The standards will be decomposed by persons – Newspaper Kommersant No. 158 (7359) dated 08/30/2022
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The Supreme Court (SC) of the Russian Federation will figure out who can ask for a review of a court decision due to new circumstances if the regulatory legal act (NLA) on which it is based is declared invalid. There is no uniform practice on this issue. Lawyers express opposite opinions: some believe that only the person who challenged this act has the right to demand revision, while others are sure that any person in a dispute with whom the canceled act was applied has such a right.
The Supreme Court will consider the dispute on the right to demand a review of the case due to new circumstances in connection with the cancellation of the legal acts underlying the decision. In October 2020, the administration of Togliatti recovered 302.71 thousand rubles from Zenit LLC in the Moscow Arbitration Court. unjust enrichment. But in June 2021, the company applied to the court with a request to review the decision due to new circumstances. The fact is that when calculating the debt, the administration used the coefficient established by subparagraph 7.1 of the regulation “On the procedure for determining the amount of rent for land in the urban district of Togliatti.” However, in February 2021, the Togliatti District Court declared the clause invalid.
The Moscow Arbitration Court in August 2021 agreed with the arguments of Zenith and overturned the decision. He was supported by the appeal and cassation. The administration appealed this to the Supreme Court, emphasizing that the controversial normative act (its clause) was canceled at the suit of another company, Spektr N LLC. It was she who “made efforts to defend her position, and also incurred time and financial costs in all instances when considering an administrative claim,” the complaint says. Therefore, only Spectrum N is provided with a “special opportunity” to reconsider the dispute with its participation under new circumstances, the administration believes. Based on these arguments, the case was transferred to the Economic Collegium of the Armed Forces. The hearing is scheduled for October 4th.
There is no single practice for such disputes, the economic board will consider the issue for the first time, lawyers say. Acts in the field of regulation of government contracts, trade rules, and tariffs are often disputed, says Aleksey Stankevich, partner at Orchards law firm. Also, businesses often dispute land use rules and master plans, which may contain information about sanitary protection zones, says Yevgeny Yerbakhaev, adviser to Kazakov and Partners.
Savina Legal lawyer Snezhana Guseva supports the position of the administration: “A loser cannot refer to a disputed ILA. Revision due to new circumstances in this case is not possible, since the opposite violates the balance of the principles of legal certainty and stability of civil circulation. The applicant must be active, defend his position and bear the costs of considering an administrative claim, the lawyer believes. Yevgeny Yerbakhaev agrees with her, considering “it is unacceptable to derive benefit (advantages) from the passive procedural behavior” of “Zenith”.
But there are also opposite opinions. Denis Yurov, partner of KA Delcredere, considers it unfair to deprive a person who did not participate in the administrative contestation of the act of the right to review the decision in which an illegal legal act was applied. “Participation or non-participation in an administrative dispute cannot serve as a barrier to reviewing the case, otherwise it radically narrows the circle of applicants, and the person who contested the act receives an inexplicable advantage over other participants in the turnover,” confirms Aleksey Stankevich.
It is the state that must bear the consequences of issuing an illegal act, Mr. Stankevich believes, otherwise it “will lead to an increase in abuses by the authorities, and the costs of such an interpretation will fall on business.” For example, Denis Yurov clarifies, this “may condone the adoption by the authorities of illegal acts concerning tariffs, counting on receiving inflated amounts.”
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