К вопросу о праве дачи заключения по делу органом власти в арбитражном процессе

Abstract

The conclusion of the authority in the arbitration process is a new institution of arbitration procedural law. The possibility of giving an opinion by an authority in the arbitration process is based on the legal position of the Supreme Court of the Russian Federation. The author examines the institution of opinions through a number of identified inconsistencies, signaling that the issuance of an opinion should be established as a general rule in the arbitration process. This is a discrepancy in the line of correlation with special norms that allow the authority to give an opinion on the case (against the background of the absence of a general norm, the authority gives an opinion in the arbitration process only in cases involving a foreign state); a discrepancy in the line of correlation with the powers of other entities occupying a similar procedural position (the right to give an opinion in the arbitration process was vested with the prosecutor); inconsistency in the line of correlation with the model of regulation of similar relations (giving an opinion is provided for in civil proceedings and in administrative proceedings); inconsistency in the line of completeness of the competence of the authority itself (the authority can initiate the process, but it cannot enter into it to give an opinion); inconsistency in the line of interchangeable forms of participation in the case of bodies used in practice the authorities (the inability to give an opinion entails the involvement of authorities as third parties without independent claims on the subject of the dispute).