Review of the Supreme Court's judicial practice. Review of certain issues of judicial practice related to voluntary insurance of citizens' property Review of judicial practice of the Supreme Court of the Russian Federation

The voluntary property insurance market is currently characterized by an expansion of the range of financial services provided and insurance products offered by insurance entities, as well as an increase in the number of citizens using insurance services to protect their property interests.

According to the Federal Law of July 23, 2013 No. 251-FZ “On amendments to certain legislative acts of the Russian Federation in connection with the transfer to the Central Bank of the Russian Federation of powers to regulate, control and supervise in the field of financial markets,” the Bank of Russia is vested with regulatory powers, control and supervision in the field of financial markets of non-credit financial organizations, including insurance entities.

In accordance with the changes introduced by this law, control over compliance with the rights of consumers of insurance services, legality and integrity of behavior in the insurance market has been strengthened.

The Supreme Court of the Russian Federation is carrying out systematic work to summarize the practice of considering cases related to voluntary property insurance.

Thus, the Plenum of the Supreme Court of the Russian Federation adopted resolution No. 17 of June 28, 2012 “On the consideration by courts of civil cases in disputes regarding the protection of consumer rights,” which clarified, among other things, the application of legislation on the protection of consumer rights to insurance relations, as well as Resolution No. 20 of June 27, 2013 “On the application by courts of legislation on voluntary insurance of property of citizens”, containing systematic explanations of all aspects of the regulation of voluntary property insurance.

To date, considerable practice has been accumulated in the application by courts of legal norms regulating property insurance, taking into account the above-mentioned decisions of the Plenum of the Supreme Court of the Russian Federation.

Certain legal positions were set out in periodic reviews of the Supreme Court of the Russian Federation.

This Review has been prepared in order to ensure effective protection of the violated rights and legitimate interests of policyholders, beneficiaries and insurers, and the correct and uniform application of laws when considering cases of the relevant category.

1. The insured value of the property specified in the insurance contract cannot be subsequently disputed, except for the case where the insurer, who did not exercise its right to assess the insurance risk before concluding the contract, was deliberately misled regarding this value.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated May 16, 2017 No. 78-KG17-27

2. Unless otherwise provided by law or other legal acts, the parties to a voluntary insurance contract have the right, at their own discretion, to determine the list of cases recognized as insurance, as well as cases that cannot be recognized as insurance.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated March 7, 2017 No. 78-KG17-5
Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated February 28, 2017 No. 49-KG17-3

3. A voluntary insurance contract may provide that the loss of marketable value is not subject to compensation by the insurer.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated November 28, 2017 No. 16-КГ17-38

4. In case of doubt regarding the interpretation of the terms of the voluntary insurance contract set out in the policy and insurance rules, and it is impossible to establish the actual common will of the parties, taking into account the purpose of the contract, the interpretation most favorable to the consumer (contra proferentem) should be applied.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated April 21, 2015 No. 18-КГ15-47

5. In the event of damage to property during the period of validity of the voluntary insurance contract, the policyholder has the right to payment of insurance compensation, which cannot be made dependent on the fact that the filing of an application for payment of insurance compensation took place after the termination of the voluntary insurance contract.

6. The insurer cannot be exempted from paying insurance compensation based on the failure of the insured to take action to appeal the decision to refuse to initiate a criminal case regarding damage to the insured property.

7. If the voluntary insurance contract provides for a change during its validity period in the amount of the insured amount, on the basis of which the insured paid an insurance premium at the rate appropriate for such a differentiated insured amount, then under the full insured amount if the insured renounces the rights to property in favor of the insurer (abandon ) you should understand the insurance amount determined by the contract on the day of the insured event.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated November 28, 2017 No. 91-KG17-7

8. If the insurer fails to fulfill the obligation provided for in the voluntary insurance contract to carry out restoration repairs of the vehicle at a car service station, the policyholder has the right to demand compensation for the cost of restoration repairs within the limits of the insured amount.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated October 3, 2017 No. 49-KG17-19

9. If the obligation to pay insurance compensation was fulfilled by the insurer in a larger amount, the excess amount paid shall be returned as unjust enrichment.

10. The insured (beneficiary) under a voluntary insurance contract has the right, after performing the actions specified in paragraph 2 of Article 956 of the Civil Code of the Russian Federation, to replace himself with another person by concluding an assignment agreement, unless otherwise follows from the contract and the essence of the relationship between its parties.

11. The insured (beneficiary), who filed a claim against the insurer for the collection of insurance compensation, is obliged to prove the existence of a voluntary insurance agreement with the defendant, as well as the fact of the occurrence of an insured event provided for by the specified agreement. The insurer objecting to the payment of insurance compensation is obliged to prove the circumstances with which the law or contract connects the possibility of exemption from payment of insurance compensation, or has the right to challenge the insured’s arguments about the occurrence of an insured event, in particular, to provide evidence of the existence of another reason for the occurrence of these losses.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated December 15, 2015 No. 5-КГ15-188

12. If claims are made against the insurer under the Law on the Protection of Consumer Rights, the burden of proving that the insured property was used by the insured (beneficiary) exclusively for personal, family, household and other needs not related to business activities rests with the plaintiff.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated October 11, 2016 No. 47-KG16-12

13. The transfer to the account of the insured (plaintiff) of the amount of money required by him does not indicate the unfoundedness of the claim and cannot serve as a basis for refusing to satisfy claims in part of this amount. This circumstance may serve as a basis for the court to indicate that the amount paid is subject to offset against the execution of the decision to satisfy the claim.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated December 15, 2015 No. 45-KG15-16

14. Clarification by the insured (beneficiary) of the stated claims after the defendant has transferred part of the amount of insurance compensation does not indicate the existence of grounds for exempting the defendant from paying a fine, calculated taking into account the amount paid to the plaintiff after filing a claim in court.

15. Voluntary payment by the insurer of part of the insurance compensation indicates its recognition of the fact of the occurrence of an insured event, entailing the obligation to pay additional insurance compensation. The insurer is not exempt from paying a fine and compensation for moral damage if the court satisfies the insured's demands for additional payment of insurance compensation.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated December 1, 2015 No. 57-KG15-10

16. In cases where the policyholder, in connection with the insurer’s violation of the obligation to pay insurance compensation, makes a claim for the recovery of a penalty provided for in Article 28 of the Law on the Protection of Consumer Rights, such a claim is subject to satisfaction, and the penalty is calculated depending on the amount of the insurance premium.

Currently, one should be guided by paragraph 42 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 24, 2016 No. 7 “On the application by courts of certain provisions of the Civil Code of the Russian Federation on liability for violation of obligations,” according to which, if a penalty is established by law or agreement of the parties for violation of a monetary obligation, which is subject to the rule of paragraph one of paragraph 1 of Article 394 of the Civil Code of the Russian Federation, then the provisions of paragraph 1 of Article 395 of the Civil Code of the Russian Federation do not apply. In this case, the penalty established by law or agreement of the parties is subject to recovery, and not the interest provided for in Article 395 of the Civil Code of the Russian Federation (clause 4 of Article 395 of the Civil Code of the Russian Federation).

17. The penalty for late payment of insurance compensation, provided for in paragraph 5 of Article 28 of the Law on the Protection of Consumer Rights, cannot exceed the amount of the insurance premium.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated March 28, 2017 No. 18-КГ17-25

18. Collection of a fine in connection with the insurer’s failure to comply with the consumer’s requirements on a voluntary basis does not depend on whether the beneficiary himself or his representative applied to the insurance company with an application for insurance payment, or his representative by power of attorney certified in accordance with the current legislation.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated April 28, 2015 No. 43-KG15-1

19. In the event of poor-quality car repairs, that is, improper fulfillment by the insurer of the obligation to provide insurance compensation in kind, the policyholder may exercise the rights granted to him by paragraph 1 of Article 29 of the Law on the Protection of Consumer Rights (for example, demand compensation from the insurer for the costs of eliminating the deficiencies of the work performed repair).

20. The provisions of the Law on the Protection of Consumer Rights apply to the relationship between the insurer and the heirs of the policyholder, to whom the insurance service was provided for personal, family, household and other needs not related to business activities.

Determination of the Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation dated March 1, 2016 No. 44-KG15-20

Recognize as invalid the Review of certain issues of judicial practice related to voluntary insurance of citizens' property, approved by the Presidium of the Supreme Court of the Russian Federation on January 30, 2013.

[extract]

Approved by resolution of the Presidium

Supreme Court of the Russian Federation

Practice of considering cases on disputes arising from labor and social legal relations

3. If the leave granted to the employee before the termination of a fixed-term employment contract with him expiresbeyond the term of this agreement, then the day of dismissal of the employee is considered the last day of his vacation.

The court found that, according to the employment contract concluded between the administration of the municipality and K. for the period from May 1, 2008 to April 30, 2009, K. was appointed to the position of director of the municipal enterprise.

By order of the head of administration of the municipal formation dated April 3, 2009, K. was granted regular leave in the amount of 58 calendar days from April 6, 2009. On the same day, by order of the head of administration, with which K. was familiarized, the plaintiff was warned that the fixed-term employment contract he will be terminated at the end of his vacation - June 4, 2009.

K. filed a lawsuit against the administration of the municipality (employer) for reinstatement at work, payment for forced absence time, compensation for moral damage and legal expenses, citing the fact that he was wrongfully dismissed on the grounds established by paragraph 2 of Article 77 of the Labor Code Code of the Russian Federation (LC RF), - due to the expiration of the employment contract. The defendant did not admit the claim.

The district court's decision rejected the claim.

By the ruling of the judicial panel for civil cases of the regional court, this decision was canceled. Regarding K.’s claim for reinstatement at work, a new decision was made, by which the plaintiff was reinstated at work. In the rest of the stated requirements, the case was sent for a new trial to the court of first instance.

The Judicial Collegium for Civil Cases of the Supreme Court of the Russian Federation overturned the ruling of the Judicial Collegium for Civil Cases of the regional court and upheld the decision of the district court, indicating the following.

According to clause 2, part 1, article 77 of the Labor Code of the Russian Federation, the basis for termination of an employment contract is the expiration of the employment contract, except in cases where the employment relationship actually continues and neither party has demanded its termination.

In accordance with Part 1 of Article 79 of the Labor Code of the Russian Federation, a fixed-term employment contract is terminated upon the expiration of its validity period, of which the employee must be warned in writing at least three days before dismissal.

On the basis of Part 3 of Article 127 of the Labor Code of the Russian Federation, upon dismissal due to the expiration of the employment contract, leave followed by dismissal can be granted even when the vacation time completely or partially extends beyond the term of this contract. In this case, the day of dismissal is considered the last day of vacation.

The court of first instance, guided by the above provisions of the law, correctly refused to satisfy the stated requirements, since it was established that the defendant complied with the requirements of labor legislation when terminating the fixed-term employment contract with K.

In overturning the decision of the district court, the cassation court pointed out that the norm of Article 127 of the Labor Code of the Russian Federation, which allows the dismissal of an employee after the expiration of the employment contract at the end of the vacation, implies its application only if the employee has applied to the employer for leave. followed by dismissal. Since K. did not make such a statement to the employer, then, according to the judicial panel for civil cases of the regional court, the dismissal of the plaintiff outside the term of the employment contract was made illegally, and the employment relationship with him was continued for an indefinite period.

This conclusion of the cassation court is based on incorrect interpretation and application of substantive law.

In accordance with Article 15 of the Labor Code of the Russian Federation, labor relations are relations based on an agreement between the employee and the employer on the personal performance by the employee for payment of a labor function (work according to the position in accordance with the staffing table, profession, specialty indicating qualifications; the specific type of work assigned to the employee ), the employee’s subordination to the internal labor regulations while the employer provides working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, and an employment contract.

In accordance with Part 1 of Article 79 of the Labor Code of the Russian Federation, a fixed-term employment contract is terminated upon expiration of its validity period. The employee must be notified in writing of the termination of the employment contract due to its expiration at least three calendar days before dismissal.

This norm regulates relations that arise upon the occurrence of a certain event - the expiration of the established period of validity of the employment contract. This circumstance is not related to the initiative of the employer and occurs regardless of his will.

When considering this case, the court reliably established that the plaintiff was properly notified by the defendant of the upcoming dismissal, and therefore the conclusion of the trial court that the defendant complied with the procedure for the plaintiff’s dismissal is correct.

In accordance with Part 1 of Article 127 of the Labor Code of the Russian Federation, upon dismissal, the employee is paid monetary compensation for all unused vacations.

Payment of monetary compensation to the employee for unused vacations is the absolute responsibility of the employer, but by agreement of the parties to the employment contract, it can be replaced by the provision of unused vacations with subsequent dismissal.

In accordance with Part 2 of Article 127 of the Labor Code of the Russian Federation, upon a written application from an employee, unused vacations may be granted to him with subsequent dismissal (except for cases of dismissal for guilty actions). In this case, the day of dismissal is considered to be the last day of vacation.

This rule is common to all grounds for dismissal (except for cases of dismissal for guilty actions) and is aimed at exercising the employee’s right to use vacation in exchange for receiving monetary compensation.

By virtue of the special norm of Part 3 of Article 127 of the Labor Code of the Russian Federation, upon dismissal due to the expiration of the employment contract, leave followed by dismissal can be granted even when the vacation time completely or partially extends beyond the term of this contract. In this case, the day of dismissal is also considered the last day of vacation.

Thus, as a general rule, a written statement from the employee is required to confirm his intention to actually use the leave before dismissal, and not to receive monetary compensation for it. The mere provision of leave before dismissal, although in the absence of such a statement, but with proof of the employee’s will to exercise his right to use leave before dismissal and the employer’s consent to this, cannot be considered a violation of the employee’s rights and as a sufficient basis for his reinstatement at work outside the term of the employment contract.

When considering this case, the court of first instance found that the employer warned the employee about the upcoming dismissal due to the expiration of the employment contract and provided him with unused vacation before dismissal. The fact that an agreement was reached between the parties on the use of K.’s leave with subsequent dismissal under Article 79 of the Labor Code of the Russian Federation is confirmed by the fact that the plaintiff used this leave and did not demand payment of monetary compensation for it.

Definition No. 64-B10-2

In 2018, the Presidium of the Supreme Court of the Russian Federation approved two Reviews of the judicial practice of the Supreme Court of the Russian Federation: Review No. 1 (approved on March 28, 2018) and Review No. 2 (approved on July 4, 2018). AKATO publishes the most important excerpts from these Supreme Court Reviews related to the housing and communal services sector.

Restriction of the rights of owners to use the local area

Paragraph 1 of the Review of judicial practice of the Supreme Court of the Russian Federation No. 1 (2018), approved by the Presidium of the Supreme Court of the Russian Federation on March 28, 2018 (hereinafter referred to as Review No. 1) established that the general meeting of car owners of an apartment building does not belong to the bodies authorized to make decisions on limiting the rights of premises owners to use the local area for the purpose of placing their cars on it .

The crux of the matter:

The general meeting of the owners of the housing cooperative approved the fencing of the local area, the establishment of parking, as well as the Regulations on the procedure for the entry and parking of vehicles in the local area. According to this provision, the right to unhindered entry into the fenced area of ​​a part of the courtyard of a house during the day has the right to passenger transport belonging to the owners of the premises in the house and registered in the prescribed manner with the board of the housing cooperative; Parking in the fenced part of the local area for unregistered vehicles is prohibited.

At a meeting of car owners on the issue of organizing parking spaces and landscaping the local area, it was decided to deprive the plaintiff of the opportunity to park the car. The courts of the first and appellate instances rejected the plaintiff's demands to the housing cooperative to impose the obligation to ensure unobstructed access to the residential building, as well as parking of the vehicle belonging to it in the courtyard area, but the Supreme Court recognized this opinion as unfounded and pointed out the opposite.

Collection of interest for failure to pay payment for CG

In paragraph 22 of Review No. 1, the Court draws attention to the fact that the creditor has the right to recover from a person who untimely and (or) did not fully pay for housing and utilities, the amount of a financial sanction in an amount not exceeding the amount of liability (penalties) established by Part 14 of Art. 155 Housing Code of the Russian Federation , including in the case when the creditor, in support of his claim, refers to the provisions of paragraph 1 of Art. 395 of the Civil Code of the Russian Federation.

The crux of the matter:

The HOA manages the residential complex, part of the residential and non-residential premises in which belongs to a federal institution with the right of operational management. According to the concluded settlement agreement, the federal institution repaid the debt, but not on time. In connection with this, the HOA applied to the court to collect interest for the use of other people's funds for the period of overdue debt.

The Supreme Court of the Russian Federation, when considering the case, indicated that the lower courts had no grounds for refusing the claim on the grounds that if there is a special rule in housing legislation providing for liability for failure to pay for services provided in the form of a penalty, it is unacceptable to collect interest for the use of someone else's property. in cash.

The former spouse retains the right to use residential premises on social rent

In paragraph 5 of Review No. 1, the Court comes to the conclusion that that the recognition of a marriage as invalid is not an unconditional basis for terminating the right of a bona fide spouse as a family member of the tenant of a residential premises under a social tenancy agreement to use this residential premises and recognizing him as not having acquired this right.

The crux of the matter:

The defendant was registered as a family member (spouse) of the tenant, but the marriage between them was declared invalid, the tenant died and was deregistered, but the defendant continued to live in this premises. The Department of City Property of Moscow (plaintiff) filed a claim for recognition as having not acquired the right to use residential premises, eviction without provision of other residential premises and deregistration of the defendant, since she did not have the right to use residential premises and her move into the apartment was subject to illegal nature.

The courts of first and appellate instances satisfied the plaintiff's demands, however, the Supreme Court of the Russian Federation indicated that former family members of the tenant of the residential premises under a social tenancy agreement living in the residential premises retain the right to use it. At the same time, former family members of the tenant of the residential premises include persons with whom the tenant’s family relations have been terminated.

Features of the responsibility of the regional operator when carrying out major repairs

In paragraph 7 of the Review of Judicial Practice of the Supreme Court of the Russian Federation No. 2 (2018), approved by the Presidium of the Supreme Court of the Russian Federation on July 4, 2018, the Supreme Court of the Russian Federation indicated that “ The regional operator, as the customer for major repairs of common property in an apartment building, is liable to the owners of the premises in such a building for the consequences of non-fulfillment or improper fulfillment of obligations by contractors engaged by it in accordance with the principle of full compensation for losses " The Supreme Court of the Russian Federation also clarified that “ the liability of a regional operator for causing losses to the owner of a premises in an apartment building as a result of non-fulfillment or improper fulfillment of his obligations is not limited to the amount of contributions for major repairs made by this owner ».

The crux of the matter:

The plaintiff filed a lawsuit against the Fund for the Overhaul of Apartment Buildings with a claim for compensation for the damage caused, citing the fact that during the overhaul of the roof of the house, a leakage of precipitation occurred in the residential premises owned by the plaintiff, about which commission acts were drawn up, which confirms that the flooding of the apartment occurred during precipitation as a result of the ongoing major repairs of the roof.

The court of first instance satisfied the requirements, but the court of appeal changed the court's decision. The Supreme Court of the Russian Federation, canceling the appeal ruling, indicated that losses must be compensated in full if the right to full compensation for losses is not limited by law or contract.

<1>This work refers to reviews approved by the Presidium of the Supreme Court of the Russian Federation and published in the Bulletin of the Supreme Court of the Russian Federation.

Shulga I.V., assistant to the chairman of the Amur Regional Court.

In accordance with Part 5 of Art. 19 of the Federal Constitutional Law of December 31, 1996 N 1-FKZ “On the Judicial System of the Russian Federation” the Supreme Court of the Russian Federation provides clarifications on issues of judicial practice. This norm implements the provisions of Art. 126 of the Constitution of the Russian Federation, which states that the Supreme Court of the Russian Federation is the highest judicial body in cases within the jurisdiction of courts of general jurisdiction, exercises judicial supervision over their activities in the procedural forms provided for by federal law and provides clarifications on issues of judicial practice. The last of these powers is exercised by the Supreme Court of the Russian Federation in various forms, the main of which are the adoption by the Plenum of the Supreme Court of the Russian Federation of decisions and the approval by the Presidium of the Supreme Court of the Russian Federation of reviews of judicial practice.

The question of the legal nature of these judicial acts as part of the general problem of rule-making by higher courts has been raised repeatedly<2>. Currently, this problem has again attracted special attention. This is largely due to the increasing role of judicial practice in the context of an intensive legislative process and the emergence of the judiciary as independent and independent.

<2>See: Cherdantsev A.F. Interpretation of Soviet law. M., 1979; Judicial practice in the Soviet legal system. Sat. articles. M., 1979; Tishkevich I.S. Are the guidelines of the Plenum of the Supreme Court of the USSR a source of law? // Soviet state and law. 1955. N 6; Marchenko M.N. Sources of law: Textbook. allowance. M.: TK Welby; Publishing house "Prospekt", 2005.

Within the framework of this problem, legal scholars, as a rule, limit themselves to considering only the decisions of the Plenum of the Supreme Court of the Russian Federation<3>. Researchers do not pay due attention to reviews as one of the forms of judicial practice and ensuring its unity.

<3>See: Judicial practice as a source of law. Sat. articles. M., 2000; Marchenko M.N. Is judicial practice a source of Russian law? // Journal of Russian Law. 2000. N 12; Savelyeva O.A. Resolutions of the Plenum of the Supreme Court of the Russian Federation: role in criminal proceedings // Justice of the Peace. 2006. N 2. P. 31.

This indicates a clear underestimation in legal science of the important role that reviews play in law enforcement. Reviews, due to their approval on behalf of the highest judicial body, publication in its official publication and prompt adoption, are invariably given significant, and sometimes even fundamental, importance in the course of law enforcement. This is indicated by the growing number of publications of reviews, numerous references to them in the legal literature, including in scientific works. Their influence on the administration of justice by courts is especially great. In the practice of the Amur Regional Court, there are often cases when it was the position expressed by the Supreme Court in the review that served as the basis for the decision made.

Thus, by the verdict of the Blagoveshchensk City Court of the Amur Region, T. was convicted under paragraphs. "c", "g" part 2 art. 161 of the Criminal Code of the Russian Federation to six years in prison. Disagreeing with the verdict, T. filed a cassation appeal, in which he also asked for the participation of a lawyer. The cassation court considered the complaint without the participation of a defense lawyer. Canceling the ruling of the judicial panel and transferring the case to a new cassation hearing, the Presidium of the Amur Regional Court indicated as a basis a violation of the requirements of the criminal procedural law, expressed in the consideration of the case in the cassation court without providing the convicted T. with a defense lawyer, contrary to his requests. The decision of the Presidium was based on the position of the Supreme Court of the Russian Federation that, within the meaning of the law, the obligation to ensure the participation of a defense lawyer in criminal proceedings rests not only with the court of first instance, but also with the court of cassation<4>.

<4>Bulletin of the Supreme Court of the Russian Federation. 2005. N 7.

The following case can be cited as an example from practice in civil cases. The joint stock company filed a claim with the Blagoveshchensk City Court to impose on the company the obligation to transfer ownership of the apartment to citizen Ch. and resettlement Ch. into this apartment. The justification states that the apartment owned by Ch. is located in a house located on a plot of land allocated to the company for construction; attempts to establish contractual relations with Ch. for the transfer of the apartment belonging to him were unsuccessful. The court decision satisfied the stated requirements. Canceling this decision and making a new decision to refuse to satisfy the claims, the Judicial Collegium for Civil Cases of the Amur Regional Court indicated that the resettlement of citizens from demolished residential buildings and the termination of their ownership rights to these houses can only be carried out with the consent of the owners by concluding an agreement. At the same time, in support of this decision, the panel cited a reference to the position of the Supreme Court of the Russian Federation published in the bulletin, according to which the resettlement of citizens from demolished residential buildings and the termination of their ownership rights to these residential buildings in connection with the provision of land plots for commercial use can only be carried out with consent of the owners by concluding an agreement with them<5>. Subsequently, this position was adopted in other decisions of the courts of the Amur region.

<5>Bulletin of the Supreme Court of the Russian Federation. 2001. N 1. P. 21.

When starting to study the legal nature of reviews, it is advisable to compare them with the decisions of the Plenum of the Supreme Court of the Russian Federation.

Firstly, the nature of any legal act is largely determined by the status of the body that issued it. This is fully applicable to decisions and reviews of the Supreme Court of the Russian Federation. Reviews, as well as decisions of the Plenum of the Supreme Court of the Russian Federation, are legal acts of the Supreme Court of the Russian Federation. Accordingly, their role is subordinated to the main goal of the Supreme Court of the Russian Federation - the administration of justice. Therefore, it would be fair to say that the main, although not the only, in our opinion, function of reviews and rulings is to ensure the uniform and correct application of laws and regulations by courts. “The purpose of the clarifications is not only to focus the attention of the courts on the need for a correct and uniform interpretation of the laws, but also to oblige them to resolve cases in strict accordance with the law.”<6>.

<6>Savelyeva O.A. Resolutions of the Plenum of the Supreme Court of the Russian Federation: role in criminal proceedings // Justice of the Peace. 2006. N 2. P. 31.

However, if decisions are adopted by the Plenum of the Supreme Court of the Russian Federation, then reviews are approved by the Presidium of the Supreme Court of the Russian Federation. This difference has a significant impact on determining the legal nature of these acts.

The Supreme Court of the Russian Federation acts as part of the Plenum of the Supreme Court of the Russian Federation; Presidium of the Supreme Court of the Russian Federation; Cassation Board, Judicial Board for Civil Cases; Judicial Collegium for Criminal Cases; Military Collegium.

In accordance with Art. 58 of the RSFSR Law of July 8, 1981 “On the Judicial System of the RSFSR”, it is the Plenum of the Supreme Court that is given the authority to issue clarifications to the courts on the application of legislation.

The Presidium of the Supreme Court of the Russian Federation is the highest court in the system of courts of general jurisdiction and considers court cases in the manner of supervision and based on newly discovered circumstances; materials for studying and summarizing judicial practice, analysis of judicial statistics; issues of organizing the work of judicial panels and court apparatus. The decisions of the Presidium are final and cannot be appealed.

The provisions of the current legislation allow us to draw several conclusions.

Thus, the powers of both bodies include the study and analysis of judicial practice, but the right to issue clarifications for lower courts, provided for by the Constitution of the Russian Federation, is reserved by law specifically to the Plenum of the Supreme Court of the Russian Federation. Taking into account the different levels of legislative reinforcement, in cases of possible conflicts between decisions of the Plenum of the Supreme Court of the Russian Federation and reviews, the former should have priority or, as far as such terminology is permissible here, higher legal force.

In addition, the powers of the Plenum of the Supreme Court do not directly include the administration of justice (in its narrow definition, as the activity of considering and resolving civil, criminal, administrative cases), while for the Presidium it is one of the main ones. As a result, reviews are much more closely linked to the direct administration of justice, and therefore are almost always based on a specific case. In turn, this has a significant impact on the nature of the provisions contained in reviews and decisions.

Secondly, both reviews and rulings are related to and oriented towards judicial practice. However, the nature of such a connection is different. While reviews are always based on existing judicial practice, this rule is not always followed for rulings. For example, Resolution of the Plenum of the Supreme Court of the Russian Federation dated January 20, 2003 No. 2 “On some issues that arose in connection with the adoption and entry into force of the Civil Procedure Code of the Russian Federation” was issued even before the official entry into force of the Civil Procedure Code of the Russian Federation<7>. In these cases, the resolution of the Plenum cannot yet reflect the practice of applying the legal act being explained. Rather, it is based on the experience of law enforcement of similar acts in the past and the anticipation of the consequences of the legislator’s use of certain legal techniques, which makes it possible to anticipate possible difficulties. Thus, reviews always reflect part of the already established practice, which is recognized by the Supreme Court of the Russian Federation as correct.

<7>According to Art. 1 of the Federal Law of November 14, 2002 N 137-FZ "On the implementation of the Civil Procedure Code of the Russian Federation" The Civil Procedure Code came into force on February 1, 2003.

Thirdly, the nature of the reflection of judicial practice in the provisions of reviews and resolutions is different, which determines the degree of abstraction of the provisions being formed. Unlike rulings, reviews are always based on and refer to specific court cases. The content of the latter is much closer to what is called the “ratio decidendi” of precedent in the common law system. And if we consider individual acts of the highest judicial bodies as formal sources of law, then reviews can be defined as a way of bringing the precedent of the Supreme Court of the Russian Federation to the law enforcer. But still, they cannot be considered a precedent in the true sense of the word, since the review contains both an example of a court decision and its theoretical interpretation by the highest court. This is not just an element of a court decision on a specific case, but an element of a decision recognized as a mandatory sample by the Presidium of the Supreme Court of the Russian Federation. Thus, there is a kind of “authorization” of the decision as a precedent by including it in the content of the review. In other words, the provisions of reviews are a kind of alloy of rules, expressed in a fairly general form and underlying a specific legal case. Thus, the casual nature of the reviews seems obvious.

The resolution of the Plenum of the Supreme Court of the Russian Federation is the result of a deeper theoretical generalization and processing of the entire body of judicial practice in a particular direction. The decisions of the Plenum of the Supreme Court of the Russian Federation, as mentioned earlier, are least of all related to the activities of the direct administration of justice. Therefore, as such, there are no court decisions here, which, in our opinion, does not allow us to assert the precedent nature of the provisions contained in the resolution. As Professor A.I. rightly points out. Rarog, “explanations on issues of judicial practice are of a general nature and cannot have the force of judicial precedent”<8>. Therefore, it is quite natural that the degree of abstraction of the provisions contained in it is significantly higher. The point of view that the Resolution of the Plenum of the Supreme Court of the Russian Federation, if it contains new regulatory elements, is a normative legal act seems more reasonable.<9>. The presence of an established procedure for adoption, publication in official publications, mandatory nature and abstract nature of the provisions are evidence in favor of just such a conclusion. In the absence of new elements in it, the resolution of the Plenum represents an act of official interpretation, and its legal nature in this case does not raise much doubt.

<8>Rarog A.I. Legal significance of the clarifications of the Plenum of the Supreme Court of the Russian Federation // State and Law. 2001. N 2. P. 51.
<9>See: Bratus S.N., Vengerov A.B. Concept, content and functions of judicial practice. Judicial practice in the Soviet legal system. Sat. articles. M., 1979.

Thus, the provisions contained in the decisions and reviews differ significantly in the degree of abstraction of the instructions and in the nature of the reflection of judicial practice.

Fourthly, one cannot ignore such a specific feature of reviews as the diversity of the provisions contained. The text of one review contains provisions on the procedural and substantive law of various branches, reflecting judicial practice for the reporting period. At the same time, the resolutions of the Plenum, representing a deeper reworking of law enforcement experience, are highly specialized.

Taking into account the circumstances listed above, namely the level of legislative consolidation of the powers to issue these acts, the status of the bodies that issued them, the different nature of the reflection of judicial practice and the degree of generality of the provisions, the subordinate role of reviews of judicial practice should be recognized. Therefore, it seems logical to resolve conflicts between the provisions of the reviews and the decisions of the Plenum of the Supreme Court of the Russian Federation in favor of the latter.

At the same time, reviews as a form of ensuring the unity of judicial practice (as well as as a source of law, if recognized as such) have certain advantages. First of all, it should be noted the speed of their adoption. The reviews reflect the current position of the Supreme Court of the Russian Federation on various issues and serve as a guide for law enforcement. They are the first, and sometimes the only guide in the application of newly adopted acts. At the same time, the initially expressed position of the Supreme Court of the Russian Federation may subsequently not be accepted in further practice. Thus, the provisions contained in the review will actually be canceled by later decisions of the Supreme Court of the Russian Federation. As a result, the “trust” of law enforcement officials in them is somewhat lower than in regulations. Nevertheless, reviews, due to their efficiency and official publication on behalf of the highest judicial body, invariably attract and will attract special attention from practitioners. Therefore, the legal nature of these acts requires further research. Already, among the problems that need to be solved are questions about the extent to which these acts are binding for lower courts, their place in the system of other acts of the Supreme Court, the mechanism for approving and amending reviews, overcoming conflicts between reviews that differ in time, the systematization of reviews, the consistency of the positions expressed in them etc.