Accessibility of justice and alternative forms of protection of controversial rights. Types of jurisdiction of cases to arbitration courts Concept and types of forms of protection

Judicial protection of interests requires considerable financial costs, knowledge of procedural provisions related to the execution of claims and litigation. In this regard, are often used alternative ways dispute resolution.

Russian legislation provides for the possibility of protecting violated or challenged civil rights in an arbitration court (Article 11 of the Civil Code of the Russian Federation).

The arbitration court, although it bears this name, is not a judicial body and is not included in the number of bodies that form the judicial system of the Russian Federation. He is elected by the participants in civil law relations to resolve conflicts that have arisen or possible between them in the future. It is of a public nature, does not administer justice and does not have a procedural form of considering cases. Arbitration courts can be created to resolve both disputes between citizens and economic disputes involving legal entities and individual entrepreneurs.

When considering disputes on issues of such a highly specialized sphere of human activity as health care, medical insurance, specialization in matters relating to the actual relationship of the parties is of particular importance.

In order to implement the most effective protection of the legal rights and interests of insured citizens, it seems expedient to create specialized permanent arbitration courts to consider disputes arising in the health care system.

Judicial protection of interests requires considerable financial costs, knowledge of procedural provisions related to the execution of claims and litigation. In this regard, alternative dispute resolution methods are often used.

Russian legislation provides for the possibility of protecting violated or challenged civil rights in an arbitration court (Article 11 of the Civil Code of the Russian Federation).

The arbitration court, although it bears this name, is not a judicial body and is not included in the number of bodies that form the judicial system of the Russian Federation. He is elected by the participants in civil law relations to resolve conflicts that have arisen or are possible between them in the future. It is of a public nature, does not administer justice and does not have a procedural form of considering cases. Arbitration courts can be created to resolve both disputes between citizens and economic disputes involving legal entities and individual entrepreneurs.

When considering disputes on issues of such a highly specialized sphere of human activity as health care, medical insurance, specialization in matters relating to the actual relationship of the parties is of particular importance.

In order to implement the most effective protection of the legal rights and interests of insured citizens, it seems expedient to create specialized permanent arbitration courts to consider disputes arising in the health care system.

• Theoretical and substantive legal basis for the protection of rights and legitimate interests
• Right to defense
  • The meaning of the term "right to defense"
  • Protected objects
  • The procedure for the protection of interests, mediated and not mediated by subjective rights
  • Principles for the exercise of the right to defense
• Forms of protection
• Means of protection in the system of law enforcement measures
  • The concept and choice of methods of protection
  • Classification of methods of protection
  • Correlation of the concept of "law enforcement measures" with related concepts
  • Types of legal sanctions and the procedure for their application
• Application of protection methods implemented in a non-jurisdictional form
• Challenging Normative Acts
  • Signs of Normative Acts and General Issues of Their Challenge
  • Challenging Normative Acts in the Constitutional Court of the Russian Federation
  • Consequences of the introduction into circulation of the concept of "invalidation of a normative act"
  • Jurisdiction and Jurisdiction of Court Cases on Disputing Normative Acts
  • Challenging normative acts through the prosecutor and in administratively
  • Non-application by the court of a normative act that contradicts an act of higher legal force
  • Challenging non-normative acts of state and municipal bodies
  • Challenging actions (inaction) of officials of state and municipal bodies
  • Appealing against decisions and actions (inaction) of officials of the bailiff service
  • Appealing the refusal of state registration or evasion of state registration of legal entities and individual entrepreneurs
  • Appealing against decisions on the imposition of administrative fines
  • Recognition as not subject to execution of an executive or other document, according to which the collection is carried out in an indisputable (non-acceptance) manner
  • Refutation of information discrediting business reputation
  • Release of property from arrest (exclusion from the inventory)
• Application of regulatory measures
  • Refunds from the budget
  • Collection of interest for violation of the deadline for the return from the budget of overpaid or overly collected amounts
  • Recovery of damages, their difference from legal costs
  • Compensation for non-pecuniary damage
• Problems of protection of rights and legitimate interests associated with the "modernization" of the legal system of Russia
• The issue of lawmaking of higher courts as an indicator of the state of the legal system of Russia
  • Manifestation of the issue of lawmaking of higher courts in Russian law enforcement practice
  • Lack of rule-making functions in the higher Russian courts
  • Lawmaking Courts
  • Interpretation of the norms of law by the courts, its difference from rule-making
  • Types of interpretation of the rules of law by the courts
  • Sources of law
  • On the limits of the powers of the courts
  • Negative Consequences of the Current State of the Issue of Lawmaking of the Higher Russian Courts
• Case law in Russia: disregard for laws and exacerbating enforcement problems
  • Precedent in the legal system of Russia
  • Features of case law
  • Powers of Courts in Anglo-Saxon and Continental Legal Families
  • Legal consolidation of the obligation of acts of higher courts for lower courts in Russia
  • Judicial practice on the binding of the acts of the higher courts for the lower ones
• Constitutional Court of the Russian Federation: problems with competence require solution
  • Problematic issues of the competence of the Constitutional Court of the Russian Federation
  • Examples of exceeding its competence by the Constitutional Court
  • Criteria for classifying issues as constitutional
  • Other proposals to amend legislation
• Justice in Russian law: substitution of concepts, subjectivity and uncertainty
  • Justice as a multidimensional phenomenon
  • The basic meaning of justice in law
  • Approaches to the relationship between law and justice in the doctrine of law
  • The requirement of fairness in Russian law
  • Fairness in the acts of the Constitutional Court of the Russian Federation
  • The concept of justice in the theory of law
  • Fairness in the acts of the Supreme Arbitration Court of the Russian Federation
  • Equality of constitutional values
• Economic analysis of law as a means of destroying the doctrine of Russian law
  • Economic analysis of law and the "Americanization" of Russian law
  • Key points of the theory of economic analysis of law

Forms of protection

Concept and types of forms of protection

Each method of protection is implemented in a specific order, which is called a form of protection.

The right to defense can be exercised both through specially authorized government bodies and independent actions of the entitled person.

Depending on this, two types of forms of protection are distinguished:

1. non-jurisdictional, when the right to defense is realized by independent actions of the authorized person (self-defense of rights, the use of operational measures, pre-trial settlement of disputes, non-application of norms in the implementation of the law);
2. jurisdictional, when the right to defense is exercised through state and other state-authorized bodies to protect rights (arbitration courts, notaries).

Depending on the type of protection authority, there are three types of jurisdictional form:

1. judicial;
2. administrative, i.e. appeal to a higher authority or to a higher official;
3. notarial.

Accordingly, the procedural procedure for the protection of rights and legitimate interests is discussed when the right to defense is exercised through the judicial authorities, and about procedural, when the right to defense is realized through bodies that are not judicial.

It should be borne in mind that in procedural law, the form of protection is often understood as the types of claims: for awarding and for recognition, which does not fully cover even those methods of protection that are implemented in court.

The notarial form of protection is used only in civil law relations, and even then it is quite limited (making executive notices, making protests on bills of exchange and checks). Therefore, in public relations, the rights and legitimate interests of business entities are protected only in judicial and administrative forms. Moreover, disputes arising in the framework of public relations are resolved only by state courts.

Choosing a form of protection

The judicial procedure for protection (judicial form of protection) is universal in nature, i.e. if any person considers his rights and interests violated, he should be able to apply to the court for protection.

This approach is based on Art. 46 of the Constitution of the Russian Federation, which establishes the following:

1. everyone is guaranteed judicial protection of his rights and freedoms.
2. decisions and actions (or inaction) of state authorities, local self-government bodies, public associations and officials may be appealed to the court.
3. everyone has the right, in accordance with international treaties of the Russian Federation, to apply to interstate bodies for the protection of human rights and freedoms, if all available domestic remedies have been exhausted.

In addition, it should be borne in mind that according to Part 3 of Art. 56 of the Constitution of the Russian Federation, the right to judicial protection is not subject to limitation even in a state of emergency.

The special importance of the judicial form of protection is due to the fact that the courts, when considering a case, must investigate essentially all the factual circumstances, and not be limited only to the establishment of formal conditions for the application of the norm (paragraph 1, clause 3.2 of the reasoning part of the ruling of the Constitutional Court of the Russian Federation of July 12, 2006 No. 267-0).

Protection of rights in the administrative procedure, in contrast to the judicial form, is carried out only in cases provided for by law (see, for example, clause 2 of article 11 of the Civil Code of the Russian Federation). In this case, an administrative decision can be appealed to a court. The application of the administrative order requires that the instance where they apply for protection is higher, i.e. had administrative powers in relation to the lower instance against which the complaint was being filed.

The choice of forms of protection is carried out by the person seeking protection.

Moreover, the judicial and administrative forms of protection, unless otherwise provided by law, can be used simultaneously (see, for example, clause 1 of article 138 of the Tax Code of the Russian Federation). In this case, decisions of higher authorities to refuse to satisfy complaints are evaluated by arbitration courts along with other documents available in the case (see clause 4 of the Review of the practice of resolving disputes arising in the field of tax relations and affecting general issues of application of tax legislation, which is an annex to the letter of the Supreme Of the Arbitration Court of the Russian Federation dated May 31, 1994 No. C1-7 / OP-373).

However, the law may establish that if the complaint is received by the court and a higher authority (higher official), the complaint is considered by the court (see, for example, clause 2 of Article 30.1 of the Administrative Code of the Russian Federation) or consideration of the complaint filed with administratively, is suspended. So, the acceptance by the court for consideration of an application for challenging the decision, actions (inaction) of an official of the bailiff service suspends consideration of the complaint filed in the order of subordination (paragraph 2 of article 126 of the Federal Law "On enforcement proceedings").

In addition, as an option, the law may provide for mandatory pre-trial consideration of a complaint in an administrative manner. Such an example is clause 5 of Art. 101.2 of the Tax Code of the Russian Federation, according to which a decision to hold accountable for a tax offense or a decision to refuse to hold accountable for a tax offense can be appealed in court only after appealing this decision to a higher tax authority... This paragraph establishes an exception to the above rule, enshrined in paragraph 1 of Art. 138 of the Tax Code of the Russian Federation.

Legal positions of the Constitutional Court of the Russian Federation on the principle of universality of judicial protection

The following legal positions of the Constitutional Court of the Russian Federation can be cited as examples of the application of the principle of universality of judicial protection 1 The legal positions of the Constitutional Court of the Russian Federation are generally binding on the basis of Art. 6, part 3 of Art. 29 and Art. 71 FKZ "On the Constitutional Court Russian Federation”, Which, in particular, was confirmed in paragraph 3 of the reasoning part of the Decree of the Constitutional Court of the Russian Federation of July 15, 1999 No. 11-P. In this case, it does not matter in what form of the decision of the Constitutional Court of the Russian Federation (definition or resolution) these positions are contained.:

1. contained in paragraph 1 of the operative part of the Resolution of March 12, 2001 No. 4-P. From this position, a general conclusion can be drawn that concerns not only the insolvency (bankruptcy) procedure. Its essence is as follows. Since the right to judicial protection is not subject to limitation, then if any subject considers his rights violated, the question of whether a specific definition is directly subject to appeal by the procedural code does not matter. The claim of this subject must be considered in the relevant court on the merits;
2. expressed in par. 5 clause 3 of the reasoning part of the Determination of the Constitutional Court of the Russian Federation of March 1, 2001 No. 67-0, according to which the absence in the current legislation of direct instructions on the possibility of judicial consideration of cases on complaints of legal entities against actions (inaction) of public authorities cannot paralyze itself this is a right guaranteed directly by the Constitution of the Russian Federation. The resolution of the issue of which courts - arbitration or general jurisdiction - are subject to such complaints depends on their specific content, including on what rights were violated by the actions (inaction) of public authorities:
3. fixed in par. 3 p. 6 of the motivation part of the Resolution of the Constitutional Court of the Russian Federation of May 28, 1999 No. 9-P. where it was stated that the right to judicial protection presupposes the protection of the rights and legitimate interests of a citizen not only from the arbitrariness of the legislative and executive authorities, but also from erroneous court decisions. At the same time, an effective guarantee of such protection is the very possibility of reviewing the case by a higher court, which in one form or another (taking into account the specifics of each type of legal procedure) must be provided by the state;
4. contained in par. 1 clause 3 of the reasoning part and clause 1 of the operative part of the Resolution of the Constitutional Court of the Russian Federation of January 17, 2008 No. 1-P, in accordance with which the exclusion of appealing in cassation procedure of decisions and rulings of the Supreme Arbitration Court of the Russian Federation established by the Arbitration Procedure Code of the Russian Federation , taken in cases related to his jurisdiction on challenging regulatory legal acts, does not mean that such decisions and determinations are generally not subject to appeal and judicial review. In order to implement the provisions of Art. 46 of the Constitution of the Russian Federation, they can be revised in the order of supervision by the Presidium of the Supreme Arbitration Court of the Russian Federation. At the same time, the exclusion of appealing in cassation the decisions of the Supreme Arbitration Court of the Russian Federation, rendered by it as a court of first instance in cases of challenging normative acts, does not contradict the Constitution of the Russian Federation.

The establishment in the law of the deadlines for appealing decisions of lower courts is due to the need to ensure the stability of civil circulation and also, in the opinion of the Constitutional Court of the Russian Federation, cannot be considered as a violation of the right to judicial protection (paragraph 2, paragraph 3 of the reasoning part of the Decision of the Constitutional Court of the Russian Federation of December 21 2004, No. 409-O).

The concept of “form of protection of law” differs from the concept of “method of protecting rights” (Art. 12 of the Civil Code of the Russian Federation).

The form of protection of rights is a category of procedural nature. The form of protection of rights is understood as the activity of the competent authorities for the protection of rights determined by law, i.e. on the establishment of factual circumstances, the application of the rules of law to them, the determination of the method of protection of the right, the issuance of a decision and control over its implementation. Application of the methods of protection of rights listed in the law, i.e. certain measures of coercion against the violator of the law are carried out not by one, but by several forms of protection of the right.

Protection of civil rights is carried out in various forms, i.e. in the order determined by the legislation, by one or another jurisdictional body. Distinguish between general (judicial and extrajudicial), special (administrative) and exclusive (self-defense of law) procedure for the protection of civil rights.

Out-of-court procedures are represented in our country by arbitration courts and mediation (so far underdeveloped).

The protection of indisputable civil rights is also carried out by notaries and other officials who are granted the right to perform notarial acts by law.

The protection of violated or contested civil rights is carried out in accordance with the jurisdiction of cases established by procedural legislation, by courts of general jurisdiction, including justices of the peace, arbitration, arbitration courts.

There are two legal disputes:

1. violation of the rights of a person

2.contesting rights by another participant in the legal relationship

Dispute over the right is an individual legal conflict of citizens or organizations, a clash of their interests and aspirations.

Objects of dispute in violation rights of persons are, as a rule, property or intangible values. In this case, the method of violation has no qualifying value.

When challenged the rights of another party to the disputed legal relationship become vague, unclear. As a result, the mutual rights and obligations of the participants are not obvious, which complicates their implementation. This type of dispute about rights arises when claims are made for authorship of a work, when a transaction or marriage is declared invalid, etc. Contestation also arises when an unjustified claim is filed in court.

The delimitation of disputes over the right to these types is of practical importance. Protection of the right in case of its violation consists in the restoration of the situation that existed before the violation of the right, and the suppression of actions that violate the right or create a threat of its violation; an award to perform an obligation in kind; compensation for losses; in the collection of a forfeit; in compensation for non-pecuniary damage, etc., and in case of challenge - in the recognition of a right or recognition of a voidable or void transaction, etc.

Such a form of protection of rights as self-defense, characterized by the fact that the person concerned independently takes appropriate measures to suppress offenses (Article 14 of the Civil Code). This is the oldest form of legal protection. It is the simplest, but most effective.

At the same time, in self-defense, there is a great danger of illegal actions, manifestations of illegality on the part of the defending subject, who, for example, either incorrectly assesses the situation or defends rights that do not belong to him, or applies measures not provided for by law. That is why in Art. 14 of the Civil Code specifically stipulates that the methods of protection must be proportionate to the violation.

However, self-defense is legitimate in some cases provided for by law: necessary defense (Article 1066 of the Civil Code) and extreme necessity (Article 1067 of the Civil Code). Also, the law establishes a kind of self-defense in the form of a direct write-off by the creditor from the debtor's bank account of the amount owed (clause 2 of article 854 of the Civil Code).

Self-defense is characterized by the fact that human rights actions are carried out by the person concerned himself without and outside any normatively established regulations.

An independent form of protection of rights is also represented by settlement of legal disputes, the essence of which lies in the joint actions of the disputing parties to eliminate the emerging conflict. The parties to the dispute are interested in the restoration of normal, indisputable legal relations for the implementation of their economic activities without hindrances and difficulties. This primarily applies to legal entities seeking to maintain long-term, optimal legal relations with counterparties.

Currently, the settlement of disputes about law is provided for by the Regulations on the Claims Procedure for the Settlement of Disputes of February 24, 1992, and in relation to labor disputes - by the Labor Code.

The essence of the settlement of disputes boils down to the fact that a person whose rights are actually or presumably violated or challenged, within a normatively specified time period in writing brings his claims with the attachment of the relevant documents to the attention of the second party. The latter, having considered the application, must either satisfy the claim or send a reasoned refusal within a certain period of time.

The advantages of such a settlement of a dispute as a method of legal protection lie in simplicity and speed, its expediency and effectiveness,

Administrative order protection of the right lies in the fact that in the cases provided for by law, state or local government bodies can, without calling interested parties and outside the current procedure, make a decision to restore the violated right or to eliminate any legal uncertainties. (administrative order, only in cases provided by law). Thus, the prosecutor can authorize the administrative eviction of persons who have arbitrarily occupied a dwelling or live in houses that threaten to collapse (part 2 of article 90 of the LC).

The Central Bank of the Russian Federation and its branches have the right to apply direct debit of the debtor's amount from his bank account when exercising banking control. Local self-government bodies have the right to recover from organizations damage for crop damage and damage to plantations. In some cases, juvenile commissions may impose monetary penalties on parents and guardians of adolescents.

Any decision developed in an administrative manner can be appealed to the court (part 2 of article 11 of the Civil Code), since the civil procedure procedure for considering and resolving a dispute that has arisen is the most perfect form of protection of subjective rights.

Judicial form protection of rights is characterized by the following advantages:

1. The defense is carried out by a special body - a court created only to consider disputes about law (the term "court" means: a court of general jurisdiction, a magistrate, special courts: arbitration, arbitration, military).

2. The court resolves the stated requirements on the basis of the application of the norms of civil, family, labor and other law in the manner of civil jurisdiction.

3. The circumstances of the case are investigated in the civil procedural form, which guarantees the legality and validity of the dispute resolution.

4. The defense is carried out by impartial judges.

5. The parties to the dispute and other interested parties are actively involved in the proceedings.

The procedural form is a sequential procedure for considering and resolving a civil case determined by the norms of civil procedural law, including a certain system of guarantees. Compliance with the procedural form is an indispensable condition for the legality of court decisions.

The procedural form is characterized by the following features:

1. Constitutional guarantees, first of all, the independence of the court and its subordination only to the law, publicity, including the national language of legal proceedings.

2. The norms of civil procedural law in the aggregate form a procedural form in a broad sense; it strictly and exhaustively defines and guides the procedural activity - in the process, only the actions provided for by the procedural law are permissible.

3. The decision of the court must be based only on the facts proven and established by the court in the ways prescribed by law.

4. Persons interested in a court decision are given the right to participate in the proceedings of the case by the court in order to protect their interests. The court does not have the right to make a decision without hearing and discussing the arguments of these persons, who appeared at the court hearing upon the notification of the court.

Procedural activities for the protection of violated or challenged rights are governed by civil procedural law.

The Constitution of the Russian Federation guarantees the right of a person and a citizen to protect their rights and freedoms in all ways not prohibited by law (Article 45), as well as judicial protection (Article 46).

Citizens exercise their right to judicial protection by directly applying to the court with a claim or a complaint against the actions of administrative bodies.

Right to judicial protection is the constitutional right of citizens and organizations. The Constitution of the Russian Federation guarantees everyone judicial protection of his rights and freedoms. No one can be deprived of their property except by a court decision.