The participation of the prosecutor in the arbitration process is a rather new area of work, which owes its creation to 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 means to prevent crime and strengthen the legislative framework in the field of economics, protecting the rights and interests of the public, the state.
Tasks of the prosecutor in arbitration
The participation of the prosecutor in the arbitration process 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 agro-industrial complex of the Russian Federation. He is a person with an exclusively 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 law nature, along with that of state bodies and local self-government.
Do not forget that participation in the arbitration process of the prosecutor and state bodies is subject to the rules established in the RF agribusiness and takes place in strict accordance with him. The supervisory function in this case is not carried out. The prosecutor is only one of the rest of the people 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 exclusively by procedural legislation.
Do all prosecutors have similar powers?
It must be borne in mind that the participation of the prosecutor in the arbitration process has some features. Not everyone has the authority to this option. So, only the Attorney General of the country, as well as his deputies, can appeal to the Supreme Arbitration Court with claims. At the moment, this main position is occupied by Yu. Ya. Chaika. Prosecutors of constituent entities of the Russian Federation, specialized prosecutor's offices and their deputies may file claims with regional arbitration courts.
What place is assigned to the prosecutor in the arbitration process ?
The participation of the prosecutor and other bodies in the arbitration process is regulated by the norms of the agro-industrial complex of the Russian Federation. Moreover, the legislator does not determine the special difference between their statuses, bringing someone to the forefront or giving advantages. The prosecutor, together with other persons who are involved in the case, has equal rights and obligations, with the exception of the possibility of making supervisory protests. It is assumed that this provision fully satisfies the principle of equality of arms in the arbitration process. At the same time, it does not in any way create obstacles to achieving the good goals and objectives set by prosecutors.
The legislator regards the prosecutor as a full-fledged separate subject of the arbitration process. If he filed a lawsuit in defense of the interests and rights of the state or society, then he bears the same obligations as the plaintiff, and also enjoys similar rights. An exception is the possibility of signing an agreement (global). In other words, the prosecutor participates in the same procedural status in the arbitration process as the parties (defendant and plaintiff). However, material rights are always possessed only by the person in whose interests the case was initiated. There is no procedural plaintiff only if the prosecutor has filed a lawsuit in defense of the so-called non-personalized interests.
There are two forms of participation of the prosecutor in the arbitration process, and both of them are regulated by Article 52 of the Arbitration Procedure Code of the Russian Federation.
Case initiation
The predominant (leading) form of work is the initiation of proceedings on certain grounds, an exhaustive list of which is indicated in the agribusiness complex of the Russian Federation, part one of art. 52. In this case, he accepts the position of the plaintiff, whose actions are aimed at protecting the interests of a public law nature. Moreover, he has the same procedural rights and performs similar duties. In the event that the prosecutor decides to refuse the claim brought by him, the plaintiff (if he is involved in the process) does not lose the right to demand a substantive review of the case.
Entry into the proceedings during the arbitration process
When 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 APK of the Russian Federation in the fifth part of Art. 52. According to the norm, a prosecutor can enter into a case that is being considered by an arbitration court at any stage, in order to ensure its legality. At the same time, he will have procedural obligations and rights of the plaintiff, with the exception of special ones that are indicated in the agro-industrial complex of the Russian Federation (Article 49). That is, certain restrictions are still present. In this situation, the prosecutor is not actually the plaintiff in the case. He simply enters into the arbitration process already begun by another person.
Here there is an analogy of how the prosecutor participates in the civil and arbitration process (Article 45, part 3 of the Code of Civil Procedure of the Russian Federation), and we can speak, in fact, of giving an opinion on the case.
Types of Attorney Claims
As already mentioned, prosecutors exercise their powers to participate in arbitration by filing statements of claim in accordance with the first paragraph of Article 52 of the Arbitration Procedure Code of the Russian Federation. They are entitled to file the following types of claims:
- Statements of contesting acts, including legal acts, of state bodies authorities of the country, self-government (local), which relate to the legitimate interests and rights of citizens, organizations in the field of economic activity, including in the business sphere.
- Participation in the case of the prosecutor in the arbitration process is possible when filing claims for the recognition of transactions made by local authorities, state. the 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, are invalid.
- Claims for the application of the consequences of the nullity of a transaction recognized as invalid. The circle of persons protected by the prosecutor is similar to that listed in the previous paragraph.
Participation in the arbitration process of the prosecutor: procedure for initiating proceedings
The statement of claim of the prosecutor must be drawn up 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 its annexes should be sent to all persons involved in the process. In his statement, the prosecutor indicates, in addition to specific circumstances and reasons, for the initiation of the case which served as the reason, legal grounds, that is, he gives references to specific norms of procedural and substantive law. It should have exceptional validity and motivation, as befits a document drawn up by officials with a legal education. When ensuring the participation of prosecutors in the arbitration process, no legal 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 composition (subjective) of the parties to the dispute.
Proof and procedural rights
It is on the prosecutor that the burden of proof rests , since the arbitration process is adversarial. Turning to the court with a statement of claim, he was the first to give explanations on the case and on the merits of the claims declared by him. In addition, he takes part in the study of all materials, material evidence, a place, has the right to ask all, without exception, participants questions, including invited experts and investigators.
The peculiarities of the participation of the prosecutor in the arbitration process are such that if it is established by him during the proceedings that the case is unreasonably initiated, he has the right to refuse it. However, such actions do not affect the opinion of the plaintiff. It may require the continuation of the process and the examination of the merits.
Summing up, we can say that the prosecutor is not an ordinary plaintiff, since he is not involved in a material dispute. Therefore, a counterclaim cannot be submitted to it. As mentioned above, his rejection of the claim does not entail termination of the proceedings.
Procedure for participation in a case initiated by other persons
It has already been mentioned above that Article 52 of the APC provides the prosecutor with the right to enter the case before the arbitral tribunal at any procedural stage. In other words, it is not limited by time frames. However, prosecutors are restrained by another factor - the circle of cases. Their exhaustive list can be found in Part 1 of Art. 52 agribusiness. When preparing a case for trial in court, the judge considers the issue of the admission of certain persons, including the prosecutor, and the agro-industrial complex in this case does not oblige him to notify the latter of the results. Many lawyers consider this moment controversial. Notification of supervisory authorities to initiate proceedings is sometimes appropriate.
In any case, the tasks of participating in the arbitration process of the prosecutor are the same, but the procedural provision is different. Due to the fact that in this case he does not act as a plaintiff, he is endowed with general duties and rights. Thus, the prosecutor can familiarize himself with all the materials of the case, participate in the proceedings and resolve a different range of issues, collect and submit 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, his “connection” at the very end will be practically inappropriate.
Appeal of decisions
It is logical that the participation of the prosecutor and other bodies in the arbitration process also provides for the possibility of appealing against judicial acts, including those that have already entered into legal force. In a cassation instance, a 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 people who have the authority to file claims.
The content of the complaint submitted to the cassation must fully comply with the requirements of the Arbitration Procedure Code of the Russian Federation (Article 165). The prosecutor who submitted it is directly involved in the consideration of the case in the relevant instance.
Prosecutor's protest
The participation of the prosecutor in the civil and arbitration process is possible by filing a protest in the manner of supervision. The institute has its own characteristics. The Prosecutor General of the country can take this step with respect to any decision or decision, with the exception of that made by the Presidium of the Supreme Arbitration Court of the Russian Federation. Deputies are also endowed with similar powers. They can file a protest against the decisions and orders of any of all the arbitration courts of Russia with the exception of the Higher.
Prosecutors of the country's subjects are not endowed with such rights. The Presidium of the Supreme Arbitration Court of the country is involved in the consideration of cases by way of supervision; therefore, this instance can be regarded as exceptional, and the measures are rarely used.
Problems of the participation of the prosecutor in the arbitration process
The legal status of the prosecutor as a person participating in the consideration of the case is determined by the APC of the RF. Perhaps the most important form of his participation is the initiation of legal proceedings, and an exhaustive list of grounds for this is established by the legislator. In practice, such a detailed list causes considerable difficulties and, as a result, affects the efficiency of the prosecution. Let us dwell on the main points of the contradictions in brief.
Firstly, the participation of the prosecutor in the arbitration proceedings consists mainly in contesting transactions. These actions are carried out in defense of the state, subjects of the country, self-government bodies (local) or commercial organizations, part of the capital of which belongs to the listed persons. At the same time, according to the APC of the Russian Federation, Art. 52, the prosecutor does not have the right in the process to file a claim for recognition of disputed property as a property right, he can only dispute transactions, and within the limitation period. He is powerless in those cases when the state. property is the subject of several consecutive transactions.
Secondly, unlike 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 regulatory legal acts invalid, provided that they, in whole or in part, do not comply with the law or other legal acts that have a large jurisprudence. force. At the same time, arbitration procedural legislation, unlike civil law, does not allow the possibility of protecting the interests of an indefinite number of persons by a prosecutor.
In practice, this translates into the following. Having discovered the non-compliance of the legal acts in the economic sphere with the norms of the law and not being able to eliminate them in the manner of the prosecutor’s response, he is obliged to find persons whose rights are violated in this case before filing a lawsuit with the court. This significantly complicates the work and requires a certain amount of time. Although it is well known that each regulatory act is applied repeatedly by an indefinite number of people, therefore, the publication of an illegal legal act always a priori violates their interests. Such a non-optimistic state of affairs is also confirmed by statistics. In practice, the applications filed by the prosecutors for invalidating the NLA have little effectiveness, the results of such actions are insignificant.
Great difficulty is also caused by the deadline for submitting an application of three months. His countdown begins from the moment when the citizen found out that his rights were violated to one degree or another. Practitioners unanimously speak about the impracticability of this requirement. The prosecutor’s office is simply not able to provide such protection. The only likely way out of the situation could be to increase the time limit set by the legislator for filing applications with the court.
In addition, to increase the efficiency of work, many practicing lawyers propose to give the prosecutor additional powers. Namely: to file claims for the recognition of substantive law, the invalidity of its registration and for recovering from unlawful possession of property.
Summing up, we can say that the participation of the prosecutor in the arbitration process, the tasks and forms of which are strictly regulated, is a rather complicated theoretical issue. The imperfection of the legislation in practice often leads to difficulties, delays and a decrease in the effectiveness of the work of the prosecution authorities. The fact of the existence of certain contradictions in the legal norms governing this institution is recognized not only by practitioners, but also by theoreticians. However, no significant changes are expected in the near future.