A court decision may be challenged by the director under Article 42 of the Arbitral Procedural Code of the Russian Federation
December 27, 2019

Very often, in practice, there are cases when a party that misses the deadline for appealing against a decision tries to level the pass by filing a complaint on behalf of the Director-General as an individual under Article 42 of the APC of the Russian Federation.

This complaint is most often motivated by the fact that a judicial act affects the rights and obligations of the applicant, as he or she is the head of a legal entity and may be subsequently brought to subsidiary liability.

Courts disagree with this position and here is the explanation.

In accordance with Article 42 of the Arbitration Procedure Code of the Russian Federation, persons who did not participate in the case, whose rights and obligations the arbitral tribunal adopted a judicial act about, has the right to appeal this judicial act, as well as to challenge it in the manner of supervision according to the rules established by the Code. Such persons exercise the rights and obligations of the persons participating in the case.

However, according to the clarifications of the Plenum of the Supreme Arbitration Court of the Russian Federation, currently in force, to recognize the right to appeal a judicial act, it is not enough that the adopted judicial act simply affects the rights and obligations of a person not involved in the case, this judicial action must be directly adopted on the rights and obligations of a person not involved in participation in a case.

That is, in the appealed decision in its reasoning and / or in the resolutive parts, the rights of this person regarding the subject of the dispute must be directly established, any duties assigned, he must be a participant in the legal relationship under consideration.

In itself, the argument about being in the position of the Director-General is not a basis for the court to accept the complaint to the proceedings, as Legal relations considered by the court arise between legal entities, and the head of the company can exercise his right to appeal on behalf of the legal entity.

Therefore, it is better to entrust the conduct of their business to professionals who will well perform the work entrusted to them, without missing a deadline for an appeal.

Pavel Zubarev
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