DECISION OF THE SUPREME COURT OF THE RUSSIAN FEDERATION

of October 10, 2012 No. AKPI12-1203

On behalf of the Russian Federation

The Supreme Court of the Russian Federation in structure:

judge of the Supreme Court of the Russian Federation Zaytsev V. Yu.,

in case of S. A. secretary,

with participation of the prosecutor Goncharova N. Yu.,

having considered in proceeding in open court civil case according to the statement of E. about recognition partially invalid Item 28 of Administrative regulations on execution of the state function of control and supervision of observance of provisions of the migratory legislation of the Russian Federation by foreign citizens and persons without citizenship and of observance of rules of attraction by employers, customers of works (services) of foreign workers to the Russian Federation and uses of their work approved by the order of the Ministry of Internal Affairs of the Russian Federation and the Federal Migration Service of April 30, 2009 N 338/97,

established:

the order of the Ministry of Internal Affairs of the Russian Federation and the Federal Migration Service of April 30, 2009 N 338/97, registered in the Ministry of Justice of the Russian Federation on June 9, 2009, registration number 14037, is approved Administrative regulations on execution of the state function of control and supervision of observance of provisions of the migratory legislation of the Russian Federation by foreign citizens and persons without citizenship and of observance of rules of attraction by employers, customers of works (services) of foreign workers to the Russian Federation and uses of their work (further - Administrative regulations). According to Item 1 of Administrative regulations it determines terms and the sequence of actions (ministerial procedures) when carrying out: checks of observance by foreign citizens and stateless persons of statutory rules of entry into the Russian Federation, departure from the Russian Federation, the mode of stay (residence) in the Russian Federation, rules of migration registration, procedure of labor activity, transit through the territory of the Russian Federation, and also behind observance by legal entities and citizens who have obligations connected with the invitation of the foreign citizen to the Russian Federation and (or) its stay in the territory of the Russian Federation, rules and (or) procedure for execution of the specified obligations; the inspections concerning legal entities which are carried out by territorial authorities of the Federal Migration Service (further - FMS of Russia) and their structural divisions, regardless of patterns of ownership (including the foreign companies, their branches and representations) and the individual entrepreneurs attracting (allowing in any form) to performance of works or rendering services or otherwise the foreign citizens using work, for the purpose of control of compliance of the legal relationship arising between foreign citizens and the specified organizations or individual entrepreneurs, to requirements of the legislation of the Russian Federation in the field of migration; checks of observance by the physical persons who are not the individual entrepreneurs and attracting (allowing in any form) to performance of works or rendering services or otherwise using work of foreign citizens, requirements of the legislation of the Russian Federation in the field of migration; the joint inspections which are carried out by the divisions of system of FMS of Russia enshrined as contractors in the corresponding plans of checks which competence includes conducting these checks, the law-enforcement bodies of the Russian Federation enshrined as contractors in the corresponding plans of checks and the public authorities equipped with functions on control and supervision in the established field of activity. Item 28 of Administrative regulations provides that officials of system of FMS of Russia, representatives on the edition of the order about conducting check, are: chiefs of territorial authorities of FMS of Russia and their deputies, chiefs of structural divisions of the territorial authorities of FMS of Russia performing activities for the line of immigration control and external labor migration and their deputies.

E., being the individual entrepreneur, appealed to the Supreme Court of the Russian Federation with the statement for recognition of Item 28 of Administrative regulations invalid since August 1, 2011 regarding investment of chiefs of structural divisions of the territorial authorities of FMS of Russia performing activities for the line of immigration control and external labor migration and their deputies with powers on the edition of the order about conducting check. In the statement it is specified that the disputed regulation does not correspond to the Federal Laws of July 25, 2002 N 115-FZ "About legal status of foreign citizens in the Russian Federation" and of December 26, 2008 N 294-FZ "About protection of the rights of legal entities and individual entrepreneurs when implementing the state control (supervision) and municipal control" which grant the right of the edition of orders about conducting checks to heads of state control (supervision) bodies and their deputies. To chiefs of structural divisions of the territorial authorities of FMS of Russia performing activities for the line of immigration control and external labor migration, and their deputies by the federal legislator such right it is not granted. The administrative regulations in the disputed part break protection of its rights as the citizen performing business activity without formation of legal entity during the state migratory control (supervision) as illegally grants the right to persons who are not heads of state control (supervision) bodies and their deputies to organize conducting checks of subjects of business activity that does not correspond to one of the basic principles of protection of the rights of legal entities, individual entrepreneurs when implementing the state control (supervision), namely to the principle of conducting checks according to powers of state control (supervision) body, his officials. Such checks according to the order of the officials who do not have appropriate authority concerning it were carried out.

In judicial session the representative of the applicant CH.D. supported the declared requirement and asked about its satisfaction.

The representative of the Ministry of Internal Affairs of the Russian Federation B., representatives of FMS of Russia of O., D.D., R. and S. V. with the statement of E. did not agree and asked to refuse its satisfaction, referring to the fact that the disputed instruction does not contradict the regulatory legal acts having big legal force and does not violate the rights of the applicant.

The representative of the Ministry of Justice of the Russian Federation of Ch. T. believed that the requirement of the applicant is subject to satisfaction as the possibility of approval of the order (order) on conducting check by the head of the structural unit of territorial authority of FMS of Russia, his deputy is not provided by the legislation of the Russian Federation.

Having listened to explanations of representatives of persons participating in case and having studied case papers, having heard the conclusion of the prosecutor of the Prosecutor General's Office of the Russian Federation Goncharova N. Yu., the applicant asking the requirement to satisfy, the court finds the statement of E. subject to satisfaction on the following bases.

According to article 29.2 of the Federal law "About Legal Status of Foreign Citizens in the Russian Federation" federal state control (supervision) in the field of migration includes federal control (supervision) of stay and residence of foreign citizens in the Russian Federation and federal state control (supervision) of labor activity of foreign workers. Items 1, fix 2 articles 32 of the specified Federal Law that federal state control (supervision) of labor activity of foreign workers is in the territory of the Russian Federation exercised by authorized federal executive bodies (further - state control (supervision) bodies according to their competence according to the procedure, established by the President of the Russian Federation or the Government of the Russian Federation. To the relations connected with implementation of federal state control (supervision) of labor activity of foreign workers in the territory of the Russian Federation, employers

customers of works (services), and to the relations connected with execution by legal entities, individual entrepreneurs of the obligations assigned to them as on siding (inviting) apply provisions of the Federal Law "About Protection of the Rights of Legal Entities and Individual Entrepreneurs when Implementing the State Control (Supervision) and Municipal Control" taking into account features of the organization and conducting the checks established by Items 3 - the 10th this Article.

According to Item 1 of article 2 of the Federal law "About Protection of the Rights of Legal Entities and Individual Entrepreneurs when Implementing the State Control (Supervision) and Municipal Control" the state control (supervision) acknowledged the activities of authorized bodies of the government (federal executive bodies and executive bodies of subjects of the Russian Federation) directed to the prevention, identification and suppression of violations by legal entities, their heads and other officials, individual entrepreneurs, their authorized representatives of the requirements established by this Federal Law, other Federal Laws and other regulatory legal acts of the Russian Federation, the laws and other regulatory legal acts of subjects of the Russian Federation accepted according to them by means of the organization and conducting checks of legal entities, individual entrepreneurs, acceptances of stipulated by the legislation measures of the Russian Federation for suppression and (or) elimination of effects of the revealed violations, and also activities of the specified authorized bodies of the government for systematic observation of execution of mandatory requirements, the analysis and forecasting of condition of execution of mandatory requirements when implementing activities by legal entities, individual entrepreneurs.

Owing to part 1 of article 14 of the called Federal Law it is performed based on the order or the order of the head, the deputy manager of state control (supervision) body, body of municipal control. Granting of power on the edition of the order (order) on conducting check concerning legal entities and individual entrepreneurs of heads and deputy managers of state control (supervision) bodies follows also from provisions of part 12 of Article 9, to part 8 of Article 10, of part 4 Articles 12, of part 2 Articles 16, of Item 3 of article 18 of the specified Federal Law.

By the regulations on the Federal Migration Service approved by the order of the Government of the Russian Federation of July 13, 2012 N 711, it is determined that the FMS of Russia is the federal executive body performing functions on development and realization of state policy and normative legal regulation in the field of migration, law-enforcement functions, functions on federal state control (supervision) and provision (execution) of the state services (functions) in the field of migration. Implementation of federal state control (supervision) in the field of migration belongs to one of the main objectives of Service. The FMS of Russia performs the activities directly and (or) through the territorial authorities at the district, interregional levels and in subjects of the Russian Federation, the foreign device, and also other organizations and divisions entering its system (Items 1, 2.7, 5).

Being body of federal state control (supervision) in the field of migration, the FMS of Russia shall observe the legislation of the Russian Federation in the specified sphere which as it was already noted, gives the right of the edition of the order or order on conducting check of legal entities and individual entrepreneurs only to heads, deputy managers of state control (supervision) bodies, but not heads, deputy managers of structural divisions of such bodies. Therefore, chiefs of structural divisions of the territorial authorities of FMS of Russia performing activities for the line of immigration control and external labor migration and their deputies have no right to publish orders or orders on conducting check of legal entities and individual entrepreneurs in the field of migratory control.

Availability at the called officials of powers on hearing of cases about the administrative offenses provided by Articles 18.8 - 18.10, 18.15 - 18.18, 19.15 - 19.18, 19.27 Codes of the Russian Federation on Administrative Offences, does not testify to legality of Administrative regulations in the disputed part as the Federal Law "About Protection of the Rights of Legal Entities and Individual Entrepreneurs when Implementing the State Control (Supervision) and Municipal Control" and the Code of the Russian Federation on Administrative Offences have different objects of legal regulation.

Taking into account the Ministry of Internal Affairs of Russia and FMS of Russia stated arguments of representatives about legality of the disputed instruction of Administrative regulations are insolvent.

According to part two of article 253 CCP of the Russian Federation, having determined that the disputed regulatory legal act or its part contradicts the Federal Law or other regulatory legal act having big legal force, the court recognizes regulatory legal act invalid completely or in part from the date of its acceptance or other time specified by court. As before decision of court the Administrative regulations were applied and on its basis checks of subjects of business activity in the field of migratory control were performed, it is subject to recognition invalid in the disputed part from the date of the introduction of the judgment in legal force. Being guided by Articles 194 - 199, 253 CCP of the Russian Federation, the Supreme Court of the Russian Federation

solved:

statement of E. satisfy.

Recognize invalid from the date of the introduction of the judgment in legal force Item 28 of Administrative regulations on execution of the state function of control and supervision of observance of provisions of the migratory legislation of the Russian Federation by foreign citizens and persons without citizenship and of observance of rules of attraction by employers, customers of works (services) of foreign workers to the Russian Federation and uses of their work approved by the order of the Ministry of Internal Affairs of the Russian Federation and the Federal Migration Service of April 30, 2009 N 338/97, regarding investment of chiefs of structural divisions of the territorial authorities of FMS of Russia performing activities for the line of immigration control and external labor migration their deputies power on the edition of the order about conducting check of legal entities and individual entrepreneurs in case of control of execution of requirements of the migratory legislation of the Russian Federation.

The decision can be appealed in Appeal board of the Supreme Court of the Russian Federation within a month from the date of its production by court in the final shape.

Disclaimer! This text was translated by AI translator and is not a valid juridical document. No warranty. No claim. More info