According to Article 206 of the Code of Civil Procedure of the Russian Federation, the Court establishes the term of voluntary execution by the defendant of the actions specified in the decision, which should be taken into account by the bailiff in the implementation of executive actions.
The respondent's actions in these cases are not associated with the transfer and return of property or recovery monetary sums (For example, the defendant is obliged to transfer the child, disassemble the septum, publish a refutation, etc.).
These actions can be divided into two groups: 1) actions that can be made not only by the defendant, but also the plaintiff (part 1 of the commented article); 2) actions that can only be performed by the defendant (part 2 of the commented article).
In the first case, the court in the operative part of the decision additionally indicates the possibility of making relevant actions by the plaintiff and the recovery of all expenses from the defendant. Such court decisions can be considered as an optional, where the main decision is to indicate the obligation of the defendant to make certain actions, and the option is the ability to commit these actions to the plaintiff, if they are not committed by the defendant in the period established in the court decision. In this case, from the defendant, all expenses incurred by the plaintiff are accumulated during the implementation of these actions. If these actions were carried out within the framework of excited enforcement proceedings, their calculation and necessity are determined by the bailiff, the decree of which the relevant monetary amounts are charged from the debtor and are transmitted to the recoverer. If the plaintiff (recoverer) after the expiration of the term defined in the court decision will perform the respondent's actions without appealing to the bailiff service, i.e. Without the excitement of enforcement proceedings, he has the right to demand compensation for the necessary expenses in accordance with Art. 203 GPC, which, in turn, can serve as a basis for the initiation of enforcement proceedings on the recovery of funds from the defendant (debtor).
In the second case, the Court establishes a reasonable time, during which the decision should be executed by the defendant under the threat to its responsibility in accordance with the current federal legislation (see, for example, Art. 315 of the Criminal Code). This circumstance should be reflected by the bailiff in the decision by the decision on the initiation of enforcement proceedings, which the debtor is informed (Art. 30 of the Federal Law "On Enforcement Proceedings").
This group may include judicial decisions on the following categories of affairs: to restore at work illegally dismissed or translated employee; On the transfer of a child to one of the parents when disturbing marriage or with separate residence of parents; about the transfer (display) of the child during deprivation parental rights; On the return of the child to parents; to eliminate obstacles in the implementation of parental rights; on making an entry into the register of the joint stock company; On convening a general meeting of society, etc.
2.3 Court decision in favor of several plaintiffs or against several defendants
In accordance with Art. 40 GPCs are allowed to participate in the process of several plaintiffs and (or) several respondents, which is associated with multi-suspension of material legal relations (see Comment on Art. Art. 40, 151 GPK).
Article 207 of the Code of Civil Procedure of the Russian Federation provides for the peculiarities of making a court decision in procedural complicity and (or) to combine several claims in one process. In any case, the court in the case must endure only one solution. This article is devoted to the specifics of the operative part of the court decisions submitted on the above cases and complements Part 5 of Art. 198 gpk.
With the active complicity, the court, based on the requirements of the Parties, must determine to what extent must the requirements of each of the co-utensals are satisfied, which the defendant should be made in relation to whom exactly the money and to whom should be transferred, etc., or Indicates that the right of recovery is solidarity.
With the passive complicity, the court in the operative part of the decision points to each of the corresponders (respondents), from which of them, in what size and what is charged, in which proportion each of them is responsible, or indicates that they must respond agreeable.
With mixed comparison, the rules of the two previous paragraphs are applied.
The resolution of the issues under consideration affects the possibility of issuing several executive sheets in accordance with the order of Art. 429 GPC (see Commentary on Articles section. VII GPC).
In the case of merging in one process of several claims, the Court for all declared requirements should come to a certain conclusion and make a judgment separately in relation to each of them.
Posted ON.
Based on the above, the appellate court came to the conclusion that the defendant did not conclude a loan agreement with the bank, respectively, it does not have an obligation to the bank arising from the loan agreement. In this case, proof of the defendant's not involved in the signing of credit documents was the lack of details that suggest that the cash funds were obtained by the defendant. According to another case, the Bank appealed to the court to recover funds on the loan agreement with the organization and under the guarantee agreement, which was concluded with a citizen as ensuring the fulfillment of obligations (defining the Moscow City Court of January 21, 2019 in case No. 4G / 1-462) . The court of first instance refused to satisfy the claims in full. He proceeded from the fact that a copy of the account statement did not confirm the issuance of credit funds to the Organization, the fact of non-payment of funds is confirmed by the materials of the criminal case. Due to the fact that the court refused to satisfy the basic claims, derivatives on the recovery of funds under the guarantee agreement were also rejected. However, the court of appeal, where the representative of the bank appealed, did not agree with the decision of the lower court and indicated the following: In this regard, the court of second instance ordered the organization to pay the amount of funds on the loan and drew the recovery on the laid property. However, the court did not satisfy the requirements for physical lick As the guarantor just because the period was missing for presentation of these claims. Court of cassation did not find significant violations applying the norms of material and procedural law Court of the second instance, so his decision was left unchanged. The judges should not need additional details to meet the requirements for the recovery of funds on the loan, confirming the fact of the respondent of money. The fact of the existence of an account statement and non-recognition of loan agreements invalid became evidence of consent with the claims of the Bank. According to the case, the court of appeal, refusing to satisfy the requirements of the Bank, indicated that the account statement should be certified by an authorized employee of a credit institution (the appellate definition of the Moscow City Court of June 4, 2019 in case No. 33-24470 / 19). In his opinion, if the represented statements on accounts are not certified, then it is impossible to establish what official The Bank provides information, its powers, grounds for issuing this information, and which organization was put in print. In addition, the information provided in the statements, information on the transfer of funds, indicating the client of the respondent bank, does not indicate the fact of receiving cash. This position is confirmed by the appeal definition of the Moscow City Court of May 22, 2019 in case No. 33-21100 / 2019, the appellate definition of the Moscow City Court of March 4, 2019 in case No. 33-9594 / 2019, the appellate definition of the Moscow City Court of December 18, 2018 years in case No. 33-52366 / 18. The essential differences between the considered cases are the proof and evaluation of its court. In the first case, the representative of the bank - the plaintiff claimed that the credit documents were in the case signed the defendant. In turn, the defendant did not dispute the authenticity of these documents, and therefore the court concluded that the citizen agreement with them. The court also took into account that the examination of derivative documents - the contract of guarantee did not confirm and did not refute the argument on the authenticity of the respondent signature. In other cases, the representative of the Bank founded its claims exclusively on account statement, without making a question about who signed credit documents. In this case, it is interesting that the positions of the courts of the first and second instance were partitioned on the issue of making an account of an account as a confirmation of the fact of concluding a loan agreement and issuing a loan. If in some cases the court for making a solution was enough to have the fact of the availability and indirect evidence in the form of a contract of hiring a safe, then in other cases, the judges directly pointed out the need to submit direct evidence - the decision of the Bank on the issuance of a loan, the account that is open to the defendant's name, credit Dossier, cash checks, cashier data that issued documents and other information confirming the fact of receiving funds by the respondent. It should be concluded that if the defendant does not dispute the authenticity of the substituted signature on credit documents or does not recognize them invalid, then the Court to meet the requirements of the Bank for the recovery of money may be sufficiently presentation of an account. Decisive Word - For Honor Expertise It is necessary to deal with fraudulent loan design schemes necessary, namely, showing an active position in court, stating necessary for the proper consideration of the petition. For example, the appointment of the handwriting examination. The Bank appealed to the court to the organization and the citizen about the recovery of debt on loan agreements, the appeal to the mortgaged property, referring to failure to fulfill the organization and guarantor of obligations under concluded loan agreements (the appellate definition of the Moscow City Court of December 6, 2018 in case No. 33 53542/2018). The defendant did not agree with the claims, indicating that the contracts with the bank did not conclude, the guarantees for execution by the main borrower of his obligations did not give. A representative of the plants bank argued that a loan agreement was concluded between him and the Credit Agreement signed by the Director General represented by the defendants. As ensuring the fulfillment of obligations under loan agreements, they concluded guarantee treaties. The defendant objected to the arguments of the claim, pointing out that loan agreements and guarantee treaties she did not sign. During the court session, a handwriting examination was appointed, which confirmed that the defendants stood in the documents opposite the surname, which was not done by it, but another face with an attempt to imitate genuine signature of citizen. In addition, she explained that he was constantly living in another region, was never the Director General of the Organization, he did not conclude any contracts from its name, did not receive funds, and also does not have information about where the bank has its passports. The court recognized the expert opinion is reasonable, since the grounds did not trust him did not install. Based on all the evidence in the case, the Court concluded that the defendant on behalf of the main borrower did not conclude loan agreements and did not entrust the Bank to fulfill credit obligations for the organization. According to another similar case, the courts of the first and second instance refused to representative of the Bank in meeting the claims for the recovery of funds from the defendants who acted as heads of organizations under loan agreements and on their own person under the guarantee contracts (the appellate definition of the Moscow City Court of January 18, 2019 in the case No. 33-1521 / 19). The defendants argued that the documents did not sign, and also paid attention to the absence of original. The courts of the first and second instances concluded on the basis of the results of the examination conducted during the consideration of civil affairs. She showed that the signatures are fulfilled not respondents, but by other persons using the technical reception "Cutting on the lumen". If a citizen is confident that he did not sign a loan agreement and a guarantee agreement, then it is necessary to challenge them and require a handwriting examination. The Deputy Director General of the Urvista Law Company Svetlana Petropolskaya noted that due to increased demand for borrowed money, simplifying loans for issuing loans, gullibility of citizens and their careless handling of their documents and their copies, lending fraud every year gains momentum. For those who learned that a loan is issued on him, until the case is considered in court So, the Arbitration Manager Ilya Sazonov recommends: Senior Consultant of the Legal Department of the Alliance Legal CG Junon Sizyy added that if a citizen had concluded a loan agreement, but the cash was required, then to avoid litigation and unfounded claims of the creditor in the future, it is recommended to terminate the prisoner's contractual agreement in writing and store an agreement About termination. For those who learned that a loan is issued on him, receiving a law on court Based on the judicial practice considered, the following recommendations can be given for persons who charge funds on the nonconnected and unsigned loan agreement: Lawyer, managing partner of the Moscow board of lawyers "GORELIK AND PARTNERS" Lada Gorelik recommends that the trial and interrogation of witnesses who will be able to confirm, for example, that the defendant at the date of concluding a loan agreement or a guarantee agreement was absent at the location of the transaction (for example, was in business trip or on vacation in another city). "Many banks lead the video surveillance of their offices, so ask the court to refine a video for that day and an hour when the transaction was concluded according to the documents", "the manager of the legal company ENSO was added by Alexei Golchenko. For those who want to avoid negative consequences in the future According to Svetlana Petropolskaya, mostly victims of fraud become people who are carelessly belonging to their documents, for example, leave their passport details on dubious websites. She reported that fraudsters or unscrupulous employees of credit institutions use information for their own purposes, if citizens draw up applications for a loan on the Internet, completely filling the borrower's questionnaire. In her opinion, it is unreasonable to transfer copies of passports and other documents unfamiliar people or dubious organizations, especially microfinance. She recommends applying the following measures Prevention: Head of the Expert Council at RSSOAU Eduard Olevinsky added that in practice there are cases when a citizen in friendship or the bosses request issues a loan or charges for a loan received by another or organization. The expert advises in such cases to allow possible negative consequences for himself and not to relate to this indifferent or too optimistic. Citizens who provide their passport details of fraudsters for consumer and other loans, as well as citizens registering in their name controlled by Jumble fraudsters, with the subsequent receipt of business loans for which obviously no one is going to pay, are considered as partners of the crime (Art. 159.1 Criminal Code). If there is a need to take a loan, then the leading lawyer of the European legal service of Gennady Loktev before that recommends checking the organization: for example, by requesting an extract from the register in the special service of the Federal Tax Service of Russia [Recall, it is provided with free], where you can see the organization's date of creation and the composition of managers. In addition, you can take advantage of special services for checking the counterparty. According to the expert, it will not be familiar with the reviews of the credit organization on the Internet and see the GAS website "Jurlitz".
Court decision, obliging defendant to make certain actions
Commentary on Article 206 Code of Civil Procedure of the Russian Federation:
1. The norms of the commented article were the subject of consideration in the Constitutional Court of the Russian Federation, as permitting the possibility of executing a court decision on the obligation of the debtor to make certain actions without ensuring guarantees for the protection of the rights of the person, in whose favor, this judicial decision is to be executed that violates its rights guaranteed by Art. Art. 17 (h. 1 and 2), 18, 25, 35 (part 1 and 2), 36 (h. 1 and 2), 45, 46 (Part 1) and 55 (h. Part 2 and 3) of the Constitution of the Russian Federation. The reason for appealing to the Constitutional Court of the Russian Federation was the execution of the respondent decision without notice and in the absence of the plaintiff than its rights were violated. The Constitutional Court of the Russian Federation explained that the rules of the commented article are not regulated by the notification of the parties to the executive proceedings on the commission of executive actions; At the same time, Art. The 24 Enforcement Act directly establishes the obligation of the bailiff to notify the persons participating in the executive work on the executive actions and the measures of forced execution, and Art. The same law enshrines the right of the parties to participate in the commission of executive actions. In this way, current legislature, including challenged norms, establishes guarantees to protect the rights of the parties to the enforcement proceedings.
Among the planned article, it can be actions to demolish the structure, eliminating obstacles in the use of property, restoration at work, eviction from housing, refutation of information that definitions and dignity, etc. In some cases, the court decision can be executed only by the defendant, such as a decision. On restoration at work. In cases where the decision can be executed by another person, such as a decision to publish a refutation of disconnecting information, the plaintiff can execute him at the expense of the defendant. The recovery of expenses is carried out by the bailiff without additional appeal to the court. If the debtor's participation is not necessary for the execution of the executive document, the bailiff organizes execution.
2. The law on enforcement proceedings provides for the features of execution of decisions on cases provided for in. 2 of the commented article. So, st. 105 of the law determines the general conditions for the execution of executive documents obliging the debtor to make certain actions or refrain from their commit.
In cases of non-fulfillment of the claims contained in the executive document, within a period established for voluntary execution, as well as the non-fulfillment of the executive document to be immediately executed, during the day from the date of receipt of a copy of the decision of the bailiff on the initiation of enforcement proceedings, the bailiff It makes a decision to recover the fulfillment and establishes the debtor a new term for execution.
When the debtor is not fulfilling the requirements contained in the executive document, without good reasons for the newly established period, the bailiff applies a fine to the debtor, provided for by Art. 17.15 Administrative Code, and establishes a new term for execution.
The law on enforcement proceedings determines the features of the implementation of the Requirement Requirement and the consequences of its non-fulfillment (Article 106), on the eviction and union of the recoverer (Art. Art. 107, 108), on the administrative suspension of the debtor's activities (Art. 109). Thus, the requirements contained in the executive document on the restoration of the illegally dismissed or translated employee must be fulfilled no later than the first working day after the arrival of the executive document into the division of bailiffs.
In case of non-fulfillment, the requirements contained in the executive document on the work of an illegally dismissed or transferred employee damage caused to the organization paid by the said employee of monetary amounts may be charged with the head or other employee of this organization, those responsible for the non-fulfillment of the executive document.
1. When making a decision of a court, obliging the defendant to make certain actions that are not related to the transfer of property or cash, the court in the same decision may indicate that if the defendant does not comply with the decision during the prescribed period, the plaintiff has the right to make these actions due to the defendant With the recovery of the necessary expenses from it.
At the same time, in accordance with Part 1 of Article 174 of the Arbitration Procedure Code of the Russian Federation, when making a decision obliging the defendant to make certain actions that are not related to the recovery of funds or with the transfer of property, the Arbitration Court in the operative part of the decision indicates the person who is obliged to accomplish the actions themselves Actions or a ban on accomplishing actions, as well as a place and deadline for action. The relevant provisions are enshrined in Article 206 of the Civil Procedure Code of the Russian Federation.
<Письмо> FSSP of Russia from 31.03.2014 N 8 (ed. From 07/31/2015) "Methodical recommendations on the execution of court decisions about the demolition of the unimpressed buildings"
Measures to ensure the fulfillment of the future judicial resolution in the form of a prohibition of the defendant and other persons to make certain actions relating to the dispute subject, including to transfer the property to the defendant or to fulfill other obligations in relation to it, play an important role in the implementation process. civilian proceedings RF.To ban - means not to allow anything to do * (165).
Code of Civil Procedure of the Russian Federation provides two measures to ensure the claim in the form of prohibitions: -
prohibition of the defendant to make certain actions; -
prohibition of other persons to make certain actions relating to the subject of the dispute, including to transfer the property to the defendant or to fulfill other obligations in relation to it. The law considers this measure as a unified provision.
According to A.V. Malko, the measures provided for in paragraph 2 and 3 h. 1 of Art. 140 GPK
RF, "act as a measure to ensure the claim and at the same time as a legal prohibition-brake." Legal brakes, according to a scientist, are all those tools that constrain all possible deviations and disorders from
legal norms. "To slow down - it means to put in the boundaries of the law, legal framework, create conditions for the development function" * (166).
The indicated opinion of the author is no doubt because, taking measures to ensure, provided for in paragraph 2 and 3. Part 1 of Art. 140 Code of Civil Procedure of the Russian Federation, the judge is guided by the norms enshrined by Art. 139 Code of Civil Procedure of the Russian Federation, it is in order to make it possible to fulfill the future judicial order. Consequently, the measures taken contribute to the preservation of the existing situation between the parties until the dispute is consistent.
So, for example, in order to execute the future judicial ruling and conservation legal status The parties to the judge of the Volzhsky district of Saratov, a definition was made to the application of security measures under the claim M. to the administration of the city of Saratov and others on the recognition of a number of legal documents invalid and compensation for moral damage. The judge, based on the claimed claimant's claims, banned the defendant to exercise alienation, the reconstruction of the shareholding share ownership * (167).
This measure of the provision was applied reasonably. However, in practice, there are cases when the court prohibits the respondent to make certain actions, going beyond the claim submitted by the plaintiff.
So, V. presented a lawsuit to one housing and construction cooperative to eliminate obstacles in living in a residential building and in the use of the land plot. The essence of the claim was as follows: the defendant, starting the construction near the house of the plaintiff, took construction equipment land plot B. and prevented her to enjoy his property. In the process of preparing a case for a judicial proceedings, the judge issued a definition on the prohibition of the defendant to carry out construction work on the entire land plot, allocated for construction, using construction equipment and thus actually frozen the construction time before consideration of the case on the merits. The defendant, in turn, this definition appealed, and his statement on the abolition of measures was partially satisfied.
The judge allowed the defendant to carry out construction work only on a plot that is not the subject of the dispute (that is, not in the plaintiff) * (168).
Measures provided for in paragraph 2 and 3 h. 1 of Art. 140 Code of Civil Procedure of the Russian Federation, as well as arrest, bear prohibiting. Nevertheless, there are certain differences between them. The imposition of arrest on the property belonging to the defendant consists of a prohibition by the defendant to dispose of its property, and the prohibitions provided for by paragraph 2 and 3 h. 1 of Art. 140 Code of Civil Procedure of the Russian Federation, apply to certain actions of the defendant and the action of other persons concerning the subject of the dispute. "The purpose of the arrest is the preservation of the property before the resolution of the dispute is essentially. The purpose of the prohibition is to maintain a certain provision that exists to a litigation" * (169).
The subject in respect of which security measures are applied in the form of an arrest of property belonging to the defendant and those who are or other persons, and to prohibit the defendant to make certain actions, is the defendant.
The subject of the prohibitions specified in paragraph 3 of Part 1 of Art. 140 Code of Code of Civil Procedure - are other faces. In the law, the circle of "other persons" is not disclosed, therefore it seems that it can include both citizens and various organizations, enterprises, institutions of any forms of ownership.
Code of Civil Procedure of the Russian Federation does not contain a list of actions that are prohibited to make respondents and other persons, since it is not possible to cover them possible by virtue of their diversity. For example, if the court considers the case of eliminating obstacles to accommodation in a residential building and to use the land plot, the plaintiff may apply for the defendant to carry out construction work on the land plot. When considering a case on invalidation of an invalid transmission contract of non-residential premises, a judge may make a definition of the prohibition of the defendant to exercise alienation or reconstruction of non-residential premises. If the case of eviction is considered, the Court may prohibit register other persons in the residential premises, as well as to privatize controversial housing, etc.
P.P. Unfortunately in his work, analyzing the practice of ships of Ukraine, referred a wide list of actions that cannot be performed by the defendant. This is "Prohibition of the defendant to build a structure, prohibition to drop chemical garbage into a river or pond (on the claims of collective farms), dig a pit at the very wall of the neighbor's house, laying underground and ground communications through house-building and land plot of plaintiff, prohibition of harvesting, prohibition of the production of work, obstinate Light plaintiff, remove the chimney into the yard of the plaintiff, etc. "* (170). According to the author, the court, forbidden to commit such actions, proceeds from the malicious nature of these actions, and not from the fact that in the future it will make it difficult or impossible to execute the future judicial order. In case of refusal to the court in the adoption of measures to ensure, but when satisfying the claims can be satisfied, it will be possible to remove the chimney and sewage in the order of execution of the court decision. In this regard, P.P. Zavorolyko proposed the grounds for taking measures to supplement another basis as follows: "And also, if the respondent's actions are harmful to the health of the plaintiff and members of his family, together with him living" * (171).
However, with the specified proposal of the author, it is difficult to agree. The basis for taking measures to take measures can only be the fact that directly affects the fulfillment of the future judicial decision. The action of the defendant who harm the health of the plaintiff and members of his family, together with him, cannot be based on the adoption of security measures, since the adoption of such measures would be measures of early execution of a court order, and not measures to ensure the fulfillment of the future judicial decree . The non-acceptance of the above P.P. Worryless measures will not prevent the execution of a court order, as it will be fulfilled and without their adoption. In addition, the actions of the respondent who violate, for example, the dormitory standards, enshrined in the Housing Code, or violating environmental norms of law, etc., can be prevented and without appealing to court or application on this occasion of acceptance of measures to ensure. There are various bodies, the competence of which include the implementation of the control over the relevant field of legal relations and the application to persons violating
the law established by law, relevant penalties.
Code of the Russian Federation Ob. administrative offenses contains chapter regulating administrative responsibility For offenses, encroaching on health, sanitary and epidemiological well-being of the population and public morality (ch. 6). It seems that the contributed pp Unfortunately proposals were due to the peculiarities of the time when the courts were considered not typical for today (according to the collage of collective farms, etc.).
Currently, courts consider cases due to the tendencies of the new time and the specifics of modern legislation, which caused significant changes in actions that cannot be performed by the defendant.
So, according to the claim M. to the Far Eastern State Technical University (DVGTU), and so on the protection of honor and dignity and compensation for the moral damage of the judge of Lenin district Court Vladivostok issued a definition about taking measures to ensure. In definition, the defendant was forbidden to make certain actions, namely to disseminate information, the truth of which the plaintiff challenges in court, in the printed publications of the DVGTU, means mass media, information network Internet at an email address, since the defendant and after the presence of the claim continued to use the specified channels to distribute information * (172).
In another example, from the practice of the Judge of the Frunzensky District Court of Vladimir under the claim of one public organization to LLC "A." The forced recovery of the author's remuneration in connection with the failure to comply with the defendant of the Terms of License Agreement with RAO issued a definition about the adoption of measures to ensure the defendant to use in any way in its activities the musical works of Russian and foreign authors before receiving a license (permission) in RAO * (173).
After analyzing the norms of Art. 140 Code of Civil Procedure of the Russian Federation, it is impossible not to note the fact that paragraph 3 of Part 1 of Art. 140 Code of Civil Procedure of the Russian Federation more accurately determines in contrast to paragraph 2 of the same article, which actions cannot be made to other persons. When taking a measure to ensure the execution of the future judicial decision, provided for by paragraph 2 of Part 1 of Art. 140 Code of Civil Procedure of the Russian Federation, the judge must in each case individually determine the list of actions that are forbidden to make the respondent, based on the subject of the claim. Meanwhile, in paragraph 3 of Part 1 of Art. 140 Code of Civil Procedure of the Russian Federation also contains that other persons are forbidden to make certain actions relating to the dispute subject, including to transfer the property to the defendant or carry out other obligations in relation to it.
In contrast to the previous Code of Civil Procedure of the RSFSR, 1964, the Code of Civil Procedure of the Russian Federation specifically determined, with respect to which property to other persons it is forbidden to make certain actions. So, other persons are forbidden to transfer the respondent not any property, but only the property that is the subject of the dispute.
For example, when considering civil affairs on the claim R. and V. K M., V., V., P., Sh., LLC "S." About recognition by invalid Resolution of the Board of Directors of O. CJSC, on the recognition of the invalid (insignificant) transactions on the purchase and sale of shares and translation on the plaintiffs of the rights and obligations on transactions of purchase and sale for 197 shares of CJSC "O." The court issued a definition of the prohibition of the registrar of shares of a closed joint-stock company - the Saratov Regional Decaleriar Depositary Center to register any transactions on the alienation of shares * (174).
The actions of the judge in the above example of the subject of the dispute were accounted for.
Code of Civil Procedure of the Russian Federation does not establish any restrictions on the adoption of certain prohibitions against the defendant, since the purpose of the adoption of such measures is to preserve the situation of the parties existing before the consideration of the case on the merits. However, in judicial practice, questions often arise in cases of measures to ensure the prohibition of the defendant to make certain actions on claims related to joint-stock relationships (appeal against the decisions of shareholders meetings, the Board of Directors of Joint-Stock Company, transactions with shares, etc.). Unfortunately, there are often cases when the judge makes a definition about the adoption of measures to ensure the replacement of the respondent to make certain actions that are not related to the subject of the dispute that do not meet the claim declared by the plaintiff and do not affect the prevention of possible damage to the person who declared the petition.
Given the selective practice on cases involving joint-stock companies, the Presidium of the Supreme Court of the Russian Federation noted that the courts for such cases were allowed gross violations Procedure Rights. In particular, in the Decree of the Presidium it was noted that the judges were satisfied with the applicants' claims on imposing before the consideration of the case on the essence of prohibitive measures, the use of which directly contradicted the requirements of Articles 133 and 134 of the RSFSR.
So, for example, the judge of the Presnensky District Court of Moscow was made to the production case on the claim of CJSC VAO Sovlbflot to the former Director General Afanasyev A.V. On the transfer of the newly elected at the extraordinary meeting of shareholders to the General Director of Kozhevk V. Print, accounting documentation and forms of the joint-stock company, as well as the obligation of Afanasyev A.V. Subsequently, do not repair the obstacles in the exercise of the leather V. A. Powers of the Director-General. Along with the statement of claim, a statement was filed for adopting security measures, which was fully satisfied in The same day by the definition of the judge. According to this definition, before considering the case on the merits, Afanasyev A.V. was prohibited from making actions related to the execution of the responsibilities of the Director General, namely: to sign and fasten the printing of contracts, power of attorney, orders, orders and any other documents that are ownership, as well as perform other actions, entrance The credentials of the general director. The satisfaction of the petition of the judge motivated the objectives of the claimant's rights, since it believed that the defendant could cause property damage to the interests of the plaintiff with his actions. However, the specified definition was canceled by the judicial board civil Affairs The Moscow City Court, since in addition to the requirements, transfer printing, forms and accounting documentation, the plaintiff did not declare any requirements for the protection of property rights. Based on the nature of the claims presented, it is not clear how to defeat the measures that claimed the claimant may impede or make it impossible to fulfill the court decision. From the statement of the plaintiff, the adoption of measures in this case, it seems that he actually puts the question of satisfaction of the claim before the case is essentially, but the court or judge is such a law by law * (175).
In order to ensure a uniform approach to resolving issues related to the consideration of cases arising from joint stock relations, the plenum of the Russian Federation issued a resolution of July 9, 2003 N 11 "On the practice of consideration arbitration courts statements about the adoption of security measures related to the ban to hold a general meeting of shareholders "* (176). The general meeting of shareholders is higher organ Management of the joint stock company (paragraph 1 of Art. 103 of the Civil Code of the Russian Federation, and paragraph 1 of Art. 47 of the Federal Law of December 26, 1995 N 208-FZ "On Joint-Stock Companies".
In this regard, prohibition to conduct a general meeting of shareholders as a measure to ensure the fulfillment of the future judicial decree actually means the prohibition of a joint stock company to carry out its activities in the part in which it is carried out through decision-making by the General Assembly. At the same time, the current legislation of the Russian Federation provides for the possibility of adopting such a security measure as the suspension of the respondent's activities. According to Part 1 and 4 Art. The 16th Law of the Russian Federation "On the Mass Media" judge only on the claim of the registering authority or the Ministry of Printing and Information of the Russian Federation on the termination and suspension of the media activities may as a measure to ensure the claim to suspend the activity of the media.
However, the prohibition of carrying out the general meeting of shareholders as a measure of collateral in its content contradicts the meaning of the adoption of interim measures to protect the interests of the applicant, and not the deprivation of another person and the right to exercise their legal activities. Having this in mind, the plenum of the Russian Federation came to the conclusion that the Court could not be able to adopt security measures to appeal against decisions of the management bodies of the joint-stock company, on the recognition of invalid transactions with the shares of society, to apply the consequences of the invalidity of such transactions, recognition The invalid issues of shares of the joint-stock company, as well as other disputes to prohibit joint-stock society, its bodies or shareholders to conduct an annual or extraordinary general meeting of shareholders. The court also cannot accept security measures, actually meaning a ban on the general meeting of shareholders, including convening a general meeting, to draw up a list of shareholders entitled to participate in the general meeting of shareholders, provide premises for participation in the General Meeting, send ballots for voting, To summarize the voting on agenda items.
Law, namely, paragraph 2 and 3 h. 1 Art. 140 Code of Civil Procedure of the Russian Federation, allowed by the court of measures to ensure that the respondent and other persons prohibit the dispute regarding the subject of the dispute. Thus, on the basis of these norms and in the presence of grounds provided for by Art. 139 Code of Civil Procedure of the Russian Federation, the court to prohibit the annual or extraordinary meeting of shareholders to make decisions on individual issues included in the agenda, if these issues are the subject of the dispute or directly related to it, as well as to fulfill the future judicial order to prohibit joint-stock companies, its authorities or Shareholders to fulfill the decision taken by the General Meeting on a specific issue.
In the theory of civil procedural law, there is a point of view that "measures to ensure the claim provided for in paragraph 2 and 3 part 1 of article 140, exclude forced execution" * (177). The specified opinion is controversial.
The law does not limit the issuance of executive sheets on one or another measures of the provision provided for by Art. 140 Code of Civil Procedure of the Russian Federation. In the meaning of Part 2 of Art. 142 Code of Civil Procedure of the Russian Federation, if the judge issued a definition about taking measures to ensure, he is obliged to issue the plaintiff performance list And send a copy of this definition to the respondent. The executive list is issued by the court to the charter or at his request is sent for execution in the manner prescribed by Part 1 of Art. 428 Code of Civil Procedure of the Russian Federation, regardless of whether the definition was made to impose an arrest on the defendant's property or to prohibit the defendant to make certain actions. Accordingly, if the executive list issued by the court on the basis of determining the adoption of measures to ensure, for example, in the form of a prohibition of the defendant to make certain actions, it will be obliged to initiate executive proceedings (paragraph 1 of Article 30 of the Federal Law "on the executive production "), which, in turn, is the basis for use forced Mer execution. Since PP. 11 p. 3 Art. 68 of the Federal Law "On Enforcement Proceedings" The list of compulsory measures is not exhaustive, and it is possible to use other measures not mentioned in this list, in accordance with federal law or executive document.