Expanding the use of the newly discovered and new circumstances to fill gaps in legislative regulation: the agony of the institute or an illustration of a natural development?

Baikova Svetlana Radikovna Postgraduate student; Faculty of Law; St. Petersburg State University Senior Lawyer; Moscow Law Office 'MKP' 199034, Russia, Saint Petersburg, Universitetskaya nab., 7/9 bajkovasvetlana06@gmail.com

Introduction

In the legal reality, situations periodically arise where there is no correct procedural norm (institution) for the procedural framework of public relations. Then the institutions known to the procedural legislation begin to be applied by analogy, sometimes without taking into account their legal essence.

The reasons for the described phenomenon are clear. In practice, a situation periodically arises when, realizing the need to protect the rights of a particular circle of persons, the courts do not understand with the help of which procedural institution this right should be implemented. The lack of development of the correct tools certainly calls into question the effectiveness of judicial protection.

In the context of a gap in legislation, judicial practice traditionally follows approximately the following path: a legal position is formed at the level of the judicial board of the Supreme Court of the Russian Federation / district Court, then at the level of a review of practice /resolution of the Plenum, in a relatively ideal case – the Constitutional Court of the Russian Federation. Changes at the level of positive legislation usually occur either in extreme cases, or after too long a time interval, or are insufficiently elaborated "surrogates" ^{[1, p. 40]}.

However, it is impossible not to raise the question of how acceptable it is to leave the settlement of issues on instruments for the protection of subjective rights to the courts.

Of course, as practice shows, even the involvement of the legislator in resolving the issue of due process regulation is not always correct. However, judicial law-making in this aspect carries much more problems.

We do not question the importance of judicial initiative in the development of the subject of judicial protection and even in some way its inevitability, observed historically ^{[2, p. 146; 3, p. 52]}, and on the contrary, consistently emphasize in the works some expediency of such an approach.

However, the courts should be limited in creating new procedural institutions, since lack of control in this matter can lead to procedural chaos and, ultimately, violation of the right to judicial protection, especially in the first time after the introduction of a new instrument by the courts.

For example, a person belonging to the category of persons endowed with judicial practice of one or another right, not only cannot (due to the lack of special knowledge and the possibility of constant monitoring of new judicial positions), but also should not know about such an endowment (as well as about the moment from which such a person has the right). This thesis is based on the fact that the rule "ignorance of the law does not absolve from responsibility" – and here we are talking about sanctions for passivity (i.e. for non–realization of the right within a certain period) - applies only to legal acts, and not to judicial practice (of course, there may be a discussion about the normativity and retroactivity of precedent at the moment of formation of a uniform approach to judicial practice, however, its development is not the purpose of this work).

In other words, if judicial practice has consistently denied for a long time any right of a person (for example, the right of a person being held vicariously liable ("subsidiary debtor") to appeal against judicial acts on the basis of which bankruptcy creditors are included in the register of creditors' claims of a bankrupt debtor ("judicial acts-grounds") the formation of positive judicial practice will not immediately become information accessible to all participants in such legal relations. As a result, the procedural deadlines may be missed, as a result of which the person will receive a refusal to defend his subjective right as a sanction for his procedural inaction, in which there is actually no fault on his part. An ideal example: numerous disputes and discrepancies in judicial practice on the issue of the moment when a bankruptcy creditor has the right to appeal a judicial act-grounds (the so-called "creditor appeal" or "extraordinary appeal") up to 2019. (currently, since 2024, there has been no appeal, but a revision under Article 311 of the Agro-Industrial Complex of the Russian Federation, which will be discussed later). It must be recognized that the issues of law and the timing of its implementation in each specific situation, up to the moment of settlement at the legislative level, are in fact always the subject of judicial discretion and an assessment of the reasonableness of the behavior of a person guided by an outdated approach.

Hence, the problem of proper procedural tools is not a problem of procedural perfectionism, not a "senseless struggle for the purity of procedural institutions" ^{[4, p. 12; 5, p. 229, 233-234]}, as it may seem, it is a problem of the validity of holding persons accountable for their procedural behavior and the problem, ultimately, of access to justice and the constitutional right to judicial protection.

As a result of the analysis of the above trends, we see that the problem of new procedural mechanisms in its first approximation looks like this: the need arising in society to expand the limits of judicial protection forces us to look for ways of procedural reform of institutions, which globally has only two directions: the development of existing procedural norms or the creation of new ones with subsequent fixation at the legislative level. In this regard, the question of the criteria for choosing between these two options objectively arises. In our opinion, we are talking about certain criteria for the independence of a procedural institution, which will allow us to conclude that there is a certain sufficient set of signs that do not allow us to attribute it to existing ones.

In reality, we observe two parallel trends: on the one hand, new procedural instruments are not legally fixed, on the other hand, both old and new ones are trying to give signs of universality (the ability to frame several situations and protect several rights), often ignoring their legal essence.

One of the institutions known to the procedural legislation, which is actively used to fill the described gaps, is the institute for reviewing a judicial act in newly discovered and new circumstances.

It is generally believed that this institution has the property of being extraordinary. It is an extra–institutional review that is not built into the chain of institutional proceedings (first instance – appeal – cassation - supervision), which is possible at virtually any level in the presence of circumstances established by law.

Both in science and in practice, insufficient attention is paid to this institute based on the seemingly insignificant layer of situations in which it can be applied. Indeed, the list of such circumstances was originally, and still continues to be quite narrow. Moreover, the described provisions are extremely reluctant to be applied by the courts.

Nevertheless, the history of the development of this institution in modern Russia, including the recent events of 2024 in the field of bankruptcy, consistently illustrates its way far beyond the situations for which it was originally created.

In the framework of this work, the thesis on the application of the institute of revision under newly discovered and new circumstances to regulate situations that are inherently unsuitable for it will be illustrated by the example of the extraordinary appeal mentioned above.

The fact is that the institute of extraordinary appeal, being an independent procedural institution, has repeatedly become the subject of discussions about the correctness of procedural implementation. It has existed outside of positive legislation for more than 10 years, even beginning to extend its effect to other situations and other subjects.

In 2024, the legislator finally decided to consolidate this institution at the level of positive regulation in paragraph 12 of Article 16 of Federal Law No. 127-FZ dated 26.10.2002 "On Insolvency (Bankruptcy)" ("Bankruptcy Law"), while not following the path of describing and justifying an independent procedural institution, but actually applying the rules by analogy review according to newly discovered circumstances (according to the text of the article, we will use the terms "extraordinary appeal" or "revision of the judicial act-grounds" to describe this procedure).

Criticism of the described decision of the legislator will be proposed in this article based on the analysis of both the history of the development of this institution, signs of its independence, and the legal essence of the institute of revision under newly discovered and new circumstances, indicating the impossibility of its application for extraordinary appeal. As a result of this analysis, we will come to the conclusion that it is incorrect to use the revision construction in this situation and pose the problem of its use in situations that are essentially unsuitable for it.

For the purposes of this article, we will analyze the revision based on newly discovered and new circumstances only in the arbitration process and will use such formulations as "revision under Article 311 of the APC of the Russian Federation", "revision under Chapter 37 of the APC of the Russian Federation". At the same time, we will also call this institution a procedural form, bearing in mind the set of procedural norms applied in this procedure, which include elements of the general procedural form of the claim proceedings and special norms of this institution.

I. General characteristics of the revision under Article 311 of the Agro-industrial Complex of the Russian Federation: formulation of criteria for independence, description of the main features

Regulates the revision of judicial acts on new and newly discovered circumstances, Chapter 37 of the APC of the Russian Federation. What is common for a review on these grounds is the absence of any important circumstance at the disposal of the court and the applicant during the consideration of the case that could affect the outcome of the proceedings.

So, in both cases, when considering the case, the court operated with all the evidence available to it and made a just (at the time of its pronouncement) decision.

However, the newly discovered circumstance is the basis for reviewing the judicial act for the reason that its awareness to the court during the initial consideration of the case could potentially change the balance of power in assessing evidence and lead to a different decision.

Although a new circumstance arises after the adopted judicial act, it represents such a change in the approaches of the legislator, judicial practice, the Constitutional Court of the Russian Federation or legal reality that the previously rendered judicial act actually becomes unlawful (if the court initially prevents any mistakes).

A review based on newly discovered and new circumstances is an extraordinary review precisely because the courts in such cases initially do not allow ordinary errors in law enforcement and/or evaluation of evidence/drawing conclusions, as happens with a normal institutional review. The revision under Chapter 37 of the APC of the Russian Federation is aimed more at eliminating social injustice and maintaining the interests of legality in a situation where the court did not commit judicial errors, and the parties (at least the applicant) faithfully performed their procedural duties to disclose evidence, perform procedural actions, etc.

Next, we briefly consider the qualifying features of the institution of judicial act review according to the rules of Article 311 of the APC of the Russian Federation. The above criteria, in the author's opinion, allow us to characterize any procedural tools used to review judicial acts. The presence of a set of features in a procedural instrument that do not allow it to be attributed to any known procedural form indicates its isolation and the emergence of the property of independence.

The subject. These are persons who participated in the case (Article 312 of the APC of the Russian Federation) and did not participate if their rights and obligations are affected by a judicial act (Article 42 of the APC of the Russian Federation, paragraph 18 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 30.06.2011 No. 52 "On the application of the Provisions of the Arbitration Procedural Code of the Russian Federation when reviewing judicial acts under new and newly discovered circumstances" ("Plenum of the Supreme Court of the Russian Federation on new and newly discovered circumstances"). In any case, from the point of view of the legal nature of the institution, these are persons who participated or should have participated in the process during the initial consideration of the case.

Now, as a result of a strong-willed decision of the legislator, in relation to a specific situation, applicants for the revision of a judicial act under newly discovered circumstances may also be persons whose rights and obligations the act was not originally issued, who should not have been involved in the case during its initial consideration. We are talking about an extraordinary appeal by submitting an application for its revision due to newly discovered circumstances (paragraph 12 of Article 16 of the Bankruptcy Law, introduced by Federal Law No. 107-FZ dated 05/29/2024 "On Amendments to the Federal Law On Insolvency (Bankruptcy)" and Article 223 of the Arbitration Procedural Code of the Russian Federation" ("The Law of 05/29/2024"). However, in general, this range of subjects is not typical for the described institution.

The impact of the judicial act on the applicant's rights. In the current model of revision under Article 311 of the APC of the Russian Federation, a judicial act directly affects the rights and/or obligations of the person submitting the application, since the subject, as indicated, may be either a person who has already participated in the case or did not participate, but whose rights and obligations are affected by the judicial act.

The criterion of "direct involvement" is rather vague and is determined by the Supreme Court of the Russian Federation through the fact that a judicial act creates obstacles to the realization of a person's subjective right or for the proper performance of duties towards one of the parties to the dispute (see paragraphs 1-2 of Resolution of the Plenum of the Supreme Court of the Russian Federation dated 30.06.2020 No. 12 "On the Application of the Arbitration Procedural Code of the Russian Federation in the case of consideration of cases in the commercial court of Appeal" ("Plenum on appeal in arbitration courts"); paragraphs 2-3 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated 30.06.2020 No. 13 "On the application of the Arbitration Procedural Code of the Russian Federation when considering cases in the Commercial Court of Cassation" ("Plenum on Cassation in arbitration courts").

The amendments introduced by the Law of 05/29/2024 destroy the established structure, since the rights and obligations of subjects of extraordinary appeal are not directly affected by the judicial act, the impact is indirect: by reducing the claims included in the register, the share of a particular creditor may become higher based on the results of the distribution of the bankruptcy estate.

Influence on the rights of persons (other than the applicant). The classical description of the institution of revision based on newly discovered and new circumstances assumes influence only on persons involved in the consideration of a particular dispute (or persons who should have been involved in the case).

The content of the specified criterion is changing as a result of changes introduced by the Law of 05/29/2024. We are talking about paragraph 5, paragraph 12 of Article 16 of the Bankruptcy Law, according to which persons participating in the bankruptcy case and in the bankruptcy arbitration process of the debtor have the right to participate in the consideration of an application for the cancellation of a judicial act under the rules of review for newly discovered circumstances, including to submit new evidence and to state new arguments that were not presented and were not stated at the initial consideration of the case. Repeated submission of such an application by the same persons on the same grounds is not allowed.

Here, the peculiarity of the bankruptcy process is manifested, due to the fact that, by performing certain procedural actions (for example, challenging a transaction), a particular creditor actually acts in the interests of the entire bankruptcy estate, all other creditors.

The review procedure. The judicial act is reviewed by the same instance in an extraordinary manner (its own procedure), which is radically different from the usual ordinary instance method. The revision of one's own judicial act, in addition to the institution of new and newly discovered circumstances, as an independent institution is found in the civil procedure process of Russia only in relation to the procedure for revoking a decision in absentia according to the rules of the CPC of the Russian Federation (however, in this case, the proceedings continue on the merits according to the general rules, art. 243 CPC of the Russian Federation), as well as in situations of double appeal in The CAS of the Russian Federation (Article 312 of the CAS of the Russian Federation), and earlier in Article 370 of the CPC of the Russian Federation (currently canceled).

The powers of the court. Within the framework of this procedure, the court can actually only satisfy or refuse to satisfy the application for review on newly discovered or new circumstances, canceling the relevant judicial act upon satisfaction of the application. At this stage, the court resolves the question of the presence or absence of relevant circumstances in a particular situation (the so-called "validity filter"). In the future, the case is considered by the same court repeatedly and on the merits.

A miscarriage of justice. This issue is extremely controversial in legal science. Without setting one of the tasks of this work to form a professional and scientific opinion on this issue, we point out the following.

In the case of newly discovered circumstances, the judicial act that is subject to review is actually rendered as a result of an assessment of not all the evidence/ analysis of not all the circumstances of the case for reasons independent of the subjective imputation of the court. It is important that in this case, the applicant should also not have knowledge of these circumstances at the time of the issuance of the judicial act.

In the case of new circumstances, although we are talking about an error in legal qualification, the court does not have the obligation, and more often the authority to prevent it (for example, an assessment of the constitutionality of the norm), which is why it is not entirely correct to talk about a judicial error.

Meanwhile, these, at first glance, indisputable theses are questioned by many researchers (see, for example, the Conclusion of the Dissertation Council d.002.002.06 on the basis of the Federal State Budgetary Institution of Science of the Institute of State and Law of the Russian Academy of Sciences on the dissertation of Petruchak Ruslan Konstantinovich on the topic "Proceedings for the revision of judicial acts that have entered into force on the newly discovered or new circumstances in civil proceedings" for the degree of Candidate of Law). There is a position in the doctrine according to which the criterion of materiality of circumstances allows us to consider them as judicial errors ^{[6, p. 115]}. It is indicated that the presence or absence of the court's guilt in committing a particular error should not entail different possibilities in correcting it.

In this paper, we do not aim to highlight this issue, however, we draw attention to the fact that the confusion of institutions of revision under Article 311 of the APC of the Russian Federation and institutional methods of appeal not only at the level of practice, but also at the level of explanations of the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation indicates that a clear understanding of the issue has not been formed. For example, paragraph 2 of paragraph 5 of the Plenum of the Supreme Arbitration Court of the Russian Federation on new and newly discovered circumstances that procedural violations listed in Part 4 of Article 288 of the APC of the Russian Federation, committed by the cassation court when adopting a judicial act, may be recognized as a significant circumstance for the purposes of applying the rules on newly discovered circumstances, i.e. in its pure form, a judicial error that should be corrected in an ordinary manner – it is in this context that the specified explanation is perceived by judicial practice (see the definition of the Supreme Court of the Russian Federation dated 18.10.2017 No. 309‑ES17-5734 in case No. A60-51800/2013). Knyazkin S.I. in substantiation of his position that newly discovered and new circumstances can be qualified as a judicial error, also cites these clarifications as an example ^{[6, p. 115]}.

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The institution of extraordinary appeal, as has already been partially shown, is out of step with the described characteristics of the institution of revision due to newly discovered and new circumstances. For a more detailed analysis, let us turn to the characteristics of this institution through the prism of the history of its formation.

II. Extraordinary appeal

1) A brief digression: appeal with the help of Article 42 of the APC of the Russian Federation, awareness of the incorrectness of its use

Researchers of this issue point out that initially they tried to defend the relevant creditors' right with reference to Article 42 of the APC of the Russian Federation ^{[7, p. 113]}, then without such a reference at all (the Phaeton–Aero case, (see Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 06/08/2020 No. 2751/10 in case No. A56-21592/2009). It was this case that became a turning point in the realization that the institution of Article 42 of the APC of the Russian Federation is not suitable for the procedural framework of an extraordinary appeal, however, this idea was not immediately accepted in practice.

For the first time at the level of higher courts, the relevant right was fixed in paragraph 24 of Resolution No. 35 of the Plenum of the Supreme Court of the Russian Federation dated 06/22/2012 "On Certain Procedural Issues related to the Consideration of Bankruptcy Cases" ("Resolution No. 35"), which states the following:

"If bankruptcy creditors believe that their rights and legitimate interests have been violated by a judicial act on which the claim stated in the bankruptcy case is based (in particular, if they believe that it is unfounded due to the unreliability of evidence or the nullity of the transaction), then on this basis they, as well as the arbitration manager, have the right to appeal in general in accordance with the procedure established by procedural legislation, the specified judicial act, while in case they miss the deadline for appealing it, the court has the right to restore it, taking into account when the person who filed the complaint learned or should have learned about the violation of his rights and legitimate interests."

It should be noted that when the Supreme Arbitration Court of the Russian Federation, having granted the right to appeal the judicial act-grounds, indicated the right to "appeal in accordance with the procedure generally established by procedural legislation," judicial practice interpreted this instruction as an ordinary institutional appeal using the construction of Article 42 of the APC of the Russian Federation. This position is fully explained by the broad interpretation of the provisions on the subjects of ordinary appeal: the relevant right is given to persons participating in the case, as well as other persons in cases provided for by the APC of the Russian Federation (globally for our discussion – persons under Article 42 of the APC of the Russian Federation). However, it became obvious that a group of subjects with the right to appeal against judicial acts-grounds, different from the persons specified in Article 42 of the APC of the Russian Federation, appeared.

We believe it is correct to talk about the following qualifying features of the institution of appealing a judicial act on the initiative of a person not involved in the case, using Article 42 of the APC of the Russian Federation.

The subject. Globally, the subject of appeal using the right of Article 42 of the APC of the Russian Federation is a person who is not involved in the case.

From the literal interpretation of Article 42 of the APC of the Russian Federation, it follows that similar powers for a person who did not participate in the case exist in relation to appeal (Article 257 of the APC of the Russian Federation), cassation (Article 273 of the APC of the Russian Federation) and supervision (Article 308.1 of the APC of the Russian Federation). However, the right to review judicial acts by persons not involved in the case, whose rights and obligations are directly affected by the judicial act, is also seen in relation to Article 311 of the APC of the Russian Federation (see paragraph 2, paragraph 18 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation on new and newly discovered circumstances).

The impact of the judicial act on the applicant's rights. The judicial act directly affects the rights and/or obligations of a person not involved in the case – and this is fundamental, since when establishing the fact that this person should have been involved in the case, the judicial act will in any case be canceled. At the same time, the cancellation itself does not prejudge the conclusions of the court on the merits of the dispute.

Influence on the rights of persons (other than the applicant). The judicial act affects only the persons involved in the consideration of a particular dispute (or persons who should have been involved in the case).

The review procedure. The institution as such does not represent an independent procedural form, but frames the existing institutional and non-institutional ways of verifying judicial acts in a civil process, which is why the appealed judicial act, if there are grounds for it, is reviewed by a higher instance in an ordinary manner in compliance with the principle of consistency (appeal, cassation, supervision) within the powers of the relevant court, or by the court itself when it comes to reviewing for new and newly discovered circumstances.

However, in cases where review proceedings have already been initiated in any instance, there are cases of double appeal, to which practice, for lack of a better one, seeks to apply the procedural form of Article 311 of the APC of the Russian Federation.

This approach is reflected in the legal positions contained in paragraph 25 of the Plenum on Appeal in Arbitration Courts and paragraph 39 of the Plenum on Cassation in Arbitration Courts.

Thus, according to paragraph 5 of paragraph 25 of the Plenum on Appeal in Commercial Courts, in the case when, after considering an appeal and adopting a decision based on the results of its consideration, the court of appeal accepted for its proceedings an appeal from a person participating in the case and filing a complaint within the time limit established by procedural legislation, or a person not involved in participation in a case whose rights and obligations are affected by the contested judicial act (Article 42 of the APC of the Russian Federation), such a complaint should be considered in relation to the rules for considering an application for review of a judicial act under new or newly discovered circumstances. A similar position is contained in paragraph 1 of paragraph 39 of the Plenum on Cassation in arbitration courts. Similarly, these provisions duplicate the clarifications contained in paragraph 22 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 05/28/2009 No. 36 "On the Application of the Arbitration Procedural Code of the Russian Federation when Considering Cases in the Commercial Court of Appeal" (currently canceled).

The situation is modeled that, upon satisfaction of the complaint, the decision of the court of first instance is subject to cancellation on an unconditional basis (it is issued on the rights and obligations of a person not involved in the case), and the appeal decision, on the one hand, is also canceled on this unconditional basis, and on the other hand, since such cancellation is made by the court of appeal itself, What is not typical for an ordinary appeal is the mechanism of Article 311 of the APC of the Russian Federation. The above situation illustrates another borderline situation in which the law enforcement officer is engaged in "patching procedural holes".

Meanwhile, the issuance of a judicial act on the rights and obligations of a person not involved in the case is certainly a mistake of the court, and by no means a newly discovered circumstance, since by virtue of part 1 of Article 51 of the APC of the Russian Federation, the involvement of third parties who do not declare independent claims regarding the subject of the dispute can be made in the following cases including at the initiative of the court, and the court of appeal always checks the presence or absence of grounds for the so-called unconditional cancellation of the judicial act.

Obviously, in this case, there are no new or newly discovered circumstances in their true meaning of the word for the reason that the establishment by a higher court of an error in the actions of a lower court and, more importantly, its actions, cannot be such a circumstance (although a number of circumstances allow us to talk about a possible confusion of non-constitutional and instantiation methods of revision: we are talking about the previously mentioned paragraph 2 of paragraph 5 of the Plenum on new and newly discovered circumstances, which allows the cassation instance to cancel its own act upon detection of procedural violations that are unconditional grounds for the cancellation of a judicial act – in this part of the Supreme Court of the Russian Federation proposes to consider such a situation as a certain essential circumstance, a kind of newly discovered circumstances in relation to paragraph 1, part 2 of Article 311 of the Agro-industrial Complex of the Russian Federation).

The powers of the court. Within the framework of this procedure, the court, canceling the judicial act, does not pass the situation through the "validity filter", but states the presence or absence of violations of the applicant's right, who was not involved in the case.

A miscarriage of justice. The criterion of "direct involvement" is critically important and is decisive for the purposes of the process: if it exists, the court of Appeal, guided by paragraph 4 of Part 4 of Article 270 of the APC of the Russian Federation, cancels the judicial act on unconditional grounds and proceeds to consider the case according to the rules of first instance in relation to part 6.1 of Article 268 of the APC of the Russian Federation. Consequently, in this case, the court of Appeal concludes that there is a gross procedural error in the actions of the court of first instance, since the judicial act should have been initially adopted with the participation of the person filing the complaint in the case.

The qualification of this situation as a gross judicial error is predetermined by the presence of the court considering the case, the obligation to determine the subject of proof, which in fact always involves identifying the procedural circle of participants whose rights and obligations may be affected by the judicial act.

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So, it quickly became clear that the application of the provisions of Article 42 of the APC of the Russian Federation to the right to appeal a judicial act-grounds is not legally correct.

It is obvious that bankruptcy creditors in the agroindustrial Complex of the Russian Federation as subjects of ordinary (institutional) appeal of a judicial act cannot appear, since in the framework of the usual claim process, as a rule, the rights of these persons are not affected in any way, the appealed act does not contain conclusions directly concerning them, i.e. there is no criterion of "direct impact", since the debtor As such, there is no bankruptcy process yet.

Even if there are grounds to believe that bankruptcy proceedings will be initiated soon, the creditor's fears are not enough to recognize the latter's material interest.

Consequently, the right of a bankruptcy creditor to appeal a judicial act-basis arises much later than it was issued, namely from the moment such a creditor's application for inclusion in the register was accepted for bankruptcy court proceedings (see Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 07/23/2009 No. 60 "On Some Issues Related to the Adoption of the Federal Law dated 12/30/2008 No. 296-FZ "On Amendments to the Federal Law "On Insolvency (Bankruptcy)", Review of Judicial Practice of the Supreme Court of the Russian Federation No. 1 (2020), approved. By the Presidium of the Armed Forces of the Russian Federation on 06/10/2020, definition of the SCGS of the Armed Forces of the Russian Federation dated 07/21/2018 No. 5-KG18-122, definitions of the SCES of the Armed Forces of the Russian Federation dated 02/27/2019 No. 305-ES18-19058 in case No. A40‑177772/2014, dated 06.06.2019 No. 307‑ES19-1984 in case No. A66‑7497/2018; dated 08/01/2019 No. 307-ES19-2994 in case No. A66‑7543/2018; dated 12.12.2019 No. 307-ES19-6204 in case No. A56‑108378/2018), and assumes the indirect nature of its "affecting". It should be noted that this affects the rights not only of the creditor appealing the judicial act-the basis, but also of the entire civil law community of creditors, which is why it is impossible to talk about using the tools of Article 42 of the APC of the Russian Federation for ordinary appeal, which is also indicated and indicated by the courts (see Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 04/22/2014 No. 12278/13, Review of judicial practice of the Supreme Court of the Russian Federation No. 2 (2020), approved By the Presidium of the Armed Forces of the Russian Federation on 07/22/2020).

The clarifications of Resolution No. 35 appeared precisely because the courts refused to protect bankruptcy creditors' rights, guided by the indirect nature of affecting their rights – and in this regard, the message of Resolution No. 35 should be evaluated positively. However, having solved the task of achieving a balance between the participants in the bankruptcy process, the law enforcement officer and the legislator did not take into account an important detail – the need to incorporate the procedural instrument into the system of procedural norms.

In other words, the economic justification of the creditors' material interest in appealing judicial acts is beyond doubt. The relevant right is due to the fact that such a judicial act is objectively opposed to the property rights and interests of creditors who did not participate in the consideration of such a case, since the inclusion of any claims in the register reduces the proportion of satisfaction of other creditors' claims, which is why these persons receive the right to "influence the process". The exercise of these rights, in combination with other instruments, contributes to solving public law problems and finding a balance of interests of all participants in bankruptcy proceedings. However, attempts to improve the procedural tools of such implementation should not be abandoned.

As we have indicated, the instrument of Article 42 of the APC of the Russian Federation cannot be applied in this situation, since there is no procedural judicial error as such. An additional argument in favor of this argument is that the possibility of the creditor's appeal against the judicial act-grounds is not affected by the court's resolution of the issue of his participation in the case earlier. In other words, if, within the framework of a general legal process that ended with the contested judicial act-basis, the court reasonably refused to involve the future bankruptcy creditor in the case, and then his application for inclusion in the register was accepted by the bankrupt court for production, after such acceptance, the creditor is entitled to appeal the judicial act-basis precisely in accordance with paragraph 24 of Resolution No. 35, and not Article 42 of the Agro-Industrial Complex of the Russian Federation.

2) The main characteristics of the form of judicial act review-grounds

We believe that extraordinary appeal is an independent procedural institution and should have a separate special regulation, since a set of characteristic features does not allow it to be framed not only by Article 42 of the APC of the Russian Federation, but also by Article 311 of the APC of the Russian Federation.

The subject. A person who was not and should not have been involved in the case, since the corresponding right to "influence the process", as previously indicated, arose only from the moment the application for inclusion in the register of creditors' claims was accepted.

Please note that the choice of the specified moment of occurrence of the right is also debatable, since strictly formally the right of a bankruptcy creditor to appeal a judicial act-grounds should arise from the moment its claims are included in the register, i.e. confirmation of their validity by the court (this is an approach that judicial practice generally followed until recently (see the decisions of the Arbitration Court the Court of the Volga-Vyatka District dated 08/14/2018 in case No. A43-8187/2017, the Arbitration Court of the Moscow District dated 04/27/2017 in case No. A40-144914/2015, dated 08/13/2018 in case No. A40-235705/2016).

The approach adopted at the moment seems premature from the point of view of formal legal logic, however, it should be recognized that it gained its popularity due to the idea of a public-law goal of the institution of bankruptcy, which allows moving away from the interests of legal certainty and stability of civil turnover. In fact, we are talking about the concept of "lesser evil", i.e. even if we assume that the issue of the validity of the bankruptcy creditor's claim will not be resolved in a positive way (the claim will not be included, or will be subordinated, or will later be excluded from the register of creditors' claims for one reason or another), globally procedural activity will bring only a useful result from the point of view of the principle of legality and standards of proof in bankruptcy cases, even to the detriment of the interests of procedural economy and legal certainty (bankruptcy proceedings are more or less closer to the search for objective truth than the general legal process, due to their higher social significance) ^[8].

The impact of the judicial act on the applicant's rights. The judicial act does not initially affect the rights and/or obligations of a person directly, therefore, the bankruptcy creditor should not have been involved in the case, but indirectly affects the amount of satisfaction of its claims.

Influence on the rights of persons (other than the applicant). Additionally, there is a certain collective interest of a certain civil law community of persons interested, on the one hand, in maximizing the replenishment of the bankruptcy estate (creditors), on the other - in minimizing the debtor's debts (subsidiary debtors), i.e. there is some indirect influence on the rights of an indefinite (but to be determined in the future) circle of persons (so-called "the interest of the competitive mass").

That is why other persons besides the applicant are also entitled to participate in the proceedings on such an application. The Law of 05/29/2024 also indicates that such persons even have the right to declare new arguments and present new evidence (paragraph 5, paragraph 12, Article 16 of the Bankruptcy Law). In other words, new arguments and evidence arise in the case not from the applicant, which does not fit into the construction of Article 311 of the APC of the Russian Federation.

Probably, if the applicant refuses the relevant application for any reason, such a refusal will not be automatically accepted, and the proceedings in the case will not be terminated. We can assume that other creditors or other persons who have the right to speak out in this dispute should be invited to become the procedural successor of the applicant (by analogy with the actions of the court when the applicant refuses in a separate dispute about challenging the debtor's transaction in a bankruptcy case) (see the definition of the SCES of the Supreme Court of the Russian Federation dated 03/17/2021 No. 302-ES20-199914 in case No. A19-14083/2015; Review of Judicial Practice of the Supreme Court of the Russian Federation No. 2 (2021), approved. By the Presidium of the Armed Forces of the Russian Federation on 30.06.2021).

The review procedure. It is necessary first to describe the procedure that existed before the adoption of the Law of 05/29/2024.

A judicial act is reviewed by a higher authority in an ordinary manner in compliance with the principle of consistency (appeal, cassation, supervision), in fact, by analogy with the revision used when filing a complaint by persons who did not participate in the case, about whose rights and obligations the judicial act was issued (Article 42 of the APC of the Russian Federation). At the same time, similarly, in cases where review proceedings have already been initiated in any instance, there are cases of double appeal, to which practice, for lack of a better one, seeks to apply the procedural form of Article 311 of the APC of the Russian Federation.

In other words, the revision procedure has its own variations:

(1) if the judicial act has not been appealed to the court of appeal, the complaint is filed with the court of Appeal (and then it is a matter of successive appeal);

(2) in cases where an appeal has been made and new evidence and arguments need to be presented, consideration should in any case be carried out only starting with the court of appeal, since the court of cassation does not have the authority to collect and evaluate evidence. It is in this case that a situation of double appeal arises. The specified interpretation of paragraph 24 of Resolution No. 35 was formulated by the Supreme Court of the Russian Federation (see definitions of the SCES of the Supreme Court of the Russian Federation dated 12/24/2015 No. 304-ES15-12643 in case No. A45-6961/2014, dated 10/3/2016 No. 305-ES16-7085 in case No. A40-157154/2014, dated 06/26/2017 No. 302-ES17-1318 in case No. A19-9813/2015).

The Supreme Court of the Russian Federation in situations of double appeal here also suggests, by analogy with Article 42 of the APC of the Russian Federation, to talk about the revision of the issued judicial act in relation to the norms on new or newly discovered circumstances (see the rulings of the Arbitration Court of the Volga Region dated 04/15/2019 in case No. A57-8849/2018, dated 10/17/2019 in case No. A65-3735/2019).

As we pointed out earlier, the reference to Article 311 of the APC of the Russian Federation in these clarifications is used only for the reason that the legislation does not know any other convenient procedural tool for reviewing its own judicial act, which at the same time has at least minimal signs of universality, except for Article 311 of the APC of the Russian Federation (except for correspondence proceedings in the CPC of the Russian Federation, which has absolutely no other grounds for cancellation by the court that issued it and narrow cases of application).

It should be noted that the political and legal reasons to apply here, by analogy, the procedural provisions of Chapter 37 of the APC of the Russian Federation (regarding the cancellation of its own act) are objectively absent, since the corresponding right of the court to cancel its act upon repeated appeal can be fixed in procedural legislation directly when described as a classic situation of double appeal (currently it is fixed in art. 312 of the CAS of the Russian Federation, which was previously fixed in Article 370 of the CPC of the Russian Federation, which became invalid), and when describing cases that do not fall under the construction of either an ordinary revision or a revision under Article 311 of the APC of the Russian Federation.

With the adoption of the Law of 05/29/2024, the procedure has changed and is assumed to be similar to the procedure described in relation to the revision of newly discovered and new circumstances.

The powers of the court. As part of this procedure, the court passes the situation through the "validity filter", which has its differences from the validity filter under Article 311 of the APC of the Russian Federation. If, under Article 311 of the APC of the Russian Federation, the very fact of the presence of newly discovered and new circumstances is sufficient to cancel the judicial act and re-examine the case, then here, in order to cancel the judicial act, it is necessary to prove not only the presence of new arguments and evidence of new circumstances. The court actually immediately assesses the reasonableness of such arguments, which is impossible when reviewing according to the rules of Chapter 37 of the APC of the Russian Federation.

Regarding the power of applicants (and other persons) to present new evidence, the following should be noted.

In accordance with paragraph 4 of paragraph 4 of the Plenum of the Supreme Court of the Russian Federation on new and newly discovered circumstances, the court should check whether the facts referred to by the applicant do not indicate the presentation of new evidence relevant to the circumstances previously investigated by the court. The presentation of new evidence cannot serve as a basis for reviewing a judicial act on newly discovered circumstances according to the rules of Chapter 37 of the APC of the Russian Federation.

This further indicates that the provisions on review under newly discovered and new circumstances are not suitable for the settlement of an extraordinary appeal.

A miscarriage of justice. It is important that a judicial act that does not directly affect the applicant's rights, based on the principles of legal certainty and stability, is canceled if and only if, in addition to significantly affecting the applicant's rights and interests, there are convincing arguments about the adoption of such an act in violation of the law ("validity filter").

Meanwhile, there are grounds for concluding that such a violation of the law does not always indicate a judicial error by the court.

Analyzing the cases proposed in paragraph 24 of Resolution No. 35, we must state that the Supreme Arbitration Court of the Russian Federation rightly proceeded from the fact that the assessment of evidence, in particular, by the criterion of reliability, as well as the assessment of the validity of insignificant transactions, usually fully fall within the competence of the court considering the case (cit: "the claim is unfounded due to the unreliability of evidence or the nullity of the transaction").

However, it is impossible to exclude cases when the court did not have the opportunity to conclude that the transaction was void (for example, there was no evidence in the case indicating signs of such invalidity) or that the evidence was unreliable (for example, there was no evidence contradicting them). In this case, it is wrong to talk about a miscarriage of justice.

It should be noted that the presence or absence of a judicial error for this procedural form is not of fundamental importance, since it is important to provide the "right to participate in the process", but not in itself (as in the case of Article 42 of the APC of the Russian Federation, of course), but provided convincing arguments that the judicial decision the act is unlawful. In fact, this "right to participate in the process" can be considered conditional.

It should be noted that when analyzing paragraph 12 of Article 16 of the Bankruptcy Law, we do not see any indication of the unreliability of evidence or the insignificance of the transaction, which indirectly allows us to conclude that the thesis about the possibility of canceling the judicial act is correct, both due to a judicial error and in the presence of other grounds, including newly discovered/new ones.

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The conducted assessment, the results of which are presented in this paper, allows us to conclude that the institute of extraordinary appeal is not typical and similar to the institute of appealing a judicial act using Article 42 of the APC of the Russian Federation, as well as the institute of revision under new and newly discovered circumstances in accordance with the provisions of Article 311 of the APC of the Russian Federation. It becomes obvious that judicial practice, while searching for a solution to a specific problem, has invented some kind of independent legal form, which, although it is to some extent a hybrid of these procedural forms, has a sufficient number of elements of independence and begins to spread to other legal relations.

3) Particular examples of the use of the procedural form of extraordinary appeal

It should be noted that in addition to appealing against judicial acts of grounds by arbitration managers, bankruptcy creditors and subsidiary debtors, they can be appealed by a person who does not have any status at all in the bankruptcy case. Transactions can also be challenged with its help.

So, in a similar way, a ruling on the approval of a settlement agreement may be appealed in the general legal process (paragraph 1 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated December 23, 2010 No. 63 "On certain issues related to the application of Chapter III.1 of the Federal Law "On Insolvency (Bankruptcy)" as amended by Resolution No. 35).

In 2014, the Supreme Arbitration Court of the Russian Federation, and then the Supreme Court of the Russian Federation, through the clarification of paragraph 24 of Resolution No. 35, allowed the right to appeal the judicial act-grounds by the defendant on the disputed transaction in the bankruptcy case (see Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 04/22/2014 No. 12278/13, definition of the SCES of the Supreme Court of the Russian Federation dated 09/29/2014 No. 302-ES14-3 in case No. A19-625/2012). It is from this case ("FTS v. Vasiliev") that researchers count the date of recognition of independence for the specified procedural form ^{[7, p. 115]}.

In 2021 The Supreme Court of the Russian Federation and the Constitutional Court of the Russian Federation allowed the possibility of appealing the judicial act of the foundation and the subsidiary debtor. Globally, at the moment, the rights of subsidiary debtors in a bankruptcy case are broader (for example, they can appeal against the actions/inaction of the arbitration manager – and this is the right that was first stated by the Supreme Court of the Russian Federation in the definition of the SCEC of 30.09.2021 No. 307-ES21-9176 in case No. A56‑17680/201765 in relation to subsidiary debtors), however, we will only stop the right to challenge judicial acts is the basis that was recognized by the Constitutional Court of the Russian Federation in Resolution No. 49-P of 11/16/2021 "In the case of checking the constitutionality of Article 42 of the Arbitration Procedural Code of the Russian Federation and Article 34 of the Federal Law "On Insolvency (Bankruptcy)" in connection with the complaint of citizen N. E. Akimova".

The Constitutional Court of the Russian Federation correctly emphasized that, by virtue of the direct instruction of paragraph 1 of Article 61.15 of the Law "On Bankruptcy, a person in respect of whom an application for subsidiary liability has been filed in the framework of a bankruptcy case has the rights and obligations of a person participating in a bankruptcy case. However, in fact, a situation arose that subsidiary debtors were deprived of a significant part of their rights due to the fact that, as a rule, applications for subsidiary liability are submitted much later than, for example, applications for challenging transactions, which is why potentially controversial issues have already been resolved by the arbitration court earlier, without the participation of such persons. At the same time, the right to review already issued judicial acts in the bankruptcy case for subsidiary debtors was not recognized by judicial practice, as a rule. The courts, in particular, pointed out that the judicial act-basis does not directly affect the rights and obligations of subsidiary debtors, which is why the provisions of Article 42 of the APC of the Russian Federation do not apply to such persons ^[8].

The Constitutional Court of the Russian Federation described in detail the legal status of subsidiary debtors and explained why, from the point of view of constitutionalism, it is critically important to grant them equal rights with other persons involved in the bankruptcy case, laying an unconditional basis for extending rights to subsidiary debtors in other disputes beyond the dispute on bringing to subsidiary liability ^[8].

Despite the fact that the right of subsidiary debtors to appeal a judicial act is actually essentially identical to the similar right of bankruptcy creditors, the Constitutional Court of the Russian Federation directly chose the institution of Article 42 of the APC RF to legitimize this right, which, in our opinion, is not correct, since the fundamental importance is not a procedural violation in the form of consideration a judicial act in the absence/non-involvement of a subsidiary debtor, and the opposability of one judicial act to the rights of persons who did not participate and could not participate in its consideration. At the same time, the Constitutional Court of the Russian Federation left the possibility of fixing a specific procedural mechanism.

In 2022, the Supreme Court of the Russian Federation allowed another situation of appealing a judicial act-grounds by a person not involved in the case. The clarification concerns a situation where the recoverer of enforcement proceedings cannot exercise his rights due to the initiation of bankruptcy proceedings against the debtor for an "overdue" debt to another creditor (see Review of Judicial Practice of the Supreme Court of the Russian Federation No. 2 (2022), approved. By the Presidium of the Armed Forces of the Russian Federation on 12.10.2022). Here, the Armed Forces of the Russian Federation similarly referred to the provisions of Article 42 of the APC of the Russian Federation.

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All of the above inevitably illustrates the above thesis about the uncontrolled spread of an imperfect procedural form to new legal relations, which is understandable from the point of view of the good goals of the rule of law. The purpose of legitimizing the subjective rights in question is to combat various kinds of unfair actions in bankruptcy proceedings, since both the creditor and the subsidiary debtor are interested in including only real debts in the register (see the definition of the SCES of the Supreme Court of the Russian Federation dated 08/23/2018 No. 305-ES18-3533 in case No. A40‑247956/2015).

However, at present, the question remains unresolved, on the basis of which procedural rules the courts will resolve the situations described in this paragraph (after the appearance of paragraph 12 of Article 16 of the Bankruptcy Law, which regulates only the leveling of the judicial act-grounds by the arbitration administrator or creditor).

This additionally indicates the ill-considered decision of the legislator to introduce clause 12 in Article 16 of the Bankruptcy Law.

4) Criticism of the previously prevailing model and the main alternative (objections)

The long-prevailing model, developed in 2012 by the Supreme Arbitration Court of the Russian Federation, assumes that a bankruptcy creditor/subsidiary debtor ("authorized person") has the right only to such an appeal, but not to file objections within the framework of a separate dispute in a bankruptcy case on the inclusion of claims based on such a judicial act in the register.

In addition to the obvious issues of violation of the principle of equality (such persons are deprived of one stage of the process, which means an additional attempt to obtain a judicial act in their favor), difficulties in restoring the time limit for appeal (this issue even became the subject of consideration by the Constitutional Court of the Russian Federation, see Resolution of the Constitutional Court of the Russian Federation dated 06/01/2021 No. 25-P "In the case of checking constitutionality the provisions of the second paragraph of the sixth part of Article 112 of the Civil Procedure Code of the Russian Federation in connection with the complaint of citizen S.M. Glazov"), some aspects of procedural economy (issues of notification and participation of all creditors), competence (consideration of bankruptcy issues in a general procedure), which are not considered in this article, the main doubts in science were based on the following.

The existing concept and the judicial practice implementing it proceed from an expansive interpretation of concepts such as prejudice and the binding nature of a judicial act-grounds (both approaches occur). Without going into the details of discussions on this issue now, we will only point out that we proceed from the fact that any judicial act has the property of relativity, and prejudice is permissible only in a dispute between the same persons (subjective limits). Separately, it is important to note that no judicial act can essentially be a legal basis for including or not including claims in the register, since such a basis is a sufficient set of circumstances indicating the validity of the claim, which, in fact (when objecting to the impossibility of excluding certain circumstances from the assessment process based on the establishment in another process) are bankrupt They must be re-evaluated by the court.

We should add that we have previously expressed the position that it is necessary to actually repeat and in-depth verification of the validity of the creditor's claims when it is included in the register, rather than in the general search process ^{[9, pp. 49-52; 10, p. 198;]}.

Despite the large number of clarifications of the Supreme Court of the Russian Federation on this issue, based on the principle of relativity of the validity of judicial acts ^{[11, p. 187]}, ordinary courts in practice actually ignore both this principle and the subjective limits of the validity of a judicial act in favor of the property of its obligation and the inadmissibility of reconsideration of "identical disputes" (see the resolution Arbitration Court of the Moscow District dated 12/29/2022 in case no. A40-134808/2021).

The main motive prompting the issuance of such judicial acts is the fear that at some point in legal reality there will be two mutually exclusive judicial acts, which, at the same time, is allowed in itself, including by higher judicial instances in relation to different situations (see Resolution of the Plenum of the Supreme Court of the Russian Federation No. 10, the Plenum of the Supreme Court of the Russian Federation RF No. 22 dated 04/29/2010 "On some issues arising in Judicial Practice in Resolving Disputes related to the Protection of Property Rights and Other Proprietary Rights"; Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 07/23/2009 No. 57 "On Some Procedural issues of the practice of considering cases related to non-fulfillment or improper fulfillment of contractual obligations", dated 07/12/2012 No. 42 "On some issues of dispute resolution related to surety"). This situation is also typical for foreign law enforcement ^{[12, pp. 2-9; 13, pp. 107]}.

Following other authors ^{[13, p. 104; 3, p. 61]}, we believe that the model of appealing a judicial act is not the only one, and even more correct. The hegemony of the principle of absolute opposition of judicial acts is unacceptable ^{[14, p. 62]}. An alternative to be understood and applied is the statement of objections by authorized persons in the framework of a dispute on the inclusion of "overdue" claims in the register. Of course, now its implementation is complicated by the changes made to the Bankruptcy Law by the Law of 05/29/2024, as a result of which the creditor's claims began to be considered by a judge alone without holding a court session and summoning persons involved in the bankruptcy case, as well as a general change in the procedural framework of the relevant right of the bankruptcy creditor. But globally, it is too early to write off this configuration in the scientific discussion.

The proposed idea allows us to observe the interests of procedural economy when granting interested persons the right to object to the claim under consideration ^{[15, pp. 8-9]}, since there is no need to challenge the initial judicial act-the basis.

The use of the objection mechanism was sometimes previously rejected by the courts and supporters of the concept of a separate appeal with formal reference to the provisions of clause 10 of Article 16 of the Bankruptcy Law, special in relation to the agro-industrial Complex of the Russian Federation, prohibiting objections to the composition and amount of claims in separate disputes about the validity of creditors' claims (including them in the register) if the claim is "overdue". Currently, this provision has been deleted (following the position of the doctrine ^{[16, p. 206; 15, p. 10; 17, p. 60]}).

In general, the logic of the inadmissibility of the statement of relevant objections could apply to the debtor and its founders, since they could directly or indirectly influence the results of the consideration of the dispute in a lawsuit, as a result of which a judicial act was issued-the basis, which was also pointed out by researchers ^{[17, p. 60]}. This approach was the basis for paragraph 23 of the draft Resolution No. 35:

"If the creditor's claim is confirmed by a judicial act that has entered into force, then the objections of the debtor or a representative of the founders (participants) of the debtor, a legal entity or a representative of the owner of the debtor's property, a unitary enterprise, regarding such a claim are not subject to consideration by the court, except for objections to the termination of this claim in connection with circumstances that occurred after the adoption of the judicial act (for example, in connection with the execution of a judicial act by the debtor), as well as on the expiration of the deadline for submitting the enforcement document for execution. The arbitration administrator and other creditors who have filed claims against the debtor may raise any objections regarding the specified claim, including the invalidity of the transaction on which the claimed claim is based.

As R. T. Miftakhutdinov points out, this draft proposed an explanation based on international legal experience in solving such problems, which provides for the relative force of judicial acts issued against this debtor without taking into account the interests of its creditors ^{[13, p. 108]}. R. T. Miftakhutdinov generally believes that the prevailing earlier decision did not adequately protect creditors of an insolvent debtor from the abuses of the latter, which is why it is necessary to expand the effect of the principle of relativity of judicial acts in bankruptcy" ^{[13, p. 104]}.

Separately, let's pay attention to the final of the specified point of the project:

"The adoption by an arbitration court considering a bankruptcy case of a judicial act based on the results of consideration of a claim confirmed by another judicial act that has entered into force is not a basis for reviewing this last judicial act due to new or newly discovered circumstances."

As can be seen, during the preparation of this draft, there were no problems in the simultaneous presence of two actually opposite judicial acts. Moreover, it was believed that there was no need even to revise the judicial act-the grounds in accordance with Article 311 of the APC of the Russian Federation – and there is a reasonable justification for this (in addition to doctrinal theses regarding relativity and subjective limits).

Thus, it is still not possible to execute a judicial act-basis in an ordinary manner (meaning enforcement proceedings) if a procedure has been introduced against the debtor: one of the consequences of the introduction of supervision is the suspension of the execution of enforcement documents on property penalties (paragraph 4, paragraph 1, Article 63 of the Bankruptcy Law). The consequence of the introduction of bankruptcy proceedings is the termination of execution of all enforcement documents (paragraph 6, paragraph 1, Article 126 of the Bankruptcy Law). Of course, in theory there is always the possibility of leveling a bankruptcy case, and then the judicial act-basis will again be enforceable and will again cease to affect the rights of the authorized person, since it will lose the corresponding status ^{[18, pp. 159, 165]}.

III. Criticism of the extension of the model of Chapter 37 of the Agro-industrial Complex of the Russian Federation to the right to review a judicial act-the basis

1) A historical digression

Recall that the proposals to frame the law from paragraph 24 of Resolution No. 35 in the review procedure for newly discovered circumstances have been heard for a long time and have been the basis for bills that were not initially adopted.

Thus, the draft Federal Law No. 598603-7 "On Amendments to the Federal Law "On Insolvency (Bankruptcy) proposed the following wording:

"If creditors believe that their rights and legitimate interests have been violated by a judicial act (including an act of a court of general jurisdiction and an arbitration court, as well as an act on the enforcement of an arbitration court decision) on which the claim filed in the bankruptcy case is based, these persons, as well as the arbitration manager, have the right to apply in accordance with the procedure established by procedural legislation a statement on the revision of the newly discovered circumstances of the said judicial act.

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All creditors and authorized bodies whose claims have been filed in the bankruptcy case or included in the register of creditors' claims, as well as the arbitration manager, have the right to participate in the consideration of this application, including to present new evidence and state new arguments that were not previously presented and were not stated during the initial consideration of the case. The repeated submission of such an application by the named persons on the same grounds is not allowed."

The proposal was submitted by the Armed Forces of the Russian Federation on the basis of Resolution of the Plenum of the Armed Forces of the Russian Federation No. 27 dated 11/27/2018.

The main disadvantage of this draft law, the Legal Department of the State Duma of the Federal Assembly of the Russian Federation called the absence of an indication of the appropriate basis in the provisions of Article 311 of the APC of the Russian Federation, and also referred to the existing tools of paragraph 24 of Resolution No. 35 (see the Conclusion of the PU of the State Duma of the Federal Assembly of the Russian Federation "On draft Federal Law No. 598603-7 "On Amendments to the Federal Law "On Insolvency (bankruptcy)" (first reading). It should be noted that similar amendments to the Bankruptcy Law were proposed later, in 2021, by the Government of the Russian Federation (see draft Federal Law No. 1172553-7 "On Amendments to the Federal Law "On Insolvency (Bankruptcy)" and Certain Legislative Acts of the Russian Federation"), but also were not implemented.

These proposals were adopted almost word for word and introduced by the Law of 05/29/2024, with the exception of the last paragraph on the right of persons involved in bankruptcy proceedings and in bankruptcy arbitration proceedings.

At the same time, a completely different approach prevailed in judicial practice: the courts directly pointed out the independence of the institution of revision of the judicial act-the basis and its differences from the provisions of Chapter 37 of the APC of the Russian Federation (see Review of Judicial Practice of the Supreme Court of the Russian Federation No. 2 (2020), approved. By the Presidium of the Supreme Court of the Russian Federation on 07/22/2020, the definition of the SCES of the Supreme Court of the Russian Federation dated 05/19/2020 No. 305-ES18-5193 (3) in case No. A41-35652/2017).

Moreover, the Supreme Court of the Russian Federation calls this procedure an "extraordinary appeal against erroneous recovery", within the framework of which it is possible to both bring new arguments and present new evidence, separately indicating that the entry into the case of persons filing such a complaint and wishing to provide new evidence, although it should be carried out in relation to the rules on the revision of a judicial act according to newly discovered circumstances in the court of appeal (see the definition of the SCES of the Supreme Court of the Russian Federation dated December 24, 2015 No. 304‑ES15-12643 in case No. A45‑6961/2014), but essentially such a newly discovered circumstance is not.

The indication now in paragraph 12 of Article 16 of the Bankruptcy Law on the need to apply for the cancellation of a judicial act under the rules of review for newly discovered circumstances contradicts both the legal position of the Supreme Court of the Russian Federation and the legal nature of the analyzed institutions.

2) Analysis of the disadvantages of the implemented model

As has been repeatedly pointed out, now the extraordinary appeal has ceased to be an appeal as such, since it has received a procedural framework in the form of an application for review of a judicial act under newly discovered and new circumstances, which, in the author's opinion, is incorrect for the following reasons.

Firstly, in the current paradigm, the subject of applications based on Chapter 37 of the APC of the Russian Federation is a person whose rights and obligations are directly affected. In the approach implemented by the Law of 05/29/2024, the range of such subjects is expanded to persons who initially should not have participated in the case, but due to the occurrence of the debtor's bankruptcy case received a conditional "right to influence the process".

This approach cannot be supported, because, as already described, the essence of the institution of Article 311 of the APC of the Russian Federation is that initially the court, considering a specific dispute, correctly assessed all the evidence, applied the correct rules of law in the correct interpretation and made a just decision. However, in the future, an extraordinary situation arose, which either revealed the missing factual circumstances, which in their entirety, when evaluated, could lead the court to a different conclusion, or so changed the legal circumstances (qualification of the transaction, act, legal norms or practice of their application) that, knowing about it, the court would also make a different decision.

But the extension of the rules of Chapter 37 of the Agro-industrial Complex of the Russian Federation to situations of revision of a judicial act-grounds will actually turn this institution from an extraordinary into a rather ordinary one, since creditors and arbitration managers often resort to this method of reducing debts of the bankruptcy estate. Moreover, the grounds they claim are much broader than the circumstances stated in Article 37 of the APC of the Russian Federation

Secondly, the rights and obligations of the subject of the application for review are directly affected by the court. The amendments introduced by the Law of 05/29/2024 destroy the established structure, since the rights and obligations of the subjects of extraordinary appeal are not directly affected by the judicial act, the impact is indirect: by reducing the claims included in the register and potentially increasing the share of a particular creditor based on the results of the distribution of the bankruptcy estate.

Thirdly, the classical description of the institution of revision based on newly discovered and new circumstances assumes influence only on persons involved in the consideration of a particular dispute (or persons who should have been involved in the case).

The content of the specified criterion is changing as a result of changes introduced by the Law of 05/29/2024. We are talking about paragraph 5, paragraph 12 of Article 16 of the Bankruptcy Law, according to which persons participating in the bankruptcy case and in the bankruptcy arbitration process of the debtor (i.e. persons not endowed with the status of applicants) have the right to participate in the consideration of the application, including to present new evidence and declare new arguments that were not presented and were not stated at the initial consideration of the case.

Here the peculiarity of the bankruptcy process is manifested, due to the fact that, by performing certain procedural actions, a particular creditor actually acts in the interests of the entire bankruptcy estate, the entire civil law communication of the participants in the bankruptcy case

We cannot exclude the fact that if the applicant decides to reject the relevant application, judicial practice will not extend to such a situation the approach of the Supreme Court of the Russian Federation to the procedure for accepting the creditor's refusal to challenge the transaction (procedural succession). It is not clear how such an approach (which is not devoid of its logic) will correlate with the essence of the institution of judicial act review in newly discovered and new circumstances.

Fourth, the validity filters used in the revision of Chapter 37 of the APC of the Russian Federation and in the revision of a judicial act are different grounds. In the first case, the very fact of the presence of newly discovered and new circumstances is sufficient to cancel the judicial act and re-examine the case. The judicial act-the basis, in accordance with the approaches developed in judicial practice, is canceled not only in the presence of new arguments and new circumstances. The court actually immediately assesses the reasonableness of such arguments, which is impossible when reviewing according to the rules of Chapter 37 of the APC of the Russian Federation. It is doubtful that in practice, paragraph 12 of Article 16 of the Bankruptcy Law will accept the validity filter characteristic of the revision under Chapter 37 of the Agro-Industrial Complex of the Russian Federation, because this will lead to the wholesale (and often unnecessary) cancellation of judicial acts.

It should be noted that in the literature, as the only reasonable argument in support of the application of the provisions of Chapter 37 of the APC of the Russian Federation to the revision of the judicial act- grounds (in addition to full consideration in the courts of all instances, which has already been taken into account), it is the idea of the validity filter ^{[7, p. 119]}, fixed by practice in the case "FTS v. Vasiliev" (see Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated 04/22/2014 No. 12278/13; definition of the SCES of the Supreme Court of the Russian Federation dated 09/29/2014 No. 302-ES14-3 in case No. A19-625/2012) in contrast to the design of the cancellation of judicial acts when filing a complaint in accordance with Article 42 of the APC of the Russian Federation.

In our opinion, this is not enough for the motivated application of the provisions of Chapter 37 of the APC of the Russian Federation, since, as indicated, the validity filters in these procedures are different. In any case, a suitable description of the validity filter could be fixed separately, within the framework of the description of an independent procedural form.

Fifth, it should be pointed out separately that it is unacceptable to present new evidence in proceedings under the rules of Chapter 37 of the APC of the Russian Federation. Thus, in accordance with paragraph 4 of paragraph 4 of the Plenum of the Supreme Court of the Russian Federation on new and newly discovered circumstances, the court should check whether the facts referred to by the applicant do not indicate the presentation of new evidence relevant to the circumstances previously investigated by the court. The presentation of new evidence cannot serve as a basis for reviewing a judicial act on newly discovered circumstances according to the rules of Chapter 37 of the APC of the Russian Federation.

This further indicates that the provisions on review under newly discovered and new circumstances are not suitable for the settlement of an extraordinary appeal.

Sixth, the issue of miscarriage of justice. The general logic of the revision of the judicial act-grounds allows us to conclude that the basis for its cancellation may be both errors of the court and other circumstances. Revision according to the rules of Article 37 of the APC of the Russian Federation, as indicated, as a general rule does not correct (and should not correct) ordinary errors of the court, which must be corrected institutionally. Now, judicial errors are actually equated to "other significant circumstances", which continues the vicious practice of legal positions that in some cases allow judicial errors to be eliminated through revision under Chapter 37 of the Agro-Industrial Complex of the Russian Federation.

The above clearly demonstrates the fact that the rules for reviewing a judicial act in newly discovered and new circumstances should not be applied to review a judicial act-grounds.

As indicated, only the fact that with the advent of paragraph 12 of Article 16 of the Law of 05/29/2024, the applicants had the opportunity to participate in the trial in the court of first instance (by virtue of part 1 of Article 310 of the APC of the Russian Federation) should be positively assessed.

Thus, we come to the conclusion that the use of the tools of Chapter 37 of the Agro-industrial Complex of the Russian Federation to regulate the right to review the judicial act-grounds is not correct. The described procedural institution is subject to revision as a new one, since it has all the criteria of independence; perhaps, building from scratch using a different procedural model that could take into account the applicable features of the revision tools for new and newly discovered circumstances, but not copy it and not apply it in inappropriate essential circumstances.

At the same time, it is interesting that in some cases, at first glance, the legislator does not use these norms more suitable for the application of the provisions of Chapter 37 of the Agro-industrial Complex of the Russian Federation.

We are talking about paragraph 8 of Article 100 of the Bankruptcy Law as amended by the Law of 05/29/2024:

"If the person entitled to file objections, after the inclusion of the creditor's claim in the register of creditors' claims, becomes aware of the circumstances indicating the unreasonableness of the creditor's claim or its other priority, such a person has the right to apply to the arbitration court considering the bankruptcy case with an application to exclude the creditor's claim from the register of creditors' claims or to change it the order of priority. Such an application may be submitted within three months from the moment when this person became or should have become aware of the existence of these circumstances. If this deadline is missed for a good reason, it can be restored by the arbitration court."

Of course, the described situation is not a classic example for applying the provisions of Chapter 37 of the APC of the Russian Federation, but some grounds for this can be found (lack of awareness of the person entitled to file objections and the court's awareness of the circumstances at the time of inclusion of the claim in the register). However, here the legislator chose the design of excluding the requirement from the register, which, rather, needs to be supported (since the requirement for inclusion in the register is considered solely by a judge, a ruling is made in the operative part, the case as such does not occur).

The above indicates that the legislator in some cases takes into account the specifics of the implementation of a particular right and selects appropriate procedural tools.

Conclusions

The institution of judicial review of newly discovered and new circumstances, of course, has its own history of development. Its modern appearance arose as a result of the extension of the rules on revision according to newly discovered circumstances to situations that essentially do not fit the definition of newly discovered circumstances (later they were legislatively separated into "new circumstances", preserving the commonality of the procedural form, but for some time the rules on revision according to newly discovered circumstances were applied to circumstances that are not) (see Resolution of the Constitutional Court of the Russian Federation dated 07/06/2018 No. 29-P "On the case of checking the Constitutionality of paragraph 1 of Part 3 of Article 311 of the Arbitration Procedural Code of the Russian Federation in connection with the complaint of the Albatros Limited Liability Company; Resolution of the Plenum of the Supreme Court of the Russian Federation dated 12/14/2000 No. 35 "On some issues arising during the consideration of cases related to with the realization by disabled people of the rights guaranteed by the Law of the Russian Federation "On Social Protection of Citizens Exposed to Radiation as a Result of the Chernobyl disaster"; Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated 02/14/2008 No. 14 "On Amendments to the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 12, 2007 No. 17 "On the Application of the Arbitration Procedural Code of the Russian Federation Of the Russian Federation when reviewing judicial acts that have entered into force due to newly discovered circumstances").

But if the above-described situation can be characterized as a stage of the natural development of the institution following the development of public relations and emerging needs for new regulation, then there are also cases when the design of revision for new and newly discovered circumstances covers, in principle, the lack of procedural tools to protect the right, for example, cases of correction of a judicial error made in a resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation (see Resolution of the Constitutional Court of the Russian Federation No. 5-P dated 02/03/1998 "On the case of checking the constitutionality of Articles 180, 181, paragraph 3 of Part 1 of Article 187 and Article 192 of the Arbitration Procedural Code of the Russian Federation"); cases of correction of violations specified in Part 4 of Article 288 of the APC of the Russian Federation, admitted by the cassation court when adopting a judicial act; cases of double appeal, as well as the case of extraordinary appeal described in this article.

At the same time, the cases described, including in this article, of expanding the grounds for the application of this institution are just private manifestations of the general vector of expanding the subjective limits of the right to judicial protection and, at the same time, increasing the depth of intrusion and exceptions from the principle of legal certainty. Both of these trends illustrate nothing more than a movement towards achieving the goal of the administration of justice as such – the idea of protecting law and social justice, in which it becomes impossible to preserve a formally legitimate and reasonable decision, moving towards the interests of legality more than towards legal certainty.

Such a number of appeals to the institute of revision not only at the level of judicial practice, but also at the level of legislator and even scientific research does not allow us not to think about some degree of universality of this procedural form, as well as even about its implicit existence in extrajudicial procedures and, in principle, about the idea of universality of the procedural form as such.

However, at present, in the form in which the institution of judicial review of newly discovered and new circumstances exists today, it is premature to talk about the universality of this procedural form. In this regard, we cannot agree with the proposal of some researchers to consider the institution of revision as a universal means of protecting creditors' rights ^{[7, p. 127]}.

In practice, the idea of universality leads to the uncontrolled use of institutions by analogy, without taking into account the essence of relations, based on purely practical interests of filling the gap. It is necessary to say that the procedural form, which has a sign of universality, can be used by analogy for similar situations and can fill in the gaps, helping in the realization of the right to judicial protection (and in this part we can give examples of the expansion of the construction of paragraph 24 of Resolution No. 35). But the institution of Article 311 of the APC of the Russian Federation, unfortunately, is not always used in similar situations, but is used under the auspices of the need to eliminate "any" judicial error.