“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

Reasons for going to court on your own

Of course, the easiest way to file a claim in court is to contact a law firm that will provide its client with an experienced lawyer. But sometimes there are situations when it is more advisable to draw up a statement of claim for the court yourself. For example, if the services of a lawyer obviously exceed the cost of the claim. This scenario is possible if we are talking about purchasing an inexpensive, low-quality product.

Filing a claim in court will be a good practice for those who plan to actively engage in any social activities. If you choose this type of occupation, you should take into account that going to court will be a regular occurrence.

An additional advantage of deciding to file a claim on your own will be gaining confidence in your abilities and gaining useful experience in resolving problems in the legal field. You should also remember the following: in order to draw up a statement of claim to the Constitutional Court, it is absolutely not necessary to have a legal education.

All you need for this is to know the procedure, have strong arguments and evidence for the court in your favor, and also be able to convey your thoughts concisely, correctly and as accurately as possible. Naturally, in order to file a claim, you will need to familiarize yourself with the Civil Procedure Code (Code of Civil Procedure), at least within the framework of the current problem.

Additional commentary to Art. 28 Code of Civil Procedure of the Russian Federation in the new edition

Article 28 of the Code of Civil Procedure of the Russian Federation in the new edition establishes the general rule of territorial jurisdiction: the plaintiff files a statement of claim to that magistrate, or to that district court, or to that supreme court of the republic, regional, regional court, court of a federal city, autonomous region, autonomous district ( depending on what level of the judicial system the case is assigned to by the rules of generic jurisdiction), in the territory of whose jurisdiction the defendant is an individual, i.e. citizen or legal entity.

In Art. Art. — The Code of Civil Procedure of the Russian Federation establishes exceptions to the general rule of territorial jurisdiction.

If the defendant is a citizen, then the claim, as a general rule, is brought at the place of his residence.

The place of residence of a citizen is the place where the citizen permanently or primarily resides; The place of residence of minors under fourteen years of age or citizens under guardianship is recognized as the place of residence of their legal representatives - parents, adoptive parents or guardians.

The place of residence must be distinguished from the place of stay of the citizen, i.e. from the place where he is temporarily located.

The place of residence of a citizen is not the place where he is in custody as a preventive measure, the place where he is serving a sentence of imprisonment by a court verdict, or the place where he is undergoing inpatient treatment. Claims against such persons are brought at the last place of residence before being taken into custody or before being placed in a medical institution.

Due to the fact that currently the number of apartments or houses that a citizen can own is not limited, difficulties arise in determining the place of residence of defendants who have several apartments in different cities or regions.

Judicial practice, as a rule, proceeds from the fact that the claim in such cases is brought in the court in whose jurisdiction the defendant has registered his place of residence.

The plaintiff is obliged to determine the place of residence of the defendant and indicate it in the statement of claim (see comments to Article 131 of the Code of Civil Procedure), with the exception of cases where, in accordance with the law, if the place of residence of the defendant is unknown, a search is carried out (see comments to Article 120 of the Code of Civil Procedure) .

If the defendant’s place of residence is unknown or the defendant does not have a place of residence in the Russian Federation, the claim may be brought at the location of his property or at the last known place of residence (place of stay) in the Russian Federation (see comments to Article 119 of the Code of Civil Procedure).

If the defendant is a legal entity, then, as a general rule, the claim is brought at its location.

The location of a legal entity is determined by the place of its state registration; State registration of a legal entity is carried out at the location of its permanent executive body, and in the absence of a permanent executive body - another body or person authorized to act on behalf of the legal entity without a power of attorney.

The location of a legal entity must be indicated in its constituent documents.

If the defendant is an organization that, in accordance with the law, acts without registration as a legal entity, then the claim is brought at the location of its body. The possibility of bringing a claim at the location of the property of the defendant, a legal entity, is retained in the form of a special rule of alternative jurisdiction.

Realization of the right to choose

According to the rules of arbitration procedural law, the right to choose jurisdiction by the plaintiff party is inviolable only if the above-described grounds exist. If, before the start of consideration of the case, the arbitration court chosen by the plaintiff establishes that the dispute is outside its competence, the application is rejected.

If the dispute is already in progress, new circumstances are discovered, according to which the selected court loses the right to resolve a specific dispute, then it has the right to transfer it for consideration to an authorized court.

The transfer of the case cannot be canceled by the receiving arbitration court if there are grounds for the jurisdiction of the dispute to this court. The arbitration court chosen by the plaintiff party does not have the right to refuse to accept the application if the dispute falls under one of the rules of alternative jurisdiction enshrined in the Arbitration Procedure Code of the Russian Federation.

Author of the article

How to file a claim

The statement of claim is one of the most important documents in a trial. This document is intended to give the judge a certain idea of the requirements presented by the plaintiff. That is why the drafting of a claim must be approached in the most careful manner.

The claim must be submitted in writing and signed by the head of the company or its representative. The basic requirements for the content of the statement of claim are contained in the Arbitration Procedure Code and the Code of Civil Procedure of the Russian Federation. These requirements are similar, and since a company most often applies to an arbitration court, we will consider the rules for drawing up a claim specifically for the arbitration process.

As stated in Art. 125 of the Arbitration Procedure Code of the Russian Federation, the statement of claim must indicate :

1. the name of the arbitration court to which you are filing a claim;
2.
the name of your company or your full name. as an entrepreneur, as well as postal address;
3.
company name or full name the entrepreneur against whom you are making claims and their postal addresses;
4.
the value of your claim if you are making property claims;
5.
calculation of this amount;
6.
your requirements with reference to laws and other regulations;
7.
evidence confirming your case;
8.
information on compliance with the pre-trial (claim) dispute resolution procedure, if provided for by law or contract;
9.
information about the application by the arbitration court of interim measures before filing a claim;
10.
list of attached documents (Article 127 of the Arbitration Procedure Code of the Russian Federation): documents confirming the authority of the person who signed the statement of claim (for an entrepreneur - a certificate of registration; for the head of a company - the charter of the company and an order for his appointment; for a representative of the company or entrepreneur - a power of attorney);
a payment document confirming the payment of the state duty or a petition for a deferment, installment plan, or a reduction in the amount of the state duty;
copies of the certificate of state registration as a legal entity or individual entrepreneur;
postal receipts confirming that you sent a copy of the statement of claim to the other party to the dispute - a company or entrepreneur;
documents proving the validity of your claims (copies of contracts, acts, invoices, invoices, letters, etc.);
copies of the arbitration court ruling on securing property interests before filing a claim;
documents confirming the plaintiff’s compliance with the claim or other pre-trial procedure, if it is provided for by federal law or agreement.
draft agreement, if a demand is made to compel the conclusion of an agreement.

You must submit to the court the documents you refer to in your claim. If you do not want to bring certain documents to court, you do not have to do this. However, keep in mind that the court can obtain the necessary documents from the defendant. For example, waybills, invoices, etc.

Commentary on Article 28 of the Code of Civil Procedure of the Russian Federation in its current edition

Article 28 of the Code of Civil Procedure of the Russian Federation in its current version defines the general rule of territorial jurisdiction of civil cases. For individuals this is their place of residence, for legal entities this is the address of the organization.

The place of residence of a citizen is the place where he permanently resides, where his things are located, and which he considers his home. The place of residence can be an apartment, house, room, office premises, specialized residential premises (such as a boarding house, dormitory, shelter and others). In judicial practice, the place of residence of a citizen is generally recognized as the place of registration at the place of residence. However, the court may establish that the defendant lives at a different address if evidence is presented to support this.

The plaintiff must indicate the place of residence of the defendant in the statement of claim; the court does not search for defendants, except in cases provided for in Article 120 of the Code of Civil Procedure of the Russian Federation. If the place of residence of the defendant is not known to the plaintiff, then the statement of claim can be filed at the last known place of residence or location of the defendant’s property (Article 29 of the Code of Civil Procedure of the Russian Federation).

The location of a legal entity is determined by the location of its executive bodies. This information is enshrined in the constituent documents. It should be noted that state registration of legal entities occurs at the location of the permanent executive body of that entity. In fact, you can find out the address of a legal entity by requesting information about its registration in the Unified State Register of Legal Entities. Similar information regarding individual entrepreneurs is contained in the Unified State Register of Individual Entrepreneurs. You can obtain information by requesting a certificate from the tax authority.

When determining jurisdiction, it should be taken into account that the rules established by Article 28 of the Code of Civil Procedure of the Russian Federation in the current edition do not apply to cases established:

Article 29 of the Code of Civil Procedure of the Russian Federation, which determines jurisdiction at the choice of the plaintiff;
Article 30 of the Code of Civil Procedure of the Russian Federation in the presence of exclusive jurisdiction;
Article 31 of the Code of Civil Procedure of the Russian Federation in the presence of contractual jurisdiction.

Failure to comply with the established rules of jurisdiction entails the cancellation of the court decision and the transfer of the case to the court authorized to consider this case.

Alternative type of arbitration jurisdiction for a dispute

Alternative jurisdiction is a type of jurisdiction according to which the choice of a territorial court to consider a dispute, if there are grounds for doing so, remains at the discretion of the plaintiff party.

The plaintiff has a choice of where exactly to submit his application for consideration, while the selected arbitration court, if there are grounds, does not have the right to refuse to accept and consider the application.

It is noteworthy that if during the trial new circumstances are discovered that no longer give the dispute signs of alternative jurisdiction, the court has the right to refer the case to an authorized arbitration court. The latter does not have the right to refuse to accept the case: this procedure is not provided for by current Russian legislation. When determining the jurisdiction of a dispute, the rules of arbitration procedural law stipulate that all territorial arbitration courts of first instance have equal rights and responsibilities. Moreover, the decisions made by these courts have equal legal force, can be challenged in higher courts, and in the absence of a challenge - immediate or within a specified period of execution by the party that lost the dispute during court hearings.