Federal Arbitration Court of the Volga-Vyatka District, consisting of:
presiding Pavlov V.Yu.,
judges Chernyshova D.V., Shishkina E.N.
without the participation of representatives of the parties
considered at the hearing the cassation complaint of the plaintiffs - Dolinkina Valentina Petrovna and Dolinkin Nikolai Vladislavovich against the decision of the Arbitration Court of the Yaroslavl Region dated February 8, 2010, adopted by Judge I.V. Gorbunova, and against the decision of the Second Arbitration Court of Appeal dated April 21, 2010, adopted by judges Gubina L .V., Velikoredchanin O.B., Polyakova S.G., in case N A82-8134/2009 on the claim of Dolinkina Valentina Petrovna and Dolinkin Nikolai Vladislavovich against the limited liability company Scientific, Technical and Commercial Center "Tehkor" for the return from someone else's illegal possession shares in authorized capital companies, third parties - Kalenkova Anna Nikolaevna and Pavlov Stanislav Yuryevich, and established:
Dolinkina Valentina Petrovna and Dolinkin Nikolai Vladislavovich applied to the Arbitration Court of the Yaroslavl Region with a claim specified in accordance with Article 49 of the Arbitration Procedure Code Russian Federation, to the limited liability company Scientific, Technical and Commercial Center "Tehkor" (hereinafter - OOO "Tekhkor", the Company) on the return to the heirs of Dolinkin V.N. from someone else's illegal possession of a hereditary share in the amount of 26 percent authorized capital Companies in proportions corresponding to the documents on the accepted inheritance, namely: Dolinkin N.V. share in the amount of 8.67 percent and Dolinkina The.P. - 17.33 percent.
The demand is based on Articles 256, 301, 1154 of the Civil Code of the Russian Federation, Articles 19 and 21 of Federal Law No. 14-FZ of 08.02.1998 "On Limited Liability Companies" (hereinafter referred to as the Law) and is motivated by an illegal change in shares in the authorized capital of the Company.
In accordance with Article 51 of the Arbitration Procedure Code of the Russian Federation, Kalenkova Anna Nikolaevna and Pavlov Stanislav Yuryevich were involved in the case as third parties who do not declare independent claims regarding the subject of the dispute.
Referring to Article 301 of the Civil Code of the Russian Federation, the court, by decision of February 8, 2010, left unchanged by the decision of the appellate instance of April 21, 2010, refused to satisfy the claims, since it considered that the plaintiffs had chosen an improper method of protecting the violated right.
Disagreeing with the judicial acts, Dolinkina The.P. and Dolinkin N.V. appealed to the Federal Arbitration Court of the Volga-Vyatka District with a cassation appeal, in which they ask to cancel the decision and the decision of the appellate instance in connection with the violation of substantive law and the inconsistency of the court's conclusions with the actual circumstances of the case.
The applicants do not agree with the court's conclusion about the improper way to protect the violated right, since they believe that the objects civil rights include things, including property rights. To property law includes hereditary property, which is issued by certificates. Based on Article 34 family code In the Russian Federation, the common property of the spouses includes shares in the authorized capital, that is, money also belongs to the concept of property. The Applicants believe that the share in the authorized capital of the Company has all the features of individually defined property, which can be claimed by the owner from someone else's illegal possession.
In responses to the cassation appeal, the defendant and third parties referred to the legality and validity of judicial acts, asked to consider the complaint in their absence and leave it without satisfaction.
With proper notification of the time and place of the trial, the parties did not ensure the appearance of representatives in the third instance. In accordance with Part 3 of Article 284 of the Arbitration Procedure Code of the Russian Federation, the cassation appeal was considered in their absence.
The legality of the decision of the Arbitration Court of the Yaroslavl Region and the decision of the Second Arbitration Court of Appeal was verified by the Federal Arbitration Court of the Volga-Vyatka District in the manner prescribed in Articles 274, 284 and 286 of the Arbitration Procedure Code of the Russian Federation.
Having studied the materials of the case and the arguments set forth in the cassation appeal, the district court found no grounds for canceling the appealed judicial acts, based on the following.
As seen from the documents and established by the court, the Company was registered on 02/02/1995 and in accordance with Article 4 of the Charter and the constituent agreement of 12/22/1998, the authorized capital of the Company was formed in the amount of 2050 rubles. The founders of the Company were Kalenkova A.N., having 48 percent of the authorized capital with a nominal value of 984 rubles, Pavlov S.Yu. and Dolinkin V.N. - 26 percent of the authorized capital with a nominal value of 533 rubles each.
Dolinkin V.N. He died on May 14, 2008, the heirs of his share in the authorized capital of the Company are V.P. Dolinkina. (2/3) and Dolinkin N.V. (1/3), which is confirmed by certificates of the right to inheritance under the law of November 24, 2008 N 76-01 / 479528 and 76-01 / 479527.
The decision to increase the authorized capital to 100,000 rubles, amend the constituent documents and determine the amount of additional contributions was made by the meeting of the Company's members held on 12/29/2008 (extract from minutes No. 22).
Dolinkina V.P. and Dolinkin N.V. sent to the Company applications dated 08.01.2009 for registration as members of the Company with the right of shared ownership.
By decision of the meeting of the Company's participants, held on January 10, 2009 (Minutes No. 23), Kalenkova A.N. and Pavlov S.Yu. additional cash deposits to the authorized capital of the Company, an increase in the nominal value of the shares of the Company's members who made additional contributions was approved, and amendments to the Charter of the Company were approved.
Inspectorate of the Federal tax service Russia in the Leninsky district of the city of Yaroslavl, on the basis of the Company's statement dated 01/26/2009, made a decision dated 01/29/2009 on state registration of changes to the constituent documents of Tekhkor LLC.
Considering that the change in the shares in the authorized capital of the Company was carried out illegally, Dolinkina The.P. and Dolinkin N.V. applied to the arbitration court with the present claim.
By virtue of Article 301 of the Civil Code of the Russian Federation, the owner has the right to reclaim his property from someone else's illegal possession.
The evidentiary basis of the vindication requirement is the circumstances confirming that the plaintiff has a legal title to the claimed thing, which has individually defined characteristics, preserved in kind, the loss by the plaintiff of actual possession of the thing, as well as its being in someone else's illegal possession.
The defendant under the vindication requirement is an illegal owner who possesses a thing without a proper legal basis or on a vicious basis of acquisition.
To satisfy the claims, the presence of the indicated facts in the aggregate is necessary, the absence or lack of evidence of one of them entails a refusal to satisfy the claim.
Articles 14 and 23 of the Law provide that the authorized capital of a company is made up of the nominal value of the shares of its participants. The size of the authorized capital of the company and the nominal value of the shares of the company's participants are determined in rubles. The Company is not entitled to acquire shares or parts of shares in its charter capital, except for the cases provided for by this Federal Law.
The owner has the right to own, use and dispose of his property (Article 209 of the Civil Code of the Russian Federation).
According to article 93 of the Civil Code of the Russian Federation and article 8 of the Law, the right to dispose of shares in the authorized capital belongs to a company participant.
In accordance with Article 71 of the Arbitration Procedure Code of the Russian Federation, the court comprehensively, fully and objectively examined the actual circumstances and the evidence presented in the case, and came to the rightful conclusion that the plaintiffs are the owners of a share in the authorized capital of the Company and have not lost their actual ownership of it, while In this case, the share in the authorized capital does not have individually defined characteristics, and the Company is not the owner of the specified share, does not own and does not dispose of it.
Under these circumstances, the court justifiably refused to satisfy the claims due to the choice by the applicants of an improper method of protecting the violated right.
Moreover, the Court of Appeal rightly pointed out that, on the merits, the stated requirements of Dolinkina The.P. and Dolinkina N.V. come down to challenging the decisions of the general meetings of the Company on increasing the authorized capital and approving the increase in the nominal value of the shares of its participants. At the same time, these decisions were not challenged and not declared invalid in the manner prescribed by law.
The arguments set forth by the applicants in the cassation appeal were considered by the district court and rejected in full due to the circumstances set forth, as well as due to the fact that they are based on an erroneous interpretation of the law and were the subject of consideration in the courts of first and appeal instances.
The case materials were examined by the courts fully, comprehensively and objectively, the evidence presented by the parties was given a proper legal assessment, the conclusions set out in the contested judicial acts correspond to the circumstances of the case and the rules of law.
There are no grounds for annulment of judicial acts.
Violations of the rules procedural law, which, by virtue of part 4 of article 288 of the Arbitration Procedure Code of the Russian Federation, in any case, the basis for the cancellation of the adopted judicial acts, the court of cassation did not establish.
In accordance with Articles 110 and 112 of the Arbitration Procedure Code of the Russian Federation and subparagraph 12 of paragraph 1 of Article 333.21 of the Tax Code of the Russian Federation, the costs of paying the state fee are borne by the applicant.
Guided by paragraph 1 of part 1 of article 287 and article 289 of the Arbitration Procedure Code of the Russian Federation, the Federal Arbitration Court of the Volga-Vyatka District ruled:
the decision of the Arbitration Court of the Yaroslavl Region of February 8, 2010 and the decision of the Second Arbitration Court of Appeal of April 21, 2010 in case N A82-8134 / 2009 are left unchanged, the cassation appeal of Valentina Petrovna Dolinkina and Nikolai Vladislavovich Dolinkin is not satisfied.
The decision of the arbitration court of the cassation instance shall enter into force from the date of its adoption.
Decree of the Federal Arbitration Court of the Volga-Vyatka District of August 20, 2010 in case N A82-8134 / 2009
The text of the decision was provided by the Federal Arbitration Court of the Volga-Vyatka District under an agreement on information and legal cooperation
The document is cited with the spelling and punctuation of the source preserved.
Document overview
The heirs of a share in the authorized capital of an LLC filed a lawsuit to recover it from someone else's illegal possession of the company (in proportions corresponding to the documents on the accepted inheritance).
As indicated by the plaintiffs, the shares in the authorized capital of the defendant were illegally changed. The named share has all the features of an individually defined property. Therefore, it can be claimed by the owner from someone else's illegal possession.
The district court concluded that there was an inadequate way to protect the violated right.
By virtue of the Civil Code of the Russian Federation, the owner has the right to reclaim his property from someone else's illegal possession.
The evidence base of the vindication requirement is made up of certain circumstances. They confirm that the plaintiff has a legal title to the thing claimed, which has individually defined characteristics and has been preserved in kind. They must also testify to the loss by this person of actual possession of it, as well as to its being in someone else's illegal possession.
In the case under consideration, the plaintiffs are the owners of the share, who have not lost their actual possession of it. At the same time, it does not have individually defined characteristics, and society is not its owner, does not own and does not dispose of it.
Consequently, the plaintiffs chose an improper way to protect the violated right. In essence, their demands boil down to challenging the decisions of the general meetings of the LLC on increasing the authorized capital and approving the increase in the nominal value of the shares. However, these decisions have not been contested in the prescribed manner and have not been declared invalid.
Case #2-<.........>/13
SOLUTION
IN THE NAME OF THE RUSSIAN FEDERATION
DD.MM.YYYY Nakhodka, Primorsky Krai
Nakhodka City Court of the Primorsky Territory composed of Judge Alekseev D.A. while maintaining the minutes of the court session by the secretary of the court session N., having examined in open court a civil case on the statement of claim C.The. to KSUE "Primteploenergo" represented by the branch "Nakhodka" on the recognition of illegal actions officials recovery of non-pecuniary damage, court costs,
SET UP:
S.V. applied to the court with the above claim, in support of which he indicated that he was the owner of the apartment located at:<.........>. From the moment the plaintiff acquired this apartment, KSUE Primteploenergo issues invoices to him for heat supply services provided before 2002, while payment for these utilities is paid by the plaintiff on time and in full. He believes that such actions of the defendant's officials violate his consumer rights, in connection with which he asks the court to recognize as illegal the actions of the officials of the Nakhodkinsky branch of KSUP Primteploenergo, expressed in the presentation of a debt to the plaintiff for the consumed thermal energy in the amount of<.........>, penalties in the amount<.........>, total size<.........>, collect from KSUE "Primteploenergo" moral injury at the rate of<.........>rubles, as well as the costs of payment by the plaintiff of a state fee in the amount of<.........>rubles.
At the hearing the plaintiff C.The. did not appear, was duly notified by the court of the time and place of the trial, as evidenced by the postal notification of the receipt of the court notice.
At the hearing, the representative of the plaintiff I., acting on the basis of a power of attorney, supported the arguments of the statement of claim, clarified the claims in terms of the amounts of fines, the accrual of which she asked to recognize as illegal:<.........>.
KSUP "Primteploenergo" submitted to the court written objections to the statement of claim, the arguments of which boil down to the fact that the rights of S.V. as a consumer, Primteploenergo did not violate, in addition, the plaintiff chose an improper way to protect the violated right.
At the hearing, the representative of KSUP “Primteploenergo” Kh. supported the arguments of the objections.
Involved in the case at the initiative of the court in accordance with the article of the Code of Civil Procedure of the Russian Federation (hereinafter referred to as the Code of Civil Procedure of the Russian Federation), S.E., duly notified of the time and place of the trial, also did not appear at the hearing, the presence of his representative did not provided. Under these circumstances, the court believes that the third person, in accordance with the article, disposed of his right to participate in the court session at his own discretion, in connection with which, according to the rules of paragraph 4 of the article, the case was considered in his absence.
The court, having heard the opinion of the representatives of the parties, having studied the arguments of the statement of claim and objections to it, having examined the case materials, comes to the following.
The actions of the defendant contested by the plaintiff in the actual legal relations of the parties to the dispute for the provision of services for the supply of thermal energy to the plaintiff's object (apartment) are connected with the accrual of debt and sending to S.V. as a consumer of warnings about a possible appeal to the court with a claim for debt collection.
The right of the person concerned (in this case- KSUE "Primteploenergo") in the manner prescribed by the legislation on civil proceedings, apply to the court for the protection of violated or disputed rights, freedoms or legitimate interests, provided by law (part 1 of article).
Litigation on:
abuse of rightArbitrage practice on the application of Art. 10 Civil Code of the Russian Federation
Reclaiming the premises of the technical basement of an apartment building from someone else's illegal possession is possible if the owners of the premises apartment building do not actually own the disputed premises. In this case, a demand is made to recognize the right of ownership and a demand to reclaim property from someone else's illegal possession. If the owners of such premises own, then demands are made to remove obstacles to use. See the legal positions of the Supreme Arbitration Court of the Russian Federation on this: "The right of ownership to the common property of the building. Ways to protect the right."
The consequence of choosing an improper method of protecting the right will be the refusal to satisfy the claims. Below are examples of refusals in claims (extracts from judicial acts of the Supreme Arbitration Court of the Russian Federation, district courts).
1. If the owners of the premises in the house do not actually own the basement, then the question of ownership of the disputed property can only be resolved when considering a vindication claim
The legal nature of a claim filed by the partnership for recognition of the right of common shared ownership of the homeowners to the common property of the building depends on who actually owns controversial basement and uses it.
If the owners of the premises in the house actually own this property (they lawfully have or have received free access to this part of the basement), then the partnership’s claim should have been considered as a requirement similar to the owner’s claim to eliminate any violations of his rights that are not related to deprivation of possession and apply to him the rules of Article 208 of the Civil Code of the Russian Federation.
The relevant legal approaches have been developed in the rulings of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 8665/07 dated November 6, 2007, No. 3039/07 dated September 4, 2007, No. 10527/08 dated January 27, 2009, and a number of others... (extract from the definition of the Supreme Arbitration Court of the Russian Federation dated October 21, 2009 N BAC-12537/09).
2. The claim was denied because the basis for state registration of the defendant's ownership of the basement premises was not disputed by the plaintiff
An individual entrepreneur filed a lawsuit with the Arbitration Court of the Republic of Tatarstan against OJSC, the Office of the Federal Registration Service for the Republic of Tatarstan on the invalidation of registration for OJSC ownership rights to the premises of the basement, stairways on the first floor, stairways on the 2nd floor in the building; recognition of the plaintiff's right to common property to the above premises, as well as internal engineering networks, mechanical, electrical, sanitary and other equipment; Obligation of OJSC to vacate the premises of the basement remove and not obstruct the use of the indicated premises, providing him with documentation for power receiving devices and metering devices for electricity supply, water supply and heat supply, technical conditions for connecting to networks; hand over duplicate keys to all the locks of the entrance doors to the basement N....
By the decision of the Arbitration Court of the Republic of Tatarstan dated April 22, 2009, the claims were denied.
The Federal Arbitration Court of the Volga District, by its decision of 31.08.2009, upheld the decision of the court of first instance.
Based on the results of the assessment of the circumstances of this dispute, the courts found that the defendant's ownership of the disputed premises was registered in connection with the transfer of this property to him by the Ministry of Land and Property Relations of the Republic of Tatarstan under the act of acceptance and transfer of property dated 04.08.2003.
At the same time, the basis for the state registration of the defendant's right of ownership in relation to the named immovable property, neither in the framework of this case, nor by applying to the court with separate requirement the plaintiff did not dispute on the merits.
At the same time, the courts came to the conclusion that the requirements of the entrepreneur to invalidate the state registration of property rights do not correspond to the circumstances of this dispute. The courts, referring to the decision of the Presidium of the Supreme Arbitration Court of the Russian Federation of April 28, 2009 N 15148/08, indicated that the contestation of the registered ownership of real estate can be carried out only in the ways expressly provided for by the current legislation, which are applied taking into account the nature and consequences of the relevant violation.
Under such circumstances, the entrepreneur, based on the subject and grounds of the claim filed in the present case, was denied satisfaction of the requirements (extract from the ruling of the Supreme Arbitration Court of the Russian Federation of February 15, 2010 N VAS-17110/09).
3. The court dismissed the HOA’s claim for termination of the right to the basement premises, the obligation to transfer them to the balance of the HOA and exclusion from the Unified State Register on the basis that the plaintiff chose the wrong way to protect violated rights
Meanwhile, if a person in whose name an entry was made in the register on the right of individual ownership of a room belonging to common property owns such a room, depriving other owners of access to this room, the owners of other rooms in this building have the right to apply to the court with a claim for reclamation of property from someone else's illegal possession (Article 301 of the Civil Code of the Russian Federation), combining it with the requirement to recognize the right of common shared ownership. Such claims are subject to a general period limitation period(Article 196 of the Civil Code of the Russian Federation).
In view of the foregoing, the arbitration court, having established that the HOA "Shilkinskaya 15", with the aim of protecting the right of common shared ownership, filed claims that were not provided for by law, refused to satisfy these claims.
The conclusions of the arbitral tribunal were made with the correct application of substantive law, they correspond to the materials of the case (extract from the Decree of the Federal Antimonopoly Service of the Far Eastern District of May 25, 2010 N Ф03-2294 / 2010).
4. The court dismissed the claim of the HOA to invalidate the state registration of rights to the basement, indicating that the plaintiff had chosen an improper method of protecting the violated right
The Association of Homeowners "Revolutions 6" (hereinafter - HOA "Revolutions 6") filed a lawsuit with the Arbitration Court of the Novosibirsk Region against the Office of the Federal Registration Service for the Novosibirsk Region and Alexei Anatolyevich Kuraev on invalidation of state registration of rights dated 11/17/2006 and 03/20/2009 for a basement with engineering communications with an area of 300 sq.m in house No. 6 on Revolution Street (entrance No. 11, 3rd stage, 4th block section) of the city of Novosibirsk. The statement of claim is motivated by the fact that the disputed real estate can only be the common shared property of the owners of residential premises in an apartment building, and is substantiated by reference to the Russian Federation.
By decision of April 9, 2010, the Arbitration Court of the Novosibirsk Region denied the applicant's claim. In the appellate instance, the legality and validity of the decision of the court of first instance were not checked.
Disagreement with the state registration of property rights dated 11/17/2006 and 03/20/2009 served as the basis for the HOA "Revolution 6" to apply to the arbitration court with this application.
The Arbitration Court, refusing to invalidate the registered ownership of the said property, proceeded from the fact that the plaintiff had chosen an improper method of protecting the violated right.
This conclusion of the court is based on the formed judicial practice, supported by the Presidium of the Supreme Arbitration Court of the Russian Federation and set out in the decision of 04.28.2009 N 15148/08, according to which the contestation of the registered right to real estate can take place only using the methods of protection established by civil law, applied with taking into account the nature and consequences of the offense in question. The protection of civil rights is carried out by the methods listed in Article 12 of the Civil Code of the Russian Federation, including by recognizing the right, as well as by other methods provided for by law ... (extract from the Decree of the FAS of the West Siberian District of June 18, 2010 in case N A45 -25939/2009).
5. If the plaintiff, who considers himself the owner of the disputed real estate, does not have a registered right to it and does not actually own it, then the issue of ownership of such property can be resolved only when considering a vindication claim
The partnership of homeowners "Our House - 9" (hereinafter referred to as the HOA "Our House - 9") filed a claim with the Arbitration Court of the Republic of Tatarstan against the individual entrepreneur Khusainov Albert Nargizovich (hereinafter referred to as the first defendant, IP Khusainov A.N.), individual businessman Shaikhutdinov Ramel Mukhametkhanovich (hereinafter referred to as the second defendant, individual entrepreneur Shaikhutdinova R.M.) on the recovery of property from someone else's illegal possession: basements N 14, 16, 17 occupied by the first defendant, basements N 54, 59 - 64, 68 occupied by the second defendant, located at the address: Kazan, Pobedy Ave., 226A.
By the decision of the Arbitration Court of the Republic of Tatarstan dated April 14, 2009, left unchanged by the decision of the Eleventh Arbitration Court of Appeal dated June 19, 2009, the claim was dismissed.
By virtue of Article 301 of the Civil Code of the Russian Federation, the owner has the right to reclaim his property from someone else's illegal possession. This right, in accordance with Article 305 of the Civil Code of the Russian Federation, also belongs to a person, although not being the owner, but owning property on the basis of the right of lifetime inheritable possession, economic management, operational management, or on another basis provided for by law or contract.
Taking into account the position of the Presidium of the Supreme Arbitration Court of the Russian Federation, set out in the Decree of 04.09.2007 N 3039/07, of 04.28.2009 in case N 15148/08, the courts should bear in mind that if the plaintiff, who considers himself the owner of the disputed property, does not has a registered right to it and actually does not own it, then the issue of ownership of such property can be resolved only when considering a vindication claim in compliance with the rules provided for by and 302 of the Civil Code of the Russian Federation. Without filing a vindication claim, the refusal of the court to satisfy the stated claim is lawful.
In addition, the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of July 23, 2009 N 64 "On some issues of the practice of considering disputes about the rights of owners of premises to the common property of the building" (hereinafter referred to as the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of July 23, 2009 N 64) reflects the legal position regarding issues related to the definition of the legal regime of the common property of a building, the premises in which are owned by several persons.
According to paragraph 2 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of July 23, 2009 N 64, the common property of the building includes, in particular, premises intended for serving more than one room in the building, as well as landings, stairs, halls, elevators, elevator and other shafts, corridors , technical floors, attics, basements in which there are engineering communications, other equipment serving more than one room in this building (technical basements), roofs, enclosing load-bearing and non-bearing structures of this building, mechanical, electrical, sanitary and other equipment located outdoors or indoors and serving more than one premises.
At the same time, if a person in whose name an entry was made in the register on the right of individual ownership of a room related to common property owns such a room, depriving other owners of access to this room, the owners of other rooms in this building have the right to apply to the court with a claim for recovery property from someone else's illegal possession (the Civil Code of the Russian Federation), combining it with the requirement to recognize the right of common shared ownership. Such claims are subject to the general limitation period (of the Russian Federation, paragraph 9 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 23, 2009 N 64).
Consequently, the conclusion of the courts that the plaintiff does not have the right to bring a vindication claim without challenging the grounds for the emergence of the defendants' ownership of the disputed property is unlawful ... (extract from the Decree of the Federal Antimonopoly Service of the Volga District of November 5, 2009 in case N A65 -20766/2008).
6. The HOA filed a claim for the recognition of the right of common shared ownership of the premises for the owners of residential premises of the MKD and the recognition of the defendant's ownership rights as invalid. The court dismissed the claim, because the HOA did not file a claim for the recovery of the property for which the plaintiff asked to recognize ownership
Refusing to satisfy the claims, the courts of first and appeal instances came to the conclusion that the Nash Dom partnership chosen the wrong method of protection.
Ways to protect civil rights are enshrined in Art. 12 of the Civil Code of the Russian Federation. At the same time, methods of protecting violated or contested civil rights are understood as substantive legal coercive measures enshrined in law, through which the restoration of violated or contested rights is carried out.
Thus, the chosen method of protection, if the plaintiff's claims are satisfied, should lead to the restoration of his violated or contested rights. When filing a claim with an arbitration court, the plaintiff should indicate which right of his is violated, and also prove that the violated right, in whose defense the corresponding claim is filed, will be restored by the method of protection chosen by him.
It follows from the materials of the case that the Nash Dom partnership filed a claim on the recognition of the defendant's registered ownership of the disputed premises as invalid, as well as the requirement on the recognition of the right of common shared ownership to these premises for the owners of residential premises of house N 22. The plaintiff did not file any other requirements in the framework of this case.
At the same time, the courts reasonably proceeded from the fact that such a way of protecting a right as invalidating a registered property right by the current legislation not provided. Contestation of the registered right to real estate can take place only with the use of the methods of protection provided for by civil legislation, applied taking into account the nature and consequences of the relevant offense.
If a claim for recognition of a right is filed by a non-owning owner, then in essence his claim is aimed at awarding and transferring to him the disputed property, which he does not actually possess. This requirement is vindication and is subject to consideration in compliance with the rules provided for in Art. 223, 302 of the Civil Code of the Russian Federation, which makes it possible to establish the good faith of the acquisition of property, its proper owner, as well as the protection of the owner by the rules on a 3-year limitation period (Article 196 of the Civil Code of the Russian Federation).
The courts have established and the persons participating in the case do not dispute that the disputed premises are not in the possession of the plaintiff. Based on the evidence available in the case file, which were examined and evaluated according to the rules of Art. 71 of the Arbitration Code of the Russian Federation, the courts found that the disputed premises on the basis of various agreements (lease agreements, free use dated 11/30/2001, 08/01/2005, 11/01/2005, 02/01/2007) were and are occupied by other organizations that are involved in this case as third parties that do not declare independent claims regarding the subject of the dispute.
Thus, it should be recognized as correct the conclusion of the courts that in this case, the appropriate way to protect the right is a vindication claim, since satisfaction of the requirement of the non-owning owner to recognize the ownership of the disputed property will lead to the claimant becoming the owner in the absence of this property in his actual ownership.
Meanwhile, it appears from the materials of the case that the Nash Dom partnership did not file a claim for the recovery of the property, to which the plaintiff asked to recognize the right of ownership, from the illegal possession of third parties.
Under such circumstances, one should agree with the conclusion of the courts that there are no grounds for satisfying the stated claims, since the method of protection chosen by the Nash Dom partnership will not lead to the restoration of rights if the claim is satisfied (extract from the Decree of the Federal Antimonopoly Service of the Urals District of May 31, 2010 N F09- 3922/10-C6).
An improper way to protect rights is a fatal wording in a judicial act familiar to most lawyers. It is difficult to overestimate the importance of choosing a method of protecting rights when filing a claim. It would not be an exaggeration to assume that the right choice will be at least 50% of the success of the outcome of the case, since an erroneously formulated requirement promises a greater likelihood of dismissal of a claim on this independent basis.
Corporate disputes are no exception. Special ways of protecting the rights of companies and their participants are provided for by the laws on joint-stock companies and LLCs in separate norms. Applicable and common ways protection of rights (Article 12 of the Civil Code of the Russian Federation). The list of options is not limited and depends on the imagination of the applicant.
The court evaluates the chosen mechanism. Only the court ultimately decides whether what the plaintiff asks for corresponds to the way in which his rights are violated, and the prospect of their restoration through the stated claim.
The study of arbitration practice shows that negative decisions on the basis of choosing an improper method of protecting rights can be divided into two categories:
Episodes when the rules of law have developed specific types of requirements, and the applicant asks for another;
Cases when the methods of protecting rights for a certain situation are not established by law, but, in the opinion of the court, the chosen method does not correspond to the nature of the legal relationship or does not restore the violated right.
Let's take a closer look at each category with examples.
1) On cases where the legislator has provided for special ways to protect rights av.
Resolution of the Fifth AAC dated 01.10.2015 in case No. А51-7966/2015:
In accordance with Art. 12 of the Civil Code of the Russian Federation, everyone can defend the civil rights granted to him in the ways established by law. In some cases, the methods of protection are determined by the prescription of the legal norms governing this legal relationship. If the rules of law provide for a specific legal relationship only a certain method of protection, the persons concerned can use only this method.
Ruling of the Supreme Court of the Russian Federation No. 305-ES15-12238 dated 05.10.2015 in case No. A40-60292/2014:
A shareholder of the Moscow Processed Cheese Plant Karat demanded that the Bank buy back his shares. The requirement is motivated by the fact that the Bank with affiliates was the owner of more than 30% of the shares of the Karat company and did not offer the remaining shareholders to redeem their shares, as provided for in Art. 84.2 of the Federal Law "On Joint Stock Companies".
The first instance supported the applicant; appeal, cassation and the Supreme Court of the Russian Federation denied the demand: The Law on Joint Stock Companies provides for a special consequence of non-compliance with the rule on sending an offer - until the date of its sending, the number of voting shares of such a shareholder is limited. An administrative fine is also imposed. No other consequences are foreseen. The plaintiff chose an improper way to protect rights.
A similar position is set out in judicial acts in case No. A40-132281 / 14:
The minority shareholder of OAO Gazprom gazoraspredelenie Kaluga in a statement of claim against OAO Gazprom demanded to buy back his shares. The requirement is due to the fact that OAO Gazprom entered into a deal with OAO Rosneftegaz to purchase shares of OAO Gazprom gazoraspredelenie Kaluga, as a result of which it became the owner of more than 75% of voting shares. The Respondent failed to comply with the need to send an offer to minority shareholders, thereby violating the rules for buying shares. However, the courts of three instances refused the plaintiff.
2) On cases where special ways of protecting rights are not indicated by law.
2.1. The chosen method of protection of rights does not correspond to the essence of the disputed legal relations.
Decree of the Arbitration Court of the Far Eastern District dated February 1, 2016 in case No. A24-2078/2014:
The participant of the company disputes the transfer of goods to the counterparty of the company as an interested party transaction, which was also made beyond the powers of the executive body. There is a prejudicial judicial act regarding the fact: the goods were transferred on waybills to fulfill obligations under compensation agreements. The courts of three instances recognized that the dispute is of a corporate nature, as it was declared between the participant and the company, they considered that the plaintiff had chosen an improper method of protecting rights. Actions to transfer goods in pursuance of compensation agreements are not transactions in the sense of Article 153 of the Civil Code of the Russian Federation, which excludes the possibility of declaring them invalid in isolation from challenging compensation agreements. The plaintiff did not ask for this.
Decree of the Thirteenth AAC dated December 29, 2015 in case No. A42-5657 / 2015:
Two participants in a society, there is a conflict between them. One of them recovers damages from the second (being the CEO) in favor of the company: in the amount administrative fines, imposed by the world court on the firm for violations in the organization of general meetings. The amount of fines is 1.5 million rubles. The trial court agreed with the applicant.
Appeal cancelled:
It was the plaintiff who contributed to the increase in the amount of damages when he challenged the appointed administrative punishment, referring to the insufficient amount of the imputed sanction. The purpose of such behavior is solely to create harm to society, and ultimately to the second participant - the leader, which makes it impossible on the basis of Art. 10 of the Civil Code of the Russian Federation, the plaintiff's right to judicial protection. In relations between the participants of the company, other methods of restoring rights should be used than in the framework of legal relations between the Company and the CEO, or the general meeting and the head.
The list of methods of protection, according to Article 12 of the Civil Code of the Russian Federation, is open, but must be determined by law. Failure to provide information to the second participant was a consequence of disagreements between them, and not management errors. Recovery of damages is not possible.
2.2. The chosen method of protection will not lead to the renewal of the violated right.
Criteria for choosing a way to protect rights are not normatively formulated. However, in judicial practice there is a clear statement that the choice of a certain way of upholding civil law should achieve the goal of not only protecting, but also restoring the violated right. Non-compliance with this criterion entails negative consequences for the plaintiff.
Resolution of the Arbitration Court of the Moscow Region dated 04/08/2016 in case No. A40-34601 / 15:
The claim of the former participant of the LLC for the invalidation of the decision general meeting, at which other participants decided to terminate her powers as the CEO, invalidating the entry in the Unified State Register of Legal Entities, obliging the tax authority to enter information about her as the current director. Let us omit the details of this case from the point of view of compliance with the rules for holding a meeting, about missing the limitation period by the plaintiff and the presence of a prejudice.
We are interested in the position of the courts on the requirement to invalidate the entry in the Unified State Register of Legal Entities and the obligation to enter new information there.
Cassation: based on the provisions of Articles 12, 13 of the Civil Code of the Russian Federation, Article 198 of the Arbitration Procedure Code of the Russian Federation, Federal Law No. 129-FZ “On State Registration legal entities and individual entrepreneurs”, the applicant chose an improper method of protecting rights that would not restore his allegedly violated right, since the legislative system does not know the possibility of invalidating entries in the Unified State Register of Legal Entities. These records are not an individual legal act government agency only decisions on state registration are subject to appeal.
However, how many people, so many opinions. The same goes for judges.
In case No. P07-4382/2015, the Eighteenth AAC (Decree of August 18, 2015) came to the following conclusions:
The protection of civil rights is carried out, inter alia, through the restoration of the status that existed before the violation occurred. In the field of corporate relations, the restoration of control over the activities of the firm by restoring the original position is applicable regardless of how the participant was deprived of such control.
At the same time, the fact that the legislation has not developed mechanisms to eliminate the violation of the rights of interested parties caused by the entry of disputed information into the Unified State Register of Legal Entities as a result of the submission of false documents by other persons, on the basis of which false information is entered into the Unified State Register of Legal Entities, should not become a basis for refusal.
There are also judicial acts in which the court is limited only to stating the fact of the wrong choice of the method of protection, without indicating why it came to such a conclusion. In this case, the refusal to satisfy the demand is motivated only by this.
Decree of the Arbitration Court of the city of Moscow in case No. A40-2792 / 2015 dated May 15, 2015:
the court refused to recognize the actions as illegal CEO companies related to the refusal to provide accounting documents for audit, since the plaintiff chose an improper way to protect the right. What the court wanted to say can only be thought out. The appeal upheld the decision, adding nothing new.
Normative acts speak very superficially about the choice of appropriate ways of protecting rights. The procedural legislation does not know such a concept at all, despite the fact that the presentation of a claim by an improper plaintiff / against an improper defendant follows from the Arbitration Procedure Code of the Russian Federation.
The existence of a whole layer of judicial acts, one way or another connected with the assessment by the court of the chosen method of protecting rights, indicates the need for increased attention of the plaintiffs to this issue.
It often happens that already during the trial, the court makes it clear that it does not agree with the chosen method of protecting rights, informs the party about the right to clarify the requirements, which is subsequently reflected in judicial acts in the form of the phrases “the plaintiff/applicant did not use the right to clarify claims”, etc. What to do with such "tips": to use or refuse - it is up to the interested party in the case. However, with firm confidence in your choice, be prepared to defend your position with doubly convincing arguments and arm yourself with solid evidence.
Due to the lack of legally enshrined clarifications on the proper way to protect the rights to real estate, in a practical environment, ways of protection have appeared that are not provided for by the current legislation. The most widely used method is the invalidation of a registered right to real estate. Moreover, the proprietary legal protection methods provided for by civil law, which, it would seem, should serve as a means of restoring a violated right, are often ignored by participants in disputed legal relations. Let us consider whether it is possible for the court to invalidate the registered right to real estate, in respect of which a proprietary dispute has arisen?
What does the legislation say?
In modern jurisprudence, when considering disputes related to the protection of property rights and other property rights, to this day there continues to be an approach that considers invalidation of registered ownership of real estate as an independent way to protect civil rights (Review of judicial practice for consideration by district (city) courts of the Kaliningrad region of civil cases in the second half of 2013).
I must say that the legal community has long been accustomed to this method of protecting the ownership of real estate. However, how true is it in principle to recognize the right as invalid? Is it right to ask the court to cancel the entry in the USRR, to invalidate the certificate of state registration of rights? How should one really restore the violated right to real estate?
The list of ways to protect civil rights, enshrined in Art. 12 of the Civil Code of the Russian Federation, does not contain an indication of the possibility of invalidating the right to a thing. However, this list is not exhaustive, and ways to protect civil rights may be specified in other laws (paragraph 12, article 12 of the Civil Code of the Russian Federation).
In accordance with paragraph 1 of Art. 2 of the Federal Law of July 21, 1997 No. 122-FZ “On State Registration of Rights to Real Estate and Transactions with It” (hereinafter referred to as the Registration Law), state registration of rights to real estate and transactions with it is a legal act of recognition and confirmation by the state of origin, restrictions (encumbrances), transfer or termination of rights to real estate in accordance with the Civil Code of the Russian Federation. State registration is the only proof of the existence of a registered right. The registered right to immovable property can only be challenged in court.
Indication in paragraph 1 of Art. 2 of the Registration Law that the registered right to real estate can only be challenged in court, it would seem that it should be regarded as providing the possibility of applying such a method of protection as invalidating the registered right. Claimants, as evidenced by judicial practice, often substantiate their claims with the provision of Art. 2 of the Registration Act.
However, the above rule does not say how the right is protected, but about the procedure in accordance with which the right to real estate should be challenged. Mixing these categories is unacceptable.
Lack of a unified approach
As E. Pugachev rightly notes, due to the lack of legislatively fixed explanations about the proper method of protection, as well as due to the imagination of law enforcement officers, such methods of protection as invalidating a registered right, invalidating an entry in the USRR (decrees FAS TsO dated October 22, 2009 in case No. A54-2282/2008-C4; FAS SKO dated March 4, 2009 in case No. A32-8848/2007; FAS MO dated October 3, 2002 in case No. A40-47788/01-106-282 ) one .
The Supreme Arbitration Court of the Russian Federation, refusing by Ruling No. 1024/08 of January 31, 2008 in case No. A72-445 / 07-23 / 18 to transfer case No. A72-445 / 07-23 / 18 of the Arbitration Court of the Ulyanovsk Region to the Presidium of the Supreme Arbitration Court of the Russian Federation for review in accordance with the procedure supervision, notes that “the applicant did not provide evidence that, at the claim of the interested person, the registered ownership of the said premises was invalidated by the court. At the same time, the applicant is not deprived of the right to independently present such a claim to the court, regardless of the judicial acts adopted in this case.
At the same time, in judicial practice, an absolutely opposite view is beginning to take shape on the question of the possibility of using the invalidation of a registered right as a way to protect.
S. Krasnova, based on the results of a study of voluminous practical material, drew attention to the fact that in the event of an unlawful change in an entry in the USRR, the victims made demands of various kinds: to recognize the entry in the register or register the right as invalid, to recognize the actions of the registering authority as illegal. The courts refused to satisfy such requirements, pointing out that this method of protection is not provided for in the Registration Law (FAS DO resolutions of February 21, 2006 No. F03-F73 / 05-1 / 4988; FAS ZSO of October 12, 2005 No. F04-7153 / 2005 ) 2 .
The lack of a unified approach to the stated requirements and any uniform judicial practice in this category of cases led to the fact that, based on the results of their consideration, the courts pointed to the choice of an improper method of protection as not provided for by law (Decree of the FAS MO dated 13.03.2006 No. KG-A41 /1292–06, FAS TsO dated 08/07/2008 in case No. A09-7738/07, FAS VSO dated 09/29/2009 in case No. A33-17183/08) 3 .
A number of bases
By Resolution No. 15148/08 of April 28, 2009 of the Presidium of the Supreme Arbitration Court of the Russian Federation, it was emphasized for the first time that “since the Civil Code of the Russian Federation, the Law on Registration, other laws do not provide for such a method of protection as invalidating a registered right, the Presidium comes to the conclusion that challenging registered right to real estate can occur only with the use of the methods of protection established by civil law, applied taking into account the nature and consequences of the relevant offense.
Earlier, the acts of judicial and arbitration practice of lower courts already contained a similar conclusion. The fact that it was fixed in the decision of the highest court gave direction to the relevant law enforcement practice (decisions of the FAS SKO dated 05.27.2010 No. A32-12117 / 2008, FAS MO dated 11.18.2009 No. KG-A41 / 10640-09, FAS PO dated 02.02.2010 to case No. А57-9098/2009).
A similar reason for the impossibility of recognizing the registration of a right as invalid is also supported in the legal literature 4 .
The Plenums of the Supreme Arbitration Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation in their joint Decree No. 10/22 dated April 29, 2010 (hereinafter referred to as Decree No. 10/22) explained that in order to challenge the registered right to real estate, it is necessary to go to court with a lawsuit, the decision on which will be the basis to make an entry in the USRR.
In particular, if the operative part of the judicial act resolves the issue of the presence or absence of the right or encumbrance of real estate, the return of property to the possession of its owner, the application of the consequences of the invalidity of the transaction in the form of the return of real estate by one of the parties to the transaction, then such decisions are the basis for making an entry in the USRR (clause 52 of Resolution No. 10/22).
At the same time, Decree No. 10/22 also notes that the registered right to real estate is not subject to dispute by filing claims that are subject to consideration under the rules of Chapter 25 of the Code of Civil Procedure of the Russian Federation (currently - CAS of the Russian Federation) or Chapter 24 of the APC of the Russian Federation, since in the course of production in cases arising from public legal relations (currently administrative), a dispute over the right to real estate cannot be resolved (paragraph 56 of Resolution No. 10/22).
Registration of a right is not a transaction, not a normative legal act, not a non-normative legal act, but an act of recognition by the state of the emergence, transfer or termination of a right. Consequently, the registered right (certificate of state registration of rights, entry in the USRR) is subject to challenge not by declaring it invalid (as is established when challenging transactions and legal acts), but by using the methods of protection established by civil law - recognition of ownership, recovery from someone else's illegal possession, etc.
The certificate of state registration, as well as an extract from the USRR, is a document confirming the entry in the register. The right challenged by means of filing an appropriate claim terminates their right-establishing character. There is no need to invalidate them. As well as it is not necessary to demand the cancellation of the entry in the USRR. The decision of the court, which challenged or established the right, is the basis for making an appropriate entry in the register.
Thus, in the Review of Judicial Practice on civil affairs The Supreme Court of the Chuvash Republic for the 1st quarter of 2015 noted that “an interested person can challenge in court the registered right of another person to real estate, and not the record of state registration of the right contained in the Unified State Register of Rights”.
Recognition of a right as absent
It should be noted separately that Decree No. 10/22 introduces into practice such a method of protection as the recognition of a right as absent. And although the Civil Code of the Russian Federation does not provide for the possibility of using this institution, nevertheless, it is directly enshrined in clause 52 of Resolution No. 10/22. This method of protection can be applied only in exceptional cases. So, in cases where an entry in the USRR violates the plaintiff's right, which cannot be protected by recognizing the right or claiming property from someone else's illegal possession (the ownership of the same property is registered for different persons, the ownership of movable property is registered as on immovable property, the mortgage or other encumbrance has ceased), contestation of the registered right or encumbrance can be carried out by filing a claim for the recognition of the right or encumbrance as absent (paragraph 52 of Resolution No. 10/22).
A claim for the recognition of a registered right as absent is a type of negatory claim (clause 12 of the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 15, 2013 No. 153).
That is, between the method introduced by the higher courts, called “recognition of a registered right as absent” and such a hybrid phenomenon as the invalidation of a registered right, one cannot put an equal sign.
Federal arbitration courts (including the Arbitration Court of the Republic of Dagestan) fully accepted the above legal position (decisions of the Arbitration Court of the Republic of Dagestan dated July 30, 2015 in case No. A15-1649/2015; dated July 21, 2015 in case No. A15-4127/2014).
However, the path chosen by the highest courts was not accepted by the courts of general jurisdiction, including the district and city courts of the Republic of Dagestan. This legal position was not accepted by the Supreme Court of the Republic of Dagestan either (appellate rulings of the Supreme Court of the Republic of Dagestan dated January 20, 2015 in case No. 33-4309; dated December 4, 2015 in case No. 33-4562).
The lack of a unified judicial practice on this issue creates many problems in resolving disputes related to the protection of property rights and other property rights. Instead of classical lawsuits (such as applying the consequences of the invalidity of a transaction, recovering from someone else's illegal possession, recognition of property rights, etc.), the person whose right has been violated declares the notorious “recognize the registered right as invalid”, believing that this is the very method intended to restore imbalance.
The question arises: what should the defendant do in the end? Return the thing to the plaintiff? Do not obstruct him in anything? As a result, the goal that the plaintiff set for himself by filing a claim to invalidate the registered right is not achieved, and the rights to real estate, in fact, are not restored.
If the defendant in a claim to challenge a registered right does not perform in favor of the plaintiff the action necessary to restore the violated right (return from illegal possession, etc.), then it will be necessary to sue again, that is, go to court with a claim corresponding to the violation (on the recovery of property from illegal possession, recognition of property rights, etc.).
We believe that the Supreme Court of the Russian Federation should stop the vicious practice of “invalidity of registered rights” and direct the district courts along the path chosen by Resolution No. 10/22 back in 2010. Otherwise, it will be difficult for subjects of civil legal relations to provide the necessary and complete protection of violated rights to real estate in court.
1 Pugachev, E.V. Criteria and conditions for the application of claims for recognition of the right to a real estate object as absent / E.V. Pugachev // Property relations in the Russian Federation. - 2012. - No. 11.
2 Krasnova, S.A. The system of ways to protect property rights: Monograph / S.A. Krasnov. – M.: Infra-M, 2016.
3 Claim for recognition of the right as absent. When this method of protection will work / Article dated 05/20/2015 // Website of the Arbitration Practice magazine www.arbitr-praktika.ru.
4 Petrova, S.M. Disputes about registration of rights to real estate / S.M. Petrova // Justice. - 2006. - No. 3.