Lecture number 5. Representation in court

1. Conducting cases in court through a representative

Persons participating in the case (i.e. parties, third parties who make independent claims regarding the subject of the dispute, third parties who do not make independent claims regarding the subject of the dispute, persons applying to the court for the protection of the rights, freedoms and legitimate interests of other persons or who have entered in the process for the purpose of giving an opinion, applicants and interested persons) may conduct their cases in court through representatives. However, the participation of a representative in the case does not exclude the direct participation of a citizen or a body representing a legal entity (according to Article 48 of the Code of Civil Procedure of the Russian Federation).

Not all citizens can be representatives in court, but only those who have full legal capacity. Article 21 of the Civil Code of the Russian Federation determines that the ability of a citizen, through his actions, to acquire and exercise civil rights, to create civil responsibilities for himself and to fulfill them (civil capacity) arises in full with the onset of adulthood, i.e. upon reaching the age of eighteen. However, the onset of full legal capacity also occurs when the citizen is emancipated.

Declaring a minor a fully capable citizen (emancipated) is made by decision of the body of guardianship and guardianship - with the consent of both parents, adoptive parents or guardian, or in the absence of such consent - by a court decision. Based on this a representative in civil proceedings cannot be a citizen who has reached the age of eighteen, but recognized by the court as incapable or limited in capacity. In Art. 34 of the Code of Civil Procedure of the Russian Federation, the prosecutor is also recognized as a person participating in the case. The prosecutor's office, by virtue of the Federal Law "On the Prosecutor's Office of the Russian Federation", is entrusted with the duty to exercise supervision over the implementation of the norms of the Constitution of the Russian Federation, regulations in force on the territory of the Russian Federation, etc. And, despite the fact that the prosecutor is a person participating in the case, he does not may have a representative in court, as he is a representative of a single federal centralized system.

The cases of organizations are conducted in court by their bodies acting within the powers granted to them by federal law, other legal acts or constituent documents, or representatives.

The powers of the bodies conducting the affairs of organizations are confirmed by documents certifying the official position of their representatives, and, if necessary, by constituent documents.

An authorized representative of the liquidation commission shall act in court on behalf of the liquidated organization.

A person who wishes to conduct his business through a representative is referred to in civil proceedings as principal.

The representative must assist the principal in exercising the procedural rights granted by virtue of procedural legislation and in fulfilling the procedural duties assigned to him. The representative, by his activity, should contribute to the implementation of the tasks of civil proceedings - the protection of violated or disputed rights and legitimate interests of persons whose right has been violated.

worth distinguishing two institutes of civil procedural law:

1) representation;

2) succession.

The representation is intended to assist the principal in exercising his procedural rights and the procedural duties assigned to him. In turn, procedural succession differs from the institution of representation by the purpose, that is, the direct creation, change and termination, of the civil rights and obligations of the represented.

Civil procedural legislation in Art. 51 Code of Civil Procedure of the Russian Federation defines circle of persons who cannot be representatives in court: judges, investigators, prosecutors cannot be representatives in court, except for cases of their participation in the process as representatives of the relevant bodies or legal representatives.

Every citizen has the right to seek the help of a legally competent citizen for representation in court. One of the qualified specialists is a lawyer. If a person involves a lawyer to participate in the case, then it is also necessary to be guided by the norms of special legislation, i.e. the Federal Law "On Advocacy and the Bar in the Russian Federation", which sets out the main provisions for the participation of a lawyer in the process. According to Art. 6 Federal Law "On advocacy and advocacy in the Russian Federation" an attorney cannot participate in a case as a representative if:

1) has an independent interest in the subject matter of the agreement with the principal, different from the interest of this person;

2) participated in the case as a judge, arbitrator or arbitrator, mediator, prosecutor, investigator, interrogating officer, expert, specialist, translator, is a victim or witness in this case, and also if he was an official in whose competence the decision was made in the interests of this person;

3) is in kinship or family relations with an official who took or is taking part in the investigation or consideration of the case of this person;

4) provide legal assistance to the principal, whose interests are contrary to the interests of this person.

The Code of Civil Procedure of the RSFSR also indicated one more reason, in the presence of which a lawyer could not participate in civil proceedings: exclusion from the Bar Association (Article 47 of the Code of Civil Procedure of the RSFSR).

According to Art. 50 Code of Civil Procedure of the Russian Federation, the court may appoint a lawyer as a representative in the absence of a representative of the defendant, whose place of residence is unknown, as well as in other cases provided for by federal law.

A. A. Vlasov in his article raises the issue of amending Art. 34 Code of Civil Procedure of the Russian Federation. He considers it necessary to recognize the lawyer as a person participating in the case [6]. A. A. Vlasov believes that a lawyer is called upon to act as a guarantor of respect for the subjective rights of citizens and organizations in civil proceedings.

As practice shows, most often it is lawyers who act as representatives in court. And this is no coincidence, since they have special knowledge in the field of law and practical experience in exercising representational powers in court, for them the protection of the rights and interests of others and the provision of legal assistance to them is a professional occupation. It should also be noted that distinguishes a lawyer from other representatives the fact that members of the bar association must have a higher legal education, undergo an appropriate internship, have no criminal record and be morally impeccable (according to Article 9 of the Federal Law "On advocacy and advocacy in the Russian Federation"). The activities and membership in the bar associations are constantly monitored by the presidiums of the bar associations, which provide them with methodological assistance.

It is impossible not to agree with the opinion of A. A. Vlasov. A lawyer is indeed the most qualified worker, but he cannot be a person participating in a case. It appears that a lawyer cannot act as a person participating in the case.

The status of a lawyer is considered as the status of an assistant, but not a person who defends the rights, freedoms and legitimate interests of other persons. Acting as a representative, a lawyer represents only one of the parties in civil proceedings; accordingly, he does not have a wide range of procedural rights. There is a certain scope of procedural rights that can be exercised by a representative. At the same time, there are limitations. Without the written permission (power of attorney) of the principal, the lawyer cannot enter into a settlement agreement, change the subject and basis of the claim, etc.

In civil proceedings, several types of representation:

1) legal representation carried out by virtue of law. In Art. 52 of the Code of Civil Procedure of the Russian Federation determines that the rights, freedoms and legitimate interests of incapacitated or not fully capable citizens are protected in court by their parents, adoptive parents, guardians, trustees or other persons to whom this right is granted by federal law. In a case in which a citizen who has been recognized as missing in accordance with the established procedure must participate, the person to whom the property of the missing person has been transferred for trust management acts as his representative. Legal representatives perform on behalf of the persons they represent all procedural actions, the right to perform, which belong to the represented. Legal representatives may entrust the conduct of the case in court to another person chosen by them as a representative;

2) voluntary representation, otherwise called contractual representation. It differs from legal representation in that it arises on a voluntary basis of the principal, and not by virtue of law. Voluntary representation arises through the conclusion of a civil law contract (order or provision of services). Legal and voluntary representation also differs by persons representing the principal. If in legal representation only persons established by law (parents, trustees, guardians, adoptive parents or other persons who are granted this right in accordance with the law) can be representatives, then in voluntary representation any capable person chosen by the principal can be a representative;

3) public representation carried out by public associations and organizations to protect the rights and interests of their members. For example, in Art. 370 of the Labor Code of the Russian Federation of December 30, 2001 No. 197-FZ (Labor Code of the Russian Federation) states that trade union organizations have the right to protect the rights and interests of members of a trade union. In part 1 of Art. 11 of the Federal Law of January 12, 1996 No. 10-FZ "On trade unions, their rights and guarantees of activity" provides for the possibility of trade unions, their associations, primary trade union organizations and their bodies to represent and protect the rights and interests of trade union members on issues of individual labor and labor-related relationships. And in the field of collective rights and interests, trade unions, their associations, primary trade union organizations represent the rights and interests of workers, regardless of their membership in trade unions;

4) representation appointed by the court. Article 50 of the Code of Civil Procedure of the Russian Federation establishes cases when a representative may be appointed by a court. The court appoints a lawyer as a representative in the absence of a representative of the defendant, whose place of residence is unknown, as well as in other cases provided for by federal legislation. In accordance with Art. 20 of the Civil Code of the Russian Federation, the place of residence of a citizen is the place where the citizen permanently or predominantly resides. The place of residence of minors under 14 years of age, or citizens under guardianship, is the place of residence of their legal representatives - parents, adoptive parents or guardians. The place of residence should be distinguished from the place of stay of a citizen (such as a hotel, sanatorium, rest home, boarding house, campsite, tourist base, hospital, other similar institution).

In this case, it is necessary to determine the scope of the lawyer's powers. In Art. 6 of the Federal Law "On advocacy and the advocacy of the Russian Federation" are fixed fundamental rights of a lawyer:

1) collect information necessary for the provision of legal assistance, including requesting certificates, references and other documents from state authorities, local governments, which are obliged to issue to the lawyer the documents requested by him or their certified copies no later than one month from the date of receipt lawyer's request;

2) ask for the consent of persons who allegedly possess information related to the case in which the lawyer provides legal assistance;

3) collect and present items and documents that can be recognized as material and other evidence, in the manner prescribed by the legislation of the Russian Federation;

4) engage specialists on a contractual basis to clarify issues related to the provision of legal assistance;

5) record (including with the help of technical means) the information contained in the materials of the case, in which the lawyer provides legal assistance, while observing state and other secrets protected by law;

6) perform other actions that do not contradict the legislation of the Russian Federation.

Representation on the basis of the charter, regulations and other special acts is carried out in accordance with the norms enshrined in specialized acts, charters, regulations. For example, according to the Consular Charter, consuls represent the interests of foreign citizens and stateless persons in court.

2. The procedure for issuing the powers of a representative

According to Art. 55 of the Code of Civil Procedure of the Russian Federation, the powers of the representative must be expressed in a power of attorney issued and executed in accordance with the law.

Powers of attorney issued by citizens, can be certified by a notary or by the organization in which the principal works or studies, the housing maintenance organization at the principal’s place of residence, the administration of the social security institution in which the principal is located, as well as the inpatient medical institution in which the principal is being treated, by the commander (chief) of the relevant military unit, formation, institution, military educational institution, if powers of attorney are issued by military personnel, employees of this unit, formation, institution, military educational institution or members of their families.

Powers of attorney for persons in prison, are certified by the head of the relevant place of deprivation of liberty.

Power of attorney on behalf of the organization issued under the signature of its head or other person authorized to do so by its constituent documents, sealed with the seal of this organization. Legal representatives present to the court documents certifying their status and powers. The right of a lawyer to appear in court as a representative is certified by a warrant issued by the relevant bar association.

Registration of powers of a lawyer also provided for in Art. 6 of the Federal Law "On advocacy and the advocacy of the Russian Federation": the powers of a lawyer participating as a representative of the principal in civil proceedings, as well as as a representative of the principal, are regulated by the relevant procedural legislation of the Russian Federation. In this case, the lawyer must have a warrant for the execution of the assignment issued by the relevant legal entity. So for participation in the case of a lawyer, two documents are required - warrant and power of attorney of the person who invited him to represent him in civil proceedings. The powers of a representative may also be determined in an oral statement recorded in the minutes of the court session, or in a written statement of the principal in court.

In the Civil Code of the Russian Federation in Art. 185 defines a power of attorney: a power of attorney is a written authorization issued by one person to another person for representation. The validity period of the power of attorney cannot exceed 3 years. If the term is not specified in the power of attorney, it remains valid for 1 year from the date of its execution. A power of attorney that does not indicate the date of its execution is void (Article 186 of the Civil Code of the Russian Federation). The person to whom the power of attorney has been issued must personally perform those actions for which he is authorized. It may delegate their commission to another person, if authorized to do so by a power of attorney or forced to do so by force of circumstances to protect the interests of the person who issued the power of attorney. The delegate of authority to another person must notify the issuer of the power of attorney and provide him with the necessary information about the person to whom the authority has been transferred. Failure to fulfill this obligation makes the person who delegated the powers responsible for the actions of the person to whom he delegated the powers as if they were his own (Article 187 of the Civil Code of the Russian Federation). The period of validity of a power of attorney issued by way of substitution may not exceed the period of validity of the power of attorney on the basis of which it was issued.

The power of attorney is terminated due to:

1) expiration of the power of attorney;

2) cancellation of the power of attorney by the person who issued it;

3) refusal of the person to whom the power of attorney was issued;

4) termination of the legal entity on behalf of which the power of attorney was issued;

5) termination of a legal entity to which a power of attorney has been issued;

6) the death of the citizen who issued the power of attorney, recognition of his incapacity, limited capacity or missing;

7) the death of a citizen to whom a power of attorney has been issued, recognition of him as incapable, with limited capacity or missing.

The person who issued the power of attorney may at any time revoke the power of attorney or reassignment, and the person to whom the power of attorney has been issued may revoke it. The agreement to waive these rights is void.

With the termination of the power of attorney, the sub-power of attorney loses its force (Article 188 of the Civil Code of the Russian Federation).

Upon termination of the power of attorney, the person to whom it was issued, or his successors, are obliged to immediately return the power of attorney (Article 189 of the Civil Code of the Russian Federation).

It is worth distinguishing between the following types of power of attorney:

1) a one-time power of attorney issued by the principal for the participation of a representative in one case in one court;

2) a special power of attorney issued by the principal to conduct one case by a representative in all judicial instances;

3) a general power of attorney issued by the principal to conduct all civil cases affecting the interests of the principal in all judicial bodies.

Powers of Representatives enshrined in Art. 54 Code of Civil Procedure of the Russian Federation: the representative has the right to perform all procedural actions on behalf of the represented. However, the right of a representative to sign a statement of claim, present it to the court, refer the dispute to arbitration, file a counterclaim, complete or partial waiver of claims, reduce their size, recognize the claim, change the subject or grounds for the claim, conclude a settlement agreement, transfer authority to another person (transfer), appealing a court decision, presenting a writ of execution for collection, receiving property or money awarded must be specifically stipulated in the power of attorney issued by the represented person.

Author: Gushchina K.O.

<< Back: Persons involved in the case (The concept of persons participating in the case. Rights and obligations of persons participating in the case. Conclusion of a settlement agreement. Inappropriate defendant in civil proceedings. Third parties making independent claims regarding the subject of the dispute. Third parties not making independent claims regarding the subject of the dispute. Complicity in civil process. Participation of the prosecutor in civil proceedings. Succession in civil proceedings)

>> Forward: Evidence and proof in civil proceedings (The concept of evidence in civil proceedings. The concept of evidence in civil proceedings. Explanations of the parties and third parties. Witness testimony. Audio and video recordings. Written evidence. Physical evidence. Expert opinion)

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