The next stage of judicial reform aimed at unifying the systems of courts of general jurisdiction and arbitration courts ended with the signing in early March by the President of Russia Vladimir Putin two laws at once making noticeable changes to the Code of Civil Procedure of the Russian Federation and the Arbitration Procedure Code of the Russian Federation ((hereinafter - the law on amendments to the Code of Civil Procedure of the Russian Federation and the Arbitration Procedure Code of the Russian Federation) and (hereinafter - the law on amendments to the Arbitration Procedure Code of the Russian Federation). Thus, the main novelties were the introduction of a simplified procedure for civil proceedings, by analogy with the existing in the arbitration process, and such mechanisms, new for arbitration, but customary for civil proceedings, such as a court order and the institution of private determinations. , a mandatory claim procedure for resolving arbitration disputes is being introduced. The provisions of both laws will come into effect on June 1 of this year. Let's consider these innovations in more detail.

Simplified civil proceedings

At the same time, the following claims were withdrawn from the scope of the simplified procedure:

• arising from administrative legal relations;
• connected with state secrets;
• affecting children's rights;
• resolved in special production ().

About whether previous appeals to the court for the protection of the same right affect the course of the term limitation period, learn from "Encyclopedias of decisions. Contracts and other transactions" Internet versions of the GARANT system. Get Free
access for 3 days!

At the same time, the case will also be considered in accordance with the general rules of action, if a third party enters into it, or if a counterclaim is filed that cannot be considered in a simplified manner. Also, the claim will be considered in the usual manner, if the court comes to the conclusion that the documents submitted are insufficient for making a decision and it needs to establish other circumstances in the case. In addition, if the court finds that the claimed claim is related to another claim, or the decision taken in the case under consideration may violate the rights and legitimate interests of third parties, then it will also be considered in accordance with the general rules (). At the same time, the judge, changing the procedure for considering the claim to a general one, will have to indicate to the parties what actions they should take to prepare for a new session, and the case itself will be considered anew ().

It should be noted that the law on amendments to the Arbitration Procedure Code of the Russian Federation simultaneously amended the rules of the Arbitration Procedure Code of the Russian Federation on the procedure for simplified proceedings. Thus, the criteria have been clarified, according to which the arbitration court has the right to decide on the decision on the case in a simplified manner. In particular, the threshold for the maximum price of claims considered by way of summary procedure was increased:

• on statements of claim for the recovery of funds, the maximum amount of recovery increased for legal entities from 300 to 500 thousand rubles, for entrepreneurs - from 100 to 250 thousand rubles, respectively;
• on statements of claim for the collection of mandatory payments and sanctions, the total amount of the amount of money to be collected will be from 100 to 200 thousand rubles. Now the maximum amount of the claim should not exceed 100 thousand rubles. These changes also come into effect on June 1 ().

Order in arbitration courts

The Arbitration Procedure Code of the Russian Federation, in turn, will also be supplemented with a chapter providing for the introduction of such a form of legal proceedings as a court order into the arbitration procedural legislation (). Let us recall that the essence of the order proceeding is its special - simplified and accelerated nature, when the judge makes a decision only on the basis of the claimant's application and the documents submitted by him, without summoning the parties to court. At the same time, the decision of a judge by its nature is at the same time an executive document, which is enforced in the same manner as other court decisions.

It should also be noted that in the course of the order proceedings, interim measures cannot be applied to the debtor, and the debtor, at the same time, will not have the right to file a counterclaim ().

Given the formal nature of the clerical proceedings, a court order will be issued by judges of arbitration courts only for a limited range of requirements:

• on the fulfillment of monetary obligations that are recognized by the debtor, but are not fulfilled and arise from non-fulfillment or improper fulfillment of the contract, if the price of the claims does not exceed 400 thousand rubles;
• in the event of a claim based on a protest by a notary of a bill of non-payment, non-acceptance and undated acceptance - if the price of the claim does not exceed 400 thousand rubles;
• upon a demand for the collection of mandatory payments and sanctions, if the total amount of the amount of money to be collected specified in the application does not exceed 100 thousand rubles ().

It should be noted that a similar form of consideration of cases is provided for by the current Code of Civil Procedure of the Russian Federation (). However, after the entry into force of the package of amendments, the court order will be clarified. So, from June 1, only those civil cases will be accepted for processing by order, the amount of money to be collected for which does not exceed 500 thousand rubles. Now such a limitation is not provided. And the existing list of requirements for which a court order is issued will be increased due to claims for the collection of arrears in payment for housing and utilities, as well as telephone services and claims for the collection of mandatory payments and contributions from members of a homeowners' association or a construction cooperative () ...

Unlike the procedure prescribed in the Code of Civil Procedure of the Russian Federation, an application to an arbitration court for the issuance of a court order can be submitted not only on paper, but also in electronic form, as well as through the court's website in the form of an electronic document signed with an electronic signature (). At the same time, judges of commercial courts to issue a court order will be given twice as much time as in courts of general jurisdiction: the judge will be obliged to satisfy the applicant's request within 10 calendar days from the date of application, provided there are no grounds for returning the application. Recall that in the courts of general jurisdiction, court orders are issued no later than five calendar days from the date of receipt of the relevant application (,).

It will be possible to appeal against a court order that has entered into force in the arbitration court of the cassation instance, and the cassation appeal itself will also be considered in a special order - without summoning the participants in the case (however, if necessary, they can still be summoned to court) (,). So, first, the complaint will undergo a preliminary check for the existence of grounds for revising the court order, which are listed in Art. Recall that the judge's decision can be revised if the court order was issued by the court in an illegal composition, the rules on the language were violated during the consideration of the case and in other cases provided for by the Arbitration Procedure Code of the Russian Federation (,). The judge will decide this issue alone within 15 days. Moreover, the decisions made by the judge on the transfer of the case for consideration in the court session or on the refusal to do so will not be subject to further appeal (). It is important to note that the amendments to the Arbitration Procedure Code of the Russian Federation do not take into account the very likely situation associated with a violation of the debtor's right to submit objections in connection with his failure to notify or untimely notification of a court order. The inclusion of such a basis for revising the court order is not provided for by the law on amendments to the Arbitration Procedure Code of the Russian Federation.

Lawsuit as a last resort

From June 1, a contractual party will be able to apply for the protection of its violated right to an arbitration court only after it has compulsory compliance with a claim or other pre-trial procedure for resolving disputes. Moreover, according to the new rules, from the date the claim is sent to the counterparty and until the moment of direct appeal to the court, at least 30 calendar days will have to pass (). However, the parties will be able to preliminarily agree on a different procedure for resolving disagreements, as well as on the timeframe for filing a complaint to the court, which may be less than that established by law. Also, a different order may be determined by law. At the same time, the parties will not be able to completely abandon pre-trial negotiations. We will remind that now the Arbitration Procedure Code of the Russian Federation requires the parties to take measures for the pre-trial settlement of differences only if this was provided for by the agreement or directly spelled out in the law. For example, without a preliminary requirement to the debtor, the court will not accept a claim for the collection of mandatory payments and sanctions (,).

At the same time, the Code will also provide for cases when it will be possible to go to court immediately, without making any attempts to settle the dispute before the trial. This applies to disputes:

ADVICE

When filing a statement of claim to the arbitration court, you can use, for example, receipts for sending a registered mail, a notice of delivery, or a copy of the claim with a mark of the counterparty, as evidence of compliance with the pre-trial procedure for resolving disputes. These documents must be attached to the statement of claim, otherwise the court may leave the statement without consideration ().

• in cases of establishing facts of legal significance;
• in cases of awarding compensation for violation of the right to legal proceedings within a reasonable time or the right to execution of a judicial act within a reasonable time;
• in insolvency (bankruptcy) cases;
• on corporate disputes;
• in cases of protection of the rights and legitimate interests of a group of persons;
• in cases of early termination of legal protection of a trademark due to its non-use, cases of challenging decisions of arbitration courts ().

It should also be noted that in disputes arising from public legal relations, the claim procedure will be applied only if it is directly provided for. federal law ).

After new order will work, the applicants will have to attach to each statement of claim documents confirming compliance with the pre-trial procedure for resolving the dispute, except in cases where such a procedure is not provided. Moreover, if the plaintiff is unable to confirm compliance with the claim procedure, the statement of claim will be returned to him (). And even if the court accepts the statement of claim for proceedings, it can be left without consideration if the court finds that the plaintiff violated the pre-trial procedure for settling the dispute with the defendant ().

As follows from the explanatory note to the draft law, the use of alternative methods of resolving disputes should relieve the courts and increase the efficiency of justice in general. However, this innovation may not live up to expectations. But the fact that it will significantly affect the interests of the plaintiffs is practically beyond doubt.

A lawyer at Forward Legal agrees with this view. Anastasia Malyukina... In her opinion, if we talk about the parties, then the changes made to the Arbitration Procedure Code of the Russian Federation are more in the interests of the defendants, since in fact they give them additional deferral, reduce the effect of surprise from filing a claim and expand the range of disputes in which the defendants can, citing non-compliance pre-trial order, to ask to leave the application without consideration. The expert also notes that the proposed legal regulation does not allow taking into account many of the nuances of specific civil law relations. According to the logic of the law, a claim will have to be filed even if it makes no sense. For example, if the debtor in a categorical form made it clear that he does not intend to make concessions and the dispute can only be resolved by the court. Or if the creditor knows for certain that the debtor does not receive correspondence at the address indicated in the Unified State Register of Legal Entities, and the creditor does not have another address for sending a claim, as well as the opportunity to deliver it to the debtor's representative. Another controversial point is the need to comply with the complaint procedure in the event of claims for recognition, in particular, for the recognition of the transaction as invalid, the lawyer notes.

At the same time, a lawyer of the Yukov & Partners Bar Association Irina Oreshkina, shares a different point of view. In her opinion, the new order is more aimed at suppressing abuses by the plaintiff. So, the lawyer notes, in practice there are cases when the claim procedure provided for by the contract is observed only formally: “The claim can be sent to the party, roughly speaking, yesterday, and the statement of claim to the court - today. Accordingly, the plaintiff deprives the defendant of the right to fulfill the requirements contained in the claim prior to filing an application with the court. At the same time, the plaintiff has formally fulfilled the obligation of pre-trial settlement. " Securing the obligatory period allotted for the settlement of the conflict will exclude such abuses, emphasizes Irina Oreshkina. At the same time, the lawyer also notes some "disadvantages" of the new rule associated with the postponement of the moment of filing a claim in court, especially in the case of an obvious refusal of the debtor to fulfill his obligations on a voluntary basis to the creditor. "The later the party goes to court, the later the final judicial act on the case will be adopted and the later the procedure will begin compulsory execution the decision of the court ", - the expert concludes.

It should be noted that the RF Armed Forces took care in advance to create conditions for a more comfortable implementation of the claim procedure. Thus, the Plenum of the Armed Forces of the Russian Federation attributed the plaintiff's expenses caused by the observance of the claim procedure to legal costs that are subject to reimbursement. At the same time, the judges took into account the fact that the plaintiff does not have the opportunity to exercise the right to go to court without first contacting the defendant. In this regard, in the opinion of the judges of the RF Armed Forces, among others, the costs of paying for legal services, the costs of sending a claim to a counterparty, preparing a report on real estate appraisal when challenging the results of determining the cadastral value of a real estate object, etc., are subject to reimbursement (p. 4 Resolutions of the Plenum of the RF Armed Forces of January 21, 2016 No. 1 "").

Private determinations in arbitration

Arbitration courts, starting from June 1, will have the right to respond to certain violations of the law, revealed in the course of the trial and not related to the merits of the case, by issuing private rulings. Moreover, the persons who have attracted the attention of the court will be obliged, within a month from the date of receipt of the ruling, to report on the measures they have taken to prevent violations of the laws. Otherwise, they may be held administratively liable for. So, for leaving an official without consideration of a private ruling of the court, punishment is provided in the form of imposing administrative fine in the amount of 500 rubles. up to 1 thousand rubles. Private determinations can be made in relation to public authorities and local self-government bodies, officials, lawyers and other subjects of professional activity, for example, an arbitration manager (). Recall that a similar mechanism is provided for by the Code of Civil Procedure of the Russian Federation ().

It is obvious that the judicial reform has taken the path of simplifying and speeding up the procedural procedures and rules applied in the courts. Moreover, the hope for the successful implementation of the proposed novels is given by the fact that the proposals enshrined in the laws for the most part came from the practice of "parallel" systems of legal proceedings, where they have already managed to positively recommend themselves.

On the whole, these innovations are positively assessed by lawyers-practitioners. First of all, this concerns the mandatory pre-trial procedure for the settlement of disputes. So, Irina Oreshkina, notes that the new order will "weed out" some of the cases that actually do not involve a dispute. This applies to cases where the defendant, for example, admits the claim and is ready to pay off the debt. Now in the courts there are cases when the defendant at the hearing confirms his readiness to satisfy the plaintiff's demands. At the same time, bringing an indisputable case to court, the parties bear the costs of paying the state fee, the services of representatives, etc.: “But it was possible to resolve the dispute within the framework of pre-trial settlement,” the lawyer notes.

At the same time, a number of experts consider it wrong to solve the problems of the efficiency of courts using the proposed methods. Anastasia Malyukina emphasizes that the idea of ​​mandatory pre-trial settlement as a justified way to reduce the number of cases considered by the courts is extremely controversial, since in fact it means that the problem of workload judicial system thus it will be decided at the expense of those whose rights this system is designed to protect.

And yet, we will notice the real effect of the proposed innovations only after a certain time: we still need to adapt to them.

Resolution of the Plenum of the Supreme Court of the Russian Federation of December 27, 2016 N 62 "On some issues of the application by courts of the provisions of the Civil Procedure Code of the Russian Federation and the Arbitration Procedure Code of the Russian Federation on the order ...

General Provisions. Requirements declared in order

order production

1. Court order - a court order (judicial act) issued on the basis of an application for the recovery of monetary amounts or for the reclamation of movable property from the debtor in accordance with the requirements provided for in Article 122 of the Code of Civil Procedure of the Russian Federation, and on the basis of an application for the collection of monetary amounts in accordance with the requirements specified in Article 229.2 APC RF.

These requirements are considered only in the order of clerical proceedings (Chapter 11 of the Code of Civil Procedure of the Russian Federation and Chapter 29.1 of the Arbitration Procedure Code of the Russian Federation), in connection with which the filing of a statement of claim (statement) containing requirements to be considered in the order of clerical proceedings entails the return of the statement of claim (statement) (Clause 1.1 of the first part of Article 135 of the Code of Civil Procedure of the Russian Federation, Clause 2.1 of Part 1 of Article 129 of the Arbitration Procedure Code of the Russian Federation).

2.Citizens - individuals and individual entrepreneurs, organizations, public authorities, local authorities, have the right to apply for the issuance (issuance) of a court order (hereinafter - the application for the issuance of a court order) on the requirements considered in the order of the order proceedings, other bodies and organizations. On the basis of Article 45 of the Code of Civil Procedure of the Russian Federation, the prosecutor has the right to apply to the magistrate to issue a court order.

3. Requirements considered in the order of the order production must be indisputable.

The undisputed claims are those confirmed by written evidence, the reliability of which is beyond doubt, as well as those recognized by the debtor.

4. Based on paragraph 1 of Article 229.2 of the APC RF, the claim of the recoverer should be considered as recognized by the debtor, if disagreement with the stated claim and the evidence supporting it does not follow from the documents submitted to the court.

The debtor's disagreement with the stated claim may be evidenced, among other things, by the debtor's objections regarding the validity of the transaction from which the claim arose, as well as the size of the stated claims, received from the moment the court was filed with the court for the issuance of a court order and before the issuance of the court order.

5. The sums of money that are subject to collection by way of order production are understood to mean the amount of the principal debt, as well as the amounts of interest and penalties (fines, penalties) accrued on the basis of a federal law or an agreement, the amount of compulsory payments and sanctions, the total amount of which at the time of filing applications for the issuance of a court order should not exceed: five hundred thousand rubles - for applications considered by justices of the peace, including applications for the reclamation of movable property from a debtor (part one of Article 121 of the Code of Civil Procedure of the Russian Federation), four hundred thousand rubles and one hundred thousand rubles - for applications considered by arbitration courts (paragraphs 1 - 3 of Article 229.2 of the Arbitration Procedure Code of the Russian Federation).

The amount of money indicated in the application for the issuance of a court order must be determined in a fixed amount and cannot be recalculated as of the date of the issuance of the court order, as well as the actual fulfillment of the monetary obligation.

6. If the claim filed by the recoverer is addressed to several persons who are joint and several debtors (for example, to the borrower and the guarantor under the loan agreement), or in one application filed by the recoverer, several requirements are indicated (for example, on the collection of the principal amount of debt and forfeit), a court order can be rendered by a magistrate, an arbitration court, if the total amount of the stated claims does not exceed the limits established by article 121 of the Code of Civil Procedure of the Russian Federation and article 229.2 of the Arbitration Procedure Code of the Russian Federation.

When a claim is made based on an obligation involving shared debtors (for example, co-owners of residential or non-residential premises), the amount of claims against each of such debtors should not exceed the limits established by Article 121 of the Code of Civil Procedure of the Russian Federation and Article 229.2 of the Arbitration Procedure Code of the Russian Federation. A separate application for the issuance of a court order is submitted for each of the shared debtors, and a separate court order is issued.

7. For claims arising from civil relations, the claimant and the debtor do not need to take mandatory measures for pre-trial settlement provided for in Part 5 of Article 4 of the Arbitration Procedure Code of the Russian Federation before applying to the arbitration court with an application for the issuance of a court order.

The rules of Part 5 of Article 4 of the Arbitration Procedure Code of the Russian Federation are not applied when applying to the arbitration court with a statement of claim (statement) after the cancellation of the court order by the arbitration court.

8. Based on general rules delimiting the substantive competence of a magistrate and an arbitration court to consider an application for the issuance of a court order, the question of which court is to consider such an application is decided taking into account the subject composition of the participants and the nature of the legal relationship, unless otherwise provided by law (Chapter 3 of the Code of Civil Procedure of the Russian Federation, Chapter 4 of the APC RF).

9. According to the requirements based on the protest of a bill of exchange committed by a notary in non-payment, non-acceptance and undated acceptance, a court order may be issued by a magistrate, as well as by an arbitration court, taking into account the provisions of paragraph four of Article 122 of the Code of Civil Procedure of the Russian Federation, paragraph 2 of Article 229.2 of the Arbitration Procedure Code of the Russian Federation, Article 5 Federal Law of March 11, 1997 N 48-FZ "On bills of exchange and promissory notes".

10. In the order of an order, arbitration courts consider claims for the collection of compulsory payments and sanctions (paragraph 3 of Article 229.2 of the APC RF). If, based on the results of the tax audit, a decision of the tax authority took place, then the objections submitted before its adoption in the manner of paragraph 6 of Article 100, paragraphs 1 - 6.1 of Article 101, paragraphs 5 - 7 of Article 101.4 Tax Code Russian Federation(hereinafter referred to as the Tax Code of the Russian Federation) by themselves do not indicate the impossibility of considering the claims declared by the tax authority on the basis of the specified decision, in the order of order production.

At the same time, the debtor's appeal against the decision of the tax authority (territorial bodies of the Pension Fund of the Russian Federation and (or) the Social Insurance Fund of the Russian Federation) to a higher authority is an obstacle to the issuance of a court order, regardless of the results of the consideration of the complaint by the higher authority.

11. Justice of the Peace, an arbitration court issues a court order on the demand for debt collection, including payment for non-residential premises and utilities, based on an agreement, based on the interrelated provisions of paragraph 1 of Article 290 of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation), articles 153, articles 158 of the Housing Code of the Russian Federation, paragraphs three and ten of article 122 of the Code of Civil Procedure of the Russian Federation, paragraph 1 of article 229.2 of the Arbitration Procedure Code of the Russian Federation.

Taking into account paragraph 1 of Article 44 of the Federal Law of July 7, 2003 N 126-FZ "On Communication" in relation to paragraphs three and ten of Article 122 of the Code of Civil Procedure of the Russian Federation, paragraph 1 of Article 229.2 of the Arbitration Procedure Code of the Russian Federation, a court order is also issued by a magistrate, an arbitration court upon the request of payment for services of other types of communication besides telephone (for example, telematic communication services).

Based on the provisions of paragraph eleven of Article 122 of the Code of Civil Procedure of the Russian Federation, paragraph 1 of Article 229.2 of the Arbitration Procedure Code of the Russian Federation, a court order is issued by a magistrate, an arbitration court if a claim is made to collect mandatory payments and contributions, including from members of consumer cooperatives, as well as from associations of real estate owners (

RF AF ON ORDERED PRODUCTION

Daria Nyukhalkina, lawyer, Exiora Law Office, Moscow

Order production in the modern Russian legal system has existed for more than twelve years, however, the RF Armed Forces, which have repeatedly provided explanations on the application of certain institutions of procedural legislation, have not separately addressed the issues of order production until recently. And on December 27, 2016, the Plenum of the RF Armed Forces adopted Resolution No. 62 "On some issues of the application by the courts of the provisions of the Code of Civil Procedure of the Russian Federation and the Arbitration Procedure Code of the Russian Federation on order production."

From the history

A court order is a judicial act that is passed by a magistrate or a judge of an arbitration court of a constituent entity of the Russian Federation on an application for the reclamation of movable property or for the recovery of sums of money on the grounds specified in Art. 122 of the Code of Civil Procedure of the Russian Federation and Art. 229.2 APC RF. The list of requirements for which a court order can be issued is closed.

The difference between a court order and a court decision is that the court order is at the same time an executive document.

Order proceedings as a type of summary court proceedings existed (albeit in a slightly different form) in pre-revolutionary Russian procedural law, starting with the judicial reform of 1864. Later, this institution was included in the Code of Civil Procedure of the RSFSR in 1923 (Articles 210-219), but in the 30s of the last century, provisions on order production were excluded from procedural legislation.

In the Russian procedural legislation, the institution of order production appeared in 1995 with the introduction of amendments to the 1964 Code of Civil Procedure of the RSFSR that was in force at that time. Subsequently, these norms were reproduced in the Code of Civil Procedure of the Russian Federation in 2002.

Arbitration courts have acquired the right to issue orders relatively recently. Since the practice of courts of general jurisdiction has confirmed the effectiveness of this form of summary justice, the institution of a court order was extended to civil proceedings in arbitration courts. Legal regulation order proceedings in the arbitration process are carried out by the norms of Chapter 29.1 of the Arbitration Procedure Code of the Russian Federation (introduced by Federal Law No. 47-FZ dated 02.03.2016 "On Amendments to the Arbitration Procedure Code of the Russian Federation", which entered into force on 01.06.2016).

Indisputability

Resolution of the Plenum of the Armed Forces of the Russian Federation of December 27, 2016 No. 62 (hereinafter referred to as the Resolution) consists of six sections and includes clarifications of general provisions, provisions regarding the requirements declared in the order of order production; order of order production; execution of a court order; appeals against a court order in a court of cassation; and final provisions.

In the section on the general provisions and requirements declared in the order of the order proceedings, Supreme Court explains the issues related to the definition of the term of indisputability, the concept of monetary amounts subject to collection in the order of the order proceedings, the grounds for the claims declared within the framework of the order production, as well as the requirements that are not subject to consideration in the order production.

Since a court order can be issued only on indisputable requirements, and the definitions of indisputability do not contain either the Code of Civil Procedure of the Russian Federation or the Arbitration Procedure Code of the Russian Federation (although the signs of indisputability are indicated in the rules on order production), the Supreme Court paid special attention to what is meant by indisputable requirements.

According to clause 3 of the Resolution, the undisputed claims in the order proceedings are the requirements confirmed by written evidence, the reliability of which is beyond doubt, as well as recognized by the debtor.

Thus, in order to classify a claim as undisputed, three conditions must be met simultaneously:

- the claim must be based on written evidence presented in court by the claimant;

- the reliability of the evidence should not be in doubt;

- the debtor must recognize the stated claims.

Earlier, in the Decision dated 05/10/2016 No. 43-KG16-2, the Supreme Court indicated that, within the meaning of the provisions of Art. 125 of the Code of Civil Procedure of the Russian Federation "a court order is issued only on indisputable requirements, which does not imply any dispute about the law, since the indisputability of claims is the main prerequisite for the implementation of the order production." Taking into account the above Definition, the indisputability of a claim, considered in the order of an order proceeding, means that there is no dispute about the right.

The Constitutional Court of the Russian Federation in its Decision No. 785-О-О dated 15.11.2007 also proceeds from the fact that indisputability in relation to order production means the absence of a dispute about the right, indicating that if a judge doubts the indisputable nature of the stated requirements, then in order to protect rights and interests of the defendant, he must refuse to accept the application for the issuance of a court order, which, however, does not deprive the applicant of the opportunity to apply to the court with a statement of claim on the same grounds in a general manner.

In paragraph 4 of the Resolution, the Supreme Court clarified that the recognition by the debtor of the claims made by the recoverer within the framework of the order proceeding is presumed. Such a presumption is surmountable by the debtor's filing of objections regarding the execution of the court order, which may relate to the very existence of the claim, the amount of the claim, the validity of the transaction from which the claim arose, etc.

It also follows from paragraph 4 of the Resolution that the presence of a dispute about the right, as well as disagreement with the stated claim and the evidence supporting it, may follow from the documents presented in court by the claimant along with the application for the issue of the order. In this case, the arbitration court refuses to accept the application on the basis of clause 3 of part 3 of Art. 229.4 APC RF.

The indisputable nature of the claim, which is declared within the framework of the order proceeding, in accordance with paragraph 7 of the Resolution, frees the claimant from the need to comply with the pre-trial procedure for resolving the dispute, which became mandatory from 01.06.2016 when applying to the arbitration court. Compliance with the pre-trial order is also not required in cases when, after the cancellation of the court order, the claimant applies to the arbitration court with a statement of claim in the general procedure.

About timing

Objections regarding the execution of the court order must be declared by the debtor within 10 days from the date of receipt of its copy (part 3 of article 229.5 of the Arbitration Procedure Code of the Russian Federation). If such objections are received within the prescribed time, the court order shall be canceled on the basis of Part 4 of Art. 229.5 APC RF. If objections are received by the court after the expiry of the established period, they are not considered and are returned to the person to whom they were filed, unless this person has substantiated the impossibility of submitting objections within the prescribed period for reasons beyond his control (part 5 of article 229.5 APC RF).

The term for filing objections to the execution of the court order is calculated from the date the debtor receives a copy of the order. In paragraph 30 of the Decree, the Supreme Court draws attention to the fact that the debtor independently bears the risk of not receiving a copy of the court order due to circumstances in his control.

Requirements

If the application for the issuance of a court order is based on a decision of the tax authority issued as a result of a tax audit, the mere fact of the debtor's objections to such a decision presented by the debtor to the arbitration court will not be an obstacle to considering the claim in the order of the order. However, if the debtor appealed the decision of the tax authority to a higher authority, the court order cannot be issued by the arbitration court, regardless of the results of the consideration of such a complaint (paragraph 10 of the Resolution).

Federal Law No. 45-FZ of 03/02/2016 "On Amendments to the Civil Procedure Code of the Russian Federation and the Arbitration Procedure Code of the Russian Federation" in the list of requirements for which a court order can be issued by a magistrate, separately included requirements for the collection of payment arrears residential premises and utilities, as well as telephone services (paragraph 10 of article 122 of the Code of Civil Procedure of the Russian Federation). Prior to the introduction of these changes, such claims were considered as claims based on a written transaction, declared on the basis of par. 3 tbsp. 122 Code of Civil Procedure of the Russian Federation (question 13 of the Review judicial practice Of the Supreme Court of the Russian Federation No. 2 (2015), approved by the Presidium of the Armed Forces of the Russian Federation on June 26, 2015).

In paragraph 11 of the Resolution, the Supreme Court of the Russian Federation clarified that on the basis of par. 10 tbsp. 122 of the Code of Civil Procedure of the Russian Federation, a court order can also be issued upon the demand for payment for services of other (in addition to telephone) types of communication (for example, telematic). This also applies to a situation where a court order is issued by an arbitration court (clause 1 of article 229.1 of the Arbitration Procedure Code of the Russian Federation).

Despite the fact that both the Code of Civil Procedure of the Russian Federation and the Arbitration Procedure Code of the Russian Federation contain a closed list of requirements for which a court order can be issued, in paragraph 12 of the Resolution the Supreme Court clarified on what requirements the issuance of a court order is impossible. Such claims, in particular, include claims for compensation for losses caused by non-performance (improper performance) of the contract, compensation for moral damage, termination of the contract, recognition of the transaction as invalid, as well as claims of creditors against the debtor in respect of whom the bankruptcy procedure has been introduced (such claims can only be made in a bankruptcy case).

In the same paragraph 12 of the Resolution, the Supreme Court drew attention to the fact that the provisions of Chapter 29.1 of the Arbitration Procedure Code of the Russian Federation on order proceedings do not apply to cases of administrative liability being considered by arbitration courts (§ 1, Chapter 25 of the Arbitration Procedure Code of the Russian Federation).

Procedure explained

Explaining the order of the order proceedings, the Supreme Court points out that an application for the issuance of a court order can be filed both under general territorial jurisdiction and under an alternative or contractual jurisdiction, while the rules of contractual jurisdiction apply even if the jurisdiction is determined by agreement of the parties. only the claim (clause 13 of the Resolution).

In accordance with paragraph 14 of the Resolution, an application for the issuance of a court order may be signed by a representative of the claimant, even if the power of attorney issued to the representative indicates the authority to sign and file a statement of claim with the court and does not specify separately the authority to sign and submit an application to the court. on the issuance of a court order.

In paragraph 15 of the Resolution, the Supreme Court explains what documents can be used to confirm the claims on the basis of which the claimant asks to issue a court order. Such documents, in particular, include documents confirming an existing obligation and the onset of its due date (for example, an agreement or a receipt). In support of the application for the collection of mandatory payments and sanctions, the tax authority must submit a claim for the payment of tax (Articles 69, 70 of the Tax Code of the Russian Federation).

If an application for the issuance of an order is submitted to an arbitration court, the claimant must send a copy of the application and the documents attached thereto to the debtor (paragraph 16 of the Resolution).

According to paragraph 18 of the Decree, an application for the issuance of an order can also be submitted to the court in electronic form.

The rulings on the return of the application for the issuance of a court order and on the refusal to accept the application for the issuance of a court order within 15 days may be appealed in the court of appeal. The Court of Appeal hears such complaints individually and without summoning the parties (paragraph 22 of the judgment).

In paragraph 25 of the Resolution, the Supreme Court draws attention to the fact that the expiration of the statute of limitations on the declared civil claim, as well as the presentation of a demand for the early repayment of the amount of debt, not connected with the application for termination of such an agreement, is not an obstacle to the issuance of a court order. and also that when considering an application for the issuance of a court order, the court is not entitled to reduce the amount of the penalty on the basis of Art. 333 of the Civil Code of the Russian Federation. However, the debtor has the right to refer to the expiration of the limitation period, to disagreement with the early repayment of the debt amount, as well as to the existence of grounds for reducing the amount of the forfeit (fine, penalties) in objections to the execution of the court order, which in this case must be canceled.

Since the court order comes into legal force immediately after its issuance and is at the same time an executive document, its appeal in the appeal procedure is not provided for by law.

At the same time, the court order can be appealed on appeal. A cassation appeal against a court order issued by a magistrate is filed directly with a court of cassation in the manner prescribed by Art. 377 Code of Civil Procedure of the Russian Federation, and a cassation appeal against a court order issued by an arbitration court is filed with a court of cassation in accordance with the rules of Art. 275 of the Arbitration Procedure Code of the Russian Federation through the arbitration court that issued the order (paragraph 43 of the Resolution).

If a court order resolves the issue of the rights and obligations of a person who did not participate in the order proceedings, such a person (for example, bankruptcy creditors, an authorized body, an arbitration manager) also has the right to appeal the court order in cassation in relation to Part 4 of Art. 13, part 1 of Art. 376 Code of Civil Procedure of the Russian Federation, Art. 42 and part 11 of Art. 229.5 of the APC RF (clause 44 of the Resolution).

Olga wrote:

Good day! A question of this kind arose unexpectedly. We are going to sue the debt with interest and interest over 7,000 base. There is an agreement, invoices, although the other party does not comment on the amount of interest and interest. So, can it be considered that our requirements are of an unsportsmanlike character?
Thank you in advance!

Penalty and interest can be recognized by the Debtor in the Reconciliation Act.
Other documents can also be such documents.
"4. To an application containing claims that are indisputable in nature (based on documents confirming the debtor's debt), the recoverer must attach documents confirming the amount of debt and the circumstances on which these claims are based (act, contract, invoices, calculation of debt indicating the period of the resulting debt, the calculation of forfeit and interest for the use of other people's funds, etc.), as well as evidence of the indisputability of the claim.
The evidence of the indisputability of the claim may include: documents confirming the arrears in payment for consumed electricity, water, heating, gas, communication services, formed in connection with the maintenance of premises by legal entities and individual entrepreneurs used for the purpose of entrepreneurial and other economic (economic) activities; the decision of the state body on the collection of compulsory payments, penalties; documents confirming the formation of current arrears on obligatory payments to the budget and state extra-budgetary funds; documents confirming the existence of a notarized transaction; protest of a bill of non-payment, non-acceptance, undated acceptance, etc.
5. For claims that are recognized (not disputed) by the debtor, but are not fulfilled, the claimant (applicant) must attach evidence confirming the circumstances on which the claim is based (contract, invoices, acts, invoices, waybills, etc.), documents confirming the recognition (non-dispute) by the debtor of the amount owed.
Such a document can be a claim sent to the debtor, received and left unanswered by him., an act of reconciliation of settlements, a response to a claim, an IOU, an accepted payment request or other document drawn up in accordance with the requirements of the law and signed by an authorized person.
An application to initiate an order proceeding may contain a requirement to recover a forfeit (fine, penalty) and interest for the use of other people's funds in the event that they are recognized (not disputed) by the debtor.

As you can see, such a document can also be a claim sent to the debtor, a claim received and left unanswered. Therefore, having sent a claim with the calculation of penalties and interest and not receiving an answer to it within the time frame established by the contract or within 30 days, according to the legislation, you have the right to apply to the economic court with a statement to initiate an order to recover the principal debt, penalties and interest.

"18. When accepting an application to initiate an order proceeding, the economic court within five working days issues a ruling on initiating an order proceeding, which it sends to the recoverer and the debtor with an explanation of the need to submit a response from the attachment of documents confirming objections to the claims of the claimant.

(Resolution of the Plenum of the Supreme Economic Court of the Republic of Belarus of 05/27/2011 N 9 "On some issues of order production")

24. If the debtor fails to submit a response within the time period established by Article 223 of the Code of Civil Procedure, or submits a response without attaching documents confirming objections to the claims of the recoverer, or a response containing recognition of the stated requirements, the economic court shall issue a ruling on the court order.

(Resolution of the Plenum of the Supreme Economic Court of the Republic of Belarus of 05/27/2011 N 9 "On some issues of order production")

26. Refusal to issue a ruling on a court order does not exclude the right of the claimant to present the relevant claims in the course of action, which the economic court explains in the operative part of the ruling.
By virtue of the fourth part of Article 224 of the Code of Civil Procedure, the claimant has the right, within fifteen working days after sending the ruling on refusal to issue a ruling on the court order, to apply to the economic court with a petition to consider his claims in the course of action proceedings. Such a petition must be accompanied by documents confirming the payment of the state duty in the manner and amount established when filing a claim, and a statement of claim with copies according to the number of defendants. On account of the payment of the state duty on the claim proceeding, the tax authority may set off in the established manner the amount of the state duty paid by the recoverer when submitting an application in the order of clerical proceedings, if the issuance of a ruling on a court order is refused in relation to the entire amount of the stated claims.
The rule of part four of Article 224 of the COD may be applied in case of refusal to issue a ruling on a court order both for the entire amount of the stated claims, and for its part.
When applying part four of Article 224 of the Code of Civil Procedure, it is not required to provide evidence of compliance by the plaintiff with the requirements of the law or an agreement on the pre-trial procedure for resolving a dispute (claim, negotiations, out-of-court mediation).

If the plaintiff's claims are indisputable, are recognized by the defendant or the claim is filed for an insignificant amount, the case may be considered in the simplified procedure. The case is considered in the simplified procedure at the request of the plaintiff in the absence of the respondent's objections or at the proposal of the arbitration court with the consent of the parties.

Simplified proceedings is a new type of proceedings in the arbitration process, previously unknown to the arbitration procedural legislation, a new institution of arbitration procedural law.

However, its appearance is caused by objective reasons and the entire history of the development of both arbitration procedural and civil procedural law. In addition to the generally accepted classification of arbitration cases in practice, they can be conditionally divided according to the level of complexity, which is associated with "energy costs" and the time period for their consideration. Some require the arbitration court and other participants in the arbitration process to commit large actions, and therefore more time for their consideration, others - less, since they do not present much difficulty for consideration. In this classification, cases of an indisputable nature stand apart; cases in which the claims of the plaintiff are recognized by the defendant, as well as cases related to the consideration of claims with an insignificant amount of claims. All these categories of cases can be considered in accordance with Article 226 of the APC by way of simplified proceedings.

The purpose of introducing simplified proceedings is, first of all, procedural saving of money and time for both the arbitration court and the participants in the arbitration proceedings. However, when considering cases by way of summary procedure, all the tasks of the arbitration proceedings specified in Article 2 of the APC must be fulfilled, as well as the basic principles of the arbitration process must be observed. The introduction of simplified proceedings should not be viewed as a departure from the principles of equality of parties, dispositiveness and adversarial nature, since the law establishes appropriate guarantees that allow the consideration of an arbitration case to be transferred from the simplified procedure to the usual mode of action. The legislator only acknowledges that not in all cases _ the arbitration court needs to carry out an expensive detailed procedure for considering an arbitration case. The value of simplified proceedings in the arbitration process follows from its essence and goals. The lender's application has a priority right to a simplified procedure due to the established norms civil law the presumption of guilt of the debtor for not fulfilling or improperly fulfilling his obligations to the counterparty, which makes the right of claim outwardly indisputable, which, in turn, can be challenged. Simplified proceedings, in addition to solving the tasks enshrined in Article 2 of the APC, additionally allows the arbitration court to:

• - to increase the efficiency of consideration of arbitration cases by shortening the period for consideration of an individual case (a shorter month period from the moment the case is submitted to the arbitration court in comparison with the general rules);
• - to improve both the efficiency of the work of the arbitration courts themselves and the enforceability of the acts they adopt;
• - to improve the efficiency of protection of violated and disputed rights and legitimate interests of participants in the arbitration process;
• - relieve the arbitration courts;
• - reduce material costs and time spent on the consideration of arbitration cases that do not require a complex and expensive procedure.

All these tasks are solved by the system of arbitration courts in a complex, so sometimes it is difficult to separate them from each other. In general, simplified proceedings in the arbitration process is a timely step in the development of arbitration procedural legislation and law, meets the goals and objectives of the judicial reform being carried out in our country. The initiation of an arbitration case considered in the simplified procedure is carried out according to the general rules established by the APC. The plaintiff must comply with the rules of jurisdiction and jurisdiction, fulfill other obligations associated with filing a statement of claim and exercising his right to a claim. In addition, the plaintiff may file other petitions related, for example, to the need for an arbitration court to apply interim measures, etc. The current arbitration procedural law does not impose any additional requirements on the persons initiating an arbitration case, which may later be considered by way of summary procedure. The APC does not contain any additional requirements for the actions of an arbitrator at the stage of initiation of an arbitration case, which can later be considered in a simplified procedure, with the exception of the following.

At the stage of initiation of the arbitration case, the arbitrator should consider the possibility of its transfer for consideration in the order of summary procedure.

In the order of simplified proceedings, the following cases may be considered:

• 1) on property claims based on documents confirming arrears in payment for consumed electricity, gas, water, heating, communication services, rent and other costs associated with the operation of premises used for the purpose of carrying out entrepreneurial and other economic activities;
• 2) for claims based on documents submitted by the plaintiff, establishing the property obligations of the defendant, which are recognized by the defendant, but not fulfilled;
• 3) on claims of legal entities in the amount of up to 200 minimum wages established by the federal law, on claims of individual entrepreneurs in the amount of up to 20 minimum wages established by the federal law;
• 4) for other requirements in the presence of the conditions provided for in Art. 226 APC RF.

Cases of simplified proceedings are considered by the arbitration court in accordance with the general rules of claim proceedings provided for by the Arbitration Procedure Code of the Russian Federation, with the specifics established in Chapter 29 of the Arbitration Procedure Code of the Russian Federation.

Cases of simplified proceedings are considered by the judge alone within a period not exceeding one month from the date of receipt of the statement of claim by the arbitration court, including the period for preparing the case for trial and making a decision on the case. In the ruling on the acceptance of the statement of claim for proceeding, the arbitration court indicates the possibility of considering the case in the summary procedure and sets a fifteen-day period for the parties to submit objections to the consideration of the case in the summary procedure, as well as to submit a response to the stated claims or other evidence. When considering cases by way of summary procedure, the court session is held without summoning the parties. The court examines only written evidence, as well as withdrawal, explanations on the merits of the stated claims, submitted in writing, and other documents. If the debtor objects to the stated claims, and also if the party objects to the consideration of the case by way of summary procedure, the arbitration court shall issue a ruling on the consideration of this case in accordance with the general rules of the claim procedure established by the Arbitration Procedure Code of the Russian Federation.

A decision based on the results of the consideration of the case by way of summary procedure can be made only if the debtor has not presented objections on the merits of the stated claims within the time period established by the court. The decision in a case considered in the simplified procedure is taken according to the rules established by Chapter 20 of the Arbitration Procedure Code of the Russian Federation. A copy of the decision is sent to the persons participating in the case no later than the next day after the day of its adoption. The decision can be appealed against within a period not exceeding one month from the date of its adoption to the arbitration court of the appellate instance. When initiating a case considered by way of simplified proceedings, the plaintiff must perform general actions aimed at initiating the arbitration process, provided for in Chapter 13 of the APC, draw up a statement of claim, and perform other actions in accordance with Articles 125, 126 of the APC.

Subject to the availability of conditions, the plaintiff may independently file a petition for the consideration of the arbitration case in the manner of simplified proceedings. This petition can be contained in the filed statement of claim or can be drawn up in a separate _-procedural document. In the petition, the plaintiff must indicate compliance with the conditions specified in Articles 226, 227 of the APC.

In the case of the indisputable nature of the claimed claims, the plaintiff must confirm this with the evidence attached to the statement of claim. The indisputable nature of the claims does not mean the absence of a dispute, since in the latter case it would contradict Article 4 of the APC, which establishes the right to arbitration judicial protection and its limits. The indisputability of the claims made by the plaintiff means that the claims are confirmed by irrefutable or the only possible evidence, or their totality does not raise doubts about the legitimacy of the plaintiff's claims. An example here may be public law disputes and other disputes related to property claims based on documents confirming arrears in payment for consumed electricity, gas, water, heating, communication services, rent and other expenses, associated with the operation of premises used for the implementation of entrepreneurial and other economic activities.

If the plaintiff applies for the consideration of the case by way of summary proceedings on the grounds of the recognition by the defendant of the claims made by the plaintiff, he must provide documents confirming the recognition by the defendant of these requirements and their non-fulfillment by the latter. Such documents can be various kinds of receipts, reconciliation acts, etc. In addition, such evidence can be both a written acknowledgment of the debt directly expressed by the defendant, and evidence that the defendant has committed actions aimed at fulfilling (including partial) his debt obligations. In any case, all submitted documents must comply with general requirements presented by the current APC for written evidence. Regardless of who initiates the consideration of the case by way of summary procedure (from the plaintiff or the arbitration court), the arbitration court judge, in the absence of other obstacles, makes a ruling on the acceptance of the statement of claim for his proceedings in accordance with the requirements of Article 127 and Chapter 21 of the APC. The ruling made by the arbitration court additionally indicates the possibility of considering the case by way of summary procedure; a fifteen-day period is established for the parties to submit objections to the consideration of the case in the procedure of simplified proceedings, as well as for the respondent to provide a response or other evidence on the stated requirements. In addition, in the specified definition, the arbitrator may indicate to the parties the consequences of their failure to submit consent, objections to the consideration of the case in the summary procedure or withdrawal of the claim.

The fifteen-day period specified in the ruling shall be calculated from the moment the statement of claim is accepted by the arbitration court for its proceedings.

Copies of the ruling on the initiation of an arbitration case shall be sent by the arbitration court to the parties no later than the next day after its issuance.

Having received a copy of the ruling on the initiation of an arbitration case and the possibility of considering it by way of summary proceedings, the defendant may send to the arbitration court either his objections to the consideration of the case by way of summary proceedings, or objections on the merits of the claims brought against him. The consequences will be identical - the arbitration court will have to issue a ruling on the consideration of the case according to the general rules of the claim procedure established by the APC.

The defendant's objections can be drawn up in the form of a response to the claim or in the form of a written explanation of the party and must comply with the general requirements for procedural documents.

After resolving the issue of initiating an arbitration case, which can be considered in summary proceedings, the arbitrator must resolve issues related to the preparation of this case.

summary judgment arbitration