What period of time is stipulated by law for the debtor to answer the claim if it is not specified in the contract?
The period during which a party has a right to file a claim after compliance with the pre-trial procedure is 30 days. Thus, when responding to a claim, you need to act quickly, considering the time of sending the letter by mail. Therefore, we recommend sending the response within 3-5 days from the date of receipt of the claim, and for greater efficiency, duplicating the answer by e-mail.
In which cases may the court appoint an expert examination?
As a rule, the court appoints the expert examination at the request or with the consent of one of the parties. However, the court reserves the right to appoint an expert examination on its own initiative in case law prescribes it and / or there is a place of falsification of the submitted documents, and a repeated or additional expert examination is required.
I am not satisfied with the work of the judge. Can I replace him?
Of course, law provides the possibility of challenging the judge. However, it is not an easy task to replace a judge during the trial. There are two causes for replacement: direct (kinship, service dependence on the participants of the process, etc.) and indirect (for example, personal interest in the outcome of the case).
The court refused to accept the application, what to do?
First of all, you need to find out the reason. Refusal to accept the claim by the court can be appealed by filing a private complaint to a higher judicial authority, which made an order.
In which court should one submit a claim to recover money from legal entities?
As a rule, the claim must be sent to the local court at the location (legal address) of the defendant. Besides, if the contract provides for the resolution of disputes in a particular court, then the dispute must be heard in that court. Real estate disputes are to be heard at the location of the disputed property.
Is it possible to compensate the costs of lawyers?
Yes, you can. Guided by art.106 of the APC RF, the costs associated with legal proceedings (costs for experts, lawyers, translators, etc.), as well as sums of money related to the fare to the meeting place, are subject to collection.
In this case, according to Art.110 of APC RF court costs incurred by persons involved in the case, who won the court award, shall be recovered by the commercial court. If the claim is partially satisfied, the court costs are borne by the persons involved in the case, in proportion to the amount of the claims satisfied.
What is the time limit to appeal the decision of the commercial court?
According to Art.259 of the APC RF the term for filing an appeal is one month. The deadline must be calculated from the time the decision was made in full. You can learn about the decision on the website https://kad.arbitr.ru/ by specifying in the search card the case number or the person involved in the case.
How many times can you appeal a court decision?
After receiving the court decision, each of the parties has the right to file an appeal against the decision of the court of first instance. For example, it is possible to appeal against the decision of the Moscow Court of Arbitrazh to the Ninth Arbitrazh Court of Appeal (appeal instance). Cassation appeal against the appeal decision can be submitted to the Arbitrazh Court of the Moscow District (cassation instance) and a cassation appeal to the Supreme Court of the Russian Federation (the so-called “second cassation”). The decision of the Supreme Court of the Russian Federation on the ruling of the “second cassation” can be appealed to the Presidium of the Supreme Court of the Russian Federation by filing a supervisory appeal (supervisory authority).
What is a simplified court procedure?
Distinctive features of the simplified procedure is the case hearing without summoning the parties and in a shorter time period (2 months).
The categories of cases investigated in the simplified procedure are listed in article 227 of the APC RF. Most of the cases in a simplified procedure consider claims for recovery of funds if the price of the claim does not exceed 500 thousand rubles for legal entities and 250 thousand rubles for individual entrepreneurs.
What is the responsibility for a legal entity when dismissing a pregnant employee?
Responsible persons who have committed the illegal dismissal of a pregnant employee, may be held criminally liable. So, according to Art. 145 of the APC RF, a legal entity may be fined in the amount of 200 thousand rubles, or in the amount of wages or other income of the convict for a period of up to 18 months. Possible punishment in the form of attraction to compulsory work for up to 360 hours.
How to track the process of consideration of the case?
To date, it is possible to track the production in courts of general jurisdiction in several ways: - by personal acquaintance with the materials of the case; - to get information by phone from the assistant / clerk of the judge; - track the case on the site https://www.mos-gorsud.ru (for the courts of Moscow) by specifying details in the search fields (case number, full name / name of the party in the case, etc.)
What determines the amount of state duty for consideration of the case?
The size of the state duty of the courts of general jurisdiction is established by the legislator (paragraph 1 of paragraph 1 of article 333.19 of the Tax Code of the RF). The determining factor is the amount of the claim and the category of the case.
Why is a court order without a party to the dispute?
Due to the fact that the grounds for issuing a court order are indisputable documents, the standard trial does not apply. In other words, applications are considered “in absentia” under the simplified procedure.
Is it possible to recover attorney’s fees in a dispute with a state body?
According to the current legislation of the Russian Federation, the costs incurred by the party of the dispute (whether the plaintiff or the defendant), including the payment of attorney’s fees and state fees, will be reimbursed by the party that lost the legal process. In other words, if a dispute with a state body is resolved in favor of a legal entity, then it can demand reimbursement of its court costs from a public authority.
Why has the local tax office blocked a bank account without warning?
To ensure the fulfillment of the obligation to pay taxes and fees, the tax authority, as a rule, chooses the most effective and extremely uncomfortable way for a business - the suspension of operations in a bank account.
The tax authority sends to the bank its decision on the restriction of cash flow. If the bank received a decision from the tax office to freeze the account, then it is obliged to accept it for execution. Unfortunately, it is not possible to know in advance about the upcoming blocking, as in accordance with Art. 23 of the Tax Code of the Russian Federation, the taxpayer is obliged to independently and timely transfer money to budgets.
In which court should the company file a claim to appeal the decision of the state?
Challenging non-regulatory legal acts, decisions and actions (inaction) of government officials is carried out under Chapter 24 of the APC of the RF.
Citizens and organizations can apply to the court if they believe that the contested non-regulatory legal act, decision and action (inaction) do not comply with the law or other regulatory legal act and violate their rights and legitimate interests in business and other economic activities, illegally impose any duties and create other obstacles for their business and activities.
My company’s site malfunctioned because of Roskomnadzor. How can I have compensation for damage?
If, in your opinion, the state body committed illegal actions and caused damage to your organization, then you have the right to appeal to the court with a request to declare the actions of a public body illegitimate and to pay damages.
Is it possible to appeal against the actions of the bailiff?
In case the bailiff does not fulfill or improperly fulfills the requirements of the Federal Law dated 02.10.2007 No. 229-FZ “On Enforcement Proceedings”, the person may file a complaint regarding his actions / inaction by way of subordination within 10 days after the bailiff issues the decree, or within 10 days from the time when the person learned or should have been informed of the decree. The unsatisfactory decision can be appealed to the court.
How can one find out online the debt to the FSSP?
Today, there are several ways to interact with bailiffs regarding debt. You can personally visit your local FSSP at the place of your registration or use the online service on the bailiffs official website for the exact answer.
Who besides bailiffs executes court orders?
The law provides for the possibility of submitting executive documents on collecting money to banking and credit institutions, and in the case of collecting money from the budget of the Russian Federation, executive documents must be submitted to the treasury bodies, financial bodies of the relevant subject of the Russian Federation or the municipality.
What is the time limit for the bailiffs to initiate executive proceedings?
According to Art. 30 of the Enforcement Law executive proceedings are initiated based on an executive document following the petition of the recoverer. The petition and the executive document are submitted to the bailiff within 3 days from the date they were received by the bailiff unit, and within 3 days from the day the documents were received, the bailiff makes a decision either to initiate or refuse the enforcement proceedings.
We lost the writ of execution, how can we restore it?
In cases of loss of the execution writ, you have the right to receive a duplicate. To do this, you must submit an application (describing the circumstances of the loss) within 3 years from the date of the original document issuance. Please note that the application is submitted to the court that issued the original.
In which case the commercial court makes a decision to leave the complaint without action?
The commercial court makes a decision to leave the claim without action if it determines that the claim was filed with violations of the requirements specified in Art. 125 of the APC RF, which relate to the form and content of the application. The court will not consider the application without conductive documents attached. If the plaintiff does not eliminate the revealed defects within the period established by the legislation, the commercial court representatives will return the claim and the package of conductive documents.
Can I state my requirements if the limitation period is missing?
There are a number of legal relations that are not covered by the concept of limitation. A limited list of such exceptions is stipulated in Art. 208 of the Civil Code. For example, the requirements of depositors to banks for the issuance of deposits.
One should keep in mind that the court can restore the missed limitation period if there are valid reasons. It is also necessary to take into account that the judge is not free to apply the article on the omission of the limitation period, unless the other party has stated this.
In addition, there is the possibility of cessation of the limitation period. For example, according to Art. 203 of the Civil Code of the Russian Federation, in the event that an obligated person commits actions testifying to the recognition of debt, the limitation period is interrupted and after the interruption begins to run anew, and the time elapsed before the interruption of the limitation period is not counted in the new term.
What do you need to specify in the lawsuit to be accepted in court?
The requirement for the form and content of the claim submitted to the commercial court and the court of general jurisdiction are established in Art. 125 APC RF, Art. 131 Code of Civil Procedure of the Russian Federation, the list of documents attached to the claim are specified in Art. 126 APC RF, Art. 132 GIC RF.
How can you withdraw a lawsuit?
The procedural law gives the applicant the right to withdraw the claim or submit a waiver at any stage of the legal process (Article 39 of the Code of Civil Procedure of the Russian Federation, Article 49 of the APC of the Russian Federation). However, the sooner you decide on the waiver, the easier it will be for you. If the court hearing has not yet taken place, it is necessary to draw up, submit to the court a waiver of a previously filed lawsuit, and receive a relevant ruling. Otherwise, you will have to apply for a waiver of the claim, report it at the court hearing and, as a result, obtain the relevant judicial act.
Can one file a lawsuit via the Internet?
Yes, it is possible. It is possible to file a claim, response, objections and other procedural documents using the services of GAS Justice (https://ej.sudrf.ru/) for the courts of general jurisdiction and My Arbitrator (https://my.arbitr.ru /) for commercial courts.
What ways to prevent receivables are stipulated in the Russian legislature?
As part of the analysis of the legislative instruments in Russia, the following ways of ensuring performance of obligations can be singled out: penalty, deposit, insurance, suretyship, retention, a letter of credit, an independent (bank) guarantee. The optimal strategy for preventing accounts receivables must be chosen in accordance with the terms of the contract. However, it is worth remembering that the listed interim measures do not guarantee a 100% recovery of the receivables.
How long does it take to recover a debt through court?
As a rule, each case is individual and must be analyzed from several sides: the availability of the necessary documents and their correctness, the debtor’s solvency, the court in which the dispute will be considered, etc. It takes an average of 3 months (in case of simplified procedure) to 11 months (in case the defendant appeals against the court decision) from the moment a claim is sent to the court until the moment the money is received on the bank settlement account. If the debtor does not have funds in the current account, the process of receiving the debt may take up to 2-3 years (in case of bankruptcy of the debtor).
Do I have the right to charge interest if it is not specified in the contract?
It is possible to apply art. 395 of the Civil Code of the Russian Federation, which provides for liability for failure to fulfill a monetary obligation if a different amount of interest is not established by law or by contract. The same article of the Civil Code of the Russian Federation also stipulates the procedure for calculating interest for obligation default.
Is it possible to go straight to court with a claim for the collection of accounts receivable?
The APC of the Russian Federation provides that civil disputes on the recovery of funds may be referred to the court’s resolution after taking measures for pretrial settlement after 30 days from the date of the claim, unless law or contract establishes other periods of time and procedures.
In this case, if the pre-trial settlement of the dispute is not observed, the filed claim will be returned in accordance with Art. 129 APC RF.
What is the way to sell receivables?
Most often, firms sell goods and services, but no one forbids them to sell their debts (receivables). There are several ways to execute this operation: factoring, when an organization / bank acquires debtor’s money requirements and collects debt on their own; the contract of receivables assignment (cession), in other words, the lender and the buyer of the debt sign an agreement on the assignment of debt.
From what moment will they suspend recovery on the basis of an enforcement document during the bankruptcy of an individual?
Pecuniary sanctions against an individual will be suspended when the commercial court introduces one of the bankruptcy procedures: the sale of the debtor’s property or the restructuring of debts. However, the law provides for exceptional cases when enforcement proceedings are not suspended, for example, if there are enforcement documents for recovery of alimony or compensation for harm caused to life or health.
When can a citizen declare bankrupt?
The law on bankruptcy defines the following signs of insolvency of an individual: the amount of debt exceeds 500 thousand rubles and the delay is more than 3 months.
What are the signs of bankruptcy of a legal entity?
The law on bankruptcy defines the following signs of insolvency of a legal entity: the amount of debt exceeds 300 thousand rubles and the delay is more than 3 months.
How long does a commercial bankruptcy last?
Each case is individual and the duration of a bankruptcy proceeding directly depends on many criteria: the size of the debt, the debtor’s property and assets, the number and aggressiveness of creditors, the chosen candidate for insolvency officer, etc. The court introduces the monitoring procedure for a period of 7 months, financial sanation for up to 2 years, external management for 18 months, and liquidation procedure for a period of 6 months, which is often extended. As practice shows, in most bankruptcy cases, liquidation often follows monitoring.
Is it possible to bring the legal entity head to liability for the company's debts?
An application for bringing a controlling person to subsidiary liability may be filed within one year from day when the person submitted this application find out or should have known that there are grounds for bringing him to subsidiary liability, but no later than 3 years from the date of declaring the debtor bankrupt.
The use of this right is permissible in cases of evidence of circumstances:
- the presence of a proper subject of responsibility;
- recognition by the arbitral tribunal of the fact of insolvency of the debtor;
- the presence of a causal link between the actions, inactions of the said persons and the fact of the debtor’s bankruptcy.
Does the court dismiss the debtor’s company CEO during the monitoring procedure?
The commercial court can remove the CEO from office based on a petition of a temporary manager. If the petition is granted, the court orders to dismiss the CEO or restrict his powers.
Who can appeal against the actions of the insolvency officer?
Only persons participating in a bankruptcy case can appeal against actions / inactions of the insolvency officer by filing a claim to the commercial court. The court orders the discharge of the insolvency officer in the case of improper fulfillment of his duties.
How does the court appoint the temporary manager?
The commercial court approves the temporary manager according to Art. 45 of Bankruptcy Law. Most often, the court approves the temporary administrator proposed by the creditor, who files the debtor insolvency and indicates the candidacy of the insolvency officer.
Is it possible to enter into settlement during bankruptcy proceedings?
By virtue of Art. 150 of the Bankruptcy Law, a settlement agreement is approved by the commercial court and can be concluded at any stage of the bankruptcy proceedings on the initiative of the debtor, bankruptcy creditors and authorized bodies. The bankruptcy creditors and authorized bodies decide on settlement at the meeting of creditors.
What are the requirements for an individual to declare bankrupt?
According to the Federal Law No. 127-FZ “On Insolvency (Bankruptcy)” of October 26, 2002, in order to be declared bankrupt, the borrower must meet the insolvency criteria:
• have a debt, the amount of which exceeds more than 500 thousand rubles;
• delay payments on credit obligations for more than 3 months;
Furthermore, in order to declare bankrupt, property insufficiency is also important, i.e. the value of the property owned by an individual must not exceed the amount of his obligations.
How is the property of a person evaluated at the auction?
By virtue of paragraph 2 of Art. 213.26 of the Bankruptcy Law, the financial manager independently assesses the citizen’s property included in the bankruptcy estate, and the decision is taken in writing. A citizen, creditors, and an authorized body in a personal bankruptcy case may challenge the assessment.
In addition, a meeting of creditors has the right to decide on an assessment of the citizen’s property, a part of this property included in the bankruptcy estate, with the involvement of an assessment officer. The costs of the assessment are at the expense of the persons who voted for the decision.
Who chooses financial manager for bankruptcy?
Both the creditor who files the debtor insolvency and a citizen who files for bankruptcy can propose the candidate for a financial manager.
What are the consequences of a personal bankruptcy?
Art. 213.30 of Bankruptcy Law stipulates the consequences of a personal bankruptcy. For example, a citizen recognized as bankrupt has no right to conclude credit and loan agreements for 5 years without indicating the fact of his bankruptcy. Besides, the citizen cannot initiate a new bankruptcy and cannot hold a position in the legal entity’s management bodies.
What documents do you need to declare a person and legal entity bankrupt?
Federal Law of 26.10.2002 No. 127-FZ "On Insolvency (Bankruptcy)" specifies the full list of documentation. For example, to start a bankruptcy case of an individual, you must provide:
- Personal documents (Personal insurance policy number/SNILS, passport, TIN, extract from the personal account, documents on marital status, including marriage contract, birth certificates of children (adoption, custodianship) and extract from EGRIP if available.)
- Documents confirming the financial standing of the applicant (income certificates, 3-NDFL (personal income tax) declarations, information on the status of cash accounts, current information about the salary from the workplace).
- Documents that indicate the property status of the applicant (inventory of property, certificate of ownership, an extract from the register of shareholders, documents on transactions carried out, etc.).
- Documents displaying claims of creditors (documentation showing that there are overdue debts, a list of creditors and debtors of an insolvent person, notifications sent to creditors on initiation of bankruptcy).
- Payment documents (state duties, statement of payment into court).
The list of documents for commercial bankruptcy:
- Constituent documents of a legal entity, as well as a certificate of state registration;
- A list of legal entity’s creditors and debtors stating the amounts of financial obligations to each of them;
- The balance sheet of the organization on the closing date;
- Report on the value of the legal entity’s property prepared by an appraiser;
- Other necessary documents, depending on the company’s legal form.
What documents should one attach to the petition in personal bankruptcy?
The bankruptcy law envisages quite an extensive list of documents to be attached to the petition in personal bankruptcy:
- Documents confirming the existence of the debt, existence or absence of an individual entrepreneur status;
-Citizen’s lists of creditors and debtors;
- Inventory of the citizen’s assets, specifying their location and place of storage;
- Copies of documents confirming the title of the individual to the assets;
- Information about the income gained and the amount of taxes withheld;
- Information from the bank on existence of accounts and deposits in the bank;
- A copy of the Government employment services decision on acknowledging the citizen jobless, if such decision was taken;
- A copy of the certificate of marriage / divorce;
- Other documents (the full list is indicated in paragraph 3 of article 213.4 of the Bankruptcy Law).
Who can file for commercial bankruptcy?
The debtor, bankruptcy creditor, authorized bodies, as well as the debtor’s employee, the former employee, who have claims for severance benefits and (or) labor wages may submit the petition on bankruptcy to the commercial court.
In which court can you appeal against the decision of the FAS?
The procedure for appealing the decisions of FAS is regulated by chapter 24 of the APC RF. The decision can be appealed to the commercial court, situated at the location of the supervisory authority. The deadline for the appeal is 3 months from the date of the FAS decision and improvement notice.
What laws govern purchasing relationships?
There are 2 fundamental documents regulating the legal relations between the subjects of procurement activities:
- Federal Law of July 18, 2011 No. 223-FZ “On the Procurement of Goods, Works, Services by Certain Types of Legal Entities”;
- Federal Law of 05.04.2013 No. 44-ФЗ “On the Contract System of the Federal and Municipal Procurement of Goods, Works, and Services”.
In addition, there are many explanations of state bodies (FAS, Ministry of Economic Development, etc.), as well as current judicial practice and explanations of the highest courts on the enforcement of legislation on public procurement.
What laws govern purchasing relationships?
The Federal Law No. 135-FZ of July 26, 2006 “On Protection of Competition” determines the basis for protection of rights. In addition, it is also possible to use instructive letters and explanations from FAS and current court practice.
How long will it take to review my application in OFAS?
The antimonopoly authority handles applications within a 30-day period, after which it decides on whether to satisfy the complaint, extend the time for consideration or dismiss.
Which authorities protect the rights and interests of tenderers?
According to Part 1 of Art. 105 of the Federal Law No. 44-FZ, complaint against action or inaction of the customer, the state body, the organization or commission for the procurement and its members may be submitted both to the judicial authority and to the procurement control and supervisory body at the federal, regional or local level.
Is the Customer obliged to indicate the price of the state contract with VAT, if the winner of the auction applies VAT?
There is no direct reference to the mandatory separate indication of VAT in the contract price in Law No. 44-FZЗ. At the same time, articles 146, 149 of the Tax Code of the Russian Federation provide for a list of goods, works and services subject to VAT. If the state customer does not include VAT in the price of the contract, then it will still have to be paid at the price offered by the winner. Thus, the state contract will be concluded with the winner of the auction at the price offered by the latter, regardless of what taxation system the bidder applies.
The customer does not accept the work done, what shall I do?
There are several ways to resolve these kinds of situations: judicial and extrajudicial procedures. In any case, it is necessary to adhere to the order of interaction with the state customer, established by the signed contract. Unfortunately, is not possible to resolve such situations in advance in the framework of public procurement. Often proving the quantity and quality of work performed under government contracts can only be resolved in court.
The customer canceled the electronic auction, what to do?
The customer has the right to cancel the auction. To do this, he must place a notice of purchases cancellation in the Unified Information System (UIS), as well as notify all participants who have submitted applications. In addition, the trading platform provides for the messaging of decisions about the auction cancellation to the participants’ e-mail addresses, after the placement of such a statement in the EIS.
I do not agree with the requirements specified in the tender documentation for bidding in accordance with 223-FZ, what should be done in this case?
The bidder may appeal against the actions of the competition commission, as well as the results of the auction, bidding and concluded contracts. The guarantees of the participants are regulated by the Federal Law No. 223-FZ of July 18, 2011 “On the procurement of goods, works, and services by certain types of legal entities”. You can appeal the decision:
- by sending a complaint about the action or inaction of the customer, or unfair competition to FAS /OFAS ;
- by submitting a claim to the court.
In the case of a complaint to the court, the claimant must prove the existence of the right or interest that the legal entity is trying to protect using measures prescribed in civil law. This is because merely a violation of the bidding procedure cannot serve as a basis for declaring the results invalid by the claim of a person whose property interests and rights are not affected by these violations of the regulations.
According to Part 10 of Art. 3 of Law No. 223-FZ, the tenderers may appeal against the results of the auction to the anti-monopoly authority in the manner established by FAS. Such complaints are considered in accordance with Art. 18.1 of the Federal Law "On Protection of Competition" № 135-FZ.
Can the Self-Employed Person (unincorporated business) participate in tenders with legal entities?
Law No. 44-FZ does not limit the rights of bidders depending on the legal form of their activities. Thus, not only the organization can become a bidder, but also a self-employed individual, and in some cases an individual who is not self-employed.
The company was accused of dumping prices, how to prove innocence?
You need to confirm your sound business practice. This can be done using information from the register of contracts with customers, which will confirm one of the following conditions:
- executing 3 or more contracts within 1 year prior to the filing date of the application (all contracts must be executed without penalties or fines),
- executing 4 or more contracts within 2 years prior to the filing date of the application (at least 75% of the contracts must be executed without penalties or fines),
- executing 3 or more contracts within 3 years prior to the filing date of the application (all contracts must be executed without penalties or fines).
In these cases, the price of one of the contracts must be at least 20% of the price at which they make an offer for the tenderer to conclude a contract in accordance with Part 2 of Art. 37 of Law No. 44-FZ.
What to do if the provisions of the state contract contain provisions in favor of my competitor (purchase of goods of a certain brand, model, etc.)?
You can appeal the unlawfulness of the provisions to the antimonopoly authorities by filing a complaint against the actions of the state customer with the obligatory indication of the state contract provisions that violate the rights and legitimate interests of the procurement participant, as well as with the legal background of your position within the framework of existing legislation.
What is the time period for the appeal against the FAS decision on the violation of competition?
According to Art. 52 of the Federal Law “On Protection of Competition” No. 135-FZ dated July 26, 2006, a legal entity is entitled to appeal the decision or order of the antimonopoly body to the commercial court or to the FAS collegial body within 3 months. The term is calculated from the moment the decision is made or FAS order is issued.
Why did OFAS refuse to accept the complaint?
There are two reasons for a substantiated refusal: you applied to the court on this issue or you applied to antimonopoly authorities. If you are not satisfied with the decision, the law provides the right to appeal against it within three months to the commercial court.
The customer does not place the procurement plan, what sanctions will follow?
The responsibility of the customer arises in cases of untimely or even lack of information about the planned procurement. The companies will face fines ranging from 100 to 300 thousand rubles and officials from 30 to 50 thousand rubles for unpublished information in the Unified Information System (UIS).
How can you remove your company from the register of unscrupulous suppliers?
A company that FAS have included in the register of unscrupulous suppliers is entitled to appeal against the decision of FAS to the commercial court. The deadline for appealing such decisions is 3 months from the day FAS adopted the decision. Appeal against the decision of FAS depends on the location of the OFAS or FAS. For example, if it was OFAS in Moscow that adopted the disputed decision, then you need to appeal the decision to the Moscow Arbitrazh Court.
What shall I do if I am not satisfied with the results of the complaint considering in FAS /OFAS?
A participant who does not agree with the results announced by FAS /OFAS may appeal against the decision to the commercial court within 3 months from the date of its adoption.
What deadline is set for withdrawing the application sent to participate in an open tender?
According to paragraph 3 of Art. 52 of Law No. 44-FZ, one can change or withdraw his applications until the envelopes are opened or there is access to them in the Unified Information System (ENI).
Why do we need a protocol of disagreements to the state contract?
The protocol of disagreements is an integral part for procurement process in the form of an electronic auction. After successful participation in the auction, the customer sends you a contract. In case of disagreement with the terms of the contract, the participant cannot individually make adjustments. For this, the parties shall draw up a protocol of disagreements.
The company refused to participate in the tender. Can it have the collateral back?
Paragraph 8 of Art. 44 of Law No. 44-FZ stipulates that the funds contributed as security for an application for participation in a tender are returned to the account of a procurement participant during a public tender, a limited participation tender, a two-stage tender, closed methods for identifying suppliers (contractors, performers) within no more than 5 business days.
What is the statute of limitations on stockholding disputes?
The current legislation of the Russian Federation does not spell out a specific period during which a person can apply to a judicial body for the protection of his rights if it is the issue of the limitation period of stockholding.
According to clause 1 of Article 196 of the Civil Code of the Russian Federation, the general limitation period is 3 years from the date determined in accordance with Article 200 of the Code.
Clause 1 of Article 200 of the Civil Code stipulates that unless otherwise required by law, the limitation period begins from the day when a person learned or should have learned about the violation of his/hers right and who is the appropriate defendant in a claim on protection of this right.
In other words, the subject of a dispute over the ownership of shares, whose rights and interests were violated, may appeal to the court at any time as soon as he/she learned about the violated right.
What personnel documents do organizations need?
Mandatory personnel documents for each employer appear in the Labor Code of the Russian Federation, the Federal Law "On Personal Data", the Federal Law "On Trade Secrets", as well as in the orders and regulations. As a rule, the necessary documents for any organization are the staff schedule, internal work regulations, employee’s job descriptions, documents regarding processing employee’s personal data, vacation schedules, instructions and rules regarding the safety and health protection.
What is a corporate contract?
The Civil Code of the Russian Federation provides the participants of a legal entity with the right to conclude a corporate agreement among them, in other words, interaction between participants of an already established legal entity is carried out through this document.
A corporate agreement may provide that the participants undertake to exercise their rights in a certain way or refrain (refuse) from exercising them, including voting in a certain way at the general meeting of participants of the company, to carry out other actions to manage the company in a coordinated way, to acquire or alienate participation interests in the company’s authorized (shares) capital (shares) at a certain price or upon the occurrence of certain circumstances, or to refrain from alienating participation interests (shares) until certain circumstances.
As a general rule, it is not necessary to register such an agreement in the Uniform State Register of Legal Entities.
What is the period for registering LLC?
By virtue of Art. 8 of the Federal Law of 08.08.2001 No. 129-FZ “On the State Registration of Legal Entities and Individual Entrepreneurs”, tax authorities register LLC within 5 business days from the moment of filing the relevant application to the registering authority.
What is the list of documents required for registration of an LLC in the tax office?
The list of documents is envisaged in art. 12 of the Federal Law of 08.08.2001 No. 129-FZ “On State Registration of Legal Entities and Individual Entrepreneurs”. Therefore, it is necessary to present to the tax authority:
- An application form P11001;
- A decision to create LLC (if one participant), protocol of the LLC meeting (if more than one participant;
- The legal entity charter (individual or standard);
- The receipt for payment of 4 000 rubles for the state duty.
Why does a legal entity need a charter?
The Charter is the main constituent document in accordance with which a legal entity operates. It contains information about the legal entity, its full and abbreviated name, goals and areas of activity, legal address, management procedure, size of the authorized share capital, procedure for its reorganization and liquidation.
What are the differences between invalid and void contract?
A contract that is held invalid does not lead to legal consequences because of actions taken during the transaction. In other words, according to civil law, the parties to the contract do not acquire any rights and obligations to each other. Everything received by the parties after the conclusion of the contract returns to the parties of the transaction (mutual restitution).
A void contract has a narrower definition. It is a type of invalid transactions. An agreement may be void, for example, if the transaction was under the influence of a delusion. In other words, a deal is null and void if its goal is obviously contrary to the principles of public order and morality, and if it does not comply with existing laws. Such a contract will be invalid by virtue of the law from the moment of its conclusion.
What legal act regulates auditing?
Audit activities are regulated by Federal Law No. 307-FZ of December 30, 2008 “On Auditing”, which sets out the key principles for carrying out legal audit.
What is a legal audit?
Through this procedure, we analyze the current state of the legal entity or the work of its individual divisions (accounting, taxation, managerial decision, etc.). With its help, it is possible to identify the imperfections of the system and prepare a number of recommendations for their elimination.
What is Due Diligence?
Due-diligence (English due diligence) in translation means “ensuring due honesty”. The aim of this procedure is to draw up an objective view of the object of investment and to assess investment risks. Due-diligence usually takes place before buying a business, signing a contract / agreement or cooperating with a new company.
Why do we need a legal audit of the transaction?
To begin with, when you carry out a transaction with any person, then you should verify all their/his/her financial and economic activities. In practice, performing a legal audit, the company solves a huge number of tasks: removes the risk of sanctions and simplifies control over the activity, checks the proper execution of documentation, makes the transactions “transparent” in all respects, provides an opportunity to assess the level of responsibility and identify possible legal risks.
Are there any alternative ways to resolve corporate disputes, except the judicial proceedings?
Article 225.1 of the Arbitration Procedure Code stipulates that some disputes may be referred to arbitration courts on condition that plaintiffs or defendants in such disputes have concluded an arbitration agreement on the transfer of such disputes to an arbitration court. In such a case, the dispute may be referred to an arbitration court only in the framework of arbitral proceedings, administered by a permanent arbitration institution, which approved, deposited and placed on its website the rules of corporate disputes resolution according to federal law, with the place of arbitration on the territory of the Russian Federation.
How do I know whether I have a corporate dispute or not?
Disputes in the field of corporation law arise on issues related to the creation, management and participation in the organization. They do not include the activities of depositories, issues of hereditary property or division of property by spouses, including shares, stakes, etc.
What questions should founders address to the notary?
Participation of a notary in corporate relations is necessary in the case of notarization of decisions made by the founders and the membership, in the process of alienation of shares in the authorized capital, certification of security and pledge agreement, etc.
Can I sell my stake in an LLC to a third party without the consent of other participants?
In the first place, you should rely on the company's charter; it always stipulates the pre-emption rights to buy out stakes from other participants prior to third parties. You must first offer to purchase your participation interests to your co-founders, and only upon their refusal (in making the purchase) to third parties.
Are there any special considerations when filing a corporate dispute claim?
The procedure for the consideration of such disputes is prescribed in Chapter 28.1 of the APC RF. In accordance with the law, the claim must contain the registration number of the legal entity and the address of its location (legal address) among other requirements, provided for by Art. 125 of the APC RF. As an application, you must provide an extract from the Uniform State Register of Legal Entities, as well as the list of documents contained in Art. 126 APC RF.
Is the pre-trial disputes resolution necessary in litigation?
Part 5 of Article 4 of the Arbitration Procedure Code provides that disputes about the recovery of funds on demand arising from contracts, other transactions, as a result of unjust enrichment may be submitted to court after the parties take measures for pre-trial resolution 30 calendar days after the date of complaint, if no other time or order is established by law or contract. However, there are also exceptions to the rules, which do not imply the pretrial dispute resolution by virtue of law. In other words, the procedure can be either binding by law or voluntary.
What is mediation?
Legal definition is specified in Art. 2 of the Federal Law dated July 27, 2010 No. 193-FZ “On the alternative dispute resolution procedure with the participation of a mediator (mediation procedure)”.
Thus, the mediation procedure is a way of settling disputes with the assistance of a mediator in order to reach a mutually acceptable solution based on the voluntary consent of the parties.
The law also provides that during the mediation procedure, confidentiality of all information maintained. The mediator does not have the right to disclose information without the consent of the parties, which became known to him during the mediation procedure.
Is it possible to resolve the dispute without trial?
There are several ways to resolve conflicts without going to court. The most common is negotiation. This method can be resolved between the parties to the dispute, both independently and with the assistance of a lawyer and other consultants. Recently, a method of dispute resolution is also gaining popularity, involving a mediator, a professional intermediary who is engaged by the parties to reach a compromise on a controversial issue. An effective tool is also the claim settlement, which is usually a mandatory procedure before going to court.
Is it necessary to respond within 7 days specified for the answer to the claim under the supply agreement?
If the time limits specified in the claim are stipulated by the provisions of the concluded agreement or the norms of the current legislation, their violation may entail corresponding consequences. The Arbitration Procedure Code of the Russian Federation provides for a period of 30 days, after which the party that sent the claim has the right to go to court.
What are the advantages of in-person counseling at a personal meeting with a client?
Personal communication with a lawyer helps to maximize the confidentiality of the information provided. Undoubtedly, direct acquaintance with a lawyer strengthens business relations and effectively influences further cooperation.
Who and how can buy or sell debt?
In accordance with Art. 388-390 of the Civil Code of the Russian Federation, purchase and sale of debt obligations are executed in a cession agreement. The lender has the right to make such a transaction in order to transfer the rights of claims to another person.
However, there is an exception to this rule: if the parties established in the contract that the identity of the creditor is significant for the debtor, but this does not follow from the substance of the arisen obligation, then such conditions should be qualified as a prohibition on assignment of rights under the contract without the debtor’s consent.
Should the guarantor pay the debt for the borrower?
Under the contract of guarantee, the guarantor commits himself to the creditor of another person to be liable for the latter in full or in part.
However, this does not mean that the guarantor takes full responsibility for the borrower. According to the provisions of Art. 365 of the Civil Code of the Russian Federation, the guarantor who fulfilled the obligation, assumes the creditor’s rights under this obligation.
The guarantor also has the right to demand from the debtor the payment of interest on the amount paid to the creditor and the reimbursement of other losses incurred in connection with the liability for the debtor.
I cannot get a court decision, what shall I do?
In accordance with Part 1 of Art. 199 of the Code of Civil Procedure of the Russian Federation, the court decision is made immediately after the proceedings. The court should announce the resolution part of the decision at the same court session, in which the proceedings were completed.
Delaying the issuance of a court decision is a gross violation, which by itself limits the right of citizens to timely acquaintance with a court decision, its appeal and execution. To obtain a court decision, you can send an application to the court for the issuance of a judicial act, if it is left without consideration or if there is a violation of the terms of extradition, you have the right to write a complaint against the actions of court employees to its chair.
In the commercial court, acquaintance with the judicial act is much simpler: in accordance with Art. 177 of the APC RF, the electronic form of the decision is posted on the official website of the commercial court in the Internet within twenty-four hours from the day of its making.
At the request of the said persons, paper copies of the decision may be sent to them within five days from the date of the receipt of the relevant request by the commercial court by registered mail with return receipt or handed to them with acknowledge of receipt.
If the decision is executed only on paper, the commercial court sends copies of the decision to the persons participating in the case within five days from the date of the decision by registered mail with return receipt or hand them with acknowledge of receipt.
What to do if the tax office has blocked a current bank account?
In accordance with art. 76 of the Tax Code of the Russian Federation, the tax authority has the right to block expenditure transactions on accounts within the amount specified in the tax payment notice and the decision to suspend operations. The suspension of account transactions is lifted the next day after the tax authority receives the documents confirming the payment of taxes. Therefore, to unblock your accounts, you need to file a statement to the local tax office and attach copies of payment documents confirming the fact of obligations fulfillment.
Is there a time limit for filing a complaint with FAS?
The deadline for filing a complaint with FAS depends on the nature of the dispute. For example, if a dispute is related to appealing actions / inactions of the state customer within the framework of Law No. 44-FZ, then such deadlines are established in separate articles of the mentioned law (the general procedure for filing a complaint with the antimonopoly authority is regulated in Article 105 of Law No. 44-FZ).
There is one general rule though: if you decide to appeal against the actions / inactions of the state customer, you must file your complaint as soon as possible, since Law No. 44-FZ establishes a short period for such an appeal.
Do not forget that the legislation provides for a mechanism for challenging by judicial means the decisions taken by FAS.
How often do you need to have an audit?
The audit is regulated by the Federal Law dated December 30, 2008 No. 307-FZ “On Auditing”. In accordance with Art. 5 of the law, a mandatory audit is to be conducted annually. Cases in which a mandatory audit is carried out are also regulated in Art. 5 of the mentioned above law.
In other cases, the frequency of the audit is set in the local acts of the legal entity (as a rule, audit services are carried out as needed).
What mandatory details must a claim to the court of general jurisdiction contain?
Art. 131 of the Civil Procedure Code of the Russian Federation regulate the form and content of the claim. Regulatory act classifies the following mandatory requisites of the application:
- the full name of the court to which the claim will be sent;
- the name of the applicant, as well as the address of residence and registration;
- information about the location of the organization, if the plaintiff is a legal entity;
- the name of the defendant with the residential address or residence in the case of a legal entity;
- reasoning for violation of rights and legal interests;
- circumstances of the case and evidence of violation of the claimant’s rights and interests;
- the claim value;
- information about attempts to resolve the dispute in an out-of-court procedure;
- a package of accompanying documents;
- the claimant’s signature.
Is it possible not to pay the state duty when filing a lawsuit in court?
The grounds and procedure for paying the state duty, as well as the procedure for granting an indulgence or installment plan for paying the state duty are established in accordance with the Tax Code of the Russian Federation.
For example, individuals claiming the recovery of wages and other requirements arising from labor relations, as well as the protection of consumer rights are exempt from paying state duty.
In addition, you can ask the court to grant you a deferred payment or installment plan for state duties. To do this, you must attach to the claim the corresponding petition. Thus, a legal entity, as a basis for granting a deferment, may attach an extract from the bank accounts of the organization, which will be evidence that the legal entity does not have the necessary funds to pay the state duty.
You can find more detailed and complete information about the benefits provided when paying the state duty in the provisions of Chapter 25.1 of the Tax Code of the Russian Federation.
How is the issue of securities carried out?
In accordance with the Federal Law No. 39-FZ “On the Securities Market” dated April 22, 1996, the procedure for issuing securities includes the following steps:
1) the decision on the placement of equity securities or any other decision, which is the basis for the placement of equity securities;
2) approval of the decision on the issue (additional issue) of issued securities;
3) state registration of an issue (additional issue) of issued securities or assignment of an identification number to an issue (additional issue) of issued securities;
4) securities offering;
5) state registration of the report on the results of the issue (additional issue) of issued securities or presenting a notice on the results of the issue (additional issue) of issued securities.
Can the lawyers assist in drafting a complaint with FAS?
Yes of course. It is worth noting that each antitrust case has its own nuances and needs detailed study. Our specialists have successful experience with the anti-monopoly service. The lawyers will not only help you to make a complaint, but also provide highly qualified support during the complaint handling in the anti-monopoly authority.
How can one appeal against the actions of the bailiff?
In accordance with Art. 121 of the Federal Law of 02.10.2007 No. 229-FZ “On Enforcement Proceedings” the executive authorization of the bailiff and other officials of the bailiff service, their actions (inaction) on the execution of the enforcement document may be appealed by the parties of the enforcement proceedings, whose rights and interests are violated by such actions (inaction) by way of subordination and challenged in court.
Thus, you can file a complaint to higher-ranking bailiffs or immediately to court.
What list of documents is required to change the company's legal address?
The procedure for changing the legal address is regulated, inter alia, by Federal Law No. 129-FZ of August 8, 2001 “On State Registration of Legal Entities and Individual Entrepreneurs” and includes several steps:
1) the decision by the founders to change the address.
2) the application submission to the Inspection of the Federal Tax Service with an attachment of the decision to change the address, the new wording of the charter, the lease or property agreement, as well as confirmation of the state duty payment. It is important to note that it is necessary to submit an application to the tax authority within three days after the decision to change the legal address is taken.