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Let's consider the types of representation in civil law, then we will determine the subjective nature of each of them. For a long time, this issue has been considered by various researchers, provisions on subjects of procedural representation exist in legal regulations, for example, in the Civil Procedure Code of the Russian Federation. In the scientific literature there are two subjects of representation: a representative and a person whose interests are represented (principal). To define such a term as “representative of corporate entities” different scientists have carried out a random approach.
For example, Candidate of Legal Sciences V. V. Bulgakov defined a representative as a participant in a court session who performs actions on behalf of and in the interests of represented legal entities, as well as the consequences of such activities. M. V. Bogomolov considered that a representative is a person who provides services for a fee or gratuitously to represent the interests of legal entities within the Civil Code of the Russian Federation and having issued authority. After analyzing the opinions of the authors, it can be summed up that both an individual and a legal entity can be represented in court (in this material, legal entities).
Who can be a representative? The following criteria are presented to representatives, based on Article 49 of the Civil Procedure Code of the Russian Federation: 1) full legal capacity; 2) issued credentials; 3) lack of a certain status. On the basis of Part 1 of Article 37 of the Civil Procedure Code of the Russian Federation: civil procedural capacity arises in full by citizens who have reached the age of 18 years and organizations. Consequently, even after the process of emancipation by court, a minor does not have the right to act as a representative in court, except for legal representation. For example, guided by Part 2 of Article 62 of the RF IC, parents under the age of 16 act as legal representatives of the child in court.
Speaking about the second requirement (powers to conduct a case in court), it should be noted that their absence or defects in the form or content of documents entail the court's denial of the right to representation. Article 51 of the Civil Procedure Code of the Russian Federation establishes a list of certain officials who cannot be representatives in court. These are: judges, investigators and prosecutors. However, they have the right to be representatives of certain bodies (court, prosecutor's office, etc.) or legal representatives. On the basis of clause 5.1 of Article 12 of Federal Law No. 184 of 06.10.1999, a ban on participation as a representative has been established, which applies to deputies (in civil cases) if their activities are carried out on a professional permanent basis. Except for legal representation. In paragraph 5 of Article 17 of Federal Law No. 79 of 27.06.2004, there is also a ban on those persons who fill the position of civil service.
At the moment, the legislator does not impose special requirements for persons who can be representatives.
From the position of V. V. Vlasov, the occurrence of a dispute is a representative who has the appropriate knowledge, but does not have a higher legal education, can provide assistance no worse than a lawyer. Despite the ambiguity of this position, knowledge must also be confirmed by an appropriate document. According to L. V. Voitovich, the requirement of the CAS of the Russian Federation imposes such a criterion as the mandatory presence of a representative of higher legal education, enshrined in Part 1 of Article 48 of the Constitution of the Russian Federation. It is proposed to borrow the norm fixed by Part 1 of Article 55 of the CAS of the Russian Federation on the availability of higher legal education. It was proposed to make additions to Article 49 of the Civil Code of the Russian Federation.
Since the cost of services is currently quite high, legal entities are forced to turn to unqualified specialists.
According to Article 95 of the Civil Procedure Code of the Russian Federation, the cost of paying for the services of representatives refers to the costs associated with the consideration of the case. As noted by such figures as S. Y. Nekrasov and S. N. Fedulova, the representative is a participant in the civil process, but is not a person involved in the case. The composition of the persons participating in the case is defined in Article 34 of the Civil Procedure Code of the Russian Federation. According to such authors as A. S. Afanasyev and M. A. Vikut, a representative is a person who promotes justice. According to the Plenum of the Supreme Court of the Russian Federation in paragraph 17 of Resolution No. 11 of 06/24/2008, representatives of the parties are third parties or persons assisting justice. The main purpose of representation is to protect the rights and legitimate interests of its principal, and not to protect public interests or the interests of the state. Nevertheless, Article 54 of the APC of the Russian Federation indicates that representatives act as other participants who.
In the legal literature, general and special powers are distinguished. General powers are procedural actions that anyone has the right to perform on behalf of the principal. For example, familiarization with the case materials, statement of challenges, removal of copies, etc. (Article 35 of the Civil Procedure Code of the Russian Federation). Special powers are procedural actions performed by a representative when they are indicated in a power of attorney. These include , on the basis of 54 of the Civil Procedure Code of the Russian Federation :
1) signing of the statement of claim; 2) submission of a statement of claim to the court; 3) transfer of the dispute to the arbitration court; 4) filing a counterclaim; 5) full or partial waiver of claims; 6) reduction of the size of claims; 7) recognition of the claim; 8) change of the subject or the basis of the claim; 9) conclusion of a settlement agreement; 10) transfer of authority to another person (transfer of trust); 11) appeal of a court decision; 12) presentation of the enforcement document for collection; 13) receipt of the awarded property or money. For example, a lawyer appointed by the court has the right to appeal court rulings in this case (Article 50 of the Civil Procedure Code of the Russian Federation).
It is also worth noting that the requirements for the registration of the powers of a representative in civil proceedings are fixed in Article 53 of the Civil Procedure Code of the Russian Federation. Nevertheless, Article 185 of the Civil Procedure Code of the Russian Federation establishes the definition of “power of attorney”. So, a power of attorney is a written authorization issued by one person to another person for representation before third parties. Paragraph 125 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated 23.06.2015 N 25, indicates that a written authorization, including representation in court, may be contained both in a separate document (for example, a power of attorney) and in a contract, a decision of the meeting, unless otherwise prescribed by law and does not contradict the essence of the relationship.
A power of attorney in court may be issued for representation on behalf of an individual or a legal entity. This document has a notarized form or is certified by organizations, their list is fixed in Part 2 of Article 53 of the Civil Code of the Russian Federation. Authorized by the right to certify a power of attorney on behalf of an individual: 1) the organization in which the principal works or studies; 2) homeowners' association; 3) a housing, housing and construction or other specialized consumer cooperative that manages an apartment building; 4) the managing organization at the place of residence of the principal; 5) the administration of the social service organization in which the principal is located, as well as the inpatient medical institution in which the principal is being treated; 6) the commander (chief) of the relevant military unit; 7) the powers of attorney of persons in places of deprivation of liberty shall be certified by the head of the relevant place of deprivation of liberty.
