Free technical library

Civil law. Special part. Cheat sheet: briefly, the most important

Directory / Lecture notes, cheat sheets

Comments on the article

Table of contents

1. Accepted abbreviations
2. Contract of sale (General provisions on the purchase and sale agreement. Retail purchase and sale agreement. Agreement for the supply of goods. Agreement for the supply of goods for state or municipal needs. Contract agreement. Energy supply agreement. Agreement for the sale of real estate. Agreement for the sale of an enterprise)
3. Contracts of exchange, gift, rent (Exchange agreement. Gift agreement. Rent agreement)
4. Rental, leasing, loan agreements (Lease agreement. Financial lease agreement (Leasing). Free use agreement (Loans))
5. Residential tenancy agreement and other housing obligations (Residential rental agreement. Residential exchange agreement)
6. Contract (Contract agreement. Household contract. Construction contract. Contract agreement for design and survey work. State or municipal contract for contract work for state or municipal needs)
7. Contracts for research, development and technological work (research and development work)
8. Contract for the provision of services (General provisions on obligations to provide services. Agreement for paid provision of services)
9. Transport and forwarding agreements (Transport agreements. Transport expedition agreement)
10. Storage agreement
11. Contracts of assignment, commission and agency (Agency agreement. Commission agreement. Agency agreement)
12. Obligations from actions in someone else's interest without instructions
13. Trust property management
14. Commercial concession agreement
15. Insurance obligations (Concept and individual types of insurance. Participants in the insurance obligation. Insurance contract)
16. Loan, credit and financing agreements for the assignment of monetary claims (Loan agreement. Credit agreement. Financing agreement for the assignment of a monetary claim)
17. Bank account and bank deposit agreements (Bank account agreement. Bank deposit agreement)
18. Settlement obligations (General provisions on cash and non-cash payments. Cash and non-cash payments)
19. simple partnership agreement
20. Obligations from unilateral actions (Obligations from a public promise of a reward. Obligations from a public competition. Obligations from holding games and bets)
21. Liabilities due to damage (Non-contractual obligations. Liability for harm caused by public authorities and their officials. Liability for harm caused by minors and incompetent citizens. Liability for harm caused by a source of increased danger. Liability for harm caused to the life or health of a citizen)
22. Liabilities due to unjust enrichment
23. Institute of Inheritance Law (General provisions on inheritance. Inheritance by will. Inheritance by law. Acquisition of inheritance)
24. Rights to the results of intellectual activity and means of individualization: general provisions
25. Авторское право
26. Rights related to copyright
27. Patent Law
28. The right to a selection achievement
29. The right to topology of integrated circuits
30. The right to a production secret (know-how)
31. Rights to means of individualization of legal entities, goods, works, services and enterprises (Right to a company name. Right to a trademark and right to a service mark. Right to an appellation of origin. Right to a commercial designation)
32. The right to use the results of intellectual activity as part of a single technology

Accepted abbreviations

Constitution - The Constitution of the Russian Federation, adopted by popular vote on December 12, 1993

VC - Air Code of the Russian Federation dated March 19.03.1997, 60 No. XNUMX-FZ

GC - Civil Code of the Russian Federation: part one dated November 30.11.1994, 51 No. 26.01.1996-FZ; part two dated January 14, 26.11.2001 No. 146-FZ; part three dated November 18.12.2006, 230 No. XNUMX-FZ; part four dated December XNUMX, XNUMX No. XNUMX-FZ

Civil Code of the RSFSR - Civil Code of the RSFSR, approved by the Supreme Council of the RSFSR on 10.06.1964/XNUMX/XNUMX

Liquid crystal - Housing Code of the Russian Federation of December 29.12.2004, 188 No. XNUMX-FZ

KVVT - Code of Inland Water Transport of the Russian Federation dated 07.03.2001 No. 24-FZ

KTM - Merchant Shipping Code of the Russian Federation dated April 30.04.1999, 81 No. XNUMX-FZ

UAT - Charter of motor transport of the RSFSR, approved by the Decree of the Council of Ministers of the RSFSR of 08.01.1969 No. 12

UZHT - Charter of the railway transport of the Russian Federation dated 10.01.2003 No. 18-FZ

RSFSR - Russian Soviet Federative Socialist Republic

RF - Russian Federation

the USSR - Union of Soviet Socialist Republics

UNIDROIT - International Institute for the Unification of Private Law

CEC and SNK of the USSR - Central Executive Committee and Council of People's Commissars of the USSR

I. CONTRACT AND OBLIGATION LAW

Topic 1. AGREEMENT OF PURCHASE AND SALE

1.1. General provisions on the contract of sale

The concept of a contract of sale currently covers all contracts under which a thing is transferred for money from one entity to another. Separate types of sales contracts are contracts: retail sales, supply of goods, supply of goods for state needs, contracting, energy supply, sale of real estate, sale of an enterprise.

In accordance with paragraph 1 of Art. 454 of the Civil Code, under a contract of sale, one party (the seller) undertakes to transfer the thing (goods) into the ownership of the other party (the buyer), and the buyer undertakes to accept this goods and pay a certain amount of money for it.

The contract of sale is consensual, since it is considered concluded from the moment when the parties reached an agreement on all the essential terms of the contract, which should be directly established by them, or when the state registration of such an agreement was made (enterprise sale contract). This agreement also applies to reimbursable and bilateral agreements.

The subject of the contract of sale is the transfer by the seller of the goods into the ownership of the buyer, acceptance by the seller and payment of the established price for it.

In order to recognize a contract of sale as concluded, it is necessary for the parties to agree only on the conditions on the name and quantity of goods. Other terms of the contract, including the price of goods, can be determined on the basis of the general rules contained in the Civil Code, therefore it is permissible to conclude a contract without their agreement.

The seller is obliged to transfer the goods to the buyer within the period established by the contract or the rules for the fulfillment of an indefinite obligation (Article 314 of the Civil Code).

The quantity of goods to be transferred to the buyer is provided for by the contract of sale in the relevant units of measurement or in monetary terms. It is possible for the parties to agree in the contract only on the procedure for determining the quantity of goods, however, in any case, it must be possible to establish the quantity of goods to be transferred (Article 465 of the Civil Code).

The contract of sale may contain a condition on the range of goods to be transferred by the seller to the buyer, i.e. on the establishment of a certain ratio of the latter by types, models, sizes, colors or other characteristics (Article 467 of the Civil Code).

The seller must fulfill the terms of the contract on the quality of the goods. In the absence of these conditions in the contract, the seller is obliged to transfer to the buyer goods suitable for the purposes for which goods of this kind are usually used. If the seller, at the conclusion of the contract, was notified by the buyer of the specific purposes of acquiring the goods, the seller is obliged to transfer to the buyer the goods suitable for use in accordance with these purposes.

The essence of a legal guarantee is that the goods must comply with the requirements for their quality at the time of their transfer to the buyer, unless another moment for determining the conformity of the goods with these requirements is provided by the contract, and within a reasonable time must be suitable for the purposes for which the goods of this kind are usually used (clause 1 of article 470 of the Civil Code).

The contract of sale in accordance with paragraph 2 of Art. 470 of the Civil Code provides for the provision by the seller of a guarantee of the quality of goods (contractual guarantee), which must be maintained for a certain time (guarantee period), when it is allowed for the buyer to make claims to the seller about the application of the consequences of the transfer of goods of inadequate quality specified in the law.

The shelf life of the goods should be distinguished from the warranty period, i.e. a period of time determined by law or in the manner prescribed by it, after which the goods are considered unsuitable for their intended use.

If the defects of the goods were not specified by the seller, the buyer, to whom the goods of inadequate quality were transferred, has the right, at his choice, to demand from the seller:

▪ a proportionate reduction in the purchase price;

▪ free of charge elimination of product defects within a reasonable time;

▪ reimbursement of your expenses to eliminate defects in the product.

In the event of a significant violation of the requirements for the quality of the goods (detection of fatal flaws, flaws that cannot be eliminated without disproportionate costs or time, are identified repeatedly, etc.), the buyer has the right to choose:

▪ refuse to fulfill the contract and demand a refund of the amount paid for the goods;

▪ demand the replacement of goods of inadequate quality with goods that comply with the contract (Article 475 of the Civil Code).

If the product does not have a warranty period or expiration date, the defects of the product must be discovered within a reasonable time, but within two years from the date of transfer of the product to the buyer. The law or the contract may provide for a longer period for detecting defects in the goods.

If the product has a warranty period, its defects must be discovered within this period. Similarly, the period for detecting defects in goods for which an expiration date is established (Article 477 of the Civil Code) is determined.

Under the contract of sale, the seller is obliged to transfer to the buyer the goods that comply with the terms of the contract on completeness, and in the absence of such a contract, the completeness of the goods is determined by business customs or other requirements (Article 478 of the Civil Code).

The seller is obliged to transfer the goods to the buyer in containers and (or) packaging, with the exception of goods that, by their nature, do not require packaging and (or) packaging. An exception to this rule may be provided for by the contract or follow from the essence of the obligation (paragraph 1 of article 481 of the Civil Code).

The buyer is obliged to accept the goods transferred to him, except for cases when he has the right to demand replacement of the goods or refuse to fulfill the contract of sale (Article 484 of the Civil Code).

The price of the goods may be stipulated by the contract. If it is not determined by the contract and cannot be established on the basis of its terms, the goods are paid for at a price that, under comparable circumstances, is usually charged for similar goods, i.e. the rule of paragraph 3 of Art. 424 GK.

The law provides for the possibility of concluding a contract of sale with the condition of prepayment for the goods, as well as on credit with full payment for the goods after a certain period of time or with payment in installments.

1.2. Retail sales contract

In accordance with paragraph 1 of Art. 492 of the Civil Code, under a retail sale and purchase agreement, a seller engaged in entrepreneurial activities for the sale of goods at retail undertakes to transfer to the buyer goods intended for personal, family, home or other use not related to entrepreneurial activity.

Like any contract of sale, a retail sale contract is consensual, paid and bilateral. At the same time, a number of specific features are inherent in the retail sale and purchase.

First of all, the subject composition of this agreement has its own characteristics. The seller is always a commercial organization or a citizen-entrepreneur engaged in entrepreneurial activities for the sale of goods at retail. The buyer can be any subject of civil law.

To relations under a retail sale and purchase agreement with the participation of a buyer-citizen entering into contractual relations in order to meet personal household needs, not regulated by § 2 Ch. 30 of the Civil Code, the Law of the Russian Federation of February 07.02.1992, 2300 No. 1-XNUMX "On the Protection of Consumer Rights" (hereinafter referred to as the Law on the Protection of Consumer Rights) and other legal acts adopted in accordance with it are applied.

The retail sale contract is a public contract, in connection with which the seller is not entitled to refuse to conclude it if he has goods that are of interest to the buyer.

A retail sale and purchase agreement can be concluded using a public offer (an offer containing all the essential terms of the agreement, from which the will of the person making it is seen to conclude an agreement on the conditions specified in it with everyone who responds).

A specific feature of a retail sale and purchase agreement is its subject matter. According to Art. 492 of the Civil Code, the seller undertakes to transfer to the buyer the goods intended for personal, family, home or other use not related to entrepreneurial activity.

The form of this agreement also has its own peculiarities. As a general rule, a retail sale and purchase agreement is considered concluded in the proper form from the moment the seller issues the buyer a cash or sales receipt or other document confirming payment for the goods. The buyer's lack of such documents does not deprive him of the opportunity to refer to testimonies in support of the conclusion of the contract and its terms (Article 493 of the Civil Code).

Before concluding a retail sale contract, the seller is obliged to provide the buyer with information about the product (including providing the opportunity to inspect the product, checking the properties at the request of the buyer or demonstrating the use of the product) (Article 495 of the Civil Code).

The peculiarity of the retail sale and purchase agreement is that its essential condition, without the agreement of which this agreement cannot be considered concluded, is the price.

In the case of the sale of goods of inadequate quality, the buyer has a number of opportunities established by Art. 503 of the Civil Code and Art. 18 of the Consumer Protection Act. He may, at his option, demand:

▪ replacement of low-quality goods with goods of good quality;

▪ a proportionate reduction in the purchase price;

▪ immediate, free elimination of product defects;

▪ reimbursement of expenses for eliminating product defects.

The listed requirements of the buyer are subject to satisfaction only if the seller, at the conclusion of the contract, did not stipulate that he was selling the goods with defects.

Instead of presenting the listed requirements, the buyer has the right to refuse to fulfill the contract of retail sale and demand the return of the amount of money paid for the goods (clause 3 of article 503 of the Civil Code). In addition, if a citizen-consumer participates in such an agreement as a buyer, he is also entitled, in accordance with paragraph 1 of Art. 18 of the Law on the Protection of Consumer Rights to demand full compensation for losses caused to him as a result of the sale of goods of inadequate quality.

The requirements specified in paragraph 1 of Art. 18 of this Law are presented by the consumer to the seller or an authorized organization or an authorized individual entrepreneur. However, according to paragraph 3 of the same article, claims for free elimination of defects or reimbursement of consumer expenses for their elimination or replacement of goods can be addressed directly to the manufacturer (an authorized organization or an authorized individual entrepreneur, importer). In addition, the consumer is given the right to return the goods of inadequate quality to the manufacturer and demand from him the amount paid for the goods.

When selling to a consumer a product of inadequate quality, for which a warranty period or expiration date is established, in accordance with paragraph 1 of Art. 19 of the Law on Protection of Consumer Rights, he can present his claims to the seller (manufacturer, authorized organization or authorized individual entrepreneur, importer) regarding the defects of the goods, if they are discovered within the specified time limits.

In the event of a dispute about the causes of these shortcomings, the seller (manufacturer) is obliged to conduct an examination at his own expense. If the consumer disagrees with its results, the latter has the right to challenge the conclusion of the examination in court (clause 5, article 18 of the said Law).

In the event that significant defects in the goods are revealed through the fault of the manufacturer, the consumer has the right to present the manufacturer with a demand for the free elimination of defects in the goods after the expiration of the warranty period established for the goods by the manufacturer. This requirement can be brought if the defects of the goods are discovered after two years from the date of transfer of the goods to the consumer, during the established service life of the goods or within ten years from the date of transfer of the goods, if the service life of the goods is not established (paragraph 6 of article 19 of this Law).

The main obligations of the buyer under the retail sales contract are to accept the goods and pay the purchase price.

1.3. Contract for the supply of goods

According to Art. 506 of the Civil Code, under a supply agreement, a supplier-seller engaged in entrepreneurial activities undertakes to transfer, within a specified period or terms, the goods produced or purchased by him to the buyer for use in entrepreneurial activities or other purposes not related to personal, family, home and other similar use.

By its legal nature, the supply contract is consensual, bilateral and paid.

Of essential importance is the condition on the term or terms of delivery of goods. In the absence of such a condition in the contract, if the moment of conclusion and the moment of execution of the contract do not coincide and the delivery should not be carried out in separate batches, the delivery time is determined according to the rules of Art. 314 GK.

If the delivery of goods must be carried out during the entire term of the contract in separate lots, the essential condition of the contract is the periods of delivery (Article 508 of the Civil Code), i.e. terms of delivery of individual consignments of goods stipulated by the parties. If the parties have not determined the delivery periods in the contract, the goods must be delivered in equal batches on a monthly basis, unless otherwise follows from the legislation, the essence of the obligation or the customs of business. Along with the periods of delivery, the contract establishes a schedule for the delivery of goods (ten-day, daily, hourly, etc.). Early delivery of goods can be made with the consent of the buyer.

The contract for the supply of goods provides for the right of the buyer to give instructions to the supplier on the shipment (transfer) of goods to the recipients indicated in the shipping order.

In connection with the long-term nature of these contractual relations, the regulation of the procedure for replenishing the short supply of goods becomes important. The supplier who allowed the underdelivery in a particular period is obliged to make up for the underdelivered quantity of goods in the next period (s) within the term of the contract, unless otherwise provided by the latter.

The buyer has the right, by notifying the supplier, to refuse to accept goods whose delivery is overdue, unless otherwise provided in the supply contract. The buyer is obliged to accept and pay for goods delivered before the supplier receives the notification (Article 511 of the Civil Code).

If the supplier has not delivered the quantity of goods stipulated by the contract or has not fulfilled the buyer's requirements to replace defective goods or complete the goods, the buyer has the right to purchase the undelivered goods from other persons, with all the necessary and reasonable expenses for their acquisition being charged to the supplier (Article 520 of the Civil Code).

In the event of a material breach of the contract by one of the parties, a unilateral refusal of the other party to perform it is allowed. According to Art. 523 of the Civil Code, a violation of the contract for the supply of goods is assumed to be significant if:

▪ delivery of goods of inadequate quality with defects that cannot be eliminated within a timeframe acceptable to the buyer or repeated violation by the supplier of delivery dates for goods;

▪ repeated violation by the buyer of payment terms for goods or failure to select goods.

Upon termination of the contract, the bona fide party has the right to demand from the other party compensation for losses caused by the purchase of goods from another seller at a higher price (buyer) or the sale of goods at a lower price (supplier), or if the corresponding new transaction was not completed, the difference between the price, established in the contract, and the current price at the time of termination of the contract.

1.4. Contract for the supply of goods for state or municipal needs

The supply of goods for state or municipal needs is carried out on the basis of a state or municipal contract for the supply of goods for state or municipal needs, as well as contracts concluded in accordance with it (Article 525 of the Civil Code).

In addition to the norms of the Civil Code, the supply of goods for state or municipal needs is regulated by special laws. These are federal laws No. 13.12.1994-FZ of December 60, 29.12.1994 "On the supply of products for federal state needs", No. 79-FZ of December 02.12.1994, 53 "On the state material reserve", No. 27.12.1995-FZ of December 213, 06.05.1999 "On procurement and supply of agricultural Products, Raw Materials and Food for State Needs", No. 97-FZ dated December 21.07.2005, 94 "On the State Defense Order", No. XNUMX-FZ dated May XNUMX, XNUMX "On tenders for placing orders for the supply of goods, performance of work, provision of services for state needs", dated XNUMX No. XNUMX-FZ "On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs".

A state or municipal contract is concluded on the basis of an order for the supply of goods for state or municipal needs, placed in the manner prescribed by law on placing orders for the supply of goods, performance of work, and provision of services for state and municipal needs. The conclusion of a state or municipal contract is mandatory for the supplier (executor) only in cases provided for by law, and subject to compensation by the state or municipal customer for all losses that may be caused to the supplier (with the exception of state-owned enterprises) in connection with the implementation of this contract.

Placement of a state or municipal order may be carried out by holding open or closed bidding in the form of a tender, auction, including an auction in electronic form, as well as without bidding (request for quotations for goods; from a single supplier; on commodity exchanges). The request for quotations for goods is understood as a method of placing an order, in which information about the needs for goods for state or municipal needs is communicated to an unlimited number of persons by posting a notice on the request for quotations on the official website and the winner in the request for quotations is recognized as the participant in the placement of the order, who offered the most low contract price.

The law specifically regulates the procedure for concluding a state or municipal contract (Article 528 of the Civil Code) and concluded in accordance with it (on the basis of a notice of attaching a buyer to a supplier) an agreement for the supply of goods for state or municipal needs (Article 529 of the Civil Code).

Delivery of goods for state or municipal needs may be carried out directly to the state or municipal customer or at his direction (shipment order) to another person (recipient).

When the buyer pays for goods under a contract for the supply of goods for state or municipal needs, the state or municipal customer is recognized as a guarantor for this obligation of the buyer (Article 532 of the Civil Code).

1.5. contracting agreement

According to paragraph 1 of Art. 535 of the Civil Code, under a contracting agreement, a producer of agricultural products undertakes to transfer the agricultural products grown (produced) by him to a procurer - a person who purchases such products for processing or sale.

By its legal nature, this agreement is consensual, reimbursable and bilateral.

Agricultural commercial organizations can act as a producer of agricultural products: business companies, partnerships, production cooperatives, as well as peasant (farm) enterprises. The supplier acts as a buyer under the contracting agreement, i.e. a commercial organization or an individual entrepreneur engaged in business activities for the purchase of agricultural products for their subsequent sale or processing.

The producer of agricultural products is obliged to transfer to the supplier the grown (produced) agricultural products in the quantity and assortment provided for by the contracting agreement (Article 537 of the Civil Code).

The legislator establishes some preferential rules for the producer of agricultural products as an economically weaker party. So, according to the general rule, the supplier accepts this product at its location and ensures its export.

Since the production of agricultural products to a very large extent depends on weather conditions and is an economic activity with an increased risk, the legislator specifically stipulates that the producer of these products, who has not fulfilled an obligation or has performed it improperly, is liable if he is guilty (Article 538 of the Civil Code) .

1.6. Energy supply agreement

According to paragraph 1 of Art. 539 of the Civil Code, under an energy supply agreement, the energy supplying organization undertakes to supply the subscriber (consumer) through the connected network with energy, and the subscriber undertakes to pay for the received energy, as well as to comply with the mode of its consumption provided for by the agreement, to ensure the safety of operation of the energy networks under his control and the serviceability of the instruments and equipment used by him associated with energy consumption.

With regard to energy supply contracts, this refers to electrical energy, although some rules relating to the supply of it may also apply to the supply of thermal energy.

According to the energy supply contract, energy is supplied through the connected network, i.e. through wires (electrical, thermal) connecting the seller and the buyer of energy.

The subscriber (consumer) undertakes to pay for the received energy, but he is not obliged to accept the goods, i.e. get some energy. In addition, an energy supply agreement is characterized by additional specific obligations of the subscriber: compliance with a certain mode of energy consumption, etc.

By its legal nature, this agreement is consensual, reimbursable and bilateral. The peculiarity of the energy supply agreement is that it is a public agreement and its conclusion is considered mandatory for the energy supply organization.

Energy supply organization - a commercial organization that sells produced or purchased electrical and (or) thermal energy to consumers.

A legal or natural person can act as a subscriber (consumer) under an energy supply agreement. In the case when the subscriber is a citizen using energy for domestic consumption, the contract is considered concluded from the moment the subscriber first actually connects in the prescribed manner to the connected network (clause 1 of article 540 of the Civil Code).

A feature of the energy supply agreement is that it is concluded with the subscriber only if he has an energy receiving device that meets the established technical requirements, connected to the networks of the energy supply organization, and other necessary equipment, as well as providing accounting for energy consumption.

The energy supply agreement determines the amount of energy that the energy supply organization is obliged to supply to the subscriber, and the mode of its supply. These terms of the contract are relevant when it is concluded with industrial and other organizations.

A citizen using energy for household consumption has the right to use it in the amount he needs. They pay for energy in accordance with the actual consumption, determined by the meter readings.

The quality of electrical energy is determined mainly by two indicators: voltage and current frequency. Quality requirements are contained in state standards and other mandatory rules, and can also be established by agreement (clause 1 of article 542 of the Civil Code).

The term of the energy supply contract can be either indefinite or definite. The first takes place if the subscriber is a citizen using energy for domestic consumption, and otherwise is not provided by agreement of the parties, the second - if the subscriber is a legal entity.

The price at which payment is made is generally regulated by government-set tariffs. Therefore, the absence of a price clause in the power supply contract does not entail its invalidity, since the price is not an essential condition of this contract.

Payment by subscribers, except for budgetary organizations and the population, for the energy actually received by them is made by direct debit from the settlement (current) accounts of consumers.

The subscriber is obliged to ensure the proper technical condition and safety of the operated energy networks, instruments and equipment, comply with the established mode of energy consumption, and immediately inform the energy supply organization about accidents, fires, malfunctions of energy meters and other violations that occur when using energy. This obligation in terms of ensuring the proper technical condition and safety of energy networks, as well as energy metering devices, lies with the energy supply organization in cases where a citizen using energy for domestic consumption acts as a subscriber, unless otherwise provided by law (Article 543 of the Civil Code ).

According to paragraph 1 of Art. 547 of the Civil Code, the party that violated the obligation (both the energy supply organization and the subscriber) is obliged to compensate for the real damage caused by this. Thus, the liability of the parties is limited, lost profits cannot be recovered.

If, as a result of the regulation of the energy consumption regime, carried out on the basis of the law or other legal acts, a break in the supply of energy to the subscriber is allowed, the energy supply organization shall be liable for violation of the obligation if it is at fault.

Regulatory acts and the energy supply agreement provide for the responsibility of the subscriber for the delay in payment for the energy received. In addition to recovering the real damage caused to the energy supply organization, interest may be collected from the subscriber for the use of other people's funds (Article 395 of the Civil Code) or, if provided for by the contract, a penalty. The energy supply organization has the right to suspend the supply of energy to the subscriber until he fully pays for the previously received energy. In case of significant and repeated violation of the terms of payment for energy, it is possible to terminate the contract unilaterally.

1.7. Real estate sale agreement

In accordance with Art. 549 of the Civil Code, under a contract for the sale of real estate (contract for the sale of real estate), the seller undertakes to transfer the ownership of the land plot, building, structure, apartment or other real estate to the buyer, and the buyer undertakes to accept this property and pay for it the price determined by the parties (paragraph 1 of Art. 454, paragraph 1 of article 549 of the Civil Code).

By legal nature, a real estate sale agreement is consensual, paid and bilateral.

The subject of this agreement can only be the sale of real estate that has a sign of negotiability (Article 129 of the Civil Code).

The contract for the sale of real estate is concluded in writing by drawing up one document signed by the parties. Failure to comply with this form entails the invalidity of the contract for the sale of real estate (Article 550 of the Civil Code). The contract for the sale of real estate is considered concluded from the moment the parties sign a single document, which sets out all its essential conditions.

The transfer of ownership of real estate from the seller to the buyer is subject to state registration.

If one of the parties evades state registration of the transfer of ownership of real estate, the court may, at the request of the other party, make a decision on such registration. The party that unreasonably evades this registration must compensate the other party for the losses caused by its delay (paragraph 3 of article 551 of the Civil Code).

An essential condition of the contract for the sale of real estate is the condition of the subject of sale. According to Art. 554 of the Civil Code, the contract for the sale of real estate must contain data that makes it possible to definitely establish the real estate to be transferred to the buyer under the contract, including data that determines the location of the property on the relevant land plot or as part of other real estate. In the absence of these data in the contract, the condition on the real estate to be transferred is considered not agreed by the parties, and the contract is not concluded.

When selling buildings, structures, residential and non-residential premises, documents containing the necessary information about these objects must be attached to the contract.

The contract for the sale of real estate must provide for the price of this property. In the absence of a condition agreed by the parties on the price of real estate in the contract, the contract for its sale is recognized as not concluded.

Under a contract for the sale of a building, structure or other real estate, the buyer, simultaneously with the transfer of ownership of such real estate, is transferred the rights to the land plot occupied by such real estate and necessary for its use (Article 552 of the Civil Code).

The execution of the contract for the sale of real estate must be carried out by transferring the real estate by the seller and accepting it by the buyer according to the deed of transfer signed by the parties, or another document on the transfer.

Some special rules are set for the sale of residential properties. So, an essential condition of the contract for the sale of a residential building, apartment, part of a residential building or an apartment in which persons live who, in accordance with the law, retain the right to use this residential premises after its acquisition, is a list of these persons indicating their rights to use the residential premises being sold ( paragraph 1 of article 558 of the Civil Code). If the specified condition is not included in the contract, the buyer in accordance with par. 2 p. 1 art. 460 of the Civil Code has the right to demand a reduction in the purchase price or termination of the contract for the sale of residential premises. Unlike contracts for the sale of other real estate, a contract for the sale of residential premises is subject to state registration and is considered concluded from the moment of such registration (clause 2 of article 558 of the Civil Code).

1.8. Enterprise sale agreement

In accordance with paragraph 1 of Art. 559 of the Civil Code, under a contract for the sale of an enterprise, the seller undertakes to transfer the enterprise as a whole as a property complex to the buyer's property (Article 132 of the Civil Code), with the exception of rights and obligations that the seller is not entitled to transfer to other persons.

The allocation of the contract for the sale of an enterprise as an independent type of contract of sale is due to the special nature of the object of sale. An enterprise as a property complex acts as such an object. In accordance with paragraph 2 of Art. 132 of the Civil Code, an enterprise as a property complex includes all types of property intended for its activities (land plots, buildings, structures, equipment, raw materials), finished products, rights of claim, debts, as well as rights to designations that individualize the enterprise, its products, works and services (commercial designation, trademarks, service marks) and other exclusive rights, unless otherwise provided by law or contract.

The contract for the sale of an enterprise is concluded in writing by drawing up one document signed by the parties. Failure to comply with this form entails the invalidity of the contract. The contract for the sale of an enterprise is subject to state registration and is considered concluded from the moment of such registration (Article 560 of the Civil Code).

Prior to its transfer to the buyer by one of the parties to the contract, by agreement between the parties, written notifications of its sale must be sent to creditors for obligations included in the sold enterprise. The creditor, who has not informed the seller or the buyer in writing of his consent to the transfer of the debt, has the right, within three months from the date of receipt of the notice of the sale of the enterprise, to demand either the termination or early performance of the obligation and compensation by the seller for the losses caused by this, or the recognition of the contract for the sale of the enterprise as invalid in full or in the relevant part. The creditor who has not received the notice is entitled to file the said claims within one year from the date when he learned or should have known about the transfer of the enterprise by the seller to the buyer.

A duly notified creditor who has not informed the seller of anything, as well as a creditor who has not stated one of the above requirements, is considered a creditor who has not consented to the transfer of the debt. Before such a creditor, after the transfer of the enterprise to the buyer, the seller and the buyer are jointly and severally liable for the debts included in the enterprise (Article 562 of the Civil Code).

Article 563 of the Civil Code stipulates that the transfer of an enterprise by the seller to the buyer is carried out according to a deed of transfer, which indicates data on the composition of the enterprise and on notification of creditors about the sale of the enterprise, as well as information on the identified shortcomings of the transferred property and a list of property, the obligation to transfer which was not fulfilled by the seller due to his loss.

The transfer of the enterprise to the buyer does not in itself entail the emergence of his ownership of this enterprise. Such a right passes to him from the seller only from the moment of state registration of this right. Unless otherwise provided by the contract, the ownership of the enterprise passes to the buyer and is subject to state registration immediately after the transfer of the enterprise to the buyer (Article 564 of the Civil Code).

Topic 2. AGREEMENTS OF EXCHANGE, GIFT, RENT

2.1. barter agreement

In accordance with paragraph 1 of Art. 567 of the Civil Code, under an exchange agreement, each of the parties undertakes to transfer one commodity to the ownership of the other party in exchange for another.

It follows from the above definition that this agreement is consensual, paid and bilateral.

By virtue of an exchange agreement, its participants undertake to transfer certain things (goods) to each other in ownership, and each of the parties to this agreement, acquiring a thing in ownership, transfers another thing to the other party instead of paying the purchase price in money. Thus, each of the parties simultaneously acts as a seller in relation to the goods that it undertakes to transfer to the other party, and as a buyer in relation to the goods that it undertakes to accept in exchange. In this regard, the rules on sale and purchase are applied to the exchange agreement, if this does not contradict the special rules established for this agreement, and the essence of the exchange (clause 2 of article 567 of the Civil Code).

The object of an exchange agreement can be both movable things and real estate, such as land, residential premises.

The barter agreement has some specific features arising from its essence. So, since in accordance with it there is no payment of money for the purchased goods, the parties in the contract may not indicate the price of the exchanged goods. In such cases, these goods are assumed to be of equal value, unless otherwise follows from the contract (paragraph 1 of article 568 of the Civil Code).

The party obliged to transfer the goods, the price of which is lower than the price of the goods provided in exchange, must pay the difference in prices (paragraph 2 of article 568 of the Civil Code).

The transfer of ownership of the exchanged goods occurs simultaneously after the fulfillment of obligations to transfer the relevant goods by both parties, unless otherwise provided by law or contract (Article 570 of the Civil Code).

2.2. donation agreement

In accordance with paragraph 1 of Art. 572 of the Civil Code, under a donation agreement, one party (the donor) transfers or undertakes to transfer to the other party (the donee) a thing in ownership or a property right (claim) to itself or to a third party, or releases or undertakes to release it from a property obligation to itself or to a third party .

A donation is not a one-sided transaction; in its implementation, an agreement is concluded, since the acceptance of a gift requires the consent of the donee. As a general rule, a gift agreement is a unilateral agreement in which the donee has no obligations (with the exception of such a type of gift as a donation).

A donation can be both real and consensual. According to the current civil legislation, not only the direct gratuitous transfer of property has legal significance, but under certain conditions, the promise to donate property, which entails the emergence of an obligation relationship between the donor and the donee.

Donation can be carried out by not only transferring the property of the donee to the property of the donor, but also transferring property rights to the donee or releasing him from property obligations (in both cases, both in relation to the donor and in relation to a third party).

The peculiarity of the donation contract is its gratuitous nature, therefore, if there is a counter transfer of a thing or right or a counter obligation, the contract is not recognized as a donation. A donation agreement concluded in such cases is considered a sham transaction (clause 2 of article 170, paragraph 2 of clause 1 of article 572 of the Civil Code).

In accordance with the current civil legislation, a gift agreement recognizes a gift promise if it is made in the proper form prescribed by law and contains a clearly expressed will of the donor. The promise of donation must be specific in its content. A promise to donate all of your property or part of all your property without specifying the specific subject of donation in the form of a thing, right or release from obligation is void (clause 2 of article 572 of the Civil Code).

Any natural or legal person acts as a donor.

With the exception of cases provided for by law, a donation accompanied by the transfer of a gift to the donee may be made orally. The transfer of a gift is carried out through its delivery, symbolic transfer (delivery of keys, etc.) or delivery of title documents.

A contract of donation of movable property shall be made in writing if:

▪ the donor is a legal entity and the value of the gift exceeds five minimum wages established by law;

▪ the contract contains a promise of a gift in the future.

A contract entered into orally shall be considered null and void in the above cases.

A contract of donation of real estate must also be made in writing, which, in addition, is subject to state registration (clause 3 of article 574 of the Civil Code).

The current civil legislation provides for the refusal to execute a donation agreement and the cancellation of a donation. Refusal to execute a donation agreement may take place before the execution of the consensual donation agreement (donation promise) if:

▪ after the conclusion of the contract, the property or marital status or health status of the donor has changed so much that the execution of the contract under new conditions will lead to a significant decrease in his standard of living;

▪ the donee made an attempt on the life of the donor, one of his family members or close relatives, or intentionally caused bodily harm to the donor.

Cancellation of a donation may occur after the execution of the donation agreement in the second of the above cases, and also if:

▪ the recipient’s handling of a donated item that is of great non-property value to the principal (for example, letters, diaries, manuscripts) creates the threat of its irretrievable loss;

▪ when the court considers the request of an interested person to cancel the donation, it is established that the donation was made by an entrepreneur or legal entity in violation of the provisions of the law on insolvency (bankruptcy) at the expense of funds related to his business activities within six months preceding the declaration of such a person as insolvent (bankrupt ).

In addition, the gift agreement may specifically stipulate the right of the donor to cancel the gift if he outlives the donee (paragraph 4 of article 578 of the Civil Code).

The donee has the right to refuse the gift at any time before its transfer. In this case, the donation agreement is considered terminated (paragraph 1 of article 573 of the Civil Code).

According to Art. 579 of the Civil Code, the rules on the donor's refusal to fulfill the gift agreement and on the cancellation of the gift do not apply to ordinary gifts of small value.

Donation is a form of donation. A donation of a thing or right for generally useful purposes is recognized as a donation (clause 1 of article 582 of the Civil Code).

2.3. Annuity agreement

Rent is a regularly received income from capital, property or land, which does not require entrepreneurial activity from its recipient.

An annuity agreement is new to Russian civil law. Its legislative consolidation is due to the transition to market relations.

In accordance with paragraph 1 of Art. 583 of the Civil Code, under a rent agreement, one party (the rent recipient) transfers property to the other party (the rent payer), and the rent payer undertakes, in exchange for the property received, to periodically pay rent to the recipient in the form of a certain amount of money or provide funds for its maintenance in another form.

Under an annuity agreement, it is allowed to establish the obligation to pay rent indefinitely (permanent annuity) or for the life of the recipient of the annuity (lifetime annuity) (paragraph 2 of article 583 of the Civil Code).

The question of whether an annuity contract can be consensual is debatable. More correct is the opinion that a rent contract is always a real contract, since without the actual transfer of property to the payer of the rent, it makes no sense to talk about the emergence of rent relations. This agreement also applies to reimbursable and unilateral agreements.

The parties to the annuity agreement are the recipient of the annuity (the annuity creditor) and the payer of the annuity (the annuity debtor).

Only citizens can be recipients of rent in a life annuity agreement, including a life maintenance agreement with a dependent. According to paragraph 1 of Art. 589 of the Civil Code, non-profit organizations are also recipients of permanent rent, if this does not contradict the law and corresponds to the goals of their activities. The recipient of the rent may not coincide with the person transferring the property against the payment of rent, for example, when establishing a life annuity by one citizen in favor of another citizen or group of citizens (clause 1,2 of article 596 of the Civil Code).

The law does not establish any restrictions on the range of possible rent payers. Accordingly, they can be both citizens and legal entities, both commercial and non-commercial, interested in acquiring ownership of the proposed property and able to fulfill the condition of paying rent in exchange for it.

The question of the subject of an annuity agreement is controversial, but it is generally recognized that the object of this agreement can be things (both movable and immovable), cash and documentary securities.

An annuity agreement is subject to notarization, and an agreement providing for the alienation of immovable property against the payment of an annuity is also subject to state registration.

Property that is alienated against the payment of rent may be transferred by the recipient of rent to the ownership of the payer of rent for a fee or free of charge.

The law pays special attention to protecting the interests of the recipient of the rent. Rent payments can be made in the form of cash payments (clause 1 of article 590, clause 1 of article 597 of the Civil Code), as well as in the form of providing a dependency, including providing for housing, food, clothing, etc. (Clause 1, Article 602 of the Civil Code). The law establishes the minimum amount of life annuity (clause 2 of article 597 of the Civil Code) and the minimum cost of the total amount of maintenance with a dependent (clause 2 of article 602 of the Civil Code). Regardless of the form, all rental payments must have a monetary value.

An essential condition of the agreement on the transfer of a sum of money or other movable property against payment of rent is the condition that the payer of the rent provides security for the fulfillment of his obligations (pledge, retention of the debtor's property, surety, etc.) or insurance in favor of the recipient of the rent of the risk of liability for non-performance or improper performance these obligations (clause 2 of article 587 of the Civil Code).

Topic 3. LEASE, LEASING, LOANS

3.1. Lease contract

According to the norm of art. 606 of the Civil Code, under a lease (property lease) agreement, the lessor (landlord) undertakes to provide the tenant (tenant) with property for a fee for temporary possession and use or for temporary use. Currently, there are several types of lease:

▪ rental;

▪ rental of vehicles;

▪ rent of buildings and structures;

▪ rent of enterprises;

▪ financial lease (leasing).

The general provisions on lease (§ 1 of Chapter 34 of the Civil Code) apply to these types of contracts, unless otherwise established by special rules on these contracts.

By legal nature, the lease agreement is consensual, paid and bilateral.

According to Art. 607 of the Civil Code, land plots and other isolated natural objects, enterprises and other property complexes, buildings, structures, equipment, vehicles and other things that do not lose their natural properties during their use (non-consumable things) can be leased.

Only individually-defined items are rented out.

The object of the lease agreement is both movable and immovable property. However, immovable property that can be leased under the rules of Sec. 34 of the Civil Code, should not be intended for human habitation. The rental of residential real estate is regulated by special rules of Ch. 35 GK.

The law establishes the types of property, the lease of which is not allowed or limited (power plants, weapons, public railways, etc.).

According to the current legislation, the only essential condition of the lease agreement, as required by law, is the condition on the subject of the lease. The lease agreement must contain data that make it possible to definitely establish the property to be transferred to the tenant as an object of lease. In the absence of these data in the contract, the condition on the object to be leased is considered not agreed by the parties, and the corresponding contract is not recognized as concluded (clause 3 of article 607 of the Civil Code).

The parties to the lease agreement are the landlord and the tenant. The landlord may be the owner, as well as a person authorized by law or the owner to lease property (Article 608 of the Civil Code).

According to paragraph 1 of Art. 609 of the Civil Code, a lease agreement for a period of more than a year, and if at least one of the parties to the agreement is a legal entity - regardless of the term, must be concluded in writing. A real estate lease agreement is subject to state registration, unless otherwise provided by law (clause 2, article 609 of the Civil Code).

The lease agreement is concluded for a period specified in the agreement. If the lease term is not specified in the agreement, the lease agreement is considered concluded for an indefinite period (clause 1,2 of article 610 of the Civil Code). Thus, the term is not an essential condition of the lease agreement, since this agreement can be concluded without its approval.

In the event that the lease agreement was concluded without specifying a period, each of the parties has the right to withdraw from the agreement at any time by notifying the other party one month in advance, and in the case of real estate lease - three months in advance. The law or the contract may establish a different period for warning about the termination of the lease agreement (paragraph 2, clause 2, article 610 of the Civil Code).

The landlord must provide the tenant with property in a condition that complies with the terms of the lease agreement and the purpose of the property (clause 1 of article 611 of the Civil Code).

The tenant is obliged to use the leased property in accordance with the terms of the lease agreement, and if such conditions are not defined in the agreement, in accordance with the purpose of the property (clause 1, article 615 of the Civil Code). The tenant must exercise the same degree of care in the use of the leased property that he shows to his own property. According to paragraph 2 of Art. 616 of the Civil Code, the tenant is obliged to maintain the property in good condition, carry out current repairs at his own expense and bear the costs of maintaining the property, unless otherwise provided by law or the lease agreement.

The lessor is obliged to carry out major repairs of the leased property at his own expense, unless otherwise provided by law, other legal acts or the lease agreement (paragraph 1 of article 616 of the Civil Code).

Due to the compensated nature of the lease agreement, the main obligation of the lessor is the timely payment for the use of property (rent). At the same time, the condition on lease payments does not apply to the essential terms of the lease agreement. According to par. 2 p. 1 art. 614 of the Civil Code, the procedure, conditions and terms for paying rent are determined by the lease agreement. However, in the event that they are not defined by the contract, it is considered that the procedure, conditions and terms that are usually applied when renting similar property under comparable circumstances have been established.

For a lease agreement, the nature of the remuneration is not so important: it can be both monetary and have a different material form.

Lease payments must be made in the manner and within the terms stipulated by the agreement. Unless otherwise provided by the contract, in the event of a significant violation by the lessee of the terms for paying the rent, the lessor has the right to demand from him early payment of the rent within the period established by the lessor. At the same time, the landlord is not entitled to demand early payment of rent for more than two consecutive terms (paragraph 5 of article 614 of the Civil Code). He also has the right to collect interest under Art. 395 of the Civil Code and losses caused by late payment.

Unless otherwise provided by the agreement, the amount of rent may be changed by agreement of the parties within the time period not provided for by the agreement, but not more than once a year. The law provides for other minimum periods for reviewing the amount of rent for certain types of lease, as well as for the lease of certain types of property (paragraph 3 of article 614 of the Civil Code).

The tenant owns the right of ownership to the fruits, products and incomes received as a result of the use of the leased property in accordance with the contract (part 2 of article 606 of the Civil Code).

During the term of the lease agreement, the lessee is given the opportunity to have limited disposal of the leased object and the right to lease. So, the lessee has the right, with the consent of the lessor, to sublease the leased property (sublease) and transfer his rights and obligations under the lease agreement to another person (transfer), unless otherwise provided by law. When subletting property, the lessee remains liable under the contract to the lessor (paragraph 1, clause 2, article 615 of the Civil Code).

The transfer of ownership (economic management, operational management, lifetime inheritable possession) to the leased property to another person is not a basis for changing or terminating the lease agreement (clause 1, article 617 of the Civil Code).

Unless otherwise noted in the law or the lease agreement, the tenant, who duly performed his duties, after the expiration of the term of the agreement has, all other things being equal, the right to conclude a lease agreement for a new term (paragraph 1 of article 621 of the Civil Code).

A law or an agreement may provide for the right to redeem the leased property upon the expiration of the lease term or before its expiration, provided that the lessee pays the entire redemption price stipulated by the agreement. However, the law may define cases of prohibition of the repurchase of leased property (Article 624 of the Civil Code).

The main reason for the termination of the lease is the expiration of its term. However, if the tenant continues to use the property after the expiration of the contract in the absence of objections from the lessor, the contract is considered renewed on the same terms for an indefinite period (paragraph 2 of article 621 of the Civil Code). The lessor and the lessee have the right to cancel the contract concluded for an indefinite period at any time by notifying the other party about it one month in advance, and when renting real estate - three months in advance.

With regard to lease agreements concluded for a fixed period, the law provides for early termination of the agreement by the court at the request of the landlord in cases where the tenant:

▪ uses the property with a significant violation of the terms of the contract or the purpose of the property or with repeated violations;

▪ significantly deteriorates the property;

▪ fails to pay rent more than two times in a row after the expiration of the payment period established by the contract;

▪ fails to carry out major repairs of the property within the time limits established by the lease agreement, and if they are not specified in the lease agreement, within a reasonable time in cases where, in accordance with the law, other legal acts or the agreement, major repairs are the responsibility of the tenant.

The landlord has the right to demand early termination of the contract only after sending the tenant a written warning about the need to fulfill his obligations within a reasonable time (Article 619 of the Civil Code).

In Art. 621 of the Civil Code provides grounds for termination of the lease agreement by the court at the request of the tenant.

Upon termination of the lease agreement, the tenant is obliged to return the property to the landlord in the condition in which he received it, taking into account normal wear and tear or in the condition stipulated by the agreement (Article 622 of the Civil Code).

3.2. Financial lease (leasing) agreement

According to the norm of art. 665 of the Civil Code, under a financial lease agreement (leasing agreement), the lessor undertakes to acquire ownership of the property specified by the tenant from the seller specified by him and provide the tenant with this property for a fee for temporary possession and use for business purposes. In this case, the lessor is not responsible for the choice of the leased item and the seller.

In the codified civil legislation of Russia, the financial lease (leasing) agreement was for the first time enshrined in the norms of § 6 Ch. 34 GK. In addition, there is Federal Law No. 29.10.1998-FZ of October 164, XNUMX "On Financial Leasing (Leasing)" and a significant number of by-laws.

Leasing is widespread in international commercial practice. It is currently regulated by the UNIDROIT Convention on International Financial Leasing, signed in Ottawa on May 28, 1988. Russia has been a party to this Convention since 1998 (Federal Law No. financial leasing).

The main forms of leasing are internal leasing and international leasing (clause 1, article 7 of the Federal Law "On financial leasing (leasing)".

The parties to a leasing agreement are the lessor (lessor) and the lessee (lessee). As follows from the norm, Part 2, Art. 665 of the Civil Code, a leasing agreement can only pursue entrepreneurial goals, therefore, only entities engaged in commercial activities, including non-commercial legal entities, to the extent that they can carry out such activities, can be parties to it.

Since the current legislation refers to a leasing agreement as a lease agreement and the parties to it are legal entities, the form of this agreement must be in writing. Real estate leasing contracts are subject to state registration (Article 609 of the Civil Code).

The term of the lease agreement is determined at the discretion of the parties in accordance with the rules of Art. 610 GK.

The essential terms of the leasing agreement are the conditions on the object of leasing, on the seller of this object and on the exclusively entrepreneurial purpose of using the object of leasing.

One of the main features that distinguish a leasing agreement from other types of a lease agreement is the obligation of the landlord to buy the property specified by the tenant from the seller specified by the tenant (part 2 of article 665 of the Civil Code). However, the leasing agreement may provide that the choice of the seller and the acquired property is carried out by the lessor (part 2 of article 665 of the Civil Code).

For the execution of a leasing agreement, some features are characteristic. Thus, the execution of this agreement by the lessor begins with the acquisition of the leased object indicated by the lessee from the seller chosen by him under the contract of sale. In this case, the lessor is obliged to notify the seller that the property is intended to be leased to a certain person (Article 667 of the Civil Code). Reporting to the seller of information about the person to whom the leasing object is being leased is necessary because, by virtue of the law, the rights of claim under the contract of sale are transferred to the lessee (lessee). At the same time, the tenant has the rights and bears the obligations provided for by the Civil Code for the buyer, except for the obligation to pay for the acquired property, as if he were a party to the contract for the sale of the said property. However, the tenant cannot terminate the sales contract with the seller without the consent of the landlord. In relations with the seller, the tenant and the landlord act as solidary creditors (paragraph 1 of article 670 of the Civil Code).

The lessee at his own expense carries out maintenance of the leased asset and ensures its safety, as well as carries out major and current repairs of the leased asset, unless otherwise provided by the lease agreement.

The leasing agreement may provide that the subject of leasing becomes the property of the lessee after the expiration of the leasing agreement or before its expiration on the terms stipulated by the agreement of the parties. The federal law may establish cases of prohibition of the transfer of ownership of the subject of leasing to the lessee (Article 19 of the Federal Law "On Financial Lease (Leasing)").

An important duty of the tenant (lessee) is to make lease payments.

The lessor has control rights. He has the right to exercise control over the observance by the lessee of the terms of the leasing agreement and other related agreements.

Upon termination of the leasing agreement, the general provisions on the return of the leased property to the lessor (Article 622 of the Civil Code) apply.

3.3. Contract for gratuitous use (loans)

In accordance with paragraph 1 of Art. 689 of the Civil Code, under a gratuitous use agreement (loan agreement), one party (the lender) undertakes to transfer or transfers the thing for gratuitous temporary use to the other party (the borrower), which undertakes to return the same thing in the condition in which it received it, taking into account normal wear and tear or in the condition stipulated by the contract.

The loan agreement can be both consensual and real. A consensual loan agreement takes place when, under the terms of the agreement, the obligation of the lender to transfer the thing for gratuitous use arises from the moment it is concluded. In the absence of such a condition, the loan agreement is considered concluded from the moment the thing is transferred for free use, i.e. it is a real deal.

According to the subject composition, consensual loan agreements are bilateral, but there is no sign of reciprocity in them, since the obligation of the lender to transfer the thing for gratuitous use does not correspond to the right of the borrower to demand such a transfer. By virtue of the gratuitous nature of the loan agreement, if the lender fails to fulfill the obligation to provide the thing for gratuitous use, the borrower does not have the right to demand the transfer of the thing in kind, but has the right to demand only termination of the agreement and compensation for real damage suffered by him (Article 692 of the Civil Code).

The bilateral nature of a real loan agreement is expressed in the presence of different rights and obligations for both parties. So, in addition to the rights, the lender has obligations to be responsible for the shortcomings of the thing transferred for gratuitous use (Article 693 of the Civil Code), and for harm caused to a third party as a result of the use of the thing (Article 697 of the Civil Code).

The parties to the loan agreement are the lender and the borrower. According to paragraph 1 of Art. 690 of the Civil Code, the lender may be the owner or another person authorized by law or the owner.

The law does not define who can be a borrower, therefore, it can be any person. However, there are exceptions. So, a commercial organization is not entitled to transfer property for free use to a person who is its founder, participant, head, member of its management or control bodies (clause 2 of article 690 of the Civil Code).

The subject of a loan agreement can be individually defined and non-consumable things, both movable and immovable.

The loan agreement must contain data that make it possible to definitely establish the property to be transferred to the borrower as an object of use. In the absence of such data in the contract, the condition on the object to be transferred is considered not agreed by the parties, and the contract for gratuitous use is not considered concluded. Documentary confirmation of the data allowing to identify the subject of the loan must be the same as when concluding a lease agreement.

Since the use of property under a loan agreement is free of charge, the fruits and income from the thing transferred to the loan belong to the lender as the owner of the thing. However, the agreement of the parties may provide otherwise.

The form of the loan agreement must comply with the general rules on the form of transactions. Within the meaning of paragraph 1 of Art. 131 of the Civil Code, state registration of the transfer of real estate for free use is required.

A loan agreement can be concluded for a fixed period, and if the period is not specified in the agreement, it is considered concluded for an indefinite period (clause 1, paragraph 1, clause 2, article 610 of the Civil Code). In the latter case, the term of the contract is limited to the moment the property is claimed by the person who provided it.

In view of the similarity of lease and loan agreements, many rules relating to the lease agreement apply to the loan agreement (paragraph 2 of article 689 of the Civil Code).

The main obligation of the lender is to provide the borrower with a thing in a condition corresponding to the terms of the contract and its purpose (paragraph 1 of article 691 of the Civil Code).

The obligation of the borrower to maintain the thing is the obligation to maintain the thing received for gratuitous use in good condition, including the implementation of current and major repairs, and to bear all the costs of its maintenance, unless otherwise provided by the contract (Article 695 of the Civil Code).

The borrower is obliged to use the thing transferred to him for gratuitous use in accordance with the terms of the contract, and if such conditions are not established in the contract, then in accordance with the purpose of the thing. In case of violation of this obligation, the lender has the right to demand termination of the contract and compensation for losses (clauses 1, 3 of article 615, clause 2 of article 689 of the Civil Code).

Cancellation of a loan agreement concluded without specifying a term is possible at any time. The party withdrawing from the contract is obliged to notify the other party of this one month in advance, unless the contract provides for a different notice period. If the loan agreement is concluded with an indication of its validity period, only the borrower has the right to withdraw from the agreement with such notice, unless otherwise provided by the loan agreement (Article 699 of the Civil Code).

For the reasons specified in Art. 698 of the Civil Code, early termination of a loan agreement concluded for a certain period is possible.

If the borrower continues to use the thing after the expiration of the contract in the absence of objections from the lender, the contract is considered renewed on the same conditions for an indefinite period (clause 2 of article 621, clause 2 of article 689 of the Civil Code).

Upon termination of the loan agreement, the borrower is obliged to return this thing. The thing is subject to return to the lender in the condition in which he received it for use, taking into account normal wear and tear, or in the condition stipulated by the loan agreement.

Topic 4. LEASE AGREEMENT AND OTHER HOUSING OBLIGATIONS

4.1. Residential lease agreement

In accordance with paragraph 1 of Art. 671 of the Civil Code, under a residential lease agreement, one party - the owner or a person authorized by him (landlord) undertakes to provide the other party (tenant) with residential premises for a fee for possession and use for living in it.

The lease agreement for residential premises is consensual, paid, bilateral.

The Civil Code highlights a contract for social rental of residential premises, which can be concluded along with the so-called commercial rental agreement for residential premises and a contract for the rental of specialized residential premises. A contract for social rental of residential premises is concluded when renting residential premises in the state and municipal housing stock for social use, an agreement for commercial rental of residential premises - when renting out housing for the purpose of generating income, a contract for renting specialized residential premises - when renting office premises, residential premises in a hostel and other residential premises of specialized housing stock (Article 92 of the LCD).

A social tenancy agreement can only be concluded for a dwelling that is part of the social use fund, and if a citizen has the necessary prerequisites for its conclusion, which include: recognition of a citizen in the prescribed manner as a poor person or his belonging to another category of citizens who, in accordance with with the law, residential premises are provided under social tenancy agreements; the need for housing; the state of registration of those in need of residential premises provided under social rental agreements, with the exception of cases established by the LCD; the presence of a decision of the local government on the provision of housing to this citizen and his family in accordance with applicable regulations.

A commercial lease agreement is concluded entirely on the basis of the principle of freedom of contract, i.e. its conclusion depends on the discretion of the parties, who themselves determine its most important conditions: the term of the contract, the amount and procedure for paying a fee for renting a dwelling, the distribution of responsibilities for the repair of a leased dwelling, etc.

Both commercial and social employment contracts are concluded in writing (Article 674, clause 3 of Article 672 of the Civil Code). Failure to comply with this form of the contract does not entail its invalidity, except for the cases specified in the law or in the agreement of the parties (clauses 1, 2 of article 162 of the Civil Code).

The term of the contract is determined differently for commercial and social contracts, and this is one of their main differences.

In accordance with paragraph 1 of Art. 683 of the Civil Code, a commercial lease agreement is concluded for a period not exceeding five years. However, the period is not an essential condition of this agreement, since if it is not defined in the agreement, then the agreement is considered concluded for five years.

An agreement concluded for a period of up to one year is recognized as short-term, and it is not subject to the provisions of paragraph 2 of Art. 683 of the Civil Code, rules relating to a contract with a term of more than one year. In particular, such an agreement is not subject to the rule on the pre-emptive right of the employer to conclude an agreement for a new term (part 1 of article 684 of the Civil Code).

Upon the expiration of the contract for the commercial rental of residential premises, with the exception of the case indicated above, the tenant has the pre-emptive right to conclude a contract for a new term.

Not later than three months before the expiration of the contract for the commercial rental of residential premises, the landlord must offer the tenant to conclude an agreement on the same or other conditions or warn the tenant of the refusal to renew the contract in connection with the decision not to rent out the residential premises for at least one year. If the landlord has not fulfilled this obligation, and the tenant has not refused to renew the contract, the contract is considered extended on the same conditions and for the same period (part 2 of article 684 of the Civil Code).

In contrast to a commercial tenancy agreement, in relation to a social tenancy agreement, the law does not limit its validity period, as a result of which the social tenancy agreement is open-ended.

The parties to a residential lease agreement are the landlord and the tenant. The landlord in both types of lease is the owner of the dwelling or a person authorized by him.

Only a citizen, an individual, can be a tenant, since a dwelling, as indicated in paragraph 1 of Art. 671 of the Civil Code, is provided "for living in it."

Usually, one citizen (individual) acts as a tenant in a commercial lease agreement. However, a plurality of persons on the side of the employer is also possible. Citizens permanently residing with the tenant may, by notifying the landlord, conclude an agreement with the tenant that they all bear joint and several liability to the landlord together with the tenant. In this case, such citizens are co-tenants (paragraph 4 of article 677 of the Civil Code).

When concluding a contract for the commercial rental of residential premises, the citizen himself determines who will live with him in the premises he has rented. Such persons may also be citizens who are not his spouse or relatives. However, the tenant does not have the right to arbitrarily settle in the living quarters provided to him everyone he wants. In accordance with paragraph 2 of Art. 677 of the Civil Code, in a commercial lease agreement, citizens permanently residing in a residential building together with the tenant must be indicated. In the absence of such indications in the contract, the settlement of these citizens is carried out only with the consent of the landlord.

After the conclusion of a contract for the commercial rental of residential premises and the initial determination of the persons who will live with the tenant, the settlement of other citizens as permanent residents with the tenant is possible only with the consent of the landlord, the tenant and citizens permanently residing with him at the moment. When moving in minor children, such consent is not required (Article 679 of the Civil Code).

Citizens permanently residing together with the tenant have equal rights with him to use the premises. Relations between the employer and such citizens are determined not by themselves, but by law (paragraph 2, clause 2, article 677 of the Civil Code). At the same time, persons permanently residing with the tenant are not directly in legal relations with the landlord regarding the use of the residential premises. In this regard, for the commission of actions by them that violate the terms of the contract, the employer is responsible to the landlord (paragraph 3 of article 677 of the Civil Code). The exception is cases when these citizens are co-tenants.

If the dwelling belongs to the municipal housing stock, then the landlord is a local government body or a municipal housing maintenance organization. In cases of renting out a dwelling that is part of the state housing stock, the landlord is a state enterprise or institution on whose balance sheet this dwelling is located, or a housing maintenance organization created by them.

The tenant at the conclusion of the contract of social rental of residential premises is a citizen who was provided with residential premises in accordance with the established procedure. After the conclusion of the contract, it is possible to replace the tenant with another capable family member, for example, in the event of the tenant leaving the given dwelling, his death (Article 82 of the LC).

In addition to the tenant, members of his family also have the right to permanent use of residential premises under a social tenancy agreement. All other persons can only live with the tenant as temporary residents.

The LC (Part 1, Article 69) defines, firstly, persons who are family members, and, secondly, persons who can be recognized as family members.

The family members of the tenant of a dwelling under a social tenancy agreement include his spouse living together with him, as well as the children and parents of this tenant. Other relatives, disabled dependents are recognized as members of the employer's family if they are moved in by the employer as members of his family and run a common household with him (joint expenditure on food, purchase of things, payment for the use of an apartment, etc.). In exceptional cases, other persons may be recognized as family members of the tenant of residential premises under a social tenancy agreement in a judicial proceeding.

If a person has ceased to be a member of the family, but continues to live in a residential building occupied under a social tenancy agreement, he retains the same rights as the tenant and members of his family have. The specified citizen is independently responsible for his obligations arising from the relevant social contract of employment (in particular, the former spouse of the employer or the spouse of a family member in the event of divorce).

The tenant has the right to move his spouse, his children and parents into the residential premises occupied by him under a social contract of employment, having received the written consent of all adult members of his family, including those temporarily absent. For the tenant to move into such a dwelling of other citizens as members of his family living together with him, the consent in writing of the landlord is also required. The consent of the other members of the tenant's family and the consent of the landlord is not required to move in with the parents of their minor children (part 1 of article 70 of the LC).

According to paragraph 2 of Art. 672 of the Civil Code, members of his family living under a social tenancy agreement together with the tenant enjoy all the rights and bear all obligations under the tenancy agreement on an equal basis with the tenant. It follows from this rule that all of them are co-tenants under this agreement, in connection with which it is possible to terminate the contract for renting a dwelling separately with each of them (for example, if one of the members of the tenant's family leaves for another permanent place of residence).

In relations with the landlord in social hiring, the tenant acts as a representative of his family members by virtue of the law (clause 1, article 182 of the Civil Code).

The subject of commercial and social lease agreements is an isolated residential area.

A premise is recognized as residential if it meets the established sanitary, urban planning, technical and fire safety requirements and is intended for citizens to live in all seasons of the year. The house in which the rented premises are located must be registered as residential at the technical inventory bureau or other authorized body.

The residential premises to be rented must be isolated, i.e. be a residential building, apartment, part of a house or part of an apartment with a separate entrance. A part of a room or a room connected to another room by a common entrance (adjacent room) cannot be an independent subject of a lease agreement. Adjacent rooms as a whole can be the object of one lease agreement (adjacent-isolated rooms).

The object of a commercial lease may be a residential area, regardless of its size. As for the quality of the residential premises rented out under such an agreement, it must comply with the concept of "premises suitable for permanent residence" (clause 1 of article 673 of the Civil Code).

The suitability of a dwelling for living is determined in the manner prescribed by housing legislation (paragraph 2, clause 1, article 673 of the Civil Code). The category unsuitable for habitation currently includes basements and semi-basements, premises without natural light, barracks, emergency houses, etc. Such premises cannot be the object of a lease agreement.

Utility rooms cannot be an independent object of a commercial lease agreement. However, when renting an apartment, house, part of the house, they are part of the object of the contract. If part of the apartment is rented out (a room or several rooms), the utility rooms will be in common use by all tenants, i.e. constitute a common object.

The landlord, under a residential lease agreement (both commercial and social), is obliged to provide the other party-tenant with a residential space for living in it (paragraph 1 of article 671 of the Civil Code).

The obligations of the landlord under a commercial lease agreement are defined in Art. 676 GK. The landlord is obliged to transfer to the tenant a free living space in a condition suitable for habitation. In addition, he is obliged to carry out the proper operation of the residential building in which the rented residential premises are located, to provide or ensure the provision of the necessary utilities to the tenant for a fee, to ensure that the common property of the apartment building and devices for the provision of communal services located in the residential premises are repaired. .

The landlord of a dwelling under a social tenancy agreement is obliged to:

▪ transfer to the tenant residential premises free from the rights of other persons;

▪ take part in the proper maintenance and repair of common property in the apartment building in which the rented residential premises are located;

▪ carry out major repairs of the residential premises (the responsibility for carrying out routine repairs of the residential premises rests with the tenant - clause 4, part 3, article 67 of the Housing Code);

▪ ensure that the tenant is provided with the necessary utilities of adequate quality.

In addition to those indicated, the landlord bears other obligations provided for by housing legislation and the contract for the social rental of residential premises (Article 65 of the LC).

A specific feature of the right to living space, which distinguishes it from other rights in rem, is its target character. Residential premises are provided to the tenant for living in it, i.e. to meet his housing needs. Accordingly, it is not allowed to place trade enterprises, offices of legal entities in residential premises, use them for the production of industrial or other products, for warehouses, etc. The use of residential premises for other purposes may serve (subject to the conditions provided for by law) as a basis for terminating the contract for renting residential premises (paragraph 2, clause 4, article 687 of the Civil Code, clause 4, part 4, article 83 of the LC).

However, according to part 1 of Art. 17 of the LCD allows the use of residential premises for the implementation of professional activities or individual entrepreneurial activities by citizens legally residing in it, if this does not violate the rights and legitimate interests of other citizens, as well as the requirements that the residential premises must meet.

The tenant is obliged to ensure the safety of the premises and maintain it in proper condition. He is not entitled to reorganize and reconstruct the dwelling without the consent of the landlord.

The most important duty of the tenant is the timely payment for the residential premises, and unless otherwise provided by the contract, the independent payment of utility bills (Article 678 of the Civil Code).

One of the tenant's rights arising from a residential lease agreement is the right to sublease the rented residential premises. Under a residential sublease agreement, the tenant, with the consent of the landlord, transfers for a period part or all of the premises he has rented for use by the subtenant (clause 1, article 685 of the Civil Code).

The tenant has the right to move into the premises not only sub-tenants, but also other persons - temporary residents (users). As the latter, relatives, acquaintances of the tenant and members of his family, etc. can move in. The legal status of temporary residents does not depend on the type of tenancy.

To move in a temporary tenant, the permission of the tenant and citizens permanently residing with him, as well as prior notification of the landlord, are required.

Temporary residents do not have an independent right to use the premises. The employer is responsible for their actions to the landlord.

Temporary residents acquire, in accordance with the concluded agreement, the right to temporary use of the tenant's residential premises. The period of residence of temporary residents cannot exceed six months in a row (part 1 of article 680 of the Civil Code, part 2 of article 80 of the LC). It should, however, be noted that the current Rules for the registration and deregistration of citizens of the Russian Federation at the place of stay and at the place of residence within the Russian Federation (clause 10), approved by Decree of the Government of the Russian Federation of July 17.07.1995, 713 No. 02.02.1998, the deadline for registration of citizens at the place of stay in residential premises that are not their place of residence has not been established. In addition, the limitation of the period of residence of temporary residents is contrary to the norms of the Constitution, since, as the Constitutional Court of the Russian Federation pointed out in its Resolution of 4 No. another place of temporary residence must be determined by the citizen himself, and its establishment by the state is unacceptable, since it means limiting the freedom of expression when choosing a place of residence.

If the parties have agreed on the period of residence of temporary residents, they are obliged to vacate the premises at the request of the tenant or any citizen permanently residing with him, after this period, and if this period has not been agreed, no later than seven days from the date of presentation of such a requirement ( article 680 of the Civil Code). In the event of termination of the rental contract for residential premises, as well as in case of refusal of temporary residents to vacate the residential premises after the expiration of the period of residence agreed with them or the presentation of the above requirement, temporary residents are subject to eviction from the residential premises in a judicial proceeding without providing another residential premises (part 5 of Art. .80 LCD).

The law (Article 82 of the LC) provides for the possibility of changing the contract of social rental of housing at the request of tenants uniting in one family, as well as by replacing the tenant in a previously concluded agreement with a capable member of his family (for example, a father wants to transfer the rights of the tenant to his son). In the latter case, to change the contract, the consent of the landlord and other family members of the person wishing to become a tenant is required.

The considered types of changes in the tenancy agreement relate to social hiring. Changes to a commercial lease agreement are less fully regulated.

According to Art. 686 of the Civil Code, in particular, it is possible to replace the tenant in a commercial lease agreement at the request of the tenant and other citizens permanently residing with him, and with the consent of the landlord by one of the adult citizens permanently residing with the employer. In cases of failure to reach an agreement between the relevant persons living in the residential premises to replace the tenant, as well as the disagreement of the landlord to such a replacement, it is possible to apply to the court for resolution of the dispute.

As stipulated by Part 2 of Art. 678 of the Civil Code, the tenant is not entitled to reorganize and reconstruct the dwelling without the consent of the landlord. This rule also applies to a social contract of employment (paragraph 3 of article 672 of the Civil Code).

In accordance with the principle of freedom of contract, by agreement between the parties to the contract for the commercial rental of residential premises, any of its conditions can be changed, with the exception of those that are imperatively established by law.

For the obligation to rent a dwelling, the law provides for special grounds for its termination.

The grounds for terminating the legal relationship of renting a dwelling include, first of all, the termination of the contract, which is possible at the initiative of both parties, the tenant or the landlord.

The social tenancy agreement may be terminated at any time by agreement of the parties.

The tenant of a dwelling under a social tenancy agreement has the right, with the consent in writing of the members of his family living together with him, to terminate the social tenancy agreement at any time.

In the event that the tenant and members of his family leave for another place of residence, the contract for social rental of residential premises is considered terminated from the date of departure (parts 1 - 3 of article 83 of the LC).

Termination of a social tenancy agreement at the request of the landlord is allowed in court in the following cases:

▪ failure by the tenant to pay for housing and (or) utilities for more than six months;

▪ destruction or damage to residential premises by the tenant or other citizens for whose actions he is responsible;

▪ systematic violation of the rights and legitimate interests of neighbors, which makes it impossible to live together in the same residential premises;

▪ use of residential premises for other purposes (part 4 of article 83 of the Housing Code).

The consequence of termination of the tenancy agreement is the obligation to vacate the dwelling by the tenant and members of his family. This obligation may be performed voluntarily or by force.

As the Constitution proclaims, no one can be arbitrarily deprived of housing (Part 1, Article 40). As a development of this provision, Art. 3 of the LCD provides that no one can be evicted from a dwelling or restricted in the right to use a dwelling, including the right to receive public services, except on the grounds and in the manner provided for by the Housing Code and other federal laws.

The eviction of citizens from residential premises provided under social rental agreements is possible in the cases specified in Art. 85, 90, 91 LCD.

The contract of social tenancy of premises can be terminated only in court (part 4 of article 83 of the LCD). In other cases (apart from the termination of the contract of social employment), eviction is also carried out in court.

Upon termination of the contract of social rental of residential premises, the eviction of the tenant and members of his family from the residential premises occupied by them is allowed, as a rule, provided that the evicted persons are provided with another residential premises. The requirements for this room are defined by Art. 89, 90 LCD.

As a general rule, a citizen and his family, when evicted from a premises occupied under a social tenancy agreement, must be provided with another comfortable living quarters. At the same time, the provided residential premises must be well-maintained in relation to the conditions of the corresponding settlement, equivalent in terms of total area to the previously occupied residential premises, meet the established requirements and be located within the boundaries of this settlement.

If the tenant and members of his family living together with him occupied an apartment or at least two rooms before the eviction, the tenant accordingly has the right to receive an apartment or to receive a dwelling consisting of the same number of rooms in a communal apartment (parts 1,2 article 89 LCD).

The eviction of citizens from residential premises with the provision of other comfortable residential premises under social rental agreements is allowed in the following cases:

▪ if the house in which the residential premises are located is subject to demolition;

▪ if the residential premises are to be transferred to non-residential premises;

▪ if the residential premises are declared unfit for habitation;

▪ if, as a result of major repairs or reconstruction of a house, the residential premises cannot be preserved or its total area decreases, as a result of which the tenant and his family members living in it may be recognized as needing residential premises, or increases, as a result of which the total area of ​​the occupied premises residential premises per family member will significantly exceed the provision norm (Article 85 of the Housing Code).

In accordance with Art. 90 of the LCD if the tenant and members of his family living with him for more than six months without good reason do not pay for housing and utilities, they can be evicted in court with the provision of another housing under a social tenancy agreement, the amount of which corresponds the size of the living quarters established for the settlement of citizens in the hostel.

Eviction from a dwelling occupied under a social tenancy agreement without providing another dwelling is an exceptional eviction procedure, the use of which is allowed only in certain cases provided for by law (Article 91 of the LC). The basis for such eviction is a gross violation by the tenant or members of his family of legal norms. Such violations include:

▪ use of residential premises for purposes other than their intended purpose (for example, as a warehouse, brothel, etc.);

▪ systematic violation of the rights and legitimate interests of neighbors;

▪ mismanagement of residential premises, leading to its destruction.

Since eviction is applied here as a sanction for the unlawful behavior of the tenant or members of his family, it is possible only if warning measures were taken against the violator, but they turned out to be ineffective (part 1 of article 91 of the LC).

Citizens deprived of parental rights can also be evicted without providing other housing, if their cohabitation with children in respect of whom they are deprived of parental rights is recognized by the court as impossible (part 2 of article 91 of the LC).

In case of commercial hiring, termination of the contract and eviction are allowed in exceptional cases, which are expressly specified in Art. 687 GK.

Termination of a commercial lease agreement, as well as a social lease agreement, at the request of the landlord is possible only in court.

According to paragraph 1 of Art. 687 of the Civil Code, the tenant has the right, with the consent of other citizens permanently residing with him, at any time to terminate the contract for the commercial rental of residential premises. However, in order to prevent the incurrence of losses for the person renting the premises, the law provides that the tenant is obliged to warn the landlord in writing three months in advance about the termination of the contract. If this condition is not observed, the landlord has the right to present the tenant with a claim for compensation for lost profits in the form of lost income from renting out the premises.

A commercial lease agreement may be terminated in court at the request of the landlord in the following cases:

▪ failure by the tenant to pay for the residential premises for six months, unless a longer period is established by the contract, and in the case of short-term rentals - if the payment is not paid more than twice after the expiration of the payment period established by the contract;

▪ destruction or damage to residential premises by the tenant or other citizens for whose actions he is responsible.

By a court decision, the tenant may be given a period of not more than a year to eliminate the violations that served as the basis for terminating the contract for the commercial rental of residential premises. If, within the period determined by the court, the tenant does not eliminate the violations committed or does not take all the necessary measures to eliminate them, the court, upon repeated appeal of the landlord, makes a decision to terminate the contract for renting a dwelling. At the same time, at the request of the employer, the court in the decision to terminate the contract may postpone the execution of the decision for a period of not more than a year (paragraph 4, clause 2, article 687 of the Civil Code).

The contract for the commercial rental of residential premises can be terminated in court at the request of any of the parties to the contract if the premises cease to be suitable for permanent residence, as well as in the event of its emergency condition (paragraph 2, clause 3, article 687 of the Civil Code).

If the tenant of the dwelling or other citizens for whose actions he is responsible use the dwelling for other purposes or systematically violate the rights and interests of neighbors, the landlord may warn the tenant of the need to eliminate the violation. If these violations continue after warning the landlord, the latter has the right to terminate the tenancy agreement in a judicial proceeding. In this case, in accordance with paragraph 4 of Art. 687 of the Civil Code, the above rules provided for in par. 4 p. 2 of the same article.

Upon termination of the commercial lease agreement and the refusal of the tenant and other citizens permanently residing with him to voluntarily vacate the residential premises, these persons are subject to eviction from the residential premises on the basis of a court decision (Article 688 of the Civil Code).

Features of relations arising from the hiring of residential premises of a specialized housing stock are defined in sec. IV LCD.

4.2. Residential exchange agreement

A residential exchange agreement is an agreement under which one person who has the right to a residential premises undertakes to transfer the residential premises owned or occupied by him to another person, who in turn undertakes to transfer a certain residential premises in return. The exchange of residential premises between their owners (citizens or legal entities) is carried out not under an agreement for the exchange of residential premises, but under an exchange agreement, although taking into account the specifics of the subject of exchange.

The rules governing the exchange of residential premises occupied under a social tenancy agreement are contained in Art. 72 - 75 LCD. Only the tenant acts as a party to the agreement for the exchange of such residential premises. The housing rights of members of his family living together with him, including those temporarily absent, are taken into account by the legislator, which provides for the obligatory giving of these persons consent to the exchange in writing.

Members of his family living together with the tenant have the right to demand from the tenant the exchange of the residential premises occupied by them under a social tenancy agreement for residential premises provided under social tenancy agreements to other tenants and located in different houses or apartments.

Several tenants can be participants in the residential premises exchange agreement, i.e. An exchange agreement can be both bilateral and multilateral.

Exchanged residential premises can be located both in one and in different settlements on the territory of the Russian Federation.

If an agreement on the exchange is not reached between the tenant of the residential premises under a social tenancy agreement and the members of his family living together with him, any of them has the right to demand the implementation of a forced exchange of the occupied residential premises in a judicial proceeding. At the same time, noteworthy arguments and legitimate interests of persons living in the exchanged residential premises are taken into account (Article 72 of the LC).

In accordance with Art. 74 of the LCD, an agreement on the exchange of residential premises is concluded in writing by drawing up one document signed by the relevant tenants.

The specified agreement is submitted by the tenants who have concluded it to each of the landlords with whom they have concluded social rental agreements for the exchanged residential premises in order to obtain consent to the exchange. The refusal of the landlord to give consent to the exchange may be challenged in court.

The agreement on the exchange of residential premises and the consent of each landlord of the exchanged residential premises for the exchange are the basis for the termination of previously concluded and the simultaneous conclusion of new social tenancy agreements.

Article 73 of the LC provides for cases in which the exchange of residential premises between tenants of these premises under social tenancy agreements is not allowed.

The current legislation does not provide for the exchange of residential premises between tenants and owners of residential premises, between tenants of residential premises under social and commercial rental agreements, between tenants of residential premises under commercial rental agreements, and it is also expressly prohibited to exchange residential premises occupied under a contract for the rental of specialized residential premises ( part 4, article 100 of the LC), which implies that all of the listed types of exchange cannot be carried out. In addition, the exchange of residential premises occupied under commercial lease agreements would be contrary to the nature of the relationship that develops at the conclusion of such agreements between the tenant and the landlord.

Topic 5. CONTRACT

5.1. Work agreement

In accordance with paragraph 1 of Art. 702 of the Civil Code, under a work contract, one party (contractor) undertakes to perform certain work on the instructions of the other party (customer) and hand over its result to the customer, and the customer undertakes to accept the result of the work and pay for it.

The work contract is bilateral, consensual and paid.

Unlike paid agreements on the transfer of property into ownership (other real right) or use, a work contract regulates the legal side of productive activity, accompanied by the creation of a certain materialized result. According to paragraph 1 of Art. 703 of the Civil Code, a work contract is concluded for the manufacture or processing (processing) of a thing or for the performance of other work. Consequently, the interest of the customer in the work contract is to receive a new item manufactured by the contractor as a party to this contract, or to improve the quality and other consumer properties of an existing item.

It is also characteristic of the contract that the result of the work performed must be transferred to the customer. At the same time, under a work contract concluded for the manufacture of a thing, the contractor, along with the transfer of a new thing, also transfers to the customer the rights to this thing (paragraph 2 of article 703 of the Civil Code).

The creation of new individually-defined things or changing their consumer properties in the interests of the customer involves the implementation of contract work on his instructions. The customer has the right at any time to check the progress and quality of work performed by the contractor, without interfering, however, in his activities (paragraph 1 of article 715 of the Civil Code). In turn, according to paragraph 3 of Art. 703 of the Civil Code, the contractor independently determines the methods for fulfilling the customer's task, unless otherwise provided by the contract.

A work contract must also be distinguished from contracts for the provision of services, although the legal norms on a work contract may be subsidiarily applied to certain types of the latter. The main difference between a work contract and contracts for the provision of services is the appearance during its execution of the result, clothed in a materialized form. Such a result is absent in the performance of a contract for the provision of services, which leads to other consequences, both material and intangible in nature (for example, the physical movement of goods during its transportation, improved health as a result of treatment).

The work contract, despite the external similarity, also has significant differences from the employment contract. According to Art. 704, 705 of the Civil Code, the contractor performs the work at his own expense, i.e. from their own materials, on their own strength and means, unless otherwise provided by the contract, and at their own risk. An employee who has concluded an employment contract is enlisted in the staff of the relevant organization, in connection with which he is subject to labor legislation, in particular the norms on the number and conditions of work, its payment and social insurance. At the same time, under the terms of the employment contract, he may be entrusted with the implementation of activities not related to the achievement of a certain materialized result.

The current civil legislation distinguishes several types of work contracts:

▪ household;

▪ construction;

▪ contract for design and survey work;

▪ contract work for government needs.

According to paragraph 2 of Art. 702 of the Civil Code, the general provisions on the contract (§ 1 of Chapter 37 of the Civil Code) apply to such contracts, unless otherwise established by the rules of the Civil Code on these types of contracts.

The parties to the contract are the customer and the contractor. The law does not define the range of entities that can participate in contractual relations both on the part of the contractor and on the part of the customer, in connection with which the general rules on the participation of citizens and legal entities in civil circulation are applied.

As a general rule, if a small amount of technically simple work is to be performed under a work contract, they are performed personally by the contractor. However, when performing a complex set of works, especially in the field of construction contracting, the principle of general contracting is applied. This principle is enshrined in Art. 706 of the Civil Code, according to which, if the obligation of the contractor to perform the work provided for in the contract does not follow from the law or the work contract, the contractor has the right to involve other persons in the performance of his obligations. In this case, the contractor acts as a general contractor, and the law refers to the persons involved in the performance of individual works as subcontractors.

The essence of the principle of general contracting is that the general contractor is liable to the customer for the consequences of non-performance or improper performance of obligations by the subcontractor, since only the customer and the general contractor are bound by obligations under the contract. In turn, the general contractor is liable to the subcontractor for non-fulfillment or improper fulfillment by the customer of obligations under the work contract, since he himself is bound by obligations under the subcontract only with the subcontractor. Thus, here there is a responsibility of the general contractor for the actions of third parties, therefore, the general rules of paragraph 1 of Art. 313, Art. 403 GK.

At the same time, with the consent of the general contractor, the customer may conclude contracts for the performance of certain works with other persons (direct contracts).

The only essential condition of the work contract, as well as most paid civil law contracts, is its subject matter. From the content of Art. 702 of the Civil Code, it follows that the subject of the contract is both the work itself (manufacturing of the thing, its processing or processing, other types of work), and the transfer of its embodied result to the customer. In the absence of a condition on the subject matter in the work contract or if the parties fail to reach an agreement on its subject matter, the contract shall be considered not concluded.

The most important characteristic of the subject of a work contract as a contract for the performance of work is quality. According to Art. 721 of the Civil Code, the quality of the work performed by the contractor must comply with the terms of the work contract, and in the absence or incompleteness of the terms of the contract, with the requirements usually imposed on work of the corresponding kind.

A law, other legal act, work contract or business practices may provide for a guarantee period for the result of work, i.e. the period during which the result of the work must comply with the terms of the contract on quality, provided for in paragraph 1 of Art. 721 GK.

The contract specifies the price of the work to be performed or how it is determined. However, the price is not an essential condition of the work contract, since in the absence of such indications in the work contract, it is determined in accordance with paragraph 3 of Art. 424 GK. The contract price consists of two parts:

1) compensation for costs incurred by the contractor;

2) the remuneration due to him.

If the volume of work is large, and their types are diverse, then the price of the contract is determined by drawing up an estimate.

The price of work (estimate) under the contract may be approximate or firm. Approximate is the estimate, from which deviations (excess) are possible in the course of the work. A firm estimate is called, from which such deviations are not allowed. The law establishes the presumption that the parties agree on a firm estimate, by virtue of which, in the absence of other indications in the contract, the price of the work is considered to be fixed.

One of the important terms of the contract is the term. This contract defines the start and end dates of the work. By agreement between the parties, the contract also provides for the deadlines for completing individual stages of work (interim deadlines). The initial, final and intermediate terms for the performance of work specified in the work contract may be changed in the cases and in the manner prescribed by the contract.

At the same time, the term, like the price, is not an essential condition of the contract. In the absence of an indication in the contract of work for the period of performance of work, the norms of paragraph 2 of Art. 314 GK. In accordance with these rules, an obligation, the term for the performance of which is not provided and cannot be determined, must be performed within a reasonable time after its occurrence. If the obligation is not performed within a reasonable time, then it must be performed within seven days from the date of presentation of the creditor's demand for its performance.

The main obligation of the contractor is to perform certain work on the instructions of the customer and hand over to the latter the result of the work performed (clause 1, article 702 of the Civil Code).

In cases where the work specified in the contract is performed using the customer's material, the contractor is obliged to use the material provided to him economically and prudently (clause 1, article 713 of the Civil Code).

The law defines the consequences of poor-quality work performed by the contractor (Article 723 of the Civil Code).

In accordance with Art. 724 of the Civil Code, the customer has the right to make claims related to the inadequate quality of the result of the work, provided that it is revealed within the time limits provided for in this article, unless otherwise noted by law or the contract. The terms for the customer to submit claims related to the inadequate quality of the work performed depend on the presence or absence of the warranty period and its duration.

In the event that a warranty period is not established for the result of the work, claims related to the shortcomings of the result of the work may be presented by the customer, provided that they were discovered within a reasonable time, but within two years from the date of transfer of the result of the work, unless other terms determined by law, contract or business practices.

If there is a contractual guarantee, the customer has the right to make such claims within the guarantee period established by the contractor. In accordance with paragraph 5 of Art. 724 of the Civil Code, unless otherwise provided by the work contract, the warranty period begins from the moment when the result of the work performed was accepted or should have been accepted by the customer.

If the contractual warranty period is less than two years and defects in the result of the work are discovered by the customer after the expiration of the warranty period, but within two years from the moment when the result of the work performed was accepted or should have been accepted by the customer, the contractor shall bear adverse consequences if the customer proves that that the deficiencies arose before the transfer of the result of the work to the customer or for reasons that arose before that moment.

In Art. 725 of the Civil Code contains special rules on the statute of limitations for claims of inadequate quality of work. The limitation period for claims due to inadequate quality of work performed under a work contract is one year, and in relation to buildings and structures it is determined in accordance with Art. 196 of the Civil Code, i.e. is three years. Thus, for all types of movable and immovable property, except for buildings and structures, the law establishes a reduced limitation period for this type of claims.

The main obligations of the customer, as follows from Art. 702 of the Civil Code, constitute the acceptance of the result of work and its payment.

In accordance with Art. 718 of the Civil Code, the customer is obliged, in cases, to the extent and in the manner prescribed by the work contract, to assist the contractor in the performance of work.

To complete the execution of the contract in terms of the contractor's obligation to hand over the result of the work to the customer and the latter's obligation to accept this result, it is required to follow a procedure called acceptance of the work performed. The procedure for such acceptance is regulated in detail by law (Article 720 of the Civil Code), since it is equally important for both parties to the contract.

The customer is obliged to inspect and accept the work performed (its result) with the participation of the contractor within the time limits and in the manner prescribed by the work contract. Upon discovery of deviations from the contract that worsen the result of the work, or other shortcomings in the work, he must immediately report this to the contractor.

The customer, who discovered shortcomings in the work upon its acceptance, has the right to refer to them only in those cases when these shortcomings were specified in the act or in another document certifying acceptance, or the possibility of subsequent presentation of a demand for their elimination. Unless otherwise provided by the work contract, the customer who accepted the work without verification is deprived of the right to refer to the shortcomings of the work that could be established with the usual method of acceptance (obvious shortcomings).

If, after acceptance of the work, a deviation from the work contract or other deficiencies in it that could not be established with the usual method of acceptance (hidden deficiencies), including those that were deliberately hidden by the contractor, are discovered, the customer is obliged to notify the contractor within a reasonable time by their discovery.

If a dispute arises between the customer and the contractor regarding the shortcomings of the work performed or their causes, an examination must be appointed at the request of either party.

The most important obligation of the customer is to pay for the work performed by the contractor at a price determined in accordance with Art. 709 GK. In this case, if the contract does not provide for advance payment for the work performed or its individual stages, the customer is obliged to pay the contractor the agreed price after the final delivery of the results of the work, provided that the work was performed properly and within the agreed time or with the consent of the customer ahead of schedule. The contractor has the right to demand payment of an advance or a deposit to him only in cases and in the amount specified in the law or the work contract (Article 711 of the Civil Code).

According to Art. 712 of the Civil Code, in the event that the customer fails to fulfill the obligation to pay the established price or other amount due to the contractor in connection with the performance of the work contract, the contractor has the right to withhold the result of the work in accordance with Art. 359, 360 of the Civil Code, as well as the equipment belonging to the customer, the thing transferred for processing (processing), the remainder of the unused material and other property of the customer that turned out to be in his possession until the customer pays the appropriate amounts.

5.2. Household contract

In accordance with paragraph 1 of Art. 730 of the Civil Code, under a consumer contract, the contractor carrying out the relevant entrepreneurial activity undertakes to perform, on the instructions of a citizen (customer), certain work designed to satisfy the household or other personal needs of the customer, and the customer undertakes to accept and pay for the work.

Along with the common features inherent in the contract as a whole, the consumer contract has its own specifics. So, the subject composition of this agreement has features. The contractor is always a commercial organization or a citizen-entrepreneur engaged in entrepreneurial activities to perform the relevant type of work. The customer under the considered type of work contract can only be a citizen who needs to satisfy his household or other personal needs. In this regard, the consumer rights protection law and other legal acts adopted in accordance with it (clause 3 of article 730 of the Civil Code) are applied to relations under a consumer contract that are not regulated by the Civil Code.

Since the execution of a domestic contract satisfies the needs of citizens in the performance of work that the subject performing them must carry out in relation to everyone who applies to him (Article 426 of the Civil Code), this agreement, in accordance with paragraph 2 of Art. 730 of the Civil Code is recognized as public.

A household contract may be concluded using a public offer (Article 437 of the Civil Code).

The subject matter of the household contract also differs in specifics. From the definition in Art. 730 of the Civil Code, it follows that the contractor undertakes to perform work intended to satisfy the household or other personal needs of the citizen-customer. Therefore, the result of the work performed must be intended for use not related to entrepreneurial activity.

The specificity of the consumer contract is also manifested in the fixing by law of the pre-contractual obligations of the contractor and other guarantees of the rights of the customer. Pre-contractual obligations according to Art. 732 of the Civil Code (Articles 8 - 10 of the Consumer Rights Protection Law) are that the contractor is obliged to provide the customer with the necessary and reliable information about the proposed work, its types and features, price and form of payment, and also communicate to the customer, at his request, other information relating to the contract and the relevant work. Relevant information should also be communicated to the customer in cases where the type of activity of the contractor is subject to licensing and (or) the contractor has state accreditation. In addition, if this matters due to the nature of the work, the contractor must indicate to the customer a specific person who will perform it.

If the customer is not given the opportunity to immediately obtain the specified information about the work at the place of conclusion of the consumer contract, he has the right to demand compensation from the contractor for losses caused by unreasonable evasion from concluding the contract (clause 4 of article 445 of the Civil Code).

The content of a domestic contract has its own characteristics in comparison with the general rules on a contract. As noted above, the contractor, in accordance with paragraph 1 of Art. 732 of the Civil Code, prior to the conclusion of this agreement, is obliged to inform the customer about the price of the work. Consequently, along with the subject, the price is an essential condition of the consumer contract.

In accordance with the general rules of civil law on the form of transactions, a consumer contract must be concluded in a simple written form (Articles 158 - 162 of the Civil Code). If the contract for the performance of work is executed in the presence of the consumer, it can also be executed by issuing him a cash receipt, ticket, etc. The contract here is considered to be concluded orally. In cases where the customer, in a written consumer contract, joins the terms of the corresponding standard form offered by the contractor, the contract acquires the features of an adhesion contract (Article 428 of the Civil Code).

In accordance with Art. 27 of the Law on the Protection of Consumer Rights, the contractor is obliged to complete the work within the time period established by the rules for the performance of certain types of work or a household contract. If the performance of work is carried out in parts, the contract must establish particular terms (periods) for the performance of work.

At the request of the consumer, the order can be executed urgently. For the urgency of the work, a surcharge will be charged to the price. In this case, the term for the execution of the order is calculated from the moment (hour) of receiving the order specified in the contract.

The work is paid by the customer, as a rule, after its final delivery by the contractor. However, with the consent of the customer, the work can be paid by him at the conclusion of the contract in full or by issuing an advance to the contractor (Article 735 of the Civil Code).

In case of detection of defects during the acceptance of the result of the work or after its acceptance within the warranty period, and if it is not established - a reasonable period, but no later than two years (for real estate - five years) from the date of acceptance of the result of the work, the customer has the right, at his choice to carry out one of the provisions of Art. 723 of the Civil Code of the right to either demand a gratuitous re-performance of the work or reimbursement of the expenses incurred by him to correct deficiencies with his own funds or by third parties (clause 1 of article 737 of the Civil Code).

According to paragraph 2 of Art. 737 of the Civil Code, in the event that significant shortcomings in the result of the work are found, the customer has the right to present the contractor with a demand for the free elimination of such shortcomings if he proves that they appeared before the acceptance of the result of the work by the customer or for reasons that arose before that moment. This requirement may be raised by the customer if the indicated deficiencies are discovered after two years (for real estate - five years) from the date of acceptance of the result of work by the customer, but within the service life established for the result of work or within ten years from the date of acceptance of the result of work by the customer if no expiration date is set. If the contractor fails to fulfill this requirement, the customer has the right, within the same period, to demand either the return of a part of the price paid for the work, or reimbursement of expenses incurred in connection with the elimination of defects by the customer on his own or with the help of third parties, or refuse to execute the contract and demand compensation inflicted losses.

Work deficiencies must be eliminated by the contractor within a reasonable time, appointed by the customer. This period is indicated in the contract or in another document signed by the parties (Article 30 of the Consumer Rights Protection Law). In accordance with paragraph 3 of Art. 723 of the Civil Code and paragraph 1 of Art. 29 of this Law, the customer has the right to refuse to perform the contract and demand full compensation for losses if the contractor does not eliminate the shortcomings of the work performed within the period specified by him.

5.3. building contract

In accordance with paragraph 1 of Art. 740 of the Civil Code, under a construction contract, the contractor undertakes to build a certain facility on the instructions of the customer or perform other construction work within the period established by the contract, and the customer undertakes to create the necessary conditions for the contractor to perform the work, accept their result and pay the stipulated price.

Regulation of this type of contracting relationship is carried out by the norms of § 3 Ch. 37 GK "Construction contract". The general provisions on the contract contained in § 1 of this chapter shall apply, unless otherwise provided by the rules on construction contracts provided for in the Civil Code.

The norms governing relations on a construction contract are contained in many other regulatory legal acts. These include, in particular:

▪ Town Planning Code of the Russian Federation dated December 29.12.2004, 190 No. XNUMX-FZ;

▪ Law of the RSFSR dated June 26.06.1991, 1488 No. 1-XNUMX “On investment activities in the RSFSR”;

▪ Federal Law No. 25.02.1999-FZ dated February 39, XNUMX “On investment activities in the Russian Federation carried out in the form of capital investments”;

▪ Law of the Russian Federation dated November 17.11.1995, 169 No. XNUMX-FZ “On architectural activities in the Russian Federation”;

▪ Federal Law No. 06.05.1999-FZ dated May 97, XNUMX “On competitions for placing orders for the supply of goods, performance of work, and provision of services for government needs.”

In cases where, under a building contract, work is performed to meet the household or other personal needs of a citizen, the rules of § 2 Ch. 37 of the Civil Code "Household contract" (clause 3 of article 740 of the Civil Code).

In addition, when regulating the relations of a construction contract, acts of a recommendatory nature are applied. Such an act, in particular, is the Guidelines for the preparation of construction contracts in the Russian Federation adopted by the Ministry of Construction of Russia on June 10, 1992.

The parties to a construction contract are the customer and the contractor.

Investors who make capital investments in the Russian Federation using their own and (or) borrowed funds in accordance with the legislation of the Russian Federation, as well as individuals and legal entities authorized by investors who implement investment projects (clauses 2, 3) can act as customers article 4 of the Federal Law dated "On investment activities in the Russian Federation, carried out in the form of capital investments").

Contractors may be construction, construction and installation, design and construction and other organizations operating in the field of construction production, as well as individual entrepreneurs. To perform the relevant types of work, they must have a license (clause 4, article 4 of the said Federal Law).

In the implementation of capital construction, the general contracting system is widely used, in which the customer enters into an agreement with one construction organization - the general contractor, which engages specialized organizations as subcontractors to perform individual work packages. General contractors and subcontractors may also be citizens engaged in entrepreneurial activities without forming a legal entity.

With the consent of the contractor, the customer concludes contracts for the performance of certain installation and other special works on this construction object with other contractor installation and other specialized organizations. Such contracts concluded by the customer are commonly referred to as direct contracts.

The subject of a construction contract (subcontract) is the end result of the contractor's (subcontractor's) activity. Under a construction contract, this is a corresponding construction object (enterprise, building, structure) handed over by the contractor to the customer, and under a subcontract - a complete set of certain works (installation, sanitary, etc.), which are part of the work on the construction object as a whole and delivered by the subcontractor to the general contractor.

There are the following types of building contract:

▪ agreements for construction, installation and other work on the facility as a whole;

▪ agreements for the performance of certain sets of installation and other special construction works;

▪ contracts for commissioning works.

Unless otherwise provided by the contract, the rules on a construction contract also apply to major repairs of buildings and structures (clause 2, article 740 of the Civil Code).

The building contract must be concluded in writing. In this case, the form (sample) of the contract can be used, which is an annex to the above-mentioned Guidelines for drawing up construction contracts in the Russian Federation.

The essential terms of a building contract are the terms on the subject matter, price and term of the contract.

When determining the price of the contract, the parties may be guided by the Procedure for determining the cost of construction and free (contractual) prices for construction products in the conditions of the development of market relations (attachment to the letter of the Gosstroy of Russia dated December 29.12.1993, 12 No. 349-XNUMX).

In accordance with par. 1 p. 1 art. 708 of the Civil Code, the term of a construction contract is determined by agreement of the parties by specifying in the contract the initial and final dates for the performance of work. By agreement of the parties, the contract may also establish deadlines for the completion of individual stages of work, if the contract provides for the delivery of the result of the work performed, first by stages, and then as a whole for the construction object.

As a rule, the construction contract provides for the contractor's warranty obligations for the constructed buildings and structures or for the completed work packages.

To conclude a construction contract, it is necessary to obtain certain documents in advance. For the customer, such a document is a construction permit issued by a federal executive body, an executive body of a constituent entity of the Russian Federation or a local government body in accordance with their competence (Article 51 of the Town Planning Code), and for a contractor - a license (permit) to carry out construction activities.

The main obligation of the contractor under a construction contract is to carry out the construction (expansion, reconstruction, technical re-equipment) of the enterprise, building, structure provided for by the contract. An important condition for the execution of the contract is that construction and installation and other work on the facility must be performed in accordance with the technical documentation that determines the scope, content of work and other requirements for them, and the estimate that determines the price of work (design and estimate documentation).

When carrying out construction, the contractor is obliged to comply with construction norms and rules (SNiPs), other technical norms and rules, as well as the requirements of the law and other legal acts on environmental protection and on the safety of construction work (Article 751 of the Civil Code).

The contractor is obliged to provide the construction site with the necessary materials, including parts and structures, as well as equipment, unless the construction contract provides that the construction in general or in a certain part is ensured by the customer (Article 745 of the Civil Code).

The obligation of the contractor is also the erection of a building, structure or other construction object or the performance of other construction works and the delivery to the customer of the result of the work performed under the construction contract within the time period established by the contract.

The law provides for some specific obligations of the customer under a construction contract. Thus, the customer is obliged to provide a land plot for construction in a timely manner. The area and condition of the provided land plot must comply with the conditions contained in the contract, and in the absence of such conditions, ensure the timely start of work, their normal conduct and completion on time.

The customer is obliged, in the cases and in the manner prescribed by the construction contract, to transfer to the contractor for use the buildings and structures necessary for the performance of work, to ensure the transportation of goods to his address, temporary connection of power supply networks, water and steam pipelines, and provide other services.

Payment for the above services is made in the cases and on the terms stipulated by the construction contract (Article 747 of the Civil Code).

The customer is also required to transfer to the contractor documents confirming the permission of the relevant authorities to carry out work in places where underground utilities pass, in the area of ​​overhead power lines and communication lines.

In accordance with Art. 748 of the Civil Code, the customer has the right to exercise control and supervision over the progress and quality of the work performed, compliance with the deadlines for their implementation (schedule), the quality of the materials provided by the contractor, as well as the correct use of the customer's materials by the contractor, without interfering with the operational and economic activities of the contractor.

The customer, who discovered in the course of control and supervision over the performance of work, deviations from the terms of the construction contract, which may worsen the quality of work, or other shortcomings thereof, is obliged to immediately notify the contractor about this. The customer who has not made such a declaration loses the right to refer to the shortcomings discovered by him in the future.

A characteristic feature of a construction contract is the cooperation of the parties (Article 750 of the Civil Code).

In view of the specific and complex nature of the object of the construction contract, the delivery and acceptance of work performed under this contract is especially regulated (Article 753 of the Civil Code). In the cases provided for by law or other legal acts, representatives of state bodies and local self-government bodies must participate in the acceptance of the result of work.

The delivery of the result of work by the contractor and its acceptance by the customer are formalized by an act signed by both parties. If one of the parties refuses to sign the act, a note about this is made in it and the act is signed by the other party. A unilateral act of delivery or acceptance of the result of work may be declared invalid by the court only if the motives for refusing to sign the act are recognized by him as justified. The customer has the right to refuse to accept the result of the work in case of detection of defects that exclude the possibility of its use for the purpose specified in the construction contract and cannot be eliminated by the contractor or customer.

Acceptance of completed construction objects is carried out by the customer or another person authorized by the investor. The customer can involve the user of the object (operating organization), developers of technical documentation, specialized organizations and other legal entities and individuals in the acceptance, creating, if necessary, a selection committee.

In cases where this is provided for by law or a building contract, or follows from the nature of the work performed under the contract, acceptance of the result of the work must be preceded by preliminary tests. Accordingly, acceptance is carried out only with a positive result of such tests (clause 5, article 753 of the Civil Code).

Acceptance of the completed construction object is documented by the act of acceptance.

The Contractor is obliged to timely eliminate the shortcomings and defects identified in the process of acceptance of construction and installation works. The deadline for eliminating these shortcomings is specifically stipulated in the acceptance certificate.

Payment for the work performed by the contractor is made by the customer in the amount provided for by the estimate, on time and in the manner established by law or the building contract. In the absence of relevant instructions in the law or contract, payment for work is made after the final delivery of the result of work (clause 1 of article 711 of the Civil Code). At the same time, the significant cost and duration of capital construction require advance payments for the contractor's activities. However, he has the right to demand the payment of an advance or a deposit only in the cases and in the amount specified in the law or the contract (clause 2 of article 711 of the Civil Code).

The contractor's responsibility for the quality of work has its own specifics. According to Art. 754 of the Civil Code, the contractor is liable to the customer for deviations from the requirements provided for in the technical documentation and in the building codes and regulations binding on the parties, as well as for the failure to achieve the indicators of the construction object specified in the technical documentation, including such as the production capacity of the enterprise.

Unless otherwise provided by the construction contract, the contractor guarantees that the construction object will achieve the indicators specified in the technical documentation and the possibility of operating the object in accordance with the contract during the warranty period. The warranty period established by law may be extended by agreement of the parties (Article 755 of the Civil Code).

Upon presentation of requirements related to inadequate quality of work, the rules of paragraphs 1 - 5 of Art. 724 GK. At the same time, the deadline for detecting deficiencies in accordance with paragraphs 2, 4 of this article is five years (Article 756 of the Civil Code).

If the construction contract provides for the recovery of a penalty (fine, penalty) for its non-performance or improper performance, the losses shall be recovered net of its deduction (set-off penalty). However, the contract may provide otherwise: the recovery of only the penalty, the recovery of losses in the full amount in excess of the penalty, the recovery of either the penalty or damages.

5.4. Contract for the performance of design and survey work

Under a contract for the performance of design and survey work, the contractor (designer, prospector) undertakes, on the instructions of the customer, to develop technical documentation and (or) perform survey work, and the customer undertakes to accept and pay for their result.

Contractual relations for the performance of design and survey work are regulated primarily by special rules contained in § 4 Ch. 37 of the Civil Code "Contract for the implementation of design and survey work." The general provisions on the contract (§ 1 of Chapter 37 of the Civil Code) apply to the specified contract relations, unless otherwise established by the relevant legislative acts.

The parties to the contract for the performance of design and survey work are the customer and the contractor (designer, prospector). They may be the same persons as in the construction contract. However, the contractor under the specified contract may also be the customer in cases where the obligation to develop the relevant technical documentation lies with him, and he does not have the opportunity to perform such work on his own.

Protection of customers from the production of low-quality design and estimate documentation is provided by the licensing institution, which issues permits (licenses) for the performance of special work that requires appropriate certification of the contractor. The list of types of such work is determined by paragraph 4 of Art. 4 of the Federal Law "On investment activity in the Russian Federation, carried out in the form of capital investments".

For the contract for the performance of design and survey work, as well as for the construction contract, the system of general contracting is typical. For the performance of certain types of work, sections or parts of technical documentation, the customer has the right, with the consent of the contractor, to conclude direct contracts.

The subject of the contract for the performance of design and survey work is the production, on the instructions of the customer (general designer), of design estimates (its part, section) required for construction (for design organizations) and the preparation of materials necessary for the correct and economically feasible solution of the main issues of design, construction and operation of enterprises, buildings and structures (for survey organizations).

The price for the technical documentation to be developed is set at the conclusion of the contract. The customer and the contractor (designer, prospector) are involved in its determination, regardless of what form of ownership their activities are based on.

An essential condition of the contract for the performance of design and survey work is also the term of the contract. In the contract, the parties must determine the initial and final dates for the performance of these works. By agreement between them, the deadlines for the completion of individual stages of work may also be provided (clause 1 of article 708 of the Civil Code).

The contract for the performance of design and survey work is concluded in writing.

The obligations of the contractor (designer, surveyor) are defined by Art. 760 GK. The main one is the performance of the work stipulated by the contract within the time period established by it and in accordance with the assignment and other initial data for the design and the contract, as well as in compliance with the mandatory requirements of regulatory and technical documents on design issues, including building codes and rules, norms of technological design, standards and specifications for building materials, parts and structures, etc. The contractor is obliged to transfer the finished technical documentation and the results of survey work to the customer. The transfer of the prepared technical documentation to third parties is allowed only with the consent of the customer (clause 1 of article 760 of the Civil Code).

The main obligation of the customer is to accept the result of design or survey work (relevant technical and other documentation) and pay for it (Article 758 of the Civil Code). In this case, payment to the contractor of the established price can be made in full after the completion of all work or in parts after the completion of individual stages of work.

In accordance with Decree of the Government of the Russian Federation of 05.03.2007 No. 145 "On the procedure for organizing and conducting state examination of project documentation and engineering survey results", prior to the approval of project documentation by the customer, this documentation and the results of engineering surveys performed for its preparation are subject to state examination, with the exception of cases provided for in paragraphs 6 - 8 of the said Resolution. Depending on the type of capital construction projects, such an examination is carried out by a state institution subordinate to the Federal Agency for Construction and Housing and Communal Services, the Ministry of Defense of the Russian Federation, federal executive authorities authorized to conduct this examination by decrees of the President of the Russian Federation, an executive authority of the city of Moscow or subordinate to him by a state institution (before January 1, 2011; in relation to unique objects located on the territory of Moscow), authorized to conduct the same examination by the executive authorities of the constituent entities of the Russian Federation or state institutions subordinate to these bodies.

Acceptance of technical and other documentation prepared in accordance with a contract for design and survey work is documented by an acceptance certificate.

The final payment for the completed technical documentation is made after its acceptance and confirmation by the customer of the compliance of design solutions with the technical and economic indicators established in the design assignment, with a positive conclusion of the examination.

The norms of the Civil Code contain instructions on the responsibility of the contractor under the work contract for the performance of design and survey work. According to Art. 761 of the Civil Code, he is responsible for improper preparation of technical documentation and survey work, including shortcomings subsequently discovered during construction, as well as during the operation of the facility created on the basis of technical documentation and survey work data. If defects are found in the technical documentation or in survey work, the contractor, at the request of the customer, is obliged to redo the technical documentation free of charge and, accordingly, carry out the necessary additional survey work, as well as compensate the customer for the losses caused, unless otherwise provided by law or contract.

5.5. State or municipal contract for the performance of contract work for state or municipal needs

In accordance with paragraph 2 of Art. 763 of the Civil Code under the state or municipal contract for the performance of contract work for state or municipal needs (hereinafter referred to as the state or municipal contract), the contractor undertakes to perform construction, design and other work related to the construction and repair of production and non-production facilities and transfer them to the state or municipal customer , and the state or municipal customer undertakes to accept the work performed and pay for them or ensure their payment.

General provisions on the state or municipal contract are contained in § 5 Ch. 37 of the Civil Code "Contract work for state or municipal needs". At present, in the part not regulated by the Civil Code, the Federal Law "On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs" applies to relations for the performance of these works.

The parties to a state or municipal contract are a state or municipal customer and a contractor. State customers can be state bodies, state non-budgetary funds, as well as budgetary institutions, other recipients of federal budget funds and authorized by state authorities of the constituent entities of the Russian Federation to place orders for the performance of contract work for the needs of the constituent entities of the Russian Federation, budgetary institutions, other recipients of budget funds of the constituent entities of the Russian Federation when placing orders for the performance of such works at the expense of budgetary funds and non-budgetary sources of funding. Municipal customers are local governments, as well as budgetary institutions and other recipients of budgetary funds authorized by these bodies to place orders for contract work for municipal needs when placing orders for such work at the expense of budgetary funds and extrabudgetary sources of funding. A legal or natural person can act as a contractor (clause 1 of article 764 of the Civil Code).

As provided for in Art. 765 of the Civil Code, the grounds and procedure for concluding a state or municipal contract for the performance of contract work for state or municipal needs are determined in accordance with the provisions of Art. 527, 528 GK.

A state or municipal contract is concluded on the basis of an order for the performance of work for state or municipal needs, placed in the manner prescribed by law on placing orders for the supply of goods, performance of work, and provision of services for state and municipal needs (clause 1, article 527 of the Civil Code). In all cases, placing an order is carried out by bidding, with the exception of cases provided for by the above Federal Law (Part 2, Article 10 of this Law).

For a state or municipal customer who placed an order, the conclusion of a state or municipal contract is mandatory, unless otherwise provided by law (paragraph 2, clause 1, article 527 of the Civil Code). In the event that a state or municipal contract is concluded based on the results of an auction for placing an order for the performance of work for state or municipal needs, the state or municipal contract must be concluded no later than 20 days from the date of the auction (clause 4 of article 528 of the Civil Code).

The following conditions of the state or municipal contract are essential:

▪ about the volume and cost of the work to be performed;

▪ about its start and end dates;

▪ about the amount and procedure for financing and payment for work;

▪ about ways to ensure the fulfillment of obligations (clause 1 of Article 766 of the Civil Code).

Topic 6. CONTRACTS FOR THE PERFORMANCE OF RESEARCH, EXPERIMENTAL AND TECHNOLOGICAL WORKS

In accordance with paragraph 1 of Art. 769 of the Civil Code, under a contract for the performance of research work (R&D), the contractor undertakes to conduct scientific research due to the terms of reference of the customer, and under a contract for the performance of experimental design and technological work (R&D) - to develop a sample of a new product, design documentation for it or a new technology , and the customer undertakes to accept the work and pay for it.

The parties to the contract for the performance of research and development work are called the contractor and the customer. When performing OKR, the contractor has the right to independently, unless otherwise provided by the contract, involve third parties in its execution. To such relations in accordance with paragraph 2 of Art. 770 of the Civil Code, the rules on the general contractor and subcontractor are applied (Article 706 of the Civil Code). As for scientific research, their specificity requires that the performer conduct them personally. He has the right to involve third parties in the execution of the contract for the performance of research and development only with the consent of the customer (clause 1 of article 770 of the Civil Code).

The subject of an R&D agreement is scientific research, and an R&D agreement is the development of a design solution for a product, the creation of a product sample that embodies this solution, or new techniques, operations and methods of work, i.e. new technology.

The peculiarity of the subject of contracts for the performance of research and development work is that it is determined by the terms of reference of the customer, which, however, is often developed by the contractor himself as a person more knowledgeable in the relevant field. Since the customer is often interested in the final result of a whole range of works, the contract with the contractor can cover their entire cycle - from research to development and production of a product sample (clause 2 of article 769 of the Civil Code).

Other essential terms of contracts for the performance of research and development work are the term for the execution of these contracts, the level of future research and development, the price of the work performed, the procedure for the delivery and acceptance of their results and payments for them.

Since new and commercially valuable knowledge can be obtained in the course of research and development work, the parties are obliged to ensure the confidentiality of information relating to the subject of the contract, the progress of its execution and the results obtained, unless otherwise provided by the contract (Article 771 of the Civil Code).

Due to the unpredictability of the results of research and development work, the risk of accidental impossibility of their execution rests with the customer (clause 3 of article 769 of the Civil Code). In addition, if in the course of research work it is found that it is impossible to achieve results due to circumstances beyond the control of the contractor, the customer is obliged to pay the cost of previously performed work within the corresponding part of their contractual price.

If, after the start of the R&D, it is impossible or inappropriate to continue the work, which has arisen through no fault of the contractor, the customer is also obliged to pay the costs incurred by the contractor (Article 776 of the Civil Code).

Given the unpredictability of the results of many research and development projects, the legislator in paragraph 1 of Art. 777 of the Civil Code establishes the responsibility of the performer only for fault (paragraph 1 of article 401 of the Civil Code). At the same time, the performer must prove the absence of his guilt.

Topic 7. AGREEMENT FOR PAID SERVICES

7.1. General Provisions on Service Obligations

A feature of all contractual obligations for the provision of services is that during their execution, the thing is not transferred to the authorized person and, by agreement with him, a new materialized result of human activity is not created, but other actions are performed that satisfy his interests. In addition, unlike obligations to transfer goods and perform work, the object of obligations to provide services, i.e. the services themselves are inseparable from the personality of the service provider. So, for example, the physical movement of cargo from one point to another under a contract of carriage cannot be carried out by itself, without the participation of the carrier.

At the same time, obligations to provide services have some similarities with obligations to perform work, in connection with which, according to Art. 783 of the Civil Code, the general provisions on the contract and the provisions on domestic contracting apply to the contract for the provision of services, if this does not contradict Art. 779 - 782 of the Civil Code, as well as the features of the subject of the contract for the provision of services for compensation.

The current civil legislation lacks general provisions relating to obligations to provide services, since the norms of Ch. 39 of the Civil Code regulate only the provision of actual, but not other services (paragraph 2 of article 779 of the Civil Code).

7.2. Contract for the provision of services

In accordance with paragraph 1 of Art. 779 of the Civil Code, under a contract for the provision of services for a fee, the contractor undertakes, on the instructions of the customer, to provide services (perform certain actions or carry out certain activities), and the customer undertakes to pay for these services. The paid services agreement is consensual, paid and bilateral.

The parties to this agreement are the service provider, referred to as the contractor, and the service recipient, referred to as the customer. The Civil Code does not contain any specific instructions regarding the subject composition of this type of contracts, therefore, when determining it, one must be guided by the general rules for the participation of citizens and legal entities in civil circulation.

In accordance with Art. 780 of the Civil Code, unless otherwise provided by the contract, the contractor is obliged to provide services personally. Therefore, unless the parties expressly agree otherwise in the contract, the principle of general contracting does not apply.

The only essential condition of the contract for the provision of services is its subject matter. It is either the performance by the performer of certain actions (sending and delivery of correspondence, the provision of telephone and other channels in the provision of communication services, the performance of operations and various medical and preventive procedures in the provision of medical services, etc.), or the implementation of certain activities by him (for example, audits, giving advice on a certain range of issues, providing certain information, providing training services, etc.). The object of this type of contract is the beneficial effect obtained by the customer.

The requirements for the quality of the services provided are determined according to the same rules as the requirements for the quality of the work performed in the contract. According to Art. 721 of the Civil Code, the quality of the service provided by the contractor, i.e. the result achieved by him, must comply with the terms of the contract, and in the absence or incompleteness of its terms, with the requirements usually imposed on services of this kind.

As in a work contract, service quality guarantees can be divided into legal ones, i.e. provided for by law, other legal acts or business practices, and contractual, i.e. assumed by the contractor by virtue of the contract and provided for in it (Article 722 of the Civil Code).

The provision of certain types of services may imply that the beneficial effect received by the customer must be maintained within a reasonable time in accordance with the method of its use established in the contract, and if the method is not provided for by the contract, for the usual way of using the result of the provision of services (legal guarantee).

In addition, a law, other legal act, a contract for the provision of services for a fee, or business customs for the result of the provision of a service may establish a period during which it must comply with the terms of the contract on quality provided for in paragraph 1 of Art. 721 GK (warranty period).

The determination of the price of services rendered under the contract is carried out according to the rules of paragraph 1 of Art. 709 GK. The contract must specify the price of the services to be rendered or methods of determining it. In the absence of such indications in the contract, the price is determined in accordance with paragraph 3 of Art. 424 GK. If the volume and number of types of services are large, then the price can be determined by drawing up an estimate.

The term is also among the important conditions of the contract for the provision of services. In relation to this condition, the rules on the contract may also apply in this contract. According to Art. 708 of the Civil Code, in the contract for the provision of services for a fee, the initial and final terms for the provision of services must be indicated, and by agreement of the parties, the terms for the completion of the provision of certain types or the performance of certain stages of the provision of services, i.e. intermediate deadlines.

The main obligation of the contractor is to provide services on the instructions of the customer (Article 779 of the Civil Code). Unlike the contractor, the contractor does not provide services to the customer at his own risk. As a general rule, the customer bears the risk of impossibility to fulfill the contract for the provision of services for compensation. It is he who is obliged to reimburse the contractor for the expenses actually incurred by him in the case when the impossibility of performance arose due to circumstances for which neither party is responsible (clause 3 of article 781 of the Civil Code).

For the inadequate quality of the services rendered, the contractor bears the same responsibility as the contractor for the inadequate quality of the work performed (Article 723 of the Civil Code). Since the services are provided by the contractor in accordance with the order of the customer, the latter has the right at any time to check the progress and quality of the provision of services, without interfering, however, with the operational and economic activities of the contractor (Article 715 of the Civil Code).

The quality of the service provided is of great importance to the customer. Therefore, if the service is provided with deviations from the terms of the contract that worsen the result of its provision, or with other shortcomings that make the result of its provision unsuitable for the use provided for in the contract, or in the absence of such a condition in the contract, the consequences specified in Art. 723 GK.

Taking into account the similarity of the subjects of the contract for the provision of services for a fee and the work contract, the limitation period for claims made in connection with the inadequate quality of the result of the provision of any service is also one year, i.e. is abbreviated (clause 1 of article 725 of the Civil Code).

The main obligation of the customer is to pay for the services rendered (Article 779 of the Civil Code). Such payment in accordance with Art. 781 of the Civil Code is carried out within the time limits and in the manner specified in the contract for the provision of services for compensation.

Upon completion of the provision of services, the customer must evaluate its result. Upon discovery of deviations from the contract that worsen the result of the provision of services, or other shortcomings, he must immediately report this to the contractor. The customer, who discovered shortcomings in the result of the provision of services received from the contractor at the time of its completion, has the right to refer to them only in those cases when they were specified by him or the parties agreed on the possibility of subsequent presentation of a demand for their elimination. The customer, who has not fulfilled these requirements, is deprived of the right to refer to performance shortcomings that could be established in the usual way of using the result of the service (obvious shortcomings), unless otherwise provided by the contract.

If, after the end of the provision of the service, deviations from the contract or other shortcomings are discovered that could not be established at the time of the end of its provision with the usual method of using the achieved result (hidden shortcomings), including those that were deliberately hidden by the contractor, the customer is obliged to notify performer within a reasonable time after their discovery. In the event of a dispute between the customer and the contractor regarding the shortcomings or their causes, at the request of any of the parties to the contract, an examination must be appointed.

The contract for the provision of services may be terminated at the request of any of its parties. In this case, the customer has the right to refuse to perform this contract, subject to payment to the contractor of the expenses actually incurred by him. The contractor has the right to refuse to fulfill obligations under such an agreement only if the customer is fully compensated for losses (Article 782 of the Civil Code).

According to Art. 783 of the Civil Code, along with the general provisions on the contract, the provisions on domestic contracting are also applied to the contract for the provision of services for a fee, if a citizen-consumer acts as a customer.

Based on the norms of the Civil Code, as well as the legislation regulating the features of the paid provision of certain types of services, it is possible to classify contracts for the provision of paid services by areas of economic and socio-cultural activities. In paragraph 2 of Art. 779 of the Civil Code gives an approximate list of services that can be provided under such contracts, including communication services, medical, veterinary, auditing, consulting, information services, training services, tourist services and others.

Topic 8. TRANSPORT AND FORWARDING CONTRACTS

8.1. Transport contracts

Contract for organizing cargo transportation. According to Art. 798 of the Civil Code, the carrier and the cargo owner, if it is necessary to carry out systematic transportation of goods, can enter into long-term agreements on the organization of transportation. Under this agreement, the carrier undertakes to accept within the established time frame, and the cargo owner - to present for transportation cargo in the specified volume. The specified agreement determines the volumes, terms for the provision of vehicles and presentation of goods for transportation, the procedure for payments, as well as other conditions for organizing transportation (paragraph 2 of Article 798 of the Civil Code).

Contracts on the organization of transportation are concluded, as a rule, in the presence of stable economic ties between a given mode of transport and a given cargo owner. Contracts of this type are of a continuing nature, they are concluded for the coming quarter, the coming year. By their legal nature, these contracts have signs of a preliminary contract (Article 429 of the Civil Code), since the conclusion of an agreement on the organization of transportation does not release, but, on the contrary, implies the need to conclude a contract for the carriage of goods in each specific case. Contracts on the organization of transportation of goods are consensual civil law contracts that determine not the terms of the trade turnover of the parties, but the organization of their relationship for the future.

According to Art. 791 of the Civil Code, the carrier is obliged to provide the consignor with vehicles for loading within the time period established by the contract on the organization of transportation. Accordingly, failure to fulfill this obligation entails property liability under Art. 794 GK.

The carrier for non-delivery of vehicles for the carriage of cargo, and the sender for failure to present cargo or non-use of submitted vehicles for other reasons, bear responsibility established by transport charters and codes, as well as by agreement of the parties (paragraph 1 of article 794 of the Civil Code). As for the agreements between the carrier and the cargo owner on the limitation or elimination of the carrier's statutory liability, they are unacceptable and, if concluded, are invalid (paragraph 2 of article 793 of the Civil Code).

Legislation (Article 794 of the Civil Code) defines certain circumstances that relieve the carrier and consignor of cargo from liability for failure to fulfill obligations to provide vehicles or failure to present cargo for transportation. These include:

▪ force majeure;

▪ other natural phenomena (fires, drifts, floods);

▪ military actions;

▪ cessation or restriction of cargo transportation in certain directions due to a blockade, epidemic or other circumstances impeding the transportation of goods.

Outside the circumstances specified in the law, the liability of the carrier and the consignor is possible, regardless of their fault.

Contract of carriage of goods. In accordance with paragraph 1 of Art. 785 of the Civil Code, under a contract for the carriage of goods, the carrier undertakes to deliver the cargo entrusted to him by the sender to the destination and hand it over to the person authorized to receive the goods (recipient), and the sender undertakes to pay the established fee for the carriage of goods.

The law establishes the written form of this agreement. This is evidenced by the norm of paragraph 2 of Art. 785 of the Civil Code, according to which the conclusion of a contract for the carriage of goods is confirmed by the preparation and issuance to the sender of the goods of a waybill, bill of lading or other document for the goods provided for by the relevant transport charter or code, for example, Art. 25 UZhT, art. 105 VK. The issuance by the carrier of a document confirming the acceptance of the goods for transportation implies the delivery of the goods to him by the sender, therefore such an agreement belongs to the number of real civil law contracts.

The contract for the carriage of goods is a fixed-term contract, since its validity period is determined by the period of fulfillment of the obligation to transport (Article 792 of the Civil Code, Article 33 of the UZhT, Article 109 of the VC). This period can be established both in a regulatory manner and by agreement of the parties.

The contract for the carriage of goods is a contract for compensation. The carriage charge for the carriage of goods by public transport is determined on the basis of tariffs approved in the manner prescribed by transport charters and codes. Since when transporting goods by public transport, a commercial organization acts as a carrier and it is obliged to transport the goods of any consignor who applies to it, the contract for the carriage of goods refers to public contracts. When concluding this agreement, the consignor fills out a shipping document of the established form (waybill) and signs it, which gives the agreement the features of an accession agreement.

The parties in the contract for the carriage of goods are the carrier - a transport organization (railway, shipping company, air transport operator) and the consignor - the legal (titular) owner of the goods or a forwarder or other person authorized by the owner of the goods. Since by virtue of this agreement each of the parties has both rights and obligations, it should be recognized as a bilateral agreement.

The contract for the carriage of goods by its design is a contract in favor of a third party (Article 430 of the Civil Code), in connection with which the consignee, who is not a party to the contract, enjoys certain rights and bears certain obligations.

Not participating in the conclusion of the contract, the consignee nevertheless acquires the right to demand the carrier to release the goods at the point of destination (Article 36 of the UZHT, clause 2 of Article 103 of the VC). If the carrier fails to fulfill the obligation to deliver the goods to the address of the recipient, the latter has the right to make claims against him regarding the loss of the goods, and in case of improper fulfillment of the obligation by him - claims regarding the shortage or damage to the goods (Article 796 of the Civil Code), as well as about the delay in its delivery (Art. 792 of the Civil Code, Art. 120 of the UZhT, Art. 120 of the VC). The consignee has the right to present to the carrier and other requirements related, for example, to the unloading of cargo by means of the carrier, when unloading under the contract was entrusted to him.

In addition to rights, the consignee also has obligations. So, upon arrival of the cargo at the destination, the recipient is obliged to accept it and take it out of the territory of the station, airport, pier. It is also the responsibility of the recipient to make the final payment for the services rendered by the carrier.

One of the essential terms of the contract for the carriage of goods is considered to be the time of delivery of the goods. According to Art. 792 of the Civil Code, the carrier is obliged to deliver the goods to the destination within the time limits specified in the manner prescribed by the transport charters and codes, and in the absence of such terms - within a reasonable time.

Contract for the carriage of passengers and baggage. Under the contract for the carriage of a passenger, the carrier undertakes to transport the passenger to the destination, and if the passenger checks in the luggage, also deliver the luggage to the destination and hand it over to the person authorized to receive the luggage. The passenger undertakes to pay the established fare, and when checking in luggage, also for the carriage of luggage (Article 786 of the Civil Code, Article 82 of the UZhT, Article 103 of the VK).

The inclusion in a single concept of the contract of carriage of both the passenger and his baggage does not mean the legal unity of these two contracts. These contracts cannot be recognized as one contract, since their signs are different: the contract for the carriage of a passenger is consensual, and the contract for the carriage of luggage is real. The difference between these contracts also lies in the fact that the conclusion of contracts for the carriage of passengers is certified by travel documents (tickets), and the delivery of luggage by passengers - by baggage receipts.

The rights and obligations of the parties under the contract for the carriage of a passenger are regulated in sufficient detail by law. So, according to paragraph 3 of Art. 786 of the Civil Code, the passenger has the right, in the manner prescribed by the relevant transport charter or code:

▪ carry children with you free of charge or on other preferential terms;

▪ Carry free hand luggage within the established limits.

The law also provides for the right of a passenger to hand over baggage for transportation for a fee at a rate (clause 3 of article 786 of the Civil Code), which means that the carrier is obligated to conclude with the passenger, at the request of the last contract for the carriage of baggage.

Liability under a passenger carriage agreement is determined by the Civil Code and the relevant transport charters and codes, which also regulate the liability of the parties under a baggage carriage agreement.

According to paragraph 1 of Art. 795 of the Civil Code for a delay in the departure of a vehicle carrying a passenger, or a delay in the arrival of such a vehicle at its destination (with the exception of transportation in urban and suburban traffic), the carrier shall pay the passenger a fine in the amount established by the relevant transport charter or code.

If the passenger refuses to be transported due to a delay in the departure of the vehicle, the carrier is obliged to return the carriage fee to the passenger (paragraph 2 of article 795 of the Civil Code).

Legislation (clause 1, article 795 of the Civil Code) establishes the circumstances that serve as the basis for exemption from liability for delay in the delivery of a passenger to their destination. These circumstances include:

▪ force majeure;

▪ elimination of a vehicle malfunction that threatens the life and health of passengers;

▪ other circumstances beyond the control of the carrier.

It is the responsibility of the carrier to prove the existence of these circumstances.

The service recipients in the contract for the carriage of passengers are only citizens, which makes it possible to apply the norms of the Law on the Protection of Consumer Rights in case of violation of the contract by the carrier.

A special place among transport contracts is occupied by contracts for the carriage of goods by certain modes of transport.

Agreement for the carriage of goods by rail. The content of this agreement constitutes a set of rights and obligations of the carrier and shipper. These rights and obligations are largely determined by transport legislation: UZhT, Rules governing certain types of cargo transportation by rail, as well as the contract of carriage itself.

Under a railway transportation agreement, goods can be transported both locally and in direct traffic. Transportation in local traffic is carried out within the limits of one railway, and in direct traffic - with the participation of two or more railways that are part of the unified network of railways of the Russian Federation and are open to public use. A railway that has entered into a contract of carriage in direct traffic acts as the legal representative of all other railways involved in such traffic.

Transportation of goods by rail is carried out in wagons and containers of carriers, other legal entities and individuals (Article 5 UZhT).

The railway is obliged to submit for loading serviceable wagons and containers in a condition suitable for the carriage of the corresponding cargo. If this requirement is not met, the consignor has the right to refuse the submitted wagons or containers. In this case, the railway is obliged to replace the specified wagons, containers with wagons, containers that are suitable for the carriage of such goods (Article 20 of the UZHT).

The suitability of wagons for the carriage of a given cargo in commercial terms is determined by the consignor or the railway, depending on whose means the loading is carried out.

When presenting the cargo for transportation, the consignor is obliged to present for each shipment of the cargo a railway bill of lading drawn up by him. This waybill and the receipt issued on its basis to the consignor confirming the conclusion of the contract for the carriage of goods (Article 25 of the UZhT).

Some obligations of the railway, due to the performance of the contract for the carriage of goods, arise both in the process of the carriage itself and at its final stage. So, the railway, at the request of the consignor or consignee, is obliged to redirect the transported cargo with a change in the consignee or destination station.

It is also the duty of the railway to notify the consignee of the goods that have arrived at his address no later than at 12 noon on the day following the day of the arrival of the goods. The consignee may refuse to accept the goods if the quality of the goods has changed to such an extent due to damage, spoilage or for other reasons that the possibility of partial or complete use of such goods for their intended purpose is excluded (Articles 34, 36 of the UZHT). The duty of the consignee is the final settlement with the carrier for the transport services rendered to him.

Contract for air carriage of cargo. The peculiarity of the subject composition of this type of agreement is that the operator acts as a carrier in it, i.e. a citizen or legal entity who owns an aircraft by right of ownership, on a lease or on another legal basis, uses the specified aircraft for flights and has an operator’s certificate (clause 3 of Article 61 of the VK). At the same time, according to Art. 100 VK the operator must have a license to carry out air transportation of goods.

A distinctive feature of the contract for the carriage of goods by air is the fact that the parties to this contract are given the right to decide for themselves the issue of the timing of delivery of the goods. If an agreement on this issue is not reached, the delivery time is established by the rules of transportation (Article 109 of the VC).

The content of the contract for the carriage of goods by air reveals its definition given in paragraph 2 of Art. 103 VK, which corresponds to the classical definition of a contract for the carriage of goods contained in paragraph 1 of Art. 785 GK. The basic rights and obligations of the carrier and the consignor are approximately similar to the rights and obligations of the parties to the contract of carriage on other modes of transport.

At the same time, air legislation, taking into account the specifics of transportation by this mode of transport, establishes an expanded range of grounds for terminating the contract for the carriage of goods unilaterally at the initiative of the carrier. These grounds are:

▪ violation by the cargo owner, shipper of customs, sanitary and other rules established by law;

▪ refusal of the cargo owner or shipper to comply with the requirements imposed on them by aviation regulations;

▪ the presence of items and substances prohibited for air transportation in the cargo.

The consignee has the right to refuse to receive damaged or spoiled cargo if it is established that the quality of the cargo has changed so much that it excludes the possibility of its full and (or) partial use in accordance with its original purpose (Article 111 VC).

Aircraft charter agreement (air charter). In air transport, along with the usual contract for the carriage of goods, an aircraft charter agreement (air charter) is quite widely used. The general possibility of concluding such agreements regardless of specific types of transport is provided for in Art. 787 Civil Code. The peculiarity of a charter agreement is that it provides for transportation all or part of the capacity of one or more vehicles for one or more flights.

Under an aircraft charter agreement (air charter), one party (the charterer) undertakes to provide the other party (the charterer) for a fee to perform one or more flights one or more aircraft or part of the aircraft for air transportation of goods (Article 104 of the VC).

An air charter agreement is, as a rule, a consensual agreement, since the parties usually conclude an agreement on upcoming transportation in advance, in connection with which an air charter agreement acquires some features of an agreement on the organization of cargo transportation (Article 798 of the Civil Code). Air charter is a paid contract.

Contract of carriage of goods by sea. According to paragraph 1 of Art. 115 KTM, under a contract for the carriage of cargo by sea, the carrier undertakes to deliver the cargo that the sender has transferred or will transfer to him, to the port of destination and hand it over to the person authorized to receive the cargo, and the sender or charterer undertakes to pay the established fee (freight) for the carriage of cargo.

This definition allows us to draw two conclusions regarding this contract. First, it can be both real and consensual, as evidenced by the use of the words "transmitted" or "transfer". Secondly, the words "shipper" or "charterer" mean that the concept of a contract for the carriage of goods by sea covers two types of contracts: an ordinary contract of carriage and a charter, which differ in their legal nature.

The contract for the carriage of goods by sea shall be concluded in writing. The presence and content of the specified agreement can be confirmed by a charter (in this case, the relevant document is meant), a bill of lading or other written evidence (Article 117 of the KTM).

The charter must contain the name of the parties, the name of the vessel, the type and type of cargo, the amount of freight, the name of the place of loading of the vessel, as well as the destination or direction of the vessel. By agreement of the parties, other conditions and reservations may be included in the charter. The charter is signed by the carrier and the charterer or their representatives (Art. 120 KTM).

The bill of lading performs the following functions:

▪ evidence of the existence of a contract for the carriage of goods by sea and its contents;

▪ a receipt certifying acceptance of the cargo by the carrier;

▪ document of title for the cargo, i.e. a document, the disposal of which means the disposal of the cargo itself;

▪ a document upon presentation of which the cargo is issued to the recipient.

The relations of the parties under the contract of carriage of goods by sea are regulated not only by certain norms of legislation or by agreement of the parties, but also by trade customs and habits.

The development of customary law in relation to the carriage of goods by sea led to the emergence of the so-called formulary law. The latter is an informal codification of generally accepted trade usages used in the conclusion of contracts of carriage by sea. The rules corresponding to these customs are fixed in the form of standard designations such as FOB, FAS, CIF, CAF. These designations come from a combination of the initial letters of English words that are used in such cases.

Contract for the carriage of goods by inland waterways. This type of contract is characterized by the same general features that are inherent in the contract of carriage on other modes of transport. The contents of the agreement, the rights and obligations of the parties are regulated by the KVVT. The conclusion of this agreement is confirmed by the waybill and the road manifest issued on its basis and the receipt of acceptance of cargo for transportation (clause 2 of article 67 of the Civil Code of the Russian Federation).

The waybill accompanies the cargo along the entire route, and the carrier is obliged to issue it together with the cargo to the recipient at the port (on the berth) of destination. The road list follows along with the cargo and, after the delivery of the cargo at the destination, remains with the carrier.

According to paragraph 4 of Art. 67 KVVT, a contract for the carriage of goods by inland waterways may be concluded with the condition that the entire ship or part of it is provided for the carriage of goods (chartering contract).

Agreement for the carriage of goods by road. Having the general features of a contract of carriage, enshrined in the Civil Code, UAT, and the Rules for the Transportation of Goods by Road, this type of contract is distinguished by a number of characteristic features. Firstly, in road transport, unlike other types of transport, it is not the shipper who delivers the cargo to the loading point, but the motor transport enterprise itself transfers its vehicles to the shipper for loading. This means that the transport process begins not from the moment the cargo is accepted for transportation, but at an earlier stage and not at the transport enterprise, but at the territory of the shipper. Secondly, when transporting cargo with payment for the work of the vehicle at a time rate, the motor transport enterprise issues a waybill in which the consignor (consignee) records the mileage and time the vehicle is in its possession.

Liability for violation of transport obligations. For the onset of property liability of the carrier, consignor and consignee for non-fulfillment or improper fulfillment of contractual obligations, the existence of general grounds provided for by civil law is required, in particular Art. 401 Civil Code. Since the carrier is responsible for the failure to preserve the cargo unless he proves that its loss, shortage or damage (spoilage) occurred as a result of circumstances that he could not prevent and the elimination of which did not depend on him (clause 1 of Article 796 of the Civil Code), one of The basis for the carrier's liability is his fault. In approximately the same way, the provision on the carrier’s culpable liability is enshrined in new transport charters and codes (Article 95 UZhT, Article 118 VK, Article 166 KTM, Article 117 KB VT). This provision is also reflected in Art. 132 UAT.

The reduced norm of Art. 796 of the Civil Code imposes on the carrier the burden of proving his innocence. It should be noted that this article does not provide any grounds for exempting the carrier from proving the absence of his guilt.

The rules on faulty liability for contractual transport obligations also apply to the carrier's clientele.

In accordance with paragraph 1 of Art. 796 of the Civil Code, the carrier is responsible for the loss, shortage, damage and damage to the cargo for the entire period of its being in the possession of the carrier, i.e. from the moment the cargo is accepted for transportation and until the delivery of the cargo to the consignee or a person authorized by him to receive the cargo.

The Civil Code establishes the limits of the carrier’s liability for non-safety of cargo, which are uniform for all modes of transport, while maintaining the rules on limited liability: damage caused during the transportation of cargo is reimbursed by the carrier only in the amount of the value of the lost or missing cargo or in the amount by which the value of the cargo has decreased from - for damage or deterioration that occurred during transportation due to reasons depending on the carrier. If it is impossible to restore the damaged cargo, its cost is reimbursed, the latter is determined based on its price indicated in the seller's invoice or provided for by the contract. In the absence of an invoice or indication of a price in the contract, the price normally charged under comparable circumstances for similar goods should be taken into account.

Along with compensation for the established damage caused by failure to ensure the safety of the cargo, the carrier returns to the sender (recipient) the carriage fee charged for the carriage of the lost, missing, spoiled or damaged cargo, if this fee is not included in the cost of the latter (clauses 2, 3 of article 796 of the Civil Code , article 96UZhT).

In transport relations, the practice of declaring the value of cargo handed over for transportation has become widely used.

Liability for delay arises in cases of culpable non-compliance with the transport time established by law or by agreement of the parties, i.e. the time during which the carrier performs a set of all necessary operations at the point of departure of the cargo, along its route and at the point of delivery of the cargo to the recipient.

Liability for late delivery of goods is also limited (penalty, penalties).

A feature of the carriage of goods by sea is the possibility of various kinds of losses, which, in the legislation on transportation carried out by this type of transport, are commonly referred to as general and private accidents.

General average includes losses incurred as a result of intentionally and reasonably made extraordinary expenses or donations in order to save the ship, the freight and the cargo carried on the ship from a common danger for them (Article 284 of the CTM). The presence of signs of general average is established at the request of the person concerned by the average adjuster, who is attached to the Chamber of Commerce and Industry of the Russian Federation and is appointed by the Presidium of the Chamber from among persons who are well aware of the theory and practice of maritime navigation, legislation and customs of maritime law. An adjuster is an expert making average adjustments. Dispache (fr. dispache) - calculation of losses in case of general average, falling on the cargo, ship and freight and distributed between the cargo owner and the ship owner.

Losses recorded as general average are subject to distribution between the ship, freight and cargo in proportion to their value. An example of general average is the jettisoning of cargo to lighten the ship and thereby save it, as well as save the cargo remaining on the ship. In this case, donations are made in the general interest.

Losses on the ship, cargo and freight that do not fall under general average are recognized as a private average. These losses are not subject to distribution between the ship, cargo and freight. They are borne by the victim or the person responsible for their infliction.

In addition to the liability of the carrier, transport legislation determines the liability of the consignor and consignee, and this liability is increased. The grounds for the onset of such liability are considered to be violations of the rules applicable to each type of transport for the delivery of cargo for transportation, its packaging, execution of transportation documents, receipt of cargo at the destination, etc. The property sanctions applied to the consignor and consignee for damage or loss of wagons or containers provided by the railway are also recognized as increased.

In road transport, the responsibility of the consignor and consignee occurs for the delay through their fault of cars submitted for loading or unloading beyond the established time limits (Article 141 of the UAT), as well as in other cases provided for in Art. 142 - 160 UAT. At the same time, as in railway transport, both a fine and losses are collected.

A more differentiated responsibility of the consignor and consignee is currently established for inland water transport (Art. 120 KVVT).

The procedure and terms for filing and considering claims, as well as the rules for determining the beginning of the limitation period for obligations arising from the carriage of goods, are established by general civil and special transport legislation (Article 797 of the Civil Code, Articles 120,122-126 of the UZHT, Articles 124-128 of the VC , articles 403-408 KTM, articles 161-164 KVVT, articles 158, 159 UAT).

Firstly, it provides for the obligation to file a claim against the carrier before filing a claim against him arising from the carriage of goods. The carrier is obliged to consider the received claim and notify the applicant in writing of the results of its consideration within 30 days from the date of receipt of the claim (clause 2 of article 797 of the Civil Code, article 124 of the UZhT, article 128 of the VC).

Secondly, a claim against the carrier can be brought by both the consignor and the consignee under one of two conditions:

▪ if there was a complete or partial refusal of the carrier to satisfy the stated claim;

▪ if the carrier does not respond to the claim within 30 days.

The limitation period for claims arising from the carriage of goods is set at one year from the moment determined in accordance with transport charters and codes (clause 3 of article 797 of the Civil Code).

The procedure and terms for filing claims and lawsuits for obligations arising from the carriage of passengers and baggage are also established by transport charters and codes.

8.2. Freight Forwarding Agreement

In accordance with paragraph 1 of Art. 801 of the Civil Code, under a freight forwarding agreement, one party (the forwarder) undertakes, for a fee and at the expense of the other party (the client-shipper or consignee), to perform or organize the performance of services specified in the contract related to the transportation of cargo.

The forwarding contract is a public contract, since we are talking about forwarding services provided by professional commercial forwarding offices, agencies, other business structures, which, by the nature of their activities, are obliged to comply with the requirements of Art. 426 GK.

Freight forwarding contract - a type of contract, the purpose of which is to facilitate the implementation of the main transport contract - the contract for the carriage of goods. This agreement is aimed at providing additional services to the clientele of transport.

The contract of transport expedition can be both consensual and real. In cases where the freight forwarder provides the client with only services of an organizational nature, the forwarding contract is consensual. When the freight forwarder is granted the right to conclude a contract of carriage on his own behalf and independently hand over the goods for transportation, the forwarding contract is real. As can be seen from the content of Art. 801 of the Civil Code, the contract of transport expedition refers to reimbursable and bilateral contracts.

The parties in the contract of transport expedition are the forwarder and the client. The functions of a forwarder are performed by a specialized forwarding office, agency, other commercial organization providing such services. At present, the provision of forwarding services directly by carriers has become widespread, which does not contradict the law (paragraph 2 of article 801 of the Civil Code). Any subject of civil law can be a client, since the law does not provide for any restrictions in this regard.

The subject of the transport forwarding agreement is the provision of forwarding services, which are divided into legal services and actual services.

The following legal services can be provided under a transport expedition agreement:

▪ concluding on behalf of the client or on one’s own behalf an agreement (agreements) for the carriage of goods;

▪ obtaining documents required for export or import;

▪ fulfillment of customs and other formalities;

▪ payment of duties, fees and other expenses imposed on the client;

▪ receipt of cargo at the destination, etc.

Forwarders also provide the following actual services:

▪ ensuring the dispatch and receipt of cargo;

▪ checking the quantity and condition of cargo intended for transportation;

▪ carrying out loading and unloading operations;

▪ cargo storage;

▪ informing the consignee about cargo arriving at his address, etc.

If it does not follow from the contract that the freight forwarder must perform his duties personally, he is entitled, in accordance with Art. 805 of the Civil Code to involve other persons in their execution.

The main right of the freight forwarder is the right to receive remuneration for the services rendered by him. The obligations of the forwarder are determined in the contract in accordance with Art. 801 GK.

Among the rights of the client that arise before the start of transportation are the choice of the mode of transport on which the goods will be transported, and the determination of the route of transportation.

The client's obligations are to provide the forwarder with documents and other information about the properties of the cargo, the conditions of its transportation, as well as other information necessary for the forwarder to fulfill his obligations, and to pay the remuneration provided for by the contract for the forwarding services rendered. The contract may establish other obligations of the client.

A feature of the transport expedition contract as a type of service contract is that each party has the right to refuse to perform the contract by notifying the other party within a reasonable time. In case of unilateral refusal to perform the contract, the party that declared the refusal shall compensate the other party for the losses caused by the termination of the contract.

More specifically, relations arising from a freight forwarding agreement are currently regulated by the Federal Law of June 30.06.2003, 87 No. XNUMX-FZ "On Freight Forwarding Activities".

Topic 9. STORAGE AGREEMENT

In accordance with paragraph 1 of Art. 886 of the Civil Code, under a storage agreement, one party (custodian) undertakes to store the thing transferred to it by the other party (bailor) and return this thing intact.

The above norm contains the classic definition of a storage agreement, according to which this agreement is unilateral (obliged custodian), gratuitous and real. However, such a definition basically corresponds to the relations that develop regarding the storage of things in the domestic sphere. In those cases when a commercial legal entity or an individual entrepreneur acting as a custodian carries out storage as one of the goals of his professional activity, i.e. professional custodian, the storage agreement takes on a different character. In the professional sphere, it acts as a bilateral, paid and, as a rule, consensual agreement.

A thing as an object of storage is understood as movable property (except for storage in the order of sequestration, the object of which is also immovable things). This means both an individually defined thing and a thing determined by generic characteristics.

The admissibility of a thing defined by generic characteristics as an object of storage allows the use of the option of "storage with depersonalization" (Article 890 of the Civil Code), which involves mixing things of one bailor with things of the same kind of other bailors. However, this type of storage is allowed only when its use is expressly provided for by the parties in the contract.

As with other types of services, as a general rule, storage must be carried out personally by the obligated subject.

In contrast to the subject matter of the contract, the storage period within the meaning of Art. 889 of the Civil Code is not an essential condition of the contract. It is established in the contract or determined based on the terms of the contract, i.e. in accordance with a reasonable period of preservation of the thing deposited, or the preservation of any useful property by it. The storage period may also be determined by the moment the bailor claims the thing (paragraph 2 of article 889 of the Civil Code).

The form when concluding a storage agreement is determined depending on the type and circumstances of its conclusion according to the general rules of Art. 161 GK. If the parties to the agreement are citizens (domestic storage), they must conclude this agreement in writing only in cases where the value of the thing transferred for storage exceeds at least 10 times the minimum wage established by law. Consensual storage agreement, i.e. an agreement providing for the obligation of a keeper to accept a thing for storage in the future must be concluded in writing, regardless of the composition of the parties to this agreement and the value of the thing transferred for storage. In case of emergency (fire, natural disaster, sudden illness, threat of attack, etc.), the storage agreement may be concluded orally. Accordingly, the fact of the transfer of things for storage in these cases can be confirmed by witness testimony.

A simple written form of a storage agreement is considered to be observed if the acceptance of the thing for storage is certified by the bailee by issuing to the bailor:

▪ safety receipt, receipt, certificate or other document signed by the custodian;

▪ a number badge (number), another (legitimation) sign certifying the acceptance of things for storage, if such a form of confirmation of the acceptance of things for storage is provided for by law or other legal act or is customary for this type of storage.

Failure to comply with the simple written form of the storage agreement does not deprive the parties of the right to refer to witness testimony in the event of a dispute about the identity of the thing accepted for storage and the thing returned by the keeper (Article 887 of the Civil Code).

Among the obligations of the bailor is the obligation to warn the bailee about the dangerous properties of the thing when handing over the thing for storage.

After the expiration of the stipulated storage period or the period provided by the keeper for the return receipt of the thing on the basis of paragraph 1 of Art. 899 of the Civil Code, the bailor is obliged to immediately take the thing transferred for storage.

If storage is carried out on a reimbursable basis, the most important duty of the bailor is to pay the custodian remuneration for storage. According to Art. 896 of the Civil Code, unless otherwise provided by the storage agreement, the storage fee must be paid to the custodian at the end of storage, and if payment for storage is provided for by periods, it must be paid in appropriate installments after each period.

If after the expiration of the period of storage the thing in storage is not taken back by the bailor, he is obliged to pay the bailee a commensurate remuneration for the further storage of the thing. This rule also applies if the bailor is obliged to take the thing before the expiration of the storage period.

Unless otherwise provided by the contract, the costs of storage of the thing, which the bailee must bear, are included in the remuneration for storage. In the case of gratuitous storage of a thing, the bailor is obliged to reimburse the bailee for the necessary expenses incurred by him for the storage of the thing, unless otherwise provided by law or the contract of storage (Article 897 of the Civil Code).

The duty of the bailee is primarily the duty to accept the thing for storage. However, unless otherwise provided by the contract, he is released from this obligation in the event that the thing is not transferred to him within the period stipulated by the contract (clause 2 of article 888 of the Civil Code).

The main duty of a custodian is to keep things. Keeping a thing is nothing more than ensuring its safety. According to Art. 891 of the Civil Code, the custodian is obliged to take all the measures provided for by the storage agreement in order to ensure the safety of the thing transferred for storage. In any case, the keeper must take measures to preserve the thing transferred to him, the obligation of which is provided for by law, other legal acts or in the manner prescribed by them (fire-fighting, sanitary, security, etc.). In the absence of conditions on such measures in the agreement or the incompleteness of such conditions, the bailee must take measures to preserve the thing that correspond to the customs of business transactions and the essence of the obligation, including the properties of the thing transferred for storage, unless the need to take these measures is excluded by the agreement. If storage is carried out free of charge, the bailee is obliged to take care of the thing accepted for storage no less than about his own things.

The keeper is not entitled to use the thing transferred for storage without the consent of the bailor, as well as provide the opportunity to use it to third parties, except in cases where the use of the stored thing is necessary to ensure its safety and does not contradict the storage agreement (Article 892 of the Civil Code).

The bailee who has accepted the thing is obliged to keep it for the period stipulated by the storage agreement, or for the period determined on the basis of the terms of the agreement, or until the bailor claims the thing. If the period of storage of a thing is determined by the moment of its demand, the bailee shall have the right, after the expiration of the period of storage of the thing, which is usual under the given circumstances, to demand that the bailor take back the thing, giving him a reasonable time for this. Failure to fulfill this obligation by the bailor entails the consequences provided for in Art. 899 GK.

The bailee is obliged, upon first demand, to return to the bailor or the person indicated by him as the recipient, the very thing that was transferred for storage, unless the agreement provides for storage with depersonalization. The thing must be returned by the keeper in the same condition in which it was accepted for storage, taking into account its natural deterioration, natural loss or other change due to its natural properties. Simultaneously with the return of a thing, the keeper is obliged to transfer the fruits and income received during its storage, unless otherwise provided by the storage agreement (Article 900, 904 of the Civil Code).

The custodian is responsible for the loss, shortage or damage of things accepted for storage on the general grounds specified in Art. 401 GK. A professional custodian shall be liable for the non-preservation of the things transferred to him, unless he proves that their loss, shortage or damage occurred due to force majeure, or because of the properties of the thing, about which the keeper, accepting it for storage, did not know and should not have known, or as a result of intent or gross negligence of the bailor. For the loss, shortage or damage of things accepted for storage after the obligation of the bailor to take these things back has come, the bailee is liable only if there is intent or gross negligence on his part.

Certain features of terminating this agreement also depend on the nature of the obligation arising from the storage agreement. So, the bailor has the right to refuse this agreement at any time, including before the start of its execution, which follows from the content of the norms of paragraph 1 of Art. 888, Art. 904 GK.

The above rules relating to a storage agreement also apply to storage obligations arising by virtue of law, i.e. without concluding an agreement, unless other rules are established by law (Article 906 of the Civil Code).

Under a warehousing agreement, a commodity warehouse (custodian) undertakes, for a fee, to store goods transferred to it by the goods owner (bailer) and return these goods in safety (paragraph 1 of article 907 of the Civil Code).

A commodity warehouse is an organization (or an individual entrepreneur) that carries out storage of goods as an entrepreneurial activity and provides storage-related services. Public warehouses stand out among the existing warehouses. In accordance with Art. 908 of the Civil Code, a warehouse is considered a public warehouse if it follows from the law, other legal acts or the permit (license) issued to this commercial organization that it is obliged to accept goods for storage from any goods owner. Accordingly, a warehouse storage agreement concluded by a public warehouse is recognized as a public agreement (Article 426 of the Civil Code).

The warehouse storage agreement is consensual, paid and bilateral.

The object of storage under a storage agreement at a warehouse is not just a thing, but a thing as a commodity, i.e. a product of labor intended for subsequent sale, and not for consumption. At the same time, as a general rule, we are talking about things determined by generic characteristics.

An essential feature of this type of storage agreement is that the custodian (warehouse) has the right to dispose of the goods transferred to him, if such a condition is provided for by law, other legal act or agreement. In this case, the rules of Ch. 42 of the Civil Code on a loan, however, the time and place for the return of goods are determined by the rules of Ch. 47 of the Civil Code on storage (Article 918 of the Civil Code). It follows from the foregoing that in the case of the sale of goods in the possession of a commercial organization recognized as a warehouse, the latter is obliged to return to the bailor the quantity of things of the same kind and quality accepted for storage.

When goods are transferred with the right to dispose of these goods to the goods warehouse, the right of ownership to this goods arises with the bailee (i.e., at the goods warehouse), and the bailor retains the right to demand the return of the same amount of homogeneous goods.

Although, when stored in a warehouse, the objects of storage are most often things that are determined by generic characteristics, separate storage of these things is assumed, i.e. without their depersonalization and mixing with homogeneous goods. The storage of depersonalized items in a warehouse must be expressly provided for in the contract.

The execution of a storage agreement at a warehouse, which is carried out by issuing one of three types of warehouse documents, has its own specifics. According to Art. 912 of the Civil Code, the warehouse issues one of the following documents to confirm the acceptance of goods for storage:

▪ double warehouse receipt;

▪ simple warehouse receipt;

▪ warehouse receipt.

The warehouse document certifies:

▪ the fact of concluding a storage agreement in a warehouse in writing;

▪ the fact that the goods were accepted for storage by the warehouse.

Double and single warehouse certificates are title securities that allow the owners of these documents to carry out the circulation of rights to the goods without moving the goods that continue to be in the warehouse.

Double warehouse certificate - a security consisting of two parts: the warehouse certificate itself and the pledge certificate (warrant - from the English warrant - authority), which can be separated from one another and each of which is also a security. Each of these parts must contain the same details specified in paragraph 1 of Art. 913 GK. A double warehouse certificate is issued to the commodity owner of a warehouse to certify the fact of acceptance for storage of certain goods and the right of the holder of this security to receive the transferred goods personally or to transfer this right to another person by making an endorsement. Thus, a double warehouse receipt is both an order security and a document of title.

The peculiarity of storage carried out with the issuance of a double warehouse certificate is that the commodity owner, who has handed over his goods for storage, has two specific possibilities. Firstly, he can transfer to a third party the right to receive goods deposited by him, by transferring the actual warehouse receipt to this person by means of an endorsement. Secondly, if necessary, the owner of the goods transferred to the bailee has the right to pledge it to a third party, transferring the pledge certificate to the latter as a security confirming that its holder has the right to the pledged goods. Since both the actual warehouse and the pledge certificate are order securities, they can change hands more than once, both together and separately (Article 915 of the Civil Code). The absence of a warehouse certificate holder of a pledge certificate indicates the presence of a pledge encumbrance on the part of a third party.

In accordance with the foregoing, the warehouse receipt itself, as a separate document, if its holder does not have a pledge certificate, acts as a document certifying the property right to the goods under pledge. A pledge certificate (warrant), also taken as a separate document, if its holder does not have a proper warehouse certificate, certifies the pledge right to the goods. The presence of a set of both parts of the document certifies the property right to the goods, free from collateral encumbrance.

Accordingly, the holder of the warehouse and pledge certificates has the right to dispose of the goods stored in the warehouse in full and to issue these goods to him by the warehouse (clause 1 of article 914, clause 1 of article 916 of the Civil Code). He has the right to demand the issuance of goods in parts. At the same time, in exchange for the initial certificates, he is issued new certificates for the goods remaining in the warehouse (clause 4 of article 916 of the Civil Code).

The holder of a warehouse certificate separated from the pledge certificate has the right to dispose of the goods, but cannot take it from the warehouse until the loan issued under the pledge certificate is repaid (paragraph 2 of article 914 of the Civil Code). The presentation by the commodity owner of a receipt confirming the payment of the secured debt shall compensate for the lack of a pledge certificate. In this case, the commodity owner, on the basis of paragraph 2 of Art. 916 of the Civil Code may require the goods warehouse to release the goods, as if a double warehouse receipt were in a set.

The holder of the pledge certificate, other than the holder of the warehouse receipt, shall be entitled to repledge the goods in the amount of the credit issued by him, taking into account the interest payable. Prior to the maturity of the loan, the holder of the warrant has the right to dispose of it at his own discretion as a new pledger. Appropriate notes must be made on the subsequent committed pledges on the warrant (paragraph 3 of article 914 of the Civil Code).

The goods warehouse that issued the goods to the holder of the warehouse certificate, who does not have a pledge certificate and did not pay the amount of the debt on it, in accordance with paragraph 3 of Art. 916 of the Civil Code is liable to the holder of the pledge certificate for payment of the entire amount secured on it.

A simple warehouse certificate differs from a double one in that, firstly, it is a bearer security, and secondly, it is a single, indivisible document. This certificate at the same time certifies the real right of the commodity owner, the pledge right of the creditor of the commodity owner and the obligation of the warehouse. A simple warehouse certificate must contain the same details as a double warehouse certificate (Article 913 of the Civil Code), except for indicating the name and location of the goods owner. This certificate must also indicate that it is issued to the bearer.

A warehouse receipt is not a security. It only confirms the fact of the conclusion of the storage agreement at the warehouse and certifies the bailor's right to demand the return of the goods.

In § 3 ch. 47 of the Civil Code contains rules governing special types of storage. The latter include storage, which is carried out by:

▪ pawnshop;

▪ bank;

▪ a public transport organization in charge of storage lockers;

▪ an organization offering its visitors services for storing items in a wardrobe;

▪ hotel (as well as an equivalent organization providing hotel services);

▪ an entity providing storage services for the item that is the subject of the dispute (sequestration).

Topic 10. MANAGEMENT, COMMISSION AND AGENCY AGREEMENTS

10.1. Contract of agency

In accordance with paragraph 1 of Art. 971 of the Civil Code, under an agency agreement, one party (attorney) undertakes to perform certain legal actions on behalf and at the expense of the other party (principal). The rights and obligations under the transaction made by the attorney arise directly from the principal.

The contract of agency by its legal nature is consensual and bilateral. As a general rule, this contract is recognized as gratuitous, if the payment of remuneration to the attorney is not directly provided for by law or the contract. However, if this agreement is connected with the implementation of entrepreneurial activity by at least one of its participants, it, on the contrary, is assumed to be paid, unless its gratuitous nature is fixed in the agreement (clause 1 of article 972 of the Civil Code). In addition, the contract of agency is one of the personally trusted (fiduciary) transactions, which are relatively rare in modern civil circulation.

The subject of an agency agreement is the performance by one person on behalf of another of certain legal actions, most often transactions. The law emphasizes that the rights and obligations under a transaction made by an attorney arise directly from the principal (paragraph 1 of article 971 of the Civil Code). Consequently, the attorney does not become a participant in the transaction concluded by him with a third party, and the principal acts as such a party.

Since the agent, in accordance with the agency agreement, acts on behalf of another person, in this case there is representation, in connection with which the specified agreement is also called a representation agreement, and the agent is called a representative.

Representation, and hence the contract of agency, is possible in most civil legal relations (with the exception of those provided for in paragraph 4 of article 182 of the Civil Code). In this regard, any able-bodied citizens and legal entities, as well as public legal entities, can be parties to an agency agreement. There are restrictions only for commercial representatives, since only commercial organizations or individual entrepreneurs can act in their role.

The law does not contain special rules on the form of an agency contract, based on the fact that, as a general rule, the relations of its participants are formalized by issuing a power of attorney. The power of attorney, which determines the scope of the powers of the attorney, must be drawn up in accordance with the requirements of Art. 185 - 187 of the Civil Code. Being a written document, in most cases it does not imply (although it does not exclude) the additional formalization of the commission relationship by a special document (agreement) signed by both parties. Commercial representation is carried out on the basis of a written agreement, which may contain indications of the representative's powers (paragraph 1, clause 3, article 184 of the Civil Code). In this case, a power of attorney to perform legal actions on behalf of the principal is not required.

The contract of agency can be concluded both for a fixed period and without specifying a period (clause 2 of article 971 of the Civil Code). However, the powers of the attorney are usually fixed in a power of attorney, the validity of which is limited by law (clause 1, article 186 of the Civil Code). In this regard, an agency agreement concluded without specifying a period or for a period exceeding the validity period of the power of attorney issued for its execution (if the power of attorney is issued for three years) must be executed in the form of a written document.

The duty of the attorney is the personal execution of the instructions given to him. Reassignment is permissible only in cases and under the conditions provided for in Art. 187 of the Civil Code (clause 1 of article 976 of the Civil Code), i.e. or if there is a special authority to do so, directly fixed in the power of attorney, or if the principal is forced to resort to substitution by force of circumstances to protect the interests of the principal.

The attorney is obliged to execute the assignment given to him in accordance with the instructions of the principal. He has the right to deviate from the instructions of the principal, if this is necessary in the interests of the principal himself and the attorney could not request the principal in advance or did not receive a response to his request within a reasonable time. But even in this case, the principal, at the first opportunity, must be notified by the attorney about the deviation from the instructions given by him.

The commercial representative may be entitled to deviate from the principal's instructions in the interests of the principal without prior request to do so. However, he, unless otherwise provided by the contract of agency, is also obliged to inform his principal about the deviations made (Article 973 of the Civil Code).

In addition, in accordance with Art. 974 of the Civil Code, the attorney is obliged:

▪ at the request of the principal, provide him with all information about the progress of the execution of the order;

▪ immediately transfer to the principal everything received under transactions completed in pursuance of the order;

▪ upon execution of an order or upon termination of an agency agreement before its execution, immediately return to the principal the power of attorney, which has not expired, and submit a report with supporting documents attached, if required by the terms of the agreement or the nature of the order.

The principal is obliged, first of all, to properly formalize the powers of the attorney, i.e. issue a power of attorney to the latter to perform legal actions stipulated by the contract of agency. It is necessary that the instructions of the principal be lawful, feasible and specific (clause 1 of article 973 of the Civil Code), otherwise they will not bind the attorney.

Unless otherwise provided by the agreement, the principal is also obliged:

▪ reimburse the attorney for expenses incurred;

▪ provide him with the funds necessary to execute the order;

▪ immediately accept from the attorney all orders executed by him in accordance with the contract;

▪ pay the attorney a fee if the agency agreement is for a fee.

The commercial representative is granted the right to retain the things to be transferred to the principal until the latter fulfills his obligations to compensate the costs incurred by the attorney and pay him the stipulated remuneration (clause 3 of article 972, article 359 of the Civil Code).

The relations of the parties to the commission agreement are of a personal-confidential (fiduciary) nature. This is due to the presence of the norm of paragraph 2 of Art. 977 of the Civil Code, according to which the principal has the right to cancel the order, and the attorney to refuse it at any time, without explaining the motives of his actions. An agreement to waive this right is void.

If the contract of commission is terminated before the commission has been fully executed by the attorney, the principal is obliged to reimburse the attorney for the costs incurred in the execution of the order, and when the attorney was due remuneration, also pay him a remuneration in proportion to the work performed by him. This rule does not apply to the execution of an order by an attorney after he has learned or should have known about the termination of the order (paragraph 1 of article 978 of the Civil Code).

The peculiarity of the contract of agency as a contract based on a trusting relationship is that in the event of a unilateral refusal to execute it, the principal and the attorney do not bear the obligation to compensate for the losses caused by this to the other party (clauses 2, 3 of article 978 of the Civil Code). As an exception, compensation for losses is provided only to the principal in case of refusal to execute the attorney's order in conditions where the principal is deprived of the opportunity to otherwise secure his interests.

Since fiduciary is not a defining feature for business relations, the current legislation establishes more stringent rules governing the unilateral cancellation of a commercial representation agreement. In particular, in case of withdrawal from such an agreement, as a general rule, prior notice to the other party is required at least 30 days in advance.

The personal-confidential nature of the relationship between the parties to the contract of agency excludes the possibility of succession in respect of their obligations.

10.2. Commission agreement

In accordance with paragraph 1 of Art. 990 of the Civil Code, under a commission agreement, one party (commission agent) undertakes, on behalf of the other party (committent), for a fee, to make a transaction (several transactions) on its own behalf, but at the expense of the committent.

A party to transactions concluded in the interests of the principal is initially the commission agent (intermediary), who acts on his own behalf and therefore acquires rights and obligations on them, which he then transfers to the principal.

The committent (the alienator or purchaser of the goods) does not become a participant in transactions concluded by the commission agent on his behalf and at his expense, even if he is directly named in the transaction or enters into direct relations with a third party counterparty for its execution. In this respect, a commission contract differs from a commission contract.

The peculiarity of the commission agreement, which distinguishes it from the commission agreement, is also that its subject is only the conclusion of transactions, usually for the sale of the committent's property.

Finally, a commission agreement is always paid, and an agency agreement can be such only if there is a special indication of the law, other legal act or agreement. The reimbursable nature of the commission, due to the relations of trade (commercial) mediation underlying it, excludes the personal-confidential nature of this agreement. Therefore, the commission agent, unlike the attorney, cannot unilaterally, unmotivatedly and without compensation for losses, refuse to fulfill the contract, and the death of a citizen or the liquidation of a legal entity acting as a committent does not entail automatic termination of the contract, since succession is possible here.

The commission agreement, by its legal nature, is consensual, reimbursable and bilateral. When concluding it, the general provisions on the form of transactions should be applied.

The main obligation of the commission agent, which is a legal entity or an individual entrepreneur, is to make a transaction or transactions for the committent in accordance with the instruction given to him. The commission agent is responsible for the validity, but not for the enforceability of transactions concluded by him with third parties in the interests of the committent (paragraph 1 of article 993 of the Civil Code).

The commission agent is liable to the committent for non-execution by a third party of a valid transaction concluded by him only in two cases:

▪ if the commission agent fails to exercise the necessary diligence in choosing a third party - the counterparty to the transaction, for example, when he enters into a transaction with a legal entity that is in the process of liquidation;

▪ if there is a condition in the contract that the commission agent assumes guarantee for the execution of the transaction concluded for the principal by a third party (del credere) (clause 1 of Article 991 of the Civil Code). In this case, the commission agent simultaneously becomes a guarantor (Article 361 of the Civil Code) and, along with a third party, is responsible to the principal for the proper execution of the concluded transaction.

One of the important obligations of the committent is the payment to the commission agent of the remuneration determined by the contract, which directly follows from the norm of paragraph 1 of Art. 990 GK. The remuneration may be established in the form of the difference or part of the difference between the price of the goods set by the committent and the more favorable price at which the commission agent will be able to sell the goods. If there is no condition in the contract on the amount of remuneration and it is impossible to determine it based on the terms of the contract, it must be paid in the amount of the remuneration usually charged under comparable circumstances for intermediary commission services (clause 3 of article 424 of the Civil Code). Thus, the condition of remuneration is not one of the essential conditions of this agreement. If there is a condition on the delcreder in the contract, the committent, in addition, is obliged to pay additional remuneration (paragraph 1 of article 991 of the Civil Code).

The committent is also obliged to reimburse the commission agent for all expenses related to the execution of the order, since, in accordance with paragraph 1 of Art. 990 of the Civil Code, it must be carried out at his expense. However, as a general rule, the commission agent does not have the right to reimbursement of storage costs, unless otherwise provided by law or commission agreement (Article 1001 of the Civil Code).

Since the commission agent makes transactions in the interests and at the expense of the committent, he is obliged to execute the commission he has accepted on the most favorable terms for the committent and in accordance with his instructions. In the absence of such indications in the contract, the commission agent is obliged to act in accordance with the customs of business turnover or other usually imposed requirements (part 1 of article 992 of the Civil Code).

Deviations from the instructions of the principal in the performance of the contract, including those relating to the price of concluded transactions, are permissible only in cases where this is necessary in the interests of the principal and the commission agent could not request the principal in advance or did not receive a response to his request within a reasonable time. However, here, too, the commission agent is obliged to notify the committent of the allowed deviations as soon as it became possible. Only a professional commission agent under the terms of the contract may be granted the right to deviate from the instructions of the committent without prior request and even without subsequent notification (paragraph 1 of article 995 of the Civil Code).

If the commission agent sold the property of the committent at a price lower than the agreed price, he is obliged to reimburse the difference, unless he proves that, taking into account the prevailing situation on the market, he had no other choice and such a sale prevented even greater losses for the committent. In the case when the commission agent was obliged to request the committent in advance, he must also prove that he was unable to obtain the prior consent of the committent to deviate from his instructions (paragraph 2 of article 995 of the Civil Code).

If the commission agent bought the property at a price higher than agreed with the committent, the latter has the right to refuse to accept such a purchase. However, the committent must declare this to the commission agent within a reasonable time after receiving the notice of the conclusion of the transaction. Otherwise, the purchase is recognized as accepted by the committent. In this situation, the commission agent may also take the difference in price into his account. In this case, the committent is not entitled to refuse the transaction concluded for him, since he does not suffer losses from non-fulfillment of his instructions by the commission agent (clause 3 of article 995 of the Civil Code).

The additional benefit received as a result of the transaction by the commission agent on terms more favorable than those indicated by the committent is divided equally between the committent and the commission agent, unless otherwise provided by agreement of the parties (part 2 of article 992 of the Civil Code).

Upon execution of the order, the commission agent is obliged to submit a report to the committent and transfer to him everything received under the commission agreement. The principal's objections to the report must be communicated to the commission agent within 30 days from the date of its receipt, unless otherwise specified by the agreement. Otherwise, unless otherwise agreed, the report is considered accepted in the form in which it is presented (Article 999 of the Civil Code).

The fulfillment of the commission contract also consists in the payment of remuneration to the commission agent by the committent and reimbursement of expenses incurred in connection with the execution of the committent's order. At the same time, the law establishes special guarantees for the commission agent, which is especially important for professional commercial intermediaries. First, he is granted the provisions of Art. 359 of the Civil Code, the right to retain the things of the committent held by him until all his monetary claims under the contract are satisfied (Article 996 of the Civil Code). Secondly, he has the right to withhold the amounts due to him under the contract from the amounts received by him for the committent, having offset his claims against the committent (Article 997 of the Civil Code).

The principal as a service recipient has the right to unilaterally and unmotivatedly refuse to perform the contract at any time. However, he is obliged to compensate the commission agent for all losses caused by the cancellation of the order, including lost income in the form of remuneration due for services, as well as within the period established by the commission agreement, and if such a period is not established, immediately dispose of his property held by the commission agent (Article 1003 of the Civil Code) . The commission agent is not entitled to unilaterally refuse to execute the committent's order, unless such a right is expressly provided for him in the contract.

Unless otherwise specified by the commission agreement, the commission agent has the right, in order to fulfill this agreement, to conclude a subcommission agreement with another person, while remaining responsible for the actions of the subcommission agent to the committent (Article 994 of the Civil Code).

10.3. Agency contract

In accordance with paragraph 1 of Art. 1005 of the Civil Code, under an agency agreement, one party (agent) undertakes, for a fee, to perform, on behalf of and at the expense of the other party (principal), legal and other (actual) actions either on its own behalf or on behalf of the principal.

The agency agreement is new for Russian law. The design of this agreement pursues the goal of civil legal registration of relations in which an intermediary or representative performs both legal and actual actions in the interests of others.

If the agent acts at the expense of the principal, but on his own behalf, he becomes a party to transactions concluded by him with third parties, and even in the case when the principal was named in the transaction or entered into direct relations with the third party to execute the transaction (para. 2 paragraph 1 of article 1005 of the Civil Code). At the same time, the rules on the commission agreement are applied to the relations between the principal and the agent, if they do not contradict the special rules of Ch. 52 of the Civil Code on agency or the essence of this agreement (Article 1011 of the Civil Code).

If the agent, under the terms of the contract concluded with the principal, acts not only at the expense of, but also on behalf of the principal, the rules on the contract of agency with the same restrictions apply to the relations arising between him and the principal with the same restrictions with which the rules on the contract of commission are applied in other cases (Art. 1011 GK).

An agency agreement is always paid and does not have a personal trust character even when the agent makes transactions on behalf of the principal (which causes the inadmissibility of a unilateral unmotivated refusal to execute it before the expiration of the agreement).

The contract in question is of a continuing nature, since, by virtue of its effect, the agent is obliged to perform, and not to perform, any actions for the principal, and, therefore, cannot be concluded for the agent to perform any one specific transaction or other action. The agency agreement by its legal nature is also consensual and bilateral. It can be concluded both for a period and without specifying a period (clause 3 of article 1005 of the Civil Code).

The law does not establish special requirements for the form of this agreement, however, taking into account the nature of the emerging relationship, similar to the relationship of a commercial representation, the right for an agent to perform legal actions on behalf of the principal must be formalized either by a power of attorney or a written agreement (by analogy with paragraph 3 of Article 184 GK). The difference here is that in the agency agreement it is allowed to indicate only the general powers of the agent to make transactions and other legal actions on behalf of the principal without specifying them (which is often impossible at the time of concluding such an agreement due to the complex nature of the agent’s activities and insufficiently clear prospects in future). In such cases, the principal in relations with third parties is not entitled to refer to the agent’s lack of proper powers, unless he proves that the third party knew or should have known about the restriction of the agent’s powers (paragraph 2 of article 1005 of the Civil Code).

The main duty of the agent is to perform transactions and other legal and actual actions in the interests and at the expense of the principal. At the same time, the agency agreement may establish territorial restrictions on the actions of both the agent and the principal.

The principal is obliged to properly formalize the powers of the agent and provide him with the funds necessary for the execution of the assignment given to him, since it must be executed at the expense of the principal. The principal is also obliged to pay the agent remuneration for the actions performed in his interests (Article 1006 of the Civil Code).

During the execution of the contract, the agent is obliged to submit reports to the principal, which must be accompanied by the necessary evidence of expenses incurred at the expense of the principal, unless otherwise provided by the contract (Article 1008 of the Civil Code).

Unless otherwise provided by the agency agreement, the agent has the right, in order to fulfill the agreement, to conclude a subagency agreement with another person, while remaining responsible for the actions of the subagent to the principal. In such cases, the agent actually takes the position of principal in relations with the subagent.

The agency agreement may provide for the obligation of the agent to conclude a subagency agreement with or without specifying the specific terms of such an agreement (paragraph 1 of article 1009 of the Civil Code).

Topic 11

The institution of actions in someone else's interest without instructions is new for modern Russian civil law. These actions include both factual and legal actions. In this case, we are talking about actions that are performed without an order, other instructions or the previously promised consent of the person concerned. The law allows the commission of such actions only for the purposes of:

▪ preventing harm to the person or property of the interested party;

▪ fulfillment of the property obligations of such a person (for example, to pay rent, to make tax or other obligatory payments, etc.);

▪ compliance with his other non-illegal interests (for example, obtaining performance from debtors of an absent interested party).

Actions in someone else's interest without the instructions of the person concerned are recognized as lawful if they are performed based on the obvious benefit or benefit and the actual or probable intentions of the person concerned and with the diligence and prudence necessary for the circumstances of the case (paragraph 1 of article 980 of the Civil Code).

A person acting in someone else's interest is obliged to notify the interested person at the first opportunity and wait within a reasonable time for his decision on approval or disapproval of the actions taken, unless such waiting will cause serious damage to the interested person. It is not required to specifically inform the interested citizen about actions in his interest if these actions are taken in his presence (Article 981 of the Civil Code).

The law allows for the possibility of committing certain actions in someone else's interest against the will of the person whose interests they affect. So, according to paragraph 2 of Art. 983 of the Civil Code, actions to prevent danger to the life of another person (for example, when saving a person who has decided to commit suicide) are also allowed against the will of this person, and the fulfillment of the obligation to support someone is against the will of the one who bears this duty.

Actions in someone else's interest, committed after the one who commits them, it became known that they are not approved by the person concerned, do not entail obligations for the latter either in relation to the person who committed these actions, or in relation to third parties (clause 1 of article 983 GK).

The person in whose interests the actions were performed by another person is obliged to compensate this person for the expenses incurred by him and other real damage, regardless of the achievement of the expected result. However, when preventing damage to the property of the person concerned, the amount of compensation should not exceed the value of the property. Expenses and other real damages are not reimbursed to a person who acted in the cases provided for by law against the will of the person whose interests were affected by these actions (clause 1 of article 984 of the Civil Code). Upon reaching a positive result for the person concerned, the person who acted in someone else's interest is also entitled to receive remuneration, but only in cases where this is provided for by law, an agreement with the person concerned or the customs of business (Article 985 of the Civil Code).

A person who has committed actions without authority in the interests of another person, regardless of the result of his actions and their approval or disapproval by the person concerned, is obliged to submit to the latter a report indicating the income received and expenses incurred and other losses (Article 989 of the Civil Code).

Approval by an interested person of actions in his interest leads to the fact that the relations between him and the person who committed them are subsequently subject to the rules on an agency agreement or other agreement corresponding to the nature of the actions taken, even if the approval was oral (Article 982 of the Civil Code). Thus, in this situation, these relations acquire a contractual character. In this regard, the expenses and other losses of a person acting in someone else's interest, incurred by him in connection with the actions taken after obtaining approval from the person concerned, are reimbursed according to the rules on the contract of the corresponding type (clause 2 of article 984 of the Civil Code).

The rules of the Civil Code do not apply to actions in the interest of other persons committed by state and municipal bodies for which such actions are one of the goals of their activities (clause 2 of article 980 of the Civil Code).

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).

Topic 13. COMMERCIAL CONCESSION AGREEMENT

The contract of commercial concession (franchising) is new for our civil law. Franchising is understood as the paid acquisition by one entrepreneur (user) from another entrepreneur, usually from a commercial organization with an established business reputation (copyright holder) well known to consumers, the right to use his means of individualization of goods produced, work performed or services provided, as well as a protected commercial information (know-how) on the technology of the relevant production and provision of consulting and other organizational assistance so that the goods, works and services of the user appear on the market in the same form as similar goods, works and services of the right holder. Thus, the entrepreneur-user in relations with his counterparties-consumers acts under the guise of a copyright holder, using his attributes, which have long established themselves in the market of relevant goods or services, to formalize the results of their activities.

In view of the expansion of the scope of franchising, the importance of protecting the interests of the consumer (service recipient), who must be provided with goods or services of the same quality as those produced or provided by the original copyright holder, is increasing.

Under a commercial concession agreement, one party (right holder) undertakes to grant the other party (user) for a fee for a period or without specifying a period, the right to use in the user's business activities a set of exclusive rights belonging to the right holder (paragraph 1 of article 1027 of the Civil Code).

By its legal nature, this agreement is consensual, reimbursable, bilateral.

It should be noted that the specified agreement should be used exclusively in the field of entrepreneurial activity, in connection with which only commercial organizations and individual entrepreneurs can be its parties (clause 3 of article 1027 of the Civil Code). Accordingly, the special rules of the Civil Code on obligations in carrying out entrepreneurial activities are applicable to relations between its participants. According to the norm of paragraph 4 of Art. 1027 of the Civil Code, the rules of Sec. VII GK on the license agreement, if it does not contradict the provisions of Ch. 54 of the Civil Code and the essence of the commercial concession agreement.

The subject of a commercial concession agreement is, firstly, a set of exclusive rights belonging to the right holder and individualizing either him (the right to a commercial designation) or the goods produced by him, the work performed or the services provided (the right to a trademark or service mark). Secondly, the subject of such an agreement is the possibility of using a production secret (know-how) protected by the copyright holder, as well as his business reputation and commercial experience, including in the form of various documentation on organizing and conducting business activities. Thirdly, in the composition of the subject of the concession agreement in accordance with paragraph 1 of Art. 1031 of the Civil Code includes instructing the user and his employees on all issues related to the exercise of the rights transferred to him by the copyright holder.

The concession agreement must be concluded in writing, otherwise it is considered void (paragraph 1 of article 1028 of the Civil Code). In addition, the concession agreement is subject to state registration with the federal executive body for intellectual property (Rospatent) on pain of declaring it null and void.

The concession agreement must contain specific conditions for determining and paying remuneration to the right holder. The law allows for various forms of such remuneration: one-time (lump-sum) or periodic (royalties) payments, deductions from proceeds, a mark-up on the wholesale price of goods transferred by the right holder for resale, etc. (Article 1030 of the Civil Code).

As a party to the concession agreement, the right holder is obliged (clause 1 of article 1031 of the Civil Code):

▪ issue the licenses provided for in the contract to the user, ensuring their execution in the prescribed manner.

The right holder also bears other obligations, unless otherwise expressly provided by agreement of the parties. These include duties (clause 2 of article 1031 of the Civil Code):

▪ ensure state registration of the commercial concession agreement;

▪ provide the user with ongoing technical and advisory assistance, including assistance in training and advanced training of employees;

▪ control the quality of goods (work, services) produced (performed, provided) by the user on the basis of a contract.

In accordance with Art. 1032 of the Civil Code, the user is obliged:

▪ use, when carrying out the activities provided for in the contract, a commercial designation, trademark, service mark or other means of individualizing the copyright holder in the manner specified in the contract;

▪ ensure that the quality of the goods, work performed, or services provided by him on the basis of the contract corresponds to the quality of similar goods, work or services produced, performed or provided by the copyright holder;

▪ comply with the instructions and instructions of the copyright holder aimed at ensuring compliance of the nature, methods and conditions of use of a set of exclusive rights with how it is used by the copyright holder, including instructions regarding the external and internal design of commercial premises used by the user in the exercise of the rights granted to him under the contract;

▪ provide buyers (customers) with all additional services that they could count on when purchasing (ordering) a product (work, service) directly from the copyright holder;

▪ not to disclose the production secrets (know-how) of the copyright holder and other confidential commercial information received from him;

▪ inform buyers (customers) in the most obvious way for them that he is using a commercial designation, trademark, service mark or other means of individualization by virtue of a commercial concession agreement.

The concession agreement may establish the obligation of the user to provide a specified number of other entrepreneurs with permission to use, under certain conditions, a set of rights received from the copyright holder or a specific part thereof. Such permission is called a subconcession. In the contract, the provision of a subconcession may be provided as a right or as an obligation of the user (paragraph 1 of article 1029 of the Civil Code).

A commercial concession agreement provides for the use of a set of exclusive rights, business reputation and commercial experience of the right holder to a certain extent (for example, in terms of cost or quantity of goods produced or services rendered, their use in one enterprise or in a certain number of them, etc.), and with indicating or not indicating the territory of use (for example, trade in a certain type of goods only on the territory of a given subject of the Russian Federation). According to paragraph 2 of Art. 1027 of the Civil Code, both the maximum and the minimum volume of use of the objects of the concession agreement can be established.

Since, when purchasing a product or service from a user, consumers in many cases are sure that they are purchasing it from the right holder himself and rely on the appropriate quality of the product or service, in accordance with Part 2 of Art. 1034 of the Civil Code, the copyright holder bears subsidiary liability for the requirements imposed on the user in connection with the inadequate quality of the product or service. If the user acts as a manufacturer of goods, using trademarks and other brand names of the copyright holder (manufacturing franchising), the copyright holder is responsible for the quality of these goods jointly with the user (part 2 of article 1034 of the Civil Code).

Since the commercial concession agreement is entrepreneurial, mutual liability of the parties for its violation occurs regardless of their fault, unless otherwise provided by this agreement (clause 3 of article 401 of the Civil Code).

Each of the parties to a commercial concession agreement concluded without specifying a period of time has the right to cancel the agreement at any time by notifying the other party six months in advance, unless the agreement provides for a longer period. A concession agreement concluded for a period is terminated on the general grounds for termination of contractual obligations. At the same time, early termination of such an agreement, as well as termination of an agreement concluded without specifying a period, are subject to mandatory state registration.

The user, who duly performed his duties, has the right to conclude an agreement for a new term on the same terms after the expiration of the commercial concession.

The right holder has the right to refuse to conclude an agreement for a new term, provided that within three years from the date of expiration of this agreement, he will not conclude similar agreements with other persons and agree to conclude similar commercial subconcession agreements, the effect of which will apply to the same territory, on which the terminated contract was in effect (Article 1035 of the Civil Code).

Topic 14. INSURANCE OBLIGATIONS

14.1. The concept and individual types of insurance

In its economic essence, insurance is a system of economic relations aimed at eliminating or reducing property losses caused by extraordinary circumstances, by distributing them among persons, at whose expense a special (insurance) fund is created to compensate for such losses.

Insurance economic relations act in the form of the creation and distribution of a monetary fund, called an insurance fund, which is managed by a special organization (insurer), through the preliminary accumulation of funds (contributions) of interested participants in economic turnover (insurers).

The civil law sources of insurance law are the Civil Code, Law of the Russian Federation of November 27.11.1992, 4015 No. 1-28.06.1991 "On the Organization of Insurance Business in the Russian Federation" (hereinafter referred to as the Law on the Organization of Insurance Business in the Russian Federation), KTM, Law of the RSFSR of June 1499, 1 No. XNUMX-XNUMX "On the health insurance of citizens in the Russian Federation".

Important in the regulation of specific insurance relations are insurance rules (policy rules) adopted, approved or approved by the insurer or the association of insurers, although they do not constitute sources of law (Article 943 of the Civil Code).

The grounds for the emergence of insurance obligations may be: contract (Article 927 of the Civil Code); membership in a mutual insurance society (paragraph 1, clause 3, article 968 of the Civil Code); law and other legal act with compulsory state insurance (clause 2 of article 969 of the Civil Code).

On the basis of its obligation or non-obligation for the insured, voluntary and compulsory insurance are distinguished.

Voluntary insurance is carried out on the basis of an agreement concluded at the discretion of the insured.

Mandatory is insurance, which is carried out by virtue of the law, obliging the insured to conclude an insurance contract in accordance with the rules established by him (clause 2 of article 927 of the Civil Code).

The peculiarity of compulsory insurance is that it is insurance in favor of a third party, i.e. the damage caused by such insurance is compensated not to the insured, but to another person.

According to Art. 935 of the Civil Code, by law, persons liable to it may be required to insure:

▪ life, health or property of other persons specified by law in case of harm to their life, health or property;

▪ the risk of your civil liability, which may arise as a result of causing harm to the life, health or property of other persons or violation of a contract with other persons.

Compulsory insurance is carried out by concluding an insurance contract by a person who is entrusted with the obligation of such insurance (the insured) with the insurer.

Compulsory insurance is carried out at the expense of the insured, with the exception of compulsory insurance of passengers carried out at their expense.

The objects subject to compulsory insurance, the risks against which they must be insured, and the minimum amount of insurance amounts are determined by law or in the manner prescribed by it (Article 936 of the Civil Code).

The conclusion of insurance contracts with compulsory insurance is mandatory for insurers only when concluding personal insurance contracts due to the fact that such contracts are classified as public (paragraph 2, clause 1, article 927 of the Civil Code).

The law provides for the possibility of compulsory state insurance (clause 3 of article 927, clause 1 of article 969 of the Civil Code), which is carried out, in particular, in relation to the life, health and property of civil servants of certain categories and some other persons equated to them. The peculiarity of this insurance lies in the fact that its implementation can be based directly on the law or other legal act, and not on the contract.

Special varieties of insurance are co-insurance, double insurance and reinsurance.

Co-insurance takes place in cases where the object of insurance is insured under one contract jointly by several insurers (Article 953 of the Civil Code, Article 12 of the Law on the Organization of Insurance Business in the Russian Federation). The rights and obligations of each of the co-insurers may be defined in the contract itself. In the absence of such a condition in the contract, they are jointly and severally liable to the insured (beneficiary) for the production of the relevant insurance payments (Article 953 of the Civil Code).

Double insurance should be distinguished from co-insurance, in which the same object is insured under two or more contracts by several insurers. The peculiarity of such insurance is that it is admissible only when insuring property or business risk. The use of double insurance for personal insurance would be contrary to the compensatory nature of the latter.

For double insurance, it is typical to determine the amount of insurance compensation for each insurer in proportion to the ratio of the sum insured under the contract concluded by him to the total amount of all concluded contracts for this object (clause 4 of article 951, clause 2 of article 952 of the Civil Code).

Reinsurance is full or partial insurance of the risk of payment of insurance compensation or the sum insured, assumed by the insurer under the insurance contract, from another insurer (insurers) under the contract concluded with the latter.

The rules of Ch. 48 of the Civil Code, to be applied in relation to entrepreneurial risk, unless otherwise provided by the reinsurance contract. In case of reinsurance, the insurer under this contract remains responsible under the main insurance contract for the production of the insurance payment. The law allows for the consecutive conclusion of two or more reinsurance contracts (Article 967 of the Civil Code).

14.2. Participants of the insurance liability

The parties to the insurance obligation are the insurer and the policyholder. As an insurer, an insurance contract can only be concluded by an insurance organization - a legal entity that has a permit (license) to carry out insurance of the corresponding type (part 2 of article 938 of the Civil Code). To acquire the status of an insurer, it is necessary to comply with the requirement for the minimum amount of paid authorized capital established by the Law on the organization of insurance business in the Russian Federation (Article 25). An insurer can only be a commercial organization engaged in entrepreneurial activities in the insurance sector, both a state (for example, Rosgosstrakh) and a non-state (private) insurance organization.

Citizens and legal entities can insure their property and other property interests specified in paragraph 2 of Art. 929 of the Civil Code, on a reciprocal basis by combining in mutual insurance companies the funds necessary for this.

When carrying out insurance activities, insurers widely use the services of insurance agents and insurance brokers (Article 8 of the Law on the organization of insurance business in the Russian Federation).

Insurance agent - an individual or legal entity acting on behalf of the insurer and on his behalf in accordance with the powers granted.

Thus, the insurance agent is the representative of the insurer. Its main activity is the conclusion of insurance contracts ("sales of insurance policies").

Insurance broker - an individual or legal entity acting in the interests of the insured or insurer and carrying out activities for the provision of services related to the conclusion of insurance contracts, as well as the execution of these contracts.

Relations for the provision of brokerage services are regulated either by the rules on a commission agreement (Chapter 51 of the Civil Code) or by an agency agreement (Chapter 52 of the Civil Code). For legal entities, it is obligatory to indicate that they carry out insurance brokerage activities in their constituent documents. Legal entities and individual entrepreneurs are also required to register as insurance brokers with the federal executive body for the supervision of insurance activities 10 days before the start of their brokerage activities.

The insured (policy holder) may be a legal person or a legal entity. A feature of the insured is that he has an insurable interest, which consists in compensation (compensation) for damage caused to life, health or property by unforeseen and extraordinary circumstances. The insured is a person who has directly entered into an insurance obligation with an insurer on the basis of a law or an agreement.

Third parties - the beneficiary and the insured person - may be participants in the insurance obligation.

Beneficiary (beneficiary) - an individual or legal entity with an insurable interest in whose favor the policyholder has concluded an insurance contract. The peculiarity of the position of the beneficiary in insurance obligations lies in the possibility of presenting the claim of the insurer to him for the fulfillment of obligations not fulfilled by the insured.

Insured person - a natural person, with whose personality the insured associates the events specified in the insurance contract, which are the basis for the payment of the sum insured. The participation of the insured person is possible only in a personal insurance contract (clause 1 of article 934 of the Civil Code) or in a liability insurance contract for causing harm (clause 1 of article 931 of the Civil Code).

To conclude a personal insurance contract in favor of the insured or the beneficiary, if they do not coincide with the insured person, the written consent of the insured person is required. If this condition is violated, the contract may be declared invalid at the claim of the insured person or his heirs (paragraph 2, clause 2, article 934 of the Civil Code).

In a liability insurance contract for causing harm, the insured person can be both the insured himself and another person who can be held liable for such liability (paragraph 1 of article 931 of the Civil Code).

14.3. insurance contract

An insurance contract can be concluded both at the will of the parties, and by virtue of a direct indication of the law. In the current legislation, two types of such an agreement are distinguished: a property insurance agreement (Article 929 of the Civil Code) and a personal insurance agreement (Article 934 of the Civil Code).

When concluding both types of insurance contract, an agreement must be reached between the insured and the insurer on the following essential conditions:

▪ about the object of insurance;

▪ about the nature of the insured event, in connection with the possibility of the occurrence of which insurance is provided;

▪ about the amount of the insured amount;

▪ about the duration of the contract (Article 942 of the Civil Code).

The insurance contract is concluded only in writing. Failure to comply with this form entails the invalidity of the contract, with the exception of the compulsory state insurance contract (clause 1, article 940 of the Civil Code).

An insurance contract can be concluded in the traditional form - by drawing up one document signed by the parties (clause 2 of article 434 of the Civil Code). However, by now, a different form of its conclusion, inherent in insurance, has developed - by handing the last insurance policy (certificate, certificate, receipt) signed by the insurer (paragraph 1, clause 2, article 940 of the Civil Code) to the insurant on the basis of a written or oral application . In this case, the consent of the insured (acceptance) to conclude an agreement on the terms proposed by the insurer is confirmed by the acceptance of the specified documents from the insurer (paragraph 2, clause 2, article 940 of the Civil Code).

An insurance policy can be nominal, although it is also possible to issue it to the bearer (paragraph 2, clause 3, article 930 of the Civil Code).

In commercial practice, general policies are widely used, which, by agreement of the insured with the insurer, can be issued with the systematic insurance of different lots of homogeneous property on similar conditions for a certain period (clause 1 of article 941 of the Civil Code).

In the practice of insurance, standard forms of an agreement (insurance policy) developed by insurers or their associations for certain types of insurance are common (clause 3 of article 940 of the Civil Code).

According to the object of the insurance obligation, insurance is divided into property and personal. Property insurance is used to ensure compensation for losses incurred as a result of damage to the property of a citizen or legal entity. Personal insurance provides compensation for damage incurred as a result of harm to the life or health of a citizen.

According to paragraph 2 of Art. 929 of the Civil Code under a property insurance contract, in particular, the following property interests can be insured:

▪ risk of loss (destruction), shortage or damage to certain property (Article 930 of the Civil Code);

▪ the risk of liability for causing harm to the life, health or property of other persons, and in cases provided for by law, also liability under contracts - the risk of civil liability (Articles 931, 932 of the Civil Code);

▪ the risk of losses from business activities for reasons beyond the control of the entrepreneur - business risk (Article 933 of the Civil Code).

Under a personal insurance contract, property interests are insured, the presence of which is due to the following circumstances:

▪ causing harm to the life or health of the policyholder himself or another citizen (insured person) named in the contract;

▪ this person has reached a certain age;

▪ the occurrence in his life of another event provided for by the contract (insured event) (paragraph 1, clause 1, article 934 of the Civil Code).

It is not allowed to insure interests that are not based on the law, in particular illegal interests, as well as losses from participation in games, lotteries, bets, expenses that a person may be forced to pay in order to free the hostages. If there are such conditions in insurance contracts, they are recognized as void (Article 928 of the Civil Code).

The duration of the insurance obligation may be definite (one year, five years, etc.) or indefinite (life insurance). The contract may also establish terms for the performance of certain obligations of the insured and the insurer.

The obligation of the policyholder is to inform the insurer, when concluding an insurance contract, of circumstances known to the policyholder that are essential for determining the likelihood of an insured event and the amount of possible losses from its occurrence (insurance risk), if these circumstances are not known and should not be known to the insurer (paragraph 1 p. 1 article 944 of the Civil Code). The use by the insurer of the received information should not violate the rule on their confidential nature (Article 946 of the Civil Code).

The main obligation of the insured is to pay the insurance premium. The insurance premium is understood as payment for insurance, which the insured (beneficiary) is obliged to pay to the insurer in the manner and within the time limits established by the insurance contract (clause 1, article 954 of the Civil Code). The insurance contract, unless otherwise provided in it, comes into force from the moment of payment of the insurance premium or its first installment (clause 1 of article 957 of the Civil Code). Thus, as a general rule, this contract is a real contract. The amount of the insurance premium is determined on the basis of insurance rates.

The insurance rate is the rate of the insurance premium charged per unit of the sum insured, taking into account the object of insurance and the nature of the insured risk.

The insurance premium can be paid at a time or in installments - by making insurance premiums. The terms of specific insurance contracts provide for various consequences of non-payment of regular insurance premiums on time (clause 3 of article 954 of the Civil Code): a decrease in the size of the insurance amount, termination of the contract with the right to receive the redemption amount (part of the paid premiums), etc.

Among the basic insurance concepts is the concept of insurance risk. Its definition is given in paragraph 1 of Art. 9 of the Law on the organization of insurance business in the Russian Federation, according to which the insured risk is the expected event, in the event of which insurance is carried out. An event considered as an insured risk must have signs of probability and randomness of its occurrence. Without the presence of insurance risk, there can be no insurance obligation, which serves as the basis for classifying insurance obligations as risky - aleatory obligations.

When concluding an insurance contract, the insured is obliged to inform the insurer of all material circumstances known to him that make it possible to assess the degree of insured risk. Circumstances that are specifically stipulated by the insurer in the standard form of the insurance contract (insurance policy) or in his written request are recognized as significant (paragraph 2 of clause 1 of article 944 of the Civil Code).

Communication by the insured of knowingly false information about the circumstances that determine the degree of risk may serve as a basis for the insurer to demand that the contract be declared invalid as made under the influence of fraud, except in cases where the circumstances that the insured has kept silent about have disappeared (Article 179, paragraph 3 article 944 of the Civil Code).

The law grants the insurer the right to independently assess the insurance risk (Article 945 of the Civil Code).

During the period of validity of the property insurance contract, the policyholder (beneficiary) is also obliged to immediately inform the insurer of significant changes that have become known to him in the circumstances reported to the insurer upon conclusion of the contract, if these changes can significantly affect the increase in insurance risk. Significant changes are recognized that are distinguished in the insurance contract (insurance policy) and in the rules of insurance transferred to the insured (paragraph 1 of article 959 of the Civil Code).

The insurer, notified of the circumstances entailing an increase in the insured risk, has the right to demand a change in the terms of the insurance contract or payment of an additional insurance premium. If there are objections to this on the part of the insured (beneficiary), the insurer has the right to demand termination of the contract (paragraph 2 of article 959 of the Civil Code).

If the insured (beneficiary) does not inform about the circumstances that significantly increase the insured risk, the insurer has the right to demand not only termination of the contract, but also compensation for the losses caused to it, except for cases when such circumstances have already disappeared (paragraphs 3, 4 of article 959 of the Civil Code).

In the case of personal insurance, the indicated consequences of a change in insurance risk during the validity period of the insurance contract do not occur, unless they are expressly provided for in the contract (clause 5 of article 959 of the Civil Code).

An insured event is an event that has taken place, provided for by an insurance contract or a law, upon the occurrence of which the insurer's obligation to make an insurance payment arises (clause 2, article 9 of the Law on the Organization of Insurance Business in the Russian Federation).

The policyholder under a property insurance contract is obliged to immediately notify the insurer or his representative of the occurrence of an insured event. The same obligation lies with the beneficiary, who is aware of the conclusion of the contract in his favor, if he intends to exercise the right to insurance compensation (paragraph 1 of article 961 of the Civil Code).

If the insured event is the death of the insured person or causing harm to his health, the period for notifying the insurer cannot be less than 30 days (clause 3 of article 961 of the Civil Code).

Upon the occurrence of an insured event provided for by a property insurance contract, the insured is obliged to take reasonable and accessible measures in the circumstances to reduce possible losses (Article 962 of the Civil Code). The main obligation of the insurer is to pay the sum insured upon the occurrence of an insured event.

Sum insured - the amount of money that is established by federal law and (or) determined by the insurance contract and on the basis of which the amount of the insurance premium (insurance premiums) and the amount of insurance payment in the event of an insured event are established.

To designate insurance payments that must be made for property insurance, the Civil Code uses the name "insurance compensation", and for personal insurance - "sum insured" (thus, the term "sum insured" is used in two senses). The difference in these names is due to the fact that the infliction of harm to life or health, the consequences of the onset of a certain age, etc., in contrast to the damage caused to property, cannot be subjected to valuation, and therefore the corresponding insurance payments are not restorative, but compensatory (security) character, i.e. aimed at compensating for what cannot be valued in money.

In personal insurance contracts, the sum insured is determined by the parties themselves at their own discretion and is not subject to limitation. The sum insured is determined in a similar way in civil liability insurance contracts (clause 3, article 947 of the Civil Code).

When insuring property or business risk, unless otherwise provided by the insurance contract, the sum insured must not exceed their actual value (insurance value). This value is considered to be:

▪ for property - its actual value at its location on the day of concluding the insurance contract;

▪ for business risk - losses from business activities that the policyholder, as can be expected, would have incurred upon the occurrence of an insured event (clause 2 of Article 947 of the Civil Code).

If the sum insured specified in the property or business risk insurance contract exceeds the insured value, the contract is void in the part of the sum insured that exceeds the insured value. As an exception, it is allowed to exceed the total sum insured in the property insurance of the same object against different insurance risks both under one and under separate insurance contracts, including with different insurers (paragraph 1 of article 952 of the Civil Code).

The insurer shall be obliged to register the occurrence of an insured event. The presence (or absence) of an insured event is certified by an insurance certificate (accident certificate) drawn up on the basis of an application by the insured by the insurer or a person authorized by him.

The duty of the insurer is also to maintain the secrecy of insurance, i.e. non-disclosure of information received by him as a result of his professional activities about the insured, the insured person and the beneficiary, the state of health and property status of these persons. For violation of the secrecy of insurance, the insurer is liable according to the rules of Art. 139, 150 of the Civil Code (Article 946 of the Civil Code).

Fulfillment of insurance obligations consists in the production by the insurer of insurance payments to the insured (beneficiary) upon the occurrence of an insured event. In property insurance, the insurer pays insurance compensation, so called because the purpose of this payment is to compensate for losses incurred as a result of an insured event. In this case, only direct losses are subject to compensation, i.e. losses in the insured property itself or directly caused to other property interests of the insured (paragraph 1 of article 929 of the Civil Code). Lost profits or losses that go beyond the object of insurance (indirect losses) are not compensated by the insurer.

In cases where the property is insured for the amount insured below the insured value and has been damaged, two systems are applied to calculate the insurance indemnity: proportional liability and first risk.

When applying the proportional liability system, the amount of compensation for losses is determined in proportion to the ratio of the sum insured to the insured value (Article 949 of the Civil Code). However, the contract may also establish a higher amount of insurance compensation, but the latter in any case should be lower than the insurance value.

The first risk system provides coverage for all losses caused by an insured event, but within the sum insured, regardless of the ratio of the sum insured and the insured value. Within the limits of the sum insured, compensation for losses constitutes the risk of the insurer (first risk) (this name also determines the name of this system), and incurring losses in the remaining outstanding part constitutes the risk of the insured (beneficiary) (second risk).

To protect the interests of the insurer in property insurance, the law (Article 965 of the Civil Code) establishes a rule on the transfer to the insurer of the rights of the insured to compensate for damage (subrogation). According to this rule, unless otherwise provided by the property insurance contract, after the payment of the insurance indemnity, the right of claim that the insured (beneficiary) has against the person responsible for the losses compensated as a result of insurance passes to the insurer.

A property insurance contract may grant the insured the right to claim against the person liable for losses, which excludes subrogation. However, the condition of the contract, excluding the transfer to the insurer of the right to claim against the person who intentionally caused losses, is void (paragraph 1 of article 965 of the Civil Code).

Fulfillment of the obligation for personal insurance in accordance with paragraph 1 of Art. 934 of the Civil Code is carried out by the insurer paying a lump sum or periodically the amount (insurance amount) stipulated by the contract to the insured (beneficiary). At the same time, the sum insured is paid regardless of the amounts under other insurance contracts, as well as for compulsory social insurance, social security and in order to compensate for harm (paragraph 1, clause 6, article 10 of the Law on the organization of insurance business in the Russian Federation). This rule excludes the possibility of using subrogation in personal insurance obligations.

According to paragraph 1 of Art. 963 of the Civil Code, the insurer is exempt from paying insurance compensation or the sum insured if the insured event occurred as a result of the intention of the insured, beneficiary or insured person. The law provides for cases of release of the insurer from the obligation to pay insurance compensation under property insurance contracts in the event of an insured event due to the gross negligence of the insured or the beneficiary.

The law establishes two cases when the insurer cannot be released from the production of insurance payments, including in the event of an insured event due to the intention of the insured or the insured person. Firstly, the insurer is not exempted from paying insurance compensation under a civil liability insurance contract for causing harm to life or health, if the harm was caused through the fault of the person responsible for it, i.e. the insured or the insured person (clause 2 of article 963 of the Civil Code). Secondly, the insurer is not released from the obligation to pay the sum insured payable under the personal insurance contract in the event of the death of the insured person, if his death was due to suicide and by this time the insurance contract had been in force for at least two years (paragraph 3 of article 963 GK).

The grounds for the release of the insurer from the payment of insurance compensation or the sum insured may be extraordinary circumstances that go beyond the scope of ordinary insured events. According to paragraph 1 of Art. 964 of the Civil Code, the insurer is exempt from these payments, unless otherwise provided by law or contract, when the insured event occurred as a result of:

▪ the impact of a nuclear explosion, radiation or radioactive contamination;

▪ military operations, as well as maneuvers or other military activities;

▪ civil war, civil unrest of any kind or strikes.

The release of the insurer from insurance payments may be due to the infliction of losses by the actions of public authorities, which are of a coercive nature. So, unless otherwise provided by the property insurance contract, the insurer is exempt from paying insurance compensation for losses incurred as a result of seizure, confiscation, requisition, arrest or destruction of the insured property by order of state bodies (clause 2 of article 964 of the Civil Code).

The liability of the insurer for non-fulfillment or improper fulfillment of obligations imposed on him by law or contract is determined in the legislation governing certain types of insurance, insurance rules or a specific insurance contract.

The liability of the insured (beneficiary, insured person) is expressed in the non-receipt of full or partial insurance compensation (sum insured). The grounds for the insurer's refusal to make an insurance payment are provided directly in Ch. 48 of the Civil Code (Art. 961, 963, 964), and may also be established by special legislation or specified in a specific insurance contract.

The policyholder (beneficiary) is liable in the form of compensation for losses caused to the insurer in the following cases:

▪ recognition of the insurance contract as invalid due to an overstatement of the insured amount as a result of deception of the policyholder (in an amount exceeding the amount of the insurance premium received) (clause 3 of Article 951 of the Civil Code);

▪ termination of the insurance contract due to failure by the policyholder (beneficiary) during the period of validity of the contract to immediately notify the insurer of circumstances leading to an increase in the insurance risk (clause 3 of Article 959 of the Civil Code).

A claim for claims arising from a property insurance contract may be brought within two years (Article 966 of the Civil Code).

Early termination of the insurance contract is possible if, after its entry into force, the possibility of an insured event has disappeared and, in connection with this, the existence of an insurance risk has ceased (clause 1, article 958 of the Civil Code). In case of early termination of the insurance contract on such grounds, the insurer is entitled to a part of the insurance premium in proportion to the actual duration of the insurance (paragraph 1, clause 3, article 958 of the Civil Code).

The insured (beneficiary) has the right to cancel the insurance contract at any time, if by the time of the cancellation no circumstances have occurred that entail its early termination (clause 1 of article 958 of the Civil Code). At the same time, the insurance premium paid to the insurer is not refundable, unless otherwise provided by the contract (paragraph 2, clause 3, article 958 of the Civil Code).

The Civil Code and special legislation determine the features of certain types of property and personal insurance.

Types of property insurance are:

▪ property insurance (Article 930 of the Civil Code);

▪ civil liability insurance, including for damage caused by contract (Articles 931, 932 of the Civil Code);

▪ business risk insurance (Article 933 of the Civil Code).

The civil law norms, taking into account their specifics, regulate the following types of personal insurance:

▪ life insurance;

▪ insurance against accidents and illnesses;

▪ voluntary health insurance.

Topic 15

15.1. Loan agreement

In accordance with paragraph 1 of Art. 807 of the Civil Code, under a loan agreement, one party (the lender) transfers money or other things defined by generic characteristics to the ownership of the other party (the borrower), and the borrower undertakes to return to the lender the same amount of money or an equal amount of other things received by him of the same kind and quality.

The loan agreement is a real and one-sided transaction. As a rule, this is a paid contract, but it can also be free of charge.

The loan agreement is considered concluded from the moment the money or other things are transferred (paragraph 2, clause 1, article 807 of the Civil Code), and therefore the promise to provide a loan (unlike a loan agreement) has no legal significance.

Any subjects of civil law can be parties to a loan agreement, and only owners of money or other things can act as lenders without restrictions. Institutions - state bodies and local self-government bodies (except for cases of disposing of income from activities permitted by their owner) and others cannot be lenders, state-owned enterprises can act in this role only with the consent of the founder-owner, and other unitary enterprises - in the absence of legislative prohibitions and restrictions.

Budgetary institutions cannot be borrowers (unless this is due to their incomplete financing or delayed financing), and unitary enterprises are required to register their borrowings with the appropriate financial authority. As borrowers, they acquire on the property transferred to them by lenders not the right of ownership, but a limited right in rem, on which they have property.

The subject of a loan can only be money and other things defined by generic characteristics, which distinguishes it from leases and loans. Rights of claim, as well as things limited in circulation, cannot act as the subject of a loan, if the parties to the agreement do not have permission to make transactions with such things.

The loan is supposed to be reimbursable, unless its gratuitous nature is directly established by law or a specific agreement. In the absence of instructions on the amount of interest in the loan agreement, they are determined by the bank interest rate (refinancing rate) that exists at the location or residence of the lender on the day the borrower pays the amount of the debt or its corresponding part (clause 1, article 809 of the Civil Code).

A gratuitous loan agreement is assumed by virtue of law, unless otherwise expressly provided in the agreement, in cases where:

▪ an agreement is concluded between citizens for an amount not exceeding 50 times the minimum wage, and is not related to the entrepreneurial activity of at least one of the parties;

▪ under the agreement, the borrower is not given money, but other things determined by generic characteristics (clause 3 of Article 809 of the Civil Code).

The loan agreement is subject to conclusion in a simple written form, subject to the following conditions:

▪ if it is concluded between citizens and its amount exceeds at least 10 times the minimum wage established by law;

▪ if the lender is a legal entity, regardless of the amount of the agreement (clause 1 of Article 808 of the Civil Code).

In confirmation of the loan agreement and its terms, a borrower's receipt or other document may be provided certifying the transfer of a certain amount of money or a certain number of things by the lender to him (clause 2 of article 808 of the Civil Code).

In other cases, the loan agreement may be concluded orally.

Failure to comply with a simple written form does not entail the invalidity of the loan agreement. In the presence of such a violation, the parties are only prohibited from referring to testimonies in support of the conclusion of the loan agreement and its terms.

The borrower is obliged to return to the lender the amount received on time and in the manner prescribed by the agreement.

In the absence of special instructions in the agreement on the repayment period or its determination as the moment of demand, the loan amount must be returned within 30 days from the date the lender makes a request for this, unless otherwise provided by the agreement (paragraph 1 of article 810 of the Civil Code).

The law allows early repayment of only the amount of an interest-free loan, and a loan granted at interest can be repaid ahead of schedule only with the consent of the lender (clause 2 of article 810 of the Civil Code), since the latter is deprived in this case of part of his income.

Interest under the loan agreement can be paid in any order agreed by the parties, including by way of a single payment. However, unless otherwise agreed, they are paid monthly until the day the loan amount is returned (clause 2 of article 809 of the Civil Code), but not until the date of its return specified by the agreement.

The Civil Code does not provide for the accrual of interest on interest ("compound interest") in case of delay in paying a loan. In this case, in accordance with paragraph 1 of Art. 811 of the Civil Code, interest is additionally collected for the delay in the fulfillment of a monetary obligation (clause 1 of article 395 of the Civil Code), which are charged on the unreturned loan amount. Accrual of interest on unpaid interest for the period of delay is allowed only when such a sanction is provided for by law or contract.

If the loan agreement provides for the return of the loan in installments (in installments), then if the borrower violates the deadline set for the return of the next part of the loan, the lender has the right to demand early repayment of the entire remaining loan amount, together with the interest due (clause 2, article 811 of the Civil Code). From this moment, it is also possible to charge additional interest on the remaining amount in accordance with the rules of Art. 395 GK.

All of the above applies only to the execution of a money loan agreement, since the loan of things does not give rise to monetary obligations and is assumed to be free of charge, and when the parties establish its reimbursable nature, they themselves determine the amount of remuneration to the lender and the consequences of delaying the repayment of the loan. An exception is the situation when, under a compensated loan agreement for things, the remuneration to the lender is set in cash and, therefore, a monetary obligation arises for its payment by the borrower.

The borrower has the right to challenge the loan agreement for lack of money, proving that the money or other things were not actually received by him from the lender or received in a smaller amount than specified in the agreement. If the contract required a simple written form, then it is not allowed to challenge it for lack of money by means of witness testimony, except in cases where the contract was concluded under the influence of deceit, violence, threats and similar circumstances provided for in Art. 179 GK.

The lender, as a creditor, is obliged to issue a receipt to the borrower for receiving the subject of the loan, or to return the corresponding debt document (for example, the borrower's receipt), and if it is impossible to return, indicate this in the receipt issued by him. The creditor's receipt may be replaced by his inscription on the returned debt document. If the lender refuses to perform these obligations, the borrower has the right to delay the performance. At the same time, the lender is considered overdue (clause 2 of article 408 of the Civil Code), which excludes the payment by the borrower of any interest from that moment on (clause 3 of article 406 of the Civil Code).

Loan relations, by agreement of the parties, can be formalized by issuing a bill (from German wechseln - change, exchange), which is a type of security (Article 143 of the Civil Code). The bill contains an unconditional obligation of the drawer (promissory note) or another payer specified in the bill (bill of exchange) to pay the amount of money received on loan upon the expiration of the period stipulated by the bill (part 1 of article 815 of the Civil Code).

The rules on the loan agreement apply to the relations that have arisen as a result of the issuance of a bill of exchange only in so far as they do not contradict bill of exchange legislation (part 2 of article 815 of the Civil Code). At present, the Federal Law of March 11.03.1997, 48 No. 07.08.1937-FZ "On a transferable and promissory note" and the Regulation on a transferable and promissory note approved by the Decree of the Central Executive Committee and the Council of People's Commissars of the USSR of August 104, 1341 No. XNUMX/XNUMX are in force.

In case of refusal to pay a bill, certified by a notary (the act of certifying such a refusal is called), at the request of the bill creditor, the judge issues a court order that has the force of a writ of execution.

The drawer himself acts as a debtor under a promissory note. In a bill of exchange, along with the drawer, the payer is indicated, with the consent of which the drawer is jointly and severally liable to the holder of the bill for the production of payment on the bill. However, if the payer named on the bill of exchange does not consent to the payment or does not make the payment, the drawer shall be liable to the holder of the bill.

Most promissory notes are order securities, i.e. can be transferred by the holder of a bill to another person, and such a transfer of a bill can be carried out more than once. As a general rule, all endorsers (i.e., persons who have made an endorsement on a bill of exchange) in relation to the bill holder bear joint and several liability with the drawer.

Payment under a bill of exchange may be secured by a special guarantee - aval. The aval is given only for one of the persons liable under the bill, with whom the avalist bears joint and several liability to the holder of the bill.

In cases expressly provided for by law or other legal acts, a loan agreement may also be formalized by the issuance and sale of bonds (from Latin obligatio - obligation). A bond is recognized as a security that certifies the right of its holder to receive from the person who issued the bond, within the period stipulated by it, the nominal value of the bond or other property equivalent, as well as the percentage fixed in it of its nominal value or other property rights (part 2 of article 816 GK). When acquiring bonds, loan relations arise in which the issuer of bonds acts as a borrower, and bondholders (bondholders) act as lenders.

Unlike promissory notes, bonds are emissive securities and therefore, in accordance with the legislation on the securities market, they can be issued both in paper and paperless form. Bonds can be both bearer and registered.

The norms of the Civil Code on a loan agreement apply to relations between the person who issued the bond and its holder insofar as otherwise is not provided by law or in the manner prescribed by it (part 2 of article 816 of the Civil Code). Relations associated with the issue and sale of bonds are primarily regulated by Federal Law No. 22.04.1996-FZ of April 39, XNUMX "On the Securities Market" and other special laws.

Currently, the right to issue bonds is expressly granted only to business companies, although the law does not exclude the issue of bonds by production cooperatives and unitary enterprises, as well as limited partnerships.

The right to issue bonds is also held by public legal entities - the Russian Federation, its constituent entities and municipalities. These subjects of civil law most often resort to the issue of bonds, including those distributed among all citizens. The Civil Code establishes two basic principles of state loans: the voluntariness of the acquisition of bonds and the prohibition to change the terms of a loan issued into circulation (paragraphs 2, 4 of article 817 of the Civil Code). The same rules apply to municipal loans (clause 5, article 817 of the Civil Code).

The issue and sale of bonds by public legal entities are regulated by Federal Law No. 29.07.1998-FZ of July 136, 31.07.1998 "On the Features of the Issue and Circulation of State and Municipal Securities" and the relevant norms of the Budget Code of the Russian Federation of July 145, XNUMX No. XNUMX-FZ.

The maturity of bonds issued by the state cannot exceed 30 years from the date of their issue, and municipal bonds - 10 years.

The varieties of the loan agreement include the target loan agreement (Article 814 of the Civil Code). An example of such agreements are loan agreements concluded by citizens for the purchase of certain property (housing, land, summer cottages, cars, etc.).

The current legislation also provides for the possibility of debt novation, i.e. replacement of debt arising from the sale, lease of property or other grounds, with a loan obligation (Article 818 of the Civil Code).

15.2. Loan agreement

Along with a loan, as an independent type of provision of funds by one person to another with the condition of their return, the current civil legislation allocates a loan (§ 2 Chapter 42 of the Civil Code).

In accordance with paragraph 1 of Art. 819 of the Civil Code, under a loan agreement, the lender (bank or other credit organization) undertakes to provide funds (credit) to the borrower in the amount and on the terms stipulated by the agreement, and the borrower undertakes to return the amount of money received and pay interest on it.

The rules on a loan agreement apply to relations under a loan agreement, unless otherwise provided by the rules of § 2 Ch. 42 of the Civil Code and does not follow from the essence of the loan agreement (paragraph 2 of article 819 of the Civil Code).

By its legal nature, the loan agreement is consensual, reimbursable and bilateral. Unlike a loan agreement, it enters into force already at the moment the parties reach an appropriate agreement before the actual transfer of money to the borrower. This makes it possible to force the lender to issue a loan, which is excluded in loan relations. A loan agreement also differs from a loan agreement in terms of its subject composition. Only a bank or other credit organization licensed by the Central Bank of the Russian Federation to perform such operations can act as a creditor here.

The subject of a loan agreement can only be money, not things. Moreover, the issuance of most loans is carried out in non-cash form. That is why the law speaks of the provision under this agreement not of money, but of funds (paragraph 1 of article 819 of the Civil Code).

According to Art. 820 of the Civil Code, a loan agreement must be concluded in writing under pain of its nullity.

The loan agreement is always reimbursable. The remuneration to the lender is determined in the form of interest accrued on the amount of the loan for the entire time of its actual use. The amount of such interest is established by the agreement, and in the absence of special instructions in it, according to the rules adopted for loan agreements (clause 1 of article 809 of the Civil Code), i.e. based on the refinancing rate.

The obligation of the creditor in this agreement is to provide the borrower with funds in accordance with the terms of the agreement (once or in installments).

The borrower's obligations are to repay the received loan and pay interest for its use stipulated by the agreement or law. The performance of this obligation is regulated by the rules on the performance of their obligations by the borrower under the loan agreement.

A feature of the loan agreement is the possibility of unilateral refusal to execute it on the part of both the lender and the borrower (clause 1,2 of article 821 of the Civil Code). The lender has the right to refuse to provide the borrower with the loan stipulated by the agreement in whole or in part if there are circumstances that clearly indicate that the amount provided to the borrower will not be returned on time. The borrower has the right to refuse to receive a loan in whole or in part, notifying the creditor of this before the term for its provision established by the agreement, unless otherwise provided by law, other legal acts or the agreement. The lender also has the right to refuse further lending to the borrower under the agreement in case of violation of the obligation stipulated by the agreement for the intended use of the loan (clause 3 of article 821 of the Civil Code).

The parties may conclude an agreement providing for the obligation of one party to provide the other party with things defined by generic characteristics (commodity credit agreement). To such an agreement, the rules on a loan agreement apply, unless otherwise provided by the above agreement and does not follow from the essence of the obligation. The conditions relating to the items provided, their containers and packaging must be fulfilled in accordance with the rules on the contract for the sale of goods (Article 465 - 485 of the Civil Code), unless otherwise provided by the commodity loan agreement (Article 822 of the Civil Code). Unlike a conventional loan agreement, the parties to an agreement on the provision of a commodity loan, including creditors, can be any subjects of civil law.

The provision of a commercial loan is not the subject of a separate agreement, but may, unless otherwise provided by law, be one of the conditions of agreements, the execution of which is associated with the transfer of money or other things defined by generic characteristics to the ownership of the other party. A commercial loan is provided, in particular, in the form of an advance payment, prepayment, deferral and installment payment for goods, works or services (clause 1 of article 823 of the Civil Code), the condition of which may be included in contracts of sale, lease, contract, etc. d. The participants in the relations arising in this case (including creditors) can be both legal entities and citizens who are parties to the relevant civil law contracts.

The rules on loans and credits apply to a commercial loan, unless otherwise provided by the rules on the contract from which the corresponding obligation arose, and does not contradict the essence of such an obligation (clause 2 of article 823 of the Civil Code).

15.3. Financing agreement against the assignment of a monetary claim

In accordance with paragraph 1 of Art. 824 of the Civil Code, under a financing agreement against the assignment of a monetary claim, one party (financial agent) transfers or undertakes to transfer funds to the other party (client) against the monetary claim of the client (creditor) to a third party (debtor) arising from the provision of goods by the client, the performance of work by him or provision of services to a third party, and the client assigns or undertakes to assign this monetary claim to the financial agent.

A monetary claim against a debtor may be assigned by a client to a financial agent also in order to ensure the fulfillment of the client's obligation to the financial agent (paragraph 2, clause 1, article 824 of the Civil Code).

This agreement is new to our civil law. From its definition it follows that it combines the features of an agreement on the assignment of a claim (assignment agreement) and a loan or credit agreement. In addition, the peculiarity of the agreement in question is that it may include conditions for the financial agent to maintain accounting for the client, as well as providing the client with other financial services related to monetary claims that are the subject of assignment (clause 2 of article 824 of the Civil Code ). A financing agreement against the assignment of a monetary claim is used in the practice of a developed market turnover called a factoring agreement, in which a financial agent - a factor - acts as a party.

By its legal nature, the factoring agreement is paid and bilateral. This agreement can be both real and consensual, both in terms of the transfer of money by the financial agent to the client, and in terms of the assignment of the latter's monetary claim to the financial agent. The factoring agreement must be made in the form established by law for the assignment of a claim (Article 389 of the Civil Code).

Factoring agreements are used exclusively in business activities, so only commercial organizations or individual entrepreneurs can become participants in them. Banks and other credit institutions, as well as other commercial organizations, can act as financial agents, and the latter if they have a permit (license) to carry out activities of this type (Article 825 of the Civil Code).

The obligations of the client in the contract under consideration are the assignment of a monetary claim to the financial agent and payment for his services. According to Art. 827 of the Civil Code, the client is responsible to the financial agent for the validity of the claim that is the subject of the assignment. At the same time, as a general rule, he is not responsible for its execution by the debtor on this demand. Thus, factoring is assumed to be non-recourse, but the contract may also provide for the client's liability to the financial agent for the real feasibility of the assigned claim (clause 3 of article 827 of the Civil Code). The subject of the assignment for which financing is provided can be both a monetary claim, the payment term for which has already come (the existing claim), and the right to receive funds that will arise in the future (future claim) (clause 1 of article 826 of the Civil Code) .

The client also bears the obligation to pay for the services of a financial agent, the amount of which is determined as a percentage of the value of the assigned claim, in a fixed amount of money, etc.

The duty of the financial agent is to finance the client as payment for the assigned claim. Such financing can be carried out in the form of a transfer of monetary amounts to the client in exchange for an assignment that has taken place (at a time or in separate installments) or in the form of opening a loan secured by a possible future assignment of the right to claim. Under the terms of a particular contract, the obligation of the financial agent may also be to provide the client with the agreed additional financial services.

When settling with the debtor, the financial agent acquires the right to all the amounts that he manages to receive from the debtor in fulfillment of the claims assigned to him. Their size may exceed the amount of the loan issued by the client, and may be less than this amount, and in case of non-recourse factoring, the client is not responsible for this to the financial agent.

The obligation of the debtor to make a payment not to his creditor (client), but to his financial agent arises only on the condition of a written notification of the assignment of the claim that has taken place. In addition, at the request of the debtor, the financial agent is obliged within a reasonable time to provide him with proof of the assignment. If these conditions are not met, the debtor has the right to make a payment to the client, i.e. to the original creditor (Article 832 of the Civil Code).

As a general rule, the assignment of a monetary claim, i.e. its resale by a financial agent is not allowed. In the case when its possibility is provided for by the contract, the subsequent assignment of the claim must be carried out in compliance with all the rules governing factoring relations.

Topic 16. BANK ACCOUNT AND BANK DEPOSIT AGREEMENTS

16.1. Bank account agreement

In accordance with paragraph 1 of Art. 845 of the Civil Code, under a bank account agreement, the bank undertakes to accept and credit funds received to the account opened by the client (account holder), fulfill the client's instructions to transfer and issue the appropriate amounts from the account and conduct other operations on the account.

The bank account agreement is consensual, bilateral and free of charge (if the agreement does not directly provide for its compensation).

The subjects of the bank account agreement are the bank or other credit organization licensed to perform this type of banking operations (clauses 1, 4 of article 845 of the Civil Code) and the client (account owner). Any individual or legal entity can be a client under this agreement, however, the regime of bank accounts opened for different types of entities is different. So, for example, current accounts are not opened for legal entities, and settlement accounts for branches of legal entities or citizens who do not have entrepreneurial status.

Since a legal entity always participates as a party to a bank account agreement, this agreement must be concluded in a simple written form (clause 1, article 161 of the Civil Code).

According to paragraph 1 of Art. 846 of the Civil Code, when concluding a bank account agreement, a bank account is opened for a client or a person indicated by him on the terms agreed by the parties. The procedure for opening a bank account is determined by banking rules.

The main responsibility of the bank is to receive and credit funds received on the account opened by the client, as well as to fulfill its instructions for transferring and issuing the corresponding amounts from the account and carrying out other operations on the account. The bank is obliged to perform operations for the client provided for accounts of this type by law, banking rules established in accordance with it and business practices applied in banking practice, unless otherwise noted by the agreement (Article 848 of the Civil Code). The bank is not entitled to determine and control the directions of use of the client's funds and establish other restrictions not provided for by law or the bank account agreement on its right to dispose of the funds at its own discretion (clause 3 of article 845 of the Civil Code).

In order to dispose of the funds on the account, the Client is obliged to draw up and submit to the bank documents that comply with the requirements of the law, banking rules and bank account agreement (payment orders, checks, etc.) and duly certified (signed, for example, in accordance with the signature samples in bank card of the client or using an electronic digital signature). Such documents certify the rights of persons who, on behalf of the client, carry out orders for the transfer and issuance of funds from the account (clause 1 of article 847 of the Civil Code). The verification of the powers of these persons is carried out by the bank in the manner determined by the banking rules and the agreement with the client.

The bank account agreement may include a condition for the bank to make payments from the account, despite the lack of funds. In such cases, the bank is considered to have granted the client a loan for the corresponding amount from the date of payment. The rights and obligations of the parties related to the crediting of an account are determined by the rules on loans and credit, unless otherwise provided by the bank account agreement (Article 850 of the Civil Code).

According to Art. 857 of the Civil Code, the bank is obliged to keep the secrecy of the bank account, operations on it and information about the client. Information constituting banking secrecy may be provided only by the clients themselves or their representatives, as well as submitted to credit bureaus on the grounds and in the manner prescribed by law. State bodies and their officials are provided with such information only in cases and in the manner prescribed by law. In the event that the bank discloses information constituting bank secrecy, the client, whose rights have been violated, has the right to demand from the bank compensation for the losses caused.

In the cases stipulated by the bank account agreement, the client pays for the bank's services for performing transactions with funds in the account. The fee for bank services, if it is established by the agreement, may be charged at the end of each quarter from the client's funds in the account, unless the parties agree otherwise (Article 851 of the Civil Code).

The bank can use the funds available on the account, guaranteeing the client's right to freely dispose of these funds (paragraph 2 of article 845 of the Civil Code). In this regard, as a general rule, the bank is obliged in accordance with Art. 852 of the Civil Code to pay interest for the use of funds in the account, the amount of which is credited to the account. The amount of interest must be credited to the account within the terms established by the agreement, and in the case when such terms are not established by the agreement, after the expiration of each quarter. Interest is paid by the bank in the amount determined by the agreement, and in the absence of an appropriate condition in the agreement - in the amount usually paid by the bank on demand deposits (Article 838 of the Civil Code). At the same time, according to the terms of the agreement, the bank may not pay interest for the use of the client's funds.

According to Art. 858 of the Civil Code, restriction of the client's rights to dispose of the funds on the account is allowed only when seizing the funds on the account or suspending operations on the account in cases provided for by law.

The bank is obliged to perform the relevant operations on the account within the time limits established by law and the contract (Article 849 of the Civil Code).

In accordance with Art. 854 of the Civil Code, funds are debited from the account by the bank on the basis of the client's order. If there are funds on the account, the amount of which is sufficient to satisfy all the requirements for the account, these funds are debited from the account in the order in which the client's orders and other documents for debiting are received, unless otherwise provided by law, i.e. in calendar order.

If the funds on the account are not enough to satisfy all the claims made against it, the funds are debited in the order of priority established by law. In total, six such queues were installed. Write-off of funds from the account for claims relating to one queue is carried out in the order of the calendar order of receipt of documents (clause 2 of article 855 of the Civil Code).

According to paragraph 2 of Art. 854 of the Civil Code, the debiting of funds on the account without the client's order is allowed by a court decision, as well as in cases established by law or provided for by an agreement between the bank and the client.

There are a number of cases in the legislation when debiting funds from an account can be carried out without the client's order (indisputable debiting).

The Bank is responsible for improper execution of operations on the account. Such liability arises in cases of untimely crediting of funds received by the client to the account, their unreasonable debiting by the bank from the account, as well as failure to comply with the client's instructions to transfer funds from the account or to issue them from the account (Article 856 of the Civil Code). For improper performance of operations on the account, the bank is obliged to pay interest to the client in the manner and in the amount provided for in Art. 395 GK. Interest is subject to accrual on the amount for which the transaction was improperly performed. The penalty applied on the basis of Art. 856 of the Civil Code, is a credit. Accordingly, if the client has suffered losses due to improper transactions on the account, then he has the right to recover them from the bank in the part not covered by the penalty.

The bank account agreement is terminated at any time upon a written application of the client.

Unless otherwise provided by the agreement, in the absence of funds on the client's account and operations on this account for two years, the bank has the right to refuse to execute the bank account agreement by notifying the client in writing. The bank account agreement is considered terminated after two months from the date of sending such a warning by the bank, if no funds have been received on the client's account within this period.

At the request of the bank, the bank account agreement may be terminated by the court in the following cases:

▪ when the amount of funds stored in the client’s account is below the minimum amount provided for by banking rules or agreement, if such amount is not restored within a month from the date the bank warned about this;

▪ if there are no transactions on this account during the year, unless otherwise provided by the agreement.

The bank account agreement is terminated upon receipt of the client's application to terminate the agreement or close the account, unless a later date is specified in the application itself. Termination of the bank account agreement is the basis for closing the client's account. The balance of funds on the account is issued to the client or, at his direction, transferred to another account no later than seven days after receiving the client's application to terminate the contract (Article 859 of the Civil Code).

Depending on the volume of settlement transactions that a bank client is entitled to make, accounts are divided into settlement, current and special.

Settlement accounts are currently being opened for all legal entities, as well as individual entrepreneurs. Bank customers are entitled to carry out all types of settlement operations (non-cash payments) from the current account. In addition, banks provide them with services of a cash nature (acceptance and issuance of cash) in accordance with the rules established by law. Legal entities and individual entrepreneurs have the right to open an unlimited number of settlement accounts.

Current accounts are opened for organizations that do not have the rights of a legal entity, including branches and representative offices of legal entities. In addition, separate subdivisions of legal entities located outside their location can open settlement sub-accounts, which, in terms of their legal regime, almost do not differ from current accounts. On current accounts and settlement sub-accounts, these organizations can carry out a limited range of settlement operations related to the main activity of a legal entity. Social payments (salaries, vacation pay, etc.) are not made from these accounts, and the banks in which they are opened do not provide cash services to these clients.

Bank accounts opened by citizens are also current. On such accounts, citizens are entitled to make payments in a non-cash manner, except for payments related to their entrepreneurial activities.

Certain types of special accounts (budget, currency, loan, deposit) have their own characteristics. Interbank (in particular, correspondent) accounts are also allocated.

16.2. Bank deposit agreement

In accordance with paragraph 1 of Art. 834 of the Civil Code, under a bank deposit agreement, one party (bank), which has accepted the amount (deposit) received from the other party (depositor) or received for it, undertakes to return the deposit amount and pay interest on it on the terms and in the manner prescribed by the agreement.

A bank deposit agreement is real, since it is considered concluded only from the moment the depositor makes a sum of money (deposit) in the bank. This agreement refers to reimbursable and unilateral agreements, since it only gives rise to the right of the depositor to demand the return of the amount of money deposited as a deposit, as well as the payment of interest and the corresponding obligation of the bank. In addition, a bank deposit agreement concluded with citizens is recognized as a public agreement (clause 2, article 834 of the Civil Code). Thus, the provision of deposit services to citizens is the responsibility of banks.

According to par. 1 p. 3 art. 834 of the Civil Code, the rules on the bank account agreement apply to the relations between the bank and the depositor on the account to which the deposit has been made, unless otherwise provided by the rules of Ch. 44 of the Civil Code or does not follow from the essence of the bank deposit agreement.

A bank deposit agreement is not a type of a bank account agreement due to the difference in the purposes of these agreements.

The parties to the bank deposit agreement are the bank and the depositor. At the same time, the service provider in relation to citizens is not just a credit institution, but a bank. According to Art. 835 of the Civil Code, art. 13, 36 of the Federal Law of 02.12.1990 No. 395-1 "On Banks and Banking Activities" banking operations to raise funds for deposits can be carried out by banks only on the basis of a license issued by the Central Bank of the Russian Federation. In addition, in accordance with Art. 36 of the above Law, the right to attract funds from individuals to deposits is granted only to those banks, from the date of state registration of which at least two years have passed. As for the acceptance of deposits (deposits) from legal entities, the right to exercise it can also be granted to non-bank credit organizations, whose relations with depositors in such cases are subject to the rules on bank deposits (paragraph 4 of article 834 of the Civil Code).

Any subject of civil law can act as a contributor. In particular, paragraph 2 of Art. 26 of the Civil Code establishes that minors aged 14 to 18 have the right to independently, without the consent of their parents, adoptive parents and guardian, in accordance with the law, make deposits to credit institutions and dispose of them.

The law allows the deposit of funds to the depositor's account by third parties (Article 841 of the Civil Code).

A bank deposit agreement always acts as a reimbursable agreement, since the law (clause 1 of article 838 of the Civil Code) contains an imperative rule on the payment by the bank to the depositor of interest on the amount of the deposit.

According to Art. 836 of the Civil Code, a bank deposit agreement must be made in writing. The written form of the bank deposit agreement is considered to be complied with if the deposit is certified by a savings book, savings or deposit certificate or other document issued by the bank to the depositor that meets the requirements stipulated for such documents by law, banking rules or business customs. Failure to comply with the written form of the bank deposit agreement shall entail its invalidity (insignificance).

An essential condition of the bank deposit agreement is only its subject.

According to the general rule established by Art. 843 of the Civil Code, the conclusion of a bank deposit agreement with a citizen and the deposit of funds into his deposit account are certified by a savings book. Other may be determined by agreement of the parties.

A bank deposit agreement may provide for the issuance of a personal savings book or a savings book to bearer. A nominal savings book is a document that only certifies that the deposit belongs to a certain person, and a bearer savings book is recognized by law as a security.

Securities also include savings and deposit certificates. A savings (deposit) certificate certifies the amount of the deposit made to the bank and the right of the depositor (certificate holder) to receive the deposit amount and interest stipulated by the certificate in the bank that issued the certificate or in any branch of this bank after the expiration of the established period. Both savings and deposit certificates can be bearer or registered (Article 844 of the Civil Code). Certificates must be current. In the case of early presentation of a savings (deposit) certificate for payment, the bank pays the amount of the deposit and interest paid on demand deposits, unless the terms of the certificate establish a different amount of interest (paragraph 3 of article 844 of the Civil Code).

Recently, the use of plastic cards on deposits of citizens has become more and more widespread, which allow you to carry out settlement operations in the same way as with a savings book.

The main obligations of the bank, which respectively correspond to the basic rights of the depositor, are the return to the depositor of the amount of the deposit received by the bank and the payment of interest due to him.

The law contains special rules on ensuring the return of the deposit (Article 840 of the Civil Code). Banks are obliged to ensure the return of deposits of citizens through compulsory insurance, and in cases provided for by law and in other ways. The return of deposits of citizens by a bank in the authorized capital of which the Russian Federation, its constituent entities, as well as municipalities have more than 50% of shares or stakes, in addition, is guaranteed by their subsidiary liability for the requirements of the depositor to the bank in the manner provided for in Art. 399 GK. Methods for the bank to ensure the return of deposits of legal entities are determined by the bank deposit agreement. When concluding a bank deposit agreement, the bank is obliged to provide the depositor with information on the security of the return of the deposit.

The execution of the bank deposit agreement is carried out primarily by paying interest on the deposit. The accrual of these interest begins from the day following the day the funds are received by the bank, and until the day it is returned to the depositor, inclusive, and if it is debited from the depositor's account for other reasons, until the day of debiting, inclusive.

Unless otherwise provided by the bank deposit agreement, interest on the amount of the bank deposit is paid to the depositor at his request at the end of each quarter separately from the amount of the deposit, and interest unclaimed within this period increases the amount of the deposit on which interest is accrued. When the deposit is returned, all interest accrued up to this point is paid (Article 839 of the Civil Code).

According to paragraph 2 of Art. 838 of the Civil Code, unless otherwise noted by the bank deposit agreement, the bank has the right to change the amount of interest paid on demand deposits.

The amount of interest paid on other types of deposits made by a citizen cannot be unilaterally reduced by a bank, unless otherwise provided by law. At the same time, when the depositor is a legal entity, a unilateral reduction by the bank of the amount of interest is not allowed, unless otherwise provided by law or an agreement (paragraph 3 of article 838 of the Civil Code).

Since a monetary obligation arises on the basis of a bank deposit agreement, the consequences of non-fulfillment or improper fulfillment of the conditions for the return of the deposit and the payment of interest on it are determined according to the rules established by Art. 393, 395 of the Civil Code.

In accordance with Art. 837 of the Civil Code, the main division of deposits into types is made according to the terms of their return. A bank deposit agreement is concluded on the terms of issuing a deposit on first demand (demand deposit) or on the terms of returning the deposit after the expiration of a period specified in the agreement (term deposit). At the same time, the agreement may provide for making deposits on other terms of their return that do not contradict the law.

Under a bank deposit agreement of any kind, the bank is obliged to issue the deposit amount or part of it at the first request of the depositor. This rule does not apply only to deposits made by legal entities on other terms of their return, provided for by the agreement.

When returning a term or other deposit, other than a demand deposit, to the depositor at his request before the expiration of the term or before the occurrence of other circumstances specified in the bank deposit agreement, the bank pays interest in the same amount as for demand deposits, unless the agreement determined by a different size.

In cases where the depositor does not require the return of the amount of the term deposit after the expiration of the term or the amount of the deposit made on other terms of return, upon the occurrence of the circumstances provided for in the agreement, the agreement is considered extended on the terms of a demand deposit, unless otherwise provided by the agreement.

According to Art. 842 of the Civil Code, it is possible to make deposits in favor of third parties.

According to the intended purpose, deposits can be divided into deposits for the birth of a child or for the child to reach a certain age, for marriage, pension, etc. All deposits of this kind are varieties of term deposits.

Topic 17. PAYMENT OBLIGATIONS

17.1. General provisions on cash and non-cash payments

Payments on the territory of the Russian Federation are made by cash and non-cash payments.

Settlements with the participation of citizens, not related to their entrepreneurial activities, can be made in cash without limiting the amount or by bank transfer. Settlements between legal entities or with the participation of citizens related to their entrepreneurial activities, as a general rule, must be made in a non-cash manner. Settlements between these persons in cash are also possible, but only in cases where otherwise is not established by law (Article 861 of the Civil Code).

The law does not contain an exhaustive list of forms of non-cash payments that can be used by participants in property turnover, but is limited to direct indication and regulation of the main ones: settlements by payment orders, letters of credit, checks, settlements by collection. The parties under the contract have the right to choose any of the forms of payment (for example, payment by bill), but within the limits of those provided for by law, banking rules and business practices (Article 862 of the Civil Code).

17.2. Cash and non-cash payments

When paying in cash, there are no independent settlement obligations. The transfer of money usually represents the actions of the debtor to fulfill the corresponding monetary obligation, which is part of the civil law obligation to transfer goods, perform work or provide services, therefore, at present, the legal regulation of cash settlements in its civil law part is limited only by setting the maximum amount payment in cash in relations between legal entities and citizens-entrepreneurs.

Non-cash payments are understood as settlements under civil law transactions and other grounds (for example, for the payment of taxes and other obligatory payments to the budget and extra-budgetary funds) using for this purpose the balances of funds in bank accounts. The essence of the non-cash form of payment is that instead of transferring cash, the corresponding amounts of money are debited or credited to the client's account.

The implementation of settlement operations by banks is carried out in compliance with the general rules relating to the execution of a bank account agreement. Non-cash payments are made on the basis of documents of the established form.

The Civil Code directly provides for and regulates four forms of non-cash payments:

1) payment orders;

2) under a letter of credit;

3) by collection;

4) checks.

Settlements by payment orders (bank transfer). This form of non-cash payments is most often used in property transactions. In accordance with paragraph 1 of Art. 863 of the Civil Code, when making payments by payment orders, the bank undertakes, on behalf of the payer, at the expense of funds in his account, to transfer a certain amount of money to the account of the person specified by the payer in this or another bank within the period provided for by law or established in accordance with it, if shorter the period is not provided for in the bank account agreement or is not determined by business customs applied in banking practice.

According to paragraph 1 of Art. 865 of the Civil Code, the execution of a payment order consists in the fact that the bank that accepted it is obliged to transfer the corresponding amount of money to the bank of the recipient of funds for its crediting to the account of this person indicated in the order. The direct transfer of a sum of money on behalf of the client by the bank serving him to the bank of the payee is possible only when these banks have correspondent relations. In other cases, the bank that received the payment order has the right to attract other banks to carry out operations to transfer funds to the account specified in the client's order (clause 2 of article 865 of the Civil Code). At the same time, the period provided for by law or established in accordance with it must be observed, unless a shorter period is provided for by the bank account agreement or is not determined by the customs of business turnover applied in banking practice (clause 1 of article 863 of the Civil Code). This period is calculated from the moment the bank receives the payment order and until the amount of money to be transferred is credited to the recipient's account.

Currently, in accordance with Federal Law No. 10.07.2002-FZ of July 86, 80 "On the Central Bank of the Russian Federation (Bank of Russia)", the terms for making cashless payments are determined by the Bank of Russia. As established by Art. XNUMX of this Law, the total period of cashless payments should not exceed two business days within the territory of one subject of the Russian Federation and five business days within the Russian Federation.

The rules governing settlements by payment orders apply not only to the relationship between a bank and an account holder with that bank. An order to transfer funds can also be accepted by a bank from a person with whom there is no bank account agreement. In this case, it is necessary to be guided by the norms set forth in § 2 Ch. 46 of the Civil Code, unless otherwise provided by law, issued in accordance with it by banking rules or does not follow from the essence of these relations (clause 2 of article 863 of the Civil Code).

Settlements under a letter of credit. When making payments under a letter of credit, the bank acting on behalf of the payer to open the letter of credit and in accordance with its instructions (issuing bank), undertakes to make payments to the recipient of funds or to pay, accept or honor a bill of exchange or to authorize another bank (executing bank) to make payments to the recipient funds or pay, accept or take into account a bill of exchange (paragraph 1, clause 1, article 867 of the Civil Code).

The rules on the executing bank (paragraph 2, clause 1, article 867 of the Civil Code) apply to the issuing bank making payments to the recipient of funds or paying, accepting or accounting for a bill of exchange.

The peculiarity of the letter of credit form of payment is that when it is used, funds are not transferred to the recipient's account, but are allocated, "booked" for settlements with the recipient of funds in the future. To determine the conditions for receiving these funds (letter of credit conditions), an agreement is concluded between the payer and the recipient of the funds, and these conditions are duplicated in the payer's instruction to the bank to open a letter of credit. For the execution of a letter of credit, i.e. in order to pay the corresponding amount of money, its recipient must submit to the bank that opened the letter of credit, or to another (executing) bank, documents confirming the fulfillment of all the conditions of the letter of credit (for example, documents confirming the performance of work under a specific agreement, for which payment is made in a letter of credit form ).

The law provides for the possibility of opening the following types of letters of credit:

▪ covered (deposited) and uncovered (guaranteed) letter of credit;

▪ revocable and irrevocable letter of credit;

▪ Confirmed letter of credit.

Settlements for collection. When making collection payments, the issuing bank undertakes, on behalf of the client, to carry out at his expense actions to receive payment or acceptance of payment from the payer (clause 1 of Article 874 of the Civil Code).

In accordance with paragraph 2 of Art. 874 of the Civil Code, in order to fulfill the client's order, the issuing bank has the right to attract another bank (executing bank).

The execution of a collection order consists in the fact that the bank executing it presents to the payer the exactor's documents in the form in which they were received, with the exception of the marks and inscriptions of banks necessary for processing the collection operation. Documents put up by the claimant for collection must comply with the requirements established by law or banking rules for their content and form. Such documents are checks, bills of exchange, payment requests paid by way of prior acceptance, payment requests-orders, etc.

Payments by checks. A check is a security containing an unconditional order from the drawer to the bank to pay the amount specified in it to the check holder (clause 1 of Article 877 of the Civil Code).

The main participants in relations for settlements by checks are the issuer, the check holder and the payer. The drawer is the person who issued the check; holder of a check - a person who is the owner of the issued check; payer - the bank making the payment on the presented check. In addition, an endorser can participate in these relations - a holder of a check, transferring a check to another person by means of an endorsement (endorsement), and an availer - a person who has given a guarantee for payment of a check, drawn up with a guarantee inscription on it (aval). Only banks or other credit organizations licensed to engage in banking activities can act as payers on a check.

Terms of presenting checks for payment are determined by the internal bank rules for conducting operations with checks. Revocation of a check before the expiration of the period for its presentation is not allowed (paragraph 3 of article 877 of the Civil Code).

The drawer may issue an order, nominal or bearer check.

The person who paid the check has the right to demand that the check be handed over to him with a receipt for payment.

Some features have the transfer of rights by check. So, a personal check cannot be transferred to another person. In a transferable check, an endorsement to the payer has the force of a receipt for receiving payment (Article 880 of the Civil Code).

Presentation of a check for payment is carried out by the holder of the check by presenting the check to the bank serving the holder of the check for collection (collection of the check). In this case, payment of the check is made in the general manner provided for the execution of a collection order. If the payer refuses to pay the check presented for payment, this circumstance must be certified in one of the following ways:

▪ by a notary’s protest or by drawing up an equivalent act;

▪ by the payer’s mark on the check about the refusal to pay it, indicating the date the check was submitted for payment;

▪ a mark from the collecting bank indicating the date indicating that the check was issued on time and not paid (clause 1 of Article 883 of the Civil Code).

The holder of a check shall be obliged to notify his endorser and drawer of the non-payment of a check within two business days following the date of the protest or an equivalent act.

If the payer refuses to pay the check, the holder of the check has the right to demand payment on the check from all persons liable for it: the drawer, availers, endorsers, who are jointly and severally liable to the holder of the check (paragraph 1 of article 885 of the Civil Code). The claim of the check holder against the indicated persons may be brought within six months from the date of expiry of the term for presenting the check for payment (clause 3 of article 885 of the Civil Code).

In recent years, electronic forms of payment have become increasingly widespread in banking practice, in which non-cash payments are carried out mainly using telecommunication communication systems, and paper document flow is minimized.

Topic 18. SIMPLE PARTNERSHIP AGREEMENT

In accordance with paragraph 1 of Art. 1041 of the Civil Code, under a simple partnership agreement (agreement on joint activities), two or more persons (partners) undertake to combine their contributions and act jointly without forming a legal entity to make a profit or achieve another goal that does not contradict the law. Based on this definition, the following conditions are essential for a simple partnership agreement: on the combination of contributions; about joint actions of comrades; about the common goal for the achievement of which these actions are carried out.

By its legal nature, a simple partnership agreement is consensual, reimbursable, mutual and fiduciary.

The common goal of comrades can be both commercial and non-commercial in nature (making a profit, building a residential building for comrades, creating a legal entity, etc.).

The contribution of a friend is recognized as everything that he contributes to the common cause, including money, other property, professional and other knowledge, skills and abilities, as well as business reputation and business connections. The partners' contributions are assumed to be equal in value, unless otherwise follows from the simple partnership agreement or actual circumstances. The monetary value of a partner's contribution is made by agreement between the partners (Article 1042 of the Civil Code).

The property contributed by the comrades, which they possessed by right of ownership, as well as the products produced as a result of joint activities and the fruits and incomes received, are recognized as their common shared property, unless otherwise established by law or agreement or does not follow from the nature of the obligation. The property contributed by the comrades, which they possessed on other grounds, is used in the interests of all the comrades and, along with the property in their common shared ownership, constitutes the common property of the comrades. The obligations of partners in maintaining common property and the procedure for reimbursement of expenses associated with the fulfillment of these obligations are determined by a simple partnership agreement (Article 1043 of the Civil Code).

Since the simple partnership agreement is of a fiduciary (personal trust) nature, a partner cannot transfer (assign) his right to participate in the agreement to other persons without the consent of the other partners. In the presence of such consent, the remaining participants in the simple partnership agreement have the pre-emptive right to purchase the share of the retiring participant in common property (Article 250 of the Civil Code).

The creditor of a participant in a simple partnership agreement has the right to present a claim for the allocation of his share in the common property in order to levy collection on it for the debts of this participant. However, the participant's share in the common property of the partnership can be used to pay off his personal debts only if his other property is insufficient, i.e. in a subsidiary order (Article 255, 1049 of the Civil Code).

As a general rule, any subjects of civil law can be participants in a simple partnership agreement. However, only individual entrepreneurs and (or) commercial organizations can be parties to such an agreement concluded for the implementation of entrepreneurial activities (clause 2 of article 1041 of the Civil Code).

The form of a simple partnership agreement must comply with the general requirements of the legislation on the form of transactions (Articles 158 - 165 of the Civil Code).

When conducting common affairs, each partner has the right to act on behalf of all partners, unless a simple partnership agreement establishes that the conduct of business is carried out by individual participants or jointly by all participants in such an agreement. When doing business together, each transaction requires the consent of all partners. In relations with third parties, the authority of a partner to make transactions on behalf of all partners is certified by a power of attorney issued to him by the other partners, or by a simple partnership agreement made in writing.

A partner who has made transactions on behalf of all partners without proper authority or on his own behalf may demand compensation for expenses incurred by him at his own expense, if there were sufficient grounds to believe that these transactions were necessary in the interests of all partners. Partners who have suffered losses as a result of such transactions have the right to demand their compensation.

Decisions relating to the common affairs of comrades are made by comrades by common agreement, unless otherwise provided by a simple partnership agreement (Article 1044 of the Civil Code).

The procedure for covering expenses and losses associated with the joint activities of partners is determined by their agreement. In the absence of such an agreement, each partner shall bear the costs and losses in proportion to the value of his contribution to the common cause. On the contrary, as a general rule, the profit received as a result of the activities of a simple partnership is distributed in proportion to the value of the partners' contributions. Another procedure for its distribution may be provided for by a simple partnership agreement or other agreement of partners.

Agreements that completely exempt from participation in covering common expenses or losses or eliminate one of the partners from participation in profits are void (Articles 1046, 1048 of the Civil Code), as contradicting the essence of this obligation.

The nature of the liability of partners depends on the type of contract concluded. If a simple partnership agreement is not related to entrepreneurship, each partner is liable for general contractual obligations with all his property in proportion to the value of his contribution to the common cause, i.e. bears a shared responsibility. For common obligations arising not from the contract, the comrades shall be jointly and severally liable. Participants in a simple partnership established to carry out entrepreneurial activities bear joint and several liability for all common obligations, regardless of the grounds for their occurrence (Article 1047 of the Civil Code).

According to Art. 1053 of the Civil Code in the event that a simple partnership agreement was not terminated as a result of a statement by one of the participants to refuse further participation in it or termination of the agreement at the request of one of the partners, the person whose participation in the agreement has ceased is liable to third parties for general obligations that arose during the period of his participation in the agreement, as if he remained a participant in a simple partnership agreement.

The law provides for the grounds for terminating a simple partnership agreement (clause 1, article 1050 of the Civil Code). Any partner has the right to refuse an open-ended simple partnership agreement by notifying the other participants about this no later than three months before the proposed withdrawal from the agreement. An agreement on limiting the right to withdraw from such an agreement is void (Article 1051 of the Civil Code).

The right to freely withdraw from the membership of the participants in a simple partnership agreement may be limited by agreement of the partners, if the agreement is concluded for a certain period. However, along with the grounds specified in paragraph 2 of Art. 450 of the Civil Code, a party to a simple partnership agreement concluded with an indication of a term or an indication of the purpose as a resolutive condition, has the right to demand termination of the agreement in relations between itself and other partners for a good reason with compensation to other partners for real damage caused by termination of the agreement (Article 1052 of the Civil Code ).

Termination of a simple partnership agreement entails the division of property that was in the common ownership of the participants, and the common rights of claim that arose from them in the manner prescribed by Art. 252 GK.

A partner who has brought an individually defined thing into common ownership shall have the right, upon termination of the contract, to demand in court that this thing be returned to him, provided that the interests of other partners and creditors are observed. Items transferred for common possession and (or) use shall be returned to the participants who provided them without remuneration, unless otherwise provided by agreement of the parties.

From the moment of termination of the simple partnership agreement, its participants bear joint and several liability for unfulfilled general obligations in relation to third parties (paragraph 2 of article 1050 of the Civil Code).

A simple partnership agreement may provide that its existence is not disclosed to third parties (tacit partnership) (Article 1054 of the Civil Code).

Topic 19. OBLIGATIONS FROM UNILATERAL ACTIONS

19.1. Obligations from a Public Reward Promise

In accordance with paragraph 1 of Art. 1055 of the Civil Code, a person who has publicly announced the payment of a monetary reward or the issuance of another reward to someone who performs a lawful action specified in the announcement within the time period specified in it, is obliged to pay the promised reward to anyone who performed the corresponding action, in particular, found the lost thing or informed the person who announced about the award, the necessary information. The obligation to pay the reward arises on the condition that the promise of the reward makes it possible to establish by whom it was promised (paragraph 2 of article 1055 of the Civil Code).

The promise of reward is made to any person who performs the contingent actions. However, persons who are not eligible for the award are:

▪ who, by their illegal behavior, created the preconditions for a public promise of a reward (those who stole a wanted item);

▪ who found such an item and violated the rules of the Civil Code regarding the discovery, i.e. those who did not report the find or concealed the found item;

▪ for whom the actions specified in the award announcement are an official duty.

The amount of remuneration may not be specified: in this case, it is established by agreement of the parties, and in the event of a dispute - by the court.

The validity period of a promise can be specified directly in the declaration. In other cases, the period is assumed to be reasonable, i.e. corresponding to the period of objective interest of the person who announced the award in the performance of the stipulated actions by the person who responded to this announcement.

The person who takes the action specified in the announcement is entitled to a reward, regardless of whether he knew about the promise of a reward at the time of the action.

The person responding to the advertisement may require written confirmation of the promise contained therein and bears the risk of the consequences of not presenting this demand if it turns out that the announcement of the reward was not made by the person named in it.

In cases where the action specified in the announcement was performed by several persons, the right to receive the reward is acquired by the one who performed this action first. If it is impossible to determine who committed the corresponding action first, and also if the action is committed by two or more persons at the same time, the reward between them is divided equally or in another amount provided for by the agreement between them (Article 1055 of the Civil Code).

According to Art. 1056 of the Civil Code, a person who has publicly announced the payment of an award has the right to refuse this promise in the same form, except when the announcement itself provides for or follows from it inadmissibility of refusal or a certain period is given for performing the action for which the award is promised, or by the time denial announcements, one or more responders have already performed the action specified in the announcement. Cancellation of the public promise of a reward does not relieve the one who announced the reward from reimbursement to the responding persons of the expenses incurred by them in connection with the performance of the conditional action, within the limits of the reward indicated in the announcement.

19.2. Commitments from public competition

In accordance with paragraph 1 of Art. 1057 of the Civil Code, a person who publicly announced the payment of a monetary reward or the issuance of another award for the best performance of work or the achievement of other results (public competition) must pay (give out) a conditional award to the one who, in accordance with the terms of the competition, is recognized as its winner.

A public competition should be aimed at achieving socially useful goals. The announcement of a public competition must necessarily contain the following conditions (clause 4 of article 1057 of the Civil Code):

1) the essence of the task;

2) criteria and procedure for evaluating results;

3) the place, terms and procedure for presenting the results;

4) the amount and form of remuneration;

5) the procedure and terms for announcing the results of the competition.

An invitation to the competition can be addressed to a different circle of people. Accordingly, competitions are divided into open, limited and closed.

An open competition implies an appeal by the organizer of the competition with a proposal to take part in it to everyone by announcing it in the media.

A closed competition implies sending such an offer to a certain circle of persons at the choice of the organizer of the competition.

A limited competition is a kind of open competition, but with the admission to participate in it only of persons who meet the requirements stipulated by the organizer (for example, children of a certain age, people of the same profession, etc.).

When holding an open tender, it is allowed to conduct a preliminary qualification of its participants for the preliminary selection of persons who wish to take part in it (paragraph 2, clause 3, article 1057 of the Civil Code).

In the conditions of the competition, its organizer may provide for the conclusion of an agreement with the winner on the use of the results of the competition. This condition is obligatory for the organizer of the competition, and he is not entitled to refuse to conclude the said agreement (clause 5 of article 1057 of the Civil Code).

The decision on the payment of the award must be made and communicated to the participants of the competition in the manner and within the time limits established in the announcement of the competition.

If the results indicated in the announcement are achieved in the work performed jointly by two or more persons, the reward is distributed in accordance with the agreement reached between them. If such an agreement is not reached, the procedure for distributing the award is determined by the court (Article 1059 of the Civil Code).

If the subject of a public competition is the creation of a work of science, literature or art, and the conditions of the competition do not provide otherwise, the person who announced the competition shall acquire the pre-emptive right to conclude an agreement with the author of the work awarded with an award on the use of the work with the payment of an appropriate remuneration to him (Art. 1060 GK).

The person who announced a public competition has the right to change its conditions or cancel the competition, but only during the first half of the period established for the submission of works. In this case, the corresponding notification must be made in the same way as the tender was announced. If these conditions are not met, the organizer of the competition must pay an award to those who have completed work that meets the conditions specified in the announcement.

In the event of a change in the conditions of the competition or its cancellation, the person who announced the competition must reimburse the costs incurred by any person who performed the work specified in the announcement before he became or should have become aware of the change in the conditions of the competition or its cancellation. The organizer of the competition is released from the obligation to reimburse expenses if he proves that the work was not performed in connection with the competition, in particular before the announcement of the competition, or knowingly did not comply with the conditions of the competition.

19.3. Obligations from games and betting

The game is a raffle of a prize fund, dependent on a combination of random circumstances, formed from the contributions of its participants themselves, who risk them by making these contributions as a payment for the right to take part in the game. A bet is a kind of game in which the occurrence of random winning circumstances is predicted by the bettors themselves, but in the sphere of questions asked by their organizer.

The current Russian legislation, as a general rule, does not link the emergence of civil rights and obligations with participation in games and bets, refusing to provide judicial protection for the claims of citizens and legal entities arising from it (Article 1062 of the Civil Code). Only in cases expressly provided for by the rules of Sec. 58 of the Civil Code, legal significance is attached to relations arising in connection with the organization and conduct of games and bets. In particular, it is possible to provide judicial protection for the claims of persons who have taken part in games or bets under the influence of deceit, violence, threats or malicious agreements between their representative and the organizer of games or bets.

Activities for organizing games are considered licensed. Except for the Russian Federation, constituent entities of the Russian Federation and municipalities, all other persons can act as organizers of games and wagers only on the basis of a license obtained from an authorized state or municipal body.

Relations between the organizers and participants of the games are based on an agreement (clause 1 of article 1063 of the Civil Code). At the same time, this transaction is risky only for the participant of the game, since the amount of the prize fund is always less than the amount of the players' contributions.

In cases stipulated by the rules for organizing games, an agreement between the organizer and the participant in the games is formalized by issuing a lottery ticket, receipt or other document.

The proposal of the organizer of games to conclude an agreement must contain conditions on the duration of the games and the procedure for determining the winnings and its amount (paragraph 1, clause 3, article 1063 of the Civil Code).

The law provides for the obligation of the organizer of games to pay winnings to persons who, in accordance with the conditions for holding a lottery, sweepstakes or other games, are recognized as winners, in the amount, form (in cash or in kind) provided for by the specified conditions, and if the period is not specified in these conditions, not later than 10 days from the date of determining the results of the games. If the organizer of the games fails to fulfill this obligation, the winning participant has the right to demand payment of the winnings, as well as compensation for losses caused by the violation of the contract by the organizer.

In the event that the organizer of the games refuses to hold them within the prescribed period, the participants in the games have the right to demand from their organizer compensation for the real damage incurred due to the cancellation of the games or the postponement of their period (Article 1063 of the Civil Code).

Topic 20. OBLIGATIONS DUE TO HARM

20.1. Non-contractual obligations

Liabilities due to harm are included in the group of non-contractual obligations, which also include obligations due to unjust enrichment. Such obligations differ from contractual obligations in that their occurrence is not due to the will of the parties, expressed in the contract or otherwise, but on other grounds specified in the law.

By virtue of an obligation as a result of causing harm, a person who caused harm to the person or property of another person (natural or legal) is obliged to compensate him in full, and the victim has the right to demand compensation for the harm caused to him.

Causing harm to the person or property of another person, except as provided by law, is a civil offense for which civil liability should arise. Bearing such responsibility constitutes the content of the obligation of the offender in the obligation that arose as a result of causing harm. Liability that is non-contractual in nature, according to the tradition coming from Roman law, is usually called tort, and the obligation, the content of which it is, is called tort.

Tort liability should be distinguished from contractual liability, which arises as a result of non-performance or improper performance of a contractual obligation. At the same time, in some cases, the rules governing non-contractual relations also apply to certain obligations arising from contracts. So, according to Art. 1084 of the Civil Code, harm caused to the life or health of a citizen in the performance of contractual obligations is compensated according to the rules provided for in Ch. 59 of the Civil Code, unless the law or the contract provides for a higher amount of liability. The issue of the carrier's liability for harm caused to the life or health of a passenger is resolved in a similar way (Article 800 of the Civil Code). The basis for the occurrence of a tort obligation is the fact of causing harm. In paragraph 1 of Art. 1064 of the Civil Code indicates the infliction of harm to a person or property.

Causing damage to property means a violation of the property sphere of a person in the form of a decrease in the amount of his property benefits or their value. In the case of harm to a person, we are talking about harm to life (death of the victim) or human health (bodily injury, illness). Both in case of causing damage to property, and to a predominant extent when causing harm to the life or health of a citizen, property damage is subject to compensation. Only in cases provided for by law, compensation for moral damage is allowed (paragraph 1 of article 151, paragraph 2 of article 1099 of the Civil Code).

Moral harm is the physical or moral suffering caused to a citizen by the unlawful behavior of another person.

According to the current legislation, as a general rule, moral damage caused by actions that violate personal non-property rights or encroach on other non-material benefits belonging to a citizen is subject to compensation. In case of violation of the property rights of a citizen, moral damage is subject to compensation only in cases expressly provided for by law.

For the onset of liability for causing harm, it is not enough only the fact of its infliction, the presence of a number of circumstances, called the conditions of tort liability, is also necessary.

A tort obligation and, accordingly, tort liability arise under the following conditions:

▪ illegality of the behavior of the person who caused the harm;

▪ a causal connection between the unlawful behavior of the harm-doer and the resulting harm;

▪ the guilt of the person who caused the harm.

According to paragraph 3 of Art. 1064 of the Civil Code, harm caused by lawful actions is subject to compensation in cases provided for by law. Therefore, as a rule, compensation is subject to damage caused by unlawful, unlawful actions.

The concept of "behavior of the harm-doer" is associated not only with his actions, but also inaction. Inaction is recognized as unlawful if a person was obliged to perform a certain action, but did not do so.

As a general rule, harm caused by lawful actions is not subject to compensation. Lawful, in particular, is the infliction of harm in the performance by a person of his duties stipulated by law, other legal acts or professional instructions. Similarly, it is considered as lawful infliction of harm by an act to which the consent of the victim himself is given, but subject to the legitimacy of this consent.

The best-known case of lawful infliction of harm is infliction of it in a state of necessary defense. According to Art. 1066 of the Civil Code, harm caused in a state of necessary defense is not subject to compensation, unless its limits were exceeded.

The law allows only one exceptional case when damage caused by lawful actions must be compensated: infliction of harm in a state of emergency. A state of emergency, as follows from Part 1 of Art. 1067 of the Civil Code, is a situation in which the danger threatening the tortfeasor himself or other persons could not be eliminated by other means, i.e. without harming the victim. Although the actions committed in this case are recognized as lawful, the harm caused by them is subject to compensation by virtue of a direct indication of the law (clause 3 of article 1064, part 1 of article 1067 of the Civil Code).

According to part 2 of Art. 1067 of the Civil Code, taking into account the circumstances under which such damage was caused, the court may impose the obligation to compensate for it on a third person in whose interests the person who caused the damage acted, or release from compensation for damage in whole or in part both this third person and the person who caused the damage.

The presence of a causal relationship between the action (inaction) of the harm-doer and the resulting harm also acts as a necessary condition for the emergence of liability for causing harm.

The condition for the onset of tort liability (although not always mandatory) is the fault of the tortfeasor. The existence of such a condition is evidenced by the norm of paragraph 2 of Art. 1064 of the Civil Code, according to which the person who caused harm is exempted from compensation for harm if he proves that the harm was caused through no fault of his. Guilt is traditionally understood as a certain mental attitude of a person to his behavior and its consequences. A characteristic of civil law is the establishment of a presumption of guilt of the harm-doer: such a person is found guilty until he proves the opposite. The peculiarity of the civil law regulation of relations arising in connection with the infliction of harm also consists in the provision of paragraph 2 of Art. 1064 of the Civil Code of the possibility of the existence of an obligation to compensate for harm even in the absence of the fault of the tortfeasor, i.e. in establishing the possibility of liability without fault. Such an exception is provided, for example, by the rules on liability for harm caused by a source of increased danger (paragraph 1 of article 1079 of the Civil Code); on liability for harm caused by illegal actions of bodies of inquiry, preliminary investigation, prosecutor's office and court (Article 1070 of the Civil Code).

For the first time, the current Civil Code provides for the protection of the rights and interests of individuals and legal entities from the danger of causing harm in the future. According to Art. 1065 of the Civil Code, the danger of causing harm in the future may be the basis for a claim for the prohibition of activities that create such a danger. If the harm caused is a consequence of the operation of an enterprise, structure or other production activity that continues to cause harm or threatens new harm, the court has the right to oblige the defendant, in addition to compensation for harm, to suspend or terminate the relevant activity. The court may dismiss a claim for the suspension or termination of such activities only if it is contrary to the public interest. This refusal does not, however, deprive the victims of the right to compensation for the harm caused to them.

The inflictor of harm (debtor) can be any subject of civil law: a citizen (individual), a legal entity, as well as public legal entities - the Russian Federation, its subjects, municipalities.

A citizen can be recognized as the subject of a tort obligation, liable for the harm caused, provided that he has the ability to answer for his actions - tort capacity. This quality is possessed by adults, as well as minors who have reached the age of 14 (Article 26 of the Civil Code). Among the non-dictatorial, i.e. not able to be responsible for the harm caused include minors under the age of 14, persons recognized as incapable, and persons who caused harm in such a state when they could not understand the meaning of their actions or manage them (Articles 1073, 1076, 1078 of the Civil Code) . In those cases when harm is caused by the actions of a person who is not capable of negotiation, the responsibility for the harm caused to them is borne by the persons specified in the law, who become subjects of tort obligations (Articles 1073, 1076 of the Civil Code).

A legal entity may act as a subject of liability for causing harm. In this case, the actions of a legal entity are recognized as the actions of its employees or members committed by them in the course of performing their labor or membership corporate functions.

According to paragraph 1 of Art. 1068 of the Civil Code, a legal entity compensates for the harm caused by its employee in the performance of labor (official, official) duties. The concept of "employee" used in this norm is conditional, since both citizens who perform work on the basis of an employment contract (contract) and citizens who perform work under a civil law contract are recognized as employees, if they acted or should have acted on an assignment the relevant legal entity and under its control over the safe conduct of business (paragraph 2, clause 1, article 1068 of the Civil Code). Similar rules apply to cases of harm caused by an employee of a citizen (individual entrepreneur), in which the liability is borne by the citizen who hired the person who caused the harm to work or entered into a civil law contract with him on the performance of work.

The Civil Code contains a special rule according to which business partnerships and production cooperatives compensate for the damage caused by their participants (members) in the course of the latter's entrepreneurial, industrial or other activities of the partnership or cooperative (paragraph 2 of article 1068).

The perpetrators of harm and, accordingly, the subjects of tort obligations can also be public law entities. For example, harm caused to a citizen as a result of illegal conviction, illegal prosecution, illegal application of administrative punishment in the form of arrest, and in other cases specified in paragraph 1 of Art. 1070 of the Civil Code in cases, is reimbursed at the expense of the treasury of the Russian Federation, and in cases provided for by law, at the expense of the treasury of a constituent entity of the Russian Federation or the treasury of a municipal formation.

Persons who jointly caused harm shall be jointly and severally liable to the victim. However, at the request of the victim and in his interests, the court has the right to impose shared liability on such persons (Article 1080 of the Civil Code).

According to Art. 1081 of the Civil Code, a person who has compensated for the harm caused by another capable person has the right to claim back (recourse) against this person in the amount of the compensation paid, unless another amount is established by law.

The tortfeasor who compensated jointly inflicted harm has the right to demand from each of the other tortfeasors a share of the compensation paid to the victim in the amount corresponding to the degree of guilt of this tortfeasor. If it is impossible to determine the degree of guilt, the shares are recognized as equal.

Public law entities, in the event of compensation for harm caused by an official of the bodies of inquiry, preliminary investigation, prosecutor's office or court (clause 1 of article 1070 of the Civil Code), have the right of recourse to this person if his guilt is established by a court verdict that has entered into legal force .

The other side of the tort obligation is the victim, i.e. a person whose property or person has been harmed by the actions of another person. Any subjects of civil law, including legal entities and public legal entities, can be victims (creditors) in obligations from causing harm.

In the event of the death of the victim, disabled persons who were dependents of the deceased or had the right to receive maintenance from him by the day of his death act as a party to the tort obligation; the child of the deceased, born after his death, as well as other persons specified in paragraph 1 of Art. 1088 GK.

In a tort obligation, the victim has the right to demand compensation for the harm caused to him, and the person responsible for causing the harm is obliged to satisfy this requirement.

The claim of the victim may be satisfied by the harm tortfeasor voluntarily. If the tortfeasor refuses or evades this requirement, the victim may file a lawsuit in court.

In paragraph 1 of Art. 1064 of the Civil Code establishes the most important principle of tort liability - the principle of full compensation for harm, i.e. reimbursement in full. At the same time, the law provides for some exceptions to this principle, allowing for a decrease or increase in the amount of liability of the tortfeasor.

Reducing the amount of compensation is allowed only in two cases expressly provided for in Art. 1083 GK. Firstly, the amount of compensation should be reduced if the gross negligence of the victim himself (taking into account the degree of guilt of the victim and the tortfeasor) contributed to the occurrence or increase of harm. Secondly, the court can reduce the amount of compensation for harm caused by a citizen, taking into account his property status (except in cases where the harm was caused by actions committed intentionally). At the same time, a subsequent reduction in the amount of compensation for harm is also allowed, taking into account changes in the property status of a citizen. Thus, the court may, at the request of the citizen who caused the harm, reduce this amount if his property status due to disability or reaching retirement age has worsened compared to the situation at the time of awarding compensation for harm. However, this rule is also not subject to application if the harm was caused by intentional actions (paragraph 4 of article 1090 of the Civil Code).

It is also possible to establish by law or contract the obligation of the harm-doer to pay compensation to the victims in excess of compensation for harm (paragraph 3, clause 1, article 1064 of the Civil Code). For example, compensation for non-pecuniary damage, as provided for in paragraph 3 of Art. 1099 of the Civil Code, is carried out regardless of the property damage subject to compensation, i.e. beyond his reimbursement.

Depending on certain circumstances, the amount of compensation for harm may vary. So, the victim has the right to demand an increase in the amount of compensation for harm caused to life or health in the event of a decrease in working capacity (clause 1 of article 1090 of the Civil Code) or in connection with an increase in the cost of living and an increase in the minimum wage (article 1091 of the Civil Code).

Often, harm occurs as a result of not only the actions (or inaction) of the tortfeasor, but also the behavior of the victim himself. From a legal and moral point of view, it is obvious that in such cases the person who caused the harm should not be held liable without taking into account the fault of the victim. So, if the harm arose as a result of the intent of the victim, it is not subject to compensation. In cases where the occurrence or increase in harm was facilitated by the gross negligence of the victim himself, the amount of compensation must be reduced in accordance with the degree of guilt of the victim and the tortfeasor (clause 1, paragraph 1, clause 2, article 1083 of the Civil Code). In case of gross negligence of the victim and the absence of fault of the tortfeasor in cases where his liability arises regardless of fault (in particular, when harm is caused by a source of increased danger), the amount of compensation must be reduced or compensation for harm may be refused, unless otherwise provided by law. However, in the presence of these circumstances, a refusal to compensate for harm caused to the life or health of a citizen is not allowed (paragraph 2, clause 2, article 1083 of the Civil Code).

The law provides for two types of compensation:

▪ compensation in kind (providing an item of the same kind and quality, correcting a damaged item, etc.);

▪ compensation for losses caused.

When recovering the damages caused, not only actual damage is subject to accounting, but also lost profits (Article 1082, clause 2 of Article 15 of the Civil Code).

20.2. Liability for damage caused by public authorities and their officials

According to Art. 53 of the Constitution, everyone has the right to state compensation for damage caused by illegal actions (or inaction) of public authorities or their officials. Along with citizens, legal entities also have this right. Civil legislation also provides for liability for damage caused by the actions (inaction) of local governments and, accordingly, their officials.

Responsibility for harm caused by their bodies or officials in the exercise of power functions shall be borne by public law entities. Harm is compensated at the expense of the treasury of the Russian Federation, a constituent entity of the Russian Federation or a municipality (Article 1069 of the Civil Code). In turn, the treasury is represented by the financial authorities managing it (ministries, departments or departments of finance), unless in accordance with paragraph 3 of Art. 125 of the Civil Code, this obligation is not assigned to another body, legal entity or citizen (Article 1071 of the Civil Code). In this case, both the harm caused to the person and property of a citizen or the property of a legal entity (clause 1 of article 1064 of the Civil Code) and moral harm caused to a citizen (article 151 of the Civil Code) are subject to compensation.

The most important condition for the liability of public authorities and their officials for causing harm is the illegality of their actions (or inaction). Modern legislation resolves the issue of who bears the burden of proof when determining the legality of the actions of the relevant bodies and officials, in favor of the citizen, establishing that in disputable cases, state bodies and other entities endowed with power must prove the legality of their actions. 1 article 249 of the Civil Procedure Code of the Russian Federation). Illegal can be not only the actions of the relevant bodies and their officials, but also their inaction, i.e. failure by them to perform those actions that they were obliged to perform, resulting in harm to a citizen or legal entity.

The law does not contain any other reservations regarding the conditions of liability for harm caused by the above subjects. It follows from this that the general rules of tort liability should apply to it, including the fault of the tortfeasor as a necessary condition for such liability, the existence of which is assumed (paragraph 2 of article 1064 of the Civil Code).

The law specifically regulates liability for harm caused by illegal actions of law enforcement agencies - bodies of inquiry, preliminary investigation, prosecutor's office and court (Article 1070 of the Civil Code). Responsibility for causing harm to a citizen or legal entity by these bodies arises, in particular, in the following cases:

▪ unlawful conviction;

▪ illegal prosecution;

▪ illegal use of detention or recognizance not to leave as a preventive measure;

▪ illegal application of administrative punishment in the form of arrest or suspension of the activities of a legal entity (clause 1 of Article 1070 of the Civil Code).

The harm caused to a citizen or legal entity by these actions shall be compensated at the expense of the treasury of the Russian Federation, and in cases provided for by law, at the expense of the treasury of a constituent entity of the Russian Federation or the treasury of a municipal formation. At the same time, the need to compensate such damage in full (clause 1 of article 1070 of the Civil Code), including compensation to a citizen for moral harm (article 1100 of the Civil Code), is especially emphasized. The peculiarity of the liability in question is that it occurs regardless of the fault of officials of the relevant law enforcement agencies.

According to paragraph 3 of Art. 1084 of the Civil Code of the Russian Federation, a constituent entity of the Russian Federation or a municipality in the event of compensation for harm caused by an official of the bodies of inquiry, preliminary investigation, prosecutor's office or court (clause 1 of article 1070 of the Civil Code), have the right of recourse to this person if his guilt is established by a verdict court that has entered into force.

20.3. Liability for harm caused by minors and incompetent citizens

Minors under the age of 14 are not liable for harm caused to them, i.e. completely indestructible. According to paragraph 1 of Art. 1073 of the Civil Code, responsibility for harm caused to a minor is borne by his parents (adoptive parents) or guardians. These persons are liable for harm if there are general grounds for tort liability. The illegality of their behavior lies in the poor upbringing of the child, in the failure to exercise proper supervision over him, i.e. in the improper performance by them of the duties assigned to them by law (Articles 63, 150 of the Family Code of the Russian Federation). At the same time, both parents are liable for harm, since they are equally obliged to raise children, regardless of whether they live with them or separately.

In order to lay responsibility on parents (adoptive parents) or a guardian, it is necessary to establish the existence of a causal relationship between their illegal behavior and harm, i.e. determine that it was due to poor upbringing, failure to exercise supervision that the child committed an action that caused harm. The law establishes the presumption of guilt of parents (adoptive parents) or a guardian for causing harm to a child under the age of 14: these persons are released from liability if they prove that the harm was not their fault (paragraph 1 of article 1073 of the Civil Code). According to the current legislation, parents deprived of parental rights are not fully exempted from liability for harm caused by minors. They bear such responsibility within three years after the deprivation of their parental rights (Article 1075 of the Civil Code).

The law also establishes liability for harm caused by a minor who is in an appropriate educational, medical institution, institution of social protection of the population or other similar institution, which, by virtue of the law, is his guardian (Article 35 of the Civil Code). Such institutions are responsible for this harm, unless they prove that it arose through no fault of theirs (paragraph 2 of article 1073 of the Civil Code). If a minor caused harm at a time when he was under the supervision of an educational, educational, medical or other institution obliged to supervise him, or of a person exercising supervision on the basis of an agreement, this institution or person is liable for the harm, unless he proves that the harm arose not through his fault in the exercise of supervision (paragraph 3 of article 1073 of the Civil Code).

Minors who have reached the age of 14 are independently liable for the harm caused on a general basis (paragraph 1 of article 1074 of the Civil Code). In this regard, the claim of the victim for compensation for harm must be presented to the minor himself, who must be the defendant in such a claim in court. At the same time, the law takes into account that a minor at the specified age does not always have earnings, income, property sufficient to compensate for the harm caused. Accordingly, in order to ensure the restoration of the violated interests of the victim in such cases, it is envisaged that the harm must be compensated in full or in the missing part by his parents (adoptive parents) or guardian, unless they prove that the harm arose through no fault of theirs, i.e. that they carried out their parental duties properly (paragraph 1, clause 2, article 1074 of the Civil Code). Thus, the responsibility of these persons is additional (subsidiary) in nature.

If a minor aged 14 to 18 who needs care was in an appropriate educational, medical institution, institution of social protection of the population or other similar institution, which by virtue of the law is his guardian (Article 35 of the Civil Code), this institution is obliged to compensate for the harm completely, if he does not prove that the harm arose through no fault of his (paragraph 2, clause 2, article 1074 of the Civil Code).

In accordance with paragraph 3 of Art. 1074 of the Civil Code, the obligation of parents (adoptive parents), a guardian and an appropriate institution to compensate for harm caused by minors aged 14 to 18 years old is terminated in the presence of the following circumstances:

▪ the person causing the harm has reached the age of majority;

▪ if this person, before reaching the age of majority, has income or property sufficient to compensate for the harm;

▪ the acquisition of full legal capacity by a minor (in connection with marriage or emancipation).

A citizen recognized by the court as incompetent on the grounds provided for in Art. 29 of the Civil Code, is completely non-dictatorial. The harm caused by such a citizen shall be compensated by his guardian or an organization obliged to supervise him. These subjects are released from liability if they prove that the harm was not their fault, i.e. that they properly supervised a recognized incompetent person suffering from a mental disorder (clause 1 of article 1076 of the Civil Code). If the guardian has died or does not have sufficient funds to compensate for the harm caused to the life or health of the victim, and the tortfeasor himself has such funds, the court, taking into account the property status of the victim and the tortfeasor, as well as other circumstances, has the right to decide on compensation for harm in full or in part for the account of the tortfeasor himself (clause 3 of article 1076 of the Civil Code).

It should be noted that a citizen, limited in legal capacity due to the abuse of alcohol or drugs, retains the capacity to delict in full and therefore must compensate for the harm caused to him (Article 1077 of the Civil Code).

A capable citizen or a minor aged 14 to 18 who caused harm in such a state when he could not understand the meaning of his actions or control them, is not responsible for the harm caused to him (paragraph 1, clause 1, article 1078 of the Civil Code). This refers to such cases when a person has a temporary inability to be aware of his actions or to manage them, caused by some unexpected factors (strong emotional excitement, short-term exacerbation of the disease, etc.). If the harm was caused by a person who could not understand the meaning of his actions or manage them due to a persistent mental disorder, the obligation to compensate for it may be imposed by the court on his able-bodied spouse, parents, adult children living together with this person who knew about such a mental disorder. the tortfeasor, but did not raise the issue of recognizing him as incapacitated (paragraph 3 of article 1078 of the Civil Code).

The norm of paragraph 2 of Art. 1078 of the Civil Code, according to which the rule on exemption from liability for causing harm does not apply in cases where the tortfeasor himself brought himself into a state in which he could not understand the meaning of his actions or control them, by drinking alcohol, drugs or otherwise .

The obligation to compensate for harm (in whole or in part) may be assigned to the person who caused the harm in such a state, if the harm was caused to the life or health of the victim. At the same time, the court takes into account the property status of the victim and the tortfeasor, as well as other circumstances (paragraph 2, clause 1, article 1078 of the Civil Code).

20.4. Liability for damage caused by a source of increased danger

According to Art. 1079 of the Civil Code, legal entities and citizens whose activities are associated with increased danger to others (use of vehicles, mechanisms, high-voltage electrical energy, atomic energy, explosives, potent poisons, etc.; construction and other related activities and etc.), are obliged to compensate for the harm caused by a source of increased danger, unless they prove that the harm arose as a result of force majeure or the intent of the victim.

The question of the concept of a source of increased danger is controversial. In particular, both in the science of civil law and in judicial practice, activities that create an increased danger to others, or objects of the material world that create such a danger, are considered as this source. In Art. 1079 of the Civil Code, the legislator gives only an approximate list of activities that pose an increased danger to others. Due to the variety of such activities and the constant development of science and technology, increasing their number, this list cannot be exhaustive. The subjects of liability for harm caused by a source of increased danger are the owners of such a source.

The owner of a source of increased danger is understood as a legal entity or citizen who owns a source of increased danger on the basis of the right of ownership, the right of economic management or the right of operational management, or on another legal basis (on the right of lease, by proxy for the right to drive a vehicle, by virtue of the order of the relevant authority on the transfer of a source of increased danger to him, etc.) (paragraph 2, clause 1, article 1079 of the Civil Code).

Two important conclusions follow from this definition. Firstly, according to the current legislation, not only its owner, but also any other title owner of it is recognized as the owner of a source of increased danger. Secondly, the person who directly manages it by virtue of labor relations with the owner of this source (driver, driver, operator, etc.) is not recognized as the owner of a source of increased danger and is not liable for harm to the victim.

As a general rule, persons who jointly caused harm are liable to the victim jointly and severally (part 1 of article 1080 of the Civil Code). Accordingly, the owners of sources of increased danger are jointly and severally liable for the harm caused as a result of the interaction of these sources (collisions of vehicles, etc.) to third parties, on the grounds provided for in paragraph 1 of Art. 1079 of the Civil Code (paragraph 1 of clause 3 of article 1079 of the Civil Code).

The peculiarity of liability for causing harm by a source of increased danger is that this liability arises regardless of the fault of the owner of such a source. There is an exception to this rule. It is expressed in par. 2 p. 3 art. 1079 of the Civil Code, according to which the harm caused as a result of the interaction of sources of increased danger to their owners is compensated on a general basis (Article 1064 of the Civil Code), i.e. considering the guilt of each of them.

The grounds for releasing the owner of a source of increased danger from liability are:

1) force majeure;

2) the intent of the victim;

3) gross negligence of the victim;

5) unlawful taking of a source of increased danger by a third party (clause 1 of Article 1079 of the Civil Code).

The gross negligence of the victim himself can be the basis for both partial and complete exemption from liability for harm caused by a source of increased danger. If the gross negligence of the victim contributed to the occurrence or increase of harm, then, depending on the degree of guilt of the victim and the tortfeasor, the owner of the source of increased danger is subject to partial exemption from liability (paragraph 1, clause 2, article 1083 of the Civil Code). In the absence of the fault of the tortfeasor, the gross negligence of the victim can serve as a basis for both partial and complete release of the owner of the source of increased danger from liability. However, the gross negligence of the victim cannot serve as a basis for the complete exemption from liability of the owner of a source of increased danger, if harm is caused to the life or health of a citizen (paragraph 2, clause 2, article 1079 of the Civil Code).

The guilt of the victim, who was harmed by a source of increased danger, is not taken into account when compensating for additional expenses (clause 1, article 1085 of the Civil Code), when compensating for harm in connection with the death of the breadwinner (article 1089 of the Civil Code), as well as when compensating for burial expenses (article 1094 of the Civil Code). XNUMX GK).

The court may reduce the amount of compensation for harm caused by a citizen-owner of a source of increased danger, taking into account his property status, except in cases where the harm was caused by actions committed intentionally (paragraph 1 of article 1079, paragraph 3 of article 1083 of the Civil Code).

According to paragraph 2 of Art. 1079 of the Civil Code, the owner of a source of increased danger is not liable for the harm caused by this source if he proves that the source has left his possession as a result of unlawful actions of third parties. Responsibility for harm caused by a source of increased danger, in such cases, is borne by persons who unlawfully took possession of the source. If the owner of a source of increased danger is guilty of unlawfully removing this source from his possession (for example, in cases of inadequate security, leaving keys in the ignition of a car, etc.), liability can be assigned both to the owner and to the person who unlawfully took possession of source of increased danger, depending on the degree of their guilt.

20.5. Liability for harm caused to the life or health of a citizen

Harm caused to the life or health of a citizen is expressed in the death of a person or damage to his health (mutilation, other injury, illness). Such harm in all cases cannot be compensated in kind, nor compensated in money. However, when it is caused, the victim usually incurs property losses, since he is temporarily or permanently deprived of the opportunity to receive his previous earnings or other income, is forced to bear additional expenses for treatment, etc. In the event of the death of a citizen, such losses may be incurred by persons close to him, who, as a result, are deprived of a source of maintenance or income. Such losses of the victim or persons close to him are subject to compensation by the tortfeasors within the framework of tort obligations. On these grounds, the victim, in addition, is compensated for the moral damage caused, therefore, causing harm to life or health is, by virtue of the law, one of the grounds for the emergence of tort obligations.

Harm caused to the life or health of a citizen is subject to compensation within the framework of non-contractual obligations and in cases where it is the result of improper performance of the contract (civil law, labor) or the performance of obligations under the contract that is not related to its violation. According to Art. 1084 of the Civil Code, harm caused to the life or health of a citizen in the performance of contractual obligations, as well as in the performance of duties of military service, police service and other relevant duties is compensated according to the general rules on liability for harm caused to life or health, unless the law or the contract provides for more high level of responsibility.

Employees insured in accordance with the legislation on social insurance are entitled to compensation for harm in accordance with the norms of Ch. 59 of the Civil Code in the part exceeding the provision for insurance.

In connection with the infliction of injury or other damage to a citizen's health, compensation is primarily subject to the loss of earnings or other income that the victim had or could definitely have before the damage to his health (paragraph 1 of article 1085 of the Civil Code). When determining the amount of compensation, the earnings or other income that the victim could have had after causing harm to his health may be taken into account.

The peculiarity of the current legislation is that the earnings or income lost by the victim cannot be reduced by the amount of pensions, allowances and other payments assigned to him in connection with an injury or other damage to health, which should not be counted towards compensation for harm. The earnings or income received by the victim after damage to his health (clause 2 of article 1085 of the Civil Code) is not included in the account of such compensation. Thus, at present, guarantees for the protection of the property interests of persons whose health has been harmed have been significantly increased. In addition, the volume and amount of compensation for harm due to the victim may be increased by law or by agreement (paragraph 3 of article 1083 of the Civil Code).

The amount of compensation for the lost earnings (income) of the injured person is determined as a percentage of his average monthly earnings (income) before injury or other damage to health or until he loses his ability to work, corresponding to the degree of loss of the victim's professional ability to work, and in the absence of professional ability to work - the degree of loss of general ability to work ( item 1 of article 1086 of the Civil Code).

According to paragraph 2 of Art. 1086 of the Civil Code, the composition of the lost earnings (income) of the victim includes all types of remuneration for his labor under labor and civil law contracts, both at the place of the main job and part-time, subject to income tax. Income from entrepreneurial activities, as well as royalties, are included in lost earnings, while income from entrepreneurial activities is included on the basis of data from the tax inspectorate. All types of earnings (income) are taken into account in amounts accrued before taxes.

The average monthly earnings (income) of the victim is calculated by dividing the total amount of his earnings (income) for the 12 months of work preceding the damage to health by 12. the total amount of earnings (income) for the actually worked number of months preceding the damage to health, by the number of these months.

In the case when the victim did not work at the time of the injury, the earnings before dismissal or the usual amount of remuneration of an employee of his qualification in the given locality, but in both cases not less than five times the minimum wage (clause 4 of article 1086 of the Civil Code) are taken into account at his request .

As a result of an injury or other damage to health, the victim can receive only a short-term health disorder, in which he must be compensated for his lost earnings or other income for the entire time of illness. However, the result of causing harm to the health of the victim may be a permanent or irreparable loss of his ability to work. In this case, in order to determine the amount of damage to be compensated, it is necessary to establish the degree of loss of professional ability to work, i.e. the degree of decrease in the ability of the victim to work previously performed by him according to his specialty and qualifications.

The degree of loss of professional ability to work (in percent) is determined by the institutions of the State Service for Medical and Social Expertise, which are part of the structure of the social protection bodies of the population (it is directly determined by medical and social expert commissions - MSEC). Depending on the degree of loss of the indicated work capacity established by the examination, the victim is recognized as a disabled person of one of three groups.

If the victim has no professional ability to work, the degree of loss of his general ability to work is taken into account, i.e. ability to perform unskilled work that does not require special knowledge and skills. It is installed in the same way.

The gross negligence of the victim himself, which contributed to the occurrence or increase of harm, is also taken into account (Article 1083 of the Civil Code). In this case, the amount of compensation is reduced in proportion to the degree of guilt of the victim.

In case of harm to the health of a minor (under 14 years of age) who had no earnings or income, the tortfeasor shall reimburse only additional expenses caused by damage to health and moral damage. Upon reaching the age of 14 by a minor victim, as well as when causing harm to a minor aged 14 to 18 years who does not have earnings (income), the tortfeasor is also obliged to compensate for the harm associated with the loss or reduction of his ability to work, based on five times the minimum wage. If at the time of damage to his health, the minor had earnings, then the damage is compensated based on the amount of this earnings, but not less than five times the minimum wage. After the start of labor activity, a minor whose health was previously harmed has the right to demand an increase in the amount of compensation for harm based on the earnings he receives, but not less than the amount of remuneration established for his position, or the earnings of an employee of the same qualification at his place of work (Art. 1087 GK).

In case of damage to the health of a citizen, along with the lost earnings (income), additional expenses incurred due to damage to health are also subject to compensation, including:

▪ for treatment and purchase of medicines;

▪ additional food;

▪ prosthetics;

▪ outside care;

▪ sanatorium-resort treatment;

▪ purchase of special vehicles;

▪ preparation for another profession.

All these additional expenses are reimbursed to the victim if it is established that he needs the appropriate types of assistance and care and is not entitled to receive them free of charge (paragraph 1 of article 1085 of the Civil Code). Such need must be confirmed by the conclusion of a medical and social examination, and in controversial cases it can be established by the court. When determining the amount of compensation for additional expenses, the fault of the victim in the occurrence or increase in harm is not taken into account (paragraph 3, clause 2, article 1083 of the Civil Code).

In addition, the victim has the right to demand monetary compensation for moral damage suffered by him in excess of compensation for property damage caused to him (Article 151, paragraph 3 of Article 1099 of the Civil Code).

The law contains special rules for compensation for harm caused by the death of a breadwinner. According to these rules, in the event of the death of the victim, who was the breadwinner, the following have the right to compensation for harm (paragraph 1 of article 1088 of the Civil Code):

1) disabled persons who were dependents of the deceased or had the right to receive maintenance from him by the day of his death (minor children, men over 60 and women over 55, disabled people);

2) the child of the deceased, born after his death;

3) one of the parents, spouse or other family member of the victim who does not work and is busy caring for the minors (under 14 years of age) who were dependent on the deceased or in need of outside care for children, grandchildren, brothers, sisters (regardless of age). At the same time, in the event of disability due to age or health status during the period of care by the specified person, the latter retains the right to compensation for harm after the end of care;

4) persons who were dependents of the deceased and became disabled within five years after his death.

The harm caused by the death of the breadwinner is compensated within the time limits provided for in paragraph 2 of Art. 1088 of the Civil Code (for minors - up to the age of 18; for full-time students - until graduation, but not more than 23 years; for women over 55 and men over 60 - for life; for disabled people - during the period of disability, etc.). d.).

Persons entitled to compensation for harm in connection with the death of the breadwinner shall be compensated for the harm in the amount of the share of the earnings (income) of the deceased that they received or had the right to receive for their maintenance during his lifetime (minus the share attributable to the deceased himself). When calculating this share, the shares of all persons, including able-bodied persons, who were dependent on this person, as well as persons who, although they were not dependent on him, were entitled to receive maintenance from him, are taken into account. At the same time, the amount of compensation does not include pensions assigned to persons entitled to it both before and after the death of the breadwinner, as well as the earnings they receive, scholarships and other incomes (clause 2 of article 1089 of the Civil Code). The guilt of the victim in causing his death is also not subject to accounting. At the same time, it is allowed to increase the specified amount of compensation by law or by agreement.

The average earnings or other income of the victim is determined according to the same rules as in case of harm to the health of a citizen. However, the composition of the income of the deceased in this case includes the pension, life maintenance and other similar payments received by him during his lifetime (paragraph 1 of article 1089 of the Civil Code).

The amount of compensation may be increased by law or by agreement (paragraph 3 of article 1089 of the Civil Code). In addition, dependents are entitled to compensation for non-pecuniary damage in excess of the established amount of compensation for property damage they have suffered.

Persons responsible for the harm caused by the death of the victim are obliged to reimburse the necessary expenses for burial to the person who incurred these expenses. The burial allowance received by citizens who have incurred these expenses is not directly counted towards compensation for harm (Article 1094 of the Civil Code), however, it is taken into account when determining the composition and amount of those necessary expenses that should have been made at the expense of the person who actually incurred them. In this case, the guilt of the victim is also not subject to accounting.

Compensation for harm caused by a decrease in the ability to work or the death of the victim is made, as a rule, by periodic, monthly payments. If there are valid reasons, the court, taking into account the capabilities of the tortfeasor, may, at the request of a citizen entitled to compensation for harm, award him the due payments in a lump sum, but not more than three years (paragraph 1 of article 1092 of the Civil Code).

Additional costs are reimbursed through the production of lump-sum payments, and such payments can be repeated. It is possible to reimburse such expenses for the future (paragraph 2 of article 1092 of the Civil Code). Amounts for compensation for moral damage and burial expenses are paid once.

The law (paragraphs 1 and 2 of article 1090 of the Civil Code) provides for the possibility of a corresponding change in the amount of compensation for harm caused to health, in cases where the work capacity of the victim has decreased or increased compared to that which he had at the time of awarding compensation for harm. A similar impact on the amount of compensation for this harm can be exerted by a change in the property status of the citizen who caused the harm (clauses 3, 4 of article 1090 of the Civil Code).

The amounts of compensation paid to the victim or his dependents are subject to indexation in case of an increase in the cost of living or a proportional increase in connection with an increase in the minimum wage (Article 1091 of the Civil Code).

The amount of survivor's compensation paid to specific dependents can also be changed through recalculation in the following cases:

▪ the birth of a child after the death of the breadwinner;

▪ appointment or termination of payment of compensation to persons caring for children, grandchildren, brothers and sisters of the deceased breadwinner (clause 3 of Article 1089 of the Civil Code).

In the event of the liquidation of a legal entity duly recognized as liable for harm caused to life or health, the relevant payments must be capitalized (i.e. separated in the total amount for the entire period of expected payments) in order to transfer them to an organization that is obliged to make payments to the victim in the future according to the rules defined by a special law or other legal acts (paragraph 2 of article 1093 of the Civil Code).

Claims for compensation for harm caused to the life or health of citizens shall not be subject to limitation of actions. However, claims filed after the expiration of three years from the moment the right to compensation for such damage arose shall be satisfied for no more than three years preceding the filing of the claim.

The current Civil Code specifically highlights the rules on liability for harm caused as a result of shortcomings in goods, work or services to life, health or property of citizens or property of legal entities (§ 3 Ch. 59).

Topic 21. LIABILITIES DUE TO FLUSH ENRICHMENT

In accordance with paragraph 1 of Art. 1102 of the Civil Code, a person who, without grounds established by law, other legal acts or a transaction, has acquired or saved property (the acquirer) at the expense of another person (the victim), is obliged to return to the latter the unjustly acquired or saved property, except for the cases provided for in Art. 1109 GK.

Obligations from unjust enrichment are traditionally called conditional (from Latin condictio - receiving). The subjects of such obligations are the acquirer (debtor) and the victim (creditor). They can be both citizens and legal entities.

The grounds for the emergence of an obligation from unjust enrichment are the following circumstances:

1) one person acquires or saves property at the expense of another;

2) property is acquired or stored without the grounds provided for by law, other legal acts or the transaction.

Acquisition of property in the case under consideration is a quantitative increment of property or an increase in its value without incurring the corresponding costs by the acquirer.

Saving property means that a person should have spent his funds, but did not spend them either due to the expenses of another person, or as a result of non-payment of the due remuneration to another person.

Unjustified acquisition or saving may result from actions and events.

Actions leading to the unjustified acquisition (saving) of property are varied. They may be the actions of the victim himself (for example, the repeated fulfillment of the fulfilled obligation); actions of third parties (for example, erroneous issuance of a thing that was in storage, not to the bailor, but to another person), actions of the acquirer of property (for example, theft by him of other people's things, defined by generic characteristics). Actions that give rise to obligations out of unjust enrichment may or may not be lawful.

In some cases, the grounds for the emergence of obligations from unjust enrichment may also be events (for example, the transfer of property belonging to the owner of a summer cottage to a neighbor's site as a result of a flood).

For an obligation to arise from unjust enrichment, it is also necessary that the property was acquired or saved unjustly. An acquisition or saving that is not based on a law, other legal act or transaction is considered unjustified.

The acquisition (saving) of property is recognized as unfounded if its legal basis has subsequently disappeared (for example, in connection with the reversal of the execution of an annulled or amended court decision, the recognition of a will as invalid).

The unjust enrichment of one person at the expense of another, regardless of the form in which it occurred, creates between the acquirer and the victim an obligation to compensate the victim for property losses incurred by him.

According to Art. 1104 of the Civil Code, property constituting unjust enrichment of the acquirer must be returned to the victim in kind. If it is impossible to return in kind the unjustly received or saved property, the acquirer must compensate the victim for the actual value of this property at the time of its acquisition, as well as for the losses caused by the subsequent change in the value of the property, if the acquirer did not compensate for its value immediately after he learned about the unjustified enrichment.

A person who unjustifiably temporarily used someone else's property without the intention of acquiring it (for example, illegally used official property for personal purposes) or other people's services must compensate the victim for what he saved as a result of such use, at the price that existed at the time when the use ended, and in the place where it took place (Article 1105 of the Civil Code).

The norms on unjust enrichment are applied only when the acquirer has things that are determined by generic characteristics. With regard to individually defined things, the rules on the recovery of property from someone else's illegal possession should be applied (Articles 301 - 303, 305 of the Civil Code). In such cases, not a conditional, but a vindication claim should be presented.

In obligations from unjust enrichment, the acquirer also has the obligation to compensate the victim for lost income. Interest on the amount of unjust monetary enrichment is subject to accrual of interest for the use of other people's funds (Article 395 of the Civil Code) from the time when the acquirer found out or should have known about the unreasonableness of receiving or saving money (Article 1107 of the Civil Code).

In accordance with Art. 1109 of the Civil Code are not subject to return as unjust enrichment:

▪ property transferred to fulfill an obligation before the due date, unless the obligation provides otherwise;

▪ property transferred to fulfill an obligation after the expiration of the limitation period;

▪ wages and payments equivalent to them, pensions, benefits, scholarships, compensation for harm caused to life or health, alimony and other sums of money provided to a citizen as a means of subsistence, in the absence of dishonesty on his part and an accounting error;

▪ sums of money and other property provided in fulfillment of a non-existent obligation, if the acquirer proves that the person demanding the return of the property knew about the absence of an obligation or provided the property for charitable purposes.

II. INHERITANCE LAW

Topic 22. INSTITUTE OF INHERITANCE LAW

22.1. General Provisions on Inheritance

Inheritance is understood as the transfer of property and some personal non-property rights and obligations of a deceased citizen (testator) to other persons (heirs) in the manner prescribed by law.

Upon inheritance, the property of the deceased passes to other persons in the order of universal succession. This means, firstly, that the property passes unchanged as a whole, and secondly, that it passes to the heirs at the same time (paragraph 1 of article 1110 of the Civil Code). Accordingly, it is impossible in the order of inheritance to accept some rights, and to refuse others. That is why the heir, who has accepted some separate right, is considered to have automatically accepted all the other rights of the deceased, known and unknown to him.

It is necessary to distinguish between the right of inheritance in the objective and subjective sense. In an objective sense, it is a set of rules governing relations regarding the transfer of the rights and obligations of a deceased citizen to other persons. It is in this capacity that inheritance law acts as a legal institution that is part of civil law. In a subjective sense, the right to inherit means the right of a person to be called to inherit, as well as his powers after accepting the inheritance.

According to Art. 1112 of the Civil Code, the composition of the inheritance includes things belonging to the testator on the day the inheritance was opened, other property, including property rights and obligations.

During inheritance, not only the rights, but also the obligations of the testator, and, consequently, his debts, pass to the heirs. However, the heir who has accepted the inheritance bears limited liability for the debts of the testator: he is liable only to the extent of the value of the inherited property that has passed to him (paragraph 2, clause 1, article 1175 of the Civil Code).

The opening of an inheritance is the emergence of a hereditary legal relationship. The legal facts, or grounds leading to the opening of an inheritance, are the death of a citizen and the declaration by the court of a citizen as dead (Article 1113 of the Civil Code). The opening of an inheritance always takes place at a certain time and in a certain place, which has a very important legal significance.

The time of opening the inheritance is the day of death of the testator, and when declaring him dead, the day when the court decision on declaring this citizen dead comes into force. In the case when, in accordance with paragraph 3 of Art. 45 of the Civil Code, the day of death of a citizen is recognized as the day of his alleged death, the time of opening the inheritance is the day of death indicated in the court decision (paragraph 1 of article 1114 of the Civil Code). Citizens who die on the same day are considered, for the purposes of hereditary succession, to have died at the same time and do not inherit from each other. At the same time, the heirs of each of them are called to inherit (paragraph 2 of article 1113 of the Civil Code).

The place of opening of the inheritance is the last place of residence of the testator, determined according to the rules of Art. 20 GK. If the last place of residence of the testator who owned property on the territory of the Russian Federation is unknown or is located outside its borders, the place of opening of the inheritance in the Russian Federation is the location of such inherited property. If the latter is located in different places, the place of opening of the inheritance is the location of the immovable property or the most valuable part of this property included in it, and in the absence of immovable property - the location of the movable property or its most valuable part. The value of property is determined based on its market value (Article 1115 of the Civil Code).

The subjects of hereditary succession are the testator and heirs. The testator is a person whose rights and obligations after his death are transferred to other persons (heirs). Russian and foreign citizens, as well as stateless persons residing on the territory of the Russian Federation, can be testators. Legal entities cannot leave inheritances. Heirs - the persons specified in the will or the law as legal successors of the testator. Any subject of civil law can inherit: a citizen, a legal entity, a public legal entity. Citizens and the state (Russian Federation) can be heirs both by law and by will. Legal entities, subjects of the Russian Federation, municipalities, foreign states and international organizations can act as heirs only if a will is drawn up in their favor.

Citizens who are alive on the day of the opening of the inheritance, as well as those conceived during the life of the testator and born alive after the opening of the inheritance (paragraph 1, clause 1, article 1116 of the Civil Code) can be called to inherit both by law and by will.

The law deprives unworthy heirs of the right to receive an inheritance (Article 1117 of the Civil Code). So, citizens do not inherit either by law or by will, who, by their deliberate illegal actions directed against the testator, one of his heirs or against the implementation of the last will of the testator, expressed in the will, contributed or tried to contribute to the calling of themselves or other persons to inheritance or contributed or tried to contribute to an increase in the share of the inheritance due to them or other persons, if these circumstances are confirmed in court. However, citizens to whom the testator bequeathed property after their loss of the right to inherit, have the right to inherit this property.

Parents do not inherit by law after children in respect of whom they were deprived of parental rights in a judicial proceeding and were not restored in these rights by the day the inheritance was opened.

At the request of the interested person, the court may remove from inheritance under the law citizens who maliciously evaded the fulfillment of their obligations under the law to support the testator.

The above rules also apply to heirs who have the right to a mandatory share in the inheritance. They also apply to a legacy (Article 1137 of the Civil Code).

Legal entities can be heirs only by will. In addition, they can receive property from heirs who have renounced the inheritance specifically in favor of a legal entity. The legal entities indicated in it, existing on the day of the opening of the inheritance (paragraph 2, clause 1, article 1116 of the Civil Code), may be called upon to inherit by will.

Inherited property passes to the state if it is bequeathed to it, and also if this property is escheated. Cases of recognition of property as escheat are determined by law (clause 1 of article 1151 of the Civil Code). The Russian Federation acts as the subject of the right to inherit bequeathed to the state and escheated property. However, in the future, it is possible to transfer the property received by way of inheritance into the ownership of subjects of the Russian Federation or municipalities (clause 3 of article 1151 of the Civil Code).

22.2. testamentary succession

According to the norm of paragraph 1 of Art. 1111 of the Civil Code, inheritance can be carried out both by will and by law. At present, priority is given to inheritance by will, since it is more in line with the conditions of a market economy, which implies maximum freedom for citizens to dispose of their property rights.

A will is a personal order of a citizen in the event of death, which determines the further ownership of his property, made in the form prescribed by law. A will is the only acceptable form of disposing of property in case of death (clause 1, article 1118 of the Civil Code). By its legal nature, it is a unilateral transaction that creates rights and obligations after the opening of the inheritance (paragraph 5 of article 1118 of the Civil Code). A will must be an expression of the personal will of the testator, since it is directly related to his personality. Making a will through a representative is not allowed. A will may contain the orders of only one citizen. Making a will by two or more citizens is not allowed (clauses 3 and 4 of article 1118 of the Civil Code). A will can only be made by a citizen who at the time of its making has full legal capacity (paragraph 2 of article 1118 of the Civil Code).

The law establishes the freedom of will. According to Art. 1119 of the Civil Code, the testator has the right, at his discretion, to bequeath property to any persons, to determine the shares of heirs in the inheritance in any way, to deprive one, several or all heirs of the inheritance by law, without indicating the reasons for such deprivation, and in cases provided for by the Civil Code, to include other orders in the will. The testator has the right to cancel or change the perfect will in accordance with the rules of Art. 1130 GK. The freedom of will is limited only by the rules on the mandatory share in the inheritance (Article 1149 of the Civil Code).

The testator is not obliged to inform anyone about the content, execution, modification or cancellation of the will.

The testator has the right to make a will containing an order for any property, including that which he may acquire in the future. The testator can dispose of his property or part of it by making one or more wills (Article 1120 of the Civil Code).

The testator may make a will in favor of one or more persons, both included and not included in the circle of heirs by law. The law also provides for the possibility of sub-appointing an heir, i.e. instructions in the will of another heir by the testator in case the heir appointed by him in the will or the heir of the testator by law does not accept the inheritance for any reason or refuses it, and also if he does not receive the inheritance as an unworthy heir (Article 1121 of the Civil Code).

As a general rule, a will must be made in a notarial form. At the same time, a will can be certified both by a notary and by persons who, in appropriate cases, have been granted the right to perform notarial acts: officials of local governments and officials of consular institutions of the Russian Federation (paragraph 1, clause 1, article 1124, clause 7, article 1125 GK).

Wills of certain categories of citizens (who are being treated in medical institutions, on ships during navigation, etc.) certified by the persons specified in paragraph 1 of Art. 1127 GK.

Very important for the validity of the will is the observance of the rules for its execution, which is currently regulated in detail by the Civil Code.

A notarized will must be written by the testator or recorded from his words by a notary. When writing or recording a will, technical means (electronic computer, typewriter, etc.) may be used.

A will written by a notary from the words of the testator, before signing it, must be fully read by the testator in the presence of a notary. If the testator is not able to personally read the will, its text is read out for him by a notary, about which an appropriate inscription is made on the will indicating the reasons why the testator could not personally read the will.

The will must be personally signed by the testator. If the testator, due to physical disabilities, serious illness or illiteracy, cannot sign the will with his own hand, it can be signed by another citizen (applicant) at his request in the presence of a notary.

In accordance with the norms of the Civil Code, a witness may be present at the time of drawing up and notarial certification of a will, at the will of the testator. The law (clause 2 of article 1124 of the Civil Code) defines the circle of persons who cannot be witnesses and cannot sign a will instead of a testator.

The law establishes the obligatory observance of the secrecy of the will (Article 1123 of the Civil Code).

When certifying a will, the notary is obliged to explain to the testator the norms on the right to an obligatory share in the inheritance (Article 1149 of the Civil Code) and make an inscription about this on the will (Article 1125 of the Civil Code). The place and date of its certification must be indicated on the will, except for the case provided for by Art. 1126 of the Civil Code (clause 4 of article 1124 of the Civil Code).

For the first time, the current legislation provides for the possibility of drawing up a closed will. The procedure for making and announcing a closed will is regulated in detail by Art. 1126 GK.

The rights to funds deposited by a citizen or held on any other account of a citizen in a bank can be bequeathed by a citizen in a general manner (Articles 1124 - 1127 of the Civil Code) or by making a testamentary disposition in writing in the branch of the bank where the this account. Since, unlike the previous legislation, in the new Civil Code the disposition in question is recognized as testamentary, the rights to the funds in respect of which it was made are part of the inheritance and are inherited on a general basis. These funds are issued to heirs on the basis of a certificate of the right to inheritance and in accordance with it, with the exception of cases provided for in paragraph 3 of Art. 1174 GK.

Failure to comply with the rules established by the Civil Code on the written form of a will and its certification entails the invalidity of the will (paragraph 2, clause 1, article 1124 of the Civil Code).

For the first time, the current civil legislation establishes rules on wills in emergency circumstances. According to Art. 1129 of the Civil Code, a citizen who is in a situation that clearly threatens his life, and due to the prevailing emergency circumstances, is deprived of the opportunity to make a will in accordance with the norms of Art. 1124 - 1128 of the Civil Code, may express his last will regarding his property in a simple written form. Such a statement of the last will by a citizen is recognized as his will, if the testator personally wrote and signed a document, from the content of which it follows that it is a will, in the presence of two witnesses. A will made in these circumstances becomes invalid if the testator, within a month after the termination of these circumstances, does not take advantage of the opportunity to make a will in any other form provided for in Art. 1124 - 1128 GK.

A will made in extraordinary circumstances in accordance with Art. 1129 of the Civil Code, is subject to execution only if the court confirms, at the request of the interested parties, the fact that the will was made in emergency circumstances in the manner of special proceedings. The specified requirement must be declared before the expiration of the period established for the acceptance of the inheritance.

The current legislation provides for the possibility for the testator to establish at his disposal the property in the event of death of a testamentary refusal, i.e. the imposition on one or more heirs by will or by law of the execution at the expense of the inheritance of any obligation of a property nature in favor of one or several persons (legatees) who acquire the right to demand the fulfillment of this obligation. A testamentary refusal must be established directly in the will. In this case, the content of the will may be exhausted by a testamentary refusal.

In accordance with the conditions of a testamentary refusal, the testator may be obliged to transfer to the legatee the property or use of the thing that is part of the inheritance, to acquire for the legatee and transfer to him other property, to perform certain work for him or provide him with a specific service, etc.

The right to receive a testamentary refusal is valid for three years from the date of opening of the inheritance and does not pass to other persons. However, the law provides for the possibility of sub-appointment of the legatee (Article 1137 of the Civil Code).

The beneficiary has the right to refuse to receive a testamentary refusal. At the same time, a refusal in favor of another person, a refusal with reservations or under a condition is not allowed. In the case when the legatee is at the same time the heir, his right to this refusal does not depend on his right to accept the inheritance or refuse it (Article 1160 of the Civil Code).

From testamentary refusal it is necessary to distinguish testamentary assignment (Article 1139 of the Civil Code). The latter is the imposition on the heir by will or by law of the commission of any action of a property or non-property nature, aimed at the implementation of a generally useful goal. The same obligation may be imposed on the executor of the will, provided that a part of the estate property is allocated in the will for the execution of the testamentary assignment. New for our legislation is the rule according to which the testator has the right to impose on one or several heirs the obligation to maintain domestic animals belonging to the testator, as well as to exercise the necessary supervision and care for them.

The execution of the will is carried out by the heirs under the will, with the exception of cases when its execution in full or in a certain part is carried out by the executor of the will (Article 1133 of the Civil Code). In accordance with Art. 1134 of the Civil Code, the testator may entrust the execution of the will to the citizen-executor (executor of the will) indicated by him in the will, regardless of whether this citizen is an heir. The executor of a will has the right to compensation from the inheritance for the necessary expenses associated with the execution of the will, as well as to receive remuneration from the inheritance in excess of the expenses, if this is provided for by the will.

22.3. Inheritance by law

The current Civil Code has significantly expanded the circle of legal heirs. Currently, eight lines of heirs have been established (Articles 1142-1145 of the Civil Code).

Legal heirs are called to inherit in the following order:

1) children, spouse and parents of the testator;

2) full and half brothers and sisters of the testator, his grandfather and grandmother both on the father's side and on the mother's side;

3) full and half brothers and sisters of the testator's parents (uncles and aunts of the testator);

4) relatives of the third degree of kinship (the degree of kinship is determined by the number of births separating relatives of one from another, and the birth of the testator is not included in this number) - the great-grandfather and great-grandmother of the testator;

5) relatives of the fourth degree of kinship - children of the natural nephews and nieces of the testator (cousins ​​and granddaughters) and siblings of his grandparents (cousin grandparents);

6) relatives of the fifth degree of kinship - children of cousin grandsons and granddaughters of the testator (cousin great grandchildren and great granddaughters), children of his cousins ​​(cousin nephews and nieces) and children of his great grandparents (cousin uncles and aunts);

7) stepchildren, stepdaughters, stepfather and stepmother of the testator;

8) disabled dependents of the testator in the absence of other legal heirs.

According to paragraph 2 of Art. 1141 of the Civil Code, heirs of the same order inherit in equal shares, with the exception of heirs who inherit by right of representation (Article 1146 of the Civil Code).

If the surviving spouse is called to inherit together with other heirs, then first the size of his share in the property jointly acquired during the marriage is determined, and then the remaining part of the property is divided among the heirs according to the law, which includes the surviving spouse (Article 1150 of the Civil Code).

The law provides for the possibility of inheritance by right of representation. According to Art. 1146 of the Civil Code, the share of the heir by law, who died before the opening of the inheritance or simultaneously with the testator, passes by right of representation to his respective descendants ("representatives" of this person) in cases where the deceased heir belonged to the heirs of any of the first three stages.

The descendants of the heir by law, deprived of the inheritance by the testator (clause 1 of article 1119 of the Civil Code), as well as the descendants of the heir who died before the opening of the inheritance or simultaneously with the testator and who would not have the right to inherit as an unworthy heir (clause 1 of article 1117 of the Civil Code), do not inherit by right of representation. XNUMX article XNUMX of the Civil Code).

Citizens belonging to the heirs according to the law of the second - seventh stages, disabled by the day of the opening of the inheritance, but not included in the circle of heirs of the line called for inheritance, inherit by law together and on an equal footing with the heirs of this line, if at least a year before the death of the testator were dependent on him, regardless of whether they lived together with the testator or not. As disabled dependents of the testator, citizens who are not included in the circle of heirs according to the law, but on the additional condition that they lived together with the testator, also inherit. In the absence of other legal heirs, disabled dependents of the testator who are not related to such heirs inherit independently as heirs of the eighth stage (Article 1148 of the Civil Code).

The law (Article 1149 of the Civil Code) traditionally establishes the right to a mandatory share in the inheritance for persons whose interests are most in need of protection during inheritance. Minor or disabled children of the testator, his disabled spouse and parents, as well as disabled dependents of the testator who are subject to the call to inherit, have this right. These persons inherit, regardless of the content of the will, at least half of the share that would be due to each of them in the event of inheritance by law.

If the exercise of the right to an obligatory share in the inheritance entails the impossibility of transferring to the heir under the will the property that the heir having the right to the obligatory share did not use during the life of the testator, but the heir under the will used for living (a residential building, apartment, other residential premises, dacha, etc.) or used as the main source of livelihood (tools, creative workshop, etc.), the court may, taking into account the property status of the heirs who are entitled to a mandatory share, reduce its size or refuse to its award (Article 1149 of the Civil Code).

22.4. Acquisition of an inheritance

In accordance with paragraph 1 of Art. 1152 of the Civil Code, in order to acquire an inheritance, the heir must accept it. Acceptance of an inheritance is not required only for the acquisition of escheated property.

The acceptance of an inheritance is a unilateral transaction made by the heir. The peculiarity of this transaction is that it is given retroactive effect. According to paragraph 4 of Art. 1152 of the Civil Code, the accepted inheritance is recognized as belonging to the heir from the day the inheritance was opened, regardless of the time of its actual acceptance, and also regardless of the moment of state registration of the heir's right to inherited property, when such a right is subject to state registration.

Since the property of the deceased passes to the heirs as a whole (paragraph 1 of article 1110 of the Civil Code), the acceptance by the heir of a part of the inheritance means the acceptance of the entire inheritance due to him, no matter what it is and wherever it is located. At the same time, the acceptance of an inheritance by one or more heirs does not mean its acceptance by the other heirs (paragraph 1, clause 2 and clause 3, article 1152 of the Civil Code). The law does not allow the acceptance of an inheritance under a condition or with reservations (paragraph 3, clause 2, article 1152 of the Civil Code).

Inheritance can be accepted in two ways:

1) by submitting an application by the heir to a notary or authorized in accordance with the law to issue certificates of the right to inheritance to an official;

2) by actual acceptance of the inheritance.

In the first case, the heir submits to the notary or the above-mentioned official at the place of opening of the inheritance an application for acceptance of the inheritance or for the issuance of a certificate of the right to inheritance.

In the second case, it is recognized, until proven otherwise, that the heir has accepted the inheritance if he has committed actions indicating the actual acceptance of the inheritance, in particular, if the heir:

▪ took possession or management of inherited property;

▪ took measures to preserve the inherited property, protect it from encroachments or claims of third parties;

▪ incurred expenses for the maintenance of the inherited property at his own expense;

▪ paid the debts of the testator at his own expense or received funds due to the testator from third parties (clause 2 of Article 1153 of the Civil Code).

The inheritance can be accepted by the above methods within six months from the date of its opening.

If the right to inherit arises for other persons as a result of the heirs' refusal from the inheritance or the removal of the heir from participation in the inheritance as unworthy (Article 1117 of the Civil Code), such persons may accept the inheritance within six months from the date they have the right to inherit.

Persons for whom the right to inherit arises only as a result of non-acceptance of the inheritance by another heir may accept the inheritance within three months from the date of the end of the general period for accepting the inheritance (Article 1154 of the Civil Code).

At the request of the heir who has missed the deadline set for accepting the inheritance, the court may restore this deadline and recognize the heir as having accepted the inheritance, if the heir did not know and should not have known about the opening of the inheritance or missed this deadline for other valid reasons and provided that the heir, missed the deadline for accepting the inheritance, applied to the court within six months after the reasons for missing this deadline have disappeared. At the same time, the shares of all heirs are determined anew, and previously issued certificates of the right to inheritance are recognized by the court as invalid (clause 1 of article 1155 of the Civil Code).

The inheritance can be accepted by the heir after the expiration of the period established for its acceptance, without going to court, subject to the written consent of all the other heirs who accepted the inheritance (clause 2 of article 1155 of the Civil Code).

If an heir called to inherit by will or by law dies after the opening of the inheritance, without having time to accept it within the prescribed period, the right to inherit the inheritance due to him passes to his heirs by law, and if all the inheritance property was bequeathed - to his heirs by testament (hereditary transmission). The right to accept an inheritance in the order of hereditary transmission is not included in the composition of the inheritance opened after the death of such an heir.

The right to accept an inheritance that belonged to a deceased heir may be exercised by his heirs on a general basis. Moreover, if the part of the period established for accepting the inheritance remaining after the death of the heir is less than three months, it is extended to three months. The right of the heir to accept part of the inheritance as a mandatory share (Article 1149 of the Civil Code) does not pass to his heirs (Article 1156 of the Civil Code).

According to Art. 1157 of the Civil Code, the heir has the right to refuse the inheritance in favor of other persons (Article 1158 of the Civil Code) or without specifying the person in whose favor he refuses the inheritance property. The renunciation of an inheritance is a one-sided transaction. When inheriting escheated property, it is not allowed.

The heir has the right to refuse the inheritance within the period established for the acceptance of the inheritance (Article 1154 of the Civil Code), including in the case when he has already accepted the inheritance. If the heir has committed actions indicating the actual acceptance of the inheritance (paragraph 2 of article 1153 of the Civil Code), the court may, at the request of this heir, recognize him as having renounced the inheritance even after the expiration of the established period, if he finds the reasons for missing the deadline valid. The renunciation of the inheritance cannot be subsequently changed or taken back. Refusal of an inheritance in the case when the heir is a minor, incapacitated or partially capable citizen, is allowed with the prior permission of the guardianship and guardianship authority.

The heir has the right to refuse the inheritance in favor of other persons from among the heirs by will or heirs by law of any order, not deprived of inheritance (clause 1 of article 1119 of the Civil Code), including in favor of those who are called to inherit by right of representation or in order of hereditary transmission (Article 1156 of the Civil Code). Refusal of inheritance in favor of any other persons is not allowed.

Renunciation of inheritance in favor of any of the following persons is not allowed:

▪ from property inherited under a will, if all of the testator’s property is bequeathed to his appointed heirs;

▪ from the obligatory share in the inheritance (Article 1149 of the Civil Code);

▪ if the heir is assigned an heir (Article 1121 of the Civil Code).

Renunciation of an inheritance with reservations or under conditions is not allowed.

Refusal of part of the inheritance due to the heir is not allowed. However, if the heir is called to inherit simultaneously on several grounds (by will and by law or by way of hereditary transmission and as a result of the opening of an inheritance, etc.), he has the right to refuse the inheritance due to him on one of these grounds, on several of them or on all grounds (Article 1158 of the Civil Code).

The law regulates the increment of hereditary shares. According to Art. 1161 of the Civil Code, if the heir does not accept the inheritance, renounces the inheritance, without indicating that he refuses in favor of another heir (Article 1158 of the Civil Code), will not have the right to inherit or will be removed from inheritance on the grounds established by Art. 1117 of the Civil Code, or as a result of the invalidity of the will, the part of the inheritance that would be due to such a fallen heir passes to the heirs according to the law, called to inherit, in proportion to their inheritance shares.

In the event that the testator bequeathed all the property to the heirs appointed by him, the part of the inheritance due to the heir who renounced the inheritance or who fell away on other specified grounds passes to the rest of the heirs by will. However, the will may provide for a different distribution of this part of the inheritance.

The above rules do not apply if an heir was assigned to the fallen heir (clause 2 of article 1121 of the Civil Code).

A certificate of the right to inheritance is issued at the place of opening of the inheritance by a notary or an authorized official. The certificate is issued at the request of the heir. At the request of the heirs, a certificate may be issued to all heirs together or to each heir separately, for the entire estate as a whole or for its separate parts. In the event that after the issuance of a certificate of the right to inheritance of hereditary property for which such a certificate has not been issued, an additional certificate of the right to inheritance is issued (Article 1162 of the Civil Code).

In accordance with Art. 1163 of the Civil Code, when inheriting both by law and by will, a certificate of the right to inheritance can be issued before the expiration of six months from the date of opening of the inheritance, if there is reliable evidence that, in addition to the persons who applied for the issuance of a certificate, other heirs who have the right on the inheritance or its corresponding part, is not available. The issuance of a certificate of the right to inheritance is suspended by a court decision, as well as in the presence of a conceived but not yet born heir.

When inheriting by law, if the hereditary property passes to two or more heirs, and when inheriting by will, if it is bequeathed to two or more heirs without specifying the specific property inherited by each of them, the hereditary property comes from the day the inheritance is opened into the common shared property of the heirs ( part 1 of article 1163 of the Civil Code).

Inheritance property, which is in the common shared ownership of two or more heirs, may be divided by agreement between them. The rules of the Civil Code on the form of transactions and the form of contracts (clause 1 of article 1165 of the Civil Code) apply to the agreement on the division of the inheritance.

The heir, who, together with the testator, had the right of common ownership of an indivisible thing (Article 133 of the Civil Code), a share in the right to which is part of the inheritance, has, when dividing the inheritance, the priority right to receive, on account of his hereditary share, the thing that was in common ownership, before heirs who were not previously participants in common property, regardless of whether they used this thing or not.

An heir who constantly used an indivisible thing that is part of the inheritance also has, when dividing the inheritance, a priority right to receive this thing on account of his inheritance share over heirs who did not use this thing and were not previously participants in common ownership of it.

If the inheritance includes a dwelling (residential house, apartment, etc.), the division of which is impossible in kind, the heirs who lived in this dwelling by the date of opening of the inheritance have the priority right to receive this dwelling in accordance with their shares having no other living quarters (Article 1168 of the Civil Code).

According to Art. 1169 of the Civil Code, the heir, who lived on the day of the opening of the inheritance together with the testator, has, when dividing the inheritance, the pre-emptive right to receive items of ordinary home furnishings and household items at the expense of his hereditary share.

The disproportion of the inherited property, the preferential right to receive which the heir has in ownership, with his inheritance share is eliminated by the transfer by this heir to the rest of the heirs of other property from the inheritance or the provision of other compensation, including the payment of the appropriate amount of money (paragraph 1 of article 1170 of the Civil Code) .

The above rules of art. 1168 - 1170 of the Civil Code are applied within three years from the date of opening of the inheritance (part 2 of article 1164 of the Civil Code).

To protect the rights of heirs, legatees and other interested parties, the executor of the will or the notary at the place of opening of the inheritance takes the necessary measures to protect the inheritance and manage it (Article 1172 of the Civil Code). The notary takes measures for the protection of the inheritance and its management at the request of one or more heirs, the executor of the will, the local self-government body, the body of guardianship and trusteeship or other persons acting in the interests of preserving the inheritance property. In the case when the executor of the will is appointed, the notary takes measures to protect the inheritance and manage it in agreement with the executor of the will. The executor of the will takes measures to protect the inheritance and manage it independently or at the request of one or more heirs (Article 1171 of the Civil Code).

According to Art. 1173 of the Civil Code in cases where the inheritance contains property that requires not only protection, but also management (an enterprise, a share in the authorized (share) capital of a business partnership or company, securities, exclusive rights, etc.), a notary in accordance from Art. 1026 of the Civil Code concludes an agreement on trust management of this property as the founder of such management. If inheritance is carried out under a will in which the executor of the will is appointed, the rights of the founder of trust management belong to the executor of the will.

Necessary expenses caused by the dying illness of the testator, expenses for his dignified funeral, including the necessary expenses for paying for the place of burial of the testator, expenses for the protection of the inheritance and management of it, as well as expenses related to the execution of the will, are reimbursed from the inheritance to the extent of its value. Claims for reimbursement of these expenses may be presented to the heirs who accepted the inheritance, and before the acceptance of the inheritance - to the executor of the will or to the estate property. Such expenses shall be compensated before the payment of debts to the creditors of the testator and within the limits of the value of the inherited property transferred to each of the heirs. At the same time, the law establishes three stages of reimbursement of these expenses:

1) expenses caused by the illness and funeral of the bequeather;

2) expenses for the protection of the inheritance and its management;

3) expenses related to the execution of the will.

To cover the costs of a decent funeral of the testator, any funds belonging to him, including deposits or bank accounts, can be used. Banks in whose deposits or accounts the testator's funds are located are obliged, by a notary's decision, to provide them to the person specified in this decision to pay for such expenses. The heir to whom the funds deposited or held on any other accounts of the testator in banks, including in the case when they were bequeathed by testamentary disposition in a bank (Article 1128 of the Civil Code), are bequeathed, have the right at any time before the expiration of six months from on the day of the opening of the inheritance, to receive from the deposit or from the account of the testator the funds necessary for his funeral. However, in all cases, the amount of funds issued by the bank for the funeral of the testator cannot exceed 200 minimum wages established by law on the day of applying for these funds (Article 1174 of the Civil Code).

In accordance with Art. 1175 of the Civil Code, the heirs who have accepted the inheritance are jointly and severally liable for the debts of the testator (Article 323 of the Civil Code). At the same time, each of them is liable for the debts of the testator only within the limits of the value of the inherited property that has passed to him. Prior to the acceptance of an inheritance, creditors' claims may be brought against the executor of the will or against the estate. In the latter case, the court suspends the consideration of the case until the inheritance is accepted by the heirs or the escheated property is transferred by way of inheritance to the Russian Federation. When claims are presented by the testator's creditors, a special rule applies, according to which the limitation period established for the relevant claims is not subject to interruption, suspension and restoration.

The current legislation (Chapter 65 of the Civil Code) contains rules relating to the inheritance of certain types of property. These types of property are (Articles 1176 - 1185 of the Civil Code):

▪ rights related to participation in business partnerships and societies, production cooperatives;

▪ rights related to participation in a consumer cooperative;

▪ enterprise;

▪ property of a member of a peasant (farm) enterprise;

▪ items limited in circulation;

▪ land plot;

▪ unpaid amounts provided to a citizen as a means of subsistence;

▪ property provided to the testator by the state or municipality on preferential terms;

▪ state awards, honorary and memorable signs.

III. INTELLECTUAL PROPERTY RIGHT

Topic 23. RIGHTS TO THE RESULTS OF INTELLECTUAL ACTIVITIES AND MEANS OF INDIVIDUALIZATION: GENERAL

After a lengthy preparation of the project and serious disputes regarding the admissibility of including in the Civil Code a set of norms governing copyright relations and of both a civil law and administrative law nature, the legislator adopted Part Four of the Civil Code of the Russian Federation, which includes Sec. VII (Ch. 69 - 77) and comes into force on January 1, 2008.

For the first time in the fourth part of the Civil Code, general provisions relating to the rights to the results of intellectual activity and equated means of individualization of legal entities, goods, works and services are highlighted. In ch. 69 of the Civil Code provides a list of objects constituting intellectual property. In accordance with Art. 1225 of the Civil Code, the results of intellectual activity and equated means of individualization of legal entities, goods, works, services and enterprises that are granted legal protection (intellectual property) are:

1) works of science, literature and art;

2) programs for electronic computers (computer programs);

3) databases;

4) performance;

5) phonograms;

6) communication on the air or by cable of radio or television programs (broadcasting of on-air or cable broadcasting organizations);

7) inventions;

8) utility models;

9) industrial designs;

10) selection achievements;

11) topology of integrated circuits;

12) production secrets (know-how);

13) trade names;

14) trademarks and service marks;

15) names of places of origin of goods;

16) commercial designations.

Such results of intellectual activity as inventions, utility models and industrial designs are sometimes referred to as industrial property. The legislator introduced a new concept of "intellectual rights", which refers to the rights to the above objects, which include an exclusive right, which is a property right, and in cases provided for by the Civil Code, also personal non-property rights and other rights (the right to follow, the right to access and etc.) (Article 1226 of the Civil Code).

As stated in Art. 1227 of the Civil Code, intellectual rights do not depend on the ownership of the material carrier (thing) in which the corresponding result of intellectual activity or means of individualization is expressed. The author of the result of intellectual activity is recognized as a citizen whose creative work created such a result. The author of the result of intellectual activity has the right of authorship, and in cases provided for by the Civil Code, the right to a name and other personal non-property rights. These rights are inalienable and non-transferable. Waiver of these rights is void. Authorship and the name of the author are protected indefinitely. After the death of the author, the protection of his authorship and name can be carried out by any interested person, with the exception of cases provided for in paragraph 2 of Art. 1267 and paragraph 2 of Art. 1316 GK.

The exclusive right to the result of intellectual activity created by creative work initially arises from its author. This right may be transferred by the author to another person under an agreement, and may also be transferred to other persons on other grounds established by law. The rights to the result of intellectual activity created by the joint creative work of two or more citizens (co-authorship) belong to the co-authors jointly (Article 1228 of the Civil Code).

A citizen or legal entity may own the exclusive right to the result of intellectual activity or means of individualization. Such a name of this right is due to the fact that no one has the right to use the result of intellectual activity or a means of individualization without the consent of its owner. According to Art. 1229 of the Civil Code, the specified subject (copyright holder) has the right to use such a result or such a means at its own discretion in any way that does not contradict the law. The right holder may dispose of the exclusive right to the result of intellectual activity or to a means of individualization (Article 1233 of the Civil Code), unless otherwise provided by the said Code.

The right holder may, at its discretion, allow or prohibit other persons from using the result of intellectual activity or means of individualization. The absence of a prohibition is not considered consent (permission). Other persons cannot use the corresponding result of intellectual activity or means of individualization without the consent of the right holder, except as provided for by the Civil Code.

The exclusive right to the result of intellectual activity or to a means of individualization (except for the exclusive right to a company name) may belong to one person or several persons jointly. In the cases provided for in paragraph 3 of Art. 1454, paragraph 2 of Art. 1466, paragraph 1 of Art. 1510 and paragraph 1 of Art. 1519 of the Civil Code, independent exclusive rights to the same result of intellectual activity or to the same means of individualization may simultaneously belong to different persons.

Limitations of exclusive rights to the results of intellectual activity and to means of individualization, including in the case when the use of the results of intellectual activity is allowed without the consent of the right holders, but with the preservation of their right to remuneration, are established by the Civil Code.

Exclusive rights to the results of intellectual activity and means of individualization are valid for a certain period, except for the cases provided for by the Civil Code (Article 1230 of the Civil Code).

The rules on the validity of exclusive and other intellectual rights on the territory of the Russian Federation are contained in Art. 1231 GK. According to this article, on the territory of the Russian Federation there are exclusive rights to the results of intellectual activity and to the means of individualization established by international treaties of the Russian Federation and the norms of the Civil Code. Personal non-property and other intellectual rights, which are not exclusive, are valid on the territory of the Russian Federation in accordance with par. 4 p. 1 art. 2 GK.

When recognizing an exclusive right to the result of intellectual activity or to a means of individualization in accordance with an international treaty of the Russian Federation, the content of the right, its effect, restrictions, the procedure for its implementation and protection are determined by the Civil Code, regardless of the provisions of the legislation of the country of origin of the exclusive right, unless such an international treaty or the Civil Code provided otherwise.

In the cases provided for by the Civil Code, the exclusive right to the result of intellectual activity or to a means of individualization is recognized and protected subject to state registration of such a result or such means (clause 1, article 1232 of the Civil Code). In cases where the result of intellectual activity or a means of individualization is subject to state registration in accordance with the Civil Code, the alienation of the exclusive right to such a result or such means under an agreement, the pledge of this right and the granting of the right to use such a result or such means under an agreement, as well as the transfer the exclusive right to such a result or to such a means without an agreement are also subject to state registration, the procedure and conditions of which are established by the Government of the Russian Federation. In cases of disposition of an exclusive right under an agreement, the said registration is carried out through the state registration of the relevant agreement.

The basis for state registration of granting the right to use the result of intellectual activity or means of individualization may also be a court decision. The basis for state registration of the transfer of an exclusive right to the result of intellectual activity or to a means of individualization by inheritance is a certificate of the right to inheritance, except for the case provided for by Art. 1165 GK.

Failure to comply with the requirement for state registration of an agreement on the alienation of the exclusive right to the result of intellectual activity or to a means of individualization, or an agreement on granting to another person the right to use such a result or such means, shall entail the invalidity of the corresponding agreement. In case of non-compliance with the requirement for state registration of the transfer of an exclusive right without an agreement, such a transfer is considered not to have taken place (paragraphs 2 - 6 of article 1232 of the Civil Code).

In the cases provided for by the Civil Code, the state registration of the result of intellectual activity can be carried out at the request of the right holder. In these cases, the rules of paragraphs 2-6 of Art. 1232 of the Civil Code, unless otherwise provided by this Code (clause 7 of the said article).

According to Art. 1233 of the Civil Code, the right holder may dispose of his exclusive right to the result of intellectual activity or to a means of individualization in any way that does not contradict the law and the essence of such an exclusive right, including by alienating it under an agreement to another person (an agreement on the alienation of an exclusive right) or granting another person the right use of the corresponding result of intellectual activity or means of individualization within the limits established by the agreement (license agreement). The conclusion of a license agreement does not entail the transfer of the exclusive right to the licensee.

An agreement that does not expressly state that the exclusive right to the result of an intellectual activity or to a means of individualization is transferred in full is considered a license agreement, with the exception of an agreement concluded with respect to the right to use the result of an intellectual activity specially created or created for inclusion in a complex object. (paragraph 2, clause 1, article 1240 of the Civil Code).

One of the types of agreement on the disposal of the exclusive right to the result of intellectual activity or to a means of individualization is an agreement on the alienation of an exclusive right. The general provisions relating to this agreement are contained in Art. 1234 GK. In paragraph 1 of this article, a definition of this agreement is given. In accordance with it, under an agreement on the alienation of an exclusive right, one party (right holder) transfers or undertakes to transfer its exclusive right to the result of intellectual activity or to a means of individualization in full to the other party (acquirer). An agreement on the alienation of an exclusive right is concluded in writing and is subject to state registration in the cases provided for in paragraph 2 of Art. 1232 GK. Failure to comply with the written form or the requirement for state registration entails the invalidity of the contract.

Under an agreement on the alienation of an exclusive right, the acquirer undertakes to pay the right holder the remuneration provided for by the agreement, unless otherwise provided by the agreement. In the absence of a condition on the amount of remuneration or the procedure for determining it in the compensated agreement on the alienation of the exclusive right, the agreement is considered not concluded. At the same time, the rules for determining the price provided for in paragraph 3 of Art. 424 of the Civil Code, do not apply.

Another type of agreement on the disposal of the exclusive right to the result of intellectual activity or to a means of individualization is a license agreement. Unlike an agreement on the alienation of an exclusive right, under a license agreement one party - the owner of the exclusive right to the result of intellectual activity or to a means of individualization (licensor) grants or undertakes to grant to the other party (licensee) the right to use such a result or such means within the limits provided for by the agreement. The licensee may use the result of intellectual activity or means of individualization only within the limits of those rights and in the ways provided for by the license agreement. The right to use the result of intellectual activity or means of individualization, which is not directly specified in the license agreement, is not considered granted to the licensee.

The license agreement is concluded in writing, unless the Civil Code provides otherwise. In the cases provided for in paragraph 2 of Art. 1232 of the Civil Code, the license agreement is subject to state registration. Failure to comply with the written form or the requirement for state registration entails the invalidity of the license agreement.

The license agreement must indicate the territory in which the use of the result of intellectual activity or means of individualization is allowed. If the territory in which the use of such a result or such means is allowed is not specified in the contract, the licensee has the right to use them throughout the entire territory of the Russian Federation.

The period for which a license agreement is concluded may not exceed the period of validity of the exclusive right to the result of intellectual activity or to a means of individualization. In the event that the term of its validity is not defined in the license agreement, the agreement is considered concluded for five years, unless the Civil Code provides otherwise. In case of termination of the exclusive right, the license agreement is terminated.

Under a license agreement, the licensee undertakes to pay the licensor the remuneration stipulated by the agreement, unless the agreement provides otherwise. In the absence of a condition on the amount of remuneration or the procedure for determining it in the compensated license agreement, the agreement is considered not concluded. At the same time, the rules for determining the price provided for in paragraph 3 of Art. 424 of the Civil Code, as well as in relation to the contract on the alienation of the exclusive right, do not apply.

As essential conditions, the license agreement should provide for:

1) the subject of the contract by indicating the result of intellectual activity or the means of individualization, the right to use which is granted under the contract, indicating, in appropriate cases, the number and date of issue of the document certifying the exclusive right to such result or to such means (patent, certificate);

2) ways of using the result of intellectual activity or means of individualization.

The transfer of the exclusive right to the result of intellectual activity or to a means of individualization to a new right holder is not a basis for changing or terminating the license agreement concluded by the previous right holder.

In Art. 1236 of the Civil Code specifies the types of license agreements. The license agreement may provide for:

▪ granting the licensee the right to use the result of intellectual activity or a means of individualization, while preserving the licensor’s right to issue licenses to other persons (simple (non-exclusive) license);

▪ granting the licensee the right to use the result of intellectual activity or a means of individualization without reserving the licensor’s right to issue licenses to other persons (exclusive license).

Unless otherwise provided by the license agreement, the license is assumed to be simple (non-exclusive).

One license agreement regarding various ways of using the result of intellectual activity or means of individualization may contain the above conditions provided for license agreements of different types.

The procedure for the execution of a license agreement is defined in Art. 1237 GK. According to this article, the licensee is obliged to submit to the licensor reports on the use of the result of intellectual activity or means of individualization, unless otherwise provided by the license agreement. During the term of the license agreement, the licensor is obliged to refrain from any actions that could hinder the exercise by the licensee of the right granted to him to use the result of intellectual activity or means of individualization within the limits established by the agreement.

With the written consent of the licensor, the licensee may, under an agreement, grant the right to use the result of intellectual activity or means of individualization to another person (sublicense agreement). Under a sublicense agreement, a sublicensee may be granted the rights to use the result of intellectual activity or means of individualization only within the limits of those rights and those methods of use that are provided for by the license agreement for the licensee. A sublicense agreement concluded for a period exceeding the validity period of the license agreement is considered concluded for the duration of the license agreement. The licensee shall be liable to the licensor for the actions of the sublicensee, unless otherwise provided by the license agreement. According to Art. 1238 of the Civil Code, the rules of the Civil Code on a license agreement apply to a sublicense agreement.

In the cases provided for by the Civil Code, the court may, in accordance with Art. 1239 of this Code, at the request of an interested person, decide to grant this person, on the conditions specified in the court decision, the right to use the result of intellectual activity, the exclusive right to which belongs to another person (compulsory license).

In the process of creativity, a complex object can be created that includes several protected results of intellectual activity (a film, other audiovisual work, a theatrical and entertainment performance, a multimedia product, a single technology). In accordance with Art. 1240 of the Civil Code, the person who organized the creation of such an object acquires the right to use the indicated results on the basis of agreements on the alienation of the exclusive right or license agreements concluded by such a person with the holders of exclusive rights to the corresponding results of intellectual activity.

In the event that this person acquires the right to use the result of intellectual activity specially created or being created for inclusion in such a complex object, the corresponding agreement is considered an agreement on the alienation of the exclusive right, unless otherwise provided by agreement of the parties (clause 1 of article 1240 of the Civil Code). When using the result of intellectual activity as part of a complex object, the author of such a result retains the right of authorship and other personal non-property rights to such a result (paragraph 3 of article 1240 of the Civil Code). When using the result of intellectual activity as part of a complex object, the person who organized the creation of this object has the right to indicate his name or name or require such an indication (clause 4 of article 1240 of the Civil Code). The same rules apply to the right to use the results of intellectual activity as part of a single technology created at the expense or with the involvement of federal budget funds, unless otherwise established by the rules of Ch. 77 of the Civil Code, dedicated to this right (clause 5 of article 1240 of the Civil Code).

In accordance with Art. 1241 of the Civil Code, the transfer of an exclusive right to the result of intellectual activity or to a means of individualization to another person without concluding an agreement with the copyright holder is allowed in cases and on the grounds established by law, including in the order of universal succession (inheritance, reorganization of a legal entity) and in the event of foreclosure on the property of the copyright holder.

According to Art. 1242 of the Civil Code, authors, performers, producers of phonograms and other holders of copyright and related rights, in cases where the exercise of their rights on an individual basis is difficult or when the Civil Code allows the use of objects of copyright and related rights without the consent of the owners of the relevant rights, but with the payment of remuneration to them, may create membership-based non-profit organizations that, in accordance with the powers granted to them by the right holders, are entrusted with the management of the relevant rights on a collective basis (collective rights management organizations). The creation of such organizations does not prevent the representation of owners of copyright and related rights by other legal entities and citizens (paragraph 1 of article 1242 of the Civil Code).

Collective rights management organizations may be created to manage rights relating to one or more types of copyright and related rights, to manage one or more types of such rights in respect of certain uses of the relevant objects, or to manage any copyright and (or) related rights. rights (clause 2 of article 1242 of the Civil Code).

The basis for the powers of an organization to manage rights on a collective basis is an agreement on the transfer of powers to manage rights, concluded by such an organization with the right holder in writing, with the exception of the case provided for in par. 1 p. 3 art. 1244 GK. The specified agreement can be concluded with right holders who are members of such an organization, and with right holders who are not members of such an organization. At the same time, the rights management organization on a collective basis is obliged to assume the management of these rights, if the management of such a category of rights relates to the statutory activities of this organization. The basis for the authority of an organization to manage rights on a collective basis may also be an agreement with another organization, including a foreign one, that manages rights on a collective basis.

Rights management organizations on a collective basis are not entitled to use objects of copyright and related rights, the exclusive rights to which are transferred to their management (clause 4 of article 1242 of the Civil Code). These organizations have the right, on behalf of the right holders or on their own behalf, to bring claims in court, as well as to take other legal actions necessary to protect the rights transferred to them for management on a collective basis. An accredited organization also has the right to present claims in court necessary to protect the rights managed by such an organization on behalf of an indefinite circle of copyright holders (clause 5 of article 1244 of the Civil Code).

The possibility of obtaining state accreditation by a rights management organization on a collective basis is provided for by Art. 1244 GK. Such accreditation may be obtained for activities in the areas of collective management defined in this article. State accreditation is carried out on the basis of the principles of openness of the procedure and taking into account the opinions of interested parties, including right holders, in the manner determined by the Government of the Russian Federation. State accreditation to carry out activities in each of these areas of collective management can be obtained by only one organization for the management of rights on a collective basis.

An organization managing rights on a collective basis may obtain state accreditation to carry out activities in one, two or more areas of collective management from among the areas defined in the law. An organization for the management of rights on a collective basis that has received state accreditation (an accredited organization) has the right, along with the management of the rights of those right holders with whom it has concluded agreements in the manner provided for in paragraph 3 of Art. 1242 of the Civil Code, to manage the rights and collect remuneration for those copyright holders with whom she has not concluded such agreements (paragraph 1, clause 3, article 1244 of the Civil Code). The presence of an accredited organization does not prevent the creation of other organizations for the management of rights on a collective basis, including in the areas of collective management indicated above. Such organizations have the right to conclude agreements with users only in the interests of copyright holders who have granted them the authority to manage rights in the manner provided for in paragraph 3 of Art. 1242 GK.

Accredited organizations carry out their activities under the control of the authorized federal executive body. At present, this is the Federal Service for Intellectual Property, Patents and Trademarks (Rospatent), which is under the jurisdiction of the Ministry of Education and Science of the Russian Federation (hereinafter referred to as the Ministry of Education and Science of Russia). Accredited organizations are required to annually submit a report on their activities to the authorized federal executive body, as well as publish it in the all-Russian mass media. The form of the report is established by the said body. The model charter of an accredited organization is approved in the manner determined by the Government of the Russian Federation.

The Civil Code specifically regulates the payment of remuneration for the free reproduction of phonograms and audiovisual works for personal purposes. According to Art. 1245 of the Civil Code, authors, performers, producers of phonograms and audiovisual works have the right to remuneration for the free reproduction of phonograms and audiovisual works exclusively for personal purposes. Such remuneration is of a compensatory nature and is paid to right holders at the expense of funds that are payable by manufacturers and importers of equipment and material media used for such reproduction. The list of equipment and material carriers, as well as the amount and procedure for collecting the relevant funds, are approved by the Government of the Russian Federation. The collection of funds for the payment of remuneration for the free reproduction of phonograms and audiovisual works for personal purposes is carried out by an accredited organization (Article 1244 of the Civil Code).

The remuneration for the free reproduction of phonograms and audiovisual works for personal purposes is distributed among the right holders in the following proportion:

▪ 40% - to the authors;

▪ 30% - to performers;

▪ 30% - to producers of phonograms or audiovisual works.

The distribution of remuneration between specific authors, performers, producers of phonograms or audiovisual works is carried out in proportion to the actual use of the respective phonograms or audiovisual works. The procedure for the distribution of remuneration and its payment is established by the Government of the Russian Federation.

General provisions on state regulation of relations in the field of intellectual property are contained in Art. 1246 GK. In accordance with this article, in the cases provided for by the Civil Code, the publication of normative legal acts for the purpose of regulating relations in the field of intellectual property related to objects of copyright and related rights is carried out by the authorized federal executive body that exercises legal regulation in the field of copyright and related rights. rights (currently - the Ministry of Education and Science of Russia). The same body carries out, in the cases provided for by the Civil Code, the publication of regulatory legal acts in order to regulate relations in the field of intellectual property related (paragraph 2 of article 1246 of the Civil Code):

▪ with inventions;

▪ utility models;

▪ industrial designs;

▪ computer programs;

▪ databases;

▪ topologies of integrated circuits;

▪ trademarks and service marks;

▪ appellations of origin of goods.

Legally significant actions for the state registration of data on the results of intellectual activity and means of individualization, including the acceptance and examination of relevant applications, for the issuance of patents and certificates certifying the exclusive right of their holders to such results and to such means, and in cases provided for by law, and other actions related to the legal protection of the results of intellectual activity and means of individualization, is carried out by the federal executive body for intellectual property (currently - Rospatent). In the cases provided for by Art. 1401 - 1405 of the Civil Code, these actions can also be carried out by federal executive bodies authorized by the Government of the Russian Federation (clause 3 of article 1246 of the Civil Code).

With regard to breeding achievements, the functions specified in paragraphs 2 and 3 of Art. 1246 of the Civil Code are carried out respectively by the authorized federal executive body responsible for legal regulation in the field of agriculture - the Ministry of Agriculture of the Russian Federation (Ministry of Agriculture of Russia) and the federal executive body for breeding achievements. At present, this is the Federal Agency for Agriculture (Rosselkhoz), which is under the jurisdiction of the Ministry of Agriculture of Russia.

According to Art. 1247 of the Civil Code, dealing with the federal executive authority on intellectual property may be carried out by the applicant, right holder, other interested person independently, or through a patent attorney registered with the specified federal authority, or through another representative.

Citizens permanently residing outside the territory of the Russian Federation and foreign legal entities conduct business with the federal executive authority for intellectual property through patent attorneys registered with the said federal authority, unless otherwise provided by an international treaty of the Russian Federation. The powers of a patent attorney or other representative are certified by a power of attorney issued by the applicant, right holder or other interested person. A citizen of the Russian Federation permanently residing in its territory may be registered as a patent attorney. Other requirements for a patent attorney, the procedure for his attestation and registration, as well as his powers in relation to conducting cases related to the legal protection of the results of intellectual activity and means of individualization, are established by law.

The main provisions concerning the procedure for considering disputes related to the protection of intellectual property rights are contained in Art. 1248 GK. Paragraph 1 of this article states that disputes related to the protection of violated or disputed intellectual rights are considered and resolved by the court (paragraph 1 of article 11 of the Civil Code). In the cases provided for by the Civil Code, the protection of intellectual property rights is carried out administratively by authorized bodies. Decisions of these bodies come into force from the date of adoption. They can be challenged in court in the manner prescribed by law (paragraph 2 of article 1248 of the Civil Code).

For the performance of legally significant actions related to a patent for an invention, utility model, industrial design or selection achievement, with state registration of a computer program, database, topology of an integrated circuit, trademark and service mark, with state registration and granting the exclusive right to the name place of origin of the goods, as well as with state registration of the transfer of exclusive rights to other persons and agreements on the disposal of these rights, patent and other fees are levied, respectively (clause 1 of article 1249 of the Civil Code).

A list of legally significant actions that are associated with a computer program, a database and an integrated circuit topology and for which state fees are levied, their amounts, procedure and terms of payment, as well as grounds for exemption from paying state fees, reducing their amounts, deferring payment or refund are established by the legislation of the Russian Federation on taxes and fees. Currently, there is a Regulation on fees for patenting inventions, utility models, industrial designs, registration of trademarks, service marks, appellations of origin of goods, granting the right to use appellations of origin of goods, approved by Resolution of the Council of Ministers - the Government of the Russian Federation dated August 12.08.1993, 793 No. 26.11.2004 (as amended on November XNUMX, XNUMX). For the performance of legally significant actions related to the official registration of computer programs, databases and topologies of integrated circuits, a state fee is paid in accordance with the legislation of the Russian Federation on taxes and fees.

General provisions relating to the protection of intellectual property rights in general are enshrined in Art. 1250 GK. In accordance with this article, intellectual property rights are protected by the methods provided for by the Civil Code, taking into account the essence of the violated right and the consequences of violating this right. The methods of protection of intellectual property provided for by the Civil Code can be applied at the request of copyright holders, organizations managing rights on a collective basis, as well as other persons in cases established by law.

The lack of guilt of the infringer does not relieve him of the obligation to stop the violation of intellectual property rights, and also does not exclude the application of measures against the infringer aimed at protecting such rights. In particular, the publication of a court decision on the committed violation (subclause 5, clause 1, article 1252 of the Civil Code) and the suppression of actions that violate the exclusive right to the result of intellectual activity or to a means of individualization or create a threat of violation of such a right, are carried out regardless of the fault of the violator and for his account.

The protection of the personal non-property rights of authors is separately regulated by Art. 1251 GK. According to this article, in case of violation of the author's personal non-property rights, their protection is carried out, in particular, by recognizing the right, restoring the situation that existed before the violation of the right, suppressing actions that violate the right or threaten to violate it, compensate for moral damage, publish a court decision on the violation . Protection of honor, dignity and business reputation of the author is carried out in accordance with the rules of Art. 152 CC.

The basic rules relating to the protection of exclusive rights are set out in Art. 1252 GK. In accordance with paragraph 1 of this article, the protection of exclusive rights to the results of intellectual activity and to means of individualization is carried out, in particular, by presenting a claim for recognition of the right; on the suppression of actions that violate the right or create a threat of its violation; for damages; on the seizure of a material carrier, mainly used or intended to infringe exclusive rights to the results of intellectual activity or to means of individualization; on the publication of a court decision on the violation committed, indicating the actual copyright holder.

In order to secure a claim in cases of infringement of exclusive rights to material media, equipment and materials in respect of which an assumption has been made of infringement of the exclusive right to the result of intellectual activity or to a means of individualization, interim measures may be taken, established by procedural legislation, including be seized on material carriers, equipment and materials.

In the cases provided for by the Civil Code for certain types of results of intellectual activity or means of individualization, in case of violation of an exclusive right, the right holder has the right, instead of compensation for losses, to demand compensation from the violator for violation of this right. Compensation is subject to recovery when the fact of the offense is proven. At the same time, the right holder who applied for the protection of the right is exempted from proving the amount of losses caused to him. The amount of compensation is determined by the court within the limits established by the Civil Code, depending on the nature of the violation and other circumstances of the case, taking into account the requirements of reasonableness and fairness. The right holder has the right to demand compensation from the infringer for each case of misuse of the result of intellectual activity or means of individualization, or for the committed offense in general.

In the event that the manufacture, distribution or other use, as well as the import, transportation or storage of material media in which the result of intellectual activity or a means of individualization is expressed, leads to a violation of the exclusive right to such a result or to such a means, such material media are considered counterfeit and by court decision, they are subject to withdrawal from circulation and destruction without any compensation, unless other consequences are provided for by the Civil Code. Equipment, other devices and materials, mainly used or intended to infringe exclusive rights to the results of intellectual activity and means of individualization, by a court decision, are subject to withdrawal from circulation and destruction at the expense of the infringer, unless the law provides for their circulation to the income of the Russian Federation ( paragraph 5 of article 1252 of the Civil Code).

If various means of individualization (company name, trademark, service mark, commercial designation) turn out to be identical or confusingly similar and as a result of such identity or similarity consumers and (or) counterparties may be misled, the means of individualization, the exclusive right which arose earlier. The owner of such an exclusive right may, in accordance with the procedure established by the Civil Code, demand that the granting of legal protection to a trademark (service mark) or a complete or partial prohibition on the use of a company name or commercial designation be declared invalid. In this case, a partial ban on use means:

▪ in relation to a company name - a ban on its use in certain types of activities;

▪ in relation to a commercial designation - a ban on its use within a certain territory and (or) in certain types of activities (clause 6 of Article 1252 of the Civil Code).

In cases where the violation of the exclusive right to the result of an intellectual activity or to a means of individualization is recognized in accordance with the established procedure as unfair competition, the protection of the violated exclusive right can be carried out both by the methods provided for by the Civil Code and in accordance with the antimonopoly legislation.

In accordance with Art. 1253 of the Civil Code, if a legal entity repeatedly or grossly violates the exclusive rights to the results of intellectual activity and to means of individualization, the court may, in accordance with paragraph 2 of Art. 61 of the Civil Code to decide on the liquidation of such a legal entity at the request of the prosecutor. If such violations are committed by a citizen, his activities as an individual entrepreneur may be terminated by a court decision or sentence in the manner prescribed by law.

Topic 24. COPYRIGHT

Copyright in an objective sense is a set of civil law norms that regulate relations for the recognition of authorship and the protection of works of science, literature and art, the establishment of a regime for their use, the granting of personal non-property and property rights to their authors, the protection of the rights of authors and other right holders.

Copyright relations are regulated by Ch. 70 GK. In addition, copyright rules are contained in some decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation. Of the international treaties of the Russian Federation as sources of copyright, the most important are:

▪ Berne Convention of 1886 for the Protection of Literary and Artistic Works (as amended in Paris in 1971), in which Russia has been participating since 1995;

▪ The 1952 Universal (Geneva) Copyright Convention (Russia has been a party to this convention in its original version since 1973, and in the 1971 version since 1995).

The sources of copyright also include the Stockholm Convention on the Establishment of the World Intellectual Property Organization of 1967.

In Art. 1255 of the Civil Code defines copyright in the subjective sense. According to paragraph 1 of this article, copyrights are intellectual rights to works of science, literature and art. In accordance with paragraph 2 of this article, the author of the work has the following rights:

1) the exclusive right to a work;

2) right of authorship;

3) the author's right to a name;

4) the right to inviolability of the work;

5) the right to publish the work.

In the cases provided for by the Civil Code, the author of the work, along with the above rights, has other rights, including the right to remuneration for the use of an official work, the right to recall, the right to follow, the right to access works of fine art (clause 3 of article 1255 of the Civil Code) .

According to its content, copyright can be divided into personal non-property and property. The first type of rights is reserved only for the authors of works. The second group of rights may belong not only to authors, but also to other persons. Personal non-property rights include the right of authorship, the author's right to a name, the right to the inviolability of a work, the right to publish a work, etc. Property rights include the exclusive right to a work, the right to remuneration for the use of an official work, the right to follow.

The property rights of authors do not include the right to remuneration (royalty), since the author's remuneration is always paid within the framework of contractual or some other legal obligations (with the exception of remuneration for the use of an employee's work). Accordingly, this right is a liability, and not a copyright subjective right.

Exclusive right to a work of science, literature and art:

▪ applies to works published on the territory of the Russian Federation or unpublished, but located in some objective form on the territory of the Russian Federation, and is recognized by the authors (their legal successors) regardless of their citizenship;

▪ applies to works published outside the territory of the Russian Federation or unpublished, but located in some objective form outside the territory of the Russian Federation, and is recognized for authors who are citizens of the Russian Federation (their legal successors);

▪ applies to works published outside the territory of the Russian Federation or unpublished, but located in some objective form outside the territory of the Russian Federation, and is recognized on the territory of the Russian Federation by authors (their legal successors) - citizens of other states and stateless persons in accordance with international treaties of the Russian Federation.

A work is also considered to be published for the first time in the Russian Federation if within 30 days after the date of the first publication outside the territory of the Russian Federation it was published in the territory of the Russian Federation.

When protection is granted to a work in the territory of the Russian Federation in accordance with the international treaties of the Russian Federation, the author of the work or other original copyright holder is determined by the law of the state in whose territory the legal fact took place that served as the basis for acquiring copyright.

When protection is granted to works in accordance with international treaties of the Russian Federation, the period of validity of the exclusive right to these works in the territory of the Russian Federation cannot exceed the period of validity of the exclusive right established in the country of origin of the work (Article 1256 of the Civil Code).

The author of a work of science, literature or art, in accordance with Art. 1257 of the Civil Code, a citizen is recognized, whose creative work it was created. The person indicated as the author on the original or copy of the work is considered to be its author, unless otherwise proven.

Article 1258 of the Civil Code regulates relations arising from co-authorship. In accordance with this article, citizens who have created a work by joint creative work are recognized as co-authors, regardless of whether such a work forms an inseparable whole or consists of parts, each of which has an independent value. A work created in co-authorship is used jointly by co-authors, unless otherwise provided by agreement between them. In the presence of the latter condition, a part of the work, the use of which is possible independently of other parts, i.e. a part that has independent meaning can be used by its author at his own discretion.

The definition of the scope of objects of copyright (Article 1259 of the Civil Code) is essential. Such objects are the following works, regardless of their merits and purpose, as well as the way of expression:

▪ Literary works;

▪ dramatic, musical and choreographic works;

▪ audiovisual works;

▪ works of painting, sculpture, other works of fine art, etc.

The objects of copyright also include computer programs that are protected as literary works.

Copyright objects include:

▪ derivative works, i.e. works that are a reworking of another work;

▪ composite works, i.e. works that, by the selection or arrangement of materials, are the result of creative labor.

Copyright extends to both published and unpublished works expressed in any objective form (paragraph 3 of article 1259 of the Civil Code).

For the emergence, exercise and protection of copyright does not require registration of the work or compliance with any other formalities. With regard to computer programs and databases, registration is possible, carried out at the request of the copyright holder in accordance with the rules of Art. 1262 GK.

Not subject to copyright:

1) official documents of state bodies and local governments, international organizations, as well as their official translations;

2) state symbols and signs, as well as symbols and signs of municipalities;

3) works of folk art (folklore) that do not have specific authors;

4) messages about events and facts that are of an exclusively informational nature.

According to Art. 1260 of the Civil Code, the translator, as well as the author of another derivative work (arrangement, screen adaptation, arrangement, staging or other similar work) owns the copyright, respectively, for the translation and other processing of another (original) work. The compiler of a collection and the author of another composite work (an anthology, encyclopedia, database, atlas or other similar work) owns the copyright for their selection or arrangement of materials (compilation).

A database is a set of independent materials presented in an objective form (articles, calculations, regulations, court decisions and other similar materials), systematized in such a way that these materials can be found and processed using an electronic computer (computer).

The author of a work placed in a collection or other composite work has the right to use his work regardless of the composite work, unless otherwise provided by the contract with the creator of the composite work.

The most general provisions relating to computer programs are set out in Art. 1261 GK. This article provides that copyrights for all types of computer programs (including operating systems and software packages) that can be expressed in any language and in any form, including source text and object code, are protected in the same way as copyright rights to works of literature. According to the definition given in this article, a computer program is a set of data and commands presented in an objective form, intended for the operation of computers and other computer devices in order to obtain a certain result, including preparatory materials obtained during the development of a computer program and generated by it. audiovisual displays.

The procedure for state registration of computer programs and databases, which can be carried out at the request of the copyright holder in the federal executive body for intellectual property, is regulated in Art. 1262 GK.

An audiovisual work in accordance with Art. 1263 of the Civil Code is a work consisting of a fixed series of interconnected images (with or without sound accompaniment) and intended for visual and auditory (if accompanied by sound) perception with the help of appropriate technical devices. Audiovisual works include cinematographic works, as well as all works expressed by means similar to cinematographic ones (television and video films and other similar works), regardless of the method of their initial or subsequent fixation (paragraph 1 of article 1263 of the Civil Code). The authors of the audiovisual work are:

▪ production director;

▪ scriptwriter;

▪ a composer who is the author of a musical work (with or without text), specially created for this audiovisual work (clause 2 of Article 1263 of the Civil Code).

In case of public performance or communication on the air or by cable of an audiovisual work, the composer who is the author of a musical work (with or without text) used in an audiovisual work retains the right to remuneration for the specified types of use of his musical work (clause 3 of article 1263 of the Civil Code ).

The rights of the producer of the audiovisual work, i. the person who organized the creation of such a work (producer) is determined in accordance with Art. 1240 GK. The producer has the right, in any use of an audiovisual work, to indicate his name or designation, or to require such an indication. In the absence of evidence to the contrary, the manufacturer of an audiovisual work is recognized as a person whose name or designation is indicated on this work in the usual way (clause 4 of article 1263 of the Civil Code).

Each author of a work that has become an integral part of an audiovisual work, whether it existed before (the author of the work underlying the script, and others), or created in the process of working on it (director of photography, production designer, and others), retains the exclusive right to his work, except for cases when this exclusive right was transferred to the manufacturer or other persons or transferred to the manufacturer or other persons on other grounds provided for by law (clause 5 of article 1263 of the Civil Code).

For the first time, the Civil Code establishes the right of authorship for a draft of an official document, symbol or sign, which belongs to the person who created the corresponding project (developer). The rules relating to the publication and use of such a project are contained in Art. 1264 GK.

The personal non-property rights of the author are the right of authorship and the right to a name. General definitions of the concepts of these rights are given in Art. 1265 GK. The right of authorship is the right to be recognized as the author of a work, the right of an author to a name is the right to use or allow the use of a work under his own name, under an assumed name (pseudonym) or without specifying a name, i.e. anonymously. These rights are inalienable and non-transferable, including when transferring to another person or transferring to him the exclusive right to a work and when granting another person the right to use the work. Waiver of these rights is void.

One of the most important rights of the author is the right to inviolability of the work, enshrined in Art. 1266 GK. In accordance with this right, it is not allowed, without the consent of the author, to make changes, abbreviations and additions to his work, to supply the work with illustrations, preface, afterword, comments or any explanations when it is used.

When using a work after the death of the author, the person who has the exclusive right to the work has the right to allow changes, reductions or additions to be made to the work, provided that this does not distort the author’s intention and does not violate the integrity of the perception of the work and this does not contradict the will of the author, specifically expressed by him in testament, letters, diaries or other written form (paragraph 2 of clause 1 of article 1266 of the Civil Code). Distortion, distortion or other alteration of a work that discredits the honor, dignity or business reputation of the author, as well as infringement on such actions, gives the author the right to demand protection of his honor, dignity or business reputation in accordance with the rules of Art. 152 GK. In these cases, at the request of interested persons, the protection of the honor and dignity of the author is allowed even after his death (paragraph 2 of article 1266 of the Civil Code).

Authorship, the name of the author and the inviolability of the work are protected indefinitely (Article 1267 of the Civil Code).

According to the definition given in Art. 1268 of the Civil Code, the right to publish a work is the right to take an action or give consent to take an action that makes the work available to the public for the first time by its publication, public display, public performance, broadcast or cable, or in any other way. At the same time, publication (release to the public) is the release into circulation of copies of the work, which are a copy of the work in any material form, in an amount sufficient to meet the reasonable needs of the public based on the nature of the work (paragraph 1 of article 1268 of the Civil Code).

The author has the right to withdraw, i.e. the right to withdraw from an earlier decision to publish a work (Article 1269 of the Civil Code). Such a refusal is possible on condition that the person who has been alienated the exclusive right to the work or granted the right to use the work is compensated for the losses caused by this decision. If the work has already been published, the author is also obliged to publicly announce its withdrawal. In this case, the author has the right to withdraw from circulation previously issued copies of the work, indemnifying the losses caused by this. The above rules do not apply to computer programs, service works and works included in a complex object (Article 1240 of the Civil Code).

The exclusive right to a work is disclosed in Art. 1270 GK. According to this article, the author of the work or other copyright holder has the exclusive right to use the work in accordance with Art. 1229 of the Civil Code in any form and in any way that does not contradict the law, including the methods listed below. The copyright holder may dispose of the exclusive right to the work (paragraph 1 of article 1270 of the Civil Code).

Using the work in accordance with the norm of paragraph 2 of Art. 1270 of the Civil Code, regardless of whether the relevant actions are performed for the purpose of making a profit or without such a goal, it is considered, in particular:

▪ reproduction of a work, i.e. production of one or more copies of a work or part thereof in any material form;

▪ distribution of a work through the sale or other alienation of its original or copies;

▪ public display of the work;

▪ import of the original or copies of the work for distribution purposes;

▪ rental of the original or copy of the work;

▪ public performance of the work;

▪ broadcast message;

▪ communication via cable;

▪ translation or other processing of the work;

▪ practical implementation of an architectural, design, urban planning or gardening project;

▪ making the work available to the public in such a way that any person can access the work from any place and at any time of his or her own choosing.

Rules of sub. 5 of the specified paragraph do not apply to a computer program, except for the case when such a program is the main object of rental (clause 4 of article 1270 of the Civil Code).

Although the exclusive right to a work in itself does not have a property content, its implementation allows you to receive certain property benefits, in connection with which it is called a property right.

To notify of the exclusive right to a work belonging to him, the copyright holder has the right to use the copyright protection sign, which is placed on each copy of the work and consists of the following elements (Article 1271 of the Civil Code):

1) the Latin letter "C" in a circle;

2) the name or designation of the right holder;

3) the year of the first publication of the work.

If the original or copies of a lawfully published work are put into civil circulation on the territory of the Russian Federation by their sale or other alienation, in accordance with Art. 1272 of the Civil Code, further distribution of the original or copies of the work is allowed without the consent of the copyright holder and without payment of remuneration to him, with the exception of the case provided for by Art. 1293 GK. Also, without the consent of the author or other right holder and without payment of remuneration, it is allowed for a citizen to reproduce, exclusively for personal purposes, a lawfully published work, with the exception of:

▪ reproduction of works of architecture in the form of buildings and similar structures;

▪ reproduction of databases or significant parts thereof;

▪ reproduction of computer programs, except for the cases provided for in Art. 1280 GK;

▪ reproduction (clause 2 of article 1275 of the Civil Code) of books (in full) and musical texts;

▪ video recording of an audiovisual work during its public performance in a place open to the public, or in a place where a significant number of people outside the usual family circle are present;

▪ reproduction of an audiovisual work using professional equipment not intended for home use (Article 1273 of the Civil Code).

In Art. 1274 of the Civil Code lists a number of cases where a work can be freely used for informational, scientific, educational and cultural purposes. In addition, Art. 1275 - 1279 of the Civil Code provides for the possibility of free use of a work by reproduction, free use of a work permanently located in a place open to free access, free public performance of a musical work, free reproduction of a work for law enforcement purposes, free recording of a work by a broadcasting organization for short-term use and the conditions under which the listed actions are allowed. Reproduction (reprographic reproduction) is a facsimile reproduction of a work by any technical means, carried out not for the purpose of publication.

In Art. 1280 of the Civil Code specifies actions that, under the conditions specified in this article, can be performed by a person lawfully owning a copy of a computer program or a copy of a database (referred to as a user), without the permission of the author or other copyright holder and without paying additional remuneration. This is the introduction of changes to such a program or database, the implementation of the actions necessary for their functioning, the correction of obvious errors, the production of copies of the program or database, the study, research or testing of the functioning of a computer program, the reproduction and conversion of the object code into source text (decompilation of this programs).

Article 1281 of the Civil Code contains rules governing the duration of the exclusive right to a work. As a general rule, this right is valid throughout the life of the author and for 70 years, counting from January 1 of the year following the year of the author's death. Upon the expiration of the exclusive right, a work of science, literature or art, whether made public or not, shall enter the public domain. Such a work may be freely used by any person without anyone's consent or permission and without payment of royalties. At the same time, authorship, the name of the author and the inviolability of the work are protected. An unpublished work that has entered the public domain may be made public by any person, unless the publication of the work contradicts the will of the author, expressly expressed by him in writing (in his will, letters, diaries, etc.). The rights of a citizen who lawfully published such a work are determined in accordance with Ch. 71 of the Civil Code, which regulates rights related to copyright (Article 1282 of the Civil Code).

In accordance with Art. 1283 of the Civil Code, the exclusive right to a work is inherited. In the cases provided for by Art. 1151 of the Civil Code, the exclusive right to a work, which is part of the inheritance, is terminated and the work passes into the public domain.

Foreclosure is not allowed on the exclusive right to a work belonging to the author. However, the rights of the author to claim against other persons under agreements on the alienation of the exclusive right to a work and under license agreements, as well as on income received from the use of a work, may be levied. The exclusive right that belongs not to the author himself, but to another person, and the right to use the work, which belongs to the licensee, may be levied. In the event of the sale of the licensee's right to use the work at public auction in order to levy execution on this right, the author is granted a pre-emptive right to acquire it (Article 1284 of the Civil Code).

In Art. 1285 of the Civil Code establishes the possibility of concluding an agreement on the alienation of the exclusive right to a work and discloses its content. A person who has the exclusive right to a work may also dispose of this right by concluding a license agreement on granting the right to use the work. The license agreement is concluded in writing. An agreement on granting the right to use a work in a periodical publication may be concluded orally.

The conclusion of license agreements on granting the right to use a computer program or database is allowed by concluding an accession agreement by each user with the relevant copyright holder, the terms of which are set out on the purchased copy of such a program or database or on the packaging of this copy. The beginning of the use of such program or database by the user, as defined by these conditions, means his consent to the conclusion of the contract.

The reimbursable license agreement must specify the amount of remuneration for the use of the work or the procedure for calculating such remuneration. Such an agreement may provide for the payment of remuneration to the licensor in the form of fixed one-time or periodic payments, percentage deductions from income (revenue) or in another form.

The Government of the Russian Federation has the right to establish minimum rates of royalties for certain types of use of works (Article 1286 of the Civil Code). At the present time, there is a Decree of the Government of the Russian Federation dated March 21.03.1994, 218 No. XNUMX "On the minimum rates of royalties for certain types of use of works of literature and art."

In Art. 1287 of the Civil Code provides for special conditions for a publishing license agreement, which means an agreement on the provision of the use of a work concluded by the author or other copyright holder with the publisher, i.e. with the person who, in accordance with the contract, is obliged to publish the work. Under this agreement, the licensee is obliged to start using the work no later than the period specified in the agreement, or within the period usual for this type of work and the method of their use.

According to the norm of art. 1288 of the Civil Code, under an author's order contract, one party (the author) undertakes, at the order of the other party (the customer), to create a work of science, literature or art stipulated by the contract on a tangible medium or in another form. The contract of the author's order is paid, unless otherwise provided by agreement of the parties. An author's order agreement may provide for both the alienation to the customer of the exclusive right to a work to be created by the author, and the granting to the customer of the right to use this work within the limits established by the agreement. The term for the execution of this agreement is regulated by art. 1289 GK. According to this article, the work, the creation of which is provided for by the contract of the author's order, must be transferred to the customer within the time period established by the contract. An agreement that does not provide for and does not allow determining the term for its execution is not considered concluded.

In the event that the term for the execution of the contract of the author's order has come, the author, if necessary and if there are good reasons for completing the creation of the work, is provided with an additional grace period lasting one fourth of the period established for the execution of the contract, unless the agreement of the parties provides for a longer grace period. In the cases provided for in paragraph 1 of Art. 1240 of the Civil Code, this rule applies, unless otherwise provided by the contract. After the expiration of the grace period, the customer has the right to unilaterally withdraw from the contract of author's order. The customer also has the right to withdraw from the contract of author's order immediately after the expiration of the period established by the contract for its execution, if the contract has not been executed by this time, and from its terms it clearly follows that if the deadline for the execution of the contract is violated, the customer loses interest in the contract.

In accordance with Art. 1290 of the Civil Code, the author's liability under an agreement on the alienation of the exclusive right to a work and under a license agreement is limited to the amount of real damage caused to the other party, unless the agreement provides for a smaller amount of the author's liability.

In case of non-fulfillment or improper fulfillment of the contract of the author's order, for which the author is responsible, the author is obliged to return the advance payment to the customer, as well as pay him a penalty, if it is provided for by the contract. At the same time, the total amount of these payments is limited to the amount of actual damage caused to the customer.

In accordance with the norm of paragraph 1 of Art. 1291 of the Civil Code in the event of the alienation by the author of the original work (manuscript, original work of painting, sculpture, etc.), including the alienation of the original work under an author's order agreement, the author retains the exclusive right to the work, unless the agreement provides otherwise. In the event that the exclusive right to a work has not been transferred to the acquirer of its original, the acquirer has the right, without the consent of the author and without payment of remuneration to him, to demonstrate the acquired original of the work and reproduce it in exhibition catalogs and in publications dedicated to his collection, as well as transfer the original of this works for display at exhibitions organized by other persons. According to paragraph 2 of the same article, when the original work is alienated by its owner, who has the exclusive right to the work, but is not the author of the work, the exclusive right to the work passes to the acquirer of the original work, unless otherwise provided by the contract.

The above rules relating to the author of a work also apply to the author's heirs, their heirs, etc. within the period of validity of the exclusive right to the work (clause 3 of article 1291 of the Civil Code).

The author of a work of fine art has the right of access, i.e. the right to demand that the owner of the original work be given the opportunity to exercise the right to reproduce his work. At the same time, the owner of the original work cannot be required to deliver the work to the author.

The author of a work of architecture has the right to demand from the owner of the original work to provide the opportunity to photograph and video film the work, unless otherwise provided by the contract (Article 1292 of the Civil Code).

The author of a work of fine art also has the right to follow, i. he has the right, in the event of alienation of the original of his work by him at each public resale, in which a fine art gallery, art salon, shop or other similar organization participates as a seller, buyer or intermediary, to require the seller to pay him remuneration in the form of percentage deductions from the price resale. The amount of interest deductions, as well as the conditions and procedure for their payment are determined by the Government of the Russian Federation. Authors also enjoy the right of following in relation to copyright manuscripts (autographs) of literary and musical works. The right to follow is inalienable, but passes to the heirs of the author for the duration of the exclusive right to the work.

The rights of the author of a work of architecture, urban planning or gardening art are established in Art. 1294 GK. This author has the exclusive right to use his work in accordance with paragraphs 2 and 3 of Art. 1270 of the Civil Code, including through the development of documentation for construction and through the implementation of an architectural, urban planning or landscape gardening project. The use of an architectural, urban planning or landscape gardening project for implementation is allowed only once, unless otherwise provided by the contract in accordance with which the project was created. The project and the construction documentation based on it can be reused only with the consent of the author of the project.

The author of a work of architecture, urban planning or gardening art has the right to exercise author's control over the development of documentation for construction and the right of author's supervision over the construction of a building or structure or other implementation of the corresponding project. The procedure for exercising author's control and author's supervision is established by the federal executive body for architecture and urban planning. Currently, this is the Federal Agency for Construction, Housing and Communal Services (Rosstroy), which is under the jurisdiction of the Ministry of Industry and Energy of the Russian Federation (Minpromenergo of Russia).

The author of a work of architecture, urban planning or gardening art has the right to demand from the customer of an architectural, urban planning or gardening project to grant the right to participate in the implementation of his project, unless otherwise provided by the contract.

The legislator specifically regulates the relations arising in connection with the creation of a service work. In accordance with Art. 1295 of the Civil Code copyright for an official work, i.e. for a work of science, literature or art, created within the limits of labor duties established for an employee (author), belong to the author. The exclusive right to an employee work belongs to the employer, unless otherwise provided by an employment or other contract between the employer and the author.

If the employer, within three years from the day when the employee work was placed at his disposal, does not start using this work, does not transfer the exclusive right to it to another person, or does not inform the author about keeping the work secret, the exclusive right to the employee work belongs to the author. If the employer starts using the employee's work within the specified period or transfers the exclusive right to another person, the author has the right to remuneration. The author acquires this right also in the case when the employer decided to keep the official work secret and for this reason did not start using this work within the specified period. The amount of remuneration, the conditions and procedure for its payment by the employer are determined by the agreement between him and the employee, and in the event of a dispute - by the court.

In accordance with paragraph 3 of Art. 1295 of the Civil Code, in the case when the exclusive right to an official work belongs to the author, the employer has the right to use such a work in ways determined by the purpose of the official assignment and within the limits arising from the assignment, as well as publish such a work, unless otherwise provided by the agreement between him and the employee. At the same time, the right of the author to use the employee work in a way that is not determined by the purpose of the official assignment, as well as at least in a way determined by the purpose of the assignment, but beyond the limits arising from the assignment of the employer, is not limited. The employer may, when using an official work, indicate his name or designation or require such indication.

In Art. 1296 - 1298 of the Civil Code defines the rights arising in connection with the creation of computer programs and databases to order, when performing work under an agreement that did not directly provide for their creation, as well as when creating works of science, literature and art under a state or municipal contract.

According to the norm of art. 1299 of the Civil Code, technical means of copyright protection are any technologies, technical devices or their components that control access to a work, prevent or restrict the implementation of actions that are not authorized by the author or other copyright holder in relation to the work. With regard to works, it is not allowed:

1) carrying out without the permission of the author or other right holder of actions aimed at eliminating restrictions on the use of the work, established through the use of technical means of copyright protection;

2) production, distribution, leasing, provision for temporary gratuitous use, import, advertising of any technology, any technical device or their components, use of such technical means for profit or provision of relevant services, if as a result of such actions it becomes impossible to use technical means of copyright protection, or these technical means will not be able to provide adequate protection of these rights.

In case of violation of the above provisions, the author or other right holder has the right to demand, at his choice, from the violator damages or compensation in accordance with Art. 1301 of the Civil Code, except when the Civil Code allows the use of a work without the consent of the author or other copyright holder.

According to the norm of art. 1300 of the Civil Code, copyright information is any information that identifies a work, author or other copyright holder, or information about the conditions for using a work, which is contained on the original or copy of the work, is attached to it or appears in connection with broadcasting or by cable or bringing such work to the public, as well as any numbers and codes that contain such information. With regard to works, it is not allowed:

1) removal or modification without the permission of the author or other owner of copyright information;

2) reproduction, distribution, import for the purpose of distribution, public performance, broadcasting or by cable, making available to the public works in respect of which copyright information has been removed or changed without the permission of the author or other right holder.

In case of violation of the above provisions, the author or other right holder has the right to demand, at his choice, from the violator damages or compensation in accordance with Art. 1301 GK.

In Art. 1301 of the Civil Code defines liability for violation of the exclusive right to a work. In cases of violation of this right, the author or other right holder, along with the use of other applicable methods of protection and liability measures established by the Civil Code (Articles 1250, 1252 and 1253), has the right in accordance with paragraph 3 of Art. 1252 of the Civil Code, to demand, at his choice, from the violator, instead of compensation for losses, the payment of compensation:

▪ in the amount of 10 thousand rubles. up to 5 million rubles, determined at the discretion of the court;

▪ twice the cost of copies of the work or double the cost of the right to use the work, determined on the basis of the price that, under comparable circumstances, is usually charged for the lawful use of the work.

In Art. 1302 of the Civil Code establishes the norms to secure a claim in cases of copyright infringement. The court may prohibit the defendant or a person in respect of whom there are reasonable grounds to believe that he is an infringer of copyright, to perform certain actions (manufacture, reproduction, sale, rental, import or other use provided for by the Civil Code, as well as transportation, storage or possession ) in order to introduce into civil circulation copies of the work, in respect of which it is assumed that they are counterfeit. The court may seize all copies of a work that are alleged to be counterfeit, as well as materials and equipment used or intended for their manufacture or reproduction.

If there is sufficient evidence of copyright infringement, the bodies of inquiry or investigation are obliged to take measures to search for and seize copies of the work in respect of which it is assumed that they are counterfeit, as well as materials and equipment used or intended for the manufacture or reproduction of these copies. works, including, where necessary, measures to seize them and transfer them to custody.

Topic 25. RIGHTS RELATED TO COPYRIGHT

In accordance with the current legislation, not only copyrights, but also rights related to copyrights are subject to protection. These rights are covered in Chap. 71 GK. In addition, relations related to related rights are regulated by a number of special by-laws, as well as some international agreements, in particular the 1971 Geneva Convention for the Protection of the Interests of Producers of Phonograms from Illegal Reproduction of their Phonograms, to which Russia has been a party since 1995, and Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, 1961.

General provisions. The definition of rights related to copyright is given in paragraph 1 of Art. 1303 Civil Code. Related to copyright (related rights) are intellectual rights to the results of performing activities (performance), phonograms, broadcast or cable radio and television broadcasts (broadcasting by broadcasting and cable broadcasting organizations), the content of databases, as well as works of science, literature and art made public for the first time after they entered the public domain. Related rights include exclusive rights, and in cases provided for by the Civil Code, also personal non-property rights.

The objects of related rights are:

▪ performances (including productions), phonograms;

▪ messages from broadcasting or cable broadcasting organizations, databases in terms of their protection from unauthorized extraction and reuse of the materials that comprise their content;

▪ works of science, literature and art, published after they have entered the public domain, in terms of protecting the rights of publishers of such works.

Performances are understood as performances by performers and conductors, productions by directors of performances, expressed in a form that allows their reproduction and distribution using technical means. It is important to note that the related rights of performers arise only when a "live" performance is recorded or transmitted over the air or cable broadcasting channels.

A phonogram is any but exclusively sound recording of performances or other sounds or their representations, with the exception of a sound recording included in an audiovisual work.

Radio or television broadcasts are sets of sounds and (or) images or their displays, reported on the air or by cable.

As in the case of copyright, for the emergence, exercise and protection of related rights, registration of their object or compliance with any other formalities is not required (Article 1304 of the Civil Code). In accordance with Art. A producer of a phonogram and a performer, as well as another owner of the exclusive right to a phonogram or a performance, has the right to use the sign of protection of related rights, which is placed on each original or copy of the phonogram and (or) on each case containing it, to notify of the exclusive right belonging to him. The specified sign consists of three elements:

1) the Latin letter "P" in a circle;

2) the name or designation of the owner of the exclusive right;

3) the year of the first publication of the phonogram.

At the same time, a copy of a phonogram is understood to be its copy on any material carrier, made directly or indirectly from a phonogram and including all the sounds or part of the sounds or their reflections recorded in this phonogram. The display of sounds is understood as their representation in digital form, for the conversion of which into a form perceived by the ear, the use of appropriate technical means is required.

As provided by Art. 1306 of the Civil Code, the use of objects of related rights without the consent of the copyright holder and without payment of remuneration is allowed in cases of free use of works (Articles 1273, 1274, 1277, 1278 and 1279 of the Civil Code), as well as in other cases provided for in Ch. 71 of this Code.

In relation to related rights, the same or similar provisions that govern the relevant relations regarding copyrights are applied, the provisions relating to the agreement on the alienation of the exclusive right to the object of such rights, the license agreement on granting the right to use the latter, technical means of protecting related rights, information about them , liability for violation of the exclusive right to the object of related rights, securing a claim in cases of violation of these rights (Articles 1307 - 1312 of the Civil Code).

Performance rights. In § 2 ch. 71 of the Civil Code contains rules relating to rights to perform. In particular, in Art. 1313 of the Civil Code defines the performer. According to this definition, a performer (author of a performance) is a citizen whose creative work created the performance - a performing artist (actor, singer, musician, dancer or other person who plays a role, reads, recites, sings, plays a musical instrument or other participates in the performance of a work of literature, art or folk art, including a variety, circus or puppet show), as well as the director of the performance (the person who staged the theatrical, circus, puppet, variety or other theatrical and entertainment performance) and the conductor .

Article 1314 of the Civil Code establishes related rights for joint performance, which practically do not differ from the previously stated rights of co-authors of works of science, literature and art.

The rights of the performer are defined in Art. 1315 GK. According to paragraph 1 of this article, the performer owns:

▪ exclusive right to perform;

▪ right of authorship;

▪ right to a name;

▪ the right to integrity of performance.

According to the norm of paragraph 2 of Art. 1315 of the Civil Code, performers exercise their rights in compliance with the rights of the authors of the performed works. At the same time, the rights of the performer are recognized and are valid regardless of the existence and validity of copyright in the work being performed, which indicates their independent nature (paragraph 3 of the said article).

Article 1316 of the Civil Code, similarly to copyright, provides for the protection of authorship, the name of the performer and the inviolability of the performance after the death of the performer.

Important for the protection of the interests of the performer is Art. 1317 of the Civil Code, which regulates the exclusive right to perform. In accordance with the named article, the performer has the exclusive right to use the performance in accordance with Art. 1229 of the Civil Code in any way that does not contradict the law, including the methods indicated below. The performer may dispose of the exclusive right to perform.

In accordance with paragraph 2 of Art. 1317 of the Civil Code, the use of a performance is considered:

1) broadcast message;

2) cable communication;

3) performance record;

4) playback of the recording of the performance;

5) distribution of a recording of a performance by selling or otherwise alienating its original or copies, which are copies of such a recording on any material medium;

6) the action taken in relation to the fixation of the performance and provided for in paragraphs 1 and 2;

7) bringing the recording of the performance to the public in such a way that any person can access the recording of the performance from any place and at any time of his own choice (bringing to the public);

8) public performance of the recording of the performance;

9) rental of the original or copies of the recording of the performance.

In the public interest, the law allows the limitation of the exclusive right to perform. Thus, this right does not extend to reproduction, broadcasting or cable broadcasting and public performance of a recording of a performance in cases where such a recording was made with the consent of the performer, and its reproduction, broadcasting or cable broadcasting or public performance is carried out for the same purposes. for which the consent of the performer was obtained when recording the performance (clause 3 of article 1317 of the Civil Code).

As a general rule, the exclusive right to a performance is valid throughout the life of the performer, but not less than 50 years, counting from January 1 of the year following the year in which the performance, or the recording of the performance, or the transmission of the performance on the air or by cable. When the exclusive right to perform expires, that right passes into the public domain. For a performance that has entered the public domain, the rules of Art. 1282 GK.

According to the norm of art. The rules of art. 1320 of the said Code.

Right to the phonogram. The right of broadcasting and cable broadcasting organizations. The right of the database manufacturer The right of the publisher to a work of science, literature or art. The law also regulates in sufficient detail the related rights of the producer of a phonogram, broadcasting and cable broadcasting organizations, the database manufacturer, and the publisher (Articles 1322 - 1344 of the Civil Code). Thus, the exclusive right to a phonogram is valid for 50 years, counting from January 1 of the year following the year in which the recording was made. If a phonogram is made public, the exclusive right is valid for 50 years, counting from January 1 of the year following the year in which it was made public, provided that the phonogram was made public within 50 years after the recording was made.

In accordance with Art. 1331 of the Civil Code, the exclusive right to communicate a radio or television broadcast is valid for 50 years, counting from January 1 of the year following the year in which the radio or television broadcast was broadcast or cabled.

The exclusive right of the database manufacturer arises at the moment of completion of its creation and is valid for 15 years, counting from January 1 of the year following the year of its creation. The exclusive right of the manufacturer of the database published during the specified period is valid for 15 years, counting from January 1 of the year following the year of its publication. The above terms are renewed with each update of the database (Article 1335 of the Civil Code).

The exclusive right of a publisher to a work arises at the time of publication of this work and is valid for 25 years, counting from January 1 of the year following the year of its publication (Article 1340 of the Civil Code).

Topic 26. PATENT LAW

Patent law can be viewed in both an objective and a subjective sense. Patent law in an objective sense is a set of legal norms regulating relations arising in connection with the creation and use of inventions, utility models and industrial designs. Patent law in the subjective sense is a personal non-property or property right of a particular subject relating to a particular invention, utility model or sample.

The sources of patent law are the Civil Code, other acts containing the norms of patent law, in particular, those issued by the federal executive body responsible for legal regulation in the field of intellectual property (now the Ministry of Education and Science of Russia). The sources of patent law are also:

▪ Paris Convention of 1883 for the Protection of Industrial Property (Russia has been a party to it since 1965);

▪ Patent Cooperation Treaty, concluded in Washington on June 19, 1970 (the Russian Federation acceded to it on March 29, 1978);

▪ Eurasian Patent Convention of 1995 (ratified by Federal Law No. 01.06.1995-FZ dated June 85, 27; entered into force for the Russian Federation on September 1995, XNUMX).

Basic provisions of patent law. Chapter is devoted to the Institute of Patent Law. 72 Civil Code. § 1 of this chapter sets out the main provisions relating to patent rights. In particular, in accordance with paragraph 1 of Art. 1345 of the Civil Code, intellectual rights to inventions, utility models and industrial designs are patent rights. In accordance with paragraph 2 of this article, the author of an invention, utility model or industrial design has the exclusive right and the right of authorship. In cases provided for by the Civil Code, the author of an invention, utility model or industrial design also has other rights, including the right to obtain a patent, the right to remuneration for the use of a service invention, utility model or industrial design.

According to the norm of art. 1346 of the Civil Code on the territory of the Russian Federation, exclusive rights to inventions, utility models and industrial designs certified by patents issued by the federal executive authority for intellectual property (Rospatent) or patents valid on the territory of the Russian Federation in accordance with international treaties of the Russian Federation are recognized.

The author of an invention, utility model or industrial design is a citizen whose creative work created the corresponding result of intellectual activity.

In Art. 1349 of the Civil Code defines the objects of patent rights. These are:

1) the results of intellectual activity in the scientific and technical field that meet the requirements for inventions and utility models established in the Civil Code;

2) the results of intellectual activity in the field of artistic design that meet the requirements established by the Civil Code for industrial designs.

The provisions of the Civil Code apply to inventions containing information constituting a state secret (secret inventions), unless otherwise provided by the special rules of Art. 1401 - 1405 of this Code and other legal acts issued in accordance with them. Utility models and industrial designs containing information constituting a state secret are not granted legal protection in accordance with the Civil Code.

They cannot be objects of patent rights (clause 4 of article 13 49 of the Civil Code):

▪ methods of human cloning;

▪ methods for modifying the genetic integrity of human germline cells;

▪ use of human embryos for industrial and commercial purposes;

▪ other decisions that are contrary to public interests, principles of humanity and morality.

In Art. 1350 - 1352 of the Civil Code defines the conditions for the patentability of an invention, utility model and industrial design.

So, in paragraph 1 of Art. 1350 of the Civil Code contains the definition of the invention. In accordance with this definition, a technical solution is protected as an invention in any field related to a product (in particular, a device, a substance, a strain of a microorganism, a plant or animal cell culture) or a method (the process of performing actions on a material object using material means). An invention is granted legal protection if it (paragraph 2, clause 1 of the said article):

▪ is new;

▪ has an inventive step;

▪ industrially applicable.

An invention is new if it is not known from the prior art. An invention involves an inventive step if it does not clearly follow from the prior art for a specialist. At the same time, the state of the art includes any information that has become publicly available in the world before the priority date of the invention. Finally, an invention is industrially applicable if it can be used in industry, agriculture, health care, other sectors of the economy or in the social sphere.

In accordance with paragraph 5 of Art. 1350 GK are not inventions:

1) discoveries;

2) scientific theories and mathematical methods;

3) decisions relating only to the appearance of products and aimed at satisfying aesthetic needs;

4) rules and methods of games, intellectual or economic activity;

5) computer programs;

6) decisions consisting only in the provision of information.

The possibility of attributing these objects to inventions is excluded only in the case when the application for the grant of a patent for an invention concerns these objects as such.

According to paragraph 6 of Art. 1350 of the Civil Code does not provide legal protection as an invention:

▪ plant varieties, animal breeds and biological methods for their production, with the exception of microbiological methods and products obtained by such methods;

▪ topologies of integrated circuits.

In Art. 1351 of the Civil Code defines a utility model. According to this definition, a technical solution relating to a device is protected as a utility model. A utility model is granted legal protection if it is new and industrially applicable. Legal protection is not granted as a utility model:

▪ decisions relating only to the appearance of products and aimed at satisfying aesthetic needs;

▪ topologies of integrated circuits.

In accordance with Art. 1352 of the Civil Code, as an industrial design, an artistic and design solution of an industrial or handicraft product, which determines its appearance, is protected. An industrial design is granted legal protection if it is new and original by its essential features. The essential features of an industrial design include features that determine the aesthetic and (or) ergonomic features of the appearance of the product, in particular the shape, configuration, ornament and combination of colors. An industrial design is new if the totality of its essential features, reflected in the images of the product and listed in the list of essential features of the industrial design (clause 2 of article 1377 of the Civil Code), is not known from the information that became publicly available in the world before the priority date of the industrial design. An industrial design is original if its essential features are due to the creative nature of the features of the product.

Legal protection as an industrial design is not granted:

▪ decisions determined solely by the technical function of the product;

▪ architectural objects (except for small architectural forms), industrial, hydraulic and other stationary structures;

▪ objects of unstable shape made of liquid, gaseous, granular or similar substances.

The exclusive right to an invention, utility model or industrial design is recognized and protected subject to the state registration of the corresponding invention, utility model or industrial design, on the basis of which the federal executive authority for intellectual property issues a patent for the invention, utility model or industrial design (Article 1353 GK). In accordance with Art. 1354 of the Civil Code a patent for an invention, utility model or industrial design certifies:

1) the priority of an invention, utility model or industrial design;

2) authorship;

3) the exclusive right to an invention, utility model or industrial design.

Protection of intellectual property rights to an invention or utility model is granted on the basis of a patent to the extent determined by the claims contained in the patent or utility model. The description and drawings may be used to interpret the claims and utility model claims (clause 2 of article 1375 and clause 2 of article 1376 of the Civil Code). Protection of intellectual rights to an industrial design is provided on the basis of a patent in the amount determined by the totality of its essential features reflected in the images of the product and listed in the list of essential features of the industrial design (clause 2 of article 1377 of the Civil Code).

Norm Art. 1355 of the Civil Code provides for state incentives for the creation and use of inventions, utility models and industrial designs, carried out in relation to their authors, as well as patent holders and licensees in the form of providing them with benefits in accordance with the legislation of the Russian Federation.

Patent rights. § 2 Ch. is devoted to the direct regulation of patent rights. 72 GK. These rights include:

▪ right of authorship;

▪ the right to obtain a patent;

▪ exclusive right to an invention, utility model or industrial design.

In accordance with Art. 1356 of the Civil Code, the author of an invention, utility model or industrial design has the right of authorship, which in its content and properties is similar to the right of authorship for works of science, literature or art.

The right to obtain a patent for an invention, utility model or industrial design initially belongs to the author of the invention, utility model or industrial design. This right may pass to another person (successor) or be transferred to him in cases and on the grounds established by law, including by way of universal succession, or under an agreement, including under an employment contract. An agreement on the alienation of the right to obtain a patent for an invention, utility model or industrial design must be concluded in writing. Failure to comply with the written form entails the invalidity of the contract. Unless otherwise provided by agreement of the parties to the agreement on the alienation of the right to obtain a patent for an invention, utility model or industrial design, the risk of non-patentability shall be borne by the acquirer of such a right (Article 1357 of the Civil Code).

According to the norm of art. 1358 of the Civil Code, the patent owner has the exclusive right to use an invention, utility model or industrial design in accordance with Art. 1229 of the Civil Code in any way that does not contradict the law (exclusive right to an invention, utility model or industrial design), including the methods indicated below. The patent owner may dispose of the exclusive right to an invention, utility model or industrial design.

In accordance with paragraph 2 of Art. 1358 of the Civil Code, the use of an invention, utility model or industrial design is considered, in particular:

▪ import into the territory of the Russian Federation, production, use, offer for sale, sale, other introduction into civil circulation or storage for these purposes of a product in which an invention or utility model is used, or a product in which an industrial design is used;

▪ performing the same actions in relation to a product obtained directly by the patented method. If a product obtained by a patented process is new, an identical product is considered to have been obtained by using a patented process unless proven otherwise;

▪ performing the actions provided for in the previous paragraph in relation to a device, during the functioning (operation) of which, in accordance with its purpose, a patented method is automatically carried out;

▪ carrying out a method in which the invention is used, in particular by applying this method.

If the holders of a patent for one invention, one utility model or one industrial design are two or more persons, the rules of paragraphs 2 and 3 of Art. 1348 of the Civil Code relating to co-authorship, regardless of whether any of the patent holders is the author of this result of intellectual activity.

In accordance with Art. 1360 of the Civil Code, the Government of the Russian Federation has the right, in the interests of defense and security, to allow the use of an invention, utility model or industrial design without the consent of the patent owner, notifying him of this as soon as possible and paying him proportionate compensation.

A person who, prior to the priority date of an invention, utility model or industrial design (Articles 1381 and 1382 of the Civil Code) in good faith used an identical solution created independently of the author on the territory of the Russian Federation or made the necessary preparations for this, retains the right to further free use of an identical solution without extension the scope of such use (the right of prior use). This right may be transferred to another person only together with the company where the identical solution has been used or the necessary preparations have been made.

The patent owner is not only entitled, but also obliged (in order to avoid obstructing scientific and technological progress) to use an invention, utility model or industrial design. Accordingly, the provision of art. 1362 of the Civil Code provides for the possibility of granting a compulsory license for these objects. According to this article, if an invention or industrial design is not used or insufficiently used by the patent owner within four years from the date of issue of the patent, and a utility model - within three years from the date of issue of the patent, which leads to an insufficient supply of the relevant goods, works or services on the market , any person wishing and ready to use such an invention, utility model or industrial design, if the patent owner refuses to conclude a license agreement with this person on the terms corresponding to established practice, has the right to file a lawsuit against the patent owner for a compulsory simple (non-exclusive) license for the use on the territory of the Russian Federation of an invention, utility model or industrial design.

If the patent owner cannot use an invention or utility model without using the invention or utility model for which a patent has been issued to another person who has refused to conclude a license agreement with him, he has the right to file a lawsuit against the owner of this patent for compulsory idle time. (non-exclusive) license to use the relevant invention or utility model on the territory of the Russian Federation. The right to use the invention obtained under this license cannot be transferred to other persons, except in the case of alienation of the patent for this invention. If a compulsory simple (non-exclusive) license is granted on the above grounds, the holder of a patent for an invention or utility model, the right to use which is granted on the basis of the said license, also has the right to obtain a simple (non-exclusive) license to use a dependent invention, in connection with which a compulsory simple (non-exclusive) license was issued, on conditions consistent with established practice.

The terms of validity of exclusive rights to an invention, utility model and industrial design are defined in Art. 1363 GK. In accordance with this article, the period of validity of the exclusive right to an invention, utility model, industrial design and the patent certifying this right is calculated from the date of filing the initial application for a patent with the federal executive body for intellectual property and, subject to the requirements established by the Civil Code, is:

▪ 20 years - for inventions;

▪ 10 years - for utility models;

▪ 15 years - for industrial designs.

The validity period of an exclusive right and a patent certifying this right may be extended by Rospatent at the request of the patent holder:

▪ in relation to a utility model for no more than three years;

▪ in relation to an industrial design - for no more than 10 years.

Upon the expiration of the exclusive right, an invention, utility model or industrial design shall enter the public domain.

Disposal of the exclusive right to an invention, utility model or industrial design. The rules on the disposal of the exclusive right to an invention, utility model or industrial design are contained in § 3 of Chapter 72 of the Civil Code. In particular, according to Art. 1365 of the Civil Code, such an order can be carried out by concluding an agreement between the patent holder and the acquirer of the patent on the alienation of the above right (agreement on the alienation of the patent). A special feature of concluding an agreement of this kind is the possibility of making a public proposal to conclude an agreement on the alienation of a patent for an invention. In accordance with Art. 1366 of the Civil Code, an applicant who is the author of an invention, when filing an application for a patent for an invention, may attach to the application documents a statement that if a patent is issued, he undertakes to enter into an agreement on the alienation of the patent on terms consistent with established practice with any citizen of the Russian Federation or the Russian legal entity who was the first to express such a desire and notify the patent holder and Rospatent about it. If there is such an application, the patent fees provided for by the Civil Code in relation to the application for a patent for an invention and in relation to the patent issued under such an application are not levied on the applicant. Rospatent publishes information about this application in the official bulletin.

A person who has concluded with the patent owner on the basis of his application an agreement on the alienation of a patent for an invention is obliged to pay all patent fees from which the applicant (patent owner) was exempted. In the future, patent fees are paid in the prescribed manner. In order to register an agreement on the alienation of a patent with Rospatent, a document confirming the payment of all patent fees from which the applicant (patent holder) was exempted must be attached to the application for registration of the agreement.

If, within two years from the date of publication of information on the grant of a patent for an invention in respect of which the above statement was made, Rospatent has not received a written notification of the desire to conclude an agreement on the alienation of a patent, the patent owner may file a petition with the specified federal body to withdraw his application . In this case, the patent fees provided for by the Civil Code, from which the applicant (patent holder) was exempted, are payable. In the future, patent fees are paid in the prescribed manner. Rospatent publishes in the official bulletin information about such withdrawal of the application.

The disposal of the exclusive right to an invention, utility model or industrial design is also possible through the conclusion of an appropriate license agreement (Article 1367 of the Civil Code). The patent holder may submit an application to Rospatent on the possibility of granting any person the right to use an invention, utility model or industrial design (open license). In this case, the amount of the patent fee for maintaining a patent for an invention, utility model or industrial design in force is reduced by 50%, starting from the year following the year of publication by Rospatent of information about an open license.

The terms of the license under which the right to use an invention, utility model or industrial design may be granted to any person shall be communicated by the patent holder to Rospatent, which shall publish, at the expense of the patent holder, the relevant information on the open license. The patent owner is obliged to conclude a license agreement with a person who has expressed a desire to use the said invention, utility model or industrial design on the terms of a simple (non-exclusive) license.

If within two years from the date of publication of information on an open license, the patent owner has not received written proposals to conclude a license agreement on the terms contained in his application, he may file a petition with Rospatent to withdraw his application for an open license. In this case, the patent fee for maintaining the patent in force is subject to additional payment for the period elapsed from the date of publication of information about the open license, and subsequently paid in full, and Rospatent publishes in the official bulletin information about the withdrawal of the application (Article 1368 of the Civil Code).

An agreement on the alienation of a patent, a license agreement, as well as other agreements through which the disposal of the exclusive right to an invention, utility model or industrial design is carried out, are concluded in writing and are subject to state registration by the federal executive body for intellectual property (Article 1369 of the Civil Code).

Invention, utility model and industrial design created in connection with the performance of an official assignment or during the performance of work under a contract. Relations regarding inventions, utility models and industrial designs created in connection with the performance of an official assignment or during the performance of work under a contract are regulated by the norms of § 4 Ch. 72 Civil Code. So, in accordance with paragraph 1 of Art. 1370 of the Civil Code, an invention, utility model or industrial design created by an employee in connection with the performance of his job duties or a specific assignment of the employer is recognized, respectively, as a service invention, service utility model or service industrial design. In accordance with paragraph 2 of this article, the right of authorship to a service invention, service utility model or service industrial design belongs to the employee (author). And according to the norm of paragraph 3 of this article, the exclusive right to the specified results of intellectual activity and the right to obtain a patent belong to the employer, unless otherwise provided by an employment or other agreement between the employee and the employer.

Unless otherwise agreed in the contract between the employer and the employee, the employee must notify the employer in writing of the creation, in connection with the performance of his labor duties or a specific task of the employer, of such a result, in respect of which legal protection is possible. If the employer, within four months from the date of notification by the employee, does not file an application for a patent for the relevant service invention, service utility model or service industrial design with Rospatent, does not transfer the right to obtain a patent for them to another person or does not inform the employee about the preservation of information about the corresponding result of intellectual activity in secret, the right to obtain a patent for such an invention, utility model or industrial design belongs to the employee. In this case, the employer, during the term of the patent, has the right to use the service invention, service utility model or service industrial design in its own production under the terms of a simple (non-exclusive) license with the payment of compensation to the patent owner, the amount, conditions and procedure for payment of which are determined by the contract between the employee and the employer. and, in the event of a dispute, by the court.

If the employer obtains a patent for a service invention, service utility model or service industrial design, or decides to keep information about such an invention, utility model or industrial design secret and informs the employee about it, or transfers the right to obtain a patent to another person, or does not receives a patent on the application filed by him for reasons depending on him, the employee is entitled to remuneration. The amount of remuneration, the conditions and procedure for its payment by the employer are determined by the agreement between him and the employee, and in the event of a dispute - by the court.

The Government of the Russian Federation has the right to establish minimum rates of remuneration for service inventions, service utility models, service industrial designs (clause 4 of article 1370 of the Civil Code).

The invention, utility model and industrial design created in the course of performing work under a contract is referred to in Art. 1371 GK. According to this article, in the case when an invention, utility model or industrial design is created in the performance of a work contract or contract for the performance of research, development or technological work that did not directly provide for their creation, the right to obtain a patent and the exclusive right to such an invention, utility model or industrial design belongs to the contractor (performer), unless otherwise provided by the contract between him and the customer. In this case, the customer has the right, unless otherwise provided by the contract, to use the invention, utility model or industrial design created in this way for the purposes for which the relevant contract was concluded, under the terms of a simple (non-exclusive) license during the entire term of the patent without payment for this is the use of additional rewards. When the contractor (executor) transfers the right to obtain a patent or alienates the patent itself to another person, the customer retains the right to use the invention, utility model or industrial design on the specified conditions.

In the event that, in accordance with an agreement between the contractor (performer) and the customer, the right to obtain a patent or the exclusive right to an invention, utility model or industrial design has been transferred to the customer or to a third party specified by him, the contractor (performer) has the right to use the created invention, utility model or an industrial design for own needs on the terms of a free simple (non-exclusive) license for the entire duration of the patent, unless otherwise provided by the agreement. The author of the above invention, utility model and / or industrial design, who is not a patent holder, is paid a fee in accordance with paragraph 4 of Art. 1370 GK.

In Art. 1372 of the Civil Code regulates relations related to the creation of an industrial design by order. A feature of these relations is that, unless otherwise provided by the contract between the contractor (performer) and the customer, the right to obtain a patent and the exclusive right to such an industrial design belongs to the customer.

The rules relating to an invention, utility model, industrial design created in the course of performing work under a state or municipal contract are contained in Art. 1373 GK.

Obtaining a patent. The procedure for obtaining a patent is defined in § 5 of Chapter 72 of the Civil Code. Establishing the priority of an invention, utility model or industrial design is important for protecting the interests of authors. Priority is established by the date of filing an application for an invention, utility model or industrial design with Rospatent (clause 1 of Article 1381 of the Civil Code).

In accordance with paragraph 1 of Art. 1382 of the Civil Code, the priority of an invention, utility model or industrial design may be established by the date of filing the first application for an invention, utility model or industrial design in a state party to the Paris Convention for the Protection of Industrial Property (convention priority), subject to submission to Rospatent:

▪ applications for an invention or utility model - within 12 months from the specified date;

▪ applications for an industrial design - within six months from the specified date.

If, due to circumstances beyond the control of the applicant, the application for which conventional priority is claimed could not be filed within the specified period, this period may be extended by Rospatent, but not more than for two months.

An applicant who wishes to exercise the right of conventional priority in relation to an application for a utility model or industrial design must inform Rospatent before the expiration of two months from the date of filing such an application and submit a certified copy of the first application specified in paragraph 1 of Art. 1382 of the Civil Code, before the expiration of three months from the date of filing with this federal body of an application for which conventional priority is requested. An applicant who wishes to exercise the right of conventional priority in relation to an invention application must notify Rospatent and submit to this federal agency a certified copy of the first application within 16 months from the date of its filing with the patent office of a state party to the Paris Convention for the Protection of Industrial Property.

If a certified copy of the first application is not submitted within the specified period, the right of priority may nevertheless be recognized by Rospatent at the request of the applicant submitted by him to this authority before the expiration of the specified period, provided that a copy of the first application is requested by the applicant in the patent office in which the first application was filed , within 14 months from the date of filing the first application and submitted to Rospatent within two months from the date of its receipt by the applicant. The said federal body has the right to require the applicant to submit a translation into Russian of the first application for an invention only in the case when the verification of the validity of the claim to the priority of the invention is connected with the establishment of the patentability of the claimed invention.

According to paragraph 1 of Art. 1383 of the Civil Code, if during the examination it is established that different applicants filed applications for identical inventions, utility models or industrial designs and these applications have the same priority date, a patent for an invention, utility model or industrial design can be issued only for one of such applications to a person determined by agreement between the applicants. The applicants must inform Rospatent about the agreement reached by them within 12 months from the date of receipt of the relevant notification from this authority. When a patent is granted under one of the applications, all the authors indicated in it are recognized as co-authors in respect of identical inventions, utility models or industrial designs. If, within the prescribed period, this federal body does not receive from the applicants the said message or a request for an extension of the established period in the manner provided for in paragraph 5 of Art. 1386 of the Civil Code, applications are recognized as withdrawn.

Examination of a patent application. According to an application for an invention received by Rospatent, a formal examination is carried out, during which the availability of documents provided for in paragraph 2 of Art. 1 375 Civil Code, and their compliance with established requirements. In the case when the applicant submits additional materials to the application for an invention, in accordance with paragraph 1 of Art. 1378 of the Civil Code, it is checked whether they do not change the essence of the claimed invention. Additional materials in the part that change the essence of the claimed invention are not taken into account when considering an application for an invention, but can be submitted by the applicant as an independent application, of which Rospatent notifies the applicant. The specified body notifies the applicant of the positive result of the formal examination and the date of filing the application for the invention immediately after completion of the formal examination.

In accordance with Art. 1385 of the Civil Code, Rospatent, after 18 months from the date of filing an application for an invention that has passed a formal examination with a positive result, publishes information about the application for an invention in the official bulletin. The composition of published information is determined by the federal executive body responsible for legal regulation in the field of intellectual property (currently these functions are performed by the Russian Ministry of Education and Science). Moreover, the author of the invention has the right to refuse to be mentioned as such in the published information about the application for the invention.

At the request of the applicant, filed before the expiration of 12 months from the date of filing an application for an invention, Rospatent may publish information about the application before the expiration of 18 months from the date of its filing.

Publication is not made if, before the expiration of 12 months from the date of filing an application for an invention, it was withdrawn or recognized as withdrawn, or the invention was registered on its basis (clause 1 of article 1385 of the Civil Code).

Any person after the publication of information about the application for an invention has the right to familiarize himself with the documents of the application, if the application is not withdrawn and is not recognized as withdrawn on the date of publication of information about it (clause 2 of article 1385 of the Civil Code).

At the request of the applicant or third parties, which may be filed with Rospatent when filing an application for an invention or within three years from the date of filing this application, and subject to completion of the formal examination of this application with a positive result, an examination of the application for an invention is carried out on the merits. The specified body notifies the applicant about the received petitions of third parties. The deadline for filing a request for substantive examination of an application for an invention may be extended by Rospatent at the request of the applicant filed before the expiration of this period, but not more than for two months, provided that a document confirming the payment of the patent fee is submitted along with the request. If a request for substantive examination of an application for an invention is not filed within the established time limit, the application shall be deemed withdrawn.

Examination of an application for an invention on the merits includes:

1) information search in relation to the claimed invention to determine the state of the art, in comparison with which the novelty and inventive step of the invention will be assessed;

2) verification of compliance of the claimed invention with the conditions of patentability provided for in Art. 1350 GK.

The procedure for conducting an information search and submitting a report on it is established by the federal executive body in charge of legal regulation in the field of intellectual property (Ministry of Education and Science of Russia). Upon the expiration of six months from the date of commencement of the substantive examination of an application for an invention, Rospatent sends to the applicant a report on information search, unless such an application claims a priority earlier than the filing date of the application, and if a request for the examination of an application for an invention on the merits was filed at the time of filing applications.

The applicant and third parties, without submitting a request for an examination of an application for an invention on the merits, have the right to apply for an information search on an application for an invention that has passed a formal examination with a positive result to determine the state of the art, in comparison with which the assessment of novelty and inventiveness will be carried out. level of the claimed invention.

According to Art. 1387 of the Civil Code, if as a result of the examination of the application for an invention on the merits it is established that the claimed invention, expressed by the formula proposed by the applicant, complies with the conditions of patentability provided for in Art. 1350 of the Civil Code, Rospatent decides to grant a patent for an invention with this formula. The decision indicates the priority date of the invention. If during the examination of an application for an invention on the merits it is established that the claimed invention, expressed by the formula proposed by the applicant, does not meet the specified conditions of patentability, Rospatent decides to refuse to grant a patent. Decisions of the said federal body to refuse to grant a patent for an invention, to grant a patent for an invention, or to recognize an application for an invention as withdrawn may be challenged by the applicant by filing an objection with the Chamber for Patent Disputes within six months from the date of receipt by him of the decision or requested from this federal body. body of copies of materials opposed to the application and specified in the decision to refuse to grant a patent, provided that the applicant requested copies of these materials within two months from the date of receipt of the decision taken on the application for an invention. The applicant has the right to get acquainted with all materials related to the patenting of inventions, to which there is a reference in requests, reports, decisions, notifications or other documents received by him from this federal body. Copies of the patent documents requested by the applicant in Rospatent are sent to him within a month from the date of receipt of the request (Article 1388 of the Civil Code).

In Art. 1389 of the Civil Code provides for the possibility of restoring missed deadlines related to the examination of an application for an invention, at the request filed by the applicant in the manner prescribed by this article, within 12 months from the date of expiration of the established period.

Unlike an application for an invention, only a formal examination is carried out on an application for a utility model. However, the applicant and third parties have the right to request an information search in relation to the claimed utility model in order to determine the state of the art against which the patentability of the utility model can be assessed. In the event that, when considering an application for a utility model in Rospatent, it is established that the information contained in it constitutes a state secret, the application documents are classified in the manner prescribed by the legislation on state secrets. At the same time, the applicant is informed about the possibility of withdrawing the application for a utility model or converting it into an application for a secret invention. Consideration of such an application is suspended until the relevant application is received from the applicant or until the application is declassified (Article 1390 of the Civil Code).

In accordance with Art. 1391 of the Civil Code of an application for an industrial design, both a formal examination and an examination of the application on the merits are carried out.

An invention for which an application has been filed with Rospatent, from the date of publication of information about the application (clause 1 of Article 1385 of the Civil Code) until the date of publication of information on the grant of a patent (Article 1394 of the Civil Code), is granted temporary legal protection in the scope of the published claims, but no more than to the extent determined by the formula contained in the decision of this body to grant a patent for an invention. The person who uses the claimed invention during the above period shall pay the patent owner, after receiving the patent, monetary compensation. The amount of compensation is determined by agreement of the parties, and in the event of a dispute - by the court (Article 1392 of the Civil Code).

Based on the decision to grant a patent for an invention, utility model or industrial design, Rospatent, in accordance with Art. 1393 of the Civil Code, enters an invention, utility model or industrial design into the relevant state register, namely: into the State Register of Inventions of the Russian Federation, the State Register of Utility Models of the Russian Federation and the State Register of Industrial Designs of the Russian Federation, respectively, and issues a patent for an invention, utility model or industrial model. If a patent was requested in the name of several persons, they are issued one patent (clause 1).

State registration of an invention, utility model or industrial design and the grant of a patent are subject to the payment of the relevant patent fee. If the applicant fails to submit, in accordance with the established procedure, a document confirming the payment of the patent fee, the registration of the invention, utility model or industrial design and the grant of a patent shall not be carried out, and the corresponding application shall be recognized as withdrawn.

The form of a patent for an invention, utility model, industrial design and the composition of the information indicated in it are established by the Ministry of Education and Science of Russia. The specified federal body publishes in the official bulletin information about any changes in entries in state registers.

In accordance with paragraph 1 of Art. 1394 SC Rospatent publishes in the official bulletin information on the grant of a patent for an invention, utility model or industrial design, including:

1) the name of the author (if the author has not refused to be mentioned as such);

2) the name or denomination of the patent owner;

3) the name and claims of the invention or utility model or a list of essential features of an industrial design and its image.

After the publication of information on the grant of a patent for an invention, utility model or industrial design, any person has the right to familiarize himself with the application documents and the information search report (clause 2 of article 1394 of the Civil Code).

A patent for an invention, utility model or industrial design issued by Rospatent is valid only on the territory of Russia. To ensure the protection of an object abroad for commercial purposes, it is necessary to patent it in other countries.

As provided by Art. 1395 of the Civil Code, an application for a patent for an invention or utility model created in the Russian Federation may be filed in a foreign state or with an international organization after six months from the date of filing the relevant application with Rospatent, if the applicant is not notified of the that the application contains information constituting a state secret. An application for an invention or utility model may be filed earlier than the specified period, but after the verification, at the request of the applicant, of the presence in the application of information constituting a state secret. The procedure for conducting such an inspection is established by the Government of the Russian Federation.

Patenting in accordance with the Patent Cooperation Treaty or the Eurasian Patent Convention of an invention or utility model created in the Russian Federation is allowed without prior filing of the corresponding application with Rospatent, if the application in accordance with the Patent Cooperation Treaty (international application) is filed with this federal body as to the receiving Office and the Russian Federation as the state in which the applicant intends to obtain a patent, and the Eurasian application is filed through this federal body.

According to Art. 1396 of the Civil Code in the case of filing an international application for an invention or utility model in accordance with the Patent Cooperation Treaty, in which the Russian Federation is indicated as the state in which the applicant intends to obtain a patent for an invention or utility model, Rospatent begins consideration of this application after 31 months from the date of the priority claimed in the international application. At the request of the applicant, the international application is considered before the expiration of this period, provided that the application is filed in Russian or the applicant submits to Rospatent a translation into Russian of the application for a patent for an invention or utility model contained in the international application filed in another language before the expiration of the specified period. language. The submission to Rospatent of a translation into Russian of the application for the grant of a patent for an invention or utility model contained in the international application may be replaced by the submission of the application for the grant of a patent provided for by the Civil Code. If these documents are not submitted within the established time limit, the validity of the international application in respect of the Russian Federation in accordance with the Patent Cooperation Treaty shall be terminated.

The term provided for in paragraph 3 of Art. 1378 of the Civil Code for making changes to the application documents, is calculated from the day the consideration of the international application by Rospatent begins.

Consideration of a Eurasian application for an invention, which, in accordance with the Eurasian Patent Convention, has the force of an application for an invention provided for by the Civil Code, is carried out starting from the day when Rospatent received a certified copy of the Eurasian application from the Eurasian Patent Office. The term provided for in paragraph 3 of Art. 1378 of the Civil Code for making changes to the application documents, is calculated from the same date.

Publication in Russian of an international application by the International Bureau of the World Intellectual Property Organization in accordance with the Patent Cooperation Treaty or publication of a Eurasian application by the Eurasian Patent Office in accordance with the Eurasian Patent Convention replaces the publication of information about the application under Art. 1385 GK.

In the event that a Eurasian patent and a patent of the Russian Federation for identical inventions or an identical invention and utility model having the same priority date belong to different patent holders, such inventions or invention and utility model may only be used in compliance with the rights of all patent holders (Art. 1397 GK). If a Eurasian patent and a patent of the Russian Federation for identical inventions or identical inventions and utility models having the same priority date belong to the same person, this person may grant any person the right to use such inventions or inventions and utility models under license agreements concluded on the basis of these patents.

Termination and restoration of a patent. The rules on termination and restoration of a patent are contained in § 6 of Chapter. 72 Civil Code.

A patent for an invention, utility model or industrial design may be invalidated in whole or in part during the period of its validity in the cases specified in paragraph 1 of Art. 1398 GK. A patent is invalidated on the basis of a decision of Rospatent or a court decision that has entered into force.

According to the norm of art. 1399 of the Civil Code, a patent for an invention, utility model or industrial design is terminated early:

1) on the basis of an application submitted by the patent owner to Rospatent - from the date of receipt of the application;

2) in case of non-payment of the patent fee for maintaining the patent in force within the established period - from the date of expiration of the established period for payment of such fee.

However, according to Art. 1400 of the Civil Code in relation to the second case, it is possible to restore the validity of a patent, provided that the person who owned the patent submits an appropriate petition to Rospatent within three years from the date of expiration of the payment of the patent fee, but before the expiration of the patent validity period provided for in the Civil Code and the attachment of a document confirming payment in the established amount of the patent fee for the restoration of the patent.

A person who, during the period between the date of termination of a patent for an invention, utility model or industrial design and the date of publication in the official bulletin of Rospatent of information on the restoration of the patent, began to use the invention, utility model or industrial design or made the necessary preparations for this during the specified period, retains the right to its further gratuitous use without expanding the scope of such use (the right of subsequent use).

In § 7 ch. 72 of the Civil Code establishes the features of the legal protection and use of secret inventions.

Norms § 8 ch. 72 of the Civil Code are devoted to the protection of the rights of authors and patent holders. So, according to Art. 1406 of the Civil Code, disputes related to the protection of patent rights are considered by the court. Such disputes include, in particular:

1) disputes about the authorship of an invention, utility model, industrial design;

2) on the establishment of the patent owner;

3) on violation of the exclusive right to an invention, utility model or industrial design;

4) on the conclusion, execution, amendment and termination of agreements on the transfer of an exclusive right (alienation of a patent) and license agreements for the use of an invention, utility model, industrial design;

5) on the right of prior use;

6) on the right of after-use, etc.

In the cases referred to in Art. 1387, 1390, 1391, 1398, 1401 and 1404 of the Civil Code, protection of patent rights is also carried out administratively in accordance with clauses 2 and 3 of Art. 1248 GK.

Topic 27. RIGHT TO SELECTION ACHIEVEMENT

Ch. 73 parts of the fourth Civil Code. According to Art. 1408 of the Civil Code, the author of a selection achievement that meets the conditions for granting legal protection provided for by this Code owns the following intellectual rights:

▪ exclusive right;

▪ right of authorship.

In the cases provided for by the Civil Code, the author of a selection achievement also has other rights, including:

▪ the right to obtain a patent;

▪ the right to name the selection achievement;

▪ the right to remuneration for the use of a proprietary selection achievement.

According to the norm of art. 1410 of the Civil Code, a breeder is recognized as the author of a selection achievement - a citizen whose creative work created, bred or revealed the selection achievement.

In accordance with Art. 1412 of the Civil Code, the objects of intellectual rights to breeding achievements are plant varieties and animal breeds registered in the State Register of Protected Breeding Achievements, if these results of intellectual activity meet the requirements established by the Civil Code for such breeding achievements. In this case, a plant variety is a group of plants, which, regardless of protection, is determined by the characteristics that characterize a given genotype or combination of genotypes, and differs from other groups of plants of the same botanical taxon by one or more characteristics. The protected categories of plant variety are clone, line, first generation hybrid, population. An animal breed is a group of animals that, regardless of protection, has genetically determined biological and morphological properties and characteristics, some of which are specific to this group and distinguish it from other groups of animals.

The conditions for the protection of a selection achievement are established in Art. 1413 GK. According to this article, a patent is issued for a selection achievement that meets the criteria for protectability and refers to botanical and zoological genera and species, the list of which is established by the federal executive body responsible for legal regulation in the field of agriculture. Currently, this body is the Ministry of Agriculture of the Russian Federation (Ministry of Agriculture of Russia).

The criteria for the protection of a selection achievement are:

▪ novelty;

▪ distinctiveness;

▪ homogeneity;

▪ stability.

A plant variety and an animal breed are considered new if, as of the date of filing an application for a patent, the seeds or breeding material of this selection achievement have not been sold or otherwise transferred by the breeder, his successor or, with their consent, to other persons for the use of the selection achievement:

▪ on the territory of the Russian Federation earlier than one year before the specified date;

▪ on the territory of another state earlier than four years;

▪ or, if it concerns varieties of grapes, ornamental trees, tree fruit crops and woody forest species, earlier than six years before the specified date.

The selection achievement must be clearly distinct from any other well-known selection achievement existing at the time of filing the patent application. At the same time, a well-known selection achievement is a selection achievement, the data on which are in official catalogs or a reference fund, or which has an exact description in one of the publications. In addition, the filing of an application for a patent also makes the selection achievement publicly known from the date of filing the application, provided that the selection achievement has been granted a patent.

Plants of the same variety, animals of the same breed must be sufficiently homogeneous in their characteristics, taking into account individual deviations that may occur due to the characteristics of reproduction.

Finally, a selection achievement is considered stable if its main characteristics remain unchanged after repeated reproduction or, in the case of a special cycle of reproduction, at the end of each cycle of reproduction.

According to the norm of art. 1415 of the Civil Code, a patent for a selection achievement certifies the priority of the selection achievement, authorship and the exclusive right to the selection achievement. The scope of protection of intellectual rights to a selection achievement, granted on the basis of a patent, is determined by the totality of essential features recorded in the description of the selection achievement (clause 2 of article 1415 of the Civil Code).

In accordance with Art. 1416 of the Civil Code, the author of a selection achievement has the right to obtain an author's certificate, which is issued by the federal executive body for selection achievements and certifies authorship.

According to the norm of art. 1423 of the Civil Code, after three years from the date of issue of a patent for a selection achievement, any person who wants and is ready to use the selection achievement, if the patent owner refuses to conclude a license agreement for the production or sale of seeds, breeding material on conditions corresponding to established practice, has the right to apply to the court with a claim against the patent owner for a compulsory simple (non-exclusive) license to use such a selection achievement in the Russian Federation. In the claims, this person must indicate the conditions he proposes for granting such a license to him, including the scope of use of the selection achievement, the amount, procedure and terms of payments. On the basis of a court decision on granting a compulsory simple (non-exclusive) license, the patent owner is obliged, for a fee and on conditions acceptable to him, to provide the holder of such a license with seeds or, accordingly, breeding material in an amount sufficient to use the compulsory simple (non-exclusive) license (paragraph 2 of Article 1423 GK).

The validity period of the exclusive right to a selection achievement and the patent certifying this right is calculated from the date of state registration of the selection achievement in the State Register of Protected Selection Achievements and is 30 years (paragraph 1 of article 1424 of the Civil Code). For varieties of grapes, ornamental trees, fruit crops and forest species, including their rootstocks, the period of validity of the exclusive right and the patent certifying this right is 35 years (paragraph 2 of article 1424 of the Civil Code). After the expiration of the exclusive right, the selection achievement passes into the public domain (paragraph 1 of article 1425 of the Civil Code).

The disposal of the exclusive right to a selection achievement is possible in the form of concluding an agreement on the alienation of a patent (Article 1426 of the Civil Code) or a license agreement (Article 1428 of the Civil Code). Noma st. 1427 of the Civil Code provides for the possibility of a public offer to conclude an agreement on the alienation of a patent for a selection achievement, and Art. 1429 of the Civil Code grants the patent holder the right to file an application with the federal body on the possibility of granting any person the right to use a selection achievement (open license). In both cases, applicants are granted privileges for the payment of patent fees.

In Art. 1430 - 1432 of the Civil Code contains rules on a selection achievement created, bred or identified in the course of performing a job assignment or in the performance of work under a contract.

Obtaining a patent for a selection achievement. Norm Art. 1435 of the Civil Code provides for a preliminary examination of an application for a patent for a selection achievement, during which the priority date is established and the availability of documents provided for in paragraph 2 of Art. 1433 Civil Code, and their compliance with established requirements. A preliminary examination of a patent application is carried out within a month. Information on accepted applications is published in the official bulletin of the Russian Ministry of Agriculture. A selection achievement for which an application has been submitted to this body is granted temporary legal protection from the date of filing the application until the date of issue to the applicant of a patent for the selection achievement. During the period of temporary legal protection of a selection achievement, the applicant is allowed to sell and otherwise transfer seeds, breeding material only for scientific purposes, as well as in cases where the sale and other transfer are associated with the alienation of the right to obtain a patent for a selection achievement or with the production of seeds, breeding material for order of the applicant in order to create their stock (Article 1436 of the Civil Code).

In Art. 1437 of the Civil Code provides that any interested person, within six months from the date of publication of information about an application for a patent, may send a request to the federal body for an examination of the claimed selection achievement for novelty. The Ministry of Agriculture of Russia shall notify the applicant of the receipt of such a petition, outlining the essence of the petition. The applicant has the right, within three months from the date of receipt of the notification, to send a reasoned objection to the application to this body.

Based on the available materials, the said federal body makes a decision and informs the person concerned about it. If the selection achievement does not meet the criterion of novelty, a decision is made to refuse to issue a patent for the selection achievement.

According to the methods and within the time limits established by the Ministry of Agriculture of Russia, selection achievement tests are carried out for distinctness, uniformity and stability. The applicant is obliged to provide for testing the required amount of seeds, breeding material at the address and within the time specified by the Ministry of Agriculture of Russia.

The procedure for state registration of a selection achievement and the issuance of a patent is established in Art. 1439 GK.

Art. 1440 of the Civil Code establishes the obligation to preserve sectional achievements. In accordance with paragraph 1 of this article, the patent holder is obliged to maintain a plant variety or animal breed during the term of the patent for a selection achievement in such a way that the characteristics indicated in the description of the plant variety or animal breed, drawn up on the date of inclusion of the selection achievement in the State Register of Protected selection achievements. At the request of the Ministry of Agriculture of Russia, the patent holder is obliged to send at his own expense seeds or breeding material for control tests and provide an opportunity to conduct an on-site inspection (paragraph 2 of article 1440 of the Civil Code).

Topic 28

The rules relating to the law on the topology of integrated circuits are contained in Ch. 74 GK. According to Art. 1448 GK, the topology of an integrated circuit is the spatial-geometric arrangement of the totality of elements of an integrated circuit and the connections between them fixed on a material carrier. In this case, an integrated microcircuit is a microelectronic product of a final or intermediate form, which is intended to perform the functions of an electronic circuit, the elements and connections of which are inseparably formed in the volume and (or) on the surface of the material on the basis of which such a product is made.

The legal protection provided by the Civil Code extends only to the original integrated circuit topology created as a result of the author's creative activity and unknown to the author and (or) specialists in the field of integrated circuit topology development at the date of its creation. The topology of an integrated circuit is recognized as original until proven otherwise. The topology of an integrated circuit, consisting of elements that are known to specialists in the field of development of topologies of integrated circuits at the date of its creation, is provided with legal protection if the totality of such elements as a whole meets the requirement of originality (paragraph 2 of article 1448 of the Civil Code).

According to the norm of art. 1449 of the Civil Code, the author of the topology of an integrated circuit that meets the conditions for granting legal protection provided for by the Civil Code owns the following intellectual rights:

1) exclusive right;

2) the right of authorship.

In the cases provided for by the Civil Code, the author of the topology of the integrated circuit also has other rights, including the right to remuneration for the use of the service topology.

According to the norm of paragraph 2 of Art. 1454 of the Civil Code, the use of topology recognizes actions aimed at making profit, in particular:

1) reproduction of the topology in whole or in part by inclusion in an integrated circuit or otherwise, except for the reproduction of only that part of the topology that is not original;

2) import into the territory of the Russian Federation, sale and other introduction into civil circulation of a topology, or an integrated circuit, in which this topology is included, or a product that includes such an integrated circuit.

In accordance with Art. 1452 of the Civil Code, the right holder, during the period of validity of the exclusive right to the topology of an integrated circuit (Article 1457 of the Civil Code), may, at will, register the topology with the federal executive body for intellectual property (Rospatent). If prior to filing an application for the issuance of a certificate of state registration of a topology, the topology was used, the application may be filed within a period not exceeding two years from the date of the first use of the topology.

Based on the application for registration, Rospatent checks the availability of the necessary documents and their compliance with the requirements of clause 3 of Art. 1452 GK. If the result of the check is positive, Rospatent enters the topology into the Register of topologies of integrated circuits, issues the applicant a certificate of state registration of the topology of the integrated circuit and publishes information about the registered topology in the official bulletin (clause 5 of article 1452 of the Civil Code).

A person who independently created a topology identical to another topology is recognized as an independent exclusive right to this topology (clause 3 of article 1454 of the Civil Code).

According to the norm of art. 1455 of the Civil Code, in order to notify of his exclusive right to a topology, the right holder has the right to use the protection mark, which is placed on the topology, as well as on products containing such a topology. The specified sign consists of the following elements:

▪ a highlighted capital letter “T” (“T”, [T], the letter “T” in a circle or the letter “T” in a square);

▪ the start date of the exclusive right to the topology;

▪ information that allows you to identify the copyright holder. In Art. 1457 of the Civil Code establishes the validity period of the exclusive right to topology. According to paragraph 1 of this article, this right is valid for 10 years. Upon expiration of the exclusive right, the topology becomes public domain.

The norms concerning the service topology, as well as the topology created during the performance of work under an agreement, order, state municipal contract are contained in Art. 1461 - 1464 GK.

Topic 29. RIGHT TO PRODUCTION SECRET (KNOW-HOW)

In ch. 75 of the Civil Code regulates relations related to the secret of production (know-how; from the English know how - know how).

In accordance with Art. 1465 of the Civil Code, a secret of production (know-how) is information of any nature (production, technical, economic, organizational and others), including the results of intellectual activity in the scientific and technical field, as well as information about the methods of carrying out professional activities that have a valid or potential commercial value due to their being unknown to third parties, to which third parties do not have free access on a legal basis and in respect of which the owner of such information has introduced a trade secret regime.

The owner of a production secret has the exclusive right to use it in accordance with Art. 1229 of the Civil Code in any way that does not contradict the law (exclusive right to a secret of production), including in the manufacture of products and the implementation of economic and organizational decisions. The owner of a production secret may dispose of the specified exclusive right.

A person who, in good faith and independently of other owners of a production secret, becomes the owner of information constituting the content of a protected production secret acquires an independent exclusive right to this production secret (clause 2 of article 1466 of the Civil Code).

As provided in Art. 1467 of the Civil Code, the exclusive right to a production secret is valid as long as the confidentiality of the information constituting its content is maintained. From the moment of loss of confidentiality of the relevant information, the exclusive right to a production secret is terminated by all right holders.

The Civil Code provides for the possibility of concluding an agreement on the alienation of the exclusive right to a production secret (Article 1468) and a license agreement on granting the right to use a production secret (Article 1469).

In Art. 1470 and 1471 of the Civil Code, respectively, refer to an official production secret and a production secret obtained during the performance of work under the contract.

In accordance with paragraph 1 of Art. 1472 of the Civil Code violator of the exclusive right to a production secret, including a person who illegally obtained information constituting a production secret and disclosed or used this information, as well as a person obliged to maintain the confidentiality of a production secret in accordance with paragraph 2 of Art. 1468, paragraph 3 of Art. 1469 or paragraph 2 of Art. 1470 of the Civil Code, is obliged to compensate for losses caused by violation of the exclusive right to a production secret, unless other liability is provided for by law or an agreement with this person. At the same time, a person who used a production secret and did not know and should not have known that its use is illegal, including due to the fact that he gained access to a production secret by accident or by mistake, is not liable, the above (clause 2 of article 1472 of the Civil Code).

Topic 30

30.1. Right to trade name

Ch. 76 GK.

The means of individualization of a legal entity as a manufacturer of goods, performer of works or services is its trade name. The rules relating to the right to a trade name are contained in § 1 Ch. 76 GK.

In accordance with paragraph 1 of Art. 1473 of the Civil Code, a legal entity that is a commercial organization acts in civil circulation under its company name, which is determined in its constituent documents and included in the unified state register of legal entities upon state registration of a legal entity. According to paragraph 2 of the same article, the company name of a legal entity must contain:

1) an indication of its legal form;

2) the actual name of the legal entity, which cannot consist only of words denoting the type of activity. For example, the business name of a full partnership (limited partnership) must contain either the names (names) of all its participants (general partners) and the words "full partnership" ("limited partnership" or "limited partnership"), or the name (name) of one or several participants (general partners) with the addition of the words "and company" and the words "general partnership" ("limited partnership" or "limited partnership").

In accordance with paragraph 3 of Art. 1473 of the Civil Code, a legal entity must have a full and have the right to have an abbreviated company name in Russian. A legal entity is also entitled to have a full and (or) abbreviated trade name in the languages ​​of the peoples of the Russian Federation and (or) foreign languages. The trade name of a legal entity in Russian and the languages ​​of the peoples of the Russian Federation may contain foreign borrowings in Russian transcription or, respectively, in transcriptions of the languages ​​of the peoples of the Russian Federation, with the exception of terms and abbreviations that reflect the legal form of the legal entity.

According to paragraph 4 of Art. 1473 of the Civil Code, the company name of a legal entity cannot include:

1) full or abbreviated official names of the Russian Federation, foreign states, as well as words derived from such names;

2) full or abbreviated official names of federal state authorities, state authorities of the constituent entities of the Russian Federation and local governments;

3) full or abbreviated names of international and intergovernmental organizations;

4) full or abbreviated names of public associations;

5) designations that are contrary to public interests, as well as the principles of humanity and morality.

The trade name of a state unitary enterprise (SUE) may contain an indication that the SUE belongs to the Russian Federation and the constituent entity of the Russian Federation, respectively.

Inclusion in the corporate name of a joint-stock company (JSC) of the official name of the Russian Federation, as well as words derived from this name, is allowed with the permission of the Government of the Russian Federation, if more than 75% of the shares of the JSC belong to the Russian Federation. The procedure for issuing and revoking such permits shall be established by law.

A legal entity has the exclusive right to use its company name as a means of individualization in any way that does not contradict the law (exclusive right to a company name), including by indicating it on signs, letterheads, invoices and other documentation, in announcements and advertisements, on goods or their packages. This right arises for a legal entity from the moment of registration of a company name, i.e. state registration of the legal entity itself under this name.

Abbreviated company names, as well as company names in the languages ​​of the peoples of the Russian Federation and foreign languages, are protected by the exclusive right to a company name, provided they are included in the unified state register of legal entities.

Disposal of the exclusive right to a company name (including by alienating it or granting another person the right to use the company name) is not allowed.

It is not allowed for a legal entity to use a company name that is identical to the company name of another legal entity or confusingly similar to it if these legal entities carry out similar activities and the company name of the second legal entity was included in the unified state register of legal entities earlier than the company name of the first legal entity. faces. A legal entity that violates these rules is obliged, at the request of the copyright holder, to stop using a company name that is identical to the company name of the copyright holder or confusingly similar to it in relation to activities similar to those carried out by the copyright holder, and compensate the copyright holder for the losses caused (Article 1474 of the Civil Code ).

In accordance with Art. 1475 of the Civil Code on the territory of the Russian Federation, there is an exclusive right to a company name included in the unified state register of legal entities.

A trade name or its individual elements may be used by the right holder as part of a commercial designation belonging to him, as well as in his trademark and service mark (Article 1476 of the Civil Code).

30.2. Trademark right and service mark right

Trademarks are among the means of individualization of manufactured goods, and service marks are among the means of individualization of works or services performed. The institution of law for these signs is enshrined in § 2 Ch. 76 GK.

According to the definition contained in paragraph 1 of Art. 1477 of the Civil Code, a trademark is a designation that serves to individualize the goods of legal entities or individual entrepreneurs. An exclusive right is recognized for a trademark, certified by an appropriate certificate (Article 1481 of the Civil Code).

The Civil Code rules on trademarks apply accordingly to service marks. According to the norm of paragraph 2 of Art. 1477 of the Civil Code, a service mark is a designation that serves to individualize the work performed by legal entities or individual entrepreneurs or the services they provide.

The owner of the exclusive right to a trademark may be a legal entity or an individual entrepreneur (Article 1478 of the Civil Code).

According to the norm of Art. 1479 of the Civil Code on the territory of the Russian Federation, there is an exclusive right to a trademark registered by the federal executive authority for intellectual property (Rospatent), as well as in other cases provided for by an international treaty of the Russian Federation. In accordance with Art. 1480 of the Civil Code, state registration of a trademark is carried out by Rospatent in the State Register of Trademarks and Service Marks of the Russian Federation (State Register of Trademarks) in the manner prescribed by Art. 1503 and 1505 of the Civil Code.

A trademark certificate is issued for a trademark registered in the State Register of Trademarks (Article 1481 of the Civil Code). This certificate certifies:

1) trademark priority;

2) the exclusive right to a trademark in respect of the goods specified in the certificate.

Word, figurative, three-dimensional and other (for example, sound) designations or their combinations can be registered as trademarks. A trademark can be registered in any color or color combination (Article 1482 of the Civil Code).

The grounds for refusal of state registration of a trademark are provided for in Art. 1483 GK. In particular, state registration as trademarks of designations that are or contain elements of:

▪ that are false or capable of misleading the consumer regarding the product or its manufacturer;

▪ contrary to public interests, principles of humanity and morality.

Also, designations that are identical or confusingly similar cannot be registered as trademarks:

▪ with trademarks of other persons applied for registration (Article 1492 of the Civil Code) in relation to homogeneous goods and having an earlier priority, if the application for state registration of the trademark is not withdrawn or is not recognized as withdrawn;

▪ trademarks of other persons protected in the Russian Federation, including in accordance with an international treaty of the Russian Federation, in relation to similar goods and having an earlier priority;

▪ trademarks of other persons, recognized in the manner established by the Civil Code as well-known trademarks in the Russian Federation, in relation to homogeneous goods.

Registration as a trademark in relation to homogeneous goods of a designation confusingly similar to any of the trademarks indicated above is allowed only with the consent of the copyright holder.

Cannot be registered as trademarks in relation to any goods - designations that are identical or confusingly similar to the appellation of origin of goods protected in accordance with the Civil Code, and in relation to homogeneous goods - with a company name, commercial designation, name of a selection achievement. On the grounds provided for in Art. 1483 of the Civil Code, legal protection is also not granted to designations recognized as trademarks in accordance with international treaties of the Russian Federation.

Use of a trademark and disposal of the exclusive right to a trademark. In accordance with paragraph 1 of Art. 1484 of the Civil Code, the person in whose name the trademark is registered (the copyright holder) has the exclusive right to use the trademark in accordance with Art. 1229 of the Civil Code in any way that does not contradict the law (exclusive right to a trademark), including the methods indicated below. The copyright holder can dispose of the exclusive right to a trademark.

The exclusive right to a trademark may be exercised to individualize the goods, works or services in respect of which the trademark is registered, in particular by placing the trademark on goods, including on labels, packaging of goods, in advertisements, on signs and in advertising. No one has the right to use, without the permission of the right holder, designations similar to his trademark in relation to goods for the individualization of which the trademark is registered, or homogeneous goods, if as a result of such use there is a possibility of confusion (clause 2 of article 1484 of the Civil Code).

In accordance with Art. 1485 of the Civil Code, the right holder, in order to notify of his exclusive right to a trademark, has the right to use a protection sign, which is placed next to the trademark, consists of the Latin letter "R" or the Latin letter "R" in a circle or the word designation "trademark" or "registered trademark mark" and indicates that the designation used is a trademark protected in the territory of the Russian Federation.

The legal protection of a trademark may be terminated early in respect of all goods or part of the goods, for the individualization of which the trademark is registered, due to non-use of the trademark continuously for any three years after its state registration (paragraph 1 of Article 1486).

According to the norm of art. 1487 of the Civil Code is not a violation of the exclusive right to a trademark, the use of this trademark by other persons in relation to goods that were introduced into civil circulation on the territory of the Russian Federation directly by the copyright holder or with his consent (exhaustion of the exclusive right to a trademark).

The right holder may provide the opportunity to use a trademark to another person by concluding with him either an agreement on the alienation of the exclusive right to this mark (Article 1488 of the Civil Code) or a license agreement (Article 1489 of the Civil Code).

Under an agreement on the alienation of the exclusive right to a trademark, one party (right holder) transfers or undertakes to transfer in full its exclusive right to the corresponding trademark in respect of all goods or in relation to a part of the goods for the individualization of which it is registered, to the other party - the acquirer of the exclusive rights. Alienation of the exclusive right to a trademark under a contract is not allowed if it may cause misleading of the consumer regarding the product or its manufacturer.

Under a license agreement, one party - the owner of the exclusive right to a trademark (licensor) grants or undertakes to grant to the other party (licensee) the right to use the trademark within the limits specified by the agreement, with or without indicating the territory in which use is allowed, in relation to a certain area of ​​business activity . The licensee is obliged to ensure that the quality of the goods produced or sold by him, on which he places the licensed trademark, meets the quality requirements established by the licensor, and the latter has the right to monitor compliance with this condition. According to the requirements for the licensee as a manufacturer of goods, the licensee and the licensor are jointly and severally liable.

An agreement on the alienation of the exclusive right to a trademark, a license agreement, as well as other agreements through which the disposal of the exclusive right to a trademark is carried out, must be concluded in writing and are subject to state registration with the federal executive body for intellectual property (paragraph 1 of Art. 1490 GK).

According to the norm of art. 1491 of the Civil Code, the exclusive right to a trademark is valid for 10 years from the date of filing an application for state registration of a trademark with Rospatent. The term of validity of the exclusive right to a trademark may be extended for 10 years at the request of the right holder, filed during the last year of the validity of this right. Moreover, the extension of the validity of the exclusive right to a trademark is possible an unlimited number of times. At the request of the right holder, he may be given six months after the expiration of the term of the exclusive right to a trademark to file the said application, subject to the payment of a fee. An entry on the extension of the term of the exclusive right to a trademark is made by Rospatent in the State Register of Trademarks and in the trademark certificate (clause 3 of article 1491 of the Civil Code).

State registration of a trademark. The procedure for filing a trademark application is regulated by Art. 1492 Civil Code, and in Art. 1493 of the Civil Code establishes the right to familiarize yourself with the documents of an application for a trademark.

The priority of a trademark is established by the date of filing an application for a trademark with Rospatent (Clause 1, Article 1494 of the Civil Code). In addition, according to paragraph 1 of Art. 1495 of the Civil Code, the priority of a trademark may be established by the date of filing the first application for a trademark in a state party to the Paris Convention for the Protection of Industrial Property (conventional priority), if the trademark application is filed with Rospatent within six months from the specified date. According to paragraph 2 of this article, the priority of a trademark placed on the exhibits of official or officially recognized international exhibitions organized on the territory of one of the member states of the Paris Convention for the Protection of Industrial Property may be established by the date of the start of the open display of the exhibit at the exhibition (exhibition priority), if the trademark application is filed with Rospatent within six months from the specified date. In accordance with paragraph 4 of Art. 1495 of the Civil Code, the priority of a trademark may also be established by the date of the international registration of the trademark in accordance with the international treaties of the Russian Federation.

According to paragraph 1 of Art. 1497 of the Civil Code, examination of a trademark application by Rospatent includes:

1) formal examination;

2) examination of the designation declared as a trademark (declared designation).

A formal examination of a trademark application is carried out within a month from the date of its submission to Rospatent (clause 1, article 1498 of the Civil Code). During the formal examination of a trademark application, the presence of the necessary application documents and their compliance with the established requirements are checked. Based on the results of the formal examination, the application is accepted for consideration or a decision is made to refuse to accept it for consideration. Rospatent notifies the applicant of the results of the formal examination. Simultaneously with the notification of a positive result of the formal examination of the application, the applicant is informed of the date of filing the application, established in accordance with paragraph 8 of Art. 1492 GK.

Examination of a designation declared as a trademark (examination of a declared designation) is carried out on an application accepted for consideration as a result of a formal examination (clause 1, article 1499 of the Civil Code). During the examination, the compliance of the declared designation with the requirements of Art. 1477 and paragraph 1 - 7 of Art. 1483 of the Civil Code and establishes the priority of a trademark. Based on the results of the examination of the claimed designation, Rospatent decides on the state registration of the trademark or on the refusal to register it (clause 2 of article 1499 of the Civil Code).

Decisions of Rospatent on refusal to accept a trademark application for consideration, on state registration of a trademark, on refusal of state registration of a trademark and on recognition of a trademark application as withdrawn may be challenged by the applicant by filing an objection with the Chamber for Patent Disputes within three months. from the date of receipt of the relevant decision or copies of materials opposed to the application requested from the specified body, provided that the applicant requested copies of these materials within a month from the date of receipt of the relevant decision (clause 1 of article 1500 of the Civil Code). And in accordance with paragraph 1 of Art. 1502 of the Civil Code, a trademark application may also be withdrawn by the applicant at any stage of its consideration, but no later than the date of state registration of the trademark.

Based on the decision on the state registration of a trademark (clause 2, article 1499 of the Civil Code), Rospatent, within a month from the date of receipt of the document confirming the payment of the fee for the state registration of the trademark and for issuing a certificate for it, carries out the state registration of the trademark in the State Register of Trademarks. If the document on payment of the above fee is not submitted in accordance with the established procedure, the registration of the trademark is not carried out, and the corresponding application for the trademark is recognized as withdrawn on the basis of the decision of Rospatent (Article 1503 of the Civil Code).

A trademark certificate is issued by Rospatent within a month from the date of state registration of the trademark in the State Register of Trademarks (Clause 1, Article 1504 of the Civil Code). The form of a trademark certificate and the list of information indicated in it, as well as in relation to certificates for other means of individualization, are established by the federal executive body in charge of legal regulation in the field of intellectual property (Ministry of Education and Science of Russia).

Information related to the state registration of a trademark and entered in the State Register of Trademarks in accordance with Art. 1503 of the Civil Code are published by Rospatent in the official bulletin immediately after the registration of the trademark in the State Register of Trademarks or after the relevant changes are made to the State Register of Trademarks (Article 1506 of the Civil Code).

According to the norm of art. 1507 of the Civil Code, Russian legal entities and citizens of the Russian Federation have the right to register a trademark in foreign countries or to carry out its international registration. An application for international registration of a trademark is filed by Rospatent.

Features of legal protection of a well-known trademark. In accordance with paragraph 1 of Art. 1508 of the Civil Code at the request of a person who considers the trademark used by him or the designation used as a trademark to be a well-known trademark in the Russian Federation, a trademark protected in the territory of the Russian Federation on the basis of its state registration or in accordance with an international treaty of the Russian Federation, or a designation used as a trademark, but which does not have legal protection on the territory of the Russian Federation, by decision of Rospatent may be recognized as a well-known trademark in the Russian Federation, if this trademark or this designation as a result of the intensive use of steel on the date specified in the application is widely known in the Russian Federation among relevant consumers in relation to the applicant's goods. A well-known trademark is provided with legal protection provided for by the Civil Code for a trademark. Providing legal protection to a well-known trademark means recognizing the exclusive right to a well-known trademark. Legal protection of a well-known trademark is valid indefinitely (Clause 2 of Article 1508 of the Civil Code).

The legal protection of a well-known trademark also extends to goods that are not homogeneous with those in respect of which it is recognized as well-known, if the use of this trademark by another person in relation to these goods will be associated by consumers with the owner of the exclusive right to the well-known trademark and may infringe on the legitimate interests of such owner (clause 3 of article 1508 of the Civil Code).

In accordance with Art. 1509 of the Civil Code, a trademark recognized as well-known is entered by the federal body into the List of well-known trademarks in the Russian Federation (List of well-known trademarks). A certificate for a well-known trademark is issued by Rospatent within a month from the date of entering the trademark into the List of Well-Known Trademarks. Information relating to a well-known trademark is published by Rospatent in the official bulletin immediately after it is included in the List of well-known trademarks.

Features of legal protection of a collective mark. According to Art. 1510 of the Civil Code, an association of persons, the creation and activities of which do not contradict the legislation of the state in which it was created, has the right to register a collective mark in the Russian Federation. In accordance with paragraph. 2 p. 1 art. 1510 of the Civil Code, a collective mark is a trademark intended to designate goods produced or sold by persons belonging to a given association and having uniform characteristics of their quality or other common characteristics. Each member of the association can use a collective mark.

The right to a collective mark cannot be alienated and cannot be the subject of a license agreement (clause 2, article 1510 of the Civil Code). A person who is a member of an association that has registered a collective mark has the right to use his trademark along with the collective mark (clause 3 of article 1510 of the Civil Code).

In accordance with paragraph 1 of Art. 1511 of the Civil Code, the charter of the collective mark is attached to the application for registration of a collective mark filed with Rospatent.

In the State Register of Trademarks and a certificate for a collective mark, in addition to the information provided for in Art. 1503 and 1504 of the Civil Code, information is entered on the persons entitled to use the collective mark. This information, as well as an extract from the charter of the collective mark on uniform quality characteristics and other general characteristics of the goods in respect of which this mark is registered, is published by Rospatent in the official bulletin.

Termination of the exclusive right to a trademark. Protection of trademark rights. The grounds and procedure for challenging and invalidating the granting of legal protection to a trademark are established accordingly in Art. 1512 and 1513 Civil Code. The termination of legal protection of a trademark is stated in Art. 1514 Civil Code. One of the grounds for terminating the legal protection of a trademark is, in particular, the adoption by Rospatent, at the request of an interested party, of a decision on the early termination of the legal protection of a trademark in the event of its transformation into a designation that has come into general use as a designation of goods of a certain type.

Responsibility for the illegal use of a trademark is established in Art. 1515 GK. In accordance with this article, goods, labels, packaging of goods on which a trademark or a confusingly similar designation is illegally placed are counterfeit. The right holder has the right to demand their withdrawal from circulation and destruction at the expense of the infringer. In cases where the introduction of such goods into circulation is necessary in the public interest, the right holder has the right to demand the removal, at the expense of the infringer, from counterfeit goods, labels, packaging of goods of an illegally used trademark or a designation confusingly similar to it.

The right holder has the right to demand, at his choice, from the infringer, instead of compensation for losses, payment of compensation:

▪ in the amount of 10 thousand rubles. up to 5 million rubles, determined at the discretion of the court based on the nature of the violation;

▪ twice the cost of the goods on which the trademark is illegally placed, or double the cost of the right to use the trademark, determined on the basis of the price that, under comparable circumstances, is usually charged for the lawful use of the trademark.

30.3. Right to appellation of origin

The names of their places of origin placed on them can also serve as a means of individualization of goods used for commercial purposes. According to paragraph 1 of Art. 1516 of the Civil Code, the appellation of origin of goods to which legal protection is granted is a designation that is or contains a modern or historical, official or unofficial, full or abbreviated name of a country, urban or rural settlement, locality or other geographical object, as well as a designation derived from such a name and became known as a result of its use in relation to a product, the special properties of which are exclusively or mainly determined by the natural conditions and (or) human factors characteristic of a given geographical object.

Examples of the use of the appellation of origin of goods can serve as designations such as "Russian flax" (the country of origin is indicated) or "Orenburg downy shawl" (the quality of the product is due to natural factors, as well as the skills and abilities of craftsmen living in the area).

The exclusive right (Articles 1229 and 1519 of the Civil Code) of the producers of such goods may be recognized to use the name of the place of origin of goods.

A designation, although representing or containing the name of a geographical object, but which has come into general use in the Russian Federation as a designation of a certain type of product that is not associated with the place of its production (for example, "Tula gingerbread") is not recognized as an appellation of origin of goods.

On the territory of the Russian Federation, there is an exclusive right to use the name of the place of origin of goods, registered by the federal body, as well as in other cases provided for by an international treaty of the Russian Federation.

State registration as an appellation of origin of goods of the name of a geographical object located in a foreign state is allowed if the name of this object is protected as such an appellation in the country of origin of the goods. The owner of the exclusive right to use the name of the indicated place of origin of goods can only be a person whose right to use such a name is protected in the country of origin of the goods (Article 1517 of the Civil Code).

The name of the place of origin of goods in accordance with Art. 1518 of the Civil Code is recognized and protected by virtue of the state registration of such a name.

The appellation of origin of goods may be registered by one or more citizens or legal entities.

Persons who have registered the appellation of origin of goods are granted the exclusive right to use this appellation, certified by a certificate, provided that the goods produced by these persons meet the requirements of paragraph 1 of Art. 1516 GK.

The exclusive right to use the appellation of origin of goods in relation to the same appellation may be granted to any person who, within the boundaries of the same geographical object, manufactures goods with the same special properties, on the basis of a relevant application filed by him with the federal body.

According to Art. 1519 of the Civil Code, the copyright holder has the exclusive right to use the name of the place of origin of goods in accordance with Art. 1229 of the Civil Code in any way that does not contradict the law (exclusive right to the name of the place of origin of goods), including the methods indicated below (clause 1).

The use of the appellation of origin of goods is considered, in particular, the placement of this appellation on goods, labels, packaging of goods, in advertising, prospectuses, invoices, letterheads and other documentation related to the introduction of goods into civil circulation (clause 2).

Goods, labels, packaging of goods on which the names of the places of origin of goods or designations similar to them to the point of confusion are illegally used are counterfeit (clause 3).

Disposal of the exclusive right to an appellation of origin of goods, including by alienating it or granting another person the right to use this appellation, is not allowed (clause 4).

As provided by Art. 1520 of the Civil Code, the holder of a certificate of exclusive right to an appellation of origin of goods, in order to notify of his exclusive right, may place a sign of protection next to the appellation of origin of goods in the form of a verbal designation "registered appellation of origin" or "registered AO", indicating that that the designation used is the name of the place of origin of the goods, registered in the Russian Federation.

The federal body conducts an examination of an application for an appellation of origin, which includes a formal examination and examination of a designation declared as an appellation of origin (declared designation).

A formal examination of an application for an appellation of origin of goods is carried out within 2 months from the date of its submission to the federal body.

Examination of the declared designation for compliance of such designation with the requirements of Art. 1516 of the Civil Code is carried out on an application accepted for consideration as a result of a formal examination. In the course of this examination, the validity of indicating the place of origin (production) of goods on the territory of the Russian Federation is also checked.

According to Art. 1528 of the Civil Code, decisions of the federal body to refuse to accept an application for an appellation of origin for consideration, to recognize such an application as withdrawn, as well as decisions of this body adopted on the basis of the results of an examination of the claimed designation (Article 1526 of the Civil Code), may be challenged by the applicant by filing objections to the chamber for patent disputes within 3 months from the date of receipt of the relevant decision.

On the basis of a decision taken on the basis of the results of an examination of the claimed designation (Article 1526 of the Civil Code), the federal body carries out state registration of the name of the place of origin of goods in the State Register of Names.

Within a month from the date of receipt of the document confirming the payment of the fee for its issuance, the federal body issues a certificate of the exclusive right to the appellation of origin of goods (Article 1530 of the Civil Code).

In accordance with Art. 1531 of the Civil Code, this certificate is valid for 10 years from the date of filing an application for an appellation of origin of goods with the federal body.

The period of validity of a certificate of the exclusive right to an appellation of origin may be extended at the request of the holder of the certificate and subject to the submission of the conclusion of the competent authority, determined in accordance with the procedure established by the Government of the Russian Federation, that the holder of the certificate produces within the boundaries of the corresponding geographical object a product that has the special properties specified in the State Register of Names.

An application for renewal of a certificate shall be submitted within the last year of its validity.

At the request of the holder of the certificate, he may be given 6 months after the expiration of the certificate to apply for an extension of this period, subject to the payment of an additional fee.

The validity period of the certificate is extended every time for 10 years.

Information related to the state registration of the appellation of origin of goods and the granting of the exclusive right to such an appellation and entered into the State Register of Appellations in accordance with Art. 1529 and 1532 of the Civil Code, with the exception of information containing a description of the special properties of the goods, are published by the federal body in the official bulletin immediately after they are entered in the State Register of Names (Article 1533 of the Civil Code).

As stated in Art. 1534 of the Civil Code, Russian legal entities and citizens of the Russian Federation have the right to register the appellation of origin of goods in foreign countries. An application for registration of an appellation of origin in a foreign state may be filed after the state registration of the appellation of origin and the granting of the exclusive right to such an appellation in the Russian Federation.

Responsibility for the illegal use of the appellation of origin of goods is defined in Art. 1537 of the Civil Code and is similar to liability for the illegal use of a trademark.

30.4. Right to a commercial designation

In § 4 ch. 76 of the Civil Code establishes the institution of the right to a commercial designation. According to Art. 1538 of the Civil Code, legal entities engaged in entrepreneurial activities (including non-profit organizations that are granted the right to carry out such activities in accordance with the law by their constituent documents), as well as individual entrepreneurs, can use trade, industrial and other enterprises belonging to them to individualize (Art. 132 of the Civil Code) commercial designations that are not company names and are not subject to mandatory inclusion in the constituent documents and the unified state register of legal entities. In accordance with paragraph 2 of this article, a commercial designation can be used by the right holder to individualize one or more enterprises. Two or more commercial designations cannot be used simultaneously to individualize one enterprise.

In accordance with Art. 1539 of the Civil Code, the copyright holder has the exclusive right to use a commercial designation as a means of individualizing an enterprise belonging to him in any way that does not contradict the law (the exclusive right to a commercial designation), including by indicating the commercial designation on signboards, letterheads, invoices and other documentation, in announcements and advertising, on goods or their packaging, if such a designation has sufficient distinctive features and its use by the right holder to individualize his enterprise is known within a certain territory. It is not allowed to use a commercial designation that is capable of misleading as to whether the enterprise belongs to a certain person, in particular, a designation that is confusingly similar to a trade name, trademark or an exclusive right-protected commercial designation owned by another person who has previously acquired the corresponding exclusive right. A person who violates these rules is obliged, at the request of the right holder, to stop using the commercial designation and compensate the right holder for the losses caused.

The exclusive right to a commercial designation may be transferred to another person (including under an agreement, by way of universal succession and on other grounds established by law) only as part of an enterprise for the individualization of which such a designation is used. If a commercial designation is used by the right holder to individualize several enterprises, the transfer to another person of the exclusive right to a commercial designation as part of one of the enterprises deprives the right holder of the right to use this commercial designation to individualize his other enterprises.

The right holder may grant another person the right to use his commercial designation in the manner and on the terms provided for by the enterprise lease agreement (Article 656) or commercial concession agreement (Article 1027 of the Civil Code).

According to the norm of paragraph 1 of Art. 1540 of the Civil Code on the territory of the Russian Federation, there is an exclusive right to a commercial designation used to individualize an enterprise located on the territory of the Russian Federation. The exclusive right to a commercial designation is terminated if the right holder does not use it continuously during the year (paragraph 2 of article 1540 of the Civil Code).

A commercial designation or individual elements of this name can be used by the right holder in a trademark owned by him. A commercial designation included in a trademark is protected regardless of the protection of the trademark (Article 1541 of the Civil Code).

Topic 31

The institute of the right to use the results of intellectual activity as part of a single technology (the right to technology) is a new institution of civil law, to which Ch. 77 GK.

In accordance with paragraph 1 of Art. 1542 of the Civil Code, a single technology in the sense of the above chapter is recognized as the result of scientific and technical activity expressed in an objective form, which includes, in one combination or another, inventions, utility models, industrial designs, computer programs or other results of intellectual activity subject to legal protection in accordance with the rules of sect. VII Civil Code, and can serve as a technological basis for certain practical activities in the civil or military sphere. The composition of a single technology may also include the results of intellectual activity that are not subject to legal protection on the basis of the rules of the above section, including technical data and other information. Exclusive rights to the results of intellectual activity that are part of a single technology are recognized and subject to protection in accordance with the rules of the Civil Code.

The right to use the results of intellectual activity as part of a single technology as part of a complex object (Article 1240 of the Civil Code) belongs to the person who organized the creation of a single technology (the right to technology) on the basis of agreements with holders of exclusive rights to the results of intellectual activity that are part of a single technology. The structure of a single technology may also include protected results of intellectual activity created by the person who organized its creation (clause 3 of article 1542 of the Civil Code).

According to the norm of art. 1543 rules ch. 77 of the Civil Code apply to relations related to the right to civil, military, special or dual-use technology created at the expense of or with the involvement of funds from the federal budget or the budgets of the constituent entities of the Russian Federation, allocated to pay for work under government contracts, under other agreements, for financing according to estimates income and expenses, as well as in the form of subsidies. These rules do not apply to relations arising from the creation of a single technology at the expense of or with the attraction of funds from the federal budget or the budgets of the constituent entities of the Russian Federation on a reimbursable basis in the form of a budget loan.

As provided in Art. 1544 of the Civil Code, the person who organized the creation of a single technology at the expense or with the involvement of funds from the federal budget or the budget of a constituent entity of the Russian Federation (executor) owns the right to the created technology, except when this right is in accordance with paragraph 1 of Art. 1546 of the Civil Code belongs to the Russian Federation or a constituent entity of the Russian Federation. The specified person is obliged to immediately take the measures provided for by the legislation of the Russian Federation to recognize him and obtain rights to the results of intellectual activity that are part of a single technology (apply for patents, for state registration of the results of intellectual activity, introduce a secrecy regime for relevant information, conclude agreements on the alienation of exclusive rights and license agreements with holders of exclusive rights to the corresponding results of intellectual activity that are part of a single technology, and take other measures), if such measures were not taken before or during the creation of the technology. In cases where the Civil Code allows various methods of legal protection of the results of intellectual activity that are part of a single technology, the person who owns the right to the technology chooses the method of legal protection that best suits his interests and ensures the practical application of the single technology. 3 article 1546 of the Civil Code).

Art. 1545 of the Civil Code provide for the obligation of the practical application of a single technology. According to paragraph 1 of this article, a person who, in accordance with Art. 1544 of this Code, the right to technology belongs, it is obliged to carry out its practical application (implementation). The same obligation is borne by any person to whom this right is transferred or to whom this right is transferred in accordance with the rules of the Civil Code. The content of the obligation to introduce technology, terms, other conditions and the procedure for fulfilling this obligation, the consequences of its non-fulfillment and the conditions for termination are determined by the Government of the Russian Federation (clause 2 of article 1545 of the Civil Code).

In Art. 1546 of the Civil Code defines the rights of the Russian Federation and subjects of the Russian Federation for technology. So, in accordance with paragraph 1 of Art. 1546 of the Civil Code, the right to technology created at the expense or with the involvement of federal budget funds belongs to the Russian Federation in cases where:

1) a single technology is directly related to ensuring the defense and security of the Russian Federation;

2) the Russian Federation, prior to the creation of a unified technology or subsequently, took over the financing of work to bring the unified technology to the stage of practical application;

3) the performer has not ensured, before the expiration of six months after the end of work on the creation of a single technology, the performance of all the actions necessary to recognize him or acquire exclusive rights to the results of intellectual activity that are part of the technology.

In accordance with paragraph 1 of Art. 1546 of the Civil Code, the right to technology created at the expense or with the attraction of funds from the budget of a constituent entity of the Russian Federation belongs to the constituent entity of the Russian Federation in cases where:

▪ a subject of the Russian Federation, before the creation of a unified technology or subsequently, took upon itself the financing of work to bring the technology to the stage of practical application;

▪ the contractor did not ensure, before the expiration of 6 months after the completion of work on the creation of a unified technology, the completion of all actions necessary for recognition or acquisition of exclusive rights to the results of intellectual activity that are part of the technology.

In cases where the right to technology belongs to the Russian Federation or a constituent entity of the Russian Federation, the performer is obliged in accordance with paragraph 2 of Art. 1544 of the Civil Code, take measures to recognize him and obtain rights to the corresponding results of intellectual activity for the subsequent transfer of these rights, respectively, to the Russian Federation and the subject of the Russian Federation (clause 3, article 1546 of the Civil Code).

The right to technology owned by the Russian Federation is managed in the manner determined by the Government of the Russian Federation. The management of the right to technology owned by a subject of the Russian Federation is carried out in the manner determined by the executive authorities of the corresponding subject of the Russian Federation (clause 4 of article 1546 of the Civil Code). The disposal of the right to technology owned by the Russian Federation or a constituent entity of the Russian Federation is carried out in compliance with the rules of Sec. VII GK. Features of the disposal of the right to technology belonging to the Russian Federation are determined by the law on the transfer of federal technologies (clause 5 of article 1546 of the Civil Code).

According to the norm of paragraph 1 of Art. 1547 of the Civil Code in the cases provided for by sub. 2 and 3, paragraph 1 and paragraph 2 of Art. 1546 of the Civil Code, no later than six months from the date of receipt by the Russian Federation or a constituent entity of the Russian Federation of the rights to the results of intellectual activity necessary for the practical use of these results as part of a single technology, the right to technology must be alienated to a person interested in implementing the technology and possessing real opportunities for its implementation. In the case provided for in sub. 1 p. 1 art. 1546 of the Civil Code, the right to technology must be alienated to a person interested in the implementation of the technology and having real opportunities for its implementation, immediately after the Russian Federation loses the need to retain these rights.

According to the norm of paragraph 2 of Art. 1547 of the Civil Code, the alienation by the Russian Federation or a constituent entity of the Russian Federation of the right to technology to third parties is carried out according to the general rule for a fee based on the results of the competition. If it is impossible to alienate the right to technology belonging to the Russian Federation or a constituent entity of the Russian Federation on a competitive basis, such a right is transferred based on the results of an auction. The procedure for holding a tender or auction for the alienation by the Russian Federation or constituent entities of the Russian Federation of the right to technology, as well as possible cases and procedure for the transfer by the Russian Federation or constituent entities of the Russian Federation of the right to technology without holding a tender or auction are determined by the law on technology transfer.

The pre-emptive right to conclude an agreement with the Russian Federation or a constituent entity of the Russian Federation on acquiring the right to technology has, other things being equal, the performer who organized the creation of the results of intellectual activity that are part of a single technology (clause 3 of article 1547 of the Civil Code).

In accordance with paragraph 1 of Art. 1548 of the Civil Code, the right to technology is granted free of charge in cases provided for in Art. 1544 and paragraph 3 of Art. 1546 GK. In cases where the right to technology is alienated under an agreement, including the results of a tender or auction, the amount, conditions and procedure for paying remuneration for this right are determined by agreement of the parties (clause 2 of article 1548 of the Civil Code). In cases where the introduction of technology is of great socio-economic importance or important for the defense or security of the Russian Federation, and the amount of costs for its implementation makes it economically inefficient to acquire the right to technology for a fee, transfer the right to such technology by the Russian Federation, a constituent entity of the Russian Federation or another right holder who have received the corresponding right free of charge, can also be carried out free of charge. The cases in which the gratuitous transfer of the right to technology is allowed are determined by the Government of the Russian Federation (clause 3 of article 1548 of the Civil Code).

The right to technology created with the involvement of budgetary funds and funds from other investors may belong in accordance with Art. 1549 of the Civil Code of the Russian Federation, a constituent entity of the Russian Federation, other investors of the project, as a result of which the technology was created, the contractor and other copyright holders.

If the right to technology belongs to several persons, they shall exercise this right jointly. In this case, the disposal of the right to technology, owned jointly by several persons, is carried out by them by common agreement (paragraph 2 of article 1549 of the Civil Code). Income from the use of technology, the right to which belongs jointly to several right holders, as well as from the disposal of this right, is distributed among the right holders by agreement between them (clause 4 of article 1549 of the Civil Code).

According to the norm of paragraph 5 of Art. 1549 of the Civil Code, if a part of the technology, the right to which belongs to several persons, can have an independent value, an agreement between the right holders can determine the right to which part of the technology belongs to each of the right holders. A piece of technology can have independent value if it can be used independently of other parts of this technology. Each of the copyright holders has the right, at its own discretion, to use the relevant part of the technology that has independent significance, unless otherwise provided by an agreement between them. At the same time, the right to technology as a whole, as well as the disposal of the right to it, are exercised jointly by all right holders. Income from the use of a part of the technology goes to the person who has the right to this part of the technology.

As stated in Art. 1550 of the Civil Code, unless otherwise provided by this Code or other law, a person possessing the right to technology may, at his own discretion, dispose of this right by transferring it in whole or in part to other persons under an agreement or other transaction, including under an agreement on the alienation of this rights, under a license agreement or under another agreement containing elements of an agreement on the alienation of rights or a license agreement. The right to technology is transferred simultaneously with respect to all the results of intellectual activity that are part of a single technology as a whole. The transfer of rights to individual results from among the specified results (to a part of technology) is allowed only in cases where part of a single technology can have independent significance in accordance with paragraph 5 of Art. 1549 GK.

According to the norm of paragraph 1 of Art. 1550 of the Civil Code, a single technology must have practical application (implementation) mainly on the territory of the Russian Federation. The right to technology may be transferred for the use of a single technology in the territories of foreign states with the consent of the state customer or the manager of budgetary funds in accordance with the legislation on foreign economic activity.

Transactions involving the use of a single technology outside the Russian Federation are subject to state registration with Rospatent. Failure to comply with the requirement for state registration of a transaction entails its invalidity (paragraph 2 of article 1550 of the Civil Code).

REFERENCES

1. Blinnikov, V. N. Commentary on the Eurasian patent legislation / V. N. Blinnikov, A. N. Grigoriev, V. N. Eremenko. - M., 2003.

2. Bodenhausen, G. Paris Convention for the Protection of Industrial Property. Comment / G. Bodenhausen. - M., 1977.

3. Borisov, A. B. Commentary on the Civil Code of the Russian Federation, part one, part two, part three, part four (item-by-article) /A. B. Borisov. - M., 2007.

4. Vinogradova, R. I. Commentary on the Civil Code of the Russian Federation, part three / R. I. Vinogradova, G. K. Dmitrieva, V. S. Repin. - M., 2006.

5. Gavrilov, E. P. Commentary on the Civil Code of the Russian Federation, part four (item-by-article) / E. P. Gavrilov, O. A. Gorodov, S. P. Grishaev and others - M., 2007.

6. Civil law. Vol. 2 / ed. A. P. Sergeev, Yu. K. Tolstoy. - M., 2007.

7. Civil law. Vol. 2 / ed. E. A. Sukhanova. - M., 2007.

8. Civil law. Vol. 3 / ed. A. P. Sergeev, Yu. K. Tolstoy. - M., 2007.

9. Civil law. Vol. 3 / ed. E. A. Sukhanova. - M., 2007.

10. Civil law. Vol. 4 / ed. E. A. Sukhanova. - M., 2006.

11. Civil law. Part 2 / ed. V. P. Mozolin. - M., 2007.

12. Civil law. Part 3 / ed. V. P. Mozolin. - M., 2007.

13. Civil law of Russia. Law of obligations: a course of lectures / otv. ed. O. N. Sadikov. - M., 2004.

14. Eliseev, I. V. Commentary on the Civil Code of the Russian Federation, part three (item-by-article) / I. V. Eliseev, A. P. Sergeev, Yu. K. Tolstoy. - M., 2007.

15. Commentary on the Civil Code of the Russian Federation, part two (item-by-article) / ed. O. N. Sadikova. - M., 2007.

16. Commentary on the Civil Code of the Russian Federation, part two (item-by-article) / ed. A. P. Sergeev, Yu. K. Tolstoy. - M., 2006.

17. Commentary on part two of the Civil Code of the Russian Federation for entrepreneurs / ed. M. I. Braginsky, V. I. Vitryansky. - M., 2001.

18. UNIDROIT Convention on International Financial Leasing 1988 // Law. 1999. No. 8.

19. Makovsky, A. L. Commentary on the Civil Code of the Russian Federation, part three / Makovsky A. L. - M., 2003.

20. Matveev, Yu. G. International copyright conventions / Yu. G. Matveev. - M., 1983.

21. Pobedonostsev, K. P. The course of civil law (according to the edition of 1896) / K. P. Pobedonostsev. - V. 2 and 3. - M., 2003.

22. Article-by-article commentary on the Civil Code of the Russian Federation, parts I, II and III / ed. T. E. Abova, M. M. Boguslavsky, A. Yu. Kabalkin, A. G. Lisitsyn-Svetlanov. - M., 2007.

23. Rights to the results of intellectual activity. Copyright. Patent law. Other exclusive rights: Sat. standard. acts / comp. V. A. Dozortsev. - M., 1994.

24. Ruzakova, O. A. Commentary on the fourth part of the Civil Code of the Russian Federation / O. A. Ruzakova. - M., 2007.

25. Shershenevich, G. F. Textbook of Russian civil law (according to the edition of 1914): in 2 volumes / G. F. Shershenevich. T. 1 and 2. - M., 2005.

Author: Ivakin V.N.

We recommend interesting articles Section Lecture notes, cheat sheets:

▪ Summary of works of Russian literature of the first half of the XNUMXth century

▪ Regional studies. Lecture notes

▪ Obstetrics and gynecology. Lecture notes

See other articles Section Lecture notes, cheat sheets.

Read and write useful comments on this article.

<< Back

Latest news of science and technology, new electronics:

Artificial leather for touch emulation 15.04.2024

In a modern technology world where distance is becoming increasingly commonplace, maintaining connection and a sense of closeness is important. Recent developments in artificial skin by German scientists from Saarland University represent a new era in virtual interactions. German researchers from Saarland University have developed ultra-thin films that can transmit the sensation of touch over a distance. This cutting-edge technology provides new opportunities for virtual communication, especially for those who find themselves far from their loved ones. The ultra-thin films developed by the researchers, just 50 micrometers thick, can be integrated into textiles and worn like a second skin. These films act as sensors that recognize tactile signals from mom or dad, and as actuators that transmit these movements to the baby. Parents' touch to the fabric activates sensors that react to pressure and deform the ultra-thin film. This ... >>

Petgugu Global cat litter 15.04.2024

Taking care of pets can often be a challenge, especially when it comes to keeping your home clean. A new interesting solution from the Petgugu Global startup has been presented, which will make life easier for cat owners and help them keep their home perfectly clean and tidy. Startup Petgugu Global has unveiled a unique cat toilet that can automatically flush feces, keeping your home clean and fresh. This innovative device is equipped with various smart sensors that monitor your pet's toilet activity and activate to automatically clean after use. The device connects to the sewer system and ensures efficient waste removal without the need for intervention from the owner. Additionally, the toilet has a large flushable storage capacity, making it ideal for multi-cat households. The Petgugu cat litter bowl is designed for use with water-soluble litters and offers a range of additional ... >>

The attractiveness of caring men 14.04.2024

The stereotype that women prefer "bad boys" has long been widespread. However, recent research conducted by British scientists from Monash University offers a new perspective on this issue. They looked at how women responded to men's emotional responsibility and willingness to help others. The study's findings could change our understanding of what makes men attractive to women. A study conducted by scientists from Monash University leads to new findings about men's attractiveness to women. In the experiment, women were shown photographs of men with brief stories about their behavior in various situations, including their reaction to an encounter with a homeless person. Some of the men ignored the homeless man, while others helped him, such as buying him food. A study found that men who showed empathy and kindness were more attractive to women compared to men who showed empathy and kindness. ... >>

Random news from the Archive Green polyethylene 14.03.2009 At a conference on bioplastics held in 2008 in Cologne (Germany), Brazilian chemists talked about their new development: they learned how to make polyethylene from sugar cane. First, ethyl alcohol is obtained from sugar cane using a routine process, and then the alcohol is converted into ethylene by a dehydration reaction. Finally, ethylene is polymerized in the usual way. By-products are mainly water with a small amount of ether and unreacted alcohol. "Green" polyethylene is no different from conventional polyethylene, except for small differences in the isotopic composition of carbon (plant carbon is slightly different from oil carbon). So if a company begins to claim that its polyethylene is produced without harming the environment, then this statement can be verified by carbon isotopes.

Other interesting news:

▪ Kingston SSDNow E50 Solid State Drives

▪ Fidget Cube gadget will wean you from bad habits

▪ The danger of e-waste

▪ If aliens exist, we will know about them in the next 20 years

▪ Intel Xeon D-2100 Processors

News feed of science and technology, new electronics

Interesting materials of the Free Technical Library:

▪ section of the Garland website. Article selection

▪ article by Ernst Haeckel. Famous aphorisms

▪ article What is rheumatism? Detailed answer

▪ article Work in a career. Standard instruction on labor protection

▪ article Table lamp dimmer. Encyclopedia of radio electronics and electrical engineering

▪ article Coin and coin box for manipulation. Focus Secret

Leave your comment on this article:

All languages ​​of this page

Arabic	Hebrew	Polish
Bengali	Hindi	Portuguese
Chinese	Italian	Spanish
English	Japanese	Turkish
French	Korean	Ukrainian
German	Malay	Vietnamese

Home page | Library | Articles | Website map | Site Reviews

www.diagram.com.ua
2000-2024