For the purpose of uniform application by the courts of the provisions in Chapter 24 of the Commercial Procedural Code of the Russian Federation, Decree No. 21 of the Plenum of the Supreme Court of the Russian Federation dated June 28, 2022 (PDF) clarifies the rules according to which courts consider cases of contesting decisions, including non-regulatory legal acts, actions (inaction) of state bodies, local governments, officials, state or municipal employees, other bodies and public officials.

1. Contested decisions

Decisions that may be challenged under the rules of Chapter 24 of the Commercial Procedural Code of the Russian Federation shall meet the following criteria:

  • these are individual administrative enactments;
  • they are adopted individually or collectively by public bodies or officials;
  • they contain an expression of will that gives rise to legal consequences for citizens and (or) organizations in the field of public legal relations;
  • they are adopted in writing, including in electronic form (in particular, in automatic mode) or orally.

2. Priority of document content over form

When considering whether a document may be challenged in court, its content is of key importance. The title of the contested document (opinion, act, protocol, notice, warning) is not critical.

A document may be challenged in court if it contains, in particular:

  • establishing a ban on certain behavior;
  • establishing a certain procedure;
  • granting or refusing to grant a right;
  • requirements, as a result of non-fulfillment of which a person may be held legally liable.

3. Challenging decisions related to the maintenance of registers (Unified State Register of Real Estate, Unified State Register of Legal Entities)

Within the framework of arbitration proceedings, procedural decisions related to the maintenance of registers may be challenged, in particular:

  • entering erroneous information about the right to real estate or encumbrances thereof into the Unified State Register of Real Estate;
  • entering into the Unified State Register of Legal Entities information about the members of the legal entity that do not correspond to the documents submitted for registration;
  • making an entry in the Unified State Register of Legal Entities on the liquidation of the legal entity as inactive, despite the objections of the creditor;
  • refusal to enter information into the Unified State Register of Legal Entities, despite the submission by the applicant of all documents required by law.

Challenging the rights registered in the registers (rights to real estate, rights related to participation in a legal entity) shall be carried out by filing claims (on recognition of ownership rights, on invalidating the decision of a meeting of members of a legal entity, etc.).

4. Documents that are not subject to independent challenge in court

The following may not be the subject of independent challenge in court:

  • certificates of tax and customs inspections;
  • certificates of control (supervisory) measures drawn up in accordance with Article 87 of Federal Law No. 248-FZ dated July 31, 2020;
  • documents confirming certain circumstances, including the legal status of a person or the legal mode of property (for example, certificates, statements, minutes of public hearings).

5. Possibility of considering property claims as part of a case on challenging the decisions of state bodies

In the event that, in addition to challenging the decision, actions (inaction), the applicant has filed a claim of a property nature, paid with a state fee in the appropriate amount, the court has the right to consider these claims as part of one case, as having an interrelated nature. For example, simultaneously with challenging the decision of the tax authority based on the results of a tax audit, a claim for the refund of overcharged tax may be considered.

At the same time, the court has the right to separate the property claim into a separate proceeding.

6. Rules of jurisdiction

As a general rule, applications for challenging a decision, actions (inaction) are considered by the courts at the location of the body, the person who made the contested decision, committed the contested action, committed the contested inaction, including at the location of the territorial body of the federal executive authority.

At the same time, if the authority of the body or person extends to the territory of several regions or the territory of the entire country, the application, at the choice of the applicant, may also be filed with the arbitration court of the region in whose territory the contested decision is being enforced or the legal consequences of the contested decision, actions (inaction) have arisen or may arise.

7. Active role of the court

Consideration of cases according to the rules of Chapter 24 of the Commercial Procedural Code of the Russian Federation shall be carried out on the basis of the principle of competitiveness and equality of the parties with the active role of the court.

Unless otherwise provided by law, the court is not bound by the legal qualification of the disputed relations and has the right to recognize the contested decision as legal (illegal) with reference to the rules of law not specified in this decision.

The court is also not bound by the grounds and arguments of the stated claims, that is, regardless of the arguments of the application, the court, including on its own initiative, shall find out the circumstances relevant to the case.

8. Contested decisions, actions may not be declared illegal only on formal grounds

Failure to comply with the established procedure for making a decision, committing a disputed action may serve as a basis for concluding that they are illegal, if the violations committed are significant for the applicant and affect the outcome of the case.

Violations of the procedure, which are of a formal nature, as a general rule, may not serve as a basis for recognizing the contested decisions or actions as illegal.

9. Astreinte

The arbitration court has the right to award in favor of the applicant a sum of money in case of non-execution of the judicial act (astreinte), if, as a result of resolving the case, the relevant public body or official is to restore the rights and legitimate interests of the applicant and the applicant’s ability to freely exercise his/her civil rights depends on the proper execution of the judicial act.

In particular, the execution of the following obligations by a state body may be ensured by an astreinte:

  • prepare the layout of the land plot on the cadastral plan of the territory;
  • prepare a draft contract (agreement);
  • carry out cadastral or registration actions;
  • correct a registry error.

At the same time, an astreinte may not be awarded based on the results of consideration of cases on contesting acts of a non-regulatory nature and decisions, actions (inaction) of tax, customs, antimonopoly authorities, state and municipal control bodies.

10. Termination of proceedings

The court has the right to terminate the proceedings in the case if the contested decision is canceled or reviewed, the necessary actions are taken and the rights and legitimate interests of the applicant are no longer affected.

Proceedings in the case may not be terminated on the indicated grounds if the applicant has filed or may file other claims based on the unlawfulness of the contested decision (for example, for damages).

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