What types of powers of attorney are there?
It is immediately necessary to make a reservation that civil legislation does not in any way divide powers of attorney into types; it only establishes the possibility of indicating in the power of attorney the range of powers of the representative.
However, lawyers distinguish several types of power of attorney, based on practice.
General power of attorney
It gives the representative the maximum package of powers without being tied to a specific task. The attorney has almost complete freedom of action.
Such a document can only be signed by the head of the principal legal entity, and the organization’s seal (if any) must be affixed to the form of the document. Also, such a power of attorney can be certified by a notary, but you will not find the concept of “general power of attorney” in the Law. Previously, the term “general power of attorney” could be found in the Methodological Recommendations for Certifying Powers of Attorney of the Chamber of Notaries, but these recommendations were abolished in 2015. In modern notary regulations, general powers of attorney are not found. This does not change the prevalence of this type of power of attorney in practice.
A power of attorney usually contains text with the following content:
“I trust (the attorney) to manage and dispose of all my property, whatever it may be and wherever it is located, as well as to enter into all transactions permitted by law for the management and disposal of property; accept or refuse an inheritance; receive property, money (deposits), securities, as well as documents due to me from all persons, institutions, enterprises, organizations, including from branches of banks of the Russian Federation, post offices and telegraph offices for all reasons; manage accounts in banks of the Russian Federation; receive postal, telegraph and other correspondence of all kinds, including money and parcels; conduct business on my behalf in all government agencies, cooperative and public organizations, as well as conduct my affairs in all judicial institutions.”
As you can see, a general power of attorney gives the representative almost unlimited powers. Such a power of attorney should be drawn up only when there is an inevitable need to vest one person with the authority to carry out all transactions and represent the interests of a legal entity in all government agencies and non-governmental organizations. There is a risk that the representative will use an unlimited power of attorney against the interests of the principal, and transactions made by the representative under the power of attorney may be challenged in court. If the attorney does not need to transfer all powers, then it is better to issue a special or one-time power of attorney.
Special power of attorney
It gives the representative the right to repeatedly perform certain actions of the same type. Such a power of attorney is most often issued to employees for the duration of their work function, which is associated with representing the interests of the organization in specific aspects. For example, a seller may be entrusted with the right to conclude transactions, and a lawyer may be entrusted with representing the interests of the organization in all courts and regulatory authorities.
Example of wording in a special power of attorney for a company lawyer:
“Limited Liability Company “Test” authorizes (attorney details) to represent on behalf of LLC “Test” in all courts of the Russian Federation, including arbitration, federal courts of general jurisdiction and magistrates, to perform all procedural actions provided for by current legislation ...; receive any documentation with the right to sign all necessary documents and perform all actions necessary to exercise the powers provided for by this power of attorney.”
A special power of attorney can be issued for either a short period or several years.
One-time power of attorney
Such a power of attorney is drawn up when the attorney is required to perform only one action in the near future. The validity period of such powers of attorney is usually no more than a month, so that the employee completes the assignment on time and does not use the power of attorney for other purposes. A one-time power of attorney may be required if you need to direct an employee to a one-time, unusual assignment.
For example, a company may ask a trainee to pick up a letter from the post office by issuing him a one-time power of attorney indicating a specific post office and postal item. When the internship period ends, the power of attorney will no longer be valid.
Power of attorney from individual entrepreneur
Any individual entrepreneur is an ordinary citizen who runs his own business. Also, no one forbids him to seek help from experienced lawyers who will represent his interests in court. In essence, such a trust document is no different from powers of attorney drawn up by private individuals. In addition to standard data, information about individual entrepreneur registration should be present here. Not one person, but several at once can act as a representative.
Sample
General power of attorney to represent the interests of a legal entity
If you need to draw up a general power of attorney to represent the interests of a legal entity, then such a power of attorney will be a general power of attorney.
Art. 185 of the Civil Code of the Russian Federation provides that a power of attorney from a legal entity must be signed by a person who acts in accordance with the constituent documents without a power of attorney. In an LLC, this is usually the general director. If the constituent documents mention several persons who are jointly vested with powers, then all of them must sign a general power of attorney (clause 5.4 of the letter of the Federal Tax Service dated July 22, 2016 N 2668/03-16-3 “On Methodological Recommendations for Certifying Powers of Attorney”).
A general power of attorney conveys the broadest possible powers of action on behalf of the organization:
- carrying out all transactions and banking operations;
- representation in all government bodies and courts;
- signing of all legal entity documents;
- any other actions necessary for the activities of the organization.
However, not all so simple. The transfer of the entire scope of powers (as implied by a general power of attorney), the execution of which, in accordance with the law and constituent documents, falls within the competence of the sole (collegial) executive body of a legal entity, on the basis of a general power of attorney to another person is not permitted by law.
Otherwise, the functions of the sole (collegial) executive body will be performed by a person who is not elected (appointed) in accordance with the requirements of the current legislation and information about whom is not available in the Unified State Register of Legal Entities, that is, in practice, another executive body will be formed.
The transfer of powers of the sole executive body can be carried out only for a certain time in the event of a temporary impossibility for this person to perform his duties (vacation, illness, business trip). In this case, an order is issued for the temporary performance of duties and a power of attorney is issued, which outlines the terms of reference of the person performing the duties.
Representation in arbitration proceedings
1. The concept of representation 2. Types of representation 3. Subjects of representation 4. The powers of representatives and the procedure for their execution 5. Verification of the powers of persons participating in the case and their representatives
1. Concept of representation
Participants in the arbitration process also include representatives. They are not included among the persons participating in the case, since the purpose of their participation in the arbitration court is not to protect their own interests, but the persons they represent. Thus, representation in arbitration proceedings is the performance of procedural actions by one person on behalf and in the interests of another person. The purpose of representation in an arbitration court is the need to ensure the protection of the rights and legitimate interests of organizations and citizens as participants in the arbitration process. The person who entrusts the representative with the conduct of the case is called the principal or the represented. A judicial representative is a representative or attorney charged with protecting the interests of another person. Civil legal and procedural representation have a number of common features. At the same time, it is necessary to distinguish between representation in arbitration proceedings and representation in civil law. A distinction can be made based on the goals and nature of the relationship between the representative and the represented, and on the range of persons who can act as judicial representatives. Thus, the purpose of civil representation is the creation, modification and termination of civil rights and obligations for the represented person (Article 182 of the Civil Code of the Russian Federation). The purpose of representation in arbitration proceedings is to protect the interests of the represented person in the arbitration court, to assist him in the exercise of procedural rights and the performance of procedural duties. During procedural representation, the representative performs various procedural actions determined by the need to protect the person he represents in the arbitration process. Thus, the representative prepares procedural documents on behalf of the principal, directly participates in the court hearing, speaking on all issues that arise during the process. In this case, the representative is bound by the powers with which he is vested in connection with the performance of his functions in the arbitration court, and does not have the right to perform actions that go beyond these limits. The subject of the arbitration process (a party or other person participating in the case) remains the principal. For himself personally, as a result of the arbitration process, the representative does not receive anything except a predetermined remuneration (in the case of contractual representation), and in some cases, reimbursement of his own expenses for representation. In accordance with Art. 59 of the Arbitration Procedure Code of the Russian Federation, citizens have the right to conduct their affairs in an arbitration court in person or through representatives. Conducting a case in person does not deprive a citizen of the right to have representatives. The rights and legitimate interests of incapacitated citizens are protected in the arbitration process by their legal representatives - parents, adoptive parents, guardians or trustees, who can entrust the conduct of the case in the arbitration court to another representative chosen by them. Lawyers and other persons providing legal assistance may act as representatives of citizens, including individual entrepreneurs, and organizations in the arbitration court. The representative of organizations in the arbitration court can be any capable person with properly formalized and confirmed authority to conduct the case, with the exception of the persons specified in Art. 60 Arbitration Procedure Code of the Russian Federation. In connection with the adoption of Resolution of the Constitutional Court of the Russian Federation dated July 16, 2004 N 15-P, the previously provided restrictions on the representation of organizations only by their managers, staff members or lawyers were lifted. Previously Art. 59 of the Arbitration Procedure Code of the Russian Federation in conjunction with clause 4 of Art. 2 of the Federal Law of May 31, 2002 N 63-FZ “On advocacy and the legal profession in the Russian Federation” excluded for persons selected by organizations providing legal assistance the opportunity to act in an arbitration court as representatives if they are not lawyers or persons on staff of these organizations. Currently, representatives of organizations can be any persons elected by them, subject to a number of restrictions. The affairs of organizations are also conducted in the arbitration court by their bodies acting in accordance with federal law, other regulatory legal acts or constituent documents of organizations. An authorized representative of the liquidation commission acts in court on behalf of the liquidated organization. Representation, as mentioned above, should be distinguished from the representation of the interests of organizations by their bodies in the arbitration court. According to Art. 53 of the Civil Code of the Russian Federation, legal entities acquire civil rights and assume civil responsibilities through their bodies acting in accordance with the law, other legal acts and constituent documents. The procedure for appointing or electing bodies of a legal entity is determined by law and constituent documents. Therefore, heads of organizations and other persons, in accordance with the constituent documents, present to the arbitration court documents certifying their official position or powers, for example, a protocol on election or an order on appointment to the position of general director.
2. Types of representation
There are various classifications of types of representation in litigation. The most understandable classification is depending on the grounds for the emergence of representation in the arbitration process: legal and contractual. Legal representation is based directly on the direct instructions of the law in the presence of a certain factual composition. Legal representation is possible in a number of cases. Firstly, the rights and legitimate interests of incapacitated citizens are protected in the arbitration process by their legal representatives - parents, adoptive parents, guardians or trustees. In this case, the legal representatives may entrust the conduct of the case in the arbitration court to another representative chosen by them. According to Art. 23, 26 and 27 of the Civil Code of the Russian Federation, minors from the age of 16 are endowed with legal capacity (incomplete) and can independently carry out a number of civil transactions, including as entrepreneurs, and also be members of cooperatives. In this regard, they can be parties and third parties in arbitration court on claims related to their business activities (subject to registration as entrepreneurs) without representatives. Secondly, legal representation arises in other cases specified in the laws, in particular in the field of business relations. Thus, legal representation arises in relation to liquidated organizations, as well as organizations in respect of which insolvency (bankruptcy) cases are being considered. So, in accordance with paragraph 3 of Art. 62 of the Civil Code of the Russian Federation, from the moment the liquidation commission is appointed, the powers to manage the affairs of the legal entity are transferred to it, including the liquidation commission on behalf of the liquidated legal entity by virtue of Part 4 of Art. 59 of the Arbitration Procedure Code of the Russian Federation acts in arbitration court. The basis of contractual representation is an agency agreement (Articles 971-979 of the Civil Code of the Russian Federation), and in certain cases - an agency agreement (Articles 1005-1011 of the Civil Code of the Russian Federation). Thus, contractual representation arises only on the basis of agreement of the parties. Basically, contractual representation of the interests of citizens and organizations is carried out by lawyers. At the same time, only persons who have received the status of lawyers in accordance with the Federal Law “On Advocacy and the Bar in the Russian Federation” can act as lawyers in the arbitration process.
3. Subjects of representation
A representative in an arbitration court may be a legally capable person with duly formalized and confirmed authority to conduct the case, with the exception of the persons specified in Art. 60 Arbitration Procedure Code of the Russian Federation. Representatives in the arbitration court cannot be persons who do not have full legal capacity or who are under guardianship or trusteeship. Representatives in the arbitration court cannot be judges, investigators, prosecutors and court staff. This rule does not apply to cases where these persons act in the process as representatives of the relevant courts, the prosecutor's office or as legal representatives. Notaries (Article 6 of the Fundamentals of the Legislation of the Russian Federation on Notaries) and other persons for whom, by virtue of their position, such restrictions are established, cannot also be judicial representatives within the meaning of the law, except for cases when such persons represent the interests of relevant organizations in court or in connection with the exercise of functions of a legal representative. A number of restrictions were introduced by the new Federal Law “On Advocacy and the Bar in the Russian Federation” regarding the representation of lawyers. In particular, the activities of foreign lawyers are limited. According to paragraphs 5 and 6 of Art. 2 of this law, lawyers of foreign states can provide legal assistance on the territory of Russia on issues of the law of a given foreign state. They do not have the right to provide legal assistance on issues related to state secrets of the Russian Federation. From a formal point of view, lawyers of foreign countries, in order to carry out legal activities on the territory of the Russian Federation, must also be registered in a special register by the federal justice authority, otherwise their work as lawyers is prohibited. In addition, a lawyer does not have the right to accept an assignment from a person who has applied to him for legal assistance in cases (Clause 4 of Article 6 of the Federal Law “On Advocacy and the Bar in the Russian Federation”) if he: - has an independent interest in the subject of the agreement with the principal, different from the interest of this person; - participated in the case as a judge, arbitrator or arbitrator, mediator, prosecutor, investigator, inquirer, expert, specialist, translator, is a victim or witness in this case, and also if he was an official who was competent to make a decision in interests of this person; - has a related or family relationship with an official who took or is taking part in the investigation or consideration of the case of this person; — provides legal assistance to a principal whose interests conflict with the interests of this person.
4. Powers of representatives and the procedure for their registration
Since representatives in the arbitration process perform procedural actions on behalf of and on behalf of the persons who authorized them, then, accordingly, the scope of the attorney’s powers is determined by the procedural position of the principal: plaintiff, defendant, third party without independent demands, etc. At the same time, the scope of the representative’s powers is also determined by which of the powers available to the principal were transferred to him. Thus, the scope of the representative’s powers depends on two factual circumstances: the scope of the principal’s powers and on what powers the principal has vested in the attorney. The powers of the representative in their content are divided into general and special. General powers are those procedural actions that any representative has the right to perform on behalf of the principal, regardless of whether they are specified in the power of attorney. These include powers to familiarize yourself with the case materials, make copies of the case materials, file challenges, present evidence, participate in the study of evidence, and others related to the possibility of participating in the arbitration process (Article 41 of the Arbitration Procedure Code of the Russian Federation). Special powers are those powers that a representative has the right to exercise only when indicated in a power of attorney or other document (for example, a mandate agreement, an agency agreement). Special powers include, first of all, the initiation of a case in an arbitration court by a representative, which is possible only if he has a power of attorney. Based on Art. 126 of the Arbitration Procedure Code of the Russian Federation, a judge refuses to accept a statement of claim if the statement is signed by a person who does not have the right to sign it. Other special powers, the right to exercise which must be specifically stipulated in a power of attorney or other document, are specified in Art. 62 Arbitration Procedure Code of the Russian Federation. These include the powers: to sign a statement of claim and a response to the statement of claim, applications for securing a claim, transfer of a case to an arbitration court, complete or partial waiver of claims and recognition of a claim, changing the basis or subject of a claim, concluding a settlement agreement and an agreement on factual circumstances, transferring one’s powers as a representative to another person (subassignment), as well as the right to sign an application for review of judicial acts based on newly discovered circumstances, appealing a judicial act of an arbitration court, receiving awarded funds or other property. It should be borne in mind that in the arbitration process, when carrying out the most important administrative actions, legal representatives or bodies of a legal entity are required to comply with the restrictions established not only by the power of attorney, but also by law, other legal acts and constituent documents. For example, when concluding a settlement agreement related to the renunciation of property rights, in some cases it may be necessary to obtain the consent of the body authorized to manage property, a meeting of shareholders, a board of directors, or another collegial management body. The powers of the heads of organizations acting on behalf of organizations within the powers provided for by federal law, other regulatory legal acts or constituent documents are confirmed by documents submitted by them to the court certifying their official position, as well as constituent and other documents. The powers of legal representatives are confirmed by documents submitted to the court certifying their status and powers. The powers of a lawyer to conduct a case in an arbitration court are certified by a warrant for the execution of an assignment issued by the relevant legal entity in cases provided for by federal law. Since Art. 61 of the Arbitration Procedure Code of the Russian Federation does not directly require the submission of a warrant, then according to clause 2 of Art. 6 of the Federal Law “On Advocacy and the Bar in the Russian Federation”, a lawyer represents a client on the basis of a power of attorney. This federal law prohibits requiring a lawyer and his client to present an agreement on the provision of legal assistance in order for the lawyer to join the case. The powers of other representatives to conduct a case in an arbitration court must be expressed in a power of attorney issued and executed in accordance with federal law, and in cases provided for by an international treaty of the Russian Federation or federal law, in another document. The powers of the representative can also be expressed in a statement by the represented person made at the court hearing, as indicated in the minutes of the court session. A power of attorney on behalf of the organization must be signed by its head or another person authorized by the constituent documents and affixed with the seal of the organization. A power of attorney on behalf of an individual entrepreneur must be signed by him and affixed with his seal or can be certified by a notary or in another manner prescribed by law. A power of attorney on behalf of a citizen can be certified by a notary or in another manner established by federal law. It should be borne in mind that if a representative acts under a power of attorney in the order of reassignment, then the power of attorney must be notarized (clause 3 of Article 187 of the Civil Code of the Russian Federation). The remaining rules for drawing up a power of attorney are reflected in Chapter. 10 Civil Code of the Russian Federation.
5. Verification of the powers of persons participating in the case and their representatives
According to Part 1 of Art. 63 of the Arbitration Procedure Code of the Russian Federation, the arbitration court is obliged to verify the powers of the persons participating in the case and their representatives. The issue of recognizing the powers of the persons participating in the case and their representatives and admitting them to participate in the court hearing is resolved on the basis of an examination of the documents presented by these persons to the court. Documents confirming the powers of these persons are, if necessary, attached to the case, or information about them is entered into the minutes of the court session. If a person participating in the case or his representative fails to provide the necessary documents to confirm his authority or submit documents that do not meet the requirements established by the Arbitration Procedure Code of the Russian Federation and other federal laws, as well as in case of violation of the rules on representation established by Art. 59 and 60 of the Arbitration Procedure Code of the Russian Federation, the arbitration court refuses to recognize the authority of the relevant person to participate in the case, as indicated in the protocol of the court session. A number of provisions on verification of powers are explained in paragraph 11 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 9, 2002 N 11 “On some issues related to the implementation of the Arbitration Procedural Code of the Russian Federation.” In particular, it draws attention to the fact that persons on the staff of an organization include persons who have entered into an employment contract with this organization. Therefore, the power of attorney or other document must indicate the position held by the representative in the organization that issued the power of attorney. If necessary, the arbitration court has the right to verify the powers of the representative to require other documents confirming the presence of a specific person on the staff of the organization.
How to issue a power of attorney to represent interests
In most cases, notarization of a power of attorney on behalf of a legal entity is not required. But the power of attorney will be considered valid only if the following data is available:
- date of registration (and the validity period may not be specified);
- details of the organization and information about the director;
- list of powers of the representative (as detailed as possible);
- attorney's passport information;
- handwritten signature of the principal's director.
However, for transactions with shares in an LLC and real estate, a notarized power of attorney will be required (Article 185.1 of the Civil Code of the Russian Federation).
For how long can a power of attorney be issued?
If the parties forgot or did not indicate the validity period in the power of attorney itself, then it is valid for 12 months. But be careful. If the power of attorney does not indicate the date of its execution, then it is considered void according to the Civil Code (clause 1 of Article 186 of the Civil Code of the Russian Federation).
The Civil Code provides for maximum possible deadlines for powers of attorney issued within the framework of subauthorization. For delegated powers, the period cannot exceed the validity period of the initial main power of attorney (clause 4 of Article 187 of the Civil Code of the Russian Federation).
As for all other powers of attorney, civil law does not limit the maximum period for which a power of attorney can be created. This means that the duration of the power of attorney can be any, regardless of the type of power of attorney: general, special or one-time. However, we recommend that you take into account the complexity of the assignment and the level of trust in the representative when specifying deadlines. Excessively long powers can be used by the attorney to the detriment of the company.
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