Procedural forms of protection of rights and legitimate interests. Types of jurisdiction of cases to arbitration courts Alternative and consistent procedure for the protection of rights
EXTRAJUDICIAL WAYS TO PROTECT THE SUBJECTIVE
Ignatovich Nikolai Mikhailovich, lawyer, Nikolai Michailovich Ignatovich’s lawyer office, consisting in the register of lawyers of the Arkhangelsk region, bachelor, student-
undergraduate, Russia.
abstract. The article raises an issue about the alternative methods of protection subjective civil rights. These methods have become the most actual considering the fact of the still undeveloped russian judical system. Courts do not apply the substantive law in their entirety, that, as a consequence, leads to a large number of miscarriages of justice, a gross violation of the law courts and violation of the rights of the parties involved, rather than their protection.
Keywords: Courts of general jurisdiction, Constitution of Russia, judicial protection, extra-judicial methods of protection, jurisdictional methods of protection, non-jurisdictional methods of protection, arbitration, mediation, notary, claim procedure for dispute settlement.
EXTRA-JUDICIAL WAYS TO PROTECT SUBJECTIVE
CIVIL RIGHTS
Ignatovich Nikolai Mikhailovich, lawyer, law office of Ignatovich Nikolai Mikhailovich, included in the register of lawyers of the Arkhangelsk region, bachelor,
student nt-master ant
Annotation. The article raises the question of alternative ways of protecting subjective civil rights, which are currently becoming the most relevant due to the imperfection of the judicial system in the Russian Federation, the non-application of substantive law by the courts in their totality, which, as a result, leads to a large number of judicial errors, gross violation of the law by the courts and violation of the rights of participants in legal relations, instead of protecting them.
Key words: courts of general jurisdiction, the Constitution of the Russian Federation, judicial protection, extrajudicial methods of protection, jurisdictional methods of protection, non-jurisdictional methods of protection, arbitration court, mediation, notaries, claims procedure for settling disputes.
The main activity of the court, its cornerstone task, is the protection of the violated right of subjects of civil law circulation, the restoration of the violated right. However, litigation is only one of many ways to protect subjective civil rights. There are other bodies and organizations called upon to protect civil rights out of court.
At the same time, extrajudicial remedies are not directly related to the civil process, and, quite rightly,
then the question arises about their place in the system of civil procedure. The goal of judicial methods of protection and non-judicial methods is the same - the protection of civil rights, the difference is in the methods used in the implementation of protection.
Many non-judicial defenses precede litigation, and often provide pre-trial defense, and in some countries they are more in demand than litigation.
There will be an incomplete understanding of the ways to protect civil rights if you do not pay attention to extrajudicial methods of protection. They form an integral part of the system of law aimed at protecting violated rights. In this regard, the topic for research in this article was chosen.
In itself, the protection of violated rights and legitimate interests is guaranteed by a fairly wide range of the highest law of our state - the Constitution of the Russian Federation. But the protection itself, as it has become customary in Russia, is carried out in the vast majority of cases by state justice, created in the form of a whole system of judicial bodies, among which are courts of general jurisdiction, arbitration courts, and military courts.
This activity of the state is significant for the life of our society. Dispute resolution with the help of the state apparatus of the judicial system is generally recognized, and contributes to the sustainability of the development of market relations, an integral part of economic activity.
However, the formation and development of market relations almost does not depend on the achieved level of protection of civil rights and legitimate interests of subjects of civil law turnover. But the formation and development of the rule of law and civil society entirely depends on the level of protection of civil rights.
Strictly speaking, the modern Russian procedural system was created by multiple borrowings from the Anglo-Saxon and Romano-Germanic systems of law, but when applied, in our system these borrowings give them a completely different meaning, very different from the original, which indicates its mixed and original character.
In the world system of procedural law, the Russian system in a very short time managed to prove its peculiarity and originality, and became the basis for the entire permission system.
disputes. But, at the same time, one should not focus on the judicial system as a way to protect civil rights; it is not a panacea for any legal problems and conflicts.
Recently, alternative ways of resolving conflicts, which in the domestic doctrine are called extrajudicial, are slowly gaining strength. These methods are carried out through both jurisdictional and non-jurisdictional bodies.
By itself, the arbitration court is not included in the system of state bodies, as well as local governments. In this regard, arbitration is a public form of resolving legal disputes.
The very essence of arbitration is that both parties to the dispute trust its resolution to selected third parties, while recognizing the binding nature of their decisions.
It has already been noted that the number of cases that have been considered by arbitration courts is growing every year. This phenomenon is explained by the fact that the parties to disputes need to avoid a lot of bureaucratic delays, one-sided interpretation of the rules of law that take place in state jurisdictional bodies. Such competition with the state judicial system ensures the implementation by the subjects of civil circulation of the right to free, proactive and independent implementation of the protection of civil rights.
Judicial control in arbitration proceedings is applied exclusively at the initiative of the parties to the arbitration process and is caused mainly for the possibility of state coercion in the execution of judicial acts of the arbitration court (Section VI of the Code of Civil Procedure of the Russian Federation and Chapter 30 of the APC of the Russian Federation).
A striking example of a non-judicial jurisdictional way of protecting civil rights are the actions that are carried out by notaries.
Part 1 Art. 1 of the Fundamentals of the Legislation of the Russian Federation on the notary provides that the competence of the notary includes, among other things, actions to certify transactions; imposition and removal of the prohibition of the alienation of property; execution of executive inscriptions; making protests of bills; presentation of checks for payment and certification of non-payment of checks;
acceptance of documents for storage; the commission of maritime protests; providing evidence.
The disputability of the situation often disappears, as well as the need to apply for its resolution to the judicial state bodies, provided that the notary has performed the above actions, which, of course, has a positive impact on the further cooperation of the parties.
Non-jurisdictional alternative ways of conflict resolution include mediation and mediation.
Mediation has long been known in other systems of law, for example, in England, Australia, the USA, Canada, etc. In our legal system, the institution of mediation is regulated by the adoption of the Federal Law of July 27, 2010 No. 193-FZ “On an alternative dispute resolution procedure involving a mediator (mediation procedure)".
According to jurists, it should be considered as an alternative, quite common in modern conditions, way of resolving conflicts.
In mediation, the neutral party chosen by the parties to the dispute through negotiations helps to find a compromise. This party, this person, is called the mediator. This institution, the institution of mediation, differs significantly from both the judicial procedure and the procedure for considering a dispute in arbitration courts. Distinctive features of the mediation procedure are confidentiality, the shortest terms for resolving a dispute, the opportunity for the parties to choose their own mediator, as well as directly and actively participate in the settlement of the conflict of the procedure.
The introduction of conciliation procedures as alternative ways of protecting rights has found its way into the Federal Target Program for the Development of the Judicial System for 2007-2012.
With the help of mediation, the parties can settle their dispute out of court, thereby protecting their civil rights and legitimate interests without the participation of a state or non-state judicial body.
But even without mediation, the parties can independently resolve their dispute in pre-trial order. So, according to the Arbitration Procedure Code of the Russian Federation of 1995
there was a mandatory claim procedure for pre-trial settlement of disputes.
The claim procedure for resolving a dispute was a mandatory sending of a claim to the second party to the dispute in writing even before filing a lawsuit with the court. This procedure is the original Russian way of settling disputes, and does not lose its relevance today.
Further improvement of the mechanism of legal regulation of economic disputes will inevitably present the need to find new ways to resolve them. The above analysis of out-of-court ways of settling disputes testifies to the presence in them of general trends emerging in society and law aimed at expanding the freedom of the rights of subjects in resolving legal conflicts, the possibility of finding ways to resolve them independently, striving for "dialogue" and partnership.
According to the author, in order to successfully solve the problems of "unloading the judicial system" and improving the quality of justice, our state should develop a system of alternative methods of resolving disputes. This problem must be solved at several levels: legal, organizational and professional. For any activity, including out-of-court settlement of conflicts, the legal basis for activity, organizational and economic infrastructure, as well as a sufficient number of professionals are necessary.
Bibliographic index:
1. Nikolyukin S. V. To the question of the right to protect the rights of entrepreneurs in arbitration courts // Bulletin of Arbitration Practice. 2011. No. 4. S. 12-14
2. Maleshin D. Ya. Civil procedure system of Russia: Abstract of the thesis. dis. ... doc. legal Sciences. M., 2011. S. 16, 35-36.
3. Mednikova M. E. Pre-trial settlement of disputes in the sphere of economic activity (problems of theory and practice): Abstract of the thesis. dis. ... cand. legal Sciences. Saratov, 2007. P. 3.
4. Civil procedural law: Textbook / Ed. M. A. Shakaryan. Moscow: TK Velby; Prospekt, 2004. S. 556. (Author of § 1 ch. 28 - M. V. Filatova).
5. Kurochkin S. A. State courts in arbitration and international commercial arbitration. M.: Volters Kluver, 2008. S. 139.
6. Osokina G. L. Civil process. Special part. M.: Norma, 2007. S. 817-818.
7. Code of Civil Procedure of the Russian Federation dated November 14, 2002 No. 138-FZ (as amended on December 28, 2013) // Collection of Legislation of the Russian Federation. 2002. No. 46. Art. 3532.
8. Arbitration Procedural Code of the Russian Federation dated July 24, 2002 No. 95-FZ (as amended on November 2, 2013) // Collected Legislation of the Russian Federation. 1995. No. 19. Art. 1709.
9. Fundamentals of the legislation of the Russian Federation on notaries (approved by the Supreme Court of the Russian Federation on February 11, 1993 No. 4462-1) (as amended on December 21, 2013) // Vedomosti of the Congress of People's Deputies and the Supreme Council of the Russian Federation. 1993. No. 10. Art. 357.
10. Zhilin G. A. Justice in civil cases: topical issues: Monograph. M.: Prospekt, 2010 // ATP "ConsultantPlus".
11. Article-by-article commentary to the Federal Law "On an alternative procedure for resolving disputes with the participation of an intermediary (mediation procedure)" / Otv. ed. S. K. Zagainova, V. V. Yarkov. M.: Infotropic Media, 2012. S. 290.
12. Federal Law “On an alternative procedure for resolving disputes with the participation of an intermediary (mediation procedure)” dated July 27, 2010 No. 193-FZ (as amended on July 23, 2013) // Collected Legislation of the Russian Federation. 2010. No. 31. Art. 4162.
13. Begaeva A. A. The institution of mediation - an alternative way to resolve corporate conflicts // Entrepreneurial Law. 2008. No. 3. S. 13.
14. Kalashnikov S. I. Mediation in the field of civil jurisdiction: Abstract of the thesis. dis. ... cand. legal Sciences. Yekaterinburg, 2010. P. 12.
15. Zaitsev A. I., Kuznetsov N. V., Savelyeva T. A. Non-state procedures for resolving legal disputes. Saratov, 2000, p. 38
16. Decree of the Government of the Russian Federation of September 21, 2006 No. 583 “On the Federal Target Program for the Development of the Judicial System for 2007-2011” // Collected Legislation of the Russian Federation. 2006. No. 41. Art. 4248.
3. Judicial procedure for consideration of citizens' appeals
The Law of the USSR of 1987 and the Law of 1989 on appealing to the court were adopted 10 years after the proclamation in the Constitution of the USSR of the right of citizens to appeal to the court against the actions of officials.
Current legislature. The Law of April 27, 1993 “On Appeal to the Court of Actions and Decisions Violating the Rights and Freedoms of Citizens” provides that every citizen has the right to go to court if he considers that illegal actions (decisions, later - inaction) of state bodies, local self-government , organizations, associations or officials, state, municipal employees violated his rights and freedoms.
1. Actions, inaction of a large circle of subjects are appealed to the court.
2. The formula "if he believes ..." means that the violation of rights may be genuine or imaginary.
3. The unequal terms "action" and "decision".
Subject of appeal. Appealed are collegial and sole decisions, actions (including the provision of information as a basis for making a decision), as a result of which:
Violated rights and freedoms;
Obstacles have been created for the exercise of rights and freedoms;
Illegally imposed duty or liability.
Correlation with the administrative procedure for considering appeals. The solution to the problem of jurisdiction of administrative and legal disputes is different depending on what principle is taken as the basis.
There are two principles in the world:
1. The general "clause" (general provision) means the fundamental possibility of a judicial appeal against any individual or normative act that affects the rights and legitimate interests of citizens or organizations.
2. List principle, i.e. by listing the contested disputes.
There is also sequential and alternate procedure for judicial review.
Distinguish between the right to general and special judicial complaint.
General complaint means that any decision, action, act can be appealed to the court by any citizen.
Special Complaint filed by a subject with a special status (serviceman, student, etc.) regarding special legal relations. It is regulated by special regulations (Arbitration Procedure Code of the Russian Federation, Criminal Procedure Code, Code of Administrative Offenses of the Russian Federation).
Deadlines for filing a complaint:
3 months - from the moment when the person learned about the violation of his right;
1 month - from the date of receipt of a written notice of refusal to satisfy the complaint;
1 month - from the expiration of the one-month period for responding to the complaint.
Deadlines may be extended by court order.
Rules for consideration of appeals. Consideration of appeals is carried out according to the rules established by the Code of Civil Procedure of the Russian Federation (chapters 23-25).
The court considers cases arising from public legal relations:
a) at the request of citizens, organizations, the prosecutor on contesting normative legal acts;
b) on applications to challenge decisions and actions (inaction) of state authorities, local governments, officials, state and municipal employees.
Article 247 of the Code of Civil Procedure of the Russian Federation regulates the procedure for applying to the court. In contrast to the administrative order, a citizen does not file a complaint, but statement, which should indicate which decisions, actions (inaction) should be recognized as illegal, what rights and freedoms of a person are violated by these decisions, actions (inaction).
The appeal of the interested person to a higher authority in the order of subordination or to an official is not a prerequisite for filing an application with the court. Thus, Russian law establishes an alternative procedure for filing a complaint: either to a higher authority or to a court.
burden of proof
The obligation to prove the circumstances that served as the basis for the adoption of a normative legal act, its legality, as well as the legality of the contested non-normative acts, actions (inaction) of state authorities, local governments, officials, state and municipal employees are assigned to this body or official.
Place of consideration
An application may be filed by a citizen with a court at the place of his residence or at the location of the body of the official, the decision, action (inaction) of which is disputed.
Terms of consideration
The application is considered by the court within ten days with the participation of a citizen, head or representative of the body whose acts or actions (inaction) are disputed.
results consideration of the application : Satisfaction or Denial of Satisfaction statements.
At satisfaction of the application, it is recognized as justified and the obligation of the relevant body of the official to eliminate in full the committed violation of the rights and freedoms of a citizen or an obstacle to the exercise by a citizen of his rights and freedoms is established. This court decision is sent to eliminate the committed violation to the head of the body, the official whose decisions, actions (inaction) were challenged, or to a higher authority in the order of subordination within three days from the date the court decision enters into legal force.
The court and the citizen must be informed of the execution of the court decision not later than within a month from the date of receipt of the decision.
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Judicial protection of interests requires considerable financial costs, knowledge of the procedural provisions related to filing claims and litigation. In this regard, alternative methods of dispute resolution are often used.
Russian legislation provides for the possibility of protecting violated or contested civil rights in an arbitration court (Article 11 of the Civil Code of the Russian Federation).
The Arbitration Court, although it bears such a name, is not a judicial body and is not among the bodies that form the judicial system of the Russian Federation. He is elected by the participants of 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 consideration of cases. Arbitration courts can be created to resolve both disputes between citizens and economic disputes, the participants of which are legal entities and individual entrepreneurs.
When considering disputes on issues of such a highly specialized sphere of human activity as healthcare, 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 legitimate rights and interests of insured citizens, it seems appropriate to create specialized permanent arbitration courts to resolve disputes arising in the healthcare system.
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Current legislature. The Law of April 27, 1993 “On Appeal to the Court of Actions and Decisions Violating the Rights and Freedoms of Citizens” provides that every citizen has the right to go to court if he considers that illegal actions (decisions, later - inaction) of state bodies, local self-government , organizations, associations or officials, state, municipal employees violated his rights and freedoms.
1. Actions, inaction of a large circle of subjects are appealed to the court.
2. The formula "if he believes ..." means that the violation of rights may be genuine or imaginary.
3. The unequal terms "action" and "decision".
Subject of appeal. Appealed are collegial and sole decisions, actions (including the provision of information as a basis for making a decision), as a result of which:
Violated rights and freedoms;
Obstacles have been created for the exercise of rights and freedoms;
Illegally imposed duty or liability.
Correlation with the administrative procedure for considering appeals. The solution to the problem of jurisdiction of administrative and legal disputes is different depending on what principle is taken as the basis.
There are two principles in the world:
1. The general "clause" (general provision) means the fundamental possibility of a judicial appeal against any individual or normative act that affects the rights and legitimate interests of citizens or organizations.
2. List principle, i.e. by listing the contested disputes.
There is also a sequential and alternative procedure for judicial review.
Distinguish between the right to general and special judicial complaint.
A general complaint means that any decision, action, act can be appealed to the court by any citizen.
A special complaint is filed by an entity with a special status (serviceman, student, etc.) regarding special legal relations. It is regulated by special regulations (Arbitration Procedure Code of the Russian Federation, Criminal Procedure Code, Code of Administrative Offenses of the Russian Federation).
Deadlines for filing a complaint:
3 months from the moment when the person learned about the violation of his right;
1 month - from the date of receipt of a written notice of refusal to satisfy the complaint;
1 month from the expiration of the one-month period for responding to the complaint.
Deadlines may be extended by court order.
Rules for consideration of appeals. Consideration of appeals is carried out according to the rules established by the Code of Civil Procedure of the Russian Federation (chapters 23-25).
The court considers cases arising from public legal relations:
a) at the request of citizens, organizations, the prosecutor on contesting normative legal acts;
b) on applications to challenge decisions and actions (inaction) of state authorities, local governments, officials, state and municipal employees.
Article 247 of the Code of Civil Procedure of the Russian Federation regulates the procedure for applying to the court. In contrast to the administrative procedure, a citizen does not file a complaint, but with a statement in which it must be indicated which decisions, actions (inaction) should be recognized as illegal, what rights and freedoms of a person are violated by these decisions, actions (inaction).
The appeal of the interested person to a higher authority in the order of subordination or to an official is not a prerequisite for filing an application with the court. Thus, Russian law establishes an alternative procedure for filing a complaint: either to a higher authority or to a court.
burden of proof
The obligation to prove the circumstances that served as the basis for the adoption of a normative legal act, its legality, as well as the legality of the contested non-normative acts, actions (inaction) of state authorities, local governments, officials, state and municipal employees are assigned to this body or official.
Place of consideration
An application may be filed by a citizen with a court at the place of his residence or at the location of the body of the official, the decision, action (inaction) of which is disputed.
Terms of consideration
The application is considered by the court within ten days with the participation of a citizen, head or representative of the body whose acts or actions (inaction) are disputed.
Results of consideration of the application: satisfaction or refusal to satisfy the application.
If the application is satisfied, it is recognized as justified and the obligation of the relevant body of the official to eliminate in full the committed violation of the rights and freedoms of a citizen or an obstacle to the exercise by a citizen of his rights and freedoms is established. This court decision is sent to eliminate the committed violation to the head of the body, the official whose decisions, actions (inaction) were challenged, or to a higher authority in the order of subordination within three days from the date the court decision enters into legal force.
The court and the citizen must be informed of the execution of the court decision not later than within a month from the date of receipt of the decision.
Question No. 12. Fundamentals of the administrative and legal status of legal entities (organizations). Ways to protect their rights. (I can't find part 2 anywhere)
Collective subjects of administrative law are organized groups of people who are in stable relationships. Collective subjects of administrative law are divided into two groups: those with and without state powers. Executive authorities (as well as other empowered institutions) act as the subject of management, other collective entities (enterprises, institutions, organizations, public and religious associations) act as objects of management.
Collective subjects are organized, isolated, self-governing groups of people, acting outside as something unified (not personified by individuals).
is functionally and organizationally isolated, has goals, objectives, functions, acts on the basis of the rule of law, is recognized as a legal entity.
consists of people, but it is not personalized, impersonal, which means that the replacement of the composition does not affect the legal significance of this subject.
In contrast to the individual subject, it is not the collective subject itself that acts in its entirety, but authorized persons who exercise its rights and obligations act on its behalf.
Bahrakh D.N. Previously, he divided all collective subjects into 4 groups:
Organizations;
Structural units;
labor collectives;
Complex organizations (suborganizations, systems).
Now offers 3 classes: organizations, structural divisions of organizations, complex organizations (non-profit systems of closely interconnected organizations); the simplest organizations.
New trends in the legislation on civil service appear state as a party to service relations.
The contract is concluded by the representative of the employer.
Article 6 of the Federal Law "On Autonomous Institutions" the founder of an autonomous institution is the Russian Federation, a constituent entity of the Russian Federation, a municipality - depending on the type of ownership of the property on the basis of which autonomous institutions are created.
Types of collective subjects of administrative law.
1. Organizations (general concept), which are further divided into state authorities and local governments, enterprises, institutions and other organizations, public and religious associations.
The Civil Code of the Russian Federation recognizes as a legal entity such an organization that has separate property and is liable for its obligations, can acquire and exercise property and personal non-property rights on its own behalf, bear obligations, be a plaintiff and defendant in court.
To enter into administrative-legal relations, collective entities do not have to be legal entities; moreover, administrative legal personality is not associated with the rights of a legal entity and with the need for state registration.
In recent legislation, it is established that the executive authorities have the rights of a legal entity.
Administrative scholars criticize this provision.
The first point of view of the right of a legal entity has not an authority, but an institution of the same name. (Bahrakh D.N.).
The second point of view is that executive authorities are not legal entities, but have the rights of a legal entity, to the extent that it is necessary to carry out public administration.
A special concept is legal entities of public law. In domestic literature (Tikhomirov Yu.A.), they are understood as state bodies (public authorities in general), as well as state and municipal entities.
The classification of legal entities in domestic law is also different.
Art. 48 of the Civil Code of the Russian Federation, depending on the relationship of the legal entity with the founders (participants), (in other words, with the subject of management, if translated into the plane of management relations).
Division according to the criterion of the purpose of making a profit commercial and non-profit organizations. It is also significant for the scope of the administrative-legal status, for example, for relations with the tax authorities.
Terminology traditional for administrative law: enterprises, institutions, other organizations.
Organization is a generic concept.
An enterprise in administrative law is a type of organization engaged in production and economic activities (production of material products or material goods), performance of work and provision of services for the purpose of making a profit. The term "enterprise" in the Civil Code of the Russian Federation refers to a property complex.
Types of enterprises - state, municipal, private. There may be unitary federal, subjects of the federation (regional), municipal: district, city, settlement.
Establishment is a type of organization created to carry out work or provide services of an intangible nature, for non-commercial purposes. (Functions of public administration are institutions of one type, another type of socio-cultural and other functions).
New: Autonomous Institutions (AU).
An autonomous institution is a non-profit organization created by a state or municipal entity to perform work, provide services in order to exercise the powers of state authorities, local self-government in the fields of science, education, healthcare, culture, social protection, employment, physical culture and sports.
Types of enterprises by industry, by scale and significance of activities, by form of ownership.
Other non-profit organizations, consumer cooperatives, funds.
A number of administrative law textbooks describe the status of commercial and non-profit organizations.
A special subject is the structural divisions of organizations.
In the Civil Code of the Russian Federation, they are not independent legal entities. In the theory of administrative law, it is recognized that structural units can enter into administrative-legal relations as objects of management. For example, in intra-organizational relations.
Signs of a structural unit:
This is an element of the organization, a part that carries out its activities;
An organized self-governing group of people, employees, among whom responsibilities are distributed and there is a hierarchy (at least 4 employees);
At the head is a formally appointed leader;
Legal grounds for activity.
Does not have its own property (as a rule), does not act outside, has limited civil legal personality.
2 types linear and functional.
Linear units perform part of the production activities, functional units carry out functions, have powers in relation to linear units.
There are mixed types of structural divisions.
Features of legal regulation. The legal status of these organizations as a whole is determined, first of all, by the norms of civil legislation: the Civil Code of the Russian Federation, laws, for example, the Law of the Russian Federation on Joint Stock Companies, regulations, charters and other regulations. The complexity of these acts regulate the legal personality of these organizations in civil law relations, but to some extent in administrative legal relations.
The predominant part of the norms establishing administrative legal personality is contained in acts addressed to the state-power subject, and not to organizations (collective formations), i.e. the legal personality of organizations is secured indirectly ("mirror") by securing the rights and obligations of executive authorities in relation to these organizations.
These are the provisions on the executive authorities (tax, internal affairs, customs, etc.) Of great importance are the acts regulating the individual powers of the authorities in relation to all organizations (licensing, state registration, security, etc.)
Administrative legal personality - the ability to be the bearer of rights and obligations in public administration, the ability to enter into administrative and legal relations.
consists of administrative legal capacity and legal capacity, that is, for organizations, the ability to have rights and obligations and exercise them independently merge into one concept of legal personality and, unlike the legal personality of individuals, arise simultaneously. Tort capacity means the ability to bear legal responsibility for one's misconduct and is also an element of legal personality.
The organization and activities of these collective entities are determined by laws, other normative acts and their own statutes that do not contradict legal norms.
Characteristic features of the administrative legal personality of organizations (Konin N.M.):
1. The administrative legal personality of enterprises is associated with power (state-power) activities (the interests of enterprises are associated with the executive branch). In other words, there is a public interest.
2. These relations are organizational, managerial.
3. Administrative legal capacity is fixed in the norms of administrative law and is implemented in administrative legal relations.
4. Administrative legal personality plays a "transmission" role, in the process of its implementation, civil, labor, financial, land and other relations (registration, application) are set in motion.
General and special status
(state and non-state organizations) - For example, all commercial organizations have a general status, and subjects of natural monopolies - a special one.
1. The general administrative and legal status arises on the following issues: state registration, licensing, quotas, provision of mandatory information and reporting (for taxation, statistics, mandatory accounting), environmental management, labor and employment, sanitary and hygienic and anti-epidemic rules, fire prevention rules, security, antimonopoly law, land use.
2. Special status of state unitary enterprises: establishment, determination of the profile and type of activity, place, allocation of funds, approval of the charter, appointment of a head, conclusion of a contract with him, state order, seizure of property, termination of activity.
Accordingly, the norms of administrative law fix the rights and obligations of organizations, which can be divided into two groups:
Group 1 common rights and obligations for all subjects:
Comply with sanitary, fire-prevention, customs, environmental, antimonopoly and other generally binding rules;
Comply with the rules of registration, licensing, attestation, certification of organizations;
The obligation not to interfere with the exercise of the powers of public authorities in the exercise of control over the activities of the latter;
Certain rights of organizations as subject objects in the exercise of state control and supervision are fixed.
The legal basis should be the Federal Law of August 8, 2001 No. "On the protection of the rights of legal entities and individual entrepreneurs in the course of state control (supervision)".
Organizations in whose existence and development the state is interested can have a special status. For example, small and medium-sized businesses, enterprises employing disabled people, non-profit organizations engaged in socially significant activities (for youth, students, veterans, disabled people, etc.).
There are 3 types (options) of relations between executive authorities and organizations:
1. Horizontal contractual type, when powers are transferred on the basis of contracts or joint structures are created or other agreements are concluded, these are also procedural relations (outsourcing).
2. Vertical relations within the framework of organizational (property) dependence (founder, owner state). Special executive bodies have been created - agencies that carry out the functions of managing state property.
3. Vertical relations outside the framework of organizational dependence (subordination), associated with the functional authority of state bodies - control, supervision, bringing to administrative responsibility.
The annually increasing workload on the courts of general and arbitration jurisdiction makes the problem of developing alternative forms of protection of disputed rights in the sphere of civil circulation more and more urgent, since the active use of out-of-court procedures for resolving legal conflicts contributes to the solution of at least two important tasks. First, to increase the accessibility and effectiveness of justice in civil cases by freeing state courts from a large number of disputes that do not require judicial intervention. Secondly, to ensure more effective protection of rights and freedoms for a significant number of subjects of civil circulation through the use of simple, efficient and less expensive alternative procedures for resolving conflict situations compared to justice. Appeal to alternative methods of dispute resolution is one of the forms of implementation of the constitutional norm, according to which everyone has the right to protect their rights and freedoms by all means not prohibited by law (part 2 of article 45 of the Constitution of the Russian Federation). Expanding the range of opportunities for such appeals in the Russian Federation raises the general level of guarantees for the protection of rights and legitimate interests, and contributes to the development of civilized methods of public self-regulation.
In the literature, alternative dispute resolution is defined as a system of interrelated actions of the parties and other persons to resolve a dispute that has arisen, aimed at its out-of-court settlement or resolution using conciliation or other procedures not prohibited by law, carried out, as a rule, on the basis of the voluntary will of the parties * (214) . Usually, using private law procedures, civil law disputes are resolved in this manner, but out-of-court resolution of a public law dispute in other procedures is also possible, including in the absence of a voluntary expression of the will of the parties, if this is expressly provided for by federal law.
Thus, a dispute over a violation of rights as a result of unlawful actions (inaction) of state authorities, local governments, officials, state and municipal employees, at the discretion of the person concerned, can be referred immediately to the court or to a higher authority in order of subordination, which does not prevent in the future, if necessary, to use the means of judicial protection. However, the pre-trial procedure for resolving a public law dispute can be introduced by federal law and as a mandatory one, as provided, for example, by customs legislation.
Among the alternative procedures for resolving economic disputes, the arbitration court is currently the most developed. In paragraph 1 of Art. 11 of the Civil Code of the Russian Federation, the resolution by an arbitration court of cases under its jurisdiction, on a par with the resolution of cases by a court of general jurisdiction and an arbitration court, is referred to the judicial protection of violated or contested civil rights. Arbitration indeed has similarities with the judicial procedure, however, unlike legal proceedings in state (judicial) authorities, proceedings in an arbitration court are a private law procedure for resolving a dispute, a private law form of protection of civil rights * (215). The transfer of the case to arbitration depends entirely on the will of the parties that have entered into the relevant agreement. It is rather a confidential way of reconciling interests in a dispute that has arisen with the help of mediators elected by the parties in the person of arbitrators, a way of reconciliation on the basis of honesty, decency, mutual trust, and the desire to maintain partnerships.
Within the meaning of Art. 10, 18, 46, 118 of the Constitution of the Russian Federation, judicial protection of rights is carried out exclusively by the state court as an organ of justice and only through certain forms of legal proceedings (constitutional, civil, administrative and criminal). The activity of the arbitration court is not justice, none of the forms of legal proceedings provided for in the Constitution of the Russian Federation is carried out by it. In this regard, in order to avoid confusion in terms, it is not necessary to call proceedings in an arbitration court justice * (216) or legal proceedings * (217). It would be more correct to call it arbitration. In the literature, it is defined as the activity of the arbitration court and the persons participating in the case, regulated by the norms of arbitration law, to consider and resolve a dispute submitted to this court by agreement of the parties that arose from civil legal relations, and the arbitration court - as a special non-state jurisdictional body authorized by the state and the parties to the dispute legal relations to consider and resolve cases on the protection of civil rights and make binding decisions * (218).
Arbitration proceedings can be carried out both by permanent arbitration courts and by "one-time" arbitration courts (ad hoc), which are created each time by the parties to resolve a specific dispute. In terms of the use of arbitration, we are still far behind countries with a developed market economy, in which arbitration courts (arbitrations) resolve from 60 to 90% of business and other economic disputes * (219). Consequently, with the further development of civil circulation in the country, the formation of civil society in the Russian Federation, one should expect a significant expansion of the arbitration form of dispute resolution, primarily in the field of entrepreneurial activity, which practice convincingly confirms.
So, more recently (2004), it was noted in the literature that in Russia there are more than 300 permanent arbitration courts * (220), by 2007 there were already 500 of them, including more than 90 operating at regional chambers of commerce and industry * (221). The pace of further development of the arbitration proceedings can be judged from the interview of the Chairman of the Federal Arbitration Court S.P. Mamontov. The Arbitration Court headed by him was established in May 2007 and consisted of only seven judges at the time of its creation. Less than two years later, it already included 400 judges, in total, the court considered 200 cases, and 17 more cases are being processed. To date, the Federal Arbitration Court has 130 divisions in 38 constituent entities of the Russian Federation * (222).
As practice shows, arbitration courts take on part of the workload of only arbitration courts, while in relation to courts of general jurisdiction, arbitration can hardly be considered a real alternative form of dispute resolution, since it is used extremely rarely in conflicts involving citizens who are not endowed with the status of an entrepreneur. Meanwhile, in accordance with the Federal Law of July 24, 2002 N 102-FZ "On Arbitration Courts in the Russian Federation", arbitration proceedings can be used to resolve civil law disputes not only between business entities. These disputes can arise both between organizations and citizens, and between citizens without the participation of organizations, which in any case, in accordance with the current legislation, does not prevent them from being submitted for resolution by an arbitration court.
This situation is to some extent due to the shortcomings of the previous legislative regulation of arbitration proceedings with the participation of citizens. In accordance with the Regulations on the Arbitration Court, included in the Code of Civil Procedure of the RSFSR of 1964 in the form of Appendix No. 3, it was possible to refer any dispute of citizens to the arbitration court, with the exception of disputes arising from labor and family relations, unless an organization was a participant in it. (Art. 1). At the same time, there were no permanent arbitration courts to resolve disputes between citizens, and the arbitration court had to be organized each time by special agreement of all participants in the dispute (Article 2). There was also no legal financial incentive for potential "one-time" arbitrators, since the trial of cases in arbitration courts should have been free of charge (Article 8) * (223). Accordingly, the legal institution of arbitration of disputes between citizens practically did not work, which did not exclude (does not exclude even now) the activities of illegal arbitration courts, including those of a criminal nature * (224).
Currently, the legislative regulation is different, but the inertia of the previous order has been preserved, although there is potential for the development of arbitration proceedings with the participation of citizens. However, citizens themselves are little aware of the possibilities of arbitration of disputes, and practicing lawyers for the most part are skeptical about it. When considering a civil case in court, judges do not always explain the right to submit a dispute for resolution to an arbitration court, and if they do, it is very formal, without giving arguments about the advantage of this method of resolving the conflict that has arisen. In theory, due attention is also not paid to arbitration with the participation of citizens. After the entry into force of the Federal Law of July 24, 2002 "On Arbitration Courts in the Russian Federation", many proceduralists turned to the institution of arbitration, but they considered it mainly in terms of the problem of the effectiveness of resolving economic disputes in such a private law procedure as an alternative to the arbitration process.
The activities of arbitration courts may become the subject of judicial control, which is carried out by challenging their decisions in a court of general or arbitration jurisdiction (Chapter 46 of the Code of Civil Procedure, § 1 of Chapter 30 of the APC), as well as by these courts resolving the issue of issuing a writ of execution for the enforcement of an arbitration award court (Chapter 47 of the Code of Civil Procedure, § 2 of Chapter 30 of the APC). Permit state courts according to the rules of civil or arbitration procedural legislation and the issue of compulsory securing of a claim considered by an arbitration court (Article 25 of the Federal Law "On Arbitration Courts in the Russian Federation"). In each such proceeding, the court of general jurisdiction and the arbitration court act as a body of judicial power, carrying out through justice the protection of the rights and legitimate interests of the participants in the arbitration proceedings.
In the literature, the opinion is sometimes expressed that the parties to an arbitration proceeding, by mutual agreement, have the right to refuse to challenge the decision of the arbitration court, for which they must fix in the agreement its finality and indisputability. Impossibility of the appeal of the accepted decision * (225) will allegedly be a consequence of such agreement. However, in reality, an agreement to waive the use of a remedy expressly provided by federal law will not have legal force. Any party to an arbitration proceeding, and subject to such an agreement, will be entitled to file an application for the annulment of the award of the arbitration tribunal in a state court. It will not be an obstacle to the consideration of the relevant application by a court of general or arbitration jurisdiction. Otherwise, it would be in conflict with Parts 1 and 2 of Art. 46 of the Constitution of the Russian Federation, which guarantee everyone the right to judicial protection, as well as Art. 3 Code of Civil Procedure and art. 4 of the APC, the rules of which specify the relevant constitutional provisions and do not recognize the validity of the waiver of the right to apply to the court.
By itself, an arbitration agreement between the participants in a disputed legal relationship on the consideration of a dispute in an arbitration court, which is an obstacle to transferring it to a state court, cannot be considered as a waiver of the right to go to court, since this is possible only in cases and in the manner prescribed by federal law. , despite the fact that this procedure provides for subsequent judicial control over the decision of the arbitration court. The corresponding complex of legal relations ensures the realization of the right to judicial protection, the exclusion from it of legal relations with the participation of a state court is unacceptable, including by agreement between the parties to the dispute. This does not mean that the person concerned does not have the right to refuse to file an application for the annulment of the decision of the arbitration court, but the basis for such a refusal will not be the preliminary imposition of the corresponding obligation, but a voluntary expression of will in accordance with the dispositive right to dispose of the subject of the dispute and the procedural means of its protection according to to your own discretion.
To a certain extent, the resolution of conflicts by specially authorized bodies in an administrative or other manner is similar to arbitration proceedings. If we ignore the order of formation of the composition of the relevant jurisdictional body and the grounds for considering the case, they are united by the fact that the decision on the merits of the dispute in all these procedures is taken by some quasi-judicial body. An example of such a specially authorized body for resolving conflicts is labor dispute commissions, which are formed at the initiative of employees and (or) the employer from an equal number of representatives of employees and the employer (Article 384 of the Labor Code of the Russian Federation). The transfer of a dispute for resolution by the appropriate quasi-judicial body may be carried out at the discretion of the person concerned or may be mandatory by virtue of a direct prescription of federal law, which, however, does not limit the rights of the parties to the conflict to judicial protection.
For example, according to Art. 1248 of the Civil Code, in the cases provided for by the Civil Code of the Russian Federation, a mandatory pre-trial administrative procedure for the protection of intellectual property rights is established by the federal executive body for intellectual property, under which a chamber for patent disputes is formed, or by the federal executive body for selection achievements, and for secret inventions - by the federal body executive power authorized by the Government of the Russian Federation. The decisions of these bodies may be challenged in court in accordance with the procedure established by law. The rules for the consideration and resolution of disputes in these bodies are established respectively by the federal executive body in charge of legal regulation in the field of intellectual property, the federal executive body in charge of legal regulation in the field of agriculture, and the authorized body.
In particular, an application for a patent for an invention is filed with the federal executive authority for intellectual property, whose decisions to refuse to issue a patent, to grant a patent, or to recognize an application for an invention as withdrawn may be challenged by the applicant in court only after consideration of his objection filed to the chamber for patent disputes (part 3 of article 1387 of the Civil Code); an application for an invention with an established degree of secrecy is submitted, depending on its thematic affiliation, to the federal executive body authorized by the Government of the Russian Federation, which will be the body for preliminary pre-trial consideration of a dispute arising in connection with such an application (part 6 of article 1401 of the Civil Code).
A mandatory pre-trial procedure for resolving certain disputes in the field of civil circulation is also provided for by other federal laws, in connection with which an opinion is sometimes expressed about the inconsistency of such regulation with the requirement to ensure the availability of judicial protection for each interested person. The answer to the supporters of this approach can be the Ruling of the Constitutional Court of the Russian Federation of November 16, 2000 N 238-O on the complaint of LLP "Ekont" on the violation of constitutional rights and freedoms by certain provisions of Art. 231, 247, 279, 371 and 379 of the Customs Code of the Russian Federation. In support of the decision to refuse to accept the complaint for consideration due to its inadmissibility, the Constitutional Court of the Russian Federation in the reasoning part of the Ruling indicated that the provision of Part 2 of Art. 371 of the said Code, which establishes the rule on the obligatory preliminary filing of a complaint against the decision of the customs authority on the imposition of a penalty to a higher customs authority, is aimed at prompt resolution of conflicts directly in state bodies. It does not prevent the exercise of the right to judicial protection, since the decision of a higher customs authority may be appealed to the court by an interested person.
Nevertheless, the attitude towards the preliminary procedure for resolving disputes as a prerequisite for going to court in theory and practice remains ambiguous, and this affects the position of the legislator, who limits the possibilities of an alternative way of resolving conflicts. Moreover, the legislator, due to an incorrect assessment of the criteria for the completeness of the implementation of the right to judicial protection and its availability, sometimes makes unjustified changes to the already established forms of dispute resolution, which have proven effective in practice.
Thus, in accordance with the previous labor legislation, most individual labor disputes were successfully resolved by labor dispute commissions, which were a mandatory preliminary body for their resolution. However, the new Labor Code of the Russian Federation did not provide for a provision on the obligatory preliminary extrajudicial procedure for resolving conflicts in the field of labor relations by a labor dispute commission. Accordingly, the Supreme Court of the Russian Federation in paragraph 2 of the Decree of the Plenum of March 17, 2004 N 2 (as amended on December 28, 2006 N 63) clarified that a person who considers his rights violated, at his own discretion, chooses the method of resolving individual labor dispute and have the right to immediately go to court * (226). Given that the will of the person concerned to apply to the appropriate jurisdictional body for the resolution of labor disputes is usually formed at such a point in the development of the conflict, when the actions (inaction) of the other party are subjectively perceived as the highest degree of injustice, we can assume an emotional preference for many "offended" appeals not in commission on labor disputes, which includes representatives of the "offender", and immediately to the court. The current legislation clearly encourages such attitudes and actions, significantly reducing the ability of labor dispute commissions to resolve labor conflicts, contributing to an increase in the burden on the courts.
Among the alternative justice procedures for resolving legal conflicts in the field of protection of civil rights in the literature are also called negotiations, a claim procedure for settling disputes, mediation, reconciliation * (227). As a rule, they are used in various combinations with each other. When using them, a decision on the protection of rights is not made, but disagreements are settled, an agreement that satisfies the parties on the subject of the dispute is reached. Accordingly, they can be used as alternative procedures not only to justice, but also to arbitration.
These procedures are aimed at finding a compromise, including with the involvement of experts in a particular area of legal activity as intermediaries. Their skillful use helps prevent the development of a dispute that has arisen into a confrontation, contributes to the preservation of normal relations between its participants. However, in our country they are little used not only in the settlement of disputes between citizens, but also in the field of business, where maintaining partnerships between the disputing parties is of particular importance.
So, E.I. Nosyreva notes that it has become common in business to include a clause in the contract on the settlement of possible disagreements through negotiations, but in the event of a dispute, its participants traditionally go to court, although this leads to significant losses of time and money, to emotional overload and break business cooperation. As reasons for this situation, she rightly cites the stereotypes of Soviet behavior, the lack of ideas on the part of the conflicting parties and their legal representatives about negotiations as an effective way to resolve disputes, as well as the lack of skills in conducting them. In this regard, one should agree with the proposals on the need to develop a domestic theory of negotiations and take measures to introduce the relevant theoretical knowledge and skills, primarily into the professional environment of lawyers * (228). At the same time, it is necessary to more actively use the experience of other countries, for example, the United States, where the practice of resolving conflicts through negotiations has become widespread, there is a holistic theory of their conduct, which is constantly developed and researched by legal science, its study is given paramount importance in the training of lawyers * (229) .
The claim procedure for resolving disputes, unlike negotiations, has legal regulation, is more actively used in practice, and has been studied in detail in theory. It is based on a claim, which is a written appeal of an interested person to a counterparty with a demand to directly restore violated rights without court intervention * (230). Claim proceedings can be carried out independently or combined with negotiations and mediation.
A claim can be filed by an interested person at his discretion in any dispute, but if a claim is provided for by law or an agreement, compliance with the claim procedure becomes a prerequisite for initiating a civil case. If it is not observed, the statement of claim is subject to return, and if a case is initiated without compliance with the relevant condition, the accepted statement will remain without consideration (clause 1, part 1, article 135 and article 222 of the Code of Civil Procedure, clause 7, article 126, part 1, article 128 , paragraph 4, part 1, article 129 and paragraph 2, article 148 of the APC).
Usually, the claim procedure as a mandatory pre-trial procedure for resolving conflicts is used in the field of entrepreneurial activity, the subjects of which are organizations and individual entrepreneurs. However, in some cases, the legislation provides for the mandatory presentation of a claim before the dispute is submitted to the court and under contracts with the participation of citizens. Among the cases for which a mandatory pre-trial claim procedure for resolving a conflict is provided, include, in particular, cases on disputes arising in connection with the provision of transport and communication services. For example, in accordance with Art. 120, 123 of the Charter of the Railway Transport of the Russian Federation (Federal Law of January 10, 2003 N 18-FZ), before filing a claim against the railway that arose in connection with the carriage of cargo or cargo luggage, it is mandatory to file a claim against it, the period for which is set in six months, and in respect of fines and penalties - 45 days.
The role and importance of the claims procedure for resolving disputes, primarily with the participation of organizations in the field of entrepreneurial and other economic activities, is currently ambiguous in the literature. Some authors see it as an effective and efficient way to protect rights, which can significantly reduce the burden on state courts, thereby increasing the availability of judicial protection in cases that really require court intervention. In this regard, it is proposed to return to the procedure for resolving conflicts in the economic sphere that existed before 1995, when it was mandatory for organizations to file a claim before submitting a dispute to court * (231). Others note the negative aspects of the claim procedure, which, in their opinion, can lead to a violation of the rights of interested parties, since after receiving a claim, an unscrupulous debtor has the opportunity to hide his property, making it impossible to enforce a court decision in favor of the creditor in the future. Accordingly, they advocate the restrictive use of the claim as a way to resolve conflicts in the sphere of civil circulation * (232).
Meanwhile, the advantages of the claims procedure for settling disputes are incomparable with its noted shortcomings, which, moreover, look clearly exaggerated. So, A.M. A convincing example of Mosenergo's current claims work is given by the bad ones, as a result of which debtors recover about a third of receivables per year and, accordingly, thousands of disputes from only one organization are not referred to arbitration courts. At the same time, he rightly points to the speed, efficiency, confidentiality, universality of the corresponding procedure, which also has the ability to optimize the functioning of the entire economic mechanism, the ability of the legislator to minimize the manifestation of its negative properties * (233). In this regard, the proposals to intensify the efforts of the legislator to develop decisions aimed at the wider use of the claim procedure as an alternative to justice in civil cases * (234) deserve support.
Mediation as an alternative to litigation, a voluntary form of conflict resolution in the sphere of civil circulation, involves the participation of a third party to assist the parties in reaching a mutually acceptable agreement on a dispute that has arisen between them. Usually it is accompanied by negotiations between the parties, in which the neutral intermediary chosen by them participates, but the possibility of resolving the conflict by an intermediary without such negotiations cannot be ruled out, in particular in the case of territorial remoteness of counterparties from each other. The advantages of mediation in comparison with litigation are the speed of dispute resolution, the lower costs, the simplicity and confidentiality of the procedure, its greater psychological comfort due to the absence of confrontation between the parties, and the minimization of the negative consequences of the conflict on the state of relations between counterparties.
In contrast to other economically developed countries, mediation is poorly developed in our country, there is no clear regulatory regulation * (235). As an element of the system of conciliatory extrajudicial conflict resolution procedures, it is enshrined only in labor legislation for collective labor disputes (Chapter 61 of the Labor Code of the Russian Federation). Civil procedural legislation does not contain references to mediation at all, and in the rules of arbitration procedural legislation it is mentioned when regulating the actions of the court at certain stages of legal proceedings.
So, according to paragraph 2 of part 1 of Art. 135 of the APC, the judge, when preparing the case for trial, explains to the parties their right to seek assistance from a mediator in order to resolve the dispute. When appointing a case for consideration, the arbitration court in accordance with Part 2 of Art. 158 The APC may postpone proceedings at the request of both parties if they seek the assistance of a mediator to resolve the dispute. Obviously, in the above regulations, mediation, which can be used by the parties to resolve the dispute after the initiation of the case in court, is considered as a procedure parallel to legal proceedings. At the same time, in itself, the settlement of the dispute with the help of an intermediary who is not the subject of the arbitration process cannot serve as a basis for terminating the proceedings in the arbitration court. To do this, it is necessary that the plaintiff apply to the court with a statement of refusal of the claim and this refusal was accepted by the court or the parties submitted a settlement agreement, which the court approved (clause 4, part 1 and part 2, article 150 of the APC).
At the same time, despite such legislative regulation, there are no obstacles to voluntarily turning to an intermediary for the purpose of pre-trial settlement of conflicts arising in the field of civil law relations, regardless of whether a particular dispute falls within the jurisdiction of the arbitration court or courts of general jurisdiction. There are no obstacles, by analogy with the arbitration process, for the parties to apply to a mediator in order to resolve the dispute after initiating a civil case in a court of general jurisdiction. Nevertheless, one should agree with E.A. Nosyreva, that in order to more actively use this alternative form of settlement of civil disputes, the right to apply to an intermediary should be directly enshrined in the Code of Civil Procedure and the APC, as is done in relation to arbitration courts, guarantee the confidentiality of mediation, develop and adopt standard procedural procedures based on the experience of other countries. rules of its carrying out * (236).
Considering the problem of mediation as one of the alternative forms of dispute resolution, the Advisory Council of European Judges of the Council of Europe, in its Opinion of 24 November 2004, notes that the relevant legal norms or jurisprudence should give the judge the right to refer the parties to a legally appointed mediator. At the same time, the Council considers it possible for the judge himself to act as an intermediary while maintaining his impartiality, i.e. on those disputes in which the judge does not hear and make a decision. The importance of training in mediation is also emphasized, the acceptability of using a mediator and mediation organizations outside the judiciary, provided that the judiciary can supervise the competence of these mediators or private organizations, as well as the procedure for their involvement in the settlement of the dispute and the cost of mediation *( 237).
Comprehending the above recommendations in the context of the correlation of private law procedures for resolving civil disputes with justice in civil cases, it should be borne in mind that the principles of Russian civil law are freedom of contract, freedom of discretion for participants in civil legal relations in establishing their rights and obligations that do not contradict the law, and the inadmissibility of arbitrary interference by someone -or in private affairs (Articles 1, 9, 421 of the Civil Code of the Russian Federation). With regard to pre-trial mediation, this means the freedom of the participants in a civil dispute in agreeing on options for its settlement with the help of a mediator chosen at their discretion, which does not prevent the subsequent filing of a lawsuit in court in case of refusal to fulfill the terms of the agreement worked out.
When mediation is used as a procedure parallel to justice, upon reaching an agreement, one of the forms of ending the court proceedings in the case is required: making a decision if the result of the settlement was a reduction in the amount of claims by the plaintiff or recognition by the defendant of the claim (Articles 194, 198 of the Code of Civil Procedure, Art. 167, 170 APK); termination of proceedings if, as a result of the settlement, the plaintiff abandoned the claim or the parties entered into an amicable agreement (Article 220 of the Code of Civil Procedure, Article 150 of the APC); leaving the application without consideration if the settlement led to an agreement to refer the dispute to an arbitration court (paragraph 6 of article 222 of the Code of Civil Procedure, paragraph 6 of article 148 of the APC): failure of the parties or one plaintiff to appear at a session of a court of general jurisdiction (paragraph 7 and 8 article 222 Code of Civil Procedure). A significant part of the listed administrative actions of the parties is under the control of the court, since the court of general jurisdiction in accordance with Part 2 of Art. 39 of the Code of Civil Procedure does not accept the plaintiff's refusal of the claim, the recognition of the claim by the defendant and does not approve the settlement agreement of the parties if this is contrary to the law or violates the rights and legitimate interests of other persons. The same regulation is provided for proceedings in an arbitration court (part 5 of article 49 of the APC).
It is noteworthy that the arbitration procedural legislation specifically indicates the court's control over the plaintiff's administrative actions to reduce the amount of claims, while the civil procedural legislation does not contain such an indication. However, a reduction in the amount of claims is a partial waiver of the claim, therefore the wording of Part 2 of Art. 39 of the Code of Civil Procedure does not prevent a court of general jurisdiction, when considering a case on the merits, from agreeing with the will of the plaintiff in cases where this administrative action contradicts the requirements of the law or violates the rights of other persons.
Reconciliation, which is also considered in the literature as an alternative way of resolving disputes to justice, is always the result of certain conciliation procedures aimed at developing a mutually acceptable option for the parties to resolve the conflict that has arisen. Such procedures are negotiations with or without the participation of a mediator, and negotiations or mediation aimed at reconciliation may be preceded by a claim. Conciliation procedures can be alternative not only to civil proceedings, but also to arbitration proceedings.
A.I. Khersontsev notes that in some European countries civil proceedings cannot be initiated if the parties have not turned to alternative procedures in order to possibly achieve reconciliation * (238). Such a procedure, if widely introduced in our country, could also not be considered as violating the right to judicial protection, since if reconciliation is not achieved, the person concerned has the opportunity to defend his rights with the help of the court. However, Russian legislation establishes conciliatory out-of-court procedures as mandatory only for collective labor disputes.
At the same time, the modern civil and arbitration procedural legislation of Russia pays serious attention to the reconciliation of the parties after the dispute has arisen in court. In particular, the Arbitration Procedure Code has a special chapter (15) devoted to conciliation procedures and a settlement agreement, the reconciliation of the parties in civil and arbitration proceedings is one of the tasks directly enshrined in the law of preparing a case for trial, but reconciliation is possible due to the current legal regulation and at all subsequent stages of legal proceedings, as well as in the execution of court decisions.
An analysis of the procedural rules that establish the rules for concluding a settlement agreement, especially when preparing a case for trial, allows us to conclude that the court itself, represented by a single judge or a panel of judges, acts as the main mediator between the parties to the dispute in order to achieve reconciliation. This does not exclude the possibility of other mediators participating in conciliation procedures, but, as already noted, such mediation will be outside the scope of civil or arbitration proceedings. The task of reconciliation of the parties arises before the judge immediately after the acceptance of the statement of claim. Its implementation requires the court, as a specific mediator in resolving the dispute, not only to understand the essence of the legal conflict that has arisen, but also to understand the motivation of the plaintiff and the defendant, the personality characteristics of both, their internal psychological mood. Accounting for these factors is necessary to select specific ways to influence the minds of the warring parties in order to form their mutual desire to end the legal conflict that has arisen with a settlement agreement.
At the same time, the right to end the case with an amicable agreement belongs exclusively to the parties themselves, and it is associated with the disposability of civil proceedings, according to which the parties are free to dispose of their material rights and procedural means of their protection. They could resolve the substantive dispute by mutual agreement even before it was brought to court, but they failed to do this, which indicates the depth of the conflict that arose, the presence of significant contradictions between the parties. However, for the court to end the case by amicable agreement of the parties, as a rule, is the desired option for completing the process. In this case, if the administrative actions of the parties do not contradict the law and do not violate the rights of other persons, not only are the provisions of Art. 2 Code of Civil Procedure and Art. 2 of the APC are the ultimate goals of civil proceedings, but also significantly save the time and effort of the judges themselves. Such "interest" of the court in completing the process by amicable agreement of the parties is fraught with some dangers.
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