Photo by Evgeny Smirnov, IA Clerk.Ru
Let's start with what kind of legal acts explaining the legislation. What is their "strength"?
These are documents (acts) by which ministries, departments (other authorities) explain the legislative norms. This is not a legal document. And often from their text it follows that some department approved them in order to be used by a territorial subdivision. It turns out that the act is applied by the territorial department, and through its activities - by citizens or legal entities.
On February 15, Vladimir Putin signed a bill amending Article 43-4 of the Federal Law “On Arbitration Courts in Russian Federation”and Article 2 of the Federal Law “On the Supreme Court of the Russian Federation”. According to the amendments, which will come into force on March 17, several instances can consider cases of contesting documents and legal acts clarifying the legislation. Let's find out which ones.
What courts handle disputes?
The Supreme Court is the court of first instance, which considers applications from citizens or companies on acts of federal executive bodies containing explanations of the law and having regulatory properties. These are acts of the Ministry of Finance, the Ministry of Labor, the Federal Tax Service, as well as Central Bank of the Russian Federation, state off-budget funds, including the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund, containing clarifications of the legislation and having regulatory properties.You can challenge regulations or explanatory documents adopted by regional authorities:
- in the supreme courts of the republics,
- in regional/regional courts,
- in the courts of cities of federal significance or the courts of autonomous regions / autonomous regions.
- patent rights;
- rights to selection achievements;
- rights to topologies of integrated circuits;
- rights to production secrets (know-how);
- rights to means of individualization of legal entities, goods, works, services and enterprises;
- the right to use the results of intellectual activity as part of a single technology.
What is the procedure for considering cases in the Supreme Court of the Russian Federation?
The same as when challenging normative acts (Chapter 21 of the CAS RF), but with its own characteristics.An administrative claim for the recognition of an act that has normative properties as invalid can be filed:
- citizen against whom this act is applied;
- public association - in defense of the rights, freedoms and legitimate interests of all its members,
- prosecutor (within his competence),
- all other subjects that have the right to challenge normative acts (parts 1-4 of article 208 of the RF CAS).
It is very important to indicate specifics in the statement of claim: what exactly the act violates and how it affects the rights or legitimate interests of the plaintiff. Otherwise, the court will not accept the application (clause 3, part 1, article 128 of the RF CAS in new edition).
Consideration period: within three months from the date of filing the administrative statement of claim(part 1 of article 213 of the RF CAS).
Important: citizens without a higher legal education have the right to participate in a dispute only together with representatives (part 9 of article 208 of the CAS RF).
What does the court find out when considering a case on contesting an act of an explanatory nature?
- whether the act violates the rights, freedoms and legitimate interests of the administrative claimant or the person in whose interests the claim is filed;
- whether the act has normative properties that allow it to be applied repeatedly as a generally binding prescription in relation to an indefinite circle of persons;
- whether the provisions of the act correspond to the meaning of the norms of legislation explained by it.
If the court establishes all of the above facts, then the act will be declared invalid in whole or in part. From what date? From the date of its adoption or from another date determined by the court.
If the court establishes that the document does not have normative properties and complies with the content of the normative provisions explained by it, then the statement of claim will be dismissed.
The procedure for considering disputes in intellectual property courts is similar. The SIP makes a decision on recognizing the disputed act either as not having normative properties and corresponding to the normative provisions explained by it, or as not fully or partially in force (Article 195.1 of the Arbitration Procedure Code of the Russian Federation).
Who can apply for the invalidation of an act containing clarifications that relate to the rights to the results of intellectual activity (parts 1-2 of article 192 of the Arbitration Procedure Code of the Russian Federation):
- citizens,
- organizations,
- other persons
- prosecutor,
- state bodies, bodies local government and other bodies.
Do I have to pay to file a claim?
Yes. State duty when filing an administrative statement of claim challenging acts containing clarifications of the law and having regulatory properties:- 300 rubles - for individuals,
- 4500 rubles - for a legal entity.
Good afternoon
If a normative legal act is registered with the Ministry of Justice of Russia, it has legal force.
Order of the Ministry of Justice of the Russian Federation of 04.05.2007 N 88 "On approval of the Explanations on the application of the Rules for the preparation of regulatory legal acts of federal executive bodies and their state registration"(Registered in the Ministry of Justice of the Russian Federation ...II. State registration of normative legal acts
11. Regulatory legal acts are sent for state registration:
a) federal executive authorities (federal ministries, federal services, federal agencies);
b) other bodies and organizations whose regulatory legal acts, in accordance with the legislation of the Russian Federation, are subject to state registration with the Ministry of Justice of the Russian Federation (Central Bank of the Russian Federation, Pension Fund Russian Federation, Federal Compulsory Medical Insurance Fund, Social Insurance Fund of the Russian Federation).
12. Regulatory legal acts are subject to state registration:
Civil, political, socio-economic and other rights, freedoms and obligations of citizens of the Russian Federation, foreign citizens and stateless persons;
Guarantees for their implementation, enshrined in the Constitution of the Russian Federation and other legislative acts of the Russian Federation;
The mechanism for the implementation of rights, freedoms and obligations;
b) establishing legal status organizations - typical, exemplary provisions(charters) on bodies (for example, territorial), organizations subordinate to the relevant federal executive bodies, as well as establishing the legal status of organizations that perform certain most important state functions in accordance with the legislation of the Russian Federation;
c) having an interdepartmental character, that is, containing legal norms binding on other federal executive bodies and (or) organizations that are not part of the system of the federal executive body that approved (two or more federal executive bodies that jointly approved) a normative legal act.
At the same time, normative legal acts that have one of the above features or several are sent for state registration.
Regulatory legal acts are subject to state registration, regardless of the period of their validity (permanent, temporary (adopted on certain period), including acts containing information constituting a state secret, or information of a confidential nature.
12.1. State registration of regulatory legal act includes:
legal examination of the compliance of this act with the legislation of the Russian Federation, including checking for the presence of provisions in it that contribute to the creation of conditions for the manifestation of corruption;
making a decision on the need for state registration of this act;
assignment of a registration number;
entry into the State Register of Normative Legal Acts of Federal Executive Bodies.
13. The federal executive authorities, other bodies and organizations send the signed (approved) regulatory legal acts mentioned in paragraph 12 of these Clarifications for state registration.
In case of doubts regarding the compliance of the said acts with the criteria listed in paragraph 12 of these Clarifications, such acts shall also be sent for state registration to the Ministry of Justice of the Russian Federation. The final decision on the need for state registration is made by the Ministry of Justice of the Russian Federation after a legal examination.
normative legal acts affecting the rights, freedoms and duties of a person and a citizen or having an interdepartmental nature, adopted by the federal executive authorities after May 14, 1992
15. Not subject to submission for state registration:
a) individual legal acts;
Personal nature (appointment or dismissal, promotion or penalty, etc.);
The action of which is limited to a single application;
which have expired;
Operational and administrative nature (one-time orders);
b) acts by which decisions of higher government agencies brought to the attention of bodies and organizations of the system of the federal executive body;
c) acts aimed at organizing the execution of decisions of higher bodies or own decisions of federal executive bodies and not containing new legal norms;
d) technical acts (GOSTs, SNiPs, tariff and qualification reference books, forms of statistical observation, etc.), if they do not contain regulatory requirements;
With the entry into force of the Law of June 29, 2004 N 58-FZ, the procedure for conducting explanatory work has been changed. Taxpayers have the right to receive information from the tax authorities (including in writing):
on applicable taxes and fees;
on legislation on taxes and fees and on normative legal acts adopted in accordance with it;
on the procedure for calculating and paying taxes and fees;
on the rights and obligations of taxpayers, the powers of tax authorities and their officials;
on the procedure for filling out the forms of documents submitted to the tax authorities.
Informing- bringing to the attention of the taxpayer (reproducing) the information contained in the legislation on taxes and fees and the regulatory legal acts adopted in accordance with it.
The Ministry of Finance of Russia, in a letter dated January 26, 2005 N ШС-6-01 / 58@ "On the powers of tax and financial authorities", expressed the following position: "The financial authorities clarify any questions of taxpayers related to the application of tax legislation, and the tax authorities provide information on applicable taxes and fees, legislation on taxes and fees and regulations adopted in accordance with it, the procedure for calculating and paying taxes and fees, rights and obligations taxpayers, the powers of tax authorities and their officials, and also explain the procedure for filling out tax reporting.
Thus, questions that do not require a legal assessment and interpretation of the norms of legislation on taxes and fees should be sent to the tax authority, and questions that require analysis of the norms of legislation on taxes and fees and legal assessment should be sent to the Ministry of Finance of Russia.
His written explanations on the application of tax legislation, which, by virtue of Art. 34.2 of the Tax Code of the Russian Federation is given by the Ministry of Finance of Russia, the financial authorities of the constituent entities of the Russian Federation and municipalities, do not contain legal norms and are not aimed at establishing, changing or repealing legal norms, are not normative legal acts, are not subject to preparation, registration and mandatory publication in accordance with the Rules for the preparation of normative legal acts of federal executive bodies and their state registration, established by Decree of the Government of the Russian Federation of August 13, 1997 N 1009;
Contained in various legal bases data and other publications, written explanations of the Ministry of Finance of Russia, the Department of Tax and Customs Tariff Policy of the Ministry of Finance of Russia, provided at the request of specific taxpayers, are published informally. Such written explanations are not binding on tax authorities, taxpayers, payers of fees and tax agents. According to the Ministry of Finance of Russia, they do not contain legal norms or general rules, specifying regulatory requirements, and are not regulatory legal acts, regardless of who is given the explanation - a specific applicant or an indefinite circle of persons. These letters are of an informational and explanatory nature and do not prevent participants in tax legal relations from being guided by the norms of tax legislation in an understanding that differs from the interpretation set forth by the Russian Ministry of Finance.
Conclusion: letters of the Ministry of Finance are of an informational and explanatory nature on the application of the legislation of the Russian Federation on taxes and fees and do not prevent tax authorities, taxpayers, payers of fees and tax agents from being guided by the norms of the legislation on taxes and fees in an understanding that differs from the interpretation set forth by the Ministry of Finance of Russia. Published written explanations of the Ministry of Finance of Russia should be accepted by the subjects of tax legal relations along with other publications of specialists in this field.
The Ministry of Finance of Russia in its letter dated January 13, 2005 N 03-02-07 / 1-1 indicated:
"The officials authorized to sign explanations of the Federal Tax Service of Russia on issues within its competence are the director of the Federal Tax Service of Russia and his deputies. The heads of the territorial bodies of the Federal Tax Service of Russia and their deputies, within their competence, have the right to sign documents of the relevant tax authorities. The officials authorized to sign explanations of the Ministry of Finance of Russia on the application of the legislation of the Russian Federation on taxes and fees are the Minister of Finance of the Russian Federation and the deputies of the Minister of Finance of the Russian Federation. Clarifications of other financial authorities have the right to sign the heads of the relevant financial authorities and their deputies.
However, later the Ministry of Finance of Russia somewhat expanded its position and in a letter dated 06.05.2005 N 03-02-07 / 1-116 determined that the officials authorized to express the official position of the Ministry of Finance of Russia in written explanations on the application of the legislation of the Russian Federation on taxes and fees are:
Minister of Finance of the Russian Federation;
Deputy Ministers of Finance of the Russian Federation.
Thus, only the clarifications on taxes and fees of the above officials are the official position of the Russian Ministry of Finance.
On behalf of the Department of Tax and Customs Tariff Policy, its director and deputies act respectively.
If the taxpayer (payer of fees, tax agent) was guided by the written explanation of the Ministry of Finance of Russia (the Department of Tax and Customs and Tariff Policy of the Ministry of Finance of Russia) on the procedure for calculating, paying tax (fee) or on other issues of tax legislation and fees, which was addressed to this taxpayer (payer of fees, tax agent) in connection with the execution of them the taxpayer (payer of fees, tax agent), the norms of paragraph 8 of article 75 and subparagraph 3 of paragraph 1 of article 111 of the Tax Code on non-calculation of penalties on the amount of arrears are applied to it formed by the taxpayer (payer of the fee, tax agent) as a result of the implementation of the legislation, taking into account the position set out in such an explanation, and on the exclusion of the guilt of a person in committing a tax offense as a result of the taxpayer (payer of the fee, tax agent) following the specified written explanation.
Note: the courts of three instances canceled the fine and penalties for the taxpayer who followed the explanations of the Ministry of Finance, and agreed with the taxpayer that there were no grounds to charge him a fine and penalties, since he was guided by the position of the Ministry of Finance set out in the letter. At the same time, the courts rejected the inspection's reference to the fact that the letter was not addressed specifically to the company. The Supreme Arbitration Court of the Russian Federation came to a similar conclusion back in 2010 (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 30, 2010 No. VAC-4350/10 in case No. A46-9365/2009). The taxpayer in the same situation was supported by the Arbitration Court of the Ural District (Resolution of the Arbitration Court of the North Caucasus District of April 17, 2019 in case No. A32-1410/2018).
In its Resolution No. 34-P dated November 28, 2017, the Constitutional Court of the Russian Federation noted the following:
Interpretation of tax rules that worsen the position of the taxpayer is not retroactive
The Ministry of Finance and the Federal Tax Service should explain how to pay taxes, even if they need information from another body
In paragraph 3.2, the CC notes that a change by the legislator of previously established rules that has an adverse effect on legal status affected persons must be carried out in such a way as to respect the principle of maintaining the confidence of citizens in the law and the actions of the state, which presupposes the preservation of reasonable stability legal regulation and the inadmissibility of introducing arbitrary changes to the existing system of norms, as well as, if necessary, providing citizens with the opportunity, in particular through temporary regulation, to adapt to the changes introduced within a reasonable transitional period; observance of this principle - in the absence of proper regulatory certainty of legal regulation - is also essential for ensuring the unity of law enforcement practice; at the same time - proceeding from the constitutional principle of inadmissibility of giving retroactive effect to a law establishing or aggravating liability (Article 54 of the Constitution of the Russian Federation), worsening the position of taxpayers (Article 57 of the Constitution of the Russian Federation), - a decision of a higher court containing an interpretation of a rule of law, as a result of which the position of a taxpayer worsens, in good faith, i.e. without any abuse (creating various forms tax evasion and (or) their illegal reduction, etc.) operating within the framework of the interpretation of the relevant regulatory provisions that was established at the time of such a change (decisions of the Constitutional Court of the Russian Federation of May 24, 2001 N 8-P, of March 5, 2013 N 5-P, of January 21, 2010 N 1-P, of October 17, 2017 N 24-P, etc. ).
Conclusion: A decision of a higher court is not retroactive if it reinterprets the rules of law and such an interpretation worsens the position of a conscientious taxpayer. This means that it is impossible to charge additional taxes, penalties and fines for periods before the change in judicial practice. It is important that the taxpayer, during the period of a positive interpretation of tax rules for himself, does not abuse his rights (does not evade paying taxes).
Thus, the Constitutional Court of the Russian Federation, paragraph 4 of the said resolution, actually prohibited the Ministry of Finance and the Federal Tax Service from giving replies in situations where the issue of applying tax legislation is related to areas of regulation in which there are authorized bodies, indicating to the Ministry of Finance and the Federal Tax Service that "In cases where the purpose of obtaining such clarifications is the desire of the taxpayer to have an idea about his rights and obligations in tax legal relations, he should apply to the financial, tax or other state authority authorized to give written explanations about the procedure for calculating, payment of tax or on other issues of application of legislation on taxes and fees.In turn, the authorized body of state power (in case of insufficient awareness of the substance of the issue put to it) is entitled to obtain additional information using the procedures of interdepartmental interaction, including involving in resolving the issue raised by the taxpayer the state body that, due to its departmental specialization, has necessary competence in the relevant area of regulation, however, on the basis of this information, he must - by virtue of his specialization (exclusive competence) in tax matters - make a decision independently.
If the written explanations of the Ministry of Finance of Russia on the application of the legislation of the Russian Federation on taxes and fees are not consistent with the decisions, resolutions, information letters The Armed Forces of the Russian Federation, tax authorities, starting from the day of their official publication in the prescribed manner, when exercising their powers, are guided by the indicated acts and letters of the courts (letters of the Ministry of Finance of Russia dated January 29, 2019 No. 03-04-05 / 5059, dated January 16, 2019 No. 03-04-05 / 1564)
Obligations of tax authorities to clarify tax legislation
1. Be guided by written explanations of the Ministry of Finance of Russia
At the same time, the Tax Code establishes the obligation of tax authorities to be guided by written explanations of the Ministry of Finance of Russia addressed to specific applicants (due to the fact that these explanations do not contain legal norms), and obliges the tax authorities to be guided by explanations addressed to the Federal Tax Service of Russia. The latter are considered as directed within the framework of coordination and control of the activities of the Federal Tax Service of Russia (the powers of the Ministry of Finance of Russia in this area are determined by the Regulations on the Ministry of Finance of the Russian Federation) and are intended to clarify the position of the Ministry as a federal executive body authorized in the field of developing tax policy, subordinated to the federal service.
At the same time, the clarifications sent by the Ministry of Finance of Russia to the Federal Tax Service of Russia are also not regulatory legal acts, do not contain legal norms and are not aimed at establishing, changing or repealing legal norms, and are also not subject to preparation and registration in the manner established for regulatory legal acts.
2. Duty of tax authorities to provide explanations on the procedure for calculating and paying taxes and fees
In accordance with subparagraph 4 of paragraph 1 of Article 32 of the Tax Code, the tax authorities are obliged to provide explanations on the procedure for calculating and paying taxes and fees.
tax liability for.
Appeals to the court with an application for the recognition of letters and other acts of an explanatory nature of ministries and departments (letters from the Ministry of Finance, the Ministry of Transport, the Federal Tax Service, the Federal Antimonopoly Service, the Federal Customs Service of Russia, etc.) as invalid are a common occurrence in the Russian judicial practice. Despite the fact that such acts are not normative legal and, therefore, are not subject to mandatory application, it often follows from their very text that they are approved specifically for use, in particular, by the territorial divisions of the relevant authority. Thus, these acts indirectly - through the activities of officials of these bodies - become binding on citizens or legal entities.
At the same time, courts often terminate proceedings in cases of challenging such acts on the grounds that they are not normative and, in principle, cannot be challenged in court, since both in and in Ch. 24 Code of Civil Procedure of the Russian Federation, and it refers to the appeal of regulatory acts. One of these cases, based on a taxpayer’s complaint about the impossibility of challenging in court the letters of the Federal Tax Service of Russia, in particular the letter establishing the need to recalculate the severance tax, formed the basis for the review by the RF Constitutional Court of the provision of the Federal Constitutional Law No. This rule () was recognized as contradictory insofar as it allows the possibility of refusing to consider the Supreme Court of the Russian Federation acts of government bodies containing clarifications of the law, only on the basis of their inconsistency with the formal requirements for legal acts (). The Constitutional Court of the Russian Federation indicated that the federal legislator should determine the specifics of judicial review of cases on contesting acts containing explanations of tax legislation that are not formally legal acts, but have regulatory properties.
Is it allowed to appeal in court the clarifications of the authorities given on the basis of the appeals of specific persons? For example, does an organization have the right to appeal in court the answer received from the Department of the Federal Tax Service of Russia to its question about the possibility of applying the simplified tax system, if it considers that the opinion contained in the answer prevents it from applying this tax regime? The answer is in "Legal Consulting Service Knowledge Base" Internet version of the GARANT system. Get free
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The legislator fulfilled the will of the Court - from March 17, laws will come into force that determine the procedure for contesting acts containing clarifications of legislation, and any, and not just tax, and having regulatory properties:
- Federal Law of February 15, 2016 No. 18-FZ "" (hereinafter - Law No. 18-FZ);
- Federal Constitutional Law of February 15, 2016 No. 2-FKZ "" (hereinafter - Law No. 2-FKZ).
Let us consider in which courts and how cases of contesting such acts will be considered.
RF Armed Forces and regional courts
It has been determined that cases of contesting such acts of federal executive bodies and other federal state bodies, the Bank of Russia, state extra-budgetary funds, including the PFR, FFOMS, FSS of Russia, will be considered by the court of first instance of the Supreme Court of the Russian Federation (clause 1.1 is supplemented; appropriate changes are made to). Containing clarifications of the legislation and having normative properties, acts of state authorities of the constituent entities of the Russian Federation and representative bodies of municipalities will be considered by regional and equal courts ( supreme courts republics, regional courts, courts of cities of federal significance, the court of the autonomous region and the courts of autonomous districts; appropriate changes are made to ).
The consideration of cases on challenging these acts will take place in the same manner as challenging normative acts (), with the exception of a number of features enshrined in the new Art. 217.1 CAS RF (). A citizen to whom this act was applied, a public association in defense of the rights, freedoms and legitimate interests of all its members, a prosecutor (within their competence), as well as all other subjects who have the right to challenge normative acts () can file an administrative claim for recognition of an act that has regulatory properties as invalid. The basis for filing a claim is the discrepancy between the content of the act, which has normative properties, and the actual meaning of the legislative norms explained by the plaintiff, alleged by the plaintiff. At the same time, it should follow from the administrative claim filed with the court challenging this act that it violates or affects the rights or legitimate interests of the plaintiff. Otherwise, the court will refuse to accept the application (as amended).
Relevant administrative cases will be considered within three months from the date of filing an administrative claim (). It is worth noting that citizens who do not have a higher legal education will be able to participate in them only together with representatives ().
When considering a case on contesting an act of an explanatory nature, the court will have to find out:
- whether the act violates the rights, freedoms and legitimate interests of the administrative claimant or the person in whose interests the claim is filed;
- whether the act has normative properties that allow it to be applied repeatedly as a generally binding prescription in relation to an indefinite circle of persons;
- whether the provisions of the act correspond to the meaning of the norms of legislation explained by it. Moreover, the obligation to prove such compliance rests with the body (organization or official) that adopted this act.
If all these facts are established, the disputed act will be recognized by the court as not valid in full or in the relevant part - from the date of its adoption or from another date determined by the court. If, however, it is established that the document does not have normative properties and corresponds to the content of the normative provisions explained by it, the plaintiff's claims to recognize it as invalid will not be satisfied.
Thus, the following features of an act with normative properties can be distinguished: fixing in it generally binding rules that are not provided for in the law, which is explained by the act, the extension of these rules to an indefinite circle of persons, the repeated application of the act. The new laws do not contain an official definition of the concept of "an act containing normative properties". "Even at the drafting stage of the bills on the basis of which the laws were adopted, their individual wordings were criticized. Some legislators spoke out against the use of the term "acts with normative properties". Despite the criticism, the wording has not changed, and the predicted consequences in the form of unreasonable refusals to accept applications and an increase in the burden on the courts will become a reality," said the lawyer, an expert of the Legal Service 48Prav.ru Evgeny Kornev.
Other experts, on the contrary, believe that the wording of the new laws is not vague. "The interpretation of the normative properties of the act is already in the theory of law, they are determined precisely through these three main features: the universally binding nature of the rules of conduct contained in the act, which implies the possibility of applying measures of state legal coercion to comply with them, an unlimited circle of persons to whom the act is addressed, the repeated application of it in all similar situations," explains the managing partner of the SBP group of legal and audit companies. Olga Ponomareva. "The amendments made to the law only call for attention to the content characteristics of such contested acts, and not just to look at their form," adds the lawyer of the Barshchevsky and Partners Moscow Bar Association. Yana Chernobel. A managing partner law firm "Securities Consulting" Dmitry Volosov and completely believes that acts of state bodies and structures actually equated to them that contain clarifications of the legislation always have normative properties. "Otherwise, such an explanation itself loses all meaning," he said. In addition, the expert draws attention to the fact that the new laws do not solve another, no less important problem: when a requirement that is not provided for by law is established by clarifications from higher courts.
IT IS IMPORTANT TO KNOW
The amount of the state duty when applying to the courts of general jurisdiction with an application to challenge an act that has normative properties is the same as when challenging normative acts: 300 rubles. for citizens and 4500 rubles. for organizations. For challenging an act containing clarifications in the field of rights to the results of intellectual activity, citizens will also pay a state duty in the amount of 300 rubles. (this fee is provided for applications to challenge normative acts in arbitration courts), but for organizations, filing an application for recognizing such an act as invalid in the SIP will cost less than filing an application to challenge a normative act - 2000 rubles. instead of 3000 rubles. Corresponding changes have been made to the Tax Code of the Russian Federation ().
USEFUL TOOLS
To find out how much you will need to pay for filing a claim or other application to a court of general jurisdiction or an arbitration court, use the calculation calculator.
The absence in the new laws of the concept of "an act with normative properties" did not surprise lawyers, because the concept of "normative legal act" is also missing in the current legislation. However, its definition has already been formulated in theory and practice. So, for example, when preparing NLAs for federal executive bodies, it is recommended () to use the definitions of a regulatory legal act and legal norm given by the State Duma (). The Supreme Court of the Russian Federation, in turn, indicated what points the courts should pay attention to when considering cases to challenge the NPA (). Therefore, it can be assumed that in a similar way the Court will formulate a position on the consideration of acts containing clarifications of the legislation and having normative properties.
Intellectual Property Court
- patent rights and rights to selection achievements;
- rights to topologies of integrated circuits;
- rights to production secrets (know-how);
- rights to means of individualization of legal entities, goods, works, services and enterprises;
- the right to use the results of intellectual activity as part of a single technology.
The consideration of such cases is within the competence of the Intellectual Property Rights Court (corresponding amendments were made to paragraph 1 of Article 43.4 of the Federal Constitutional Law of April 28, 1995 No. 1-FKZ ""). The consideration procedure is the same as when challenging regulatory legal acts in the SIP (), with some exceptions.
When considering the case, the court will have to establish that the contested act has normative properties - according to the three signs indicated above. As a result, the CIP will make a decision on recognizing the disputed act either as not possessing regulatory properties and corresponding to the regulatory provisions explained by it, or as not fully or partially in force (Article 195.1 of the Arbitration Procedure Code of the Russian Federation).
Citizens, organizations and other persons who believe that this act has regulatory properties, does not comply with the regulations explained by it and violates their rights or legitimate interests, can file an application for invalidation of an act containing clarifications that relate to the rights to the results of intellectual activity. In addition, the prosecutor, state bodies, local authorities and other bodies () will have the right to apply to the SIP to protect the rights and interests of citizens and organizations.
It is worth noting that in the case when an act with normative properties was published in the official publication of the federal executive body or another official publication, the decision of the SIP on the case of challenging this act ().
It can be stated that the new laws formalize the position of the Constitutional Court of the Russian Federation, repeatedly expressed earlier, that when challenging normative acts, the courts must take into account their content, and not just the form, adoption procedure and other formal features (,). "Now it will be easier for interested parties to justify the possibility of contesting such acts, and they will apply with greater hope, in particular, to the RF Armed Forces," Yana Chernobel is sure.
OPINION
Anton Zhdanov, Head of AstapovLawyers MYUG office in Moscow:
"In connection with the expansion of the competence of the courts in relation to acts that have normative properties, but formally not being normative, their workload will also increase. However, since the obligation to prove the compliance of the provisions of the contested act with the normative provisions explained by it rests with the body or official who adopted the contested act, the procedure for considering a case on contestation will require fewer procedural actions from the courts. noah power".
Nevertheless, so far experts do not give accurate forecasts of how much the workload on the courts will increase after the entry into force and.
Explanation of the legislation of the Russian Federation, the practice of its application, as well as the interpretation of norms, terms and concepts are carried out by the federal executive authorities at the request of citizens in cases where they are entrusted with a corresponding duty or if it is necessary to justify the decision taken at the request of a citizen (clause 12.4 of the Model Regulations for the internal organization of federal executive authorities, approved by Decree of the Government of the Russian Federation of 07.28.2005 N 452).
A citizen (individual) has the right to receive from state bodies, local self-government bodies, their officials, in the manner prescribed by the legislation of the Russian Federation, information directly affecting his rights and freedoms - .
Legal relations related to the exercise by a citizen of the Russian Federation of the right assigned to him by the Constitution of the Russian Federation to apply to state bodies and local governments are regulated by Federal Law No. 59-FZ of May 2, 2006 "On the Procedure for Considering Appeals from Citizens of the Russian Federation".
Citizens have the right to apply in person, as well as send individual and collective appeals, including appeals of associations of citizens, including legal entities, to state bodies, local governments and their officials, to state and municipal institutions and other organizations entrusted with the implementation of publicly significant functions, and their officials.
Consideration of citizens' appeals is free of charge.
citizen in his written communication without fail indicates either the name of the state body or local self-government body to which he sends a written appeal, or the last name, first name, patronymic of the relevant official, or the position of the relevant person, as well as his last name, first name, patronymic (the latter - if any), mailing address, to which a response should be sent, a notice of redirection of the appeal, sets out the essence of the proposal, application or complaint, puts a personal signature and date.
An appeal received by a state body, local self-government body or an official in form electronic document
, is subject to consideration in the manner prescribed (clause 3, article 7 of the Federal Law of 02.05.2006 N 59-FZ). In the appeal, a citizen must indicate his last name, first name, patronymic (the last one - if available), address Email, to which the response should be sent, notification of redirection of the appeal. A citizen has the right to attach to such an appeal the necessary documents and materials in electronic form.
An appeal received by a state body, a local government body or an official in accordance with their competence is subject to mandatory consideration.
A written appeal is subject to mandatory registration within three days from the date of receipt by a state body, local government body or official. A written appeal is considered within 30 days from the date of registration of a written appeal.
A written appeal received by the highest official of a constituent entity of the Russian Federation (head of the highest executive body of state power of a constituent entity of the Russian Federation) and containing information about the facts of possible violations of the legislation of the Russian Federation in the field of migration is considered within 20 days from the date of registration of the written appeal.
Personal reception of citizens in state bodies, local self-government bodies is carried out by their heads and authorized persons. Information about the place of reception, as well as the days and hours established for reception, is brought to the attention of citizens.
A written appeal accepted during a personal reception is subject to registration and consideration in the manner established by the Federal Law of 02.05.2006 N 59-FZ (clause 4 of article 13 of the Federal Law of 02.05.2006 N 59-FZ).
State bodies and local self-government bodies are obliged to provide access, including through the use of information and telecommunication networks, including the Internet, to information about their activities in Russian and the state language of the corresponding republic within the Russian Federation in accordance with federal laws, laws of the constituent entities of the Russian Federation and regulatory legal acts of local self-government bodies.
A person wishing to receive information about the activities of state bodies and local self-government bodies, access to which is not limited, is not obliged to substantiate the need to receive it.
The clarifications of a state authority have legal force only if the body is endowed, in accordance with the legislation of the Russian Federation, with special competence to issue clarifications on the application of the provisions of regulatory legal acts.
Clause 2 of the Rules for the preparation of regulatory legal acts of federal executive bodies and their state registration, approved by Decree of the Government of the Russian Federation of 08.13.1997 N 1009, defines an exhaustive specific list of regulatory legal acts issued by federal executive bodies: resolutions, orders, rules, instructions, provisions. The publication of normative legal acts in the form of letters, orders and telegrams is not allowed.
Documents issued in a form not provided for by the regulatory legal acts of these state or municipal bodies do not acquire legal force. Explanations of the considered federal executive bodies are made out in the form of letters.
As a rule, clarifications are of an informational, explanatory and advisory nature on the application of the legislation of the Russian Federation. They are not binding on either the law enforcement officer or the natural or legal entity who made the corresponding request, are not of a legal nature and do not give rise to any legal consequences, but they help to understand the content of legal norms and form a legal position.
List of executive authorities authorized to provide explanations of the legislation
Ministry of Internal Affairs of the Russian Federation (MVD of Russia)
(Ministry of Internal Affairs of Russia)
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Approval document |
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Organizes the reception of citizens, the timely and complete consideration of citizens' appeals, the adoption of decisions on them and the direction of responses within the period established by the legislation of the Russian Federation. |
Ministry of Foreign Affairs (MFA of Russia)
(Russian Foreign Ministry)
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Power to clarify legislation |
Approval document |
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Organizes the reception of citizens, ensures timely and complete consideration of oral and written appeals from citizens, making decisions on them and sending responses within the time period established by the legislation of the Russian Federation. |
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