Indirect lawsuits are used by many developed countries as a convenient legal tool. With its help, business entities from joint-stock companies that arise between participants or managers are trying to resolve the conflict situation. Russian lawyers believe that such a concept has penetrated into our jurisprudence from England and America. They mainly engaged in trust management of other people's property. The construction of an indirect lawsuit in Russian legislation has long been used in substantive law, without fixing a separate procedural mechanism for this element, which is why legal practitioners had multiple questions.
How did the legislation deal with the alien model?
Federal law under No. 205 introduced in 2009 the chapter 28.1 in the agro-industrial complex of the Russian Federation. The legal act began to regulate procedural issues in arbitration courts for corporate disputes to date. Indirect claims for the legislation of the Russian Federation are under investigation. This concept was not introduced into the current Arbitration Procedure Code.
Article 225.1 considers the instrument only as a corporate dispute, to which the defense has given a special place. If an indirect claim is satisfied, the company benefits directly. For shareholders, indirect benefits are acquired, there is no personal profit, except for reimbursement by the defendant of costs for legal expenses, provided that the participants won the case. In clause 225.1 of the article, clause 3 emphasizes which disputes may be considered corporate disputes when claims are filed:
- founders;
- participants;
- members of legal entities.
To resolve the issue regarding:
- Compensation for damages caused to legal entities;
- recognition of the invalidity of transactions;
- consequences.
You can simply disclose the concept of an indirect lawsuit: this legal element serves to protect enterprises, organizations, joint-stock companies, LLC, when officials, managers by their actions inflict losses on them.
Characteristic Attributes
In the APC of the Russian Federation, Article 4 states that interested parties can appeal to arbitration courts to protect their rights with claims for compensation for the costs of legal proceedings or enforcement of judicial acts within the time period established by law. To understand the meaning of indirect claims in the arbitration process, you need to know what instrument they are. Claims are filed with the claims in arbitration when there are economic disputes, other cases that are inherent in civil law relations. Claims are legitimate and clearly regulated mechanisms; they are intended to protect the interests of one party if it has suffered from the actions of others. Grounds are required for the lawsuit. They are legal facts that are considered by the procedural order.
The content of two legal parts
The shareholder may file an indirect lawsuit about the unlawful actions of the founder, the problem is in his classification. Such cases are difficult even in the global practice of legal proceedings. All claims are divided into:
- Material, when the plaintiff demands from the defendant financial benefits, declares this in writing, the controversial situation will be considered by the court.
- Procedural. The first instance of the arbitration court will deal with the requirements presented in the application.
The application must contain reasons for initiating proceedings. They consist of the following:
- legal factors requiring the return of the pledged property, providing obligations for a pledge;
- active or passive legitimation, the definition depends on who the claimant or defendant is;
- motivation, reasons for filing claims, for example, borrowers do not repay debts and do not contact creditors, pre-trial settlement of the dispute did not lead to a positive result, therefore they turn to arbitration.
The third type of lawsuit relates to their content, which are understood in the objectives and directions of the claims. The arbitral tribunal considers in what order the obligations between the parties were fulfilled and makes a decision on the termination of legal relations or on the performance of certain actions.
In what order does the classification take place?
Indirect claims in the arbitration process pass, like any others, through a procedural legal systematization. There is a need to determine the main criterion for classifying a claim:
- Confessions, where during the process the judge recognizes the right to own property, if there is a contest of property. The application was sent to protect the interests of the applicant. Similar requirements can be positive and negative. The plaintiff can both recognize the property and refuse it. The purpose of the applicant is to determine subjective law or to prove the lack of interest and requirements in relation to property.
- Award - the application is aimed at collecting money from the defendant or vacating the premises.
- Transformation - the plaintiff seeks to change the contractual terms.
The next step is to determine the nature of the shareholder can bring an indirect claim for personal interests or he protects the rights of other founders of the enterprise.
What is the purpose of the requirement?
When claims are submitted to arbitration, they are divided in the office according to their purpose and content. To do this, determine whose interest the applicant protects. Here in this procedure, at the stage of delimitation, the concept of indirect claims in the civil process is laid down. Separation occurs according to the criteria of the parameters in protecting interests:
- Personal, where mutual obligations are indicated, but the plaintiff tries to benefit from a court decision, being a direct participant in a controversial financial relationship.
- State, when they demand invalidation of privatization with the protection of state or public property.
- Third parties - by the example of the prosecutor's office protecting the property of an enterprise. The official acts on the side of the organization, his interests in this matter are not.
- Lawyers call group and indirect claims derivatives. In this case, the loss of the organization caused its head. Violations can be made by one of the shareholders, a group of LLC representatives, depending on the status and method of company formation. Defendants are individual founders or management companies.
An indirect claim of a shareholder is under the jurisdiction of the Arbitration Court, with its help they protect the rights and interests of AO and LLC. The classification of requirements according to their material characteristics is widely used. Judicial statisticians take into account such cases, dividing the industry rightfully:
- administrative;
- tax;
- civilian.
Classification research, when considering an indirect lawsuit in a civil proceeding, indicates an increase in court cases. This says that society is actively involved in the social and economic development of the state.
Benchmarking
The legal proceedings are saturated with classic claims, they are united by the direction of the claims from the plaintiff to the defendant. Direct and indirect claims can be considered in their comparison to characterize each element. Upon receipt of a direct action by the arbitration court, the applicant seeks to obtain from the defendant:
- the property;
- money;
- performance of certain actions.
The statement contains an object with substantive requirements from one side to another. The implementation of intentions is possible by forced means on the basis of a court decision. Direct suits can be single and group. The following persons apply to the court:
- citizens authorized by state bodies;
- legal entities and individuals.
As a result, the applicants will be given court orders that are issued for execution in respect of a particular large group. Unlike an indirect lawsuit in corporate law, here people also defend their interest, but not in a direct but indirect way, by filing a lawsuit indicating violation of the rights of others. Feature of derivative claims:
- the legal element was singled out as a separate independent unit;
- the value of goal-setting, the nature of protected interests is the same in importance with the classic - single and group.
Analysis result
Group and indirect claims in the civil process on the subject specifics and grounds are expressed in the requirements: to pay losses incurred by the joint-stock company, and not by an individual shareholder. Moreover, by qualification, such statements do not fit the group variety, because they come from the name or the name of the organization. It should be noted the implementation of unlawful actions on the part of the governing bodies of the company or controlling structures, they create the basis for derivatives, but not tort claims.
When there is a defense of a common corporate interest, not of an individual participant, a contradiction arises regarding classification. Claims in the courts can only be founding shareholders. In the event of a dispute between an individual participant and a joint-stock company, they are not considered mandatory in the courts, due to the status of the management entity. It is impossible to divide the managers of the organization and its participants into obligated and authorized parties, characteristic of the obligations.
Main types
Participants in corporations file indirect claims due to identified violations in the company, which result in losses. This happens as a result of the transaction, it can be concluded by the sole executive body or the representative controlling the work. It is possible to compensate for the damage at the legislative level with the help of the filed derivative application, if it is formed by:
- a mandatory indication of the conclusion of contractual obligations from the main enterprise to the subsidiary;
- arrangements with the LLC and persons interested in their own benefit with a predetermined loss for the enterprise;
- AO leaders committed guilty acts that contradict a reasonable and good faith principle.
How is the court hearing cases on direct and indirect claims in corporate disputes? If everything is clear with the classic parameter, who is trying to get the benefit is the plaintiff. According to the specifics of the derivative claims, which are aimed at protecting the whole company, where the plaintiff is a shareholder and the manager is the defendant, it only seems that the applicant does not receive benefits. After scrupulous work with the evidence that the administration did harm to the company, there is indirect damage to all shareholders, the issue is submitted to a separate court proceeding and the lawsuit may be satisfied. Then they will award the costs incurred from the funds of the violator to the AO cash desk.
Legal expenses will be reimbursed to the company, but after a high-profile process the assets and assets will certainly increase in value, this, though indirect, has a benefit for shareholders. Arbitration is given the right to appeal on behalf of the joint-stock company, legal entities that assume obligations on the part of their bodies acting according to the law, on the basis of legal acts and constituent documents. When these structures commit offenses it is clear that they will not file claims. Therefore, for these actions, the right is granted to one shareholder or group, provided that they have 1% of the shares of AO.
How are state fees paid?
Submission of derivative claims is characterized by taxation of state duty. Since it is not served in the manner prescribed by the Code of Civil Procedure under Article 46, the procedure has general grounds. For this element, the rule on state duties under Article 5, Part 2, Clause 13 is excluded, where for legal entities and citizens who apply to the legal authority to protect their rights and interests, it is not necessary to pay the state treasury if the case is examined by a court of general jurisdiction.
Derivative claims are filed in order to protect the rights and legitimate interests of other persons, and given the final result that the plaintiff seeks, he will have to pay without privileges. When they prepare cases for legal proceedings on the application from the shareholder, against the governing body, they provide him with special measures. Management is removed from corporate management and the end of the process. Such actions preclude the possibility of resisting the consideration of a controversial issue and a fair solution.
Russian problems in implementation
Legal scholars see the main problem in the implementation of indirect claims in the imperfection of procedural mechanisms. Difficulties arise for participants who speak on behalf of legal entities:
- determine procedural status;
- to represent adequately the interests of participants;
- ascertain the limits of the distribution of court decisions;
- pay legal expenses for significant amounts due to their uncertainty.
The theoretical and applied dilemmas include understanding and use of:
- indirect claims;
- jurisdiction and jurisdiction of cases;
- determination of eligibility of plaintiffs and defendants;
- payment of state fees;
- the procedure for providing evidence;
- level of responsibility;
- enforcement of court decisions.
Derived claims appeared in Russian law when corporations began to be owned in the plural instead of the single owner who managed all the affairs. In such entities, shares were split into small blocks. The founder of the company was losing its ability to be the sole leader. It became necessary to hold general meetings in order to make a decision. It was more effective for shareholders to hire a professional manager. The directors accepted from the outside were not alien to the human, like the acquired vices, they began to act solely for their own interest, omitting concern about the company's profits. Why did it happen:
- partial or full withdrawal of funds to other companies;
- agreements were concluded with organizations that were associated with the appointed head and set conditions unfavorable for the joint-stock company.
Wrongful and illegal actions of the management led to losses. Because of a misunderstanding of the situation in previously prosperous companies, conflicts arise with the founders, and if they can’t peacefully resolve the dispute, they turn to the arbitration court to protect the material interests of the enterprise. During this period, the claim is indirect, as are its submitters, although they seek to protect not only the well-being of the company, but also their own condition. If the applicants are individuals, the case falls under the jurisdiction of the district court, although it is connected with the economy of the company. Submit an application at the place of residence of the defendant. When a legal party comes forward with a lawsuit, jurisdiction passes to the Arbitration Court in the region where the lawbreaker is registered.
The legislation did not allocate regulated allocations for court costs. Of course, no one will accept the application without paying the state fee, which means that all costs are immediately borne by the plaintiff’s budget, then everything depends on a positive court decision. If the claim is satisfied, the manager must recover the costs. But how to execute such a regulation, nothing is said in the acts.
The question of partial victory in court is not entirely clear. The plaintiff's right to demand reimbursement of expenses on the proportionality of court decisions. The question is whether an unscrupulous manager will fulfill duties that are not fixed by law, but only by moral aspects.