Civil law. A special part. Trust management of property (the most important)

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Civil law. A special part. Trust management of property (the most important)

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Topic 12. TRUST MANAGEMENT OF PROPERTY

In accordance with paragraph 1 of Art. 1012 of the Civil Code, under a property trust management agreement, one party (the founder of the management) transfers the property to the other party (the trustee) for a certain period of time in trust management, and the other party undertakes to manage this property in the interests of the founder of the management or the person specified by him (the beneficiary).

The property trust management agreement is new to Russian civil law. He formalizes relations for the management of other people's property in the interests of its owner (or other authorized person - a creditor in an obligation, a subject of exclusive rights) or another (third) person indicated by him. Such management can be carried out at the will of the owner or authorized person, due, for example, to his inexperience or the inability to use some types of his property himself. In some cases, the manager must replace the owner (or other authorized person) by direct indication of the law in connection with special circumstances: the establishment of guardianship, guardianship or patronage (Article 38, 41 of the Civil Code), the recognition of a citizen as missing (Article 43 of the Civil Code) or his death (when the executor of the will - the executor disposes of the inheritance property until the moment the heirs accept the inheritance).

In contrast to Anglo-American law, which adheres to the concept of "trust property", Russian legislation expressly states that the transfer of property to trust management does not entail the transfer of ownership of it to the trustee (clause 4 of article 209, paragraph 2 of clause 1). 1012 article XNUMX of the Civil Code). The relations arising as a result of the conclusion of the contract in question are obligations, and not real.

By its legal nature, a property trust management agreement is a contract for the provision of services. Its peculiarity lies in the fact that, by virtue of this agreement, the manager performs in the interests of the counterparty or beneficiary a complex of both legal and actual actions that make up a single whole, and therefore its subject, unlike some other agreements, cannot be considered as a simple amount of legal and actual services.

This agreement is real. It enters into force from the moment the property is transferred to the manager for trust management, and when real estate is transferred to management - from the moment of its state registration. It can be both paid and gratuitous, and is bilateral in nature.

As a general rule, the founder of a trust management should be the owner of the property - a citizen, a legal entity, a public legal entity, as well as subjects of certain obligations and exclusive rights, in particular, depositors of banks and other credit organizations entitled to "uncertificated securities", authors and patent holders .

In cases expressly provided for by law (clause 1 of article 1026 of the Civil Code), not the owner (copyright holder), but another person, for example, a guardianship and guardianship authority (clause 1 of article 38, clause 1 of article 43) may become the founder of a trust management GK).

Only a professional participant in property turnover - an individual entrepreneur or a commercial organization, can act as a trustee, since we are talking about the use of someone else's property in order to generate income for its owner or the beneficiary indicated by him, i.e. essentially business activities.

In cases where trust management of property is carried out on the grounds provided for by law, a citizen who is not an individual entrepreneur (guardian of a minor or an executor appointed by the testator, etc.), or a non-profit organization (foundation, etc.) except for the institution.

In trust management relationships, in many cases, the beneficiary (beneficiary) is involved, who is not a party to the contract. In relation to such situations, a trust management agreement is an agreement concluded in favor of a third party (clause 1, article 430 of the Civil Code). The founder himself can also act as a beneficiary, establishing trust management in his favor. However, the trust manager cannot become a beneficiary (clause 3 of article 1015 of the Civil Code), since this contradicts the essence of this type of agreement.

Both the entire property of the founder and its certain part (individual things or rights) can be transferred to trust management. According to paragraph 1 of Art. 1013 of the Civil Code, the objects of such management are:

▪ real estate, including enterprises and other property complexes, as well as individual real estate objects;

▪ securities;

▪ rights certified by uncertificated securities;

▪ exclusive rights;

▪ other property (movable things and rights to claim or use someone else’s property).

Money cannot be an independent object of trust management, with the exception of cases provided for by law (paragraph 2 of article 1013 of the Civil Code).

Under pain of nullity, an agreement on trust management of property must be concluded in writing (clauses 1, 3 of article 1017 of the Civil Code). The transfer of real estate for trust management is subject to state registration in the same manner as the transfer of ownership of this property (clause 2 of article 1017 of the Civil Code).

The property trust management agreement is concluded for a period not exceeding five years. For certain types of property transferred to trust management, other deadlines are established.

The subject of the trust management agreement is the commission by the manager of any legal and actual actions in the interests of the beneficiary (clause 2 of article 1012 of the Civil Code), since the full range of these actions is usually impossible to determine at the time of establishment of management. At the same time, the law or the agreement provides for restrictions on certain actions for trust management of property, for example, in relation to transactions for the alienation of property transferred for management.

As a general rule, the trustee is obliged to manage the property of the founder personally (paragraph 1 of article 1021 of the Civil Code). The manager has the right to entrust another person with the performance on his own behalf of the actions necessary to manage the property, if he is authorized to do so by the agreement or has received the consent of the founder in writing, or he is forced to do this due to circumstances to ensure the interests of the founder of the management or the beneficiary, without being able to obtain instructions of the founder within a reasonable time. In the event of the transfer of trust management of property, the manager is responsible for the actions of the attorney chosen by him as for his own (paragraph 2 of article 1021 of the Civil Code).

The main duties of the trustee also include the submission of reports on their activities to the founder and beneficiary within the time and in the manner established by the agreement (clause 4 of article 1020 of the Civil Code).

The trustee has the right to remuneration, if it is provided for by the agreement, as well as to reimbursement of the necessary expenses incurred by him in the management of property. The peculiarity of the agreement under consideration is that the payment of remuneration, as well as the reimbursement of necessary expenses, must be made at the expense of income from the use of property transferred for management (Article 1023 of the Civil Code).

The manager carries out the disposal of real estate only in cases provided for by the contract (clause 1 of article 1020 of the Civil Code).

Legal and actual actions are always performed by the trustee on his own behalf, which therefore does not need a power of attorney. At the same time, he is obliged to inform all third parties that he is acting in the capacity of such a manager. When performing actions that do not require written execution, the specified message is carried out by informing the other party in one way or another, and in written transactions and other documents, after the name or title of the manager, a note "D.U." must be made. ("The Trustee"). If this requirement is not met, the manager becomes personally liable to third parties and is liable to them only with property belonging to him (paragraph 2, clause 3, cn. 1012 of the Civil Code).

Subject to the above conditions, debts under obligations arising in connection with the trust management of property are repaid at the expense of this property. In case of insufficiency of the latter, the recovery may be levied on the property of the trustee, and in case of insufficiency of his property, on the property of the founder, not transferred to the trust (clause 3 of article 1022 of the Civil Code). Thus, a two-stage system of subsidiary liability of the manager and the founder has been established.

Under a transaction made by a trustee in excess of the powers granted to him or in violation of the restrictions established for him, the obligations are borne by the trustee personally. However, if the third parties involved in the transaction did not know and should not have known about these violations, the obligations that have arisen are subject to execution in the general manner provided for in paragraph 3 of Art. 1022 GK. In this case, the founder may demand compensation from the manager for the losses incurred by him (paragraph 2 of article 1022 of the Civil Code).

According to paragraph 2 of Art. 1018 of the Civil Code, foreclosure on the debts of the founder on property transferred by him to trust management is not allowed, except in cases of declaring it insolvent (bankrupt). In case of bankruptcy of the founder, the trust management of this property is terminated, and it is included in the bankruptcy estate.

The trustee bears property liability for the results of its activities. The trustee, who, as a rule, is a professional entrepreneur, is liable for the losses incurred, unless he proves that these losses arose as a result of force majeure or the actions of the beneficiary or the founder of the management (paragraph 1 of article 1022 of the Civil Code).

Being a term transaction, the trust management agreement is terminated with the expiration of the period for which it was concluded (or the deadline established by law). In the absence of a statement by one of the parties to terminate the contract at the end of its validity period, it is considered extended for the same period and on the same conditions that were provided for by the contract (paragraph 2, clause 2, article 1016 of the Civil Code). In case of refusal of one party from the agreement on trust management of property, the other party must be notified of this three months before the termination of the agreement, unless a different notice period is specified in the agreement. Upon termination of the contract, the property held in trust is transferred to the founder, unless otherwise provided by the contract (Article 1024 of the Civil Code).

Trust management of securities has certain features (Article 1025 of the Civil Code).

Author: Ivakin V.N.

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