The Supreme Court of the Russian Federation recognized the right of arbitration managers to reimburse the funds spent on defense against unfounded complaints

The Supreme Court of the Russian Federation (SC) recognized the right of arbitration managers (AI) to reimburse the funds spent on defense against unfounded complaints. It is not enshrined in legislation, so the courts often refused to recover damages from the complainant. Now the Supreme Court has fixed compensation. According to managers and lawyers, this position will reduce the number of unfounded complaints, although it will not completely solve the problem.

The Supreme Court clarified whether the manager can reimburse the costs of lawyers in an administrative case initiated against him. As part of the bankruptcy of Nikolai Babakin, Tax Inspectorate No. 16 for the Altai Territory complained to Rosreestr about the manager Vladimir Fonoberov. According to the inspection, he made a number of violations in publishing messages on the Federal resource, did not close all the accounts of the debtor and missed the deadline for applying to the court for approval of the regulation on the sale of property.

AU hired a lawyer for 100 thousand rubles. As a result, Rosreestr terminated the administrative case due to the lack of corpus delicti. After this, the manager demanded to recover from the Federal Tax Service the expenses spent on legal assistance as compensation for losses.

But the arbitration courts of the first and appellate instances awarded him only 2 thousand rubles, and the cassation completely rejected the claim, finding no fault in the actions of the tax authorities and emphasizing that the AU, by definition, is “competent enough” to independently resolve these issues (see “Kommersant” dated August 2).

Vladimir Fonoberov appealed to the Supreme Court, insisting that he should not be deprived of the right to professional legal assistance, as well as to reimbursement of such expenses if the claims were found to be unfounded. The case was referred to the economic board, which supported the manager.

The Supreme Court clarified that in the event of termination of proceedings in an administrative case on exonerating grounds, a person may have negative consequences in the form of defense costs. These include payment for the services of a defense lawyer, travel and accommodation at the place where the case is being considered, the court specified. These expenses are qualified as “damage caused to a person who was brought to administrative responsibility,” the board recognized. Although the Code of Administrative Offenses does not contain provisions on reimbursement of expenses for a defense lawyer for such cases, the general rules of the Civil Code on compensation for harm can be applied here, the Supreme Court explained.

Thus, Mr. Fonoberov “has the right to reimbursement at the expense of the treasury of the funds incurred by him for his defense against the accusation,” and his expenses are connected with the actions of the tax authorities, the court says.

Moreover, the recovery does not require “neither establishing the wrongfulness of the actions of the tortfeasor, nor his guilt”, the criterion is only “the final decision that determines in whose favor the dispute is resolved,” the board emphasized.

The Supreme Court also noted that the professional status of an attorney “does not deprive him of the right to either use the services of representatives or reimbursement of expenses for legal assistance,” and the need to attract a consultant arises not only in case of a lack of knowledge, but also for other reasons. In particular, the manager worked in the Altai Territory, and the tax authorities demanded that he be brought to justice in Moscow, so “the most optimal and reasonable way to protect your interests” was to hire a representative at the place where the case was considered, the board confirmed. The Supreme Court upheld the decisions of the courts of first and appellate instances to award damages in favor of the AU. The Supreme Court could not change the amount of damages, since Vladimir Fonoberov did not dispute it.

Managing partner of YurTechConsult Alexey Nikolaev says that “unscrupulous creditors often use administrative liability to put pressure on the insurance company and file numerous complaints with impunity.” The total number of complaints sent to Rosreestr is unknown (statistics are not published), but the courts receive thousands of appeals every year, says Valeria Gerasimenko, chairman of the board of the union of the National Center for Restructuring and Bankruptcy. Thus, according to the EFRSB, in the first half of the year the courts considered 3,746 complaints against managers, of which 675 (18%) were satisfied. AU Maxim Dotsenko believes that of the complaints to Rosreestr, about 80% are also unfounded.

Ms. Gerasimenko believes that the Supreme Court has eliminated the legislative gap: “The most important thing is that the panel recognized the right of the AU to recover damages, which could cover the costs of legal services specifically within the framework of the administrative investigation, that is, losses incurred by the party at the pre-trial stage.” . Managers receive “an additional tool to protect their rights,” adds AU Sergei Domnin. Of course, Mr. Nikolaev admits, the amount is 2 thousand rubles. “is unlikely to be justified,” but here “the precedent itself is important.” “If the courts collect adequate amounts, there will be fewer people willing to complain about everything,” hopes Maxim Dotsenko.

At the same time, Sergei Domnin clarifies, the position of the Supreme Court may provoke an increase in the number of “anonymous”: the law allows you to indicate only the full name and address of the applicant when applying to Rosreestr, so “additional measures for authorization” are needed. Valeria Gerasimenko considers it expedient to limit the circle of applicants to persons who have the right to appeal against the actions of the AU in a bankruptcy court case, as well as to introduce a state fee for consideration of the complaint.

Ekaterina Volkova, Anna Zanina