Aleksey Panov1
Procedural Violations as a Cause for Incorrect Court Acts
2013.
No. 3.
P. 118–124
[issue contents]
Panov Alexey - Research Fellow, National Research University Higher School of Economics, Candidate of Juridical Sciences. Address: 20 Myasnitskaya Str., Moscow, 101000, Russian Federation. E-mail: alex@panov.in.
The article studies the questions of proper notifying a person when examining a case on an administrative offence. The analysis of court practice has shown the tendency when judges reveal the absence or presence of people when trying administrative cases that makes the procedure more challenging. The analysis of specific court cases of arbitral courts revealed blanks in the applicable laws including RF CoAP. The paper analyzes case practice in particular the decision of the RF Supreme Arbitration Court of August 12, 2003 # 1242/03 admitting the possibility to make up a document on an administrative offence in the absence of a legal representative of a legal person even though the requirement of notification is available. The author makes a conclusion that the requirement of RF KoAP on the participation in procedural actions of a legal representative hinders the efficient implementation of its right to defence for a legal person. The practice shows that the document on an administrative offence or decision on a case on administrative offence is witnessed by persons who are not legal representatives. They are not authorized to represent its interests. Hence, the decisions based on such documents are deemed illegal in court. The court frequently recognizes these decisions illegal and cancels the decision on the imposition of administrative sanctions against legal persons as the administrative body notifies on the time and place of taking proceedings not the legal persons but their departments. The author suggests modifying art. 25.4 of RF KoAP as to legal representatives and the representatives of a legal person. In particular, it is supposed that under RF KoAP, legal representatives of a legal person are its principal and another managing body (an official) entitled to act on behalf of a legal person without power of attorney.
The article studies the questions of proper notifying a person when examining a case on an administrative offence. The analysis of court practice has shown the tendency when judges reveal the absence or presence of people when trying administrative cases that makes the procedure more challenging. The analysis of specific court cases of arbitral courts revealed blanks in the applicable laws including RF CoAP. The paper analyzes case practice in particular the decision of the RF Supreme Arbitration Court of August 12, 2003 # 1242/03 admitting the possibility to make up a document on an administrative offence in the absence of a legal representative of a legal person even though the requirement of notification is available. The author makes a conclusion that the requirement of RF KoAP on the participation in procedural actions of a legal representative hinders the efficient implementation of its right to defence for a legal person. The practice shows that the document on an administrative offence or decision on a case on administrative offence is witnessed by persons who are not legal representatives. They are not authorized to represent its interests. Hence, the decisions based on such documents are deemed illegal in court. The court frequently recognizes these decisions illegal and cancels the decision on the imposition of administrative sanctions against legal persons as the administrative body notifies on the time and place of taking proceedings not the legal persons but their departments. The author suggests modifying art. 25.4 of RF KoAP as to legal representatives and the representatives of a legal person. In particular, it is supposed that under RF KoAP, legal representatives of a legal person are its principal and another managing body (an official) entitled to act on behalf of a legal person without power of attorney.
Citation:
Panov A.(2013) Protcessual'nye narusheniia — prichina priniatiia nepravil'nogo sudebnogo akta [Procedural Violations as a Cause for Incorrect Court Acts]. Pravo. Zhurnal Vysshei shkoly ekonomiki, no 3, pp. 118-124. (in Russian)
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