The first review of the Supreme Court practice for 2023: interesting positions
27 apr 2023
Civil cases
When to recover unjustified enrichment
The money transferred as payment under the contract can be recovered according to the norms of the Civil Code, which regulate the operation of this type of agreement. And the provisions on unjustified enrichment can only be applied vicariously under Article 1103 of the Civil Code ("The ratio of claims for the return of unjustified enrichment with other requirements for the protection of civil rights").
Item 1, case No. 46-KG21-45-K6
Payment for the name after the death of its owner
The obligation to pay money for the use of a name does not cease with the death of the person to whom it belonged. This conclusion was reached by the Supreme Court, considering the complaint of Mikhail Kalashnikov's heirs, who collected money from the factory producing Kalashnikov vodka. The deceased relative of the plaintiffs allowed the company to use this brand.
Item 2, case No. 43-KG21-7-K6
How much can be recovered in the order of subrogation
The insurance company paid the participant of the accident the CTP money, and then, by way of subrogation, decided to recover from the culprit the cost of the car damaged in the accident, minus the usable balances. Three instances satisfied the requirements, and the Supreme Court indicated that this could not be done: it was necessary to establish on what basis and to what extent the culprit of the accident should answer to the victim.
Item 4, case No. 12-KG22-1-K6
When will the temporary transfer of an employee become permanent
If an employee has been transferred to another job under Part 1 of Article 72.2 of the Labor Code ("Temporary transfer to another job") and he has been working there for more than a year without requiring to return to his former place, then the temporary transfer can be considered permanent.
Item 6, case No. 67-KG22-1-K8
Who proves copyright infringement
Lawyer Valery Smirnov has published a series of books, they were published by the publishing house "Lefty. St. Petersburg". The parties agreed that one part of the circulation goes to the author, and the other to the publisher. After a while, the writer discovered that books were being sold on the Internet without his permission.
He went to court to seek compensation, but was refused. The courts noted: the plaintiff could not prove that the works were sold illegally. The Supreme Court did not agree with this position, because in such cases it is the defendant who must prove that he lawfully distributed the books.
Item 8, case No. 78-KG21-69-K3
Right to compensation
The bank employee who stole the client's shares was found guilty of fraud. In the verdict, the court indicated that the victim has the right to file a civil lawsuit against the financial organization in order to receive compensation.
When the bank's client went to court, three instances refused him because of missing the statute of limitations. But the Supreme Court made a different decision: it is impossible to reject the applicant's claim if the court indicated in the verdict that he was entitled to payment.
Item 10, case No. 21-KG22-6-K5
When it is impossible to reduce the costs of a lawyer
The court does not have the right to arbitrarily reduce the court costs of paying for the services of a representative, if the other party does not object to the amount. This can only be done with motivation and if it is proved that the court costs are excessive.
Item 11, case No. 34-KG22-1-K3
Economic disputes
We charge ourselves bonuses correctly
The CEO of the company, who writes out the award to himself, must coordinate this decision with the higher management body of the organization, for example, with its founders. If the top manager has not received approval, then in the future the new management of the company has the right to demand that this payment be returned as losses (read more in the article "How to properly charge bonuses to the top management of the company").
Item 12, case no. A40-121758/2021
The impact of corporate conflict on the transaction
Checking the legality of the transaction with the company's property, it is necessary to find out whether the company really wanted to abandon it. Moreover, if there is a corporate conflict in the seller's firm, the courts are obliged to determine who was entitled to make decisions on the sale of assets at the time of the transaction.
P. 13, case no. A40-14621/2021
Re-extension of the lease of the site for construction
As a general rule, the tenant of the land has the right to extend the lease agreement only once to complete the construction. The Supreme Court allowed repeated prolongation, marking the beginning of a new practice. The Economic Board stressed that this is possible if the owner of the plot does not demand to return it to himself within six months after the end of the lease agreement.
Item 14, case no. A63-4067/2021
Compensation to the tenant of the cultural heritage object
If the lease agreement for a cultural heritage object is terminated prematurely, the lessor is obliged to reimburse the lessee for the costs of preserving and restoring the object. We are talking about those expenses that were not credited to the rent for the duration of the agreement. The economic board came to this conclusion. Compensation for itself was sought by the law firm Gorodissky and Partners, which rented a building in Moscow, which is recognized as a monument of history and culture.
Item 15, case no. A40-94683/2020
Combination of sanctions
In the contract, you can set a penalty for one violation in the form of a combination of a fine and a fine. At the same time, the question of the proportionality of such a sanction and the admissibility of its reduction should be considered by the courts based on the total amount of the fine and penalty.
Item 16, case no. A32-17442/2020
Involvement of all copyright holders
When a case of violation of the exclusive right to the name of the place of origin of goods is being considered, then all copyright holders should be involved in the dispute as third parties. This is necessary to determine the plaintiff's share in the compensation to be recovered.
Item 19, case no. A63-13005/2020
Punishment for not submitting a declaration
If a taxpayer has not submitted a tax return under the general taxation system, as he has unlawfully applied a special tax regime, this is considered a violation (paragraph 1 of Article 119 of the Tax Code). At the same time, the court has the right to reduce the amount of the fine, taking into account the validity of the reasons for not submitting the declaration.
P. 22, case no. A32-17746/2020
When we learn about enforcement proceedings
The day of the debtor's familiarization with the electronic resolution on the initiation of enforcement proceedings is the day when the debtor entered the automated system.
P. 25, case no. A73-17414/2021
Administrative cases and Administrative Code cases
Right to review
The company lost a dispute with the forest inspector in court, and then in a separate process achieved invalidation of the forest patrol procedure. Having achieved this decision, the company appealed to the court to review the results of the first dispute. The courts pointed out that at the time of the decision the regulatory act was still in force, which means that they resolved the dispute correctly.
The Supreme Court disagreed with this and pointed out that the plaintiff, who achieved the cancellation of the NPA in court, has the right to review the decision on his original dispute.
P. 35, case No. 4-KAD22-20-K1
A house without a plot
A citizen owns a burnt-out house. On the basis of this, he was denied the privatization of the land plot under the house. The courts have confirmed this. The Supreme Court declared the refusal illegal, because the registration of rights to the land plot is necessary for the plaintiff to restore the house. The very fact that the house is unsuitable for living does not prevent the transfer of the plot to the applicant's property.
P. 36, case No. 14-KAD22-4-K1
Notification by phone
The official was punished for violating the procedure for maintaining budget estimates (Part 2 of Article 15.15.7 of the Administrative Code). She was notified about the date and time of drawing up the protocol by phone, but she never received a mail notification. The Court decided that in this case we are talking about improper notification. The Supreme Court disagreed with this and reminded: the telephone message is attributed to the number of ways by which it is possible to notify the participant of the case of administrative offenses.
P. 38, case No. 127-AD22-11-K4
File complaints on time
The deadline for appealing the speeding fine expired on Saturday. The applicant considered that when the last day of the deadline falls on a day off, it is postponed to Monday. But the deadline for appealing a decision that has not entered into force is calculated in days, the Supreme Court recalled, therefore, if it expires on a non-working day, the last day of the appeal period is not postponed to the next working day.
P. 39, case No. 71-AD22-4-K3
Criminal cases
From theft to robbery
Two criminals broke into someone else's house to rob him. But they were discovered by the owner, whom the attackers killed. In this case, what was intended as theft should be qualified under the article on robbery (Article 162 of the Criminal Code).
Item 28, case No. 56-UD21-28-A5
Partial relapse
The criminal committed arbitrariness for the second time (Article 330 of the Criminal Code), this time involving extortion (Article 163 of the Criminal Code). Although there was no extortion the first time, the court applied the rule on sentencing in case of recidivism to both crimes committed. The Supreme Court stressed that this rule applies when sentencing only for those crimes that are committed repeatedly.
Item 29, case No. 48-UD22-3-K7
Refusal to cooperate
At first, the accused made a deal with the investigation, but then refused to testify. Because of this, the courts refused to apply the mitigating rule on the maximum half of the term (Part 2 of Article 62 of the Criminal Code). The Supreme Court confirmed that the article applies only if the defendants comply with all the conditions and fulfill all the obligations stipulated by the pre-trial cooperation agreement concluded with him.
P. 32, case No. 55-UD21-22-A5
Without the name of the deceased
Two people committed the crime, but only one survived to be sentenced. In such a situation, the court in the verdict must indicate the commission of a crime "with another person", without naming the surname of the deceased.
P. 34, case No. 77-UD22-1-A1
Term for poems
A resident of Cherepovets published several poems on a page in social networks, in which they saw calls for extremism and justification of terrorism (part 2 of Article 280 and Part 2 of Article 205.2 of the Criminal Code of the Russian Federation). The courts qualified his actions as five separate crimes — two on extremism and three on terrorism.
The defense in the complaint to the Supreme Court insisted that it would be more correct to impose punishment for two crimes. But the Board of military affairs took into account: the accused published his poems at fairly long intervals between publications. At the same time, the content of his work had "different orientation and motivation." Therefore, the judges agreed that the convicted person committed the crime each time with a newly arisen intent. This means that the qualification of his actions as two single crimes is impossible.
The first review of the Supreme Court practice for 2023: interesting positions
Civil cases
The money transferred as payment under the contract can be recovered according to the norms of the Civil Code, which regulate the operation of this type of agreement. And the provisions on unjustified enrichment can only be applied vicariously under Article 1103 of the Civil Code ("The ratio of claims for the return of unjustified enrichment with other requirements for the protection of civil rights").
Item 1, case No. 46-KG21-45-K6
The obligation to pay money for the use of a name does not cease with the death of the person to whom it belonged. This conclusion was reached by the Supreme Court, considering the complaint of Mikhail Kalashnikov's heirs, who collected money from the factory producing Kalashnikov vodka. The deceased relative of the plaintiffs allowed the company to use this brand.
Item 2, case No. 43-KG21-7-K6
The insurance company paid the participant of the accident the CTP money, and then, by way of subrogation, decided to recover from the culprit the cost of the car damaged in the accident, minus the usable balances. Three instances satisfied the requirements, and the Supreme Court indicated that this could not be done: it was necessary to establish on what basis and to what extent the culprit of the accident should answer to the victim.
Item 4, case No. 12-KG22-1-K6
If an employee has been transferred to another job under Part 1 of Article 72.2 of the Labor Code ("Temporary transfer to another job") and he has been working there for more than a year without requiring to return to his former place, then the temporary transfer can be considered permanent.
Item 6, case No. 67-KG22-1-K8
Lawyer Valery Smirnov has published a series of books, they were published by the publishing house "Lefty. St. Petersburg". The parties agreed that one part of the circulation goes to the author, and the other to the publisher. After a while, the writer discovered that books were being sold on the Internet without his permission.
He went to court to seek compensation, but was refused. The courts noted: the plaintiff could not prove that the works were sold illegally. The Supreme Court did not agree with this position, because in such cases it is the defendant who must prove that he lawfully distributed the books.
Item 8, case No. 78-KG21-69-K3
The bank employee who stole the client's shares was found guilty of fraud. In the verdict, the court indicated that the victim has the right to file a civil lawsuit against the financial organization in order to receive compensation.
When the bank's client went to court, three instances refused him because of missing the statute of limitations. But the Supreme Court made a different decision: it is impossible to reject the applicant's claim if the court indicated in the verdict that he was entitled to payment.
Item 10, case No. 21-KG22-6-K5
The court does not have the right to arbitrarily reduce the court costs of paying for the services of a representative, if the other party does not object to the amount. This can only be done with motivation and if it is proved that the court costs are excessive.
Item 11, case No. 34-KG22-1-K3
Economic disputes
The CEO of the company, who writes out the award to himself, must coordinate this decision with the higher management body of the organization, for example, with its founders. If the top manager has not received approval, then in the future the new management of the company has the right to demand that this payment be returned as losses (read more in the article "How to properly charge bonuses to the top management of the company").
Item 12, case no. A40-121758/2021
Checking the legality of the transaction with the company's property, it is necessary to find out whether the company really wanted to abandon it. Moreover, if there is a corporate conflict in the seller's firm, the courts are obliged to determine who was entitled to make decisions on the sale of assets at the time of the transaction.
P. 13, case no. A40-14621/2021
As a general rule, the tenant of the land has the right to extend the lease agreement only once to complete the construction. The Supreme Court allowed repeated prolongation, marking the beginning of a new practice. The Economic Board stressed that this is possible if the owner of the plot does not demand to return it to himself within six months after the end of the lease agreement.
Item 14, case no. A63-4067/2021
If the lease agreement for a cultural heritage object is terminated prematurely, the lessor is obliged to reimburse the lessee for the costs of preserving and restoring the object. We are talking about those expenses that were not credited to the rent for the duration of the agreement. The economic board came to this conclusion. Compensation for itself was sought by the law firm Gorodissky and Partners, which rented a building in Moscow, which is recognized as a monument of history and culture.
Item 15, case no. A40-94683/2020
In the contract, you can set a penalty for one violation in the form of a combination of a fine and a fine. At the same time, the question of the proportionality of such a sanction and the admissibility of its reduction should be considered by the courts based on the total amount of the fine and penalty.
Item 16, case no. A32-17442/2020
When a case of violation of the exclusive right to the name of the place of origin of goods is being considered, then all copyright holders should be involved in the dispute as third parties. This is necessary to determine the plaintiff's share in the compensation to be recovered.
Item 19, case no. A63-13005/2020
If a taxpayer has not submitted a tax return under the general taxation system, as he has unlawfully applied a special tax regime, this is considered a violation (paragraph 1 of Article 119 of the Tax Code). At the same time, the court has the right to reduce the amount of the fine, taking into account the validity of the reasons for not submitting the declaration.
P. 22, case no. A32-17746/2020
The day of the debtor's familiarization with the electronic resolution on the initiation of enforcement proceedings is the day when the debtor entered the automated system.
P. 25, case no. A73-17414/2021
Administrative cases and Administrative Code cases
The company lost a dispute with the forest inspector in court, and then in a separate process achieved invalidation of the forest patrol procedure. Having achieved this decision, the company appealed to the court to review the results of the first dispute. The courts pointed out that at the time of the decision the regulatory act was still in force, which means that they resolved the dispute correctly.
The Supreme Court disagreed with this and pointed out that the plaintiff, who achieved the cancellation of the NPA in court, has the right to review the decision on his original dispute.
P. 35, case No. 4-KAD22-20-K1
A citizen owns a burnt-out house. On the basis of this, he was denied the privatization of the land plot under the house. The courts have confirmed this. The Supreme Court declared the refusal illegal, because the registration of rights to the land plot is necessary for the plaintiff to restore the house. The very fact that the house is unsuitable for living does not prevent the transfer of the plot to the applicant's property.
P. 36, case No. 14-KAD22-4-K1
The official was punished for violating the procedure for maintaining budget estimates (Part 2 of Article 15.15.7 of the Administrative Code). She was notified about the date and time of drawing up the protocol by phone, but she never received a mail notification. The Court decided that in this case we are talking about improper notification. The Supreme Court disagreed with this and reminded: the telephone message is attributed to the number of ways by which it is possible to notify the participant of the case of administrative offenses.
P. 38, case No. 127-AD22-11-K4
The deadline for appealing the speeding fine expired on Saturday. The applicant considered that when the last day of the deadline falls on a day off, it is postponed to Monday. But the deadline for appealing a decision that has not entered into force is calculated in days, the Supreme Court recalled, therefore, if it expires on a non-working day, the last day of the appeal period is not postponed to the next working day.
P. 39, case No. 71-AD22-4-K3
Criminal cases
Two criminals broke into someone else's house to rob him. But they were discovered by the owner, whom the attackers killed. In this case, what was intended as theft should be qualified under the article on robbery (Article 162 of the Criminal Code).
Item 28, case No. 56-UD21-28-A5
The criminal committed arbitrariness for the second time (Article 330 of the Criminal Code), this time involving extortion (Article 163 of the Criminal Code). Although there was no extortion the first time, the court applied the rule on sentencing in case of recidivism to both crimes committed. The Supreme Court stressed that this rule applies when sentencing only for those crimes that are committed repeatedly.
Item 29, case No. 48-UD22-3-K7
At first, the accused made a deal with the investigation, but then refused to testify. Because of this, the courts refused to apply the mitigating rule on the maximum half of the term (Part 2 of Article 62 of the Criminal Code). The Supreme Court confirmed that the article applies only if the defendants comply with all the conditions and fulfill all the obligations stipulated by the pre-trial cooperation agreement concluded with him.
P. 32, case No. 55-UD21-22-A5
Two people committed the crime, but only one survived to be sentenced. In such a situation, the court in the verdict must indicate the commission of a crime "with another person", without naming the surname of the deceased.
P. 34, case No. 77-UD22-1-A1
A resident of Cherepovets published several poems on a page in social networks, in which they saw calls for extremism and justification of terrorism (part 2 of Article 280 and Part 2 of Article 205.2 of the Criminal Code of the Russian Federation). The courts qualified his actions as five separate crimes — two on extremism and three on terrorism.
The defense in the complaint to the Supreme Court insisted that it would be more correct to impose punishment for two crimes. But the Board of military affairs took into account: the accused published his poems at fairly long intervals between publications. At the same time, the content of his work had "different orientation and motivation." Therefore, the judges agreed that the convicted person committed the crime each time with a newly arisen intent. This means that the qualification of his actions as two single crimes is impossible.
P. 46, case No. 222-UD22-47-A6
Review of judicial practice of the Supreme Court of the Russian Federation No. 1 for 2023
Link: Первый обзор практики ВС за 2023: интересные позиции (pravo.ru)