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Clarifications of the RF Supreme Court on application of the provisions of the RF Code of Civil Procedure and Arbitrazh Procedure Code on writ proceedings

On 27.12.2016 the Plenum of the Supreme Code of the RF (hereinafter – “the Supreme Court”) adopted Resolution No.62 “On some issues connected with application of the provisions of Code of Civil Procedure and Arbitrazh Procedure Code of the RF on writ proceedings” (hereinafter – “the Resolution”).

The following issues are resolved and clarified by the Resolution, namely:

1. Pre-trial dispute resolution in writ proceedings is not required (Clause 7 of the Resolution).

Claims that are subject to writ proceedings are considered to be undisputed and recognized by the debtors. Hence Part 5 of Article 4 of Arbitrazh Procedure Code of the RF (hereinafter – “the APC RF”) on mandatory pre-trial dispute resolution is not applicable in writ proceedings.

2. The following claims, inter alia, are not subject to consideration in writ proceedings (Clause 12 of the Resolution):

  • on termination of the contract;
  • on compensation of losses caused by breach of contract;
  • on compensation for moral damage;
  • on invalidation of a transaction;
  • of creditors on monetary obligations and on compulsory payments, except for current payments, from the date of relevant bankruptcy proceedings.

3. Application for granting of the execution writ («sydebny prokaz») is not subject to leaving without an action, without consideration, and writ proceedings can not be terminated (Clause 19 of the Resolution).

If the claimant fails to comply with the requirements for an application for granting of the writ, the application is returned by the court, and the claimant has no opportunities to eliminate disturbances.

4. The Procedure for filing cassation appeals to the writ is clarified (Clause 42 of the Resolution).

Code of Civil Procedure of the RF (hereinafter – “the CCP RF”) as well as the APC RF provide for different procedure of cassation appeal in writ proceedings. Provisions of the CCP RF provide for filing of the cassation appeal to the writ with the cassation instance court (Clause 2 of Part 2 of Article 377 of the CCP RF), while the APC RF provides for filing of the cassation appeal to the writ with the court of first instance. The Supreme Court has clarified that breach of the established procedure for filing cassation appeal to the writ will not be considered as the basis for returning the cassation appeal.

5. The amount of the penalty in writ proceedings shall not be reduced on the basis of Article 333 of the Russian Civil Code (Clause 25 of the Resolution).

Since it is summarized theat the debtor in writ proceeding recognizes all claims, the Supreme Court once again highlighted the indisputable and integrity nature of claims in writ proceedings.

We suppose that the adoption of the Resolution by the Supreme Court will contribute to filling loopholes in procedural legislation in part of rules concerning writ proceedings and lead to the development of common approach to consideration and resolution of cases in writ proceedings.

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