Appealing a normative legal act to a court. Frequent reasons for refusal to challenge

In accordance with paragraph 12 of the Resolution of the Plenum Supreme Court RF dated January 20, 2003 No. 2 “On some issues arising in connection with the adoption and enforcement of the Civil procedural code Russian Federation» a normative legal act is understood as one issued in in the prescribed manner act of the authorized body state power, a local government body or an official who establishes legal norms (rules of conduct) that are binding on an indefinite number of persons, designed for repeated application, and valid regardless of whether the legal relations provided for by the act have arisen or ceased.

With an application to the court to challenge the normative legal act(declaring it invalid, contrary to law in whole or in part) a citizen, an organization that believes that an adopted and published normative act of a state authority, local government body or official violates their rights and freedoms guaranteed by the Constitution of the Russian Federation, laws and other normative legal acts, as well as the prosecutor in within the limits of its competence.

The President of the Russian Federation, the Government of the Russian Federation, the legislative (representative) body of a subject of the Russian Federation, the highest executive subject of the Russian Federation, local government, head municipality who believe that a normative act adopted and published in accordance with the established procedure violated their competence.

In accordance with paragraph 3 of Article 251 of the Code of Civil Procedure, applications for challenging normative legal acts, the verification of which falls within the exclusive competence of the Constitutional Court of the Russian Federation, are not subject to consideration in court in the manner prescribed by Chapter 24 of the Code of Civil Procedure.

The competence of the Constitutional Court of the Russian Federation is defined in Article 3 of the Federal Constitutional Law of July 21, 1994 No. 1-FKS “On Constitutional Court Russian Federation". In accordance with this competence, the Constitutional Court of the Russian Federation:

• 1) Considers cases of compliance with the Constitution of the Russian Federation: a) federal laws, regulations of the President of the Russian Federation, the Federation Council, State Duma, Government of the Russian Federation; b) constitutions of republics, charters, as well as laws and other normative acts of constituent entities of the Russian Federation, issued on issues within the jurisdiction of government bodies of the Russian Federation and joint management government bodies of the Russian Federation and government bodies of the constituent entities of the Russian Federation; c) agreements between government bodies of the constituent entities of the Russian Federation; d) not in force international treaties RF.
• 2) Checks against complaints of violations constitutional rights and freedoms of citizens and, at the request of the courts, the constitutionality of the law applied or to be applied in a particular case.
• 3) Gives an interpretation of the Constitution of the Russian Federation.

Applications to challenge regulatory legal acts are submitted according to jurisdiction in accordance with Articles 24, 26, 27 of the Code of Civil Procedure.

To competence district court These include statements that challenge regulatory legal acts not specified in Articles 26 and 27 of the Code of Civil Procedure. The application is submitted to the district court at the location of the body or official that adopted the normative act.

The requirements for the application are established in Article 131 of the Code of Civil Procedure. In addition, the application must contain additional information about the name of the state authority, local government body or official that adopted the contested normative act, its name and date of adoption, an indication of what rights and freedoms of a citizen or an indefinite number of persons are violated by this act.

A copy of the disputed normative act indicating by what means mass media and when it was published.

Filing an application does not suspend the validity of the contested act.

If there is entered into legal force The court decision, which verified the legality of the contested normative legal act on the grounds specified in the application, the judge refuses to accept the application.

The application is considered by the court within a month, and by the Supreme Court - within three months from the date of its filing. The applicant's refusal of his demand does not entail the termination of the proceedings. It is not obligatory for the court to recognize the requirement by the entity that adopted the normative act.

If the court recognizes that a normative act does not contradict a federal law or other normative act of greater legal force, it decides to refuse the relevant application. IN otherwise the court declares the normative act ineffective in whole or in part from the date of its adoption or otherwise, specified by the court, time.

A court decision to invalidate a normative act entails the loss of force of this act, as well as other normative acts that are based on the invalidated normative act or that reproduce its content.

The court decision is published in printed edition, in which the normative legal act was officially published. The court decision cannot be overridden by re-adopting the same act.

If there are grounds, they can always start a challenge procedure. But for this you need to know the regulations and the possibility of changing the entry or completely canceling the validity of a document.

Definition of regulations

Until 2007 clear definition regulatory documents was missing. But the Resolution of the Plenum of the Verkhovna Rada of the Russian Federation No. 48 gives the signs of normative legal acts. In fact, they are a product of lawmaking and are adopted according to certain rules depending on the type of government structure.

By force, acts can be divided into the following categories:

• Law. They have the highest legal force and are adopted by public authorities with the appropriate powers. Distinguish between constitutional and ordinary. By duration - permanent, temporary or emergency.
• By-law. The basis for them is the previously adopted law. This type of document can clarify some interpretations or identify exceptions to the rules.

To begin the procedure for challenging regulatory legal acts, it is necessary to study the Code of Administrative Proceedings No. 21-FZ.

It was adopted relatively recently - in March 2019. It provides a clear definition of the possibility of recognizing one or another state document invalid, as well as signs of violation of rights. These rules are described in Section IV, Chapter No. 21 of the law. But for an unambiguous reading of certain rules, it is recommended to contact professional lawyers specializing in such cases.

In what cases does the appeal procedure begin?

The main task of the court is to determine the presence of certain violations in the content or adoption of a normative legal act. To do this, a number of procedures are carried out aimed at comparing its provisions with other norms of legislation. By default, they should have greater legal force and be classified as laws of the first order.

In practice, the following may be grounds for challenging a normative legal act:

• It violates current legislation. However, the document does not have a legal higher power than the current law.
• Its content does not meet the standards international law. The act infringes on the rights of a certain category of citizens of the Russian Federation, entrepreneurs or public figures(organizations).
• When the document was adopted, serious violations were made in the regulations. Most often this happens at the local level - in city or village councils. In this case, any subject of the Russian Federation to which the rules can be applied adopted act has the right to challenge it.

The most difficult thing is to determine where exactly the violation was committed. But for this there are specific powers of the court that allow procedural actions– attracting third-party specialists to analyze the document, creating special commission or other methods of determining the legality of an act.

It is noteworthy that there is no statute of limitations for such cases.

Proceedings can begin at any time as long as the document is in force. But in the event of its cancellation, if for the plaintiff the action of the legal act became the cause of material or moral damages, the statute of limitations is not defined.

Process initiators

The law defines a clear circle of persons, public and government organizations who have the right to appeal one or another valid document. The main condition is its influence on professional activity, possible infringement of any rights or freedoms. The exact list of subjects of the Russian Federation and their ability to begin the challenge procedure are prescribed in Article No. 208 of Section IV of Law No. 21-FZ.

Submit administrative claim The following categories of citizens, organizations, managers and government structures have the right:

• subjects of the Russian Federation that are directly affected by the effect of a potentially erroneous document;
• challenging fundamental laws can be initiated by the prosecutor (if this is within his competence), the President or the Government of the Russian Federation;
• a public association, if the act partially or completely violates the rights and freedoms of citizens of a certain category, regardless of the status of the organization;
• Central election Committee, if the content of the document directly affects the process of holding elections or freedom of expression of the subjects of the Russian Federation.

If preliminary check did not reveal any violations in the content or procedure of acceptance - it is impossible to go to court to challenge it. Exception - there is evidence of the incompetence of the research or experiments being conducted. But such questions rarely arise, since during the inspection they adhere to current standards. In practice, it is very difficult to challenge already verified legal acts.

Consideration of cases challenging regulatory legal acts

To begin the challenge procedure, all the above conditions must be met. Only those persons or organizations whose activities are illegally limited by the document have the right to go to court. Then the jurisdiction of the case under consideration is selected, a package of documents and evidence is prepared.

The nuances of challenging:

• a statement of claim is drawn up naming the plaintiff, full list claims to the current act and attached evidence of its incompetence;
• the maximum period for consideration of a case is 2 months (Article 213);
• During the trial, the court has the right to suspend the validity of the document (Article 211);
• there is the possibility of combining several cases within one process if rules of similar content are considered (Article 212).

These subtleties must be taken into account not only during trial, but also before it. This opens up the opportunity to provide additional evidence - statements, extracts or testimony of witnesses. It is important that their form complies with the requirements of Chapter 6 of Law No. 21-FZ.

Determining the court

After collecting all the evidence and deciding on the list of precautions, you need to choose the right jurisdiction for the future case. To do this, you should study the contents of Chapter No. 2 of Law No. 21-FZ. If you choose the wrong place for consideration, the claim will be rejected on legal grounds.

List of courts that have the right to change the effect of regulatory legal acts:

• Supreme Court of the Russian Federation, magistrates or general jurisdiction. They are competent to consider all administrative cases, except those discussed at meetings of the Constitutional Court of the Russian Federation (Article 17).
• Military courts. In their department, establish the legality of an act relating to the effectiveness of military institutions or organizations subordinate to them (Article 18).
• District Court. Cases in this legal instance are rarely discussed and are the exception rather than the rule (Article 19).
• Courts of the republic, regional, regional or city. Claims are filed with these authorities if the effect of an administrative legal act is limited territorially (Article 20).

The arbitration court considers a challenge only if the case does not relate to any of the above legal authorities. Each of them has a specific form statement of claim. A sample can be obtained from the court secretariat or you can use the services of lawyers. The latter is recommended if the case at hand is complex.

Participants

During the hearing of a case of challenge, it is possible to involve third parties or representatives of organizations. This can be done by the defendant, plaintiff or court. A similar measure allows you to clarify the details of the adoption of the act or the interpretation of its content. These statements belong to the category of witness statements, so if persons (organizations) were not indicated in evidence base– during the meeting it is necessary to submit a petition to involve them in the process.

To identify all the circumstances of the adoption of a document or for consultation, the following categories of persons may be involved:

• management or chairman of the meeting by which the administrative act was adopted;
• responsible persons who promulgated it or gave consent for it to enter into legal force;
• independent or in-house experts.

The law stipulates liability for evasion of testimony for civil servants. This may take the form of a fine or administrative measures. They are described in Article No. 336 of the Code of Civil Procedure of the Russian Federation.

Possible reasons for refusal

During the hearing or even before it, the court has the right to refuse to consider the claim. The basis for this may be violations in the submission of documents, rules of conduct of the case, or other circumstances. You need to be prepared for this in advance to avoid such mistakes.

Common reasons refusal to challenge:

• Absence of objective violation of the rights and freedoms of the plaintiff by the act. Example - a private party who is not an entrepreneur files a lawsuit in court to challenge an administrative legal act that concerns commercial duration.
• The plaintiff has no right to defend the interests of third parties, organizations or groups. Exception - this possibility is provided for by Federal Law.
• The document in question does not belong to the category of regulatory legal acts. This may be a project that has not yet been accepted or has been rejected.
• The document has lost its legal force. The same applies not only to its full content, but also to any part. A similar situation arises if the plaintiff was not aware of latest changes in content.
• The legality of the act has been verified. The nuances of this procedure are described above.

If these signs are absent, the court is obliged to consider the case within the prescribed time frame. After the decision is made, the content of the act may be changed or its effect may be completely suspended.

Consequences of a positive court decision

It is important for the plaintiff to know when and in what ways a positive decision of the court hearing will be confirmed. Happens often partial satisfaction claim, which is indicated in the final document. It also specifies the actions that must be taken regarding the legal act.

They are expressed as follows:

• invalidate from the moment official decision ships;
• the legality of a document is canceled from the date of its adoption if its content contradicts an act of greater legal force;
• cancellation of the action from the moment of its publication in official sources.

If during the consideration of the case the plaintiff renounced his claims, this is not a reason for suspending the work of the court. Actions within the framework of the regulations are mandatory for everyone. The same applies to a court decision. The exception is if it is appealed to a higher legal authority.

O.A. Eremina, assistant judge of the Fifteenth Arbitration Court court of appeal

APR: Often the subject of a judicial dispute becomes the verification of the legal force (bindingness) of a legal act. The opportunity itself legal challenge normative documents is an essential sign of the formation civil society And rule of law. When filing a claim to challenge a legal act, you need to find out whether it has the property of normativity or not. An important criterion distinguishing normative acts from non-normative ones is the content of their instructions and the method of regulating the corresponding relations. The article analyzes the current arbitration practice in cases of challenging regulatory legal acts.

The procedure for considering cases of challenging regulatory legal acts is established in Chapter. 23 of the Arbitration Procedure Code of the Russian Federation, it defines the conditions for going to court, the circumstances to be established in court hearing, rules for distributing the burden of proof in a case and other features of consideration of the analyzed category of cases. Some issues of consideration of cases challenging regulatory legal acts are explained in the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 13, 2004 N 80 “On some issues arising in judicial practice when arbitration courts consider cases challenging regulatory legal acts” (hereinafter referred to as the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation N 80). However, despite such detailed regulation in judicial practice, questions arise about the peculiarities of the application of individual procedural institutions in the process of considering a case on invalidating regulatory legal acts.

Establishing the property of normativity in contested legal acts

When considering disputes about the legality of normative legal acts, which are classified as a separate category of court cases, arbitration courts are faced with a number of problems. An analysis of judicial practice shows that one of the most complex issues when considering such cases it is establishing the nature (character) of the contested legal act. This is due to the determination of the jurisdiction of the case to the arbitration court and the very nature of the object of judicial normative control, on which the procedure for considering the case depends. Chapters 23 and 24 of the Arbitration Procedure Code of the Russian Federation establish different order hearing cases challenging normative and non-normative legal acts.

According to Part 3 of Art. 191 of the Arbitration Procedure Code of the Russian Federation, consideration of cases challenging normative legal acts should be within the competence of arbitration courts federal law. Therefore, many court decisions conclude that the basis for canceling court decisions is the lack of assessment of the nature of the disputed legal act ( Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 10, 2007 N 1082/07; Resolution of the Federal Antimonopoly Service of the North Caucasus Region dated March 13, 2006 N F08-455/2006).

Under legal act understood written document, adopted by an authorized subject of law (state body, local government body, officials on behalf of specified bodies), aimed at regulating public relations and of a mandatory nature. The difficulties that arise for judges in establishing the nature of a legal act are associated with the lack of a clear and precise, legally enshrined definition of a normative legal act. This gap was partially filled in the Resolution of the State Duma of the Federal Assembly of the Russian Federation dated November 11, 1996 N 781-II GD “On appeal to the Constitutional Court of the Russian Federation.” According to this document, a normative legal act is a “written official document, accepted (published) in a certain form law-making body within its competence and aimed at establishing, changing or abolishing legal norms. In turn, a legal norm is understood as a generally binding government regulation permanent or temporary, designed for repeated use." Thus, rule of law characterized the following signs: is a generally binding rule of behavior that is established or sanctioned by the state; is of a general nature, non-personalized and designed for repeated use; formally defined; provided by state coercion.

In their practice, courts also use the definition set out in paragraph 12 Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 20, 2003 N2"On some issues that have arisen in connection with the adoption and enforcement of the Civil Procedure Code of the Russian Federation." It is noted here that a normative legal act is an act issued in the prescribed manner by an authorized government body, local government body or official, establishing legal norms (rules of behavior), mandatory for an indefinite number of persons, designed for repeated use and acting independently depending on whether specific legal relations provided for by the act arose or ceased.

However, it is necessary to take into account the additional difficulties caused by negative features modern lawmaking in our country: the rules of legislative technology are violated; there is no established unified list of types and names of regulatory legal acts; acts often contain provisions both normative and non-legal normative, which is especially typical for municipal rule-making.

In the legal literature there are conflicting definitions of a normative act and criteria for distinguishing between normative and non-normative legal acts. Thus, one cannot agree that the property of the normativity of a particular act is its adoption only authorized body authority or official (). Recognizing in principle that a normative legal act must be issued authorized entity, it is also necessary to take into account that this is rather a sign of the legality of a normative act, and not its essential feature as a legal act. Judicial practice shows that until such an act is declared invalid, it can be used to regulate relevant relations, and its failure to comply entails liability established by law (decisions of arbitration courts of the Republic of Khakassia dated July 31, 2006 N A74-2083/2006, the Republic of Sakha (Yakutia) dated July 29 .2003 N A58-1198/2003, Kirov region dated November 21, 2003 N A28-10000/03-289/13 ).

Often, as a sign of a normative legal act, the frequency of its application or the periodicity of the validity of the rule of law enshrined in it is identified (). But if we proceed from the focus of a normative legal act on establishing, amending or abolishing norms of law, then the repeated application of it is in any case presumed. We believe that the lack of repeatability of the document does not exclude general legal regulations. This is also evidenced by practice. regulatory regulation(federal laws of November 4, 2006 N 186-FZ “On the creation of the Arbitration Court Perm region", dated 04.10.2003 N 130-FZ "On the creation of the Northern District Court of the city of Orel", etc.). To explain our position, let us dwell in more detail on this sign regulations.

Judicial practice shows that the absence of repeated application of a legal act does not clearly indicate its non-normative nature. Thus, when checking the legality and validity of the decision of the Arbitration Court of the Rostov Region dated March 21, 2006 N A53-35044/2005-C5-5, the cassation court found that the order of the head of the Krasnosulinsky district administration dated September 20, 2005 N 913 on the creation of a controlling working group in places organized trade in this administrative region is legal nature normative act ( Resolution of the Federal Antimonopoly Service of North Kazakhstan Region dated 06.06.2006 N F08-2349/2006-967A). Although it seems obvious that in in this case there was no repeated use as a sign of a normative legal act. After all, creating a working group is a one-time action.

In another case, FAS North Caucasus Region in Resolution dated June 16, 2005 N F08-2518/2005 directly pointed out the absence of such a feature of the contested legal act as repeated application. The subject of the dispute was clause 4 of the resolution of the head of the administration of Rostov-on-Don dated June 30, 1994 N 931 “On the creation of district municipal institutions with customer functions in the city’s housing and communal services sector.” The contested part of this act stated that district municipal institutions in the field of housing and communal services, cities are legal successors for budget debts of third parties; acts of acceptance and transfer of budget debts are approved by the head of the administration of the relevant district. The court concluded that paragraph 4 of this resolution is individual character. It is designed for one-time use by the persons named in it.

Following this logic, documents issued in the form of normative legal acts, but designed for use in one case (for example, on the creation or liquidation of an organization, institution, etc.), are normative and legal in the formal sense. Consequently, they can be challenged through the judicial regulatory control procedure. But when examining the content of normative legal acts, one cannot fail to notice their high social significance, which cannot be inherent in non-normative acts aimed at individual subjects and affecting only their interests. Therefore, it should be recognized that in judicial practice, when considering cases of challenging legal acts, difficulties arise in establishing the normative nature of those acts that are addressed to specific persons and (or) issued in relation to specific objects.

Thus, the Arbitration Court of the Udmurt Republic considered the case of LLC JV "Ecologist" challenging the resolution of the head of the administration of the city of Glazov dated December 30, 2004 N 350/5 "On prices for services of LLC JV "Ecologist" provided to organizations financed from the budget." By decision of the court of first instance, the stated claims were denied due to the missed deadline for appeal. When considering the cassation appeal of the FAS Ural district established that the contested act contains authoritative instructions in the field of pricing for LLC JV "Ekolog" and organizations using its services, financed from the budget. As characteristic feature of this contested act, its focus on repeated application was indicated. It continued to operate regardless of whether legal relations arose or ceased between JV Ekolog LLC and specific consumer. Therefore the court cassation instance concluded that the contested act is normative in nature and is subject to consideration according to the rules of Chapter. 23 Arbitration Procedure Code of the Russian Federation ( Resolution of the Federal Antimonopoly Service UO dated 10.10.2006 N F09-462/06-S4).

Similar arguments were presented by the Federal Antimonopoly Service of the North-Western District, which identified signs of normativity in the contested resolution of the Regional Energy Commission of the Republic of Karelia dated February 27, 2004 N 13 “On payment for transmission services of JSC Petrozavodskmash” electrical energy". The court of first instance terminated the proceedings, considering it unproven that the disputed decision violated the rights and legitimate interests the applicant, as well as in connection with missing the deadline for filing an application in accordance with Part 4 of Art. 198 Arbitration Procedure Code of the Russian Federation. When considering the cassation appeal, the FAS of the North-Western District pointed out the unlawful consideration of the dispute in accordance with Ch. 24 Arbitration Procedure Code of the Russian Federation. The contested resolution of the Regional Energy Commission established a fee for services for the transmission of electrical energy to JSC Petrozavodskmash to ensure reliable and uninterrupted operation of substation No. 18, on the basis of which settlements were made with the applicant and other sub-subscribers. Consequently, this resolution did not clearly define subject composition, but only indicated the name of the subject of tariff regulation. In addition, it established a fee for the transfer of electrical energy to an unspecified circle of persons, and contained mandatory regulations designed for repeated use. All these circumstances allowed the cassation court to classify the decision of the REC dated February 27, 2004 N 13 as a normative legal act, and to send the case for a new consideration ( Resolution of the Federal Antimonopoly Service NWZ dated 01.02.2007 N?A26-4493/2006).

It is worth highlighting one more category of regulatory legal acts that apply to specific objects. It's about on acts establishing public land easements, road signs, defining the boundaries of red lines, etc. Such legal acts entail consequences for an indefinite number of persons and have the property of being generally binding.

Thus, by the decision of the arbitration court of first instance, clause 1 of the resolution of the head of the administration of Volgodonsk, Rostov region No. 101 dated January 23, 2004 was declared invalid. The disputed paragraph of the resolution was actually canceled public easement, providing the right to travel through a land plot leased by Market Center LLC. Considering that this easement was established in the manner prescribed by the Land Code of the Russian Federation for passage and passage through the land plot and in the interests local population, the decision to cancel it must be made by the local government in compliance with clause 2 of Art. 48 Land Code of the Russian Federation. But the administration of Volgodonsk, Rostov region, did not provide the court with evidence that the public easement was canceled due to the lack of social need. Therefore, the legality of the decision of the court of first instance was confirmed by resolution of the Federal Antimonopoly Service of the North Caucasian Region dated 05/03/2005 N F08-686/2005.

Differently court case The subject of the dispute was the actions of the administration of the Municipal Municipality "City of Arsenyev" and the Department of Internal Affairs of the city of Arsenyev related to the installation on the station square of the sign "Entry is prohibited, except for vehicles performing municipal order", as well as clause 2 of the resolution of the head of the municipal municipality "City of Arsenyev" dated 01.10.2004 N 314 "On ensuring security in the territory railway station city ​​of Arsenyev". The Supreme Arbitration Court of the Russian Federation, when considering the complaint by way of supervision, directly pointed out the normative nature of the contested resolution. As a result, the consideration of the case by the court of first instance in accordance with Chapter 24 of the Arbitration Procedure Code of the Russian Federation (challenging non-normative legal acts) was declared unlawful and the case was sent for a new trial ( Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated July 18, 2006 N 2943/06).

During the hearing of the dispute regarding the invalidation of the decision of the City Duma of the Municipal Municipality "City of Krasnodar" dated May 26, 2005 N 68 "On approval of the red lines of the street named after Volodya Golovatoy between the street named after Kirov and the street named after Frunze in Krasnodar" the court found that the disputed legal act is normative. The case was considered in the order of Ch. 23 of the Arbitration Procedure Code of the Russian Federation and the application was denied. The court's decision was supported by the FAS North Caucasus Region in Resolution dated April 11, 2007 N F08-1460/2007.

The given examples from judicial practice confirm the conclusion that essential feature of a normative legal act is the content of the rules of law in it, and all other distinguished features are formal and cannot predetermine the presence or absence of the property of normativity of the act.

It is important to note that a similar conclusion was made in the decision of the Constitutional Court of the Russian Federation dated October 20, 2005 N 442-O, where it was, in particular, stated that when considering cases challenging a normative legal act, arbitration courts do not have the right to limit themselves to formally establishing compliance with the procedure and form of adoption of the challenged act. Courts must establish the fact of violation of the rights and legally protected interests of citizens or legal entities by an unpublished normative act and in each specific case actually ensure the effective restoration of violated rights (). Thus, failure to comply with the form and procedure for adopting an act cannot be grounds for recognizing it as non-normative. The defining feature of a normative act is the presence of legal norms in it and, as a consequence, the ability to influence the interests of an unlimited number of persons, leading to certain legal consequences, which ultimately determines the high social significance of the document.

If we recognize that the only essential feature of a normative act is the content of the rules of law in it, then such criteria for distinguishing normative acts from non-normative acts as internal structure, form of expression, procedure for adoption, entry into force and communication to law enforcement officials are not of fundamental importance. The mere compliance of a legal act according to the specified criteria with the form and procedure for the adoption of normative acts (for example, the name of the act, state registration, publication in official publication etc.) does not yet indicate the presence of legal norms in it. But the very content of the regulations and the method of regulating relations are indeed criteria for distinguishing normative acts from non-normative acts, since they indicate the presence of a rule of law.

It is precisely this approach to determining the normative nature of legal acts that is followed by the Supreme Arbitration Court of the Russian Federation, which can be illustrated by the following example. In his decision dated 03/06/2007 to recognize partially invalid the letter of the Ministry of Finance of Russia dated 01/16/2006 N 03-04-15/01, he indicated that the text of the disputed letter contains the following provisions: "...The tax base is determined based on full cost produced construction work, including work performed by the taxpayer’s own resources and work performed by outsourced contractors"Consequently, this letter establishes, taking into account subparagraph 5, paragraph 1, article 32 of the Tax Code of the Russian Federation mandatory rules formation tax base when taxpayers perform construction and installation work for their own consumption. In addition, the Federal Tax Service of Russia cover letter dated January 25, 2006 N MM-6-03/63@ sent the disputed letter of the Ministry of Finance of Russia N 03-04-15/01 to all lower tax authorities for use in their work and informing taxpayers about it. This presupposes, in principle, the repeated application of the instructions contained therein, which will be used in the work tax authorities during events tax control and therefore generate legal consequences for an indefinite number of people.

In addition, the Supreme Arbitration Court of the Russian Federation, when considering this case, established that the disputed letter from the Ministry of Finance of Russia violates the rights and legitimate interests of the applicant in the case of Chepetsky Mechanical Plant OJSC: “As follows from the descriptive part of the decision of the Interdistrict Inspectorate of the Federal Tax Service on largest taxpayers By Udmurt Republic dated 26.09.2006 N 12-46/68, the provision of the letter of the Ministry of Finance of Russia dated 16.01.2006 N 03-04-15/01, disputed by the company, was actually applied to the company during the cameral tax audit value added tax declaration for June 2006." Under such circumstances, the court came to the conclusion that the letter of the Ministry of Finance of Russia established a legal norm (rule of conduct) mandatory for an indefinite number of persons, which is a sign of a normative legal act. Therefore, the contested provision of this letter must be "qualified as a regulatory legal order issued by a federal agency executive power, authorized to carry out the functions of developing state policy and legal regulation in the field of taxes and fees."

The Supreme Arbitration Court of the Russian Federation did not limit itself to stating that the subject of the challenge is a letter, and the publication of normative legal acts in the form of letters and telegrams is not allowed (clause 2 of the Rules for the preparation of normative legal acts federal bodies executive power and their state registration, approved by Decree of the Government of the Russian Federation of August 13, 1997 N 1009). The court established circumstances indicating that the disputed letter was used for the normative regulation of public relations ( decision of the Supreme Arbitration Court of the Russian Federation dated March 6, 2007 N 15182/06).

Similarly, the Supreme Arbitration Court of the Russian Federation considered the issue of legal nature Letter of the Federal Tax Service of Russia dated October 26, 2004 N 09-0-10/4223 “On the issue of making changes to information about a legal entity contained in the Unified State Register of Legal Entities.” With this letter, the legal entity was obliged to submit to the registration authority an application in the form NP14001, signed by the former manager legal entity. In its decision, the Supreme Arbitration Court of the Russian Federation indicated that the disputed letter from the Federal Tax Service of Russia establishes rules of conduct that are mandatory for an indefinite number of persons and are designed for repeated use. Non-compliance specified requirement may entail consequences in the form of refusal of registration based on the submission to the registration authority of an application signed by an unauthorized person. This is a violation of the rights and legitimate interests of business entities in the field of entrepreneurial activity and puts it on them additional responsibilities (decision of the Supreme Arbitration Court of the Russian Federation dated May 29, 2006 N 2817/06).

However, this approach is not always followed and there are cases of contrary judicial practice. Thus, the Supreme Arbitration Court of the Russian Federation received an application from Vinny Mir LLC to invalidate paragraph. 12 clause 18 of the order of the Federal Customs Service of Russia dated June 11, 2004 N 663 “On approval of the procedure for organizing and conducting customs audits.” The contested provision stipulates that when conducting a special customs audit, members audit commission have the right to take samples of goods necessary for research (Article 383 of the Labor Code of the Russian Federation), the procedure for taking samples and samples is determined by the Labor Code of the Russian Federation and the regulatory legal acts of the State Customs Committee of Russia. When considering the case, the Supreme Arbitration Court of the Russian Federation established that by letter of the Ministry of Justice of Russia dated 07/06/2004 N 07/6472-UD, order of the Federal Customs Service of Russia dated 06/11/2004 N 663 was recognized as not requiring state registration, since it is of an organizational nature and does not contain legal norms. In the decision of the Supreme Arbitration Court of the Russian Federation dated November 8, 2006 N 12146/06 it is indicated that the contested act as failed state registration does not entail the establishment of mandatory instructions and rules of conduct for the applicant and, therefore, cannot violate the rights and legitimate interests of the applicant. In this regard, it was concluded that the applicant’s request for invalidation was refused. of this order Federal Customs Service of Russia.

From the above example it is clear that the Supreme Arbitration Court of the Russian Federation decided the issue of the legal nature of the contested act without examining the factual circumstances of the case regarding the violation by the contested order of the rights and legitimate interests of the applicant and did not analyze the content of the contested provisions.

In this aspect, the recently expressed position of the Russian Ministry of Finance itself regarding its explanations and whether they should be guided in practice as normative acts is of interest. In a letter dated 08/07/2007 N 03-02-07/2-138“On clarification of the provisions of Article 34.2 of the Tax Code of the Russian Federation,” it was noted that the written explanations of the Ministry of Finance of Russia on the application of the legislation of the Russian Federation on taxes and fees do not contain legal norms, are not aimed at establishing, amending or repealing legal norms and are not regulatory legal acts. Explanations from the Russian Ministry of Finance are not subject to mandatory publication. Such clarifications are published informally. It was also explained that written explanations from the Russian Ministry of Finance and the Department of Tax and Customs Tariff Policy of the Russian Ministry of Finance, provided at the request of specific taxpayers, are of an informational and explanatory nature. They should be taken in conjunction with other publications by specialists in the field and do not preclude interested parties from being guided by the standards tax legislation in a different interpretation from that set out by the Russian Ministry of Finance.

In general, we believe that the line between normative and non-normative legal acts is very fluid and is not always expressed clearly and definitely. Difficulties in distinguishing them lie in the specifics of a number of legal acts, where regulations intertwined with non-normative ones, in the absence exhaustive list issues regulated by regulatory and non-normative acts respectively, as well as in many similarities of both types of legal acts. Resolving the issue of the normativity of the contested act in each controversial case must be carried out by judges based on detailed analysis the actual circumstances of the case, the content of the act itself, the way it regulates the relevant relations and the nature of the actions carried out on its basis.

Application of interim measures in cases of challenging legal acts

Cases of normative control are exclusively of a public law nature. Subject judicial trial is legal conflict in the field of rulemaking. However, there is no dispute about subjective rights and responsibilities, which determines the specifics of the process in the case of challenging regulatory legal acts. This part The article is devoted to the consideration of some procedural features consideration of cases in this category.

According to Part 3 of Art. 193 of the Arbitration Procedure Code of the Russian Federation, filing an application to declare a normative legal act invalid does not suspend the validity of the contested act. In the comments to this article it was noted that this norm does not entail automatic suspension of the action of the contested act (). Based on this interpretation, the arbitration courts recognized that, at the request of the persons participating in the case, the suspension of the validity of the contested act is possible ( Resolutions of the Federal Antimonopoly Service of the Moscow Region dated 02.21.2005 N KA-A41/358-05, FAS PO dated 03.22.2006 N A06-2626U/3-23K/05). The courts also recognized the possibility of taking other types of interim measures, for example, a ban on the execution of a contested act ( resolutions of the Federal Antimonopoly Service ZSO dated November 12, 2003 N F04/5718-1087/A70-2003, dated November 12, 2003 N F04/5717-1086/A70-2003).

At the same time, in paragraph 5 Information letter The Presidium of the Supreme Arbitration Court of the Russian Federation No. 80 clarified that on the basis of this article, in cases of challenging normative legal acts, such an interim measure as suspension of the validity of the contested act cannot be applied. The Supreme Arbitration Court of the Russian Federation clearly recognized that such a suspension is impossible either automatically or at the request of persons participating in the case. But the legality of such an interpretation of Part 3 of Art. 193 of the Arbitration Procedure Code of the Russian Federation is called into question in scientific literature(), in connection with which we will consider this issue in more detail.

The essential features of a normative act are its universality and non-personality. If the arbitration court applies an interim measure in the form of suspending the validity of the contested act, the court deprives the normative act of the specified characteristics. Based on the court’s ruling on the adoption of an interim measure, the person challenging the normative act is excluded from the scope of regulation of the normative act (and not yet recognized by the court as invalid, i.e., still having legal force). For other participants in regulated social relations, the contested act is binding and subject to execution.

A similar situation arises if the court takes other types of interim measures, for example, suspending the execution of a demand for payment mandatory payments and sanctions based on the contested normative act. As a result, an exception occurs specific person from the sphere legal regulation a normative act that has not yet been declared illegal by a court.

Based on these considerations, it should be recognized that in relation to normative legal acts there is a presumption of legality; therefore, the use of interim measures in the process of challenging a normative act is impossible.

Refusal of the stated claims and their recognition by the body (person) that adopted the contested act

When considering cases of challenging regulatory legal acts, there are features in the application of such procedural institutions as waiver of stated claims and recognition of claims. The filing of such petitions does not prevent the arbitration court from considering the case on the merits ( resolution of the Federal Antimonopoly Service UO dated June 18, 2003 N F09-1723/03-AK; FAS VBO dated July 19, 2007 N A79-1092/2007).

Thus, when considering the case on recognizing partially invalid the decision of the Council of the Municipal Formation "City of Syktyvkar" dated December 28, 2004 N 17/12-235, one of the applicants in the case declared a waiver of the requirements (case A29-13595/05A). The court with reference to paragraph 8 of Art. 194 of the Arbitration Procedure Code of the Russian Federation considered the case on its merits and decided to declare the contested normative act invalid.

In the practice of arbitration courts, applicants rarely resort to the opportunity to waive their stated claims in the case of declaring a normative legal act invalid. The existing isolated cases of refusal of a requirement relate mainly to normative legal acts that have already lost force, i.e. canceled by the bodies or officials who accepted them ( Resolution of the Federal Antimonopoly Service of the Federal Antimonopoly Service of September 27, 2006 N F03-A24/06-2/2009; FAS North Caucasus Region dated December 14, 2006 N F08-6250/2006).

Challenging expired normative legal acts

According to paragraph 6 of Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 80, if before the arbitration court makes a decision on an application to challenge a normative legal act, it is canceled in the prescribed manner or its effect has ceased, the proceedings in the case are also subject to termination. The basis for termination is clause 1, part 1, art. 150 of the Arbitration Procedure Code of the Russian Federation, since the subject of the dispute in this case ceased to exist.

Legality of termination of proceedings in the case this basis was the subject of consideration in the Constitutional Court of the Russian Federation. IN definition of the Constitutional Court of the Russian Federation of July 12, 2006 N 182-O it is stated that if during the trial a violation of the rights and freedoms of the applicant is established by the contested normative legal act, the court cannot terminate the proceedings in the case when this normative legal act is declared invalid by the decision of the body or official that adopted it, or in the case when it has expired the validity period of this regulatory legal act (). The right to judicial protection guaranteed in Art. 46 of the Constitution of the Russian Federation, presupposes complete, timely and effective restoration of rights through justice, as well as the inadmissibility of replacing judicial protection with another procedure and arbitrarily terminating initiated legal proceedings.

Consequently, the loss of force of a normative legal act contested in an arbitration court does not in itself constitute grounds for terminating the proceedings.

Based on this position of the Constitutional Court of the Russian Federation, the courts make decisions according to which the termination of proceedings in the case of declaring a normative legal act invalid on the basis only of the fact that it has lost legal force leads to the refusal of the applicant to judicial protection his rights and freedoms. This does not correspond to the situation in proceedings in cases arising from public legal relations, a public need to resolve a dispute about the legality of a contested normative legal act on its merits. Therefore, further progress of the case cannot be associated with the fact that the contested normative legal act has lost force ( Resolution of the Tenth Arbitration Court of Appeal dated October 26, 2006 N A41-K2-10633/06).

The limits of the court's competence in cases of challenging normative legal acts

According to Part 5 of Art. 194 of the Arbitration Procedure Code of the Russian Federation, when considering cases of challenging normative legal acts, the court is not bound by the applicant’s arguments and checks the contested provision in in full. This norm establishes the right of the court, not limiting itself to the reasons given by the applicant for declaring a normative legal act invalid, to independently establish circumstances indicating its illegality.

However, this does not mean that when considering a case of challenging any part of a normative legal act, having established circumstances indicating the illegality of the entire normative act or its other provisions, the court has the right to go beyond the subject of consideration, declaring all illegal provisions invalid. Specified rate determines the volume legal verification subject judicial review, and not the subject of judicial review itself.

Thus, when checking the legality and validity of the decision, the cassation court pointed out the violation by the court of first instance of the rules procedural law. The subject of dispute in the case was points 1.1 and 2.2 of the resolution of the mayor of Krasnodar dated April 29, 1999 N 707 “On approval of rates rent for land in Krasnodar for 1999 and a standard form of a land lease agreement" and application No. 1 to this resolution of the mayor. When considering the application to invalidate these provisions, the court of first instance found that the resolution was issued by an unauthorized person - the mayor of the city, while establishing the procedure for ownership, use and disposal of city property and land plots within the city boundaries falls within the powers of the city duma. By the decision of the court of first instance, the specified position of the mayor of the city was declared invalid in full.

FAS North Caucasus District changed this court decision, declaring paragraphs 1.1 and 2.2 of the contested resolution and Appendix No. 1 to it invalid, i.e. the decision was brought into line with the scope of the stated requirements in the case ( Resolution of the Federal Antimonopoly Service of North Caucasus of September 26, 2006 N F08-4698/2006).

From the meaning of the provisions of Part 4 of Art. 194 of the Arbitration Procedure Code of the Russian Federation it follows that arbitration courts do not have the right to determine the compliance of a contested normative act with the Constitution of the Russian Federation, which has been repeatedly drawn to the attention of arbitration courts ( Resolution of the Federal Antimonopoly Service VSO dated 05.05.2004 N A19-14896/03-36-F02-1282/04-S1; FAS DO dated March 17, 2006 N F03-A51/06-2/230). The decisions of the arbitration courts of the cassation instance indicate that a reference to the inconsistency of a normative legal act with the Constitution of the Russian Federation when deciding the issue of its legality (and not constitutionality) is unlawful, since the verification of normative acts for compliance with the Constitution of the Russian Federation is not within the competence of arbitration courts. However, the indication in the decision of the arbitration court on the verification of the contested act of the Constitution of the Russian Federation by violation of the norms of procedural law, entailing the adoption wrong decision, is not recognized.

The considered limitation of the powers of the arbitration court should be recognized as legitimate.

The question of the right of an arbitration court to assess the constitutionality of normative legal acts was initiated by a theoretical discussion about the identity of the content of the concepts “constitutionality” and “legality” (). If we proceed from the recognition of the differences between these terms, then the constitutionality of a normative legal act is established compliance its contents of the Constitution of the Russian Federation. Legality is a more private phenomenon, involving verification of a normative legal act for compliance with the law. This position was reflected in resolutions of the Constitutional Court of the Russian Federation dated June 16, 1998 N 19-P, dated April 11, 2000 N 6-P and dated January 27, 2004 N 1-P. According to the legal positions of the Constitutional Court of the Russian Federation, the competence of courts of general jurisdiction in cases of regulatory control is limited to establishing the legality of regulatory legal acts. The Constitutional Court of the Russian Federation emphasized the inadmissibility of “intrusion” by courts of general jurisdiction into the assessment of the constitutionality of normative acts in the implementation of normative control. Although in these decisions the Constitutional Court of the Russian Federation did not consider issues of the powers of arbitration courts in cases of normative control, but from Part 4 of Art. 194 of the Arbitration Procedure Code of the Russian Federation it follows that this position reflected in procedural legislation.

Subject of proof in cases of challenging normative acts

The subject of proof in this category of cases includes the circumstances specified in Part 4 of Art. 194 and part 1 of Art. 192 of the Arbitration Procedure Code of the Russian Federation. So, according to Part 4 of Art. 194 of the Arbitration Procedure Code of the Russian Federation, when considering these cases, the court checks the contested act or its separate provision, establishes its compliance with the federal constitutional law, federal law and other normative legal act of greater legal force, as well as the powers of the body or person that adopted the contested normative legal act. This norm defines the content of the review of a normative legal act by the court.

When applying this norm, it should be taken into account that the court checks the content of the normative act or its part for compliance with current regulations legal acts, having great legal force. At the same time, the court does not address the issue of compliance of the normative act with the law at the time of its adoption. Consequently, the compliance of the contested act with the law when it was adopted does not indicate its legality at the time the case was considered by the court.

For example, when filing an application to invalidate the decision of the Duma of the Cheremkhovo municipality dated September 20, 2001 N 18/4-DG “On coefficients for calculating land rent for 2001-2002” in terms of establishing contractual coefficient when calculating rent for land for the placement of markets, the applicant pointed out the inconsistency of the said regulatory act with Art. 21 of the Law of the Russian Federation of October 11, 1991 N 1738-1 “On Payment for Land” (hereinafter referred to as the Law on Payment for Land), as well as Art. 22 and 65 of the Land Code of the Russian Federation.

The decision of the arbitration court of first instance rejected the application on the grounds that the establishment of the amount of rent by type of land use and categories of tenants was made in accordance with the Law on Payment for Land. References to the discrepancy between the decision of the Duma and Art. 22 and 65 of the RF Land Code were not accepted by the court due to the fact that the contested act was adopted before the RF Land Code came into force (). Consequently, the RF Land Code cannot be applied to controversial legal relations.

In the resolution court of cassation it was stated that since the contested normative act is subject to application to legal relations that arose after October 30, 2001, the date of entry into force of the Land Code of the Russian Federation, Ch. 23 of the Arbitration Procedure Code of the Russian Federation does not contain obstacles to checking an act for compliance with a normative legal act that has greater legal force and is valid in time simultaneously with the act being verified. Thus, the court of first instance unlawfully avoided checking the decision of the Cheremkhovo Municipal Duma for compliance with Art. 22 and 65 of the Land Code of the Russian Federation. The court's decision was overturned, and the contested normative act was declared invalid as inconsistent with Art. 21 of the Law on Payment for Land, paragraph 4 of Art. 22 and paragraph 3 of Art. 65 Land Code of the Russian Federation ( Resolution of the Federal Antimonopoly Service VSO dated December 4, 2003 N A19-15849/02-28-F02-4173/03-S1).

Establishing the compliance of a contested act with normative legal acts that have greater legal force includes checking compliance with the procedure for adopting a normative legal act established by law.

For example, special order for the adoption of normative legal acts is provided for in Part 7 of Art. 28 Town Planning Code RF, clause 2 art. 64 Budget Code of the Russian Federation, what the arbitration courts pay attention to (decision of the Arbitration Court of the Perm Territory dated September 14, 2004 N A50-24720/2004-A11; resolutions of the Federal Antimonopoly Service of the Eastern Military District dated October 31, 2006 N A29-13595/2005A; FAS Central District dated June 17, 2005 N A36- 243/2005).

In accordance with Part 1 of Art. 192 of the Arbitration Procedure Code of the Russian Federation, the basis for going to court is a violation of the rights and legitimate interests of a citizen or organization in the field of entrepreneurial and other economic activities. The absence of circumstances indicating a violation of the rights and legitimate interests of the applicant or the unlawful imposition of any duties on the applicant, or creating obstacles to the implementation of entrepreneurial or other economic activities, or their lack of evidence is grounds for refusal to satisfy the stated requirements. The specified circumstances must be documented and specific list documents are formed based on the subject of the dispute ( financial documents about increasing costs, lease agreements municipal property, tax returns, etc.).

For example, state enterprise"Zernogradmezhraivodokanal" applied to the arbitration court with an application to invalidate clauses 2 and 4 of the decision of the meeting of deputies of the Zernograd urban settlement dated February 21, 2006 No. 2, which changed the tariffs for the services provided by the applicant. In accordance with the contested decision, the enterprise was obliged to recalculate tariffs for water supply and sanitation services for the population from January 1, 2006 towards their reduction. However, when considering the case, the court established that, under an agreement with the administration of the urban settlement, the applicant in the case is reimbursed for the difference in tariffs and at the time of consideration of the case, a part of the amount was transferred to the applicant. Based on the above, the court concluded that the disputed clauses of the decision of the meeting of deputies of the city settlement do not violate the rights and legitimate interests of the applicant in the form of illegal imposition of additional financial costs. The court decision rejected the stated claims ( decision of the Arbitration Court of the Rostov Region dated September 12, 2006 N?A53-3669/2006-C5-5).

If the prosecutor applies to challenge the regulatory legal acts of state and municipal bodies, the applicant must confirm the facts of violation of the rights and legitimate interests of organizations and citizens in the field of business and other economic activities (Article 52 of the Arbitration Procedure Code of the Russian Federation). If an application for recognition of a normative act as invalid has been submitted government bodies, local government bodies, other bodies and officials, then in this case a violation is subject to proof public interests(Article 53 of the Arbitration Procedure Code of the Russian Federation). The absence of such evidence is also grounds for refusal to satisfy the stated requirements.

The lack of authority of a body or official to adopt a contested normative act is an absolute basis for declaring it invalid.

Scope of legal regulation carried out a separate body or an official - these are the powers that constitute his competence to carry out any activity, in particular, rule-making. The limit of normative regulation and the powers of the law-making body are inseparable from each other, and violation of the scope of legal regulation at the same time means a violation of the competence of the law-making body.

Thus, when considering a case on invalidating clause 7.2 of the Admission Rules Wastewater into the system public sewer Vereshchagino and clause 2 of Appendix No. 1 to the Rules for the Reception of Wastewater, approved. By decision of the Zemstvo Assembly of Vereshchagino dated November 20, 2003 N 31/261, the court found that the contested provisions of the normative act were adopted in violation of competence ( Resolution of the Federal Antimonopoly Service UO dated July 26, 2005 N F09-3176/05-S7). According to clause 7.2 of the above Rules, the total amount of payment per month for exceeding the standards is maximum permissible concentrations pollutants in wastewater cannot exceed the amount of the basic payment of subscribers per month for receiving wastewater into the public sewer system (except for concentrated wastewater discharged directly to wastewater treatment plants by motor transport). However, Decrees of the Government of the Russian Federation dated 02/12/1999 N 167, dated 12/31/1995 N 1310 and decree of the Governor of the Perm Territory dated 08/29/2003 N 167, regulating the procedure for collecting fees for the use of public water supply and sewerage systems, do not provide for the powers of local governments to establish either change the procedure for collecting, calculating and the amount of payments for exceeding standards for the discharge of wastewater and pollutants into sewerage systems settlements municipalities.

When determining the powers of a particular body or official, it is necessary to keep in mind the provisions of the law establishing the exclusive competence of government bodies or officials. For example, in Art. 35 Federal Law dated 06.10.2003 N 131-FZ "On general principles organizations of local self-government in the Russian Federation" is defined exceptional competence representative body local government. However, this provision of the Law is often violated.

Thus, the arbitration court declared invalid clause 3.1 of the order of the administration of the Verkhnekamsk region dated March 14, 2003 N 184 “On indexation of rates land tax in 2003." By the indicated order were introduced flat rates land tax to be applied in 2003. According to clause 3.1 of the order, taxes on lands located outside populated areas (industry, transport, communications, radio broadcasting, television, etc.) are levied at a rate of 4147 rubles/ha. The court decision indicated that the contested clause 3.1 of the order of the administration of the Verkhnekamsk region was adopted by the executive body of local government in contradiction current legislation, because at executive body local government does not have the authority to introduce land tax rates on the territory of the municipality ( decision of the Arbitration Court of the Kirov Region dated November 21, 2003 N A28-1001/03-290/13).

Thus, the subject of proof for the analyzed category of cases includes the following circumstances:

1. verification of violations of the rights and legitimate interests of the applicant in the field of business and other economic activities;
2. determination of the nature of the contested legal act;
3. establishing compliance with the procedure for adopting a normative legal act;
4. checking the powers of a government body, local government body or official to adopt a contested normative legal act;
5. determining the compliance of the contested normative legal act with the federal constitutional law, federal law and other normative legal act of greater legal force.

The operative part of a court decision to challenge a normative legal act must include an indication of recognition of this act corresponding to a normative legal act that has greater legal force, and therefore refuses to satisfy the application, or to recognize the contested act as not corresponding to a normative legal act that has greater legal force, and is not valid in whole or in part (Article 195 of the Arbitration Procedure Code of the Russian Federation). If the operative part of the decision to declare a normative act invalid does not indicate a law or other normative legal act that has greater legal force, the principle of enforceability is violated court decisions (Resolution of the Federal Antimonopoly Service VSO dated 09/07/2004 N A69-435/04-12-5-Ф02-3601/04-С1; FAS North Caucasus Region dated October 2, 2006 N F08-3849/2006). The body or official that adopted the contested act cannot fulfill the provisions provided for in Part 5 of Art. 195 of the Arbitration Procedure Code of the Russian Federation, the obligation to bring the provisions of the contested act recognized as invalid into compliance with normative legal acts that have greater legal force.

According to the provisions of Part 5 of Art. 195 of the Arbitration Procedure Code of the Russian Federation, if a normative legal act is declared invalid, it is not applied from the moment the court decision enters into legal force. In accordance with Art. 253 of the Code of Civil Procedure of the Russian Federation, the court, having established that the contested normative legal act or part of it contradicts a federal law or other normative legal act of greater legal force, recognizes the normative legal act as ineffective in whole or in part from the date of its adoption or another time specified by the court. Thus, civil and arbitration procedural legislation There are various consequences for declaring a normative act invalid depending on the nature of the dispute and the jurisdiction of the case. Such differences do not have any basis, and therefore it is necessary to establish unified rules consideration of the analyzed category of cases in arbitration courts and courts of general jurisdiction.

The court decision affects the rights not only of the persons involved in the case, but also the interests of an indefinite number of subjects, therefore it has some signs of normativity and has the legal force of the normative act that is declared invalid. This shows the high social significance of the analyzed category of cases. Consequently, the issue of uniform approaches to assessing the circumstances to be established when considering cases of invalidating a normative legal act requires further development.

*1) See, for example: Tikhomirov Yu.A., Kotelevskaya I.V. Legal acts. M., 1999. P. 17.

*2) Shugrina E.S. Technique legal letter. M., 2000. P. 12; Kerimov D.A. Culture and technology of lawmaking. M., 1991. S. 32-33.

*3) See the definition of the Constitutional Court of the Russian Federation dated October 20, 2005 N 442-O “On the complaint of SEB Russian Leasing CJSC for violation of constitutional rights and freedoms by paragraph 1 of Article 29, paragraph 1 of part 1 of Article 150, part 2 of Article 181, articles 273 and 290 of the Arbitration Procedural Code of the Russian Federation."

*4) Commentary on the AIC of the Russian Federation / Ed. V.F. Yakovleva, M.K. Yukova. M., 2003. P. 523.

*5) See: Abushenko A.V. Interim measures V administrative proceedings: Practice of arbitration courts. M., 2006.

*6) Definition of the Constitutional Court of the Russian Federation dated July 12, 2006 N 182-C “According to the complaints of citizen A.E. Kaplin, OJSC Kuzbassenergo, LLC” Business center"Gagarinsky" and CJSC "Innovation and Financial Center "Gagarinsky" for violation of constitutional rights and freedoms by the provisions of paragraph 1 of part 1 of article 150, article 192 and part 5 of article 195 of the Arbitration Procedural Code of the Russian Federation."

*7) See: Vitruk N.V. Constitutional justice in Russia (1991 - 2001): Essays on theory and practice. M., 2001. P. 58; Kravets I.A. Constitutionality of normative legal acts: doctrine and practice in Russia // Law and Politics. 2006. N 8; Constitution and law: stability and dynamism. M., 1998. P. 155.

*8) According to Art. 1 of the Federal Law of October 25, 2001 N 137-FZ "On the entry into force of the Land Code of the Russian Federation", the Land Code of the Russian Federation comes into force from the date of its official publication. The text of this law was published in Rossiyskaya Gazeta dated October 30, 2001, No. 211-212.