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Lecture notes, cheat sheets
Advocacy and notary office. Activities of the defender at the stage of enforcement proceedings (lecture notes)
Directory / Lecture notes, cheat sheets Table of contents (expand) LECTURE No. 10. The activities of the defender at the stage of enforcement proceedings 1. Conditions for the participation of a lawyer in an appeal against decisions in civil cases The decision rendered by the magistrate may be appealed on appeal by the parties and other persons participating in the case to the appropriate district court through the magistrate. The appeal is filed within 10 days from the date of the decision of the justice of the peace, and its content is determined by Art. 322 Code of Civil Procedure of the Russian Federation. The basis for filing an appeal is the illegality and unfoundedness of the decision made by the justice of the peace, violation or incorrect application by the justice of the peace of the norms of substantive and procedural law in the administration of justice in civil cases. Features of the appeal proceedings are that the court of appeal, considering the case according to the rules of proceedings in the court of first instance, has the right to establish new facts and examine new evidence (Article 327 of the Code of Civil Procedure of the Russian Federation). Therefore, a representative lawyer acts in the same way as when considering a case in a court of first instance. Moreover, he can identify, obtain new evidence in the case, petition for their inclusion in the case and participate in their examination by the court of appeal. In accordance with paragraph 2 of Art. 325 of the Code of Civil Procedure of the Russian Federation, the persons participating in the case, their representatives are entitled to submit objections to the justice of the peace in writing regarding the appeal with the attachment of documents confirming these objections; the right to get acquainted with the materials of the case, with the received complaints and objections regarding them. On the decisions of other courts, taken at first instance, the parties and other persons participating in the case may file cassation appeals, with the exception of decisions of justices of the peace, within 10 days from the date of the relevant decision. At the end of the consideration of the case in the court of first instance, the attorney-representative must prevent the entry into force of illegal and unreasonable decisions and rulings in civil cases. He is obliged to contribute to the restoration of violated or disputed rights, freedoms and legitimate interests of citizens and thereby strengthen the rule of law and the rule of law, the formation of a respectful attitude towards law and court. To do this, the representative lawyer must decide: whether there are grounds for appeal; in what volume and direction it is necessary to appeal the judicial decisions that have not entered into legal force. His activity in this direction begins with the study of the case materials, the protocol of the court session; establishing the circumstances that led to the issuance of an unjust decision; clarification of whether the principles of civil procedural law were violated, whether the norms of substantive and procedural law were correctly applied; whether the circumstances of the case were fully investigated. Such activities of a representative lawyer will determine the content, direction and nature of the requirements set forth subsequently in the complaint. Based on the actual circumstances and materials of the case, substantive and procedural laws, in accordance with internal conviction and legal consciousness, the complaint assesses the court decision as an act of justice, expresses an opinion about its legality and validity. The representative lawyer reveals the gaps and violations, admitted, in his opinion, by the court of first instance, indicating the incorrectness of the appealed court decision, and shows how they affected the decision that did not enter into legal force; gives concrete grounds and motives, shaky conclusions and decisions of the court of first instance. The demands of a person addressed to the cassation instance must be clear and precise, motivated and legal. A court decision that has entered into legal force, with the exception of court decisions of the Presidium of the Supreme Court of the Russian Federation, is filed a complaint addressed to the relevant official in the supervisory proceedings. Grounds for filing a complaint in the order of supervision is a violation or incorrect application of the norms of substantive and procedural law (Articles 363, 364 of the Code of Civil Procedure of the Russian Federation). The filing of a complaint is preceded by the work of a representative lawyer to identify violations, in the presence of which a complaint is filed by way of supervision. Content of the complaint must comply with Art. 378 Code of Civil Procedure of the Russian Federation and clearly indicate what kind of violation was committed by the courts that previously considered the case; how it affected the court decision, which entered into force; a statement of the applicant's request. The professionalism and qualifications of a representative lawyer largely contribute to the proper preparation of appeals, cassation and supervisory complaints and to strengthening the authority of a lawyer corporation providing legal assistance. 2. The work of a lawyer at the stage of enforcement proceedings For the first time in the legislation regulating enforcement proceedings (Federal Law of July 21, 1997 No. 119 FZ "On Enforcement Proceedings"), the rules governing the participation of a representative in enforcement proceedings are fixed. The parties may either themselves exercise their rights and obligations in the process of enforcement of a writ of execution, or entrust participation in enforcement proceedings to their representative (Article 33 of the Federal Law of the Russian Federation "On Enforcement Proceedings"). Within the meaning of this Law, the representative of a party in enforcement proceedings may be any capable person who has duly executed powers to participate in enforcement proceedings in the interests of the person represented. Most often, representatives in enforcement proceedings are involved in order to obtain qualified legal assistance in the process of executing a writ of execution. Often representatives in enforcement proceedings are lawyers, employees of law firms, as well as other persons with the necessary legal knowledge. In certain cases, the involvement of representatives in enforcement proceedings is mandatory, since some categories of citizens cannot personally exercise their rights and obligations (minors, incapacitated or partially capable, recognized as such in the manner prescribed by law). Entities also cannot directly participate in enforcement proceedings, but act through their bodies or officials, or through representatives of these bodies and officials. Through bodies (officials) he exercises his powers in the enforcement proceedings of the Russian Federation, a constituent entity of the Russian Federation or a municipality (financial authorities, tax, customs, etc.). From the content of part 2 of Art. 33 it follows that bailiff persons representing various bodies or organizations must check the availability of documents confirming their official or official position (service certificates, etc.). Article 33 of the said Law provides that claimant or debtor may participate in enforcement proceedings together with their representatives. The parallel participation of these persons is often found in practice and provides more complete protection of the rights and interests of the parties in enforcement proceedings. However, there are cases when the debtor can fulfill the obligations assigned to him only personally. Then he is not entitled to act through a representative. So, in the execution of executive documents on the eviction of the debtor or the installation of the recoverer, the debtor is obliged to personally fulfill the duties assigned to him. Article 35 of the Federal Law of the Russian Federation "On Enforcement Proceedings" is devoted to determining the scope of powers of a representative, and, accordingly, a lawyer, if he acts as such, in enforcement proceedings. Based on the current legislation, the representative has the same scope of rights and obligations as the represented. In other words, in the presence of duly executed powers, the representative in accordance with Art. 31 of the Federal Law "On Enforcement Proceedings" has the right to get acquainted with the materials of enforcement proceedings, make extracts from them, make copies, submit additional materials, make petitions, participate in enforcement actions, exercise other rights belonging to the recoverer or debtor. At the same time, in part 2, the legislator fixes such administrative actions of the recoverer and debtor in enforcement proceedings, the right to perform which the representative must be specifically stipulated in a power of attorney or other document confirming his authority. The rights in the interests of the person represented to present or withdraw a writ of execution, transfer powers to another person (i.e., make a transfer), appeal against the actions (inaction) of the bailiff, receive the property (including money) awarded under the writ of execution must be indicated in the power of attorney if the representative acts under an agency agreement or other agreement. An analysis of the law allows us to conclude that it does not list all the administrative actions of the parties in enforcement proceedings, which should be specifically specified in the document confirming the authority of the representative. So, it is necessary to specifically stipulate the right of the representative of the recoverer to refuse the property that is transferred to the latter according to the executive document, or from the debtor's property that was not sold after 2 months from the date of its sale on a commission or other basis, as well as at auction. In all cases, when a representative is involved in the enforcement proceedings, the bailiff is obliged to check the scope of his powers. Author: Nevskaya M.A. << Back: Participation of a lawyer in civil proceedings (Activities of a defense attorney in court proceedings in a civil case. Participation of a lawyer in evidence in a civil case) >> Forward: Activities of a lawyer in arbitration proceedings (Participation of a lawyer in the arbitration process in the court of first instance. Participation of a representative in the appellate, cassation and supervisory instances of the arbitration process)
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