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§ 2.2. The legal capacity of the representative 2.2.1. The legal capacity basis. The power of attorney

the Subject of the law of procedure cannot prove in it differently as the carrier of certain laws of procedure and duties. Out of laws of procedure and its remedial duties do not exist as the subject of the law of procedure.
Ability of the subject to be the carrier of civil laws of procedure and duties traditionally is called as the civil standing in court in the civil law of procedure. The possession the civil standing in court is the basis of participation of the concrete subject in civil procedure. Some scientists specified, that as the maintenance of the civil standing in court is constituted by civil laws of procedure and duties so far as as the legal category loses the legal capacity себя1. Such conclusion is represented unduly categorical. The civil standing in court acts as legal potential of the subject and simultaneously as the remedial juridical fact. In default from a category of the civil standing in court becomes not clear, by which criteria the person can become the participant of the civil remedial relations, what juridical fact should be established to court for the admission of the person in process. Analyzing article 31 GPK RSFSR, A.F.goat comes to conclusion, that the court does not possess the civil standing in court as the instructions on ability to have civil laws of procedure and duties contain in the chapter IV GPK RSFSR, devoted to the persons participating in business. For the same reason it specifies, that all other subjects civil protsessual - 1 See, for example: A.F.trial court's Goats as the subject of the Soviet law of procedure. Tomsk 1983. With. 49. 66 nogo the rights do not possess the civil standing in court, and civil laws of procedure and duties they are allocated directly законом1. A.K.Sergun suggested to keep categories of the civil standing in court and capacity with reference to the parties and the third лицам2. For court, the public prosecutor and the state bodies participating in process as item 42 GPK RSFSR, according to a number of scientists, the basis of participation in process is the competence. The standing in court requirement to the specified subjects not относится3. From the point of view of these authors, the competence is the independent basis of participation in process of some subjects along with the legal capacity of the parties and the third parties. In our opinion, there is a mixture of concepts of the competence, jurisdiction and the legal capacity. State bodies are allocated with the competence for participation in those public relations for which imperious influence and in which as the imperious party these bodies act is characteristic. The competence establishment is made only by the state by means of norms material, instead of the law of procedure. The specified bodies in civil procedure are allocated with set of the rights and the duties established by the civil law of procedure, as well as other subjects of civil procedure. At participation in consideration and the permission of civil cases court state bodies are not allocated with any imperious powers, as unique imperious body in process is the court. Stated allows to define the competence as the precondition of investment of corresponding bodies the civil standing in court. Thus has no value inclusion in the competence of certain competences of remedial character, so A.F.decree's 1 Goats. soch. S.47-57. 2 Sergun A.K. About the standing in court//the Soviet state and The right. 1974. №2. С.31,37. 3 Shakarjan M. S. Subjects of the Soviet civil law of procedure. M, 1970. With. 85; A.F.Ukaz.soch's Goats. With. 51. 67 As at the characteristic of a legal accessory of norms it is necessary to consider, on what regulation of legal relations they направлены1. As the court, being the body allocated with powers on consideration and the permission of civil cases, operates within the limits of the remedial form the basis of its participation in process is jurisdiction to it of a concrete civil case. Thus, the competence of the law of procedure represents itself as judicial jurisdiction, and the unique body allocated with it, the court is. The precondition of participation in process of the parties and the third parties is presence at them the standing in court. In turn, investment with the standing in court probably only in case of presence at the party or the third party of the status of the legal person or in case as this subject the physical person acts. Otherwise business with investment with the standing in court of representatives is. Preconditions of their participation in civil procedure is presence of the standing in court of the represented and representative. Thus, if for participation in process of the public prosecutor and the state bodies which excited or have entered already begun process in an order, provided by article 42 GPK RSFSR, an establishment of the legal capacity at the subject who has allocated with their competence, has no any sense (as as that the state always acts) for participation of the remedial representative the establishment of the legal capacity represented is a condition of its admission in process. If the remedial representative speaks on behalf a name of the state body which is on business the party or the third party court nalezhit to check up both the competence of corresponding body and the legal capacity of the representative. In case of performance of the representative from a name and in interests of the state and, hence, investment with its powers with the state (operating through the bodies) or in case of lawful representation, we 1 Osipov of JU.K.rule, regulating jurisdiction of legal affairs in system of the Soviet legislation//Jurisprudence. 1974. №5. With. 29. 68 Also we can not speak about the competence of the remedial representative as it is not allocated with any imperious powers with reference to civil procedure. It is necessary to support the point of view according to which the standing in court is the general term of participation in civil procedure, but with the various maintenance for the parties, the third parties declaring independent requirements, the third parties which are not declaring independent requirements, public prosecutors, state bodies and т.д.1 we Believe, that the standing in court is also a condition of participation in process of the representative. However the standing in court representatives of the parties, the third parties or the state bodies participating in process in an order, provided by article 42 GPK RSFSR, are allocated only on condition that the standing in court allocates the corresponding parties, the third parties and the state bodies. The civil remedial legislation establishes, that for participation in concrete civil procedure, for investment in it civil laws of procedure and duties the representative should "legalise" definitely itself in process. Thus GPK RSFSR establishes the list of juridical facts which can be the basis for the admission of the representative in process. Such juridical facts can be or representation to court of certain documents, or the statement represented in process. Among the documents certificating powers represented, most widespread the power of attorney is. The representative is the representative from the moment of delivery to it the power of attorney. Delivery of the power of attorney represents upravomochivajushchuju the transaction, and the power of attorney in case of its presence at the representative is the sufficient proof of that this transaction is made. 1 Jarkov V.V. n in the mechanism of realisation of norms of the civil law of procedure. Ekaterinburg. 1992. With. 127. 69 The part of 1 article 45 GPK specifies RSFSR, that power of the representative should be expressed in the power of attorney given out and issued according to the law. At the same time, the civil remedial legislation does not contain legal definition of the power of attorney which the representative represents to court. Considering, that the representation institute is the interbranch legal institution about what it will be more in detail told in head SH, there are all bases to use a definition of the civil-law power of attorney. Article 185 PS the Russian Federation gives the following legal definition of the power of attorney in civil law: « The power of attorney the written authorisation which is given out by one person to other person for representation before other persons »admits. The civil legislation specifies, that the representation is possible at fulfilment of transactions that cannot be applied in civil procedure as fulfilment of civil-law transactions is not included into a subject of legal regulation of the civil law of procedure. For this reason, applying article 185 GK for definition of concept of the power of attorney, it is necessary to consider the Russian Federation, that the concept of representation with civil procedure is other, rather than specified in article 182 GK the Russian Federation. Besides definition of the power of attorney as given out written authorisation is represented incorrect. As power can be defined and as the right the authorisation is the juridical fact. Use of the language design specifying in delivery of the juridical fact, contradicts Russian rules. The power of attorney is not the juridical fact, and the document. For this reason the concept of the power of attorney should be corrected. The power of attorney in civil procedure can be defined as the document given out by one person (represented) other (representative) and fixing power (represented) to another (representative) of last for representation before court. In the scientific literature the point of view according to which powers of the representative can be certificated the telegramme expressing is stated 70 Power and the certificated communication (testified) by bodies. However this position will not be adjusted with the requirement of the civil remedial legislation on the certificate of power of the representative the power of attorney. The pre-revolutionary legislation also strictly adhered to practice according to which power can be certificated only the document specified in the Charter of civil legal proceedings. So, on one of affairs the Cassation department has specified, that the power certificate telegrammoju tjazhushchegosja as not consent with article 47 of the Charter of civil legal proceedings, it is void. Also the person cannot be allocated by powers to operate as the representative with instructions on it in the statement of claim or in other document which is not the power of attorney as it mismatches requirements of article 46 GPK РСФСР3. The civil substantive law knows also special forms of the certificate of power of the representative when it operates within the limits of bill relations. Powers of the bill representative make sure riot on the endorsement by an agent bill. For this reason the pre-revolutionary legislation said: «Bill power (preporuchitelnaja an inscription) under the operating Charter about Bills is a kind of the power of attorney sui generis with special large powers and consequently it is necessary to recognise, that... To the representation requirement authorised preporuchitelnoj an inscription also special power of attorney at vchinenii it the claim from a name and in advantage preporuchitelja is not available reasonable and lawful basis» 4. It is represented, that this norm it is impossible A.A. Millers. Court agents//the Course of the Soviet civil law of procedure. M, 1981. T.l. C.310. TSit. On: Tjutrjumov I.M.decree. soch. With. 684. 3 Similar positions on this question the pre-revolutionary sou debnaja adhered also to an expert. See, for example: the Decision of Cassation department on business №16 from 1870. TSit. On: Tjutrjumov I.M.decree. soch. With. 685. 4 Decision of Cassation department №58 from 1913. TSit. On: Tjutrju I.M.decree's speeches. soch. With. 415. 71 To apply in the operating remedial legislation as it contains the imperative requirement of representation of strictly certain documents confirming to available power. Bills with the endorsement by an agent among these documents are not present. So-called plurality of persons can become one of problems of judicial representation. In representation it is necessary to understand such situation when one person, and representatives two or more is represented as plurality of persons, or two and more persons on the party represented, and the representative is one person. Development of institute of representation, complication of quarrels at law inevitably lead to that on the party tjazhushchegosja acts more than one representative. Known specialisation of the representatives can be the reasons of such position, one of which is, for example, the expert in the field of the fiscal law, and the second - in the field of process. There can be a situation when each of representatives "constrains" and supervises another, or one of representatives supervises the others. All variants to provide it is impossible, yes in it and there is no necessity. Professor T.M.Jablochkov so expressed concerning participation of several legal representatives on behalf of one represented: «Under the law in force on behalf of juvenile act on court all trustees or one trustee from the positive consent of other trustee» 1 can only. In a substantiation of the resulted thesis it specified, that the representative at fulfilment legal actions completely replaces the person of the represented. If at the person it is some representatives its full replacement is possible only in cases when in 1 JAblochkov T.M.practical the comment on the Charter of civil legal proceedings. Т.1. With. 286. TSit.: on Tjutrjumov I.M.having of civil legal proceedings with legislative motives, explanations Pravitelstvujushchego of the Senate and the comments of Russian lawyers taken from scientific and practical works on civil law and legal proceedings. David Gliksmana's edition. Riga. 1923. Т.1. С.263. 72 Legal act fulfilment all representatives participate on behalf of represented. With reference to lawful representation all soopekuny, as well as attorneys by proxy, «represent unseparably as though one person» 1. Article 43 GPK RSFSR does not give us the categorical answer about possibility or impossibility of participation in process on behalf of one person of several representatives. The first offer is formulated so, that allocates citizens with the right to run the businesses in court through representatives, using the plural form of a word. In addition plural is confirmed by use of a word of "business". In plural the norm about participation of representatives on behalf of legal bodies is similarly formulated also. The second offer specifies, «that personal participation in business of the citizen does not deprive of its right to have on this business of the representative», here is already used a singular. Strictly close interpretation leads us to a conclusion, that the citizen (or the legal body) can be presented in court only one representative. Such conclusion can be made for two reasons. The first: Use of plural of a word the representative in the first offer is caused by use of plural of a word the citizen and grammatical corresponds to it and also because the instructions on set of citizens do not specify in differing (mismatching) quantity of court agents. The second reason: the second offer accurately establishes, that one representative can lead business of one citizen. Thus, as the norm specified in the first offer does not establish any quantity indicators, and the norm of the second specifies the offer in a singular of the representative at uniqueness represented it is necessary to draw a conclusion, that in court (and the legal person) one remedial representative can lead concrete business of one citizen only. However such conclusion is absurd and mismatches the purposes civil procedure, judicial representation which are called zashchi - 1 In the same place. 73 shchat the rights and legitimate interests of persons in the best way. Judiciary practice also does not consider as infringement of the remedial legislation participation in business on behalf of one person of several representatives. Plurality problems in representation are not limited to a problem of the possibility of plurality. So, the representative can be admitted in process on the basis of the power of attorney given out to it. In case of plurality of representatives legal practice provides possibility of delivery of the uniform power of attorney on all representatives or several powers of attorney - on one for each representative with investment with their right to operate independently from each other. But practice of delivery of the uniform power of attorney is represented incorrect. Relations between the representative and represented concerning delivery and the termination of the power of attorney are not civil remedial relations. These relations are regulated by civil law and are civil-law. In a civil law science the point of view is stated, that delivery of one power of attorney by the several representative on behalf of one principal is неправомерной1. It is necessary to agree With this point of view. Article 182 PS specifies the Russian Federation, that representation is performance of one person on behalf of another. The instructions on the representative in a singular are completely not casual, that confirms the analysis of the norms regulating an order and consequences of the termination of the power of attorney. We will consider them with reference to civil remedial representation. According to article 188 GK the Russian Federation is enough refusal of the person to which the power of attorney is given out, for the termination of the power of attorney of its termination (if this legal body), death, losses of legal capacity. The norm grammatical interpretation leads again us to that the representative under one power of attorney should be one. Besides, it is necessary to specify, that at model preservation «one power of attorney - some representatives» refusal of the power of attorney of odes - 1 Sklovsky K.I.propert in civil law. M, Publishing house "Has put". 1999. With. 455-459. 74 nogo from representatives involves loss of powers by all representatives operating on the basis of one power of attorney. In case other representatives did not know about refusal of the power of attorney of one of them (and it is equal death or losses of legal capacity) all consequences of legal proceedings, with-vershennyh them from the moment of the termination of the uniform power of attorney cannot be recognised somehow by obliging or upravomochivajushchimi represented as representatives in this case operated without power. The judgement based on such actions, should be considered illegal and comes under to cancellation that should have an adverse effect on work of judges, authority of the judicial authority and remedial representation as an element of system of protection of the rights. Activity of several representatives on behalf of one represented is possible on the basis of several powers of attorney. Represented can establish in powers of attorney to different persons different volume of the rights, including to limit the rights not only the RSFSR specified in article 46 GPK, but also, for example, to forbid the representative to submit the statement of claim or to initiate document litigation involving authenticity. In the power of attorney also can be specified, that any legal proceeding can be made only under condition of combined action of several representatives. Thus, for example, for confession of an action, it is necessary, that the claim on behalf of represented has been recognised by two of three representatives. Such practice should secure really represented from unfair or incompetent actions of the representative. In a case of inconsistency of actions of representatives when the exit from a similar situation is not specified in the power of attorney, the judge according to article 157 GPK RSFSR should recognise as obligatory participation of the corresponding party in session of the court. From remedial representation it is necessary to distinguish performance from a name and in interests of the legal person of its bodies. The presidium of the Supreme Arbitration Court of the Russian Federation in one of decisions on a civil case has specified, that the body of the legal person cannot be recognised by its representative, the body of the legal person is not allocated with the independent remedial status and dejst - 75 vuet within the limits of powers given to it the law and constituent instruments legal лица1. The recognition of body of the legal person its legal representative is represented theoretically incorrect as it is necessary involves a conclusion about absence of full capacity to sue at legal bodies. Both in civil, and in the civil law of procedure the legal body is allocated with full capacity, that is ability the actions to carry out the rights and to execute обязанности2. The part of 2 articles 53 PS establishes the Russian Federation, that the legal body gets the civil rights and takes up civil duties through the bodies operating according to the law, other legal acts and constituent instruments. The norm of article 43 GPK similar under the maintenance establishes RSFSR, that affairs of legal bodies lead in court their bodies operating within powers, given by it the law, the charter or position, or their representatives. The pretext "or" regarding 2 articles 43 GPK RSFSR is not dividing, is not it and only a connecting pretext as assumes possibility of participation in civil procedure as bodies of the legal person, and its representatives, and also joint participation of bodies and representatives. Application of such interpretation in practice admittedly does not contradict principles of civil legal proceedings and helps subjects of civil procedure to protect in the best way the rights in судах3. Bodies of legal bodies on quantitative structure can be joint and individual. The modern legislation supposes, that is - 1 See: the decision of Plenum of the Supreme Arbitration Court of the Russian Federation № 6164/98 from 9.02.99//the Supreme Arbitration Court Bulletin. 1999. №5. S.65-66. 2 See, for example: Gurvich M. A. The Right of action. M, Publishing house AN of the USSR. 1949. С.88. 3 Comment to the Civil code of practice of RSFSR. M, "Spark", 1996. С.69. The comment to chapter 5 GPK RSFSR «Representation in court» napi a dignity professor V.M.Sherstjukom. 76 polnitelnym body of the legal person was both exclusively individual executive office, and a joint executive office, and also individual and joint executive powers. Thus, at definition of the person, having the right to operate on behalf of the legal person as its body, it is necessary to consider norms of the current legislation about executive powers of the legal person and corresponding positions of constitutional instruments of the legal person. In case a unique executive office of the legal person is the joint executive office, according to the dominating point of view the legal body has possibility to operate in court exclusively through the representative. This conclusion which is not debatable and presented scientists-protsessualistami as by itself разумеющийся1, nevertheless, demands a theoretical substantiation. Actions of an executive office of the legal person, generating, changing, interfering or ceasing remedial legal relations (that is being remedial juridical facts) are result of the decisions accepted by it. The decision method of adoption a joint executive office substantially differ from decision-making by an individual executive office. For the decision-making first process it is settled by norms of the current legislation and local normative acts of the legal person and represents certain procedure. For last decision represent only result of thought processes which by any norms it is not settled and it is settled cannot be. As for decision-making by a joint executive office observance of certain procedure (convocation of a joint executive office, discussion, voting, registration of the made decision) it is obvious is required, that such procedure cannot be spent within the limits of session of the court. The break announcement in session of the court for decision-making on fulfilment of each legal proceeding kollegial - 1 Millers A.A. Court agents//the Course of the Soviet civil law of procedure. M, 1981. T. 1. С.306. 77 nym an executive office of the legal person mismatches a principle of remedial economy. Perhaps, stated can serve as a unique explanation of the standard point of view about impossibility of oral argument on behalf of the legal person of a joint executive office. The instructions regarding 2 articles 43 GPK RSFSR on heads of the organisations as on representing itself as body of the legal person cannot prove the stated point of view as everyone their members of a joint executive office is its head within the limits of the competence. At the same time, it is necessary to specify, that the modern remedial legislation does not know an interdiction for participation in process on behalf of the legal person of its joint executive office. Moreover, supposing participation on behalf of one represented several representatives under one power of attorney that assumes the adjusted actions of all representatives, it would be absolutely illogical to forbid to participate, on behalf of the legal person to its collegiate body. In our opinion, there is no essential difference any some for litigation between participation in trial on behalf of an economic society of its board operating as body on the basis of the law and constituent instruments, or its representatives operating on the basis of one power of attorney, given out on the basis of the decision of the same board. The similar contradiction has been noticed by A.S.Gordonom who wrote: « If three attorneys can represent on court of one principal we resolutely do not understand, three directors of board »1 paternal cannot same do. Besides, if to start with a parcel, that in court of business of legal bodies, a unique or which competent executive office is the collegiate body, representatives in this case it is necessary to recognise can lead only, that such legal bodies are remedially incapacitated, that contradicts both to the operating remedial legislation, and the conventional doctrine. The pre-revolutionary legislation and its interpretation Pravi - 1 Gordon A.S.representation in civil law. SPb., 1879. With. 122. 78 telstvujushchim the Senate, specifying, that boards can represent the companies and societies on court precisely through the special representative, and, in the person, they to operate on behalf of a society have not the right, started with a return parcel. The dominating theory also specified, that the legal body is incapacitated like juvenile and to insane persons that is why can carry out the rights and fulfil duties exclusively through the representatives which version is also the board legal лица.1 the Legislation at all did not use concept of the legal person and had no general doctrine about нем.2 2 Hence, it is necessary to draw a conclusion, that the remedial legislation not only does not forbid, but also assumes possibility of participation of a joint executive office of the legal person in sessions of the court. However for the purpose of observance of a principle of remedial economy if participation in process of a joint executive office essentially complicates or tightens proceeding, the court has the right to suggest to appoint to a joint executive office one or several representatives from the number or from among other persons. At the same time, refusal of appointment of representatives should not attract for the legal person of any adverse consequences. If executive powers of the legal person are joint and individual bodies simultaneously vessels in this case should consider distribution of powers between them, established by norms for - 1 See, for example: Vaskovsky E.V.textbook of civil law. Вып.1. С68; Gordon A.O.in the same place. With. 122. However the society Charter the right of conducting business in court board on its own behalf could be provided, in this case the board has not been obliged to operate in court through the attorney that proved to be true judiciary practice. See, for example: Decisions of Cassation department on business №153 from 1877 and on business №109 from 1882. TSit. On: Tjutrjumov I.M.decree. soch. T. 1. С.297. 2 Vaskovsky E.V.in the same place. С.73. 79 konodatelstva, constitutional instruments and local normative acts of the legal person. The document on which basis an individual executive office the-head admits operating as body of the legal person, and its legal proceedings are considered as legal proceedings of the person participating in business, the report on election of the head as competent body is in most cases. As more often from legal bodies as the subject of process joint-stock companies and societies with limited liability it is necessary to notice act, that according to operating civil legislation election (appointment) of an individual executive office is made by general meeting of participants (shareholders) or board of directors (supervisory board) of a society. If the participant (shareholder) of a society is one person, this unique participant (shareholder) can appoint an individual executive office (the director, the general director, the president) the decision. Thus, for acknowledgement of powers the head of joint-stock company or a society with limited liability should present to court the report on the election or the similar decision of the unique participant (shareholder). The Same report or the decision should be applied on the statement of claim signed by the head of the legal person. The documents confirming powers of the head of the legal person on giving of the statement of claim and (or) fulfilment of other legal proceedings, or their copies necessarily should be applied on the statement of claim or to other remedial document as are the written evidence on which basis the remedial juridical fact - presence of powers should be established. They also should be specified in the statement of claim in the list of applied documents according to point 7 of article 126 GPK RSFSR. Similar requirements are shown to the statement for injunction delivery (point 5 of article 125-4 GPK RSFSR), to the appeal for review (point 5 of article 286 GPK RSFSR), and also by analogy should be shown to the statement for protest bringing in the exercise of supervisory powers. 80 Because the body of the legal person is not its representative, there is a question on possibility of fulfilment of legal proceedings by the person appointed fulfilling duty of body of the legal person. In our opinion, the person fulfilling duties of body of the legal person, also is not its representative, directly realising the legal personality of the legal person. The conclusion otherwise follows, that for impossibility of discharge of duties by corresponding body of the legal person the legal body is remedially incapacitated and can realise the laws of procedure and fulfil the remedial duties exclusively through the representative. In turn, at absence before the given out powers of attorney the legal body is absolutely not capable to participate in process, than, certainly, its right to judicial protection is broken. The practical conclusion of this conclusion consists that the court at fulfilment of legal proceedings by the person fulfilling duties of competent body of the legal person, has not the right to demand from it representation of properly constituted power of attorney on behalf of the legal person. On this question the Presidium of the Supreme Arbitration Court which in one of the decisions on concrete business has specified adheres to a similar position also, that the person appointed fulfilling duty of the president (an individual executive office) operates with proxy body within the competence without доверенности1. Judiciary practice develops uniform practice concerning representation of the documents confirming powers of the person, the head of the legal person fulfilling duty. Powers of the head fulfilling duty should be confirmed by the order on its appointment, the signed head, or the certificate of body proxy to appoint the head. The civil legislation of Russia provides such kinds of the legal bodies which affairs lead not bodies of these legal bodies, and them is 1 Decision of Presidium of the Supreme Arbitration Court of the Russian Federation from 30.03.99 №488/99. The document is available in the INFORMATION RETRIEVAL SYSTEM "Code". 81 ki. Article 72 GK establishes the Russian Federation, that each participant of the general partnership has the right to operate on behalf of association if by articles of incorporation it is not established, that all its participants run business in common, or business management is entrusted to separate participants. Similar rules are applied and at an establishment of an order of management and business management in the limited partnership. According to article 84 GK the Russian Federation management in the limited partnership is carried out by general partners according to order to the similar rules established by the Civil code about the general partnership. General partners are not bodies of the legal person that the Russian Federation specifying follows from the comparative interpretation of points 1 and 2 articles 53 GK, that the legal body gets the civil rights and takes up civil duties through the bodies (point 1), and in statutory cases - through the participants (point 2). The order of acquisition of civil laws of procedure and execution of the civil remedial duties, 2 articles 43 GPK established by a part RSFSR, does not provide possibility of business management of legal bodies their participants. According to the Civil code of the Russian Federation general partnership and limited partnership bodies are not formed. Participants of legal bodies through whom legal bodies get the rights and accept duties, cannot be considered and legal representatives in civil procedure. According to article 48 GPK RSFSR legal representatives can protect in court of the right and legitimate interests only citizens, but not legal bodies. Close interpretation of article 43 GPK RSFSR allows to draw a unique conclusion, that affairs of the general partnership or the limited partnership in civil procedure can lead only the civil remedial representatives who are not legal representatives. However such conclusion contradicts the theory of the civil law of procedure as denies presence of civil capacity to sue at these legal bodies. In practice participants of the general partnership and general partners in the limited partnership speak on behalf a name of association without the power of attorney on a basis - 82 nii the law and the articles of incorporation, thus, not being body of the legal person. Inconsistency of norms of the civil and civil law of procedure does not allow to apply correctly now norm of a part of 2 articles 43 GPK RSFSR. For granting of identical volume of civil laws of procedure and identical possibility to carry out these rights and also to accept and fulfil civil remedial duties it is necessary to make changes to the Civil code of practice. The made changes should similarly to norms of civil law establish conducting possibility in court of affairs of legal bodies their bodies, participants or representatives. Bodies of the legal person operate within powers, statutory, other legal acts and constituent instruments. Participants of the legal person have the right to run business of legal bodies in court in cases, statutory. The part of 2 articles 43 GPK RSFSR taking into account the offered changes should look as follows: «Affairs of legal bodies lead in court their bodies operating within powers, statutory, other legal acts and constituent instruments of the legal person; participants of the legal person in cases, statutory; representatives of the legal person. The persons who are representing itself as body or the participant of the legal person, represent to court the documents certificating them of power». Here it is necessary to specify, that modern judiciary practice supposes investment with powers of the remedial representative of legal bodies. With development of system of remedial representation and absence of lawyer monopoly the representation legal bodies (as a rule, specialising on rendering of a similar sort of services) will extend. However the analysis of the chapter V GPK allows to approve RSFSR, that the legislator sees the representative the physical person. In it, in particular, specifies the list of the persons, having the right to be representatives (lawyers, the workers, authorised trade unions and other organisations) and persons who cannot be representatives in a sou - 83 de (not completely capable which can be only physical persons, lawyers, judges, inspectors, public prosecutors). But also there are no bases to approve, that legal bodies cannot be representatives. As legal bodies can be the subject of process so far as business management of other accomplices according to article 35 GPK RSFSR can be entrusted to the legal body. The legal body can be admitted the court considering case, to representation on the given case according to point 7 of article 44 GPK RSFSR. In this case the power of attorney from a name tjazhushchegosja (in case of delivery of such power of attorney) should be given out the legal body - to the representative. On behalf of the representative in this case have the right its head will act only. For participation in business in quality of the representative of the worker of the legal person of the-representative this worker should present to court the power of attorney which has been given out to it as retrust. The most widespread kind of representation in civil procedure is the voluntary contractual representation. In the basis of the specified kind of representation by definition the contract lays, and this contract regulates relations between the representative and represented. The representative and represented can be connected civil-law or the employment contract. Among all variety of contracts it is possible to allocate only four contracts which grant the right to one person to speak on behalf a name of other person in court as its remedial representative. First, it is the contract of agency, and also the brokerage contract in that part in which relations of the agent and the principal are regulated by norms about the contract of agency according to article 1011 PS the Russian Federation. According to article 971 of the Civil code of the Russian Federation under the contract of agency one party (attorney) undertakes to make from a name and at the expense of other party (principal) certain legal acts. It is thus right also duties under the transaction made by the attorney, arise directly at the principal. Representing a classical example of communication between represented and the representative (in terminology PS of the principal and the attorney), the contract of agency often still name the contract about before - 84 stavitelstve. It is necessary to note following lines of this kind of contracts which make considerable impact on remedial features of activity of the representative. The contract of agency connects obligations and allocates with the rights only the parties of this contract, that is the principal and the attorney, not obliging and not allocating the rights someone other. Neither the court, nor an adversary, any other subject of civil procedure has no right to demand execution represented, for example, to the duty on maintenance of the representative with the means necessary for execution of the commission (point 2 of article 975 PS the Russian Federation), or executions by the representative of a duty on returning represented to the power of attorney for commission execution (article 974 PS the Russian Federation). Relations between the representative and represented of the contract of agency are the independent relations which have been not connected with relations, showing a proceeding subject in which participate the principal as the party or the third party and believed as the remedial representative. From this parcel defect of authority at court follows also to consider in one process together with the "basic" claim the requirement of the representative about payment to it represented compensations if the contract of agency is vozmezdnym according to article 972 PS the Russian Federation. For excitation of dispute on collecting from represented compensation the representative has the right to submit the claim considered separately. The contract of agency is not the document authorising the representative to operate on behalf of represented and legitimirujushchim of the representative as those before court. For the admission in process the representative is obliged to show to court the power of attorney which, in turn, is obliged to give out it represented according to point 1 of article 975 PS the Russian Federation. Unlike PS the Federal act «About a securities market» in article 3 establishes the Russian Federation, that broker activity fulfilment of civil-law securities transactions as the attorney or the commission agent operating on the basis of the contract of agency or the commission, and also the power of attorney on fulfilment of such transactions in the absence of instructions on powers admits 85 The attorney or the commission agent in the contract. Thus, in the law it is established, that the broker operating as believed in civil circulation, can be legitimirovan in this quality without the power of attorney by representation to the counterpart of the contract of agency (the broker contract). The given design is represented mismatching PS the Russian Federation, theoretically incorrect and inapplicable neither to civil, nor to civil remedial representation. Relations between the broker and its client are civil-law from what follows, that they are regulated by norms of the civil legislation. According to point 2 of article 3 PS the Russian Federation the civil legislation consists from PS and other federal acts accepted according to it. To norms PS the big validity by an establishment of necessity of conformity of norms of other federal acts is given norms PS. As already it has been specified above, point 1 of article 975 PS the Russian Federation establishes a duty of the principal to give out to the attorney the power of attorney on which basis the attorney can make transactions according to item 1 of article 182 PS the Russian Federation. However on the basis of law article 3 «About a securities market» the principal can refuse to give out to the attorney the power of attorney. Thus, the Federal act «About a securities market» establishes absolutely other mode of the power of attorney, rather than PS the Russian Federation, and also in the contradiction to article 975 PS the Russian Federation cancels one of the basic duties of the principal. The power of attorney becomes not the obligatory document, legitimirujushchim the attorney before the third parties as that, and facultative which drawing up completely depends on will of the parties of the contract of agency. The contract of agency represents the transaction connecting only believed and principal, intervention someone the third in these relations is absolutely excluded. The power of attorney is the document directed, first of all, to attention of the third parties the Contract of agency constituted in writing (namely in such form all are constituted so-called "broker" dogovory), can contain the information, which distribution not only it is not obligatory, but also 1 Federal act «About a securities market» from 22.04.96 №39-Ф3//the Russian newspaper. №79.25.04.96. 86 It is absolutely undesirable, for example, about the sum of compensation of the attorney, an order of compensation to it of expenses. Besides, at possible divergences in volume of the powers specified in the power of attorney and the contract of agency the unfair attorney has possibility to start dispute concerning the valid volume of the rights given to it by the principal. In civil procedure the representative has no possibility to operate on behalf of the guarantee represented on the basis of the contract, except set forth above, also on following bases. Civil procedure, as well as any law of procedure, is rigidly enough formalized. For this reason investment with laws of procedure and putting on of remedial duties occurs only in the presence of structure of juridical facts accurately specified in the code of practice. So, for the introduction into process of the representative operating on the basis of the contract of agency it should show to court properly constituted power of attorney that is accurately fixed in article 45 GPK RSFSR. At definition of powers of the remedial representative the legislator does not suppose any variants of behaviour of court. The impossibility of application of article 3 of the Law of the Russian Federation «About a securities market» for investment of the broker with powers of the remedial representative follows also from a place of norm of article 3 of the Law «About a securities market» in system of the Russian legislation. This norm is norm of the substantive law, it has been urged to regulate the relations connected with realisation of powers of the broker at the conclusion of civil-law contracts that is directly specified in the text of article and does impossible its application for realisation of remedial representation. The nominee holder of securities also cannot represent itself as the court agent of the owner of securities even if the specified right is given it depozitarnym by the contract (the contract about nominal derzhanii) without the power of attorney. This conclusion follows, first, from interpretation of norms of the Law «About a securities market», any of which does not allocate the nominee holder with the representation right in court on behalf of the owner of a valuable paper. Secondly, even for realisation of the civil rights fixed valuable bu - 87 magoj, the nominee holder should be specially authorised the owner of a valuable paper owing to express indication of a part 3 points 2 of article 8 of the Law «About a securities market», realisation of laws of procedure of the owner also requires special power by rules of the law of procedure. This rule is not cancelled also by instructions in article 8 point 2 on a duty of the nominee holder to make all necessary actions directed on maintenance of reception by the person in which interests it "holds" the securities, all payments which are due to it as the owner of securities. Such duty does not mean a special order of the introduction into process in protection of the rights of other person distinct from general provisions about judicial representation. In force formalized ™ civil procedure the court agent cannot enter process to similarly participation in civil relations of the persons operating in another's interests without the commission. In case of absence of the commission "representative" simply it will not be admitted in process. However the interesting with theoretical and practical point of view the problem arising at the erroneous admission in process as the representative of the person, not presented to court the power of attorney is represented. The judiciary practice which was under construction on the Charter of civil legal proceedings of 1864, said, that, if tjazhushchijsja subsequently confirms actions of the person (even in court of higher instance), compearing as its believed, but not presented the power of attorney such actions are valid, made from a name тяжущегося1. However representation of the power of attorney after a deviation in any form of the document brought by the attorney, does not involve decision cancellation about отклонении2. The subsequent acknowledgement of actions of the attorney also has no any value, for example, in case of delivery to - See, for example: Decisions of Cassation department on business №1710 from 1870, on business №112 from 1885, on business №93 from 1892 and others. TSit. On. Tjutrjumov I.M.decree. soch. С.687. 2 decisions of Cassation department on business №112 from 1885. TSit. On: Tjutrjumov I.M.decree. soch. With. 687. 88 verennosti after the expiration davnostnogo or the time limit (appeal) action on the fulfilment, undertaken by the attorney before the expiration of this term because to such statement as made after term, it is impossible to give return action and it can deprive of the opponent of the laws of procedure got by it; but out of these cases it would be unfair to destroy all производство1. It is represented, that modern judiciary practice should go on other way. Article 126 GPK in the imperative form establishes RSFSR, that to the statement of claim (and it is equal to statements and the complaints submitted in the procedure on affairs, arising from jural relations under administrative law, and special proceeding), submitted the representative, the power of attorney or other document certificating powers of the representative should be enclosed. A consequence of infringement of this duty is refusal in acceptance of the statement of claim according to point 9 of article 129 GPK RSFSR. Other variants of actions for court it is not established. However if has put nevertheless it was accepted to manufacture and already in litigation it has been established, that the statement on behalf of the interested person is submitted by the person who does not have powers on conducting of business such statement on the basis of point 3 of article 221 GPK RSFSR remains without consideration. The court of appelate jurisdiction has the same powers at an establishment of these circumstances already after awarding judgement, according to articles 305 and 309 GPK RSFSR it is obliged to cancel the passed decision and to leave the statement without consideration. It is obvious, that the requirement about presence of powers on conducting business at the representative concerns by then when these actions are made. With reference to the given case the person should be authorised on giving of the statement of claim while it (statement of claim) is represented to court. Presence of powers should be proved at the moment of a filing of application - such is the imperative requirement of the law. Failure of evidence 1 Decision of Cassation department on business №93 from 1892. TSit. Tjutrjumov I.M.decree. soch. With. 687. 89 The powers, established by the judge, should involve leaving of the statement without consideration. Other interpretation of the specified norms mismatches neither to the letter, nor equity of statute and could entail numerous infringements by judges of the civil remedial legislation. The filing of application the unauthorized person contradicts an optionality principle in civil procedure according to which only from will of the person, the right or which legitimate interest has suffered, judicial protection of this right or a legitimate interest depends. Article 183 PS the Russian Federation establishing, that creates the subsequent approval of the transaction by the represented, changes and ceases for it the civil rights and duties under the given transaction from the moment of its fulfilment, cannot be extended to civil procedure and cannot be applied at justice realisation by analogy as regulates other (civil-law) relations and will not be adjusted with the formal beginnings of the civil law of procedure. If the duty is assigned to the subject to prove presence of powers at the representative, and on the judge - to investigate and state an estimation to the presented proofs it would be incorrect to approve, that the subject, obliged to present the proof, the judge do not bear the liability for nonperformance of these duties (in the form of refusal in acceptance of the statement of claim or in the form of cancellation of the taken place decision and leaving of the statement without consideration). Possibility of the subsequent approval or refusal of such approval can cause abusing this right both from the court party, and from the party tjazhushchihsja. In this case the court has possibility in one cases «to close eyes» on available infringements in timely representation of proofs of presence at the representative of powers, and in other cases to give up in acceptance of the statement of claim, strictly following requirements GPK RSFSR. It is impossible to present, that in both these cases of action of the judge would correspond to the law. The person, which representative operated in court without powers, would have possibility to approve its action in the court of appelate jurisdiction if the decision favorable for it has been passed, and to refuse such approval if issue of a suit was for it other. In this case the positive decision for the party will be upheld, and negative is cancelled 90 And the statement is left without consideration that does not interfere with the party to address again with the similar requirement. Thus, the destiny of the taken out decision depends on the statement of one of the parties. Such position cannot be recognised by correct as puts an adversary in obviously worst position that is why mismatches a principle of equality of the parties. The second kind of the contract is the employment contract. On the basis of this kind of the contract in process legal advisers and bookkeepers of the enterprises more often act. The opinion expressed earlier on reference of the legal adviser to bodies of the legal person as the legal adviser is a supervising post in the present work is not considered in a kind of the obvious contradiction operating законодательству1. Restriction by the employment contract of the rights of the worker without instructions of such restriction in the power of attorney does not attract any consequences with reference to civil procedure - the representative can operate within the limits of the power of attorney given out to it. The expressing offer on entering possibility in GPK RSFSR of changes according to which legal advisers of the organisations had an opportunity to operate in process on the basis of office удостоверения2, we consider inexpedient as in a duty of the legal adviser it should is not obligatory circulation on vessels »enters«, therefore appointment to the post not «should be considered as external duties to run enterprise business» 3. To charge vessels each time to investigate the employment contract between the legal adviser and the organisation for the purpose of an establishment of powers of court unduly. Rosenberg J.A.Predstavitelstvo of the socialist organisations in court and arbitration. Riga, 1981. With. 36-37. 2 Lisitsyns E.G.protection of interests of legal bodies in civil sudoproiz vodstve (in aspect of representation). The dissertation author's abstract on competition of a scientific degree of the master of laws. Sverdlovsk, 1987. With. 12. 3 Vysotsky P.M. Problems of action and perfection civil protses sualnogo legislations. Sverdlovsk, 1982. With. 93. 91 The third kind of the contract are the general partnership and limited partnership articles of incorporation. Features of these kinds of contracts were specified above. The fourth kind of the contract is the contract of transport expedition, which according to article 801 PS the Russian Federation can contain the obligation of the forwarding agent to represent the client (the consigner or the consignee) in court on the disputes connected with transportation of cargo. No, any doubt that the forwarding agent will have possibility to operate in process as the representative only in the event that the consigner or the consignee will give out it the power of attorney. Otherwise the court cannot admit it in process At the heart of remedial representation cannot lay, as it often meets in practice, the contract on rendering of legal services as vozmezdnoe rendering of services does not assume investment of one person with powers to speak on behalf a name of another (chapter 39 PS the Russian Federation). The analysis of such contracts in which the obligation of one person to render legal services in the form of consultation contains, drawing up of legal documents and the conclusions on legal a question and also to represent other person in court or other body allows to come to conclusion in this case the mixed dogo-thief (article 421 PS the Russian Federation) takes place. To relations of the parties from such mixed contract norms about the contract of agency (the brokerage contract in case of fulfilment of actual actions), and also norms about the contract vozmezdnogo rendering of services if other does not follow from the agreement of the parties or a being of the mixed contract (point 3 of article 421 PS the Russian Federation) should be applied. It is represented, that it is necessary to unify an admission order in process of the representatives, whatever contract connected them with the represented. The representative in any case is obliged to present to court the power of attorney which has been given out according to order, established PS the Russian Federation as the labour legislation does not contain norms about the power of attorney. Such power of attorney should be the uniform document on which basis the contractual representative is supposed in process. It should affect well civil procedure and will unload court as it should not investigate a question on powers, is given - 92 nyh to the concrete official, for example, the state body which has presented to court the business card according to a part of 2 articles 43 GPK RSFSR.
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A source: Khalatov, Sergey Aleksandrovich. Problems of representation in civil Legal proceedings / thesis. 2002

More on topic § 2.2. The legal capacity of the representative 2.2.1. The legal capacity basis. The power of attorney:

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