The legal status of the applicant is that. Section I. Documents confirming the applicant’s status. Registration and verification of crime reports. Guarantees of the constitutional rights of citizens when contacting law enforcement agencies
In accordance with the provisions of Art. 10 of the Federal Law of May 31, 2002 No. 62-FZ (as amended on December 31, 2014) “On Citizenship of the Russian Federation,” a document certifying the citizenship of the Russian Federation is a passport of a citizen of the Russian Federation or another main document containing an indication of the citizenship of the person. The types of basic documents identifying a citizen of the Russian Federation are determined by Federal Law dated August 15, 1996 N 114-FZ (as amended on December 31, 2014) “On the procedure for leaving the Russian Federation and entering the Russian Federation” (passport; diplomatic passport; service passport ).
According to the Regulations on the procedure for considering issues of citizenship of the Russian Federation (approved by Decree of the President of the Russian Federation dated November 14, 2002 No. 1325 (as amended on August 6, 2014) “On approval of the Regulations on the procedure for considering issues of citizenship of the Russian Federation”), the presence of citizenship of the Russian Federation is certified by the following documents :
a) a passport of a citizen of the Russian Federation, including a foreign passport;
b) diplomatic passport;
c) service passport;
e) an identity card (military ID) of a military personnel with an insert indicating citizenship of the Russian Federation;
f) a birth certificate containing information about the citizenship of the Russian Federation of the parents, one of the parents or the only parent;
g) a birth certificate with a mark confirming the presence of citizenship of the Russian Federation, affixed by an official of the authorized body.
The only document confirming that a child has Russian citizenship, before he receives a passport, is a birth certificate. If it is lost, you must contact the registry office where the birth of the child was registered or the registry office at the place of residence/temporary registration.
Not only the child’s parents, but also the child’s guardians, trustees or representatives of the guardianship authority, or the person in respect of whom the birth record was made, can apply for restoration of the birth certificate.
To issue a duplicate certificate you need:
1. Write an application for a duplicate;
2. Provide documents confirming the applicant’s rights - passports with records of children,
3. Pay the state fee for its issuance.
If the registry office where the birth was registered is now located in another city because you have moved, you need to contact the registry office at your place of residence, it will forward your application to the desired registry office and after a few weeks you will be able to receive a duplicate certificate. However, in any case, it will be necessary to appear at the registry office at the place of birth, since the duplicate is issued only personally to the citizen.
Regulatory legal acts relating to confirmation of the status of a citizen of the Russian Federation:
"Tax Code of the Russian Federation (Part Two)" dated 08/05/2000 No. 117-FZ (as amended on 12/29/2014) (as amended and supplemented, entered into force on 01/29/2015);
Federal Law of August 15, 1996 No. 114-FZ (as amended on December 31, 2014) “On the procedure for leaving the Russian Federation and entering the Russian Federation”
Federal Law of November 15, 1997 No. 143-FZ (as amended on June 23, 2014) “On acts of civil status” (as amended and supplemented, entered into force on January 1, 2015)
In cases of public prosecution, it is not required that in a statement of crime the applicant expresses a request to bring the guilty person to criminal responsibility. Due to the principle of publicity (officiality) operating in Russian criminal proceedings, this issue is resolved regardless of the will of the applicant.
This rule does not apply to private prosecution cases, which, as a general rule, can only be initiated at the request of the victim. Does not comply with the provisions of Parts 1 and 2 of Art. 318 of the Code of Criminal Procedure of the Russian Federation, the statement of V.N. Grigoriev that private prosecution cases “are initiated only at the request of the victim.” See: Grigoriev V.N. Decree. slave. P. 314. or his legal representative, and in the event of the death of the victim - at the request of a close relative of the victim (parts 1 and 2 of Article 318 of the Code of Criminal Procedure of the Russian Federation), as well as in cases of private-public prosecution, which, if the crime was committed in against a person who is capable of independently exercising his rights are initiated only upon the application of the victim.
Cases of private-public prosecution are initiated at the request of the victim. The Code of Criminal Procedure of the Russian Federation does not directly indicate that this category of cases can be initiated at the request of a legal representative, and especially a close relative of the victim. Meanwhile, at a minimum, the legal representatives of the victim must have this right, based on the provisions enshrined in Part 3 of Art. 45 of the Code of Criminal Procedure of the Russian Federation, according to which the legal representatives of the victim have the same procedural rights as the person they represent. Some proceduralists often forget that the legal representative has the same rights as the victim and therefore is included in the number of persons from whom an application can be accepted about a crime in a private-public prosecution case, only the victims are included. See: Maslennikova L.N. Decree. slave. pp. 298 - 299. and also by analogy with Part 1 of Art. 318 Code of Criminal Procedure of the Russian Federation. It seems that it would be consistent to grant this right to close relatives of the victim in the event of the latter’s death. Further, the victim in cases of private prosecution also means his legal representative, and in the event of the death of the victim, a close relative.
Only in connection with the receipt of an application (complaint) by the victim to the competent authority. In this case, the term “victim” is not used in the meaning that is used in Art. 42 of the Code of Criminal Procedure of the Russian Federation, that is, not as a person in respect of whom a corresponding decision has been made to recognize him as such, but as a person who has suffered a certain kind of harm. Such a subject of criminal proceedings can be called a victim. A criminal trial may begin on such facts, and then a criminal case may be initiated. Moreover, in the statement of victims about crimes, an exhaustive list of which is given in Art. 20 of the Code of Criminal Procedure of the Russian Federation, there must be a mandatory request to bring the perpetrator to criminal liability. Other authors share a similar opinion. See: Bezlepkin B.T., Borodin S.V. Chapter 19. Reasons and grounds for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation / Ed. I.L. Petrukhina. - M.: TK Velby LLC, 2002. - P. 209; Bezlepkin B.T. Commentary on the Criminal Procedure Code of the Russian Federation (article-by-article). pp. 177 - 178. The victim may ask to bring the person to “legal responsibility,” and even the presence of this phrase in the complaint is not enough to initiate criminal proceedings.
Enshrined in Art. 147 of the Code of Criminal Procedure of the Russian Federation, the procedure for initiating criminal cases of private-public prosecution by a prosecutor, investigator (inquiry agency, etc.) with the consent of the prosecutor is in many ways similar to the procedure for initiating criminal cases of public prosecution. Bagautdinov F. Initiation of a criminal case under the Code of Criminal Procedure of the Russian Federation // Legality. - 2002. - No. 7. - P. 42. Just as in the case of initiation of criminal cases of public prosecution:
1) to initiate a criminal case, it is necessary to have the provisions provided for in Art. 140 of the Code of Criminal Procedure of the Russian Federation reasons and grounds;
2) only a prosecutor can initiate a criminal case without obtaining someone’s consent;
3) the remaining officials authorized to make the procedural decision under consideration send the decision they made to the prosecutor to obtain consent to initiate a criminal case;
4) it is mandatory to comply with the provisions of Parts 2 and 3 of Art. 146 of the Code of Criminal Procedure of the Russian Federation and appendices No. 7 and 8 to the Code of Criminal Procedure of the Russian Federation of the procedural form of the resolution to initiate a criminal case;
5) before obtaining the consent of the prosecutor, an examination may be carried out and a forensic examination may be ordered;
6) the prosecutor has the right to return for additional verification the materials sent to him with the decision to initiate a criminal case. Additional verification may last no more than 5 days.
The preliminary investigation in cases of private-public accusation, which begins after the initiation of a criminal case, can be carried out in the same way as in cases of public accusation. This is one of the circumstances, due to which Part 1 of Article 147 of the Code of Criminal Procedure of the Russian Federation states that proceedings in such criminal cases of private-public accusations are conducted in accordance with the general procedure.
The only difference in the procedures associated with the adoption and execution of a decision to initiate a criminal case of public and private-public prosecution is that cases of private-public prosecution are initiated only at the request of the “victim” (the legal representative of the “victim”, and in the case death of the “victim” - according to the statement of his close relative). The absence of a “victim” statement in this type of criminal cases (except for the cases provided for in Part 4 of Article 20 of the Code of Criminal Procedure of the Russian Federation) is provided for in Clause 5 of Part 1 of Art. 24 of the Code of Criminal Procedure of the Russian Federation, the basis for refusing to initiate a criminal case. Golovko L.V. Alternatives to criminal prosecution in modern law. - St. Petersburg, 2002. - P. 458.
Without a complaint (statement) of the “victim”, the prosecutor, as well as the investigator (inquiry agency, etc.), with the consent of the prosecutor, have the right to initiate a criminal case of private-public prosecution, only if the crime of which they became aware was committed against a person who cannot protect his rights and legitimate interests (he is in a dependent, helpless state or for other reasons is unable to independently exercise his rights). Otherwise, the decision to initiate a criminal case of private-public accusations may be considered unfounded and, as a result, the verdict in the case may be cancelled. By analogy with the cancellation of a decision to initiate a criminal case of private prosecution. See: Review of cassation practice of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation for 1999 // Bulletin of the Supreme Court of the Russian Federation. - 2000. - No. 9.
Crimes, the cases of which are called cases of private-public prosecution, are listed in Part 3 of Art. 20 Code of Criminal Procedure of the Russian Federation. These are crimes provided for in Part 1 of Art. 131 (rape, that is, sexual intercourse with the use of violence or with the threat of its use to the victim or other persons, or taking advantage of the helpless state of the victim), Part 1 of Art. 136 (violation of equality of rights and freedoms of man and citizen depending on gender, race, nationality, language, origin, property and official status, place of residence, attitude to religion, beliefs, membership of public associations, causing harm to the rights and legitimate interests of citizens) , part 1 art. 137 (illegal collection or dissemination of information about the private life of a person, constituting his personal or family secret, without his consent, or dissemination of this information in a public speech, publicly displayed work or the media, if these acts were committed out of selfish or other personal interest and caused harm to the rights and legitimate interests of citizens), Part 1 of Art. 138 (violation of the confidentiality of correspondence, telephone conversations, postal, telegraph or other messages of citizens), Part 1 of Art. 139 (illegal entry into a home, committed against the will of the person living in it), Art. 145 (unjustified refusal to hire or unjustified dismissal of a woman on the grounds of her pregnancy, as well as unjustified refusal to hire or unjustified dismissal from work of a woman who has children under three years of age, for these reasons), Part 1 of Art. 146 (illegal use of objects of copyright or related rights, as well as misappropriation of authorship, if these acts caused major damage) and Part 1 of Art. 147 (illegal use of an invention, utility model or industrial design, disclosure without the consent of the author or applicant of the essence of the invention, utility model or industrial design before the official publication of information about them, appropriation of authorship or coercion of co-authorship, if these acts caused major damage) of the Criminal Code of the Russian Federation.
In order to correctly understand the meaning of the expression “instituted only at the request of the victim” used in parts 1 and 2 of Article 147 of the Code of Criminal Procedure of the Russian Federation, it is necessary to understand the content of such terms as “initiation of a criminal case”, “statement” and “victim” "
Initiating a criminal case is a procedural decision, a mental activity, as a result of which the competent authority comes to an internal conviction about the existence of a reason and basis for initiating a criminal case. When it comes to initiating a criminal case of private-public prosecution and it is not initiated against a person who cannot defend his rights and legitimate interests, the reason for initiating it can only be a statement from a person who has suffered from the commission of this crime. Criminal procedure in Russia: Textbook / A.S. Alexandrov, N.N. Kovtun, M.P. Polyakov, S.P. Serebrova; Scientific ed. V.T. Tomin. - M.: Yurait-Izdat, 2003. - P. 132. The range of grounds for initiating criminal cases of private-public prosecution is limited to those crimes discussed in Part 3 of Art. 20 Code of Criminal Procedure of the Russian Federation. Criminally procedurally significant signs of the objective side of one (several) of these crimes can be recognized as the basis for initiating a criminal case.
Initiating a criminal case is a mental activity, but its results will not be able to play any criminal procedural role unless they are properly formalized by issuing a special resolution.
The “statement of the victim”, which is discussed in parts 1 and 2 of Article 147 of the Code of Criminal Procedure of the Russian Federation, is a type of reason for initiating a criminal case, the form of which is enshrined in paragraph 1 of Part 1 of Art. 140 and Art. 141 Code of Criminal Procedure of the Russian Federation. This is the “victim’s” statement about the crime. And not about any crime, but only about one (several) crimes, which is mentioned in Part 3 of Art. 20 Code of Criminal Procedure of the Russian Federation.
Being the reason for initiating a criminal case, the statement of the “victim” can be characterized as follows. The statement of the “victim” is the first source of awareness from the “victim” of the body of inquiry, the interrogating officer, the investigator, the head or member of the investigative team, the head of the investigative department or the prosecutor about an action being prepared, committed or committed (the consequences thereof), containing procedurally significant signs of the objective side named in Part 3 of Art. 20 of the Code of Criminal Procedure of the Russian Federation constitutes a crime.
The considered reason for starting a criminal process arises after the competent authority receives not any application, but only one in which the victim asks to bring the person to criminal responsibility. The fact that the statement in cases of private-public prosecution must indicate the victim’s request to initiate a criminal case (see: Khaliulin A.G. Chapter 20. Procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation as amended by the Federal Law of May 29, 2002 / Under the general and scientific editorship of A.Ya. Sukharev - M.: NORMA-INFRA-M, 2002. - P. 251 - 252) or a request to “bring the perpetrators to criminal responsibility” ( see: Kalinovsky K.B. Chapter 20. The procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation / Edited by A.V. - St. Petersburg: Peter, 2003. - P. 388), they say. and other scientists. Even the phrase “I ask you to bring to legal responsibility” or “to administrative responsibility” See: Kalinovsky K.B. Chapter 20. The procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation / Ed. A.V. Smirnova. - St. Petersburg: Peter, 2003. - P. 388. should not be considered as a statement referred to in Article 147 of the Code of Criminal Procedure of the Russian Federation.
The statement may be about a crime of public prosecution, but by the time a criminal case is initiated it becomes clear that there has been rape without aggravating circumstances, a violation of the equality of rights and freedoms of man and citizen without aggravating circumstances, etc. In this situation, despite the fact that the statement was initially about another crime, in order to make a decision to initiate a criminal case, it is necessary to have a properly completed statement from the victim. Accordingly, such a statement must reflect the victim’s demand to bring the offender to criminal responsibility.
The “statement of the victim,” referred to in Article 147 of the Code of Criminal Procedure of the Russian Federation, can only be a message received by the body authorized to initiate a criminal case. This can be any institution (official) that has the right to decide to initiate a criminal case (internal affairs body as an inquiry body, preliminary investigation body, prosecutor, etc.). See: Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated December 22, 1994 // Bulletin of the Supreme Court of the Russian Federation. - 1995. - No. 7.
Article 147 of the Code of Criminal Procedure of the Russian Federation names only one subject who has the authority to initiate criminal cases of private-public prosecution - the prosecutor. Reviews of judicial practice draw attention to the need to initiate such criminal cases only by an authorized official. See: Review of cassation practice of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation for 1999 // Bulletin of the Supreme Court of the Russian Federation. - 2000. - No. 9. Well-known scientists also pay attention to this circumstance. See: Moskalkova T.N. Chapter 20. The procedure for initiating a criminal case // Scientific and practical commentary on the Criminal Procedure Code of the Russian Federation / Under the general. ed. V.M. Lebedeva; Scientific ed. V.P. Bozhev. - M.: Spark, 2002. - P. 302. Therefore, it is very important to determine an exhaustive range of officials and bodies that have the right to decide on the initiation of a criminal case of private prosecution.
Edition of Part 2 of Art. 147 of the Code of Criminal Procedure of the Russian Federation leads some proceduralists to duplicating its content in their comments. Accordingly, such comments by the law enforcement officer can be perceived as a statement that if the victim, due to a helpless state or for other reasons, cannot defend his rights and legitimate interests, only the prosecutor can initiate a criminal case of private-public charges. See: Golubev V.V. Chapter 20. The procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation / Under the general editorship. V.I. Radchenko. - M.: JSC “Legal House “Justitsinform”, 2003. - P. 330 - 331; Khaliulin A.G. Chapter 20. The procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation as amended by the Federal Law of May 29, 2002 / Under general. and scientific ed. A.Ya. Sukharev. - M.: NORMA-INFRA-M, 2002. - P. 252; Korotkov A.P. Chapter 20. The procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation / Rep. ed. D.N. Kozak, E.B. Mizulina. - M.: Lawyer, 2002. - P. 307.
However, based on the content of Art. 20 of the Code of Criminal Procedure of the Russian Federation, in addition to the prosecutor, the investigator and the interrogating officer should also be recognized as such. They must obtain the consent of the prosecutor to initiate criminal proceedings. In this regard, I am forced to speak out against the statement of Bezlepkin B.T. that “an investigator or inquiry officer has the right to initiate any criminal case of private-public accusation.” See: Bezlepkin B.T. Commentary on the Criminal Procedure Code of the Russian Federation (article-by-article). - M.: VITREM LLC, 2002. - P. 33. If the prosecutor does not agree, the decision made by the investigator or interrogating officer will lose its legal force.
The prosecutor is authorized to issue a decision to initiate a criminal case without seeking permission from anyone.
Edition of Part 4 of Art. 20 of the Code of Criminal Procedure of the Russian Federation, as well as Part 2 of Article 147 of the Code of Criminal Procedure of the Russian Federation lead to the fact that most authors in their comments to this article limit the circle of entities authorized to initiate a criminal case of private-public prosecution to only the specified officials and bodies See: Shevchuk A.N. Chapter 20. The procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation. New edition. - M.: IKF "EKMOS", 2002. - P. 274; Shevchuk A.N. Chapter 20. The procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation. Article by article / Ed. N.A. Petukhova, G.I. Zagorsky. - M.: IKF "EKMOS", 2002. - P. 274; Commentary on the Criminal Procedure Code of the Russian Federation / Under general. ed. V.V. Mozyakova. - M.: Publishing house "Examination XXI", 2002. - P. 339; Moskalkova T.N. Chapter 20. The procedure for initiating a criminal case // Scientific and practical commentary on the Criminal Procedure Code of the Russian Federation / Under the general. ed. V.M. Lebedeva; Scientific ed. V.P. Bozhev. - M.: Spark, 2002. - P. 301. or they do not mention at all the participants in making the procedural decision in question. See, for example: Kalinovsky K.B. Chapter 20. The procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation / Ed. A.V. Smirnova. - St. Petersburg: Peter, 2003. - P. 388; Bezlepkin B.T. Commentary on the Criminal Procedure Code of the Russian Federation (article-by-article) - M.: LLC "VITREM", 2002. - P. 183; Bezlepkin B.T. Chapter 20. The procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation / Ed. I.L. Petrukhina. - M.: TK Velby LLC, 2002. - P. 213.
Meanwhile, any official entrusted with the duties of a prosecutor, and with the consent of the prosecutor, any person entrusted with performing the duties of an investigator or interrogating officer. See: Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated February 5, 1997 // Bulletin of the Supreme Court of the Russian Federation. - 1997. - No. 8.
Not only these officials have the right to initiate criminal cases. Literal interpretation of paragraph 19 of Art. 5, part 1 art. 144, paragraph 1, part 1, art. 145, part 4 art. 146, paragraph 3 of Art. 149 of the Code of Criminal Procedure of the Russian Federation directly indicates that the investigative bodies also have the right (obligation) to initiate criminal cases.
Article 147 of the Code of Criminal Procedure of the Russian Federation refers to the “victim”. However, this concept is not used in the meaning that is used in Art. 42 of the Code of Criminal Procedure of the Russian Federation. Scientists point out that the term “victim” used in Article 147 of the Code of Criminal Procedure of the Russian Federation is “inaccurate”. See: Kalinovsky K.B. Chapter 20. The procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation / Ed. A.V. Smirnova. - St. Petersburg: Peter, 2003. - P. 388. According to Art. 42 of the Code of Criminal Procedure of the Russian Federation, dedicated to the concept and legal status of the victim, in criminal proceedings a decision is made to recognize an individual or legal entity as a victim, which is formalized by a special resolution. The form of the decision to recognize the victim is enshrined in Appendix No. 23 to the Code of Criminal Procedure of the Russian Federation. The introductory part of this document must indicate the number of the criminal case, having examined the materials of which, the “investigator (inquiry officer)” makes the decision under consideration. Accordingly, the content of the form of this document indicates that a person can be recognized as a victim only after the initiation of a criminal case.
Before the initiation of a criminal case, or otherwise, at the time of deciding on the initiation of a criminal case of private-public prosecution, in the criminal process there is no person legally recognized as a victim, which means, from the point of view of the criminal process, there is no victim. Indeed, at the stage of initiating a criminal case and even before the start of the criminal process, it is possible to find an individual who has suffered physical, property, or moral harm by a crime, as well as a legal entity whose property and business reputation have been damaged by a crime. But until one of them is recognized as a victim by a special resolution, he will not be considered as such from the standpoint of the criminal procedural law. Before being recognized as a victim, it is recommended to call such a person a victim. It is he who is given the right to apply for the commission of one (several) of the crimes listed in Part 3 of Art. 20 Code of Criminal Procedure of the Russian Federation. Accordingly, in Article 147 of the Code of Criminal Procedure of the Russian Federation it would be more correct and consistent to speak not about the statement of the victim, but about the statement of the victim.
The criminal procedural law enshrines the basic ideas that characterize the institution of representation and succession of an individual to whom physical, property, and moral harm has been caused by a crime, as well as a legal entity whose property and business reputation has been damaged by a crime. Criminal procedure: Textbook for universities / Rep. ed. A. V. Grinenko. - M.: Norma, 2004. - P. 140. According to these, legal representatives and representatives of the victim have the same procedural rights as the persons they represent (Part 3 of Article 45 of the Code of Criminal Procedure of the Russian Federation). Moreover, in criminal cases of crimes, the consequence of which was the death of a person, the rights of the victim, provided for in Art. 42 of the Code of Criminal Procedure of the Russian Federation, pass to one of his close relatives (Part 8 of Article 42 of the Code of Criminal Procedure of the Russian Federation).
In these norms, as well as in Article 147 of the Code of Criminal Procedure of the Russian Federation, we are talking about the victim. Meanwhile, as we found out, in Article 147 of the Code of Criminal Procedure of the Russian Federation, the legislator understands the victim as a slightly different subject of the criminal process. Despite the significant difference in the procedural status of these subjects, it seems possible to use by analogy the provisions of Part 3 of Art. 45 of the Code of Criminal Procedure of the Russian Federation and in relation to the victim, giving the legal representative and representative of the victim the right to apply to the competent authority with a statement about the commission of a crime in cases of private-public prosecution.
In Part 8 of Art. 42 of the Code of Criminal Procedure of the Russian Federation refers to crimes the consequence of which was the death of a person. The consequence of the crime listed in Part 3 of Art. 20 of the Code of Criminal Procedure of the Russian Federation, there cannot be a death of a person. Just as crimes in cases of private prosecution cannot have such consequences. That is why in Art. 318 of the Code of Criminal Procedure of the Russian Federation, provisions of Part 8 of Art. 42 of the Code of Criminal Procedure of the Russian Federation are interpreted somewhat differently. Here we are not talking about crimes that resulted in the death of a person, but simply about the death of the victim. It seems that this idea should be consistently extended to the moment of initiation of a criminal case of private-public (and not just private) charges. In this case, with a statement about the crime specified in Part 3 of Art. 20 of the Code of Criminal Procedure of the Russian Federation, a close relative of the deceased victim (regardless of the causes of his death) could contact the body of inquiry, the investigator, the head or member of the investigative team, the head of the investigative department or the prosecutor. Yurin V. Statement on an economic crime does not require approval // Russian Justice. - 2001. - No. 7. - P. 50.
So far, these ideas have not been directly reflected in the law. Therefore, the judgments presented here are largely theoretical in nature. Meanwhile, they can also be used in the practical activities of preliminary investigation bodies. They should be taken into account when deciding on the initiation of criminal cases of private-public accusations in accordance with Part 4 of Art. 20 of the Code of Criminal Procedure of the Russian Federation, when a crime is committed against a person who is in a dependent state or for other reasons is not able to independently exercise his rights.
Part 2 of Article 147 of the Code of Criminal Procedure of the Russian Federation speaks of the helpless state of the victim as one of the conditions for initiating a criminal case of private-public prosecution. The helplessness of the victim’s condition should not be at the time the crime was committed against him, but at the moment when the prosecutor, investigator, investigator (investigation body, etc.) became aware of the commission of the crime listed in Part 3 of Art. 20 Code of Criminal Procedure of the Russian Federation.
The institution of a person being in a helpless state was analyzed in relation to certain crimes. Analysis of these clarifications of the Supreme Court of the Russian Federation allows us to identify the criteria for a helpless state as a criminal procedural category.
Thus, the victim should be recognized as being in a helpless state when he is incapable due to a physical or mental condition (health condition, disability See: Review of judicial practice of the Supreme Court of the Russian Federation for the fourth quarter of 1999 // Bulletin of the Supreme Court of the Russian Federation. - 1999. - No. 7.), as well as those of advanced or minor age, to protect themselves, to take active actions to protect their rights and legitimate interests. See: Review of the supervisory practice of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation for 2001 // Bulletin of the Supreme Court of the Russian Federation. - 2002. - No. 10.
The Supreme Court of the Russian Federation includes, in particular, seriously ill and elderly people, young children, and people suffering from mental disorders that deprive them of the ability to correctly perceive what is happening to persons in a helpless state. See: Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the second quarter of 2002 // Bulletin of the Supreme Court of the Russian Federation. 2002. No. 12; Review of cassation practice of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation for 2001 // Bulletin of the Supreme Court of the Russian Federation. - 2002. - No. 9.
In practice, the presence of a person in a helpless state is sometimes recognized due to the disability of the victim. See: Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated September 5, 2001 // Bulletin of the Supreme Court of the Russian Federation. - 2003. - No. 1.
Korotkov A.P. believes that the victim’s condition can be considered helpless due to his muteness, deafness, blindness, as well as the presence of somatic diseases, accompanied by acute painful symptoms or being chronic. He also draws attention to the fact that the victim’s dependence can be “not only official, but also material or otherwise.” See: Korotkov A.P. Chapter 20. The procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation / Rep. ed. D.N. Kozak, E.B. Mizulina. - M.: Lawyer, 2002. - P. 307.
The literature provides other examples of a “helpless state” that allow us to formulate its criminal procedural analogues. An example of a helpless state can be recognized as a situation where the copyright holder does not have a representative in Russia, his work is not subject to legal circulation in Russia, but the owner’s copyrights are widely and grossly violated. By analogy with the idea of Galuzin A. See: Galuzin A. Criminal legal protection of copyright and related rights // Legality. - 2001. - No. 5. Objects of copyright are illegally used, and authorship is also assigned, and these acts caused him major damage.
Whatever circumstances are perceived by the official authorized to initiate a criminal case of private-public prosecution as evidence that the victim is in a dependent, helpless state or that for other reasons he is not able to independently exercise his rights, these must be indicated in the descriptive and motivational part of the resolution to initiate a criminal case. This requirement is shared by others. See: Commentary on the Criminal Procedure Code of the Russian Federation / Under general. ed. V.V. Mozyakova. - M.: Publishing house "Examination XXI", 2002. - P. 339.
There is no such requirement for drawing up a resolution to initiate a criminal case of public prosecution. For this reason alone, the statement of Kalinovsky K.B. that in the situation under consideration, a criminal case of private-public accusation “is initiated in accordance with Art. 146 of the Code of Criminal Procedure of the Russian Federation", See: Kalinovsky K.B. Chapter 20. The procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation / Ed. A.V. Smirnova. - St. Petersburg: Peter, 2003. - P. 388. cannot be considered flawless.
Criminal cases of private-public prosecution differ from cases of public prosecution in that under normal conditions they are initiated only upon a complaint (statement) of the victim. What distinguishes them from cases of private prosecution is that, according to Part 3 of Art. 20 of the Code of Criminal Procedure of the Russian Federation, they cannot be terminated in connection with the reconciliation of the parties, with the exception of the grounds for reconciliation, which are enshrined in Art. 25 Code of Criminal Procedure of the Russian Federation.
The literature has expressed the opinion that those enshrined in Part 3 of Art. 20 of the Code of Criminal Procedure of the Russian Federation, the provisions contradict Art. Art. 25, 28 Code of Criminal Procedure of the Russian Federation, as well as Art. Art. 75, 76 of the Criminal Code of the Russian Federation. See: Gulyaev A.P. Chapter 3. Criminal prosecution // Commentary on the Criminal Procedure Code of the Russian Federation / Under general. ed. V.V. Mozyakova. - M.: Publishing House "Examination XXI", 2002. - P. 62 - 63. It seems to us that the various grounds for terminating a criminal case provided for in the law are not a contradiction to each other, just as the prohibition of terminating a criminal case in connection with the presence of certain certain circumstances (in our case, those referred to in Part 3 of Article 20 of the Code of Criminal Procedure of the Russian Federation) and the simultaneous presence of others that make it possible to terminate the criminal case under others, provided for by another article (in this situation, Article 25 and 28 Code of Criminal Procedure of the Russian Federation) grounds.
So, cases of private-public prosecution have their own characteristics regarding the beginning and end of the criminal process carried out on them. These features leave a certain imprint on the legal status of the victim. Therefore, it is advisable to explain them to the person who has made an oral statement about the commission of this type of crime.
The obligation to explain to the applicant the specifics of proceedings in cases of private-public accusations is not directly established in the law. It follows from the provisions of Part 1 of Art. 11 of the Code of Criminal Procedure of the Russian Federation, according to which the prosecutor, investigator and investigator must explain to the victim his rights, duties, responsibilities and ensure the possibility of exercising these rights. The implementation of these actions is also recommended by some authors. See: Khaliulin A.G. Chapter 20. The procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation as amended by the Federal Law of May 29, 2002 / Under general. and scientific ed. A.Ya. Sukharev. - M.: NORMA-INFRA-M, 2002. - P. 251; See: Kalinovsky K.B. Chapter 20. The procedure for initiating a criminal case // Commentary on the Criminal Procedure Code of the Russian Federation / Ed. A.V. Smirnova. - St. Petersburg: Peter, 2003. - P. 388.
Bashinskaya Inna Gennadievna
Candidate of Legal Sciences, Associate Professor of the Department of Preliminary Investigation, Krasnodar University of the Ministry of Internal Affairs of Russia (e-mail: [email protected])
About the legal status of the applicant
at the pre-trial stage of criminal proceedings
The article is devoted to the legal status of the applicant at the pre-trial stage of criminal proceedings. The problems of ensuring the rights of persons affected by crimes at the stage of consideration of reports are considered.
Key words: applicant, crime, victim, rights, obligations, complaint, pre-investigation materials.
I.G. Bashinskaya, Master of Law, Assistant Professor of a Chair of Preliminary Investigation of the Krasnodar University of the Ministry of the Interior of Russia; e-mail: [email protected]
On the legal status of the applicant at the pre-trial stage of criminal proceedings
The article is devoted to the legal position of the applicant's on the pre-trial stage of criminal proceedings. The problems of ensuring the rights of victims of crime on the stage of pending messages are considered.
Key words: complainant, crime, victim, rights, duties, complaint, investigation verification materials.
According to statistics, every year every tenth resident of Russia becomes a victim of one crime or another, and the damage caused by criminal acts amounts to billions of rubles. Thus, according to statistical reports of the Judicial Department at the Supreme Court of the Russian Federation, direct material damage from crimes, determined by sentences and court decisions, in 2007 amounted to 17.5 billion rubles. .
The speedy and complete restoration of the rights of people against whom certain crimes were committed, ensuring their unhindered access to justice and compensation for the harm caused to them are the main task of the state, which is solved at the constitutional and legislative levels.
To reliably protect their rights and legitimate interests, every citizen, regardless of whether he has citizenship, has a number of constitutionally enshrined rights, such as the right to life, freedom and personal integrity (enshrined in Articles 20, 22 and 23 of the Constitution of the Russian Federation), the right to receive from government bodies information and documents that are directly related to his rights and freedoms (Part 2 of Article 24), the right to use his native language
(Article 26), the right to receive qualified legal assistance (Article 48), the right not to testify against yourself, your spouse or close relatives (Article 51), the right to state compensation for damage caused by illegal actions (inaction) of state bodies authorities or their officials (Article 53), the right to appeal to the court decisions and actions (inaction) of officials, the right to appeal to interstate bodies for the protection of human rights and freedoms, if all available domestic remedies have been exhausted in accordance with international treaties ( Art. 46).
These and other rights and freedoms of man and citizen can be limited by federal law only to the extent necessary in order to protect the foundations of the constitutional system, morality, health, rights and legitimate interests of other persons, ensuring the defense and security of the state (Part 3 Art. 55).
The implementation of the protection of these constitutional rights is carried out through criminal legislation that defines specific unlawful acts that constitute a crime. Victims of crimes in accordance with Art. 52 of the Constitution of the Russian Federation have the right to access to justice and compensation for damage caused.
An analysis of the above constitutional norms allows us to judge the implementation of the right to protection of a person who has suffered from a crime from the moment he contacts a law enforcement agency, which coincides with the beginning of criminal procedural relations that arise at the stage of initiating a criminal case, namely from the moment a person submits a statement about the crime committed crime
Statement of a crime in accordance with Art. 140 of the Code of Criminal Procedure of the Russian Federation is a reason for initiating a criminal case, and, as practice shows, it is the most common.
By submitting an application to a law enforcement agency, a person enters into criminal procedural relations, which are defined in Art. 141 of the Code of Criminal Procedure of the Russian Federation, which prescribes the procedure and form for accepting a written statement about a crime and warning the applicant about criminal liability for knowingly false denunciation in accordance with Art. 306 of the Criminal Code of the Russian Federation. Article 144 of the Code of Criminal Procedure of the Russian Federation regulates the procedure for considering a report of a crime, and Art. 145 of the Code of Criminal Procedure of the Russian Federation - decisions made based on the results of consideration of a report of a crime.
However, despite the fact that the rules on the rights and obligations of the applicant are contained in various articles of the Code of Criminal Procedure of the Russian Federation, the applicant is not included in the number of participants in criminal proceedings, which means that his procedural and legal status is not regulated. The problem of regulating the rights of persons affected by crimes during the verification of a message has been discussed in the legal literature for a long time.
The status of the victim in accordance with Part 1 of Art. 42 of the Code of Criminal Procedure of the Russian Federation, a person who has applied to a law enforcement agency with a statement about a crime can acquire it only after the inquiry officer, investigator or court has issued a corresponding decision.
Only from the moment a decision is made to recognize a person as a victim, the rights regulated in Part 2 of Art. 42 of the Code of Criminal Procedure of the Russian Federation. In particular, the victim has the right to petition for the application of security measures against him and his close relatives, to know about the nature of the charges brought against his offender, to testify, present evidence, file petitions and challenges, use the help of a translator free of charge, have a representative, and participate with the permission of the investigator or an investigator in conducting investigative actions, also familiarize yourself with the protocols of investigative actions, and upon completion of the preliminary
investigators get acquainted with all materials of the criminal case, etc.
To overcome obstacles to the protection of his rights and legitimate interests, the applicant is forced to go through several psychologically and legally difficult stages, performing different roles: a complainant about a crime or, possibly, a witness, a private prosecutor or a civil plaintiff. Practice knows many cases when, after the initiation of a criminal case, the applicant receives the procedural status of a participant in criminal proceedings almost at the end of the investigation, which does not allow him to take a timely part in the collection of evidence.
In 2008, the Commissioner for Human Rights in the Russian Federation drew attention to this problem, pointing out that “the deadline for adopting a resolution on recognition as a victim is not established by law. Because of this, the victim of a crime is often recognized as a victim only at the final stage of pre-trial proceedings. Until he is recognized as a victim, the victim of a crime is considered as an applicant. This, in turn, leads to a violation of the victim’s right to receive information about the progress and results of the preliminary investigation, to provide items and documents confirming his statement of the crime, etc.” In the same report, the Commissioner for Human Rights proposed to supplement Art. 146 of the Code of Criminal Procedure of the Russian Federation stipulates that a person affected by a crime must be recognized as a victim simultaneously with the initiation of a criminal case.
It should be noted that the legislator listened to this proposal and, by Federal Law of December 28, 2013 No. 432-FZ, amended Art. 42 of the Code of Criminal Procedure of the Russian Federation, which regulates the legal status of the victim, stipulating that “the decision to recognize the victim as a victim is made immediately from the moment the criminal case is initiated...”.
In our opinion, recognition as a victim of a person who has suffered from a crime, simultaneously with the initiation of a criminal case, is, of course, progressive in nature. However, its implementation will solve only one problem - it will ensure the participation of the victim, as a participant in criminal proceedings, from the beginning of the preliminary investigation. At the same time, the question of exercising the rights of these persons during the pre-investigation check provided for in Art. 140-145 Code of Criminal Procedure of the Russian Federation.
The lack of procedural regulation of the applicant's legal status does not ensure the protection of his rights and legitimate interests, creates obstacles in access to justice, as well as difficulties in collecting evidence at the stage of initiating a criminal case.
Changes made to Part 2 of Art. 144 of the Code of Criminal Procedure of the Russian Federation, Federal Law No. 23-FZ of March 4, 2013, obliges the inquiry officer, the inquiry body, the investigator, the head of the investigative body to explain the rights and responsibilities of persons participating in procedural actions when checking a report of a crime, and to ensure the possibility of exercising these rights to the extent that the procedural actions carried out and the procedural decisions made affect their interests, including the right not to testify against oneself, one’s spouse and other close relatives, to use the services of a lawyer, as well as to file complaints against actions (inaction ) and decisions made based on the results of consideration of a crime report. Participants in the verification of a crime report may be warned about the non-disclosure of pre-trial data. If necessary, a participant in pre-trial proceedings, including when receiving a report of a crime, must be ensured security.
Thus, the legislator made an attempt to protect the interests of victims at the stage of considering allegations of a crime. At the same time, the question remains whether these persons can use the services of an interpreter for free, since the Code of Criminal Procedure of the Russian Federation does not regulate the mechanism for ensuring the right to use their native language when submitting an application. Although, in accordance with the principle of the national language of legal proceedings, any person has the right to contact law enforcement agencies in his native language, in Part 2 of Art. 18 of the Code of Criminal Procedure of the Russian Federation states that an interpreter is provided to the persons participating in the case. However, at the stage of initiating a criminal case, the participants from a procedural point of view do not yet exist.
The current situation of the applicant deprives him of the opportunity to exercise even the criminal procedural rights granted to him. So, in accordance with Part 3 of Art. 145 of the Code of Criminal Procedure of the Russian Federation, the person who makes the decision based on the results of considering a report of a crime is obliged to notify the applicant about the decision made and explain the right and procedure for appealing it.
In turn, the applicant, in accordance with Art. 123-125 of the Code of Criminal Procedure of the Russian Federation has the right to appeal this decision to a higher order of subordination or to the court (if the decision made has caused damage to his constitutional rights and freedoms or impedes access to justice). However, to draw up a reasoned complaint, one notification of the decision is not enough for the applicant. In order to ensure the objectivity of the consideration of the application for a crime and the validity of the decision to refuse to initiate a criminal case, it is necessary to familiarize yourself not only with the text of the decision to refuse to initiate a criminal case, but also all the materials (refusal material) on the basis of which this decision was made.
In law enforcement practice, there are cases when an applicant makes a complaint about the inaction of an interrogator or investigator and asks to be given the opportunity to familiarize himself with the materials of verification of his statement about a crime, but he is denied this, citing the fact that familiarization of the applicant with the materials of verification is not provided for by the Code of Criminal Procedure RF.
In such cases, the applicant has the right to seek the provision of materials for review by appealing such actions to a higher chain of command or in court. The Constitutional Court of the Russian Federation, in Resolution No. 3-P of February 18, 2000, formulated the following legal position: citizens should be provided with materials that directly affect their rights and freedoms for review, even if such a right is not expressly provided for by law. Therefore, if there is a petition, the person reporting the crime must be familiar with the materials of verification of his statement of crime in order to clearly substantiate his position in the complaint. This idea is also emphasized in later decisions of the Constitutional Court of the Russian Federation, for example in the ruling of July 11, 2006 No. 300-O.
In order to ensure that the law enforcement and judicial system effectively protects the rights and interests of persons affected by crimes, it is necessary to improve the legislative framework and law enforcement practice.
In this regard, we consider it necessary at the legislative level to classify the applicant as a participant in criminal proceedings, i.e. add ch. 8 Code of Criminal Procedure of the Russian Federation, regulating
defining the legal status of other participants in criminal proceedings, the article “Applicant”, which lists his rights and obligations.
The implementation of this proposal would allow:
1) a person who has applied for protection to a law enforcement agency, from the moment of filing a statement about a crime, becomes a full-fledged
1. Problems of protecting the rights of victims of crimes: special report of the Commissioner for Human Rights in the Russian Federation // Ross. gas. 2008. June 4.
2. Vasilenko L.A. Proceedings in cases of private prosecution: dis. ...cand. legal Sci. Omsk, 2005.
3. In the case of verifying the constitutionality of paragraph 2 of Article 5 of the Federal Law “On the Prosecutor’s Office of the Russian Federation” in connection with the complaint of citizen B.A. Kekhman: resolution of the Constitutional Court of the Russian Federation dated February 18. 2000 No. 3-P. URL: http://www.consultant.ru/ document/cons_doc_LAW_26325/
4. On the complaint of citizen Andrey Ivanovich Andreev about the violation of his constitutional rights by paragraphs 1, 5, 11, 12 and 20 of the second part of Article 42, part two of Article 163, part eight of Article 172 and part two of Article 198 of the Criminal Procedure Code of the Russian Federation: definition Constitutional Court of the Russian Federation of July 11, 2006 No. 300-0. URL: http://www.consultant.ru/ document/cons_doc_LAW_63720/
participant in criminal proceedings and actively defend their rights and legitimate interests at the stage of initiating a criminal case and throughout the entire further investigation of the case;
2) the body of inquiry, the inquiry officer and the investigator to expand the possibilities of evidence at the stage of initiating a criminal case precisely by increasing the number of other procedural actions.
1. Problems of protection of rights of victims of crime: special report of the Commissioner for Human Rights in the Russian Federation // Rus. newsp. 2008. June 4.
2. Vasilenko L.A. Production for private prosecution: diss.... Master of Law. Omsk, 2005.
3. In the case on the constitutionality of paragraph 2 of article 5 of the Federal Law “On the prosecutor"s office of the Russian Federation” in connection with the complaint of citizen B.A. Kehman: resolution of the Constitutional Court of the Russian Federation of Febr. 18, 2000 No. 3-P. URL: http://www.consultant.ru/document/cons_doc_LAW_26325/
4. On the complaint of a citizen Andreev Andrei Ivanovich on violation of his constitutional rights with paragraphs 1, 5, 11, 12 and 20 of the second part of article 42, the second part of article 163, the eighth part of article 172 and the second part of article 198 of the Criminal procedure code of the Russian Federation: determination of the Constitutional Court of the Russian Federation of July 11, 2006 No. 300-0. URL: http://www. consultant.ru/document/cons_doc_LAW_63720/
In accordance with Art. 2 of the Law on Registration, state registration of legal entities is carried out by the federal executive body authorized in the manner established by the Constitution of the Russian Federation and the Federal Constitutional Law “On the Government of the Russian Federation”.
According to the Decree of the Government of the Russian Federation of May 17, 2002 N 319 “On the authorized federal executive body carrying out state registration of legal entities, peasant (farm) enterprises, individuals as individual entrepreneurs” *(12) , such a body is the Ministry of the Russian Federation for Taxes and Duties of the Russian Federation *(13) , or rather its territorial bodies. This is reflected in paragraph 5.3.1 of the Regulations on the Federal Tax Service *(14) (approved by Decree of the Government of the Russian Federation No. 506 of September 30, 2004), which states that one of the powers of the Federal Tax Service is “state registration of legal entities, individuals as individual entrepreneurs and peasant (farm) farms.”
The legal status of the registration authority consists, in particular, of its rights and obligations. The Regulations on the Federal Tax Service (Part VI) defines its following powers, which can also be applied to the area of state registration of legal entities:
1) organize the necessary studies, tests, examinations, analyzes and assessments, as well as scientific research on the issues of control and supervision in the field of state registration of legal entities;
2) request and receive information necessary for making decisions on state registration of legal entities;
3) provide legal entities and individuals with explanations on issues of state registration of legal entities;
4) exercise control over the activities of the territorial bodies of the Service and subordinate organizations;
5) involve, in the prescribed manner, scientific and other organizations, scientists and specialists to study issues of state registration of legal entities;
6) apply restrictive, precautionary and prophylactic measures provided for by the legislation of the Russian Federation, as well as sanctions aimed at preventing and (or) eliminating the consequences caused by the violation by legal entities and individuals of the mandatory requirements of state registration in order to suppress facts of violation of the legislation of the Russian Federation;
7) create advisory and expert bodies (councils, commissions, groups, collegiums) in the field of state registration of legal entities;
The responsibilities of the Federal Tax Service include:
1) compliance with the law;
2) monitoring compliance with legislation in the field of state registration;
3) conducting explanatory work on the application of legislation on state registration;
4) maintaining, in accordance with the established procedure, records of registered legal entities and individual entrepreneurs;
5) storage of secret information about legal entities.
On behalf of the Federal Tax Service, the inspections of the Federal Tax Service for a district, a district in a city, a city without district division and the inspections of the Federal Tax Service at the interdistrict level, as well as the departments of the Federal Tax Service for the constituent entities of the Russian Federation, participate in registration legal relations *(15) . At the same time, the departments of the Federal Tax Service for the constituent entities of the Russian Federation are authorized to carry out state registration only of legal entities in respect of which federal laws establish a special registration procedure (clause 6.3.1. Appendix No. 5 to the Order of the Ministry of Finance of the Russian Federation of August 9, 2005).
In addition to the registration authorities, the opposite party also participates in the legal relationship of state registration of legal entities - applicants for state registration of legal entities, which can only be individuals.
In accordance with paragraph three of paragraph one of Art. 9 of the Registration Law, applicants may be the following persons:
o the head of the permanent executive body of a registered legal entity or another person who has the right to act on behalf of this legal entity without a power of attorney;
o the founder (founders) of a legal entity upon its creation;
o the head of a legal entity acting as the founder of a registered legal entity;
o bankruptcy trustee or head of the liquidation commission (liquidator) during the liquidation of a legal entity;
o another person acting on the basis of the authority provided for by federal law, or an act of a specially authorized state body, or an act of a local government body.
The legal status of the bodies of a legal entity (their composition, list, competence, etc.) is determined by the norms of the Civil Code of the Russian Federation, special laws establishing the legal status of individual organizational and legal forms of legal entities, and constituent documents. Accordingly, the legal status of a permanent executive body is regulated differently. For example, the legislation on business companies provides that the sole executive body for joint-stock companies may be, depending on the position enshrined in the constituent documents, either a director, or a general director elected by the general meeting of shareholders, or a manager (an individual entrepreneur who, under an agreement, carries out functions of the sole executive body); for limited liability companies, subsidiaries and dependent companies, the name of this body is optional (director, president, chairman, etc.) and depends on the designation of this position in the constituent documents (in this case, it is also possible to conclude an agreement with the manager). A document confirming the election of an individual as the sole executive body of a business company may be: a) minutes of the general meeting of participants (shareholders); b) the decision of the founder if the company is founded by one individual; c) minutes of the meeting of the board of directors (supervisory board); d) a civil law agreement, according to which the functions of the sole executive body are performed by the manager.
The sole executive body of a state and municipal unitary enterprise is the director, who is appointed by the owner or a body authorized by the owner and is accountable to him (Article 113 of the Civil Code of the Russian Federation). The document confirming the appointment of an individual as a manager, in this case, will be the corresponding decision of the owner.
Among other applicants, the founder (founders) of the legal entity at its creation is also indicated, i.e. the person who made the decision to create a legal entity. As is known, both individuals and legal entities can act as founders, therefore the Registration Law divides applicants into direct founders and managers of legal entities who act as founders of the registered legal entity. This provision is completely justified, since it is difficult to imagine a legal entity as an applicant, which is essentially a legal fiction. The legislator allows the possibility of being applicants not immediately by all the founders of a registered legal entity, but by some of them or even any one of them. This is also consistent with the fact that a number of organizational and legal forms of legal entities provide for the possibility of registering a legal entity with one founder, who is the only founder - the applicant.
Domestic legislation also differentially regulates the issue of the composition of founders of legal entities of specific organizational and legal forms. Thus, for business partnerships (general partnerships and limited partnerships), the opportunity to be founders extends to persons engaged in entrepreneurial activities (individual entrepreneurs and (or) commercial organizations). The founders or founder of business companies can be either an individual or a legal entity (for subsidiaries and dependent companies, a legal entity - any business company - must be present as a founder). It is necessary to take into account that a legal entity cannot be the founder of a business company consisting of one person (clause 2 of Article 88 and clause 6 of Article 98 of the Civil Code of the Russian Federation). As for the possibility of state authorities and local self-government bodies to be founders of business companies, it is generally denied. Exceptions to this rule apply to a) state and municipal institutions, which can be founders of limited liability companies with the permission of the owner of the company (paragraph 4, paragraph 4, article 66 of the Civil Code of the Russian Federation); b) bodies for managing state property (at the federal level - the Government of the Russian Federation, as well as other bodies determined by the Government of the Russian Federation; at the regional level - state authorities specially authorized by the laws of the constituent entities of the Russian Federation) *(16) when privatizing state and municipal enterprises in accordance with the legislation on privatization, c) state and local authorities, which can act as founders of closed joint-stock companies with 100% participation of the state or municipal entity, respectively.
The indication in the list of applicants of the bankruptcy trustee or the head of the liquidation commission (liquidator) is due to the fact that according to Russian legislation, based on global practice, the liquidation of legal entities is carried out not by the founders themselves, but by special bodies (liquidation commissions) or individuals (liquidators). This is necessary in order to fully realize the rights of creditors to pay the accounts payable being liquidated by the debtor organization, as well as to reliably reflect the balance of the property in the liquidation balance sheet. If a legal entity is in bankruptcy proceedings (namely, at the stage of bankruptcy proceedings), then a mandatory participant in this process is the bankruptcy trustee, to whom the rights of the debtor’s manager are transferred.
Particular attention should be paid to the last paragraph, which allows you to grant the status of an applicant to any person who is granted the right to be an applicant by an act of a specially authorized state body or local government body (for example, for registering unitary enterprises), or by federal law. Such acts are:
1) for state registration of federal state unitary enterprises - orders of the Government of the Russian Federation or federal executive authorities of the Russian Federation (part 2 of article 10, part 2 of article 8 of the Federal Law of November 14, 2002 N 161-FZ "On State and Municipal unitary enterprises" *(17) );
2) for state registration of state unitary enterprises of the constituent entities of the Russian Federation - acts of the highest executive body of state power of the constituent entity of the Russian Federation (Part 2, Article 10 of the Federal Law of November 14, 2002 N 161-FZ "On State and Municipal Unitary Enterprises", clause " d" part 2 of article 21 of the Federal Law of October 6, 1999 N 184-FZ "On the general principles of the organization of legislative (representative) and executive bodies of state power of the constituent entities of the Russian Federation" *(18) );
3) for municipal unitary enterprises - acts of the representative body of local self-government (Part 2, Article 10 of the Federal Law of November 14, 2002 N 161-FZ "On State and Municipal Unitary Enterprises"; Clause 5, Part 10, Article 35 of the Federal Law Law of October 6, 2003 N 131-FZ "On the general principles of organizing local self-government in the Russian Federation" *(19) ).
When submitting an application and other documents to the registration authority, the acts are certified by the signature of the head of the body entrusted with these powers.
As noted in the Guidelines for filling out document forms used for state registration of a legal entity, approved by Order of the Federal Tax Service of November 1, 2004 N SAE-3-09/16@ *(20) , applicants may be the following individuals:
1) the head of the permanent executive body of a registered legal entity or another person who has the right to act on behalf of this legal entity without a power of attorney:
Upon state registration of a legal entity created through reorganization;
2) the founder (founders) of a legal entity, as well as the head of a legal entity acting as the founder of a registered legal entity:
Upon state registration of a legal entity upon creation;
3) another person acting on the basis of the authority provided for by federal law or an act of a specially authorized state body, or an act of a local government body:
Upon state registration of a legal entity upon creation,
Upon state registration of a legal entity created through reorganization,
During state registration of changes made to the constituent documents of a legal entity,
When making changes to the information about a legal entity in the Unified State Register of Legal Entities that are not related to changes in the constituent documents,
When making an entry on the termination of the activities of an affiliated legal entity,
Upon state registration of termination of the activities of a unitary enterprise in connection with the sale of its property complex;
4) head of the liquidation commission (liquidator), bankruptcy trustee:
Upon liquidation of a legal entity.
Section I.
Documents confirming the applicant's status.
1. Individuals
1.1. Original of one of the identification documents:
Passport or a document replacing it;
Identity card of an officer of the Ministry of Defense, Ministry of Internal Affairs and other military formations and a certificate of registration at the place of residence - form-33;
Birth certificate (for citizens under 16 years of age).
For foreigners, stateless persons, political emigrants:
National passport,
Certificate - for stateless persons,
Certificate of the Executive Committee of the SOKK - for political emigrants,
Resident card.
Note. When changing the last name, first name, patronymic, a corresponding document on such changes from the civil registry office is provided.
1.2. If registration is carried out by a representative, in addition to identification documents, one of the documents confirming the authority of the representative is presented:
Power of attorney certified in accordance with Art. 185 of the Civil Code of the Russian Federation;
Documents confirming guardianship, trusteeship, patronage, with the attachment of the child’s birth certificate, copies of court decisions on limitation of legal capacity.
2. Legal entities
2.1. The original or a notarized copy of the Charter with all amendments and additions and the original or a notarized copy of the state registration certificate;
2.2. The original or a notarized copy of the decision on the appointment of the head of a legal entity or the person who signed on behalf of the legal entity the transaction on the basis of which the right to real estate was claimed for registration. (for example: according to the Charter, the right to dispose of property is granted to a certain management body of a legal entity (for example: director), in this case, it is necessary to submit a document confirming the fact of his appointment (election) to the position. In the event that the right to dispose of property according to the Charter is granted to the Council directors (or other collegial body), then it is necessary to submit the original or a notarized copy of the decision of the Board of Directors (or other collegial body) on making a decision on the issue of alienation of real estate and delegating the signing of an agreement to an official (for example: a director).
