Production cooperatives briefly. What is a production cooperative and its legal status. Federal Law on production cooperatives

AT modern conditions ever-increasing cooperation of states, a significant number of private law disputes arise, complicated by a foreign element ( cross-border disputes), submitted to the courts of a particular state. In addition to resolving disputes, judicial intervention often requires other issues of a private law nature with the participation of foreign persons(establishment of a legal fact, adoption, recognition of a person as missing).

The legal norms united by the term international civil process.

Peculiarities of legal proceedings in civil cases, in which foreign citizens and organizations participate or which otherwise associated with a foreign country are governed by the norms of international civil procedure (international civil procedural law). The term "international" in this case is arbitrary, since we are not talking about international, supranational, courts, but about the consideration of civil cases by the courts of one state or another, in Russia - by Russian courts.

civil procedure – it is the legally regulated activity of courts and other law enforcement agencies to resolve civil cases.

International civil process- is regulated by the unified norms of international treaties and the norms of national law public law activity of the court and other law enforcement agencies to resolve civil cases complicated by a foreign element.

International Civil Procedure (ICP) is set of procedural rules regulating the procedure for consideration of civil disputes, related to the rule of law of two or more states.

The term "international civil procedure" is conditional - the word "international" has the same meaning as in PIL: it means the existence of a private law relationship associated with a foreign legal order.

Communication with a foreign state is usually expressed in the complication of a civil legal relationship, one or another foreign element.

or need interrogate a witness living abroad or request from abroad documents issued by foreign authorities. The Russian court generally may not conduct the main proceedings in a civil case, but only carry out an order.

Subject of IHL regulation– an international private law dispute or other question private law, requiring judicial intervention. The subject is characterized by a number of elements:

International - complicated by a foreign element

Private law - a dispute over civil or commercial affairs(civil and commercial matters); two positions - the Anglo-Saxon system division into a) civil and commercial b) public affairs); the Romano-Germanic system - everything belongs to civil affairs.

Dispute - a disagreement between the parties of a private law relationship, formalized in the form of mutual claims.

INTERNATIONAL CIVIL PROCESS

Scope of IHL:

1. international jurisdiction;

2. civil procedural status of foreign persons, states, organizations

3. forensic evidence;

4. solution the question of applicable law;

5. establishment content, interpretation and application of foreign law wa;

6. execution of orders;

7. recognition and enforcement court decisions;

8. enforcement of foreign arbitral awards.

(Notary actions)

Legal nature of IHL is controversial issue:

1) PGM is a sub-sector of PPP

This position was adhered to in the pre-revolutionary domestic doctrine,

determination of the competent law is carried out by the court by resolving the conflict problem

first, the issue is resolved in the MChP on the choice of court one state or another. The Anglo-Saxon system of law adheres to a similar concept. A similar position is held by Anufrieva, Neshataeva (Institute).

IHL norms are incorporated into PIL laws.

2) IHL is an institution of national civil procedure

This approach is typical for the Soviet and modern domestic doctrine, since the court applies the norms of procedural national law. This comes from the principle of lex fori. A similar position is taken by Treushnikov and Yarkov.

3) IHL is a branch of PIL as a science

Dmitrieva, Boguslavsky, Lunts. This is due to the close relationship IHL governing cross-border civil procedural relations , with PIL norms regulating material private law relations, complicated by a foreign element. The term "international" is conditional, since it does not mean activities international judicial and arbitration bodies . It only indicates the presence of a foreign element in these legal relations.

4) IHL is an independent industry international law, along with MChP and WFP

This is the position of Galenskaya, Yablochkov. The norms of IHL cannot be included in the normative structure of PIL according to objective criteria: another subject of regulation (they do not regulate private law relations themselves, complicated by a foreign element , and the activities of the court in resolving disputes with a foreign element). She points out that there is also no conflict problem in the choice of law. Court and other law enforcement bodies when considering disputes follow their own procedural rules and do not apply foreign law .

5)IHL is a branch of national law

Characteristic features of IHL:

IHL is of a public law nature, since it is power activity courts for the administration of justice in cross-border civil cases (participants in the process are subordinate)

IHL is extraterritorial in nature ( interconnection and interaction of judicial systems)

The purpose of IHL is to resolve a dispute of a private law nature or other private law matter requiring judicial intervention.

1) national legislation

APK RF 2002

Code of Civil Procedure of the Russian Federation 2002

RF IC 1995

Federal Law "On Arbitration Courts in Russian Federation" 2002

Regulations of the ICAC at the Chamber of Commerce and Industry of the Russian Federation

2) international treaties

- 1993 CIS Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters

2002 CIS Chisinau Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters

Kiev Agreement of the CIS of 1992 on the procedure for resolving disputes related to the implementation economic activity

1954 Hague Convention on Civil Procedure

Civil Code of 1961, abolishing the requirement of legalization of foreign public documents

Civil Code of 1965 on the service abroad of judicial and extrajudicial documents in civil and administrative cases

Civil Code of 1970 on obtaining evidence abroad in civil and commercial cases

Civil Code of 1980 on international access to justice (do not participate)

1988 Lugano Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (not participating)

2005 Hague Convention on Choice of Court Agreements (not participating, not yet entered)

1958 New York Convention "On the Recognition and Enforcement of Foreign Arbitral Awards"

Bilateral agreements of the Russian Federation - about 40 Russian Federation on legal assistance

The international civil procedure is an independent part of the PIL system and is included in its structure

PIL and IHL have a common origin, close interaction and interdependence. In both cases, pursued the goal is to make foreign law acceptable to the local legal order.

PIL and IHL have common substantive, conflict and procedural institutions:

1. National regime in the sphere of civil and civil procedural legal capacity (Article 62 of the Constitution of the Russian Federation, Article 1196 of the Civil Code of the Russian Federation, Article 254 of the Arbitration Procedure Code of the Russian Federation, Article 398 of the Code of Civil Procedure of the Russian Federation).

2. Immunity of the state and its property (Article 251 of the Arbitration Procedure Code of the Russian Federation, Article 401 of the Code of Civil Procedure of the Russian Federation).

3. The connection of judicial evidence with substantive law and conflict problems. The problem of judicial evidence in the aspect of IHL covers issues substantive law, with respect to which conflict problems arise.

4. The procedural institution for establishing the content of foreign law in the closest possible way associated with the application, interpretation and qualification of conflict of laws rules (Article 1191 of the Civil Code of the Russian Federation, Article 14 of the Arbitration Procedure Code of the Russian Federation).

6. The institution of a public order clause (Article 1193 of the Civil Code of the Russian Federation, Articles 412,417 of the Code of Civil Procedure of the Russian Federation, Article 244 of the Arbitration Procedure Code of the Russian Federation). The public policy clause has a different meaning in IHL than in PIL. The main scope of the reservation in IHL is the provision of legal assistance, the recognition and enforcement of foreign judicial and arbitral decisions (Articles 412.417 of the Code of Civil Procedure of the Russian Federation, Article 244 of the Arbitration Procedure Code of the Russian Federation).

The principle of "the law of the court" in IHL is its foundation, the central core. The universally recognized beginning of the national civil process - application of only one's own procedural law, including when considering cases with a foreign element .

Generally accepted exceptions: determination of the civil procedural capacity of foreigners according to their personal law; the possibility of applying foreign procedural rules in connection with the execution of foreign letters of request.

grounds application of foreign procedural law are not the norms of national laws, but the provisions of international treaties.

The international civil procedure is understood as a set of procedural rules governing the consideration by the courts of civil cases on legal relations with a foreign element.

The word "international" is conditional - in essence, we are not talking about international, but about national law, only partially unified in international treaties. This term reflects the specifics of the consideration of civil cases with a foreign element, related to a foreign state and having an international connotation in this sense.

The place of the international civil procedure is ambiguously assessed in the doctrine. Here plays the role of his gravitation to both the civil process and private international law. It is brought closer to private international law by the foreign characterization of the legal relations considered by the courts, the significant role of international treaties, and the influence of the categories of international law. For example, the problems of determining the applicable law (the area of ​​private international law) and international jurisdiction (the area of ​​the process) are closely related. In the international treaties of the Russian Federation, the relevant rules are inseparable. The connection between private international law and international civil procedure is also manifested in legislation; in a number of foreign states laws on international private law are in force, where the issues of the process are also reflected. The draft law on private international law developed in our country and published in due time was based on the same position.

The connection with the norms of this branch of law is, indeed, as noted above, great: civil relations, legally related to various legal orders, are difficult to separate from the means of protecting the corresponding rights and obligations. Recently, in some textbooks, for example, Anufrieva L.P. it is argued that the area under consideration belongs to private international law. But in the literature there are other points of view, for example Marysheva N.I. notes that the rules of international civil procedure still cannot be considered an integral part of private international law. In essence, they are a special part of civil procedural law that regulates the activities of justice bodies in considering civil cases. The Code of Civil Procedure regulates the main aspects of the international civil process, namely:

1) civil procedural legal capacity and legal capacity foreign citizens, stateless persons, procedural legal capacity of foreign organizations and international organizations;

2) cognizance of cases in disputes involving a foreign element;

3) claims against foreign states and international organizations, diplomatic immunity;

4) execution of court orders of foreign courts and appeal of the courts of the Russian Federation with orders to foreign courts;

5) recognition and enforcement of decisions of foreign courts and arbitrations.

The inclusion in the new Code of Civil Procedure of the Russian Federation and the Arbitration Procedure Code of the Russian Federation of sections devoted to the consideration of civil cases with a foreign element (significantly expanded compared to the previous regulation) means that the norms of these sections fall under the main principles of the Russian civil (arbitration) process enshrined in the codes and closely interact with all other codes of practice. Each of the areas provides specific tasks, complementing and enriching each other. In your answers, you can adhere to any point of view, arguing your opinion.

Let's define the sources of the international civil process. The sources of the international civil process are international treaties, as well as domestic (national) legislation.

The domestic legislation of states in this area is different, which is largely due to differences in the civil process itself: different approaches to the adversarial principle, means of proof, etc. Broad unification is therefore difficult. However, this does not detract from the importance of international agreements on key issues of the international civil process. One can point, in particular, to the Convention on Civil Procedure developed by the Hague Conference on Private International Law, the first edition of which was adopted back in the 19th century, and subsequently repeatedly updated up to latest edition 1954 Since 1967, our country has been participating in the Hague Convention of March 1, 1954 on civil procedure. on civil and commercial cases of November 15, 1965 and on obtaining evidence abroad in civil and commercial cases of March 18, 1970. They were adopted in the development of the 1954 Convention mentioned above and replace many of its provisions.

Attempts to unify the norms of civil
of this process are being undertaken.

Yes, American legal institution and UNIDROIT developed a draft of the International Rules of Civil Procedure, where, in particular,
questions of international jurisdiction.

Within the framework of the Hague Conference on Private International Law, a draft new general convention on jurisdiction and foreign judgments in civil and commercial disputes is being developed, where an attempt is made to find solutions acceptable to many countries, not only European ones.

As for Russian legislation as a source of international civil procedure, it has undergone major changes in the last decade. New Civil Procedure and Arbitration Procedure Codes were adopted. The reform of procedural legislation meets the needs of our country's movement towards legal integration into the world community. The process of improvement cannot, however, be considered complete - the methods for resolving individual issues are not always optimal, differences remain in resolving issues of general importance in the international civil procedure in the APC of the Russian Federation and in the Code of Civil Procedure of the Russian Federation.

Speaking about Russian legislation, we must first of all keep in mind the specifics of our judicial system: issues of international civil procedure arise when cases are considered by courts of both general jurisdiction and arbitration (economic). The latter are part of the federal judicial system and form its independent branch (Article 127 of the Constitution of the Russian Federation). According to Russian laws, the division of jurisdiction is as follows; cases involving foreign citizens, stateless persons, foreign organizations, organizations with foreign investments, international organizations considered by courts of general jurisdiction. However, they are not competent to consider economic disputes of these foreign persons and other cases with their participation, referred by law to the jurisdiction arbitration courts.

At the same time, courts of general jurisdiction proceed from the norms of the Code of Civil Procedure of the Russian Federation, and arbitration courts - from the rules of the Arbitration Procedure Code of the Russian Federation, taking into account the peculiarities of the cases considered by these courts.

In the Code of Civil Procedure of the Russian Federation, the rules on the procedural status of foreign persons and a foreign state, international jurisdiction, execution of letters of request, recognition and enforcement of foreign judgments are concentrated in sec. V. This section is much more complete than the corresponding section of the RSFSR Code of Civil Procedure of 1964 (20 articles instead of seven). For the first time, issues of civil procedural legal capacity and legal capacity, international jurisdiction (the articles on jurisdiction now constitute an independent chapter), issues of recognition and enforcement of foreign judicial and arbitral decisions (the only article in the Code of Civil Procedure of the RSFSR of 1964 was replaced by an independent chapter) were directly resolved.

Arbitration (economic) courts apply the rules of Ch. 31-33 of the Arbitration Procedure Code of the Russian Federation, which regulates in detail (but sometimes differently than in the Code of Civil Procedure of the Russian Federation) the features of consideration of cases involving foreign persons, the competence of arbitration courts (international jurisdiction), the enforcement of decisions of foreign courts and foreign arbitral awards.

The regulation of international civil procedure in the Codes does not exclude the operation of special rules contained in other federal laws, for example, in the Federal Law of July 25, 2002 "On the legal status of foreign citizens in the Russian Federation ».

For those and other courts, the rules of the Federal Constitutional Law of December 31, 1996 “On the Judicial System of the Russian Federation”, the Federal Law “On Enforcement Proceedings” of 2007 are also important. the federal law"On Arbitration Courts in the Russian Federation" 2002

Appeal to international procedures follows from the Constitution of the Russian Federation and the relevant rules of international treaties in which Russia participates. The regulation of procedural forms of protection of private rights at the international level goes beyond the national regulation of the international civil process, but is interconnected with it.

The sources of international civil procedure include treaties of Russia with foreign states, as well as international treaties of the USSR in force in Russia as the legal successor of the USSR. Among bilateral agreements, first of all, we should mention agreements on legal assistance in civil, family and criminal cases, concluded, in particular, with Albania, Algeria, Argentina, Bulgaria, Hungary, Vietnam, Greece, Egypt, India, Iraq, Iran, Spain, Italy , Yemen (PDRY), Cyprus, China, North Korea, Cuba, Mongolia, Poland, Romania, Tunisia, Finland, Czechoslovakia (now the Czech Republic and Slovakia), as well as with a number of CIS and Baltic countries. There are other bilateral treaties that address certain issues of international civil procedure.

In relations between the CIS countries, the role of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters, signed by all Commonwealth countries in Minsk on January 22, 1993, is especially important (some amendments to the Convention were made by the Protocol of March 28, 1997). The Convention provides, on the one hand, the protection in the courts of these countries of citizens of the CIS countries and other persons (i.e. persons who are not their citizens), if they live in a participating country, as well as legal entities; on the other hand, clear and reliable legal cooperation between courts and other institutions of justice. The Convention covers a wide range of issues of cooperation in the field of civil procedure: legal protection of citizens and legal entities, execution of instructions from institutions of justice, validity of documents, provision of information on the law, delimitation of the competence of courts, recognition and enforcement of foreign judgments, as well as issues of application of law (mainly conflict rules) and issues of criminal procedure.

For arbitration (economic) courts of the CIS countries, the Agreement of the Commonwealth countries on the procedure for resolving disputes related to the implementation of economic activities, dated March 20, 1992, is of great importance. In this international treaty issues of legal protection of economic entities (legal entities and citizens-entrepreneurs) are resolved, the competence of general and arbitration courts considering their disputes is delimited, mutual recognition and enforcement of decisions made by the courts of one of the participating countries on the territory of other participating countries are resolved, issues of the subject application of the law and provision of information about the law. Unlike the 1993 Minsk Convention, which refers to any civil law disputes, this agreement covers only disputes related to the implementation of economic activities.

In the science of PIL under IHL usually understood a set of procedural issues related to the protection of the rights of foreigners and foreign legal entities in court. These are issues of access of foreign persons to justice, their position in the process, international jurisdiction, the provision of legal assistance by courts and other justice bodies of states to each other, the collection of evidence, the establishment of the content of foreign law, the recognition and enforcement of foreign judgments, the performance of notarial acts designed to serve as security the rights of domestic citizens and legal entities. persons abroad. According to other understanding, IHL is a comprehensive institution of PIL that regulates the relationship and interaction of national and international procedures defined in the procedural rules aimed at protecting and establishing civil rights (T.N. Neshataeva).

Along with judicial order adjudication of disputes usually to IHL also include issues of dispute resolution by way of arbitration(in the so-called arbitration courts).

According to the prevailing point of view in Russian doctrine the term "IHL" is purely conditional , since we are not talking about some kind of international consideration of a specific case and since there is no international universal organization designed to consider disputes between subjects (parties) from different states. Sometimes this term is used instead a better term is " international GSP ", which could be understood as a set of legal principles and norms of a procedural nature, both common to states, determined by international agreements, and directly established by the legislation of each country.

Procedural law in the legal system of each state traditionally refers to public law, since here we are talking about vertical relations. In Russian doctrine it is noted that intrastate the rules governing IHL should be attributed to the branches of procedural law- GPP and arbitration procedural law (V.P. Zvekov), while indicating that IHL rules have a different subject of regulation than PIL rules: they regulate not the private relations themselves, complicated by a foreign element, but the activity of the court in resolving civil cases in which such an element is present ( G.K. Dmitrieva, N.I. Marysheva, A.G. Svetlanov).

This is especially evident in the activities government agencies that carry out the recognition and enforcement of foreign judgments, as well as in the activities of a notary. Noting the fundamental differences that exist between public and private law, should not be ignored and close relationship between PIL and IHL , because the the solution of the conflict problem also depends on the preliminary solution of the procedural problem of the choice of jurisdiction(problems of choice of law), and thus the substantive problem of regulating civil law relations with a foreign element. Besides, the fact that in procedural relations, horizontal relations also acquire significant importance: between parties in property, economic, family, labor and other disputes. AT international life the role of such horizontal relations is increasing due to the fact that the parties to the dispute have choice(albeit within certain limits) as the most dispute resolution procedure(in the state or in the arbitration court), and the possibility of concluding an agreement to change the so-called. tribal or territorial jurisdiction. This is one of the grounds for referring IHL to PIL as branches of law . Another reason put forward by the supporters of this point of view (L.P. Anufrieva) is that in the field of PGM, traditional concepts and institutions for PGM are used, the same as in other sections of the PIL (application of the principles of citizenship and domicile in relation to individuals, principles of incorporation, location and other criteria for determining the nationality ("nationality") of legal entities, etc.).

In modern conditions, a close relationship, existing between conflict and substantive law, one side, and procedural- with another, implemented in the field of PIL both in international agreements and in domestic legislation. This approach was shown in the Bustamante Code. As for domestic law, for example, The PIL Law of Switzerland, which contains the rules of both conflict of laws and procedural law. Such A complex approach characteristic of the latest codifications in the field of PIL Italy, Georgia, Venezuela and other states. This approach to solve the problem of regulation seems to be more preferable , and it is no coincidence that the newest legislative acts a number of states. This is explained primarily by the relationship that exists between the solution of issues of application of law and issues of a procedural nature that arise in the practice of courts when considering disputes with a so-called foreign element. With these different approaches IHL can be viewed as constituent part PILas a branch of law .

Concerning foreign states, then in common law countries (England, USA, Canada, Australia, India, South Africa, etc.) inclusion of IHL in PIL does not pose a problem due to the traditional approach to PIL as a primarily procedural law.

Row European states answers to this issue was included directly in their national legislation on PIL(e.g. the Hungarian PIL law). In this regard, it is significant Swiss PIL Law 1987, which establishes the scope in an unambiguous way: a) the competence of the Swiss courts or authorities; b) applicable law; c) a prerequisite for the recognition and enforcement of foreign judgments; d) arbitration and jurisdiction.

In Germany PIL constructed principle as a conflict law, therefore, answers to procedural questions should be obtained with the help of the norms of the GPP of Germany. However, in view of the noted close connection between relations regulated by PIL with procedural aspects, some textbooks and courses by German authors on PIL contain sections on IHL. Meanwhile in Germany in recent years another is growing trend: allocation of IHL as a special branch of law (along with MCHP) - international GPP (Shak K.).

Just in Case: IHL Rules contained in numerous universal and regional conventions , as well as in bilateral agreements on legal assistance, consular conventions and other agreements. Toward universal multilateral conventions applies Hague Convention on Civil Procedure 1954 Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, 1965; Convention on the Taking Abroad of Evidence in Civil or Commercial Matters, 1970; Convention Abolishing the Requirement of Legalization for Foreign Public Documents, 1961 These conventions operate for many states, including Russia.