A thorough examination of the audio recording of the court hearing allowed to reveal the grounds for further cancellation of the decision issued by the court of first instance.
The procedural law of Russia has established a rule on observance of secrecy of judge’s conference. When issuing a resolution on the case the meeting is held in a separate room designated for such purposes and only among the judges taking part in the consideration of the case. Any violation of such rule will be served as a ground for cancellation and/or alteration of the resolution passed by the court of first instance. In practice, however, it happens extremely rarely when this ground is used for cancellation of court decisions since it seems very complicated to establish and then prove a fact of breach of secrecy of judge’s conference.
The specialists of this firm, having thoroughly perused an audio-recording of the court hearing, managed to reveal and prove in the appeal court the fact that the violation of secrecy of judge’s conference by the chairman of judges of court of first instance took place. The fact of telephone negotiations regarding the issues related to the case in question was established at the time when the judges were gathered in the conference room. The court of appeal instancxe, having annulled the decision of the court of first instance, considered the case in accordance with the rules of court of first instance.
This allowed the lawyers of PRESIDENT CONSULT to add certain new evidence to the case of our client confirming its position which played a crucial role when issuing a decision under the case in his favour. In the event the case was continued to be considered in accordance with the rules of the second instance, it would be rather complicated to provide new evidence to the case.
Within the process of divorce, the step-father attempted to claim back the monetary funds from his stepdaughter which had been earlier deposited by him to her bank card as a support for purchase of an apartment. These funds have been further qualified by the step-father as an unjustifiable enrichment. The stepdaughter addressed the company PRESIDENT CONSULT seeking the protection of her rights following the fact that the court of first instance passed a resolution not in her favour.
The complexity of the case was caused by the fact that by that moment the court practice was not in favour of our client. In accordance with the court resolutions, the monetary funds transferred to the bank account of the physical person by another physical person shall be recognized as an unjustifiable enrichment of the recipient of money and may be demanded by the sender of such funds via court, save for the cases when the basis for transfer of funds is duly testified. The burden of proof that the grounds for receiving of monetary funds existed indeed in such cases is imposed on the defendant.
In order to protect the interests of our client we were supposed to prove the fact that the step-father had gifted the monetary funds although this fact was denied by him. The gift agreement between the step-father and step-daughter has not been signed, and the testimonial witness made by the mother of our client was not taken in consideration by the court of first instance.
By virtue of deep and personal examination of the case, we were able to focus the attention of the appeal court on actual circumstances of the life of our client in the family of her mother and step-father which had not been taken into consideration by the court of first instance and which were subject to investigation when passing a resolution on the case. We succeeded in convincing the court of second instance that the fact of gift took place indeed, and that the gift agreement is missing namely due to the fact that the relations among the family members were based on trust and that the monetary funds were transferred as support in purchasing of an apartment. And, initially, there were no obligations pertaining to return of the monetary means in question. Moreover, the step-father had never advanced any claims on repayment of the money during quite a lengthy period of time as of the date of the money transfer. These claims emerged only following the divorce with the mother of our client.
The court of the second instance has examined the actual circumstances of life of our client in her mother’s family and has taken the witness evidence of her mother into consideration as well. Based on the entire scope of evidence submitted for review, the court, including but not limited to the investigation of the formal side of the issue, came to conclusion that the assistance rendered to our client by her step-father and mother was of an in-gratis character.
The court of second instance accepted the position of our client and refused to satisfy the claims advanced by her step-father. Currently the court resolution has come into force.
Within the framework of an arbitration case, this company represented the interests of the legal party, - defendant on the case of debt recovery in connection with payment for the legal services on transfer of the land plot located in the Leningrad region from the agricultural category of the land plots to the production category of land plots. The debt which was subject to recovery amounted to 15 millions of Rubles.
The defendant failed to recognize the claim – as a basis for its arguments he mentioned that the disputable agreement for rendering legal services was backdated, following the resignation date of the general director of the defendant who had signed this agreement in order to cause damage to the defendant. The latter also insisted on lack of evidence demonstrating the direct participation of plaintiff in rendering services envisaged by the agreement.
Earlier there already had been an arbitration court case pertaining to the recovery from the plaintiff of the monetary funds in favour of a legal entity involved by the plaintiff for the purpose of actual fulfillment of services envisaged by the plaintiff’s agreement with out client. The sum of recovery amounted to 100 thousand of rubles.
During the hearing of case the floor was given to a witness, former general director of the defendant.
Based on the objective evidence of the witness as well as other evidence on the case collected by the lawyers of this company, the arbitration court of the first instance dismissed the case having recognized the disputable agreement as a fraudulent transaction, i.e. a transaction entered into without an intention to create corresponding legal consequences. A fraudulent transaction is not regarded as a legal ground for satisfaction of claims on recovery thereunder.
Appellation court, while considering a plaintiff’s complaint regarding such court decision, did not agree with the court of first instance pertaining to the conclusion on fraudulent nature of the transaction taking into account the fact that the purpose of works stipulated by the disputable agreement was reached and, therefore, the Appellation Court cancelled the decision of the court of first instance.
The specialists of PRESIDENT CONSULT, having used the evidence of the case and collected information, guaranteed the protection of interests of client of our company having proved within various court proceedings that based on the comparison of the value of land plot and the amount of debt to be recovered under the agreement, the fulfillment by the defendant of the agreement with the plaintiff in full amount would result in deprivation of the entire property of the defendant and would consist an abuse of right from the side of the plaintiff. Furthermore, the materials on the case did not contain any evidence on actual rendering of services by the plaintiff towards the defendant for the amount exceeding one hundred thousand rubles which constituted the value of services actually rendered to the defendant in connection with the transfer of the land plot from one category to another.
The Appellation Court had taken the above-stated arguments into consideration and satisfied the claims advanced by the plaintiff only in the part of recovery of two hundred thousand rubles (one hundred thousand rubles is the amount of actual value of rendered services plus one hundred thousand of rubles is the amount of penalty associated with the deferral of execution) from the defendant.
Such settlement of dispute is indeed regarded as fair.
A resident of Saint-Petersburg addressed the company PRESIDENT CONSULT with a request to assist her in evidencing her rights for heritage. The marriage of her parents was not properly registered. In compliance with the rules of Marriage and Family Code of the Russian Federation valid at the time of her birth, the entry about her father in the birth certificate was made upon her mother’s statement (her mother’s surname was indicated as her father’s surname, name and patronymic name were stated in accordance with mother’s indication as well). Following some years after a birth of daughter, the relations between parents have ceased, her father was gone to Moscow where he had been living until the day he died in December 2013. Her mother died in the year 2008. Actually her father recognized her as his daughter, kept up the relations with her and supported her financially. He was planning to register his paternity legally, but a sudden death in a car accident intervened into his plans. There was no documentary and/or material evidence left that would have confirmed his intention to recognize his paternity rights. After her father’s death there was a three-room residential apartment left in Moscow, which had been owned by him in accordance with the ownership title – the rights for this apartment had been claimed by the mother of the estate-leaver, an only legitimate heir at that moment. The estate-leaver left no testament whatsoever. The mother of the estate-leaver refused to recognize the inheritance right of our client as well as any family relationships with her, notwithstanding the fact that when her son was alive she treated her as her granddaughter.
A statement of claim on establishment of recognition of paternity and recognition of the right for inheritance was submitted by PRESIDEnt CONSULT lawyers at the place of opening of a heritage case at Babushinskiy District Court of the city of Moscow. Simultaneously with submission of statement of claim, an application requesting a holding of DNA analysis was filed (biological materials of the estate-leaver were kept in the mortuary where the autopsy was performed).
The legal side of the situation was complicated by the fact that in accordance with the position of the Supreme Court of the Russian Federation stated in the Regulation of Plenum as of 1996, the norm contained in Article 48 of the Marriage and Family Code of the Russian Federation is applied to the process of establishment of paternity of children born as of 1968 until 1996. Pursuant to this norm, the fact that a deceased person recognized his paternity or not, is subject to evidence and not the fact of child of body of this very father. This legal norm does not provide for carrying out a DNA analysis, since a result thereof can not prove or refute a fact of recognition of paternity right. As noted above, an actual difficulty of the situation was created by absence of any documentary and/or material evidence of paternity and recognition thereof of her father.
Certain witness evidence of people who knew the parents of plaintiff for quite a long period of time was presented in court as proof of recognition of paternity. Moreover, the court has satisfied the application on carrying out a DNA analysis; such expertise was held and confirmed that the plaintiff is the daughter of the estate-leaver. Taking into account the evidence presented within the case process and the result of a DNA expertise, the court satisfied the advanced claims on establishment of the paternity which served as a ground for further recognition of title of our client for a heritage.
Mediation and Negotiation
The founders of a Russian legal entity which has been successfully operating in the market of health-care products were two physical persons. Their stakes in the company upon its foundation were equal. As time passed by, one of the two founders decided to withdraw from business since their ideas and views as regards further business development became different. However, they failed to reach an agreement on the value of stake due to be paid to the participant withdrawing from the company. The remaining participant was of the opinion that his part in the development of the business was far more significant and valuable and that mainly due to his efforts their common business became a success. Furthermore, a payment of the sum requested by the participant withdrawing from the business would actually have meant a termination of the company’s business activity.
The participants of the company addressed PRESIDENT CONSULT with a request to conduct relevant negotiations.
Following the examination of information and documentation provided by the parties, including various financial documents, the specialists of our firm have conducted a set of most complicated multistage negotiations along with representatives of both parties. As a result, the parties have settled on a fair value of stake for each of the parties and agreed that a payment for a stake to the party which intends to leave the business would be extended in such a way as not to jeopardize the company’s business. Consequently, the successful business was kept intact and the interests of the participants of the negotiations were satisfied based on the principles of rationality and justice.