Question on backfill-compensation for the payment of representative services

[vital2023]

I will allow myself to express my opinion on the question asked above based on the norms of Belarusian legislation and judicial practice in Minsk.
I believe that IP K in reimbursing the expenses incurred by her for paying for the services of a representative in the court of appeal, and even more so of the first (since her interests were not represented in the court of first instance), the authorities will be REFUSED !!! for the reason that petitions (applications) for reimbursement of IP K for expenses of a representative were not made in time (during the consideration of the case by the court of the first and appeal instances)!

 

[vital2023]

The whole point is whether the defendant has the right to compensation if his representative participated only in the court of appeal ... And also, in this case, who is considered to be the person who won the process or who lost it (only at the appeal stage). Let's see the result in November. If anyone is interested, I will share the results of the review ...

I believe that the defendant has the right to compensation even if the representative participated only in the appeal, but again only subject to a TIMELY statement of the relevant application! And now, as they say, "it's too late to drink Borjomi" !!!
I repeat once again that my conclusions are based on the legislation of the Republic of Belarus !!!
But in any case, the question is interesting and relevant, keep us posted !!!
Respectfully,
Vitaliy!

 

[Андрей Захаров]

Yes ... This is an interesting question ... In accordance with the amendments adopted in the Russian Federation in the agro-industrial complex, the parties can submit claims for compensation of expenses for the services of representatives within 6 months after the final decision of the Arbitration Court and the first instance court considers these applications .. . So I think that there are still formal grounds for satisfying such requirements by the defendant IP K ... I will inform the respected colleagues of the results of the review)))

 

[Андрей Захаров]

In continuation of this topic for claiming compensation for the services of a representative.
In support of the fact that the representative received a sum of money by the respondent SP Three documents were submitted to the court, drawn up on the forms of expenditure cash warrants. These documents do not contain information about their registration in the cash book. The judge requested the defendant's cash books, which should contain information about the registration of these orders. The defendant did not provide the cash book, stating that according to the taxation system (simplified system) under which the defendant works, she should not keep cash books, however, these information communicated by the defendant are not true.
So, in accordance with the Regulation of the Central Bank of the Russian Federation dated October 12, 2011 No. 373-P “On the Procedure for Cash Operations with Banknotes and Coins of the Bank of Russia in the Russian Federation”, which entered into force on January 1, 2012, this provision applies to physical persons without the formation of a legal entity (individual entrepreneurs), regardless of the system of taxation applied by them. The organization of work on conducting cash transactions, the procedure for issuing cash and the procedure for maintaining a cash book of form 031004 by an individual entrepreneur, which is the defendant, are regulated respectively by chapters 2,4,5 of this Regulation and are binding on all individual entrepreneurs engaged in cash settlements using cash Money. Based on the fact that the defendant works with cash, she is obliged to be guided in her activities by the requirements of this particular document and, accordingly, keep a cash book in which she is obliged to reflect all cash flow, register all cash transactions (including the issuance of money on expenditure cash orders, which should be assigned the appropriate numbering). Non-fulfillment by the defendant of his duties on maintaining the cash book and, accordingly, the proper execution of expenditure documents (cash expenditure warrant) leads to the fact that the documents presented by the defendant as evidence of the actual payment for the representative’s services cannot be considered valid evidence. the fact of payment for services carried out specifically by IP K, because These documents will not be cash disbursement warrants, but simply written receipts for receiving funds.
The next question, based on the above circumstances, is the question: is it possible to calculate, in the course of a civil case, recovering compensation for the services of a representative in the arbitration process, a simple written receipt in receipt of funds from the defendant by the representative as valid evidence of the receipt of these funds?
As the judicial practice of arbitration courts shows, as a proof of the fact of receiving money, a simple written form of a receipt will have evidential value confirming the fact of transferring money only if the simple written form for processing the fact of transferring money is provided for by the Law (in particular, article 808 of the Civil Code RF, which regulates the procedure for drawing up a loan agreement). Based on this, in other cases, including ours, the procedure for calculating an individual entrepreneur with an individual (C-representative) is regulated by the above Regulation of the CBR No. 373-P. Failure to comply with the procedure for issuing expenditure documents by an individual entrepreneur when settling with individuals automatically leads to the invalidity of documents issued by an individual entrepreneur (expenditure cash orders) that allegedly confirm the transfer of money to an individual.
Based on the foregoing, it can be reasonably concluded that the defendant to the reputable court did not provide admissible evidence of the transfer of funds to the representative, for which the defendant relies on compensation payments.
As can be seen from paragraph 4 of the Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 121 dated December 05, 2007, “Review of judicial practice on issues related to the distribution of legal costs between parties to pay for the services of lawyers and other persons acting as representatives in arbitration courts”, in the event that expenses for payment for the services of representatives were not actually incurred, claims for their reimbursement are not subject to satisfaction.
Based on the position expressed in this document, if a person requiring compensation payments to pay for the services of his representative has not submitted documents confirming the actual expenses incurred, the claims of this person are not subject to satisfaction. In our case, the defendant did not provide such documents, and therefore, evidence was not presented to the respected court of the actual costs incurred to pay for the services of a representative. As a consequence of this, the claim declared by the defendant is not subject to satisfaction. (This is the opinion of the plaintiff).
I would very much like to hear the opinion of my colleagues on the above circumstances, in particular on the admissibility of such evidence as an expense cash warrant, which was executed without observing the relevant rules and having the status of an ordinary written receipt, in order to verify (or not to verify) taking into account the views of colleagues, the plaintiff is right or not, when considering this issue.

 

[Детективное агентство ОПЦИОН]

Having read the topic yesterday, he asked his lawyer a question and asked him to substantiate his thoughts and state them. I publish, because I agree with him:
My opinion: they must definitely pay, at least on appeal, at least on appeal, at least at the UN
I'll try to justify
It's about legal costs
They share
Article 101. Composition of legal expenses
Court costs consist of state fees and court costs associated with the consideration of the case by the arbitral tribunal.

Arb court in our country and in Africa, from top to bottom AC, i.e. if the participant hired a representative only for consideration by the BAC Presidium, then, depending on the outcome of the case, they should be compensated. In short, they must pay for consideration at any or each instance. In fact, should a representative in a second instance go for free? Not. He is paid. So the loser pays. In your case, you can tell the plaintiff, but don’t complain.

Further

Section 106. Legal Costs
The court costs associated with the consideration of the case in the arbitration court include the amount of money payable to experts, specialists, witnesses, translators, the costs associated with the examination of evidence on the spot, the costs of paying the services of lawyers and other persons providing legal assistance (representatives ), the expenses of the legal entity for notification of a corporate dispute if the federal law provides for the obligation of such notification, and other expenses incurred by the persons participating in the case in connection with the consideration of the case by the arbitration court.

Here is all to pay. Or is a cassation translator not needed? Or will they conduct an examination for free? And lawyers are right on that list.

Section 110. Distribution of Court Costs among Persons Participating in a Case
1. The court costs incurred by the persons participating in the case, in whose favor the judicial act was passed, shall be recovered by the arbitral tribunal from the side.
In the event that the claim is partially satisfied, the legal costs are charged to the persons participating in the case, in proportion to the size of the satisfied claims.
2. The costs of paying for the services of a representative incurred by the person in whose favor the judicial act was passed shall be recovered by the arbitration court from another person participating in the case, to a reasonable extent.
3. The state duty, from the payment of which in the prescribed manner the plaintiff was exempted, shall be recovered from the defendant in the federal budget income in proportion to the amount of the satisfied claims, if the defendant is not exempt from the payment of the state duty.
4. Upon agreement of the persons participating in the case on the distribution of legal expenses, the arbitral tribunal shall include legal expenses on them in accordance with this agreement.
5. The court costs incurred by the persons participating in the case in connection with the consideration of the appeal, cassation appeal shall be distributed according to the rules established by this article.


What is a judicial act
Section 15. Judicial Acts of the Arbitration Court
1. The arbitral tribunal shall adopt judicial acts in the form of a decision, decision, ruling.
2. The judicial act adopted by the arbitral tribunal of the first instance when considering the merits of the case is called a decision.
Judicial acts adopted by the arbitration courts of the appeal and cassation instances based on the results of consideration of appeals and cassation appeals, as well as judicial acts adopted by the Presidium of the Supreme Arbitration Court of the Russian Federation based on the results of the review of judicial acts by way of supervision, are called decisions.
All other judicial acts of arbitration courts adopted in the course of proceedings are referred to as definitions.
3. Decisions, decisions, determinations made by the arbitration court must be lawful, justified and motivated.


Those. any court dock, there is a judicial act
It’s not clear, if the court itself messed up, even without the participation of the other party, then from whom to recover? This is interesting. According to the letter of the law, on the other hand. What does she have to do with it?

If you go from the opposite. The right to judicial protection is absolute; a waiver of this right is void. I myself can’t defend myself, because nihtfreshteen, so here I am. And then, on appeal or cassation, judicial protection is not needed. Everything may be upside down there. And then they will have to reimburse for 1, 2, and 3 instances

Even for human rights, they separately charge money from a loser of the state for a representative

You violated my rights, I'm in court. Why should I pay, because you are to blame (if the court so decides)?
I think. that you violated my rights, I’m in court, and you defended against my collision by paying a lawyer. Why should you bear the cost of unreasonable hitting?

You don’t agree with the judicial act, appealed, I sent a representative there, but he wants to eat ... On appeal there are new expenses for the representative, on appeal more ... If you need to go to Moscow from Magadan, then how? In the First Instance we considered everything ??

E. Grishkovets (do you know this?) Always makes a short introduction before the start of performances, such as turn off the bodies, otherwise your faces are blue, you paid money two months ago to poke sms, and ..
“Thank you for coming, thereby paying for my trip, rent, hotel, raising my children, and even my utilities utilities”

 

[Андрей Захаров]

Dear colleagues))) The question is - the plaintiff doesn’t have to pay the representative’s services already ... The question is actually different — how can this payment be avoided. I’m talking about the admissibility of evidence of expenditure cash orders issued in violation of established requirements. Let's try to discuss this moment, which I specifically painted above. I really look forward to your opinions, dear colleagues. The situation is actually interesting. We also need to know, when conducting activities to collect information on civil cases, which documents the court can accept as evidence and which are not ... That’s the question with such documents in our opinion is very relevant ... Judicial practice regarding the similar described does not give direct answers to a specific situation.

 

[Детективное агентство ОПЦИОН]

Andrei!!!! you would immediately say that we must fight back !!!!!! How about the price - Do we sell or buy ?!
Our arbitration for the last time specifically demanded a payment confirmed by the bank, that is, with a blue seal, an agreement and an extract that the lawyer officially works for me! It seems to me that only consumables or legal entities are consumables. person to represent. On Monday I will discuss with my

 

[Андрей Захаров]

Thank you Alexander for your assistance Here the question is interesting - is it possible to accept as evidence a document (drawn up on the form of an expense order, which is not actually a warrant) as proof of payment for the representative’s services. There is judicial practice on payment orders and everything is clear, but by the like kind of dokumentum, the question is very controversial ... I at least have not found a judicial practice on such issues ...