powers of their bodies, responsibility of persons included in their bodies;
on disputes on the protection of intellectual rights with the participation of organizations exercising collective management of copyright and related rights, as well as on disputes referred to the jurisdiction of the Court for Intellectual Property Rights in accordance with part 4 of Article 34 of this Code;
on the protection of business reputation in the field of entrepreneurial and other economic activities;
other cases arising in the course of entrepreneurial and other economic activities, in cases provided for by federal law.

All cases listed in Art. 33 and 225.1 of the Arbitration Procedure Code of the Russian Federation are considered by the arbitration court, regardless of whether the participants in the legal relations from which the dispute or claim arose are legal entities, individual entrepreneurs or other organizations and.

Multiple Jurisdiction

Multiple jurisdiction rules allow resolving certain categories of cases both by state courts (general jurisdiction, arbitration) and arbitration courts.

Multiple jurisdiction, depending on the method of choosing from among several jurisdictional bodies to which the case has jurisdiction under the law, can be divided into:

contractual (determined by mutual agreement of the parties);
imperative (the case is considered by several jurisdictional bodies in a sequence determined by law);
alternative (at the choice of the person seeking protection of their rights).

negotiable jurisdiction is determined by mutual agreement of the parties. For example, if there is an agreement between the parties, a dispute arising from civil legal relations between organizations is accepted for consideration by the arbitration court.

imperative called jurisdiction, in which the case is considered by several jurisdictional bodies in a sequence determined by law. Imperative jurisdiction covers the following cases:

the case before being referred to the arbitration court is subject to consideration in accordance with federal law or the agreement of the parties in a mandatory claim procedure;
when federal law provides for a preliminary out-of-court procedure for resolving a case in an administrative manner, for example, by tax authorities.

Thus, the claim procedure is established by federal law on the requirements for changing or terminating the contract. In this case, a claim may be filed by a party to an arbitration court only after the other party has received a refusal to propose to amend or terminate the contract, or if a response has not been received within the time period specified in the proposal or established by law or the contract, and in its absence, within 30 days (p. 2 article 452 of the Civil Code of the Russian Federation).

As for the pre-trial procedure for resolving conflicts, such a legal possibility is established by a number of federal laws, mainly on disputes related to the payment of tax and mandatory non-tax payments. So, according to Art. 104 of the Tax Code of the Russian Federation, before applying to the court, the tax authority is obliged to offer the person held liable for committing a tax offense to voluntarily pay the appropriate amount of the tax sanction.

Alternative called jurisdiction at the choice of the person seeking protection of their rights. In accordance with the traditionally accepted interpretation of the rules of alternative jurisdiction, a person interested in resolving a dispute has the right to apply at his own discretion to any body named in the law. Under the current legislation, an interested person, having applied for an out-of-court settlement of a dispute in accordance with the rules of alternative jurisdiction, is not deprived of the right to go to court (Article 46 of the Constitution of the Russian Federation).

Therefore, at present, alternative jurisdiction has practically lost its independent legal significance in cases where it is an alternative between the judicial and administrative procedures for appeal. As for cases of alternative jurisdiction between courts of general jurisdiction and arbitration courts, such situations are possible due to the ambiguous interpretation of the legislation on jurisdiction by courts of general jurisdiction and arbitration courts.

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Current legislature. The Law of April 27, 1993 “On Appeal to Court of Actions and Decisions Violating the Rights and Freedoms of Citizens” provides that every citizen has the right to go to court if he considers that illegal actions (decisions, later - inaction) of state bodies, local self-government , organizations, associations or officials, state, municipal employees violated his rights and freedoms.

1. Actions, inaction of a large circle of subjects are appealed to the court.

2. The formula "if he believes ..." means that the violation of rights may be genuine or imaginary.

3. The unequal terms "action" and "decision".

Subject of appeal. Appealed are collegial and sole decisions, actions (including the provision of information as a basis for making a decision), as a result of which:

Violated rights and freedoms;

Obstacles have been created for the exercise of rights and freedoms;

Illegally imposed duty or liability.

Correlation with the administrative procedure for considering appeals. The solution to the problem of jurisdiction of administrative and legal disputes is different depending on what principle is taken as the basis.

There are two principles in the world:

1. The general "clause" (general provision) means the fundamental possibility of a judicial appeal against any individual or normative act that affects the rights and legitimate interests of citizens or organizations.

2. List principle, i.e. by listing the contested disputes.

 There is also a sequential and alternative procedure for judicial review.

Distinguish between the right to general and special judicial complaint.

A general complaint means that any decision, action, act can be appealed to the court by any citizen.

A special complaint is filed by an entity with a special status (serviceman, student, etc.) regarding special legal relations. It is regulated by special regulations (Arbitration Procedure Code of the Russian Federation, Criminal Procedure Code, Code of Administrative Offenses of the Russian Federation).

Deadlines for filing a complaint:

3 months from the moment when the person learned about the violation of his right;

1 month - from the date of receipt of a written notice of refusal to satisfy the complaint;

1 month from the expiration of the one-month period for responding to the complaint.

Deadlines may be extended by court order.

Rules for consideration of appeals. Consideration of appeals is carried out according to the rules established by the Code of Civil Procedure of the Russian Federation (chapters 23-25).

The court considers cases arising from public legal relations:

a) at the request of citizens, organizations, the prosecutor on contesting normative legal acts;

b) on applications to challenge decisions and actions (inaction) of state authorities, local governments, officials, state and municipal employees.

Article 247 of the Code of Civil Procedure of the Russian Federation regulates the procedure for applying to the court. In contrast to the administrative procedure, a citizen does not file a complaint, but with a statement in which it must be indicated which decisions, actions (inaction) should be recognized as illegal, what rights and freedoms of a person are violated by these decisions, actions (inaction).

The appeal of the interested person to a higher authority in the order of subordination or to an official is not a prerequisite for filing an application with the court. Thus, Russian law establishes an alternative procedure for filing a complaint: either to a higher authority or to a court.

burden of proof

The obligation to prove the circumstances that served as the basis for the adoption of a normative legal act, its legality, as well as the legality of the contested non-normative acts, actions (inaction) of state authorities, local governments, officials, state and municipal employees are assigned to this body or official.

Place of consideration

An application may be filed by a citizen with a court at the place of his residence or at the location of the body of the official, the decision, action (inaction) of which is disputed.

Terms of consideration

The application is considered by the court within ten days with the participation of a citizen, head or representative of the body whose acts or actions (inaction) are disputed.

Results of consideration of the application: satisfaction or refusal to satisfy the application.

 If the application is satisfied, it is recognized as justified and the duty of the relevant body of the official to eliminate in full the committed violation of the rights and freedoms of a citizen or an obstacle to the exercise by a citizen of his rights and freedoms is established. This court decision is sent to eliminate the committed violation to the head of the body, the official whose decisions, actions (inaction) were challenged, or to a higher authority in the order of subordination within three days from the date the court decision enters into legal force.

The court and the citizen must be informed of the execution of the court decision not later than within a month from the date of receipt of the decision.

Question No. 12. Fundamentals of the administrative and legal status of legal entities (organizations). Ways to protect their rights. (I can't find part 2 anywhere)

Collective subjects of administrative law are organized groups of people who are in stable relationships. Collective subjects of administrative law are divided into two groups: those with and without state powers. Executive authorities (as well as other institutions endowed with power) act as a subject of management, other collective entities (enterprises, institutions, organizations, public and religious associations) act as objects of management.

Collective subjects are organized, isolated, self-governing groups of people, acting outside as something unified (not personified by individuals).

 is functionally and organizationally isolated, has goals, objectives, functions, acts on the basis of the rule of law, is recognized as a legal entity.

 consists of people, but it is not personalized, impersonal, which means that the replacement of the composition does not affect the legal significance of this subject.

In contrast to the individual subject, it is not the collective subject itself in its entirety that acts outside, but authorized persons who exercise its rights and obligations act on its behalf.

Bahrakh D.N. Previously, he divided all collective subjects into 4 groups:

Organizations;

Structural units;

labor collectives;

Complex organizations (suborganizations, systems).

Now offers 3 classes: organizations, structural divisions of organizations, complex organizations (non-profit systems of closely interconnected organizations); the simplest organizations.

New trends in the legislation on civil service appear state as a party to service relations.

 The contract is concluded by the representative of the employer.

Article 6 of the Federal Law "On Autonomous Institutions" the founder of an autonomous institution is the Russian Federation, a constituent entity of the Russian Federation, a municipality - depending on the type of ownership of the property on the basis of which autonomous institutions are created.

Types of collective subjects of administrative law.

1. Organizations (generic concept), which are further divided into state authorities and local governments, enterprises, institutions and other organizations, public and religious associations.

The Civil Code of the Russian Federation recognizes as a legal entity such an organization that has separate property and is liable for its obligations, can acquire and exercise property and personal non-property rights on its own behalf, bear obligations, be a plaintiff and defendant in court.

 To enter into administrative-legal relations, collective entities do not have to be legal entities; moreover, administrative legal personality is not related to the rights of a legal entity and the need for state registration.

In recent legislation, it is established that the executive authorities have the rights of a legal entity.

Administrative scholars criticize this provision.

The first point of view of the right of a legal entity has not an authority, but an institution of the same name. (Bahrakh D.N.).

The second point of view is that executive authorities are not legal entities, but have the rights of a legal entity, to the extent that it is necessary to carry out public administration.

A special concept is legal entities of public law. In domestic literature (Tikhomirov Yu.A.), they are understood as state bodies (public authorities in general), as well as state and municipal entities.

The classification of legal entities in domestic law is also different.

 Art. 48 of the Civil Code of the Russian Federation, depending on the relationship of the legal entity with the founders (participants), (in other words, with the subject of management, if translated into the plane of management relations).

Division according to the criterion of the purpose of making a profit commercial and non-profit organizations. It is also significant for the scope of the administrative-legal status, for example, for relations with the tax authorities.

Terminology traditional for administrative law: enterprises, institutions, other organizations.

Organization is a generic concept.

An enterprise in administrative law is a type of organization engaged in production and economic activities (production of material products or material goods), performance of work and provision of services for the purpose of making a profit. The term "enterprise" in the Civil Code of the Russian Federation refers to a property complex.

Types of enterprises - state, municipal, private. There may be unitary federal, subjects of the federation (regional), municipal: district, city, settlement.

Establishment is a type of organization created to carry out work or provide services of an intangible nature, for non-commercial purposes. (Functions of public administration are institutions of one type, another type of socio-cultural and other functions).

New: Autonomous Institutions (AU).

An autonomous institution is a non-profit organization created by a state or municipal entity to perform work, provide services in order to exercise the powers of state authorities, local self-government in the fields of science, education, healthcare, culture, social protection, employment, physical culture and sports.

Types of enterprises by industry, by scale and significance of activities, by form of ownership.

Other non-profit organizations, consumer cooperatives, funds.

A number of administrative law textbooks describe the status of commercial and non-profit organizations.

A special subject is the structural divisions of organizations.

In the Civil Code of the Russian Federation, they are not independent legal entities. In the theory of administrative law, it is recognized that structural units can enter into administrative-legal relations as objects of management. For example, in intra-organizational relations.

Signs of a structural unit:

This is an element of the organization, a part that carries out its activities;

An organized self-governing group of people, employees, among whom responsibilities are distributed and there is a hierarchy (at least 4 employees);

At the head is a formally appointed leader;

Legal grounds for activity.

 Does not have its own property (as a rule), does not act outside, has limited civil legal personality.

 2 types linear and functional.

Linear units perform part of the production activities, functional units carry out functions, have powers in relation to linear units.

There are mixed types of structural divisions.

Features of legal regulation. The legal status of these organizations as a whole is determined, first of all, by the norms of civil legislation: the Civil Code of the Russian Federation, laws, for example, the Law of the Russian Federation on Joint Stock Companies, regulations, charters and other regulations. The complexity of these acts regulate the legal personality of these organizations in civil law relations, but to some extent in administrative legal relations.

The predominant part of the norms establishing administrative legal personality is contained in acts addressed to the state-power subject, and not to organizations (collective formations), i.e. the legal personality of organizations is secured indirectly ("mirror") by securing the rights and obligations of executive authorities in relation to these organizations.

These are the provisions on the executive authorities (tax, internal affairs, customs, etc.) Of great importance are the acts regulating the individual powers of the authorities in relation to all organizations (licensing, state registration, security, etc.)

 Administrative legal personality - the ability to be the bearer of rights and obligations in public administration, the ability to enter into administrative and legal relations.

 consists of administrative legal capacity and legal capacity, that is, for organizations, the ability to have rights and obligations and exercise them independently merge into one concept of legal personality and, unlike the legal personality of individuals, arise simultaneously. Tort capacity means the ability to bear legal responsibility for one's misconduct and is also an element of legal personality.

 The organization and activities of these collective entities are determined by laws, other normative acts and their own statutes that do not contradict legal norms.

Characteristic features of the administrative legal personality of organizations (Konin N.M.):

1. The administrative legal personality of enterprises is associated with power (state-power) activities (the interests of enterprises are associated with the executive branch). In other words, there is a public interest.

2. These relations are organizational, managerial.

3. Administrative legal capacity is fixed in the norms of administrative law and is implemented in administrative legal relations.

4. Administrative legal personality plays a "transmission" role, in the process of its implementation, civil, labor, financial, land and other relations (registration, application) are set in motion.

General and special status

(state and non-state organizations) - For example, all commercial organizations have a general status, and subjects of natural monopolies - a special one.

1. The general administrative and legal status arises on the following issues: state registration, licensing, quotas, provision of mandatory information and reporting (for taxation, statistics, mandatory accounting), environmental management, labor and employment, sanitary and hygienic and anti-epidemic rules, fire prevention rules, security, antimonopoly law, land use.

2. Special status of state unitary enterprises: establishment, determination of the profile and type of activity, place, allocation of funds, approval of the charter, appointment of a head, conclusion of a contract with him, state order, seizure of property, termination of activity.

Accordingly, the norms of administrative law fix the rights and obligations of organizations, which can be divided into two groups:

Group 1 common rights and obligations for all subjects:

Comply with sanitary, fire-prevention, customs, environmental, antimonopoly and other generally binding rules;

Comply with the rules of registration, licensing, attestation, certification of organizations;

The obligation not to interfere with the exercise of the powers of public authorities in the exercise of control over the activities of the latter;

Certain rights of organizations as subject objects in the exercise of state control and supervision are fixed.

The legal basis should be the Federal Law of August 8, 2001 No. "On the protection of the rights of legal entities and individual entrepreneurs in the course of state control (supervision)".

Organizations in whose existence and development the state is interested can have a special status. For example, small and medium-sized businesses, enterprises employing disabled people, non-profit organizations engaged in socially significant activities (for youth, students, veterans, disabled people, etc.).

There are 3 types (options) of relations between executive authorities and organizations:

1. Horizontal contractual type, when powers are transferred on the basis of contracts or joint structures are created or other agreements are concluded, these are also procedural relations (outsourcing).

2. Vertical relations within the framework of organizational (property) dependence (founder, owner state). Special executive bodies have been created - agencies that carry out the functions of managing state property.

3. Vertical relations outside the framework of organizational dependence (subordination), associated with the functional authority of state bodies - control, supervision, bringing to administrative responsibility.

3. Judicial procedure for consideration of citizens' appeals

The Law of the USSR of 1987 and the Law of 1989 on appealing to the court were adopted 10 years after the proclamation in the Constitution of the USSR of the right of citizens to appeal to the courts against the actions of officials.

Current legislature. The Law of April 27, 1993 “On Appeal to Court of Actions and Decisions Violating the Rights and Freedoms of Citizens” provides that every citizen has the right to go to court if he considers that illegal actions (decisions, later - inaction) of state bodies, local self-government , organizations, associations or officials, state, municipal employees violated his rights and freedoms.

1. Actions, inaction of a large circle of subjects are appealed to the court.

2. The formula "if he believes ..." means that the violation of rights may be genuine or imaginary.

3. The unequal terms "action" and "decision".

Subject of appeal. Appealed are collegial and sole decisions, actions (including the provision of information as a basis for making a decision), as a result of which:

Violated rights and freedoms;

Obstacles have been created for the exercise of rights and freedoms;

Illegally imposed duty or liability.

Correlation with the administrative procedure for considering appeals. The solution to the problem of jurisdiction of administrative and legal disputes is different depending on what principle is taken as the basis.

There are two principles in the world:

2. List principle, i.e. by listing the contested disputes.

There is also sequential and alternate procedure for judicial review.

Distinguish between the right to general and special judicial complaint.

General complaint means that any decision, action, act can be appealed to the court by any citizen.

Special Complaint filed by a subject with a special status (serviceman, student, etc.) regarding special legal relations. It is regulated by special regulations (Arbitration Procedure Code of the Russian Federation, Criminal Procedure Code, Code of Administrative Offenses of the Russian Federation).

Deadlines for filing a complaint:

3 months - from the moment when the person learned about the violation of his right;

1 month - from the date of receipt of a written notice of refusal to satisfy the complaint;

1 month - from the expiration of the one-month period for responding to the complaint.

Deadlines may be extended by court order.

Rules for consideration of appeals. Consideration of appeals is carried out according to the rules established by the Code of Civil Procedure of the Russian Federation (chapters 23-25).

The court considers cases arising from public legal relations:

a) at the request of citizens, organizations, the prosecutor on contesting normative legal acts;

b) on applications to challenge decisions and actions (inaction) of state authorities, local governments, officials, state and municipal employees.

Article 247 of the Code of Civil Procedure of the Russian Federation regulates the procedure for applying to the court. In contrast to the administrative order, a citizen does not file a complaint, but statement, which should indicate which decisions, actions (inaction) should be recognized as illegal, what rights and freedoms of a person are violated by these decisions, actions (inaction).

burden of proof

Place of consideration

An application may be filed by a citizen with a court at the place of his residence or at the location of the body of the official, the decision, action (inaction) of which is disputed.

Terms of consideration

The application is considered by the court within ten days with the participation of a citizen, head or representative of the body whose acts or actions (inaction) are disputed.

results consideration of the application : Satisfaction or Denial of Satisfaction statements.

At satisfaction of the application, it is recognized as justified and the obligation of the relevant body of the official to eliminate in full the committed violation of the rights and freedoms of a citizen or an obstacle to the exercise by a citizen of his rights and freedoms is established. This court decision is sent to eliminate the committed violation to the head of the body, the official whose decisions, actions (inaction) were challenged, or to a higher authority in the order of subordination within three days from the date the court decision enters into legal force.

The court and the citizen must be informed of the execution of the court decision not later than within a month from the date of receipt of the decision.

As well as other works that may interest you

Exclusive jurisdiction

Multiple Jurisdiction

3. Judicial procedure for consideration of citizens' appeals