Problems of determining territorial jurisdiction in civil proceedings
A. Rule for determining territorial jurisdiction in civil proceedings.
According to the general rule of territorial jurisdiction, enshrined in Art. 28 of the Code of Civil Procedure of the Russian Federation, a claim is brought to the court at the place of residence of the defendant, and a claim against an organization is brought to the court at the location of the defendant organization.
At first glance, everything is clear: if you know where the defendant-citizen lives or the head office of the organization is located, then you need to contact the court that “serves” the corresponding address.
With regard to legal entities, the situation is quite clear. In accordance with paragraph 2 of Art. 54 of the Civil Code, the location of a legal entity is determined by the place of its state registration on the territory of the Russian Federation. Information about the registration address of legal entities is public, and anyone who has access to the Internet can find it in the Unified State Register of Legal Entities on the Federal Tax Service website.
However, in the case of individuals, everything is not so simple. Information about the place of residence of the defendant-citizen is part of personal data and cannot be published without his consent. It is worth recognizing that not every plaintiff at the time of filing a claim has a firm belief in where the defendant actually lives. And if such confidence still exists, then this will not yet be a guarantee that the claim was filed according to the rules of territorial jurisdiction. You can reliably know where the defendant lives, where he goes to work, what is the square footage of his apartment, and even how much money he pays for utilities. However, the court may still not accept the claim or, after accepting it, transfer it to another court.
b. Place of residence of a citizen: definition of the concept in legislation and interpretation in judicial practice
The problem lies in determining what, in accordance with Russian legislation, is the place of residence of a citizen. The Civil Procedure Code of the Russian Federation does not define the concept of “place of residence”. Article 20 of the Civil Code of the Russian Federation also does not clarify, indicating that the place of residence is the place where the citizen permanently or primarily resides. Having a general idea, we understand that this means an apartment or house that belongs to the defendant by right of ownership (or other legal basis), and where he spends most of his time. But what about temporary housing (for example, for seasonal work) or permanent hotel accommodation? What if the defendant owns several properties and lives in them alternately? In general, for what period should “primary” residence be considered?
The definition of the concept “place of residence” is also contained in Art. 2 Law of the Russian Federation of June 25, 1993 N 5242-1 “On the right of citizens of the Russian Federation to freedom of movement, choice of place of stay and residence within the Russian Federation” (hereinafter referred to as Law No. 5242-1), according to which the place of residence is a residential building, apartment , room, residential premises of a specialized housing stock or other residential premises, in which:
a) a citizen permanently or primarily resides as an owner, under a rental (sublease) agreement, a rental agreement for specialized residential premises, or on other grounds provided for by the legislation of the Russian Federation,
b) in which he is registered at the place of residence.
Well, that is, it turns out that the first part of this definition simply specifies the provisions of Art. 20 of the Civil Code, but the second part already complements them, establishing registration at a given address as a mandatory feature of the place of residence.
At the same time, Law No. 5242-1 also establishes the concept of “place of stay,” which is a hotel, sanatorium, rest home, boarding house, camping, tourist center, medical organization or other similar institution, institution of the penal system that executes sentences of imprisonment or forced labor, or residential premises that are not the place of residence of a citizen of the Russian Federation, in which he resides temporarily.
But again, a logical question arises: how long is temporary? Indeed, in practice, a situation very often occurs when a citizen has permanent registration (and, accordingly, a stamp in his passport) in one region, but has lived for decades in a rented or his own apartment in another region thousands of kilometers away. In our opinion, there is clearly no need to talk about “temporary” residence here.
When resolving these issues, the courts, in the overwhelming majority of cases, come to the conclusion that the citizen’s place of residence should be the place of his permanent registration (popularly (and sometimes in judicial practice) often called “propiska”, which has almost been abolished in Russia like 25 years old). As a result, claims filed outside the defendant’s place of registration are “unfolded” en masse and transferred to jurisdiction.
The courts justify their position by referring to Law No. 5242-1, rewriting from the Law the definition of the concept of “place of residence” (not at all embarrassed by the fact that this concept, in accordance with Article 2, is given exclusively for the purposes of applying this Law) and referring to the requirement Law on mandatory registration of all citizens at their new place of residence or place of stay. Failure to comply with the statutory registration requirement entails administrative liability in accordance with Art. 19.15.1 and 19.15.2 Code of Administrative Offenses of the Russian Federation.
As the Constitutional Court of the Russian Federation indicated in Resolution No. 4-P dated 02.02.1998 “In the case of verifying the constitutionality of paragraphs 10, 12 and 21 of the Rules for registration and deregistration of citizens of the Russian Federation at the place of stay and at the place of residence within the Russian Federation , approved by Government Decree No. 713 of July 17, 1995,” through registration, registration authorities certify the act of free expression of the citizen when choosing his place of stay and residence; registration reflects the fact of a citizen’s location at the place of stay and residence. Registration of a citizen of the Russian Federation at the place of residence is the registration of a citizen of the Russian Federation at the place of residence, that is, recording in the prescribed manner by the registration authority of information about the place of residence of a citizen of the Russian Federation and his location at this place of residence. At the same time, the Constitutional Court of the Russian Federation emphasized that the mere fact of registration or the lack thereof does not give rise to any rights and obligations for a citizen and, according to Part 2 of Art. 3 of Law N 5242-1 cannot serve as a basis for restricting or a condition for the implementation of the rights and freedoms of citizens provided for by the Constitution of the Russian Federation, federal laws and legislative acts of constituent entities of the Russian Federation.
However, existing judicial practice on the issue of determining territorial jurisdiction boils down mainly to the following: registration is an official confirmation of the address of a citizen’s permanent or primary place of residence. If a citizen does not live at this address and does not register at the place of his actual location, then he bears the risk of improper notification from the court and other consequences (See, for example, the practice of the Moscow City Court: Appeal ruling of the Moscow City Court dated May 16, 2021. in case No. 33-17493/17; Appeal ruling of the Moscow City Court in case No. 33-10862/2015; Appeal ruling of the Moscow City Court dated July 4, 2021 in case No. 33-25303; Appeal ruling of the Moscow City Court dated April 5, 2021 in case No. 33-10313/2017, etc.).
The reality is that millions of citizens of our country do not live at their place of registration. The reasons may be different: study, work, personal circumstances, climate, etc. But this is a fact that can hardly be doubted. And not every citizen thinks about registering at their new place of residence. The presence of administrative liability bothers few people. If there is a requirement for “registration” on the part of the employer, some enterprising citizens are even ready to purchase fake documents.
As a result, many citizens find out too late that they are defendants in any case, or do not find out about it at all. The courts, for their part, feel calm, since they have fulfilled the formal requirement for proper notification at the place of registration, and in this case they are not obliged to search for the real place of residence of the defendant.
Thus, a situation has arisen where the rule on general territorial jurisdiction (Article 28 of the Code of Civil Procedure of the Russian Federation) does not work effectively enough. You can understand the situation only by turning to the teleological and logical interpretation of this norm.
By obliging the plaintiff to file a claim at the place of residence of the defendant, the Code of Civil Procedure of the Russian Federation, first of all, guarantees compliance with the procedural rights of the defendant in the current conditions when he is not the initiator of the proceedings, but due to the stated requirements he is forced to defend his interests. It is in this regard that the claim must be filed at a place where the defendant has a real opportunity to freely appear in court, familiarize himself with the requirements and present his objections.
From this we can conclude that the requirement for general territorial jurisdiction will be fully complied with only when the claim is filed at the place of real residence of the defendant, where he can defend himself. The permanent registration address of a citizen is not always such a place. This means that the court should take into account all the circumstances on this issue.
It seems logical that if the defendant does not make contact, but the court knows the address of his permanent registration, then it is still unreasonable to search for him. However, if evidence is presented in the case indicating a different address, the court must take it into account and take it into account when checking compliance with territorial jurisdiction.
Such evidence may include: temporary registration, a certificate from the MFC, a lease/temporary residence agreement, a certificate from the place of work, paid utility bills, etc. An important (and based on the provisions of Article 20 of the Civil Code of the Russian Federation) criterion here should be the duration or constancy of such residence. Thus, options with a temporary stay in a hotel on vacation or visiting relatives are rightly not taken into account. But if it is proven that the defendant actually lives and works at an address other than the address of permanent registration, then the claim can and, in our opinion, should be filed at the defendant’s location.
Unfortunately, this approach is only slightly reflected in judicial practice, for example, in the Appeal ruling of the St. Petersburg City Court N33-12329/2015:
As a general rule, the place of residence of a citizen is the place of his registration. If the Defendant does not reside at the place of registration, but permanently or primarily resides outside the place of registration at the place of residence, the claim must be filed at the place of his actual residence.
In addition, an important conclusion in one of the cases was made by the Supreme Court of the Russian Federation, noting that when resolving the issue of jurisdiction of the case, when determining the place of residence of the defendant, the court, as a general rule, must be guided by the data provided about the place of his registration at the place of residence, if the place of residence is not established residence for other reasons (Decision of the Supreme Court of the Russian Federation dated November 15, 2016 N 18-КГ16-155).
This position, in our opinion, is logical and correct. It turns out that if the plaintiff knows for certain that the defendant does not live at the permanent address and the plaintiff can prove the fact of the defendant’s permanent or primary residence at another address, then the claim can be brought at the place of actual residence of the defendant. Even if the defendant requests the transfer of the case to jurisdiction at the place of his permanent registration, such a case, in our opinion, cannot be transferred if it is proven that at the time of filing the claim, the place of permanent registration is not the place of permanent or primary residence of the defendant, that is, when filing the claim, territorial jurisdiction was not violated. And in accordance with paragraph 1 of Art. 33 of the Code of Civil Procedure of the Russian Federation, a case accepted by the court for its proceedings in compliance with the rules of jurisdiction must be resolved by it on its merits, at least in the future it will become subject to the jurisdiction of another court.
Despite this, in most cases, the courts prefer not to take on the extra burden in the form of another court case, and as soon as they notice that the claim was not filed at the place of permanent registration of the defendant, they tend to immediately transfer the claim to jurisdiction.
Unfortunately, this interpretation of Art. 28 of the Code of Civil Procedure plays into the hands of unscrupulous defendants who, while actually residing in the territory under the jurisdiction of the court where the claim is filed, can abuse procedural rights by filing a petition to transfer the case to their permanent registered address. It’s good if this happens within one city. But if the defendant is registered in one part of our vast country, but actually lives in another, then the case may take a very long time to be transferred to the district court. An unscrupulous defendant may continue to abuse the process by not appearing at court hearings, not receiving summonses, etc.
Thus, we believe that the rule on general territorial jurisdiction (Article 28 of the Code of Civil Procedure) cannot serve as a tool for procedural abuses, when the defendant has the opportunity to transfer a case from one court to another as he pleases, knowing that this is unprofitable for the plaintiff ( allowing, so to speak, a procedural chicane).
V. Possible solutions to the problem
In our opinion, when interpreting the rules of law in order to apply the rules of the Civil Procedure Code on territorial jurisdiction, one should be guided by the following logic.
The claim should be filed at the place of residence of the defendant, that is, the place where the citizen permanently or primarily resides. Moreover, as a general rule, the main, but not the only evidentiary value should be the registration of a citizen, both permanent and temporary. It is necessary to proceed from the meaning of Art. 28 of the Code of Civil Procedure, which pursues as the main goal the observance of the procedural rights of the defendant to have the case considered by the court in the place of his permanent or primary residence, while preventing abuse of the right on the part of the defendant to transfer the case under jurisdiction to the place where he is only permanently registered, but does not reside . In other words, permanent registration cannot be considered as exclusive evidence of the defendant’s place of residence if there is other evidence of his place of residence, because registration is formal in nature and is a technical act established for the purpose of citizens fulfilling their duties to other citizens, the state and society.
It should be recognized as unacceptable the formal approach existing in judicial practice to identifying the place of residence and the place of permanent registration of citizens, with references to the definition of the concept of “place of residence” given in Law No. 5242-1 (exclusively for the purposes of applying this Law). If there are objections from one of the parties about the discrepancy between the place of permanent registration and the place of actual permanent or primary residence of this (or another) party, the courts must establish the place of residence of the party on other grounds.
Moreover, if the plaintiff does not have information about the actual permanent or primary place of residence of the citizen at the time of filing the claim, then the claim is filed in accordance with Part 1 of Art. 29 of the Code of Civil Procedure of the Russian Federation at the location of the defendant’s property or at his last known place of residence in the Russian Federation.
In general, in our opinion, the existing system of registration of citizens does not correspond to the realities of today (primarily taking into account the mobility of citizens) and needs to be improved. We believe that it is necessary to exclude the sign of permanent registration from the concept of “place of residence” in Law No. 5242-1, and permanent or primary residence is considered based on the continuity of a citizen’s residence in one place for a certain period of time. By analogy with the rule for determining tax residence, you can take a period of 185 calendar days during the year. That is, consider the citizen’s place of residence to be a residential building, apartment, room, residential premises of a specialized housing stock or other residential premises in which the citizen lives as the owner, under a lease (sublease) agreement, a lease agreement for specialized residential premises or on other grounds provided for by law Russian Federation, more than 183 calendar days within one year, while securing the obligation of citizens to register in such premises as at their place of permanent residence.
The procedure for submitting an application for consideration to the arbitration court
The plaintiff party, having prepared all the documents and drawn up the application, sends the necessary documentation to the address of the actual location of the defendant party at the time of filing the application. Moreover, if the territorial arbitration court is located remotely from the address of the plaintiff party, then the latter has the right to file a claim in electronic form by telecommunications or by post with notification. The application and copies of all documents may be submitted for consideration to the judicial arbitration authorities at the location of the defendant party personally by the plaintiff.
At the same time, the arbitration court does not have the right to refuse to accept documents and claims if the latter are true and legal.
In cases where the dispute does not fall within the competence of the chosen court (for example, it turned out to be actually more complicated), then the arbitration court at the location or residence of the defendant party has the right to submit it for consideration to the authorized judicial authorities, notifying the parties to the dispute about this.
