On the Issue of Jurisdiction of Disputes in which one of the Parties is a Multifunctional Center for the Provision of State and Municipal Services

Yurkova Ol'ga Aleksandrovna Postgraduate, Department of Administrative Law, Moscow University of the Ministry of Internal Affairs of Russia named after V.Ya. Kikotya 117437, Russia, Moscow, Akademika Volgina str., 12 79688786169@ya.ru Other publications by this author

The Multifunctional Center for the Provision of State and Municipal Services (MFC) is currently the most popular and popular way for citizens to apply for state and municipal services. An alternative to contacting the MFC is the direct appeal of a citizen to the state or municipal authority providing this service.

The MFC organizes its activities using the principle of "one window", which, in accordance with Article 15 of Federal Law No. 210 "On the organization of the provision of state and municipal services" means that the provision of state or municipal services is carried out after a single request from the applicant with a corresponding request for the provision of state or municipal services or request, and interaction with the authorities public services, or bodies providing municipal services, is carried out by a multifunctional center without the participation of the applicant in accordance with regulatory legal acts and an agreement on interaction ^[4].

The activity and interaction of the MFC, which actually provides the required public service without a citizen contacting the state body itself, is carried out by concluding an agreement between the MFC and this state body, which saves the citizen from having to go to this state or municipal body.

Yu.A. Vishnevskaya and A.V. Pisarev note in their work that 96% of the population is already covered by the services of the MFC. The most popular and popular services among the population have been transferred to the MFC – registration, registration of real estate rights, maternity capital, registration of internal and foreign passports, social services, many registry office services, etc. Depending on the region, the number of MFC services varies from 150 to 250, and the institutions themselves provide both federal, regional and municipal public services ^{[10, pp.12-14]}.

At the same time, due to the legal personality and legal capacity of the MFC as an institution that is a subject of legal relations, a number of questions arise regarding its independence, autonomy and ability to bear responsibility provided for by law. The issues of the legal status of MFC institutions require detailed study and reflection. In a number of articles, we have repeatedly stressed this issue, and in the light of the above-mentioned conclusion of agreements between the MFC and various executive authorities, the issue of independence and autonomy of the institutions of the MFC, and, as a result, the ability to independently bear responsibility, requires scientific and theoretical justification. Obviously, the key to solving this problem lies in the legal definition of the legal status of the MFC.

By its organizational and legal form, the MFC is a state autonomous institution, that is, a subject of civil law. According to paragraph 1 of Article 123.22 of the Civil Code of the Russian Federation, a state or municipal institution may be a state-owned, budgetary or autonomous institution ^[3].

According to Part 1 of Article 2 of Federal Law No. 174 "On Autonomous Institutions", an autonomous institution is a non-profit organization established by the Russian Federation, a subject of the Russian Federation or a municipal entity to perform works, provide services in order to exercise the powers of state authorities provided for by the legislation of the Russian Federation, the powers of public authorities of the federal territory, the powers of local self-government bodies in in the fields of science, education, healthcare, culture, mass media, social protection, employment, physical culture and sports ^[6]. Considering that the MFC is engaged in the provision of state and municipal services in accordance with federal law, it is obvious that it should be an autonomous institution.

At the same time, there is a serious problem of the independence of the functioning of the MFC as a subject of legal relations, which generates a certain conflict. The fact is that the MFC does not provide independent public services to the applicant, the center is only an intermediary between the state and the citizen, that is, the legal regulation of the MFC is determined to a greater extent by federal law No. 210. Such legal regulation cannot but have an impact on its legal status, removing the MFC from under civil law regulation to the plane of regulation by the norms of federal law, which has greater imperativeness and binding than dispositive civil legislation. The lack of independence and the secondary nature of the provision of services in the activities of the MFC, the large degree of influence of the imperative federal law over civil law to a certain extent discredits the concept of autonomy of the MFC, leaving it within the framework of a state institution, which under such conditions can be either budgetary or state-owned. The analysis of these concepts leads to the following.

According to Article 6 of the Budget Code of the Russian Federation, a state-owned institution is understood as a state (municipal) institution providing state (municipal) services, performing works and (or) performing state (municipal) functions in order to ensure the implementation of the powers of state authorities (state bodies) or local self-government bodies provided for by the legislation of the Russian Federation, financial support of activities which is carried out at the expense of the corresponding budget on the basis of budget estimates ^[2]. That is, the state institution must be provided at the expense of the federal budget and must be included in the planned budget. The MFC is financed from regional and local budgets and is provided by the property of municipalities and regions. The expenditure estimates for these institutions are not included in the federal budget. This prevents the MFC from being recognized as a state institution.

Under a budgetary institution in accordance with paragraph 1 of art.9.2 Federal Law No. 7 "On Non-Profit Organizations" means a non-profit organization established by the Russian Federation, a subject of the Russian Federation or a municipal entity to perform works, provide services in order to ensure the implementation of the powers provided for by the legislation of the Russian Federation, respectively, of state authorities (state bodies), public authorities of the federal territory or local self-government bodies in the fields of science, education, health, culture, social protection, employment, physical culture and sports, as well as in other areas ^[5]. The organizational and legal form of a budgetary state institution could well be suitable for an MFC, but financial support for such an institution is provided in the form of subsidies from the budgets of the budgetary system of the Russian Federation.

In addition, in order to consolidate the status of a budgetary state institution, the MFC must be integrated into the system of state bodies, but this is impossible, since this will lead to the destruction of the entire concept of the MFC, which were created in order to "unload" state bodies, and the MFC under no circumstances should turn into state bodies with duplicate functions, since this will lead to the formation of a parallel structure for those state bodies that provide this type of state and municipal services by law. That is why the state, and with it the entire legal community, still cannot unequivocally determine what MFCs are.

The impossibility of an autonomous concept is due at least to the fact that all MFCs are financed from regional budgets and use municipal or regional property, do not have an independent source of income, since their only occupation is providing free public services to the population, which cannot be paid, respectively, they do not have any sources of income for conducting autonomous activities of MFCs. If we draw an analogy, then as an autonomous institution of a civil nature, we can cite schools that provide a public service of general compulsory education, while they are integrated into the education system, but are autonomous general education state institutions. Unlike the MFC, they have significant autonomy, since they independently and autonomously organize the educational process, teaching staff and are to a certain extent closed from interference. Each school is completely autonomous and independent in the field of education.

In contrast, MFCs are extremely limited in independence. The discrediting of autonomy as an important beginning is also allowed by the very concept of the MFC, when the "head" central MFC, determined by the decree of the executive authority of the region or subject of the Russian Federation, is recognized as independent and gets the right to conclude agreements with all authorities whose services are represented in all MFC, which have virtually no autonomy and are forced to fulfill the concluded "head" MFC agreements. In fact, this means that such MFCs do not have independent legal capacity and they are not independent and autonomous subjects of law. Accordingly, such institutions cannot act as defendants or plaintiffs in lawsuits.

At the same time, in order to have full legal personality and be recognized as an independent and autonomous subject of legal relations, the MFC must be recognized as an independent legal entity with a clearly defined organizational and legal form. Thus, according to Part 1 of Article 48 of the Civil Code of the Russian Federation, an organization is recognized as a legal entity that has separate property and is responsible for its obligations, can acquire and exercise civil rights and bear civil duties on its own behalf, be a plaintiff and a defendant in court. This means that the issues of jurisdiction of disputes involving the MFC are directly related to the organizational and legal form of the MFC institutions, their structure, as well as the legal status.

Taking into account the fact that all other MFCs in the region are actually deprived of their own independence and fulfill the cooperation agreements concluded by the "head" office, they can be recognized as branches. According to Part 2 of Article 55 of the Civil Code of the Russian Federation, a branch is a separate subdivision of a legal entity located outside its location and performing all or part of its functions, including the functions of a representative office. However, branches of legal entities do not bear independent legal responsibility. In accordance with paragraph 3 of Article 55 of the Civil Code of the Russian Federation, representative offices and branches are not legal entities. They are endowed with property by the legal entity that created them and act on the basis of the regulations approved by it. In this case, the jurisdiction in a case involving a branch or representative office is determined at the location of the "parent" organization.

The issue of jurisdiction for legal entities in the theory and doctrine of law is a very serious and knowledge-intensive aspect, since there are many nuances that lead to legal and procedural conflicts precisely in connection with the participation of legal entities in disputes. While for individuals, jurisdiction is a well-defined and unquestionable legal phenomenon, in the case of legal entities, everything is not so simple, because depending on the nature of the dispute, jurisdiction may relate to the jurisdiction of arbitration courts or courts of general jurisdiction. The economic component of the dispute indicates the arbitration jurisdiction. According to Part 1 of Article 27 of the Arbitration Procedural Code of the Russian Federation, the arbitration court hears cases on economic disputes and other cases related to the implementation of entrepreneurial and other economic activities.

Arbitration jurisdiction will be seen in many cases of participation of legal entities, organizations, citizens - individual entrepreneurs, state bodies and municipalities, and it is important that the dispute has an economic component.

Obviously, in the case of the MFC, such a component is not seen. Moreover, the most urgent issue is the very responsibility of the MFC or its employees, since, as already noted earlier, the employees of the MFC do not perform any independent activity – neither civil law nor administrative authority. They are intermediaries between the State, its authorities and the applicant citizens. The limits of their responsibility should be limited to the implementation of the norms of Federal Law No. 210.

Under such conditions, the clauses of agreements on interdepartmental cooperation concluded between the MFC of some regions and state bodies, which specify a clause on arbitration jurisdiction, look more than strange and absurd. Thus, clause 8.5 of the agreement on cooperation between the Orenburg Region's GAU MFC and the State Labor Inspectorate provides that disputes arising in court are subject to arbitration. It is obvious that such a reservation contradicts the essence of the dispute, since such a dispute cannot contain any economic or entrepreneurial component in principle. Such a theoretically possible dispute is nothing more than a dispute between two intermediaries in the provision of a public service and the body providing such a public service. Such a dispute cannot have any commercial or economic component, it is not a dispute of economic entities. Such a reservation is in principle incorrect ^[9].

In contrast to this agreement, the agreement of December 26, 2016 concluded between the SBU MFC of the Sverdlovsk region and the Department of Social Policy of the Ministry of Social Policy of the Sverdlovsk Region for the Sukholozhsky district contains a more general condition – according to clause 9.3 of the agreement, disputes between the parties are resolved in court in accordance with the legislation of the Russian Federation ^[8].

Similar general conditions of the judicial procedure for the consideration of possible disputes are also contained in clause 9.3 of the agreement on interaction between the MFC G.Rostov-on-Don and the administration of the Kirovsky district Rostov-on-Don dated May 22, 2017, which allows the parties to choose a judicial authority in accordance with the current legislation ^[7]. Such discrepancies arise due to the fact that Federal Law No. 210 does not regulate the judicial procedure for the consideration of disputes involving the MFC in any way.

Chapter 2.1 of Federal Law No. 210 contains only a pre-trial (out-of-court) procedure for appealing decisions and actions (inaction) of the MFC or its official. The analysis and study of the norms of this chapter shows that the appeal concerns only non-compliance with the established regulations and procedures under Federal Law No. 210. However, the concept of jurisdiction includes a mandatory judicial procedure for considering a complaint and is a fundamental category that determines the essence of the dispute, therefore it is extremely important.

In the scientific literature, as part of the definition of the concept of jurisdiction, there is initially a discussion about the differentiation of jurisdiction with the concepts of competence and subordination. As noted, the concepts of "competence" and "jurisdiction" are not identical. As professor Yu.K. notes. Osipov, despite the fact that both concepts characterize the relationship between the competence of both the authority and the object of the dispute, the key importance is the different nature of such a relationship ^{[12, pp. 17-18]}.

As G.L. Osokina notes, subordination is the jurisdiction of state bodies in the field of consideration and resolution of conflicts and disputes ^{[13, p.396]}.

In his work, K. Malyshev points out that the jurisdiction of a case to a certain court depends on the limits of the department or authority of the class of judicial institutions to which this court belongs and on the specifics of the case that place it in the circle of the department of this particular court, and not other judicial institutions of this category ^{[11, p.162]}.

At the same time, it should be noted that the concept of jurisdiction is quite broad and universal and includes a number of characteristics – the material and legal basis of the dispute, its nature, procedural features, including the legal status of the subjects of the dispute. The legal personality of the parties to the dispute will largely determine the jurisdiction of the dispute, which includes the concept of jurisdiction ^{[14, p.11]}.

It is necessary to analyze the nature and legal status of the persons involved in the dispute with the participation of the MFC. Generic relations in this case should be administrative-power relations related to the provision of public services, that is, with the implementation of administrative-power powers. At the same time, if the applicant is an individual or a legal entity, then the executor of the state service is a state body. The MFC is only an intermediary, a third party in a possible dispute. In this case, a dispute involving the MFC receives the legal category of an administrative dispute, and the proceedings in such a case are regulated by the norms of the Code of Administrative Procedure of the Russian Federation as for an administrative claim ^[1].

It is worth noting that the CAS of the Russian Federation contains in its composition both the concept of jurisdiction and jurisdiction. Thus, according to Article 17 of the CAS of the Russian Federation, the Supreme Court of the Russian Federation, courts of general jurisdiction and justices of the peace consider and resolve administrative cases related to the protection of violated or disputed rights, freedoms and legitimate interests of citizens, rights and legitimate interests of organizations, as well as other administrative cases arising from administrative or other public legal relations and related to exercise of judicial control over the legality and validity of the exercise of state or other public powers, with the exception of cases referred by federal laws to the competence of the Constitutional Court of the Russian Federation, constitutional (statutory) courts of the subjects of the Russian Federation.

Jurisdiction in the case of an administrative dispute can be defined as the territory to which the jurisdiction of the court considering the dispute extends, that is, it is territorial jurisdiction.

The problem of jurisdiction of disputes involving the MFC is that the applicant, whose rights are violated by a state or municipal body in the process of providing public services, is forced to file an administrative claim not to the MFC, but to this body, while often the applicant simply cannot determine in which department (branch, subdivision) of this body the requested service was provided in violation (or was not provided at all), since the MFC, after receiving a request from a citizen, sends a corresponding request to the state body providing the service. In turn, this body can redirect the request to the subdivision at the place of registration of the citizen. In this case, if a citizen is a nonresident and submits a request in another city, in case of refusal or other violation of his rights, he is forced to appeal such decisions and actions (inaction) not in the city where he submitted the request, but precisely at the location of the state body. The location of the MFC – both the head office and the branch that accepted the request - in this case has no legal significance, since it is involved as a third party. Thus, the system of interaction of the MFC with state bodies, which operates on the basis of agreements, turns out to be simply not ready for judicial challenge of possible illegal actions, which indicates significant gaps in its organization. Even Federal Law No. 210 itself is designed in such a way that only out-of-court (pre-trial) appeals of decisions and actions in the provision of public services are provided. At the same time, this procedure is recognized as mandatory. That is, a citizen whose rights were violated when applying to the MFC, but to whom the service was provided not by the MFC, but by a state body, is forced to first spend valuable time on senseless pre-trial appeal of decisions and actions that were not even committed by the MFC itself, but simply because he appealed to the state through the MFC, he cannot directly appeal against the decisions and actions of the state itself immediately to the district court.

Moreover, if this procedure is not followed, his administrative claim will be returned. Thus, according to Part 1 of Article 196 of the CAS of the Russian Federation, the court leaves an administrative claim without consideration if the administrative plaintiff does not comply with the pre-trial procedure for settling administrative disputes established by federal law for this category of administrative cases. At the same time, if the applicant had initially applied directly to the state body itself for the service, and his rights would have been violated, he would not have had to comply with any mandatory pre-trial procedure.

Moreover, decisions and actions (inaction) of state authorities in an administrative manner have a fixed time limit for appeal. According to Part 1 of Article 219 of the CAS of the Russian Federation, if this Code does not establish other terms for filing an administrative claim with the court, an administrative claim may be filed with the court within three months from the day when a citizen, organization, or other person became aware of the violation of their rights, freedoms and legitimate interests.

While the pre-trial complaint (appeal) of a citizen to the MFC is being considered in accordance with Federal Law No. 210, which in principle does not represent any legal significance, since the violation of rights was not committed in the MFC, the time for appealing the disputed decisions and actions (inaction) to the court in an administrative manner is passing. As a result, the applicant faces the paradox of the impossibility of judicial appeal against violations of his rights, since he applied through the MFC, and not directly to the state or municipal body itself. The state body itself can always refer to the fact that the request was received through the MFC, so the applicant needs to sue the MFC, not him. There is a kind of "vicious circle" in which the victim is always a citizen-applicant. This situation should be resolved, and judicial challenges in cases where requests were submitted through the MFC should be consistent with the norms of the CAS of the Russian Federation, since now the CAS of the Russian Federation and the norms of Federal Law No. 210 do not agree with each other in any way. At the same time, the norms of Federal Law No. 210 have no independent significance for the jurisdiction and challenge of violations committed by a state body when filing through the MFC, and do not carry in themselves, being only a formal law defining the procedure.