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  • Значение индивидуализации иска для апелляционного обжалования: комментарий к определению Верховного Суда РФ от 24.12.2019 № 305-ЭС19-18275

Article

Значение индивидуализации иска для апелляционного обжалования: комментарий к определению Верховного Суда РФ от 24.12.2019 № 305-ЭС19-18275

Фокин Е. А.

The subject of this article is the procedural issues that arose in the case of the Moscow Commercial Court No. A40-235720/2018. This dispute actualized several discussions of legal science, which were previously considered as having no intersection points: individualization of the claim, authority of the appellate court and cooperation between the court and the parties. The doctrine and practice have not yet developed a consensus on one of the most long-running issues of procedural law: what if the plaintiff proved a violation of his right, but was mistaken in choosing a method of defense? In the commented case this problem arose in a new form. So, the key question was the actions of the appellate court, if during the verification of the judicial act the erroneousness of the method chosen by the plaintiff to protect the violated right (and, accordingly, the satisfaction of the claim with this method of protection) was established. The Supreme Court of the Russian Federation took a rather radical position regarding the absolute impossibility of canceling a judicial act on the grounds of the erroneous choice of a method of protecting a violated right. But this position, in turn, entailed new problems associated with the general ambiguity of the algorithm of practical actions of appeal in the situation under consideration. This article is an attempt to evaluate the approach of the Supreme Court of the Russian Federation both from the point of view of the theory of procedural law, and from the point of view of already existing approaches of judicial practice.