On the Temporal Problems of Implementing an Extraordinary Method of Protecting the Rights of Bankruptcy Creditors

Abstract

Introduction. The abolishment of a judicial act, which has entered into legal force, especially after a significant period of time, may occur in only exceptional cases. Otherwise, it contradicts the ap- proaches of the European Court of Human Rights and the Constitutional Court of Russia to the general requirement for legal certainty as regards res judicata. Exceptional cases include those relating to ensuring the right to a fair trial. The past judicial enforcement experience in modern Russia has shown that bankruptcy credi- tors, who believe that their rights have been violated by a judicial act, on which a claim filed by another person in a bankruptcy case is based, previously did not have any procedural defense mechanism. That was the case until one was introduced that would allow them to appeal such a judicial act if they believed that the claim, filed on its basis in a bankruptcy case, was based on an invalid transaction or lacks foundation due to the unreliability of evidence. This is so even in situ- ation where these judicial acts may have been adopted in cases in which they did not participate. The current judicial practice, however, shows that it is often impossible for them to protect their rights due to the incorrect understanding of the rules for calculating and/or restoring the term of appeal, as established in parts 1 and 2 of article 259 of the Code of Arbitration Procedure of Russian Federation. Theoretical Basis. Methods. The methodological basis of the work was the dialectical method. Such general scientific, private scientific legal and special methods of scientific knowledge inherent in the procedural sciences as the analysis and the synthesis, induction and deduction, dogmatic, comparative legal, and teleological methods, as well as the analysis and the generalisation of judicial practice have been used. Results. The article highlights the three most common erroneous, in the author’s opinion, approaches of courts to calculating and/or restoring the term of appeal. Discussion and Conclusion. Based on the results of the evaluation of the erroneous approaches, four major claims are formulated against them. These are based on the interpretation of the norms of parts 1 and 2 of article 259 of the Code of Arbitration Procedure of Russian Federation which corresponds to the tasks and principles of judicial proceedings in arbitration courts. The claims are based on the explanations of the Supreme Court of Russia related to the issue under consideration, its conclusions on specific cases, as well as the provisions of the decisions of the lower supervisory instances which deserve support. On this basis, the most realistic options for correcting judicial practice are indicated, which are absolutely necessary to ensure the right to a fair trial.