Participation in the prosecutor's arbitration process: forms, tasks, features

Participation in the prosecutor's arbitration process is a rather new direction of work, which is due to the creation of a system of specialized courts dealing with the resolution of economic disputes at the regional, republican or regional levels, as well as the cities of St. Petersburg and Moscow, federal districts. This measure acts as an effective tool for preventing violations of law and strengthening the legislative framework in the field of economics, protecting the rights and interests of the public and the state.

Tasks of the prosecutor in arbitration

Participation in the arbitration process of the prosecutor is subordinated to the process of fulfilling one main task - the protection of public and state. Interests on the grounds and in those forms that are regulated by the norms of the agrarian and industrial complex of the Russian Federation. He is a person who has only a procedural and legal interest in the final result. The prosecutor always acts in the interests of third parties, but only on his own behalf. In fact, this is one of the types of protection of interests of a public legal nature, along with that of state and local government bodies.

Do not forget that the participation in the arbitration process of the prosecutor and state bodies is subject to the rules established in the APC of the Russian Federation and occurs in strict accordance with it. Supervisory function in this case is not carried out. The prosecutor is only one of the remaining persons who take part in the consideration of the case. This feature is explicitly stated in the Federal Law "On the Prosecutor's Office" (Article 35): its powers are determined solely by procedural legislation.

Do all prosecutors have similar powers?

It is necessary to bear in mind that participation in the arbitration process of the prosecutor has some peculiarities. Not all have the authority to this option. For example, only the Attorney General of the country, as well as his deputies, can apply to the Supreme Arbitration Court with statements of claim. At the moment this main position is occupied by Yu. Ya. Chaika. Prosecutors of RF subjects, specialized prosecutors and their deputies can file suits with regional arbitration courts.

What place is assigned to the prosecutor in the arbitration process ?

Participation in the arbitration process of the prosecutor and other bodies is regulated by the norms of the agrarian and industrial complex of the Russian Federation. And the legislator does not define a special difference between their statuses, bringing someone to the fore or giving them advantages. The Prosecutor, together with other persons who participate in the case, has equal rights and duties, with the exception of the possibility to make supervisory protests. It is assumed that this provision fully satisfies the principle of equality of parties in the arbitration process. At the same time, it does not in any way create obstacles to the achievement of the good goals and tasks set before the employees of the Prosecutor's Office.

The legislator regards the prosecutor as a full-fledged individual subject of the arbitration process. If he applies for protection of the interests and rights of the state or society, he has the same duties as the plaintiff, and enjoys similar rights. An exception is the possibility of signing an agreement (world). In other words, the prosecutor participates in the arbitration process in the same procedural status as the parties (the defendant and the plaintiff). However, the material rights are always only the person in whose interests the case was initiated. The procedural plaintiff is not present only in the event that the claim of the public prosecutor is brought in protection of so-called non-personified interests.

There are two forms of participation of the prosecutor in the arbitration process, and both are regulated by Article 52 of the Code of Administrative Procedure of the Russian Federation.

Initiation of the case

The predominant (leading) form of work is the initiation of a case on certain grounds, an exhaustive list of which is indicated in the agrarian and industrial complex of the Russian Federation, parts of the first art. 52. In this case, he accepts the plaintiff's position, whose actions are aimed at protecting the interests of a public legal nature. However, he has the same procedural rights and performs similar duties. In the event that the prosecutor decides to waive the claim brought against him, the plaintiff (if he participates in the process) does not lose the right to demand consideration of the case on the merits.

Joining the case during the arbitration process

Discussing the forms of participation of the prosecutor in the arbitration process, it should be noted that the second type appeared relatively recently. It is regulated by the agrarian and industrial complex of the Russian Federation in part five of Art. 52. According to the rule, the prosecutor can enter the case, which is considered by the arbitration court, at any stage, in order to ensure its legality. In this case, he will have procedural duties and the rights of the plaintiff, with the exception of special ones, those specified in the agrarian and industrial complex of the Russian Federation (Article 49). That is, certain restrictions are still present. In this situation, the prosecutor is in fact not the plaintiff in the case. He simply enters the arbitration process already started by another person.

Here there is an analogy of how the prosecutor participates in the civil and arbitration proceedings (Article 45, part 3 of the CCP of the RF), and we can, in fact, talk about giving a conclusion on the case.

Types of claims of the prosecutor

As already mentioned, prosecutors exercise their powers to participate in arbitration proceedings by filing lawsuits in accordance with part one of Article 52 of the Code of Administrative Procedure of the Russian Federation. They are entitled to handle the following types of actions:

• Applications for challenging acts, including regulatory and legal bodies, state bodies. The authorities of the country, local self-government, which concern the legitimate interests and rights of citizens and organizations in the field of economic activity, including in the entrepreneurial sphere.
• Participation in the case of the prosecutor in the arbitration process is possible when filing claims to recognize transactions that are committed by local government, state. Authorities of the Russian Federation or subjects of the country, unitary enterprises (municipal or state), as well as a separate category of legal entities, whose authorized capital has its own characteristics, invalid.
• Claims about the application of the consequences of a nullity of a transaction that is declared invalid. The circle of persons advocated by the prosecutor is similar to that listed in the previous paragraph.

Participation in the prosecutor's arbitration process: the procedure for initiating a case

The prosecutor's statement of claim must be formalized in full compliance with the requirements established by the head of the thirteenth APC of the Russian Federation. That is, a copy of the document and all attachments to it should be sent to all persons participating in the process. In his application, the prosecutor specifies in addition to specific circumstances and occasions, for the initiation of the case that served as the reason, also legal grounds, that is, it refers to specific rules of procedural and substantive law. It must have exceptional validity and motivation, as befits a document drawn up by officials with a legal education. With the participation of prosecutors in the arbitration process, no court costs are required. It is necessary to comply with other rules when applying to the arbitration court, including do not forget about the principle of jurisdiction or the composition (subject) of the parties to the dispute.

Proof and procedural rights

It is to the prosecutor that the burden of proof rests, since the arbitration process has a competitive nature. Applying to the court with a statement of claim, he is the first to give explanations on the case and the essence of the claims claimed by him. In addition, he takes part in the study of all materials, material evidence, places, has the right to ask all questions, without exception, to the participants, including invited experts and investigators.

The specifics of participation in the arbitration process of the prosecutor are such that if they are established during the proceedings, that the case is instituted unreasonably, then he has the right to refuse it. However, such actions do not affect the plaintiff's opinion. He may require the continuation of the process and consideration of the case on the merits.

Summarizing, we can say that the prosecutor is not an ordinary plaintiff, as he does not participate in the material dispute. Therefore, he can not be presented with a counterclaim. As has been said above, his refusal of the claim does not lead to an end to the proceedings of the proceedings.

The procedure for participation in a case initiated by other persons

It has been said above that Article 52 of the APC grants the right to the prosecutor to enter the case before the arbitration court at any procedural stage. In other words, it is not limited to a time frame. However, prosecutors restrain another factor - the scope of cases. Their exhaustive list can be found in part 1 of Art. 52 agroindustrial complex. When preparing a case for trial in a court, the question of joining certain persons, including the prosecutor, is considered by the judge, and the APC in this case does not oblige him to notify the latter about the results. This point many lawyers consider controversial. Notification of supervisory authorities to initiate a case is sometimes expedient.

The tasks of participation in the arbitration process of the prosecutor are in any case the same, but the procedural situation is different. In connection with the fact that in this case he does not appear as a plaintiff, he is vested with general duties and rights. Thus, the prosecutor can conduct familiarization with all the materials of the case, participate in the proceedings and resolve various issues, collect and present evidence. However, unlike the previous form of participation by filing a lawsuit, he does not give the court an explanation as a plaintiff. And although the prosecutor's entry is possible at any stage, nevertheless his "connection" at the very end will be practically inexpedient.

Appealing decisions

It is logical that participation in the arbitration process of the prosecutor and other bodies provides for the possibility of appealing judicial acts, including those that have already entered into legal force. In the cassation instance, the case can be reviewed only on the basis of a complaint from a certain circle of persons. It is defined by law. These are the same persons that have the power to file lawsuits.

The content of the complaint submitted to the cassation must fully meet the requirements of the agrarian and industrial complex of the Russian Federation (Article 165). The prosecutor who submitted it, directly participates in the consideration of the case in the appropriate instance.

Prosecutor's protest

Participation of the prosecutor in the civil and arbitration proceedings is possible by filing a protest in the order of supervision. The Institute has its own characteristics. The Attorney-General of the country can take this step with respect to any decision or decision, except that it was passed by the Presidium of the Supreme Arbitration Court of the Russian Federation. The deputies are also endowed with similar powers. They can file a protest against the decisions and orders of any of all arbitration courts of Russia except for the Supreme Court.

Prosecutors of the subjects of the country do not have such rights. The Presidium of the Supreme Arbitration Court of the country is in charge of supervising cases, so this instance can be regarded as exceptional, and measures are rarely used.

Problems of participation of the prosecutor in the arbitration process

The legal status of the prosecutor as the person participating in the proceedings is determined by the AIC of the Russian Federation. Perhaps the most important form of his participation is the initiation of legal proceedings, and the legislator determines the exhaustive list of grounds for this. In practice, such a detailed list causes considerable difficulties and, as a consequence, affects the effectiveness of the work of the prosecutor's office. Let us dwell on the main points of the contradictions in brief.

Firstly, participation in the arbitration proceedings of the prosecutor consists mainly in challenging transactions. These actions are carried out in defense of the state, the subjects of the country, self-government (local) or commercial organizations, part of the capital of which belongs to the listed individuals. At the same time, according to the agrarian and industrial complex of the Russian Federation, Art. 52, the prosecutor has no right in the process of claiming recognition of the property right on the disputed property, he can only challenge the transactions, within the limits of the limitation period. He is powerless in those cases when the state. The property is the subject of several successive transactions.

Secondly, unlike the lawsuit proceedings, when considering cases arising from other public relations, the activities of the prosecutor are aimed at protecting the interests and rights of citizens, companies and other persons in the entrepreneurial sphere of activity. Article 192 of the APC of the Russian Federation allows him to file a claim for the recognition of any normative and legal acts as invalid, provided that they in whole or in part do not comply with the law or other NPA having a large Jurassic. Force. At the same time, arbitration procedural legislation, unlike civil, does not allow the possibility of protecting the interests of an indefinite circle of persons by the prosecutor.

In practice, this translates into the following. Having discovered the discrepancy between the NAP in the economic sphere with the norms of the legislation and not being able to eliminate them in the course of the prosecutor's response, he must find the persons whose rights are violated in this case before filing a lawsuit in court. This significantly complicates the work and requires a certain time. Although it is common knowledge that every normative legal act is applied repeatedly by an undefined circle of persons, therefore, the publication of an illegal NPA always a priori violates their interests. Such a non-optimistic state of affairs is confirmed by the statistics. In practice, applications filed by prosecutors on recognizing NPAs as invalid are of low effectiveness, the results of such actions are insignificant.

A great deal of difficulty is also caused by a three-month deadline set for submission of the application. His countdown starts from the moment when the citizen learned that his rights were to some extent violated. Practices in one voice speak of the impracticability of this requirement. The prosecutor's office is simply unable to provide such protection. The only likely exit from the situation may be an increase in the time limit set by the legislator for submitting applications to the court.

In addition, to increase the effectiveness of work, many practicing lawyers propose to confer additional powers on the prosecutor's office. Namely: the filing of claims for the recognition of substantive law, the invalidity of its registration and the reclaiming of illegal possession of property.

Summing up, we can say that participation in the arbitration process of the prosecutor, whose tasks and forms are strictly regulated, is a rather complex theoretical issue. Imperfection of legislation in practice often leads to difficulties, delays and a decrease in the effectiveness of the work of the prosecution authorities. The fact that there are certain contradictions in the legal norms governing this institution is realized not only by practitioners, but also by theorists. However, no significant changes are expected in the near future.