“At the location”: the Supreme Court dealt with contractual jurisdiction

“At the location”: the Supreme Court dealt with contractual jurisdiction

On November 7, 2021, Mikhail Solovyov* took a Skoda Rapid from the Yandex.Drive car sharing service. He parked the rented car on the lawn, thereby violating Art. 8.25 Code of Administrative Offenses of Moscow. A fine of 300,000 rubles. came . She paid for it, and later decided to recover this amount from Solovyov as damages.

The car rental agreement included a clause stating that disputes would be resolved at the location of the lessor. When the parties entered into an agreement, the Yandex.Drive office was located in one district of Moscow, but by the day the claim was filed, the company had moved. The new address - Sadovnicheskaya embankment, 75 - fell under the territorial jurisdiction of the Zamoskvoretsky District Court. That's where the landlord turned.

But the Zamoskvoretsky District Court did not consider the claim, returning it to the applicant. It does not follow from the agreement that the parties agreed to transfer the case to a specific court. And the wording “at the location of the plaintiff” itself cannot be regarded as an agreement to change territorial jurisdiction, the district court explained its decision.

The Moscow City Court agreed with this approach. He noted that otherwise jurisdiction could be changed repeatedly and arbitrarily without the participation of the tenant. The second cassation court supported the conclusions of the lower authorities, after which Yandex.Drive appealed to the Supreme Court.

Position of the Supreme Court

The claim is filed in court at the place of residence (location) of the defendant, the trio of judges chaired by Sergei Astashov recalled the provision of Art. 28 Code of Civil Procedure. In turn, the parties may, by agreement among themselves, change the territorial jurisdiction. Such an agreement may be included in a civil contract, including a contract of adhesion.

At the same time, jurisdiction can be changed either by indicating a specific court or by referring to the fact that disputes are subject to consideration at the location of one of the parties - the plaintiff or the defendant, the Supreme Court emphasized.

Thus, Yandex.Drive filed a claim under the jurisdiction established by the agreement. Soloviev did not dispute the condition regarding it, nor did he object to the consideration of the case in the Zamoskvoretsky District Court, the judges noted. They canceled the acts of the lower courts and sent the material to the first instance to resolve the issue of accepting the claim (No. 5-КГ20-142-К2).

Expert opinion

The conclusion that to change jurisdiction it is enough to refer to the consideration of the dispute at the location of one of the parties is not new. A similar position was previously expressed by the Supreme Court itself (for example, case No. 5-KG20-127-K2). However, judicial practice on this issue is still not so clear (No. 33-24849/2020, No. 33-11810/2020 and others). The position of the Supreme Court in the Yandex.Drive case should serve as a guideline for its uniformity, Nurida Ibrgimova from NUS National Legal Service AMULEX National Legal Service AMULEX Federal rating is sure. .

In turn, senior partner of the law firm Borodin and Partners Borodin and Partners Federal rating. Group Dispute Resolution in Courts of General Jurisdiction Group Criminal Law Oleg Sklyadnev draws attention to another important aspect of the definition. In the Yandex.Drive case, the Supreme Court confirmed that it is possible to change the rules of jurisdiction under an adhesion agreement, despite the fact that one of the parties cannot influence its terms. However, at the same time, the civil panel recognized that the “joined” party has the right to object in court to certain terms of such an agreement (including changes in jurisdiction), the expert adds.

*Name and surname have been changed by the editors.

• Kira Klimacheva

How to bring a claim against a debtor under the new rules if there is no identifying information about him?

S.A. Tokmina, author of the answer, legal consultant at Askon

QUESTION

From October 1, passport data (SNILS, etc.) is required to issue court orders. What should management companies do if there is no such data? What to do if there is joint ownership of apartments?

For example, 5 people are registered in an apartment. Previously, we filed jointly, but now, for example, we know the details (passport) of one citizen, and we will file only for him.

Is it possible to file a lawsuit against a citizen without a court order if we do not know his data, and then petition the court to request the necessary data? Does the court have the right to refuse?

ANSWER

Currently, the legislation does not yet provide for how companies can obtain this information about debtor citizens.

While bills eliminating the occurrence of negative consequences and unjustified denial of access to justice for management companies have not been adopted, I believe that the management company can file a claim without a court order against a citizen (without indicating the necessary identification data) and petition the court to request the data citizen. However, it is not possible to provide an unambiguous forecast as to whether the court will refuse such a petition, since law enforcement practice on this issue has not yet developed.

From October 28, 2021

There is no need

to fulfill this obligation until
March 30, 2021 . Corresponding changes have been made to the Code of Civil Procedure. During this period, the previous rules regarding information about debtors (defendants) will apply:

• in the application for the issuance of a court order, you must indicate your full name. and place of residence of the debtor citizen, as well as date and place of birth, place of work, if known;
• in the statement of claim - full name. and place of residence of the defendant citizen.

JUSTIFICATION

Today, when going to court in order to collect from a citizen a debt to pay for housing, pay a contribution for major repairs and pay for utilities, HOAs, residential complexes, management companies, RSO and regional operators are required to indicate the name of the defendant (debtor) and his place of residence.

In accordance with clause 3, part 2, art. 124 of the Code of Civil Procedure of the Russian Federation in the previous version, when filing an application for a court order, it should have indicated the name of the debtor, place of residence or location, and for a citizen-debtor, also the date and place of birth, place of work (if known). Indicating in the application information about the date, place of birth and place of work of the debtor significantly simplifies the procedure for executing a court order, since the erroneous identification of a citizen as a debtor is excluded.

When filing a statement of claim with the court, it records the name of the defendant, his place of residence or, if the defendant is an organization, its location (Clause 3, Part 2, Article 131 of the Code of Civil Procedure of the Russian Federation).

According to Federal Law No. 451-FZ of November 28, 2018, which came into force on October 1, 2019, the list of information about the debtor that must be provided in the application is expanding.

Based on clause 3, part 2, art. 124 and paragraph 3, part 2, art. 131 of the Code of Civil Procedure of the Russian Federation in the new edition, the application will need to indicate the following information about the debtor citizen:

• last name, first name, patronymic (if available);
• location;
• date and place of birth, place of work (if known);
• one of the identifiers (SNILS, INN, series and number of an identity document, main state registration number of an individual entrepreneur, series and number of a driver’s license, series and number of a vehicle registration certificate).

However, the persons managing MKD, RSO, regional operators do not have the above information - citizen identifiers, and there is also no possibility of obtaining them from other sources. Therefore, after Federal Law No. 451-FZ comes into force, carrying out claims work with citizens who do not voluntarily fulfill the obligation to pay for residential premises and utilities will become impossible. In turn, this will negatively affect:

• on the technical condition of the apartment buildings, the quality of the provided utilities due to the lack of the required amount of funds to carry out work on the maintenance of common property in the houses and ongoing repairs, modernization of the utility infrastructure;
• on the financial stability of regional operators, which will lead to untimely completion of work on major repairs of common property in apartment buildings and the onset of subsidiary liability of a constituent entity of the Russian Federation;
• on conscientious citizens who promptly fulfill their obligation to pay for housing and communal services, since they will be forced to cover bad debts through additional collection of funds for these services and to replenish the capital repair fund formed in a special account, and also with full and timely payment they will receive low-quality services.

In order to prevent the occurrence of the listed negative consequences both for citizens and for the housing and communal services industry as a whole, on 04/04/2019, draft federal law N 681872-7 was submitted to the State Duma, according to which persons managing apartment buildings, rural areas, regional operators will have to indicate in the application on the issuance of a court order and a statement of claim, one of the identifiers of the debtor citizen only if it is known to them.

In addition, another draft Federal Law N 759178-7 has been submitted to the State Duma, according to which it is planned to delay until March 30, 2021 the start of the requirement that companies must indicate in a claim or application for a court order under the Code of Civil Procedure of the Russian Federation more information about citizens (defendants) or debtors). We are talking about any of the following identifiers: SNILS, INN, OGRNIP, series and number of an identity document, driver’s license, vehicle registration certificate. The amendments were adopted in the third reading.

The delay is likely due to the fact that the legislation does not yet provide for how companies can obtain this information about citizens.

The project will allow businesses to avoid unjustified denial of access to justice.

Addition:

From October 28, 2021

There is no need

to fulfill this obligation until
March 30, 2021 . Corresponding changes have been made to the Code of Civil Procedure. During this period, the previous rules regarding information about debtors (defendants) will apply:

• in the application for the issuance of a court order, you must indicate your full name. and place of residence of the debtor citizen, as well as date and place of birth, place of work, if known;
• in the statement of claim - full name. and place of residence of the defendant citizen.

Read about other important changes in the civil process as part of the procedural reform in the review.

Document: Federal Law of October 17, 2019 N 343-FZ.

In what cases is it necessary to transfer a case to your place of residence?

The judicial system of the Russian Federation is based on uniform principles, therefore there are no disagreements regarding jurisdiction between courts of general jurisdiction.
The territorial delimitation of courts of the same level is called territorial jurisdiction. Transfer of a case to territorial jurisdiction is a transfer of legal proceedings between judicial districts.

Grounds for transferring a case to the place of residence (MZ):

• the defendant's petition to transfer the case on the breastfeeding;
• petitions of the defendant and plaintiff to transfer the case to the location of the majority of the evidence;
• violation of the rules of territorial jurisdiction during legal proceedings;
• impossibility of further replacement of the court composition after challenge.

Depending on the type of legal proceedings, the grounds for transfer are regulated by Article 29.5 of the Code of Administrative Offenses of the Russian Federation, Article 33 of the Code of Civil Procedure of the Russian Federation, Article 35 of the Code of Criminal Procedure of the Russian Federation.

When a case is sent to another site, it must be accepted for consideration. The judicial system of the Russian Federation is permeated by the unity of the principles of legal proceedings: legality, competition, independence of judges and others. Disagreements among courts of general jurisdiction regarding jurisdiction are not allowed.