New edition Art. 1 Civil Code of the Russian Federation

1. Civil legislation is based on the recognition of the equality of participants in the relations it regulates, the inviolability of property, freedom of contract, the inadmissibility of arbitrary interference by anyone in private affairs, the need for the unhindered exercise of civil rights, ensuring the restoration of violated rights, and their judicial protection.

2. Citizens (individuals) and legal entities acquire and exercise their civil rights of their own free will and in their own interest. They are free to establish their rights and obligations on the basis of the contract and to determine any terms of the contract that do not contradict the law.

Civil rights may be restricted on the basis of federal law and only to the extent necessary to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, to ensure the defense of the country and the security of the state.

3. When establishing, exercising and protecting civil rights and in the performance of civil obligations, participants in civil legal relations must act in good faith.

4. No one has the right to take advantage of their illegal or dishonest behavior.

5. Goods, services and financial resources move freely throughout the territory of the Russian Federation.

Restrictions on the movement of goods and services may be introduced in accordance with federal law, if necessary to ensure safety, protect human life and health, protect nature and cultural values.

Commentary on Art. 1 Civil Code of the Russian Federation

1. The basic principles of civil law are the fundamental ideas (general principles) that determine the main content of civil law regulation in general, the industry specifics of civil law norms and the practice of their application.

The significance of the basic principles of civil law is expressed in the fact that they:

a) are the defining line in the development and improvement of civil legislation;

b) act as a basic criterion in the interpretation of civil law norms;

c) are recognized as the most important basis for the application of civil law, including its application by analogy.

The main principles are the basic, leading principles of civil law, i.e. its main ideas, fundamental provisions. At the same time, along with the indicated principles for civil law, its understanding and practical application, other principles also play an important role. Including the principles of a spiritual and ethical nature, reflected in the characterization of the analogy. These are the following principles:

good faith;

Intelligence;

Justice.

Equally important in civil law belongs to the special legal principles of individual institutions, legal structures, norms. Such, for example, as the "principle of following" in relation to possession, the principle of claiming a thing in kind (vindication claim) when protecting property rights, etc. Scientific comprehension of the principles of civil law, and above all its basic principles, is the highest "civilistic knowledge" - a deep understanding of the meaning and purpose of this branch of law, which largely predetermines a thorough training in civil law as a whole.

2. Civil rights in accordance with the basic principles have a high legal status. The Russian Civil Code defines the status and legal force of civil rights close to the status of constitutional rights. According to the Civil Code of the Russian Federation, civil rights can be limited in principle on the same grounds as constitutional rights - only on the basis of a federal law and only in those exhaustive cases that are directly indicated in the Code.

3. Clause 3 of the commented article 1 of the Civil Code of Russia contains the principle of a single commodity (economic) space. Civil legislation, in accordance with the Constitution of Russia, belongs to the federal jurisdiction. Subjects of the Russian Federation, municipalities, other persons have no right to interfere with free economic turnover in one way or another. Stability and transparency of property relations provide the most effective civil law regulation.

Arbitrage practice.

The inadmissibility of arbitrary interference in private affairs means that any restriction of discretion of subjects of civil legal relations in acquiring and exercising their civil rights or obtaining information about the private sphere of these subjects against their will is permissible only on the basis and in the manner established by law.

For the exercise and protection of civil rights, see

The Civil Code of the Russian Federation, along with the federal laws adopted in accordance with it, is the main source of civil legislation in the Russian Federation. The norms of civil law contained in other normative legal acts cannot contradict the Civil Code. The Civil Code of the Russian Federation, work on which began at the end of 1992 and initially went in parallel with work on the Russian Constitution of 1993, is a consolidated law consisting of four parts. In connection with the huge amount of material that required inclusion in the Civil Code, it was decided to accept it in parts.

The first part of the Civil Code of the Russian Federation, which entered into force on January 1, 1995, (with the exception of certain provisions), includes three of the seven sections of the code (section I "General Provisions", section II "Property and other property rights", Section III "General Part of the Law of Obligations"). This part of the Civil Code of the Russian Federation contains the fundamental norms of civil law and its terminology (on the subject and general principles of civil law, the status of its subjects (individuals and legal entities)), objects of civil law (various types of property and property rights), transactions, representation , statute of limitations, ownership, as well as the general principles of the law of obligations.

The second part of the Civil Code of the Russian Federation, which is a continuation and addition to the first part, was put into effect on March 1, 1996. It is completely devoted to Section IV of the Code "Certain Types of Obligations". Based on the general principles of the new civil law of Russia, enshrined in the 1993 Constitution and part one of the Civil Code, part two establishes a detailed system of norms on individual obligations and contracts, obligations from causing harm (torts) and unjust enrichment. In terms of its content and significance, part two of the Civil Code of the Russian Federation is a major stage in the creation of a new civil legislation of the Russian Federation.

The third part of the Civil Code of the Russian Federation includes Section V "Inheritance Law" and Section VI "International Private Law". In comparison with the legislation in force before the entry into force on March 01, 2002 of part three of the Civil Code of the Russian Federation, the rules on inheritance have undergone major changes: new forms of wills have been added, the circle of heirs has been expanded, as well as the circle of objects that can be transferred in the order of hereditary succession; introduced detailed rules relating to the protection of the inheritance and its management. Section VI of the Civil Code, dedicated to the regulation of civil law relations complicated by a foreign element, is a codification of the norms of private international law. This section, in particular, contains norms on the qualification of legal concepts in determining the applicable law, on the application of the law of a country with a plurality of legal systems, on reciprocity, back reference, establishing the content of foreign law norms.

The fourth part of the Civil Code (entered into force on January 1, 2008) consists entirely of Section VII "Rights to the results of intellectual activity and means of individualization." Its structure includes general provisions - norms that apply to all types of results of intellectual activity and means of individualization or to a significant number of their types. The inclusion of norms on intellectual property rights in the Civil Code of the Russian Federation made it possible to better coordinate these norms with the general norms of civil law, as well as to unify the terminology used in the field of intellectual property. The adoption of the fourth part of the Civil Code of the Russian Federation completed the codification of domestic civil legislation.

The Civil Code of the Russian Federation has passed the test of time and extensive practice of application, however, economic offenses, often committed under the guise of civil law, have revealed the lack of completeness in the law of a number of classical civil law institutions, such as the invalidity of transactions, the creation, reorganization and liquidation of legal entities, the assignment claims and transfer of debt, collateral, etc., which necessitated the introduction of a number of systemic changes into the Civil Code of the Russian Federation. As noted by one of the initiators of such changes, the President of the Russian Federation D.A. Medvedev, “The current system needs not to be reorganized, fundamentally changed, ... but to be improved, unlocking its potential and developing implementation mechanisms. The Civil Code has already become and should remain the basis for the formation and development of civilized market relations in the state, an effective mechanism for protecting all forms of ownership, as well as the rights and legitimate interests of citizens and legal entities. The Code does not require fundamental changes, but further improvement of civil legislation is necessary ... "<1>.

On July 18, 2008, Decree of the President of the Russian Federation N 1108 "On the improvement of the Civil Code of the Russian Federation" was issued, which set the task of developing a concept for the development of the civil legislation of the Russian Federation. On October 7, 2009, the Concept was approved by the decision of the Council for the Codification and Improvement of Russian Legislation and signed by the President of the Russian Federation.

________
<1>See: Medvedev D.A. The Civil Code of Russia - its role in the development of a market economy and the creation of a legal state // Bulletin of Civil Law. 2007. N 2. V.7.

My brother and I own a land plot of 10 hectares on the right of shared ownership. Our shares are equal. We have some problems with the joint disposal of property and I want to allocate my share in kind. Again, misunderstandings arose here, since the road and communications were brought to this site only at one point. Are there any other ways to resolve our conflict, other than going to court.

My distant relative during one of her visits to us promised to give me a valuable family heirloom for my wedding - an old icon. It was heard by almost all family members. The wedding took place, but I never received the gift, this relative could not come to the wedding, she fell ill, but six months later she gave the icon to her friend, who, according to her, looked after her. Is it possible to challenge such a gift and return the icon back to the family, on the grounds that it should have been given to me?

Our family decided to buy a large apartment and sell the old one. Our realtor offered to start searching for a suitable living space along with the search for buyers for our apartment. And it so happened that we found an option where the seller of the apartment we liked wanted to move into our apartment. Since the difference in the price of apartments is significant, it is necessary to make an additional payment. Is it possible to include an additional payment condition in the exchange agreement, or do I need to conclude two separate sales agreements?

I signed a contract to create a design project for my apartment. I made an advance payment of 25% of the total cost of the designer's work, after which he promised to start work immediately. But two days later, the designer called and said that he would not be able to finish the work, while he kept silent about the advance payment. Can I terminate the contract with him and demand a refund of the advance?

I have such a situation. On the Internet in the store, I ordered some things for myself, ideal for fishing, which I am passionate about. The amount of the goods is 4000 rubles. I paid in advance, but the goods never arrived. It's been 3 weeks already. Tell me what should I do in this situation? Could this be a scam and how can I get my money back?

I have signed a contract with my nanny who comes to work on weekdays to take care of my son. I work as a manager in a large company, my husband divorced me 2 years ago for personal reasons, I am raising a child myself and work hard to provide him with a decent future. In order to be in time for all the cases, I hire a nanny. Recently, she said that she could no longer come, as before, as a result of which we discussed other conditions. I have a question: is it possible to change the conditions in the contract, or is it optional?

The situation is this. I want to start delivering goods from a remote Russian city. During negotiations with the company, it turned out that they can send the first batch of goods after my advance payment, without signing any agreements and contracts. Tell me, is this possible? How can I protect myself in this case?

Summing up the results of 2016, we do not disregard other areas of legislation that we often have to deal with in our work. So today we decided to present our TOP 10 from the sphere of civil and corporate law, which are of particular importance for tax lawyers, auditors, and accountants. We have prepared the materials together with the first deputy general director of the group of companies "Taxes and financial law" Grinemayer Evgeny Alexandrovich.

Changes in the composition of real estate objects

Federal Law No. 315-FZ of July 3, 2016 “On Amendments to Part One of the Civil Code of the Russian Federation and Certain Legislative Acts of the Russian Federation” amended paragraph 1 of Art. 130 of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), which entered into force on January 1, 2017.

Now the Civil Code of the Russian Federation directly refers to independent real estate objects residential and "non-residential premises", as well as parts of buildings or structures intended for the placement of vehicles ( parking places).

The definition of a parking space is given in paragraph 29 of Art. 1 of the Town Planning Code of the Russian Federation (hereinafter - GSK RF), according to which parking space - designed exclusively to accommodate a vehiclean individually defined part of a building or structure that is not limited or partially limited by a building or other enclosing structure and the boundaries of which are described in the manner established by the legislation on state cadastral registration.

Moreover, if residential and non-residential premises were previously recognized as independent real estate objects, this cannot be said about parking spaces. Until January 1, 2017, only parking lots as a whole (as separate structures or as parts of buildings) had the status of an independent real estate object. Accordingly, the owners of individual parking spaces acquired only a share in the right of common shared ownership of the parking lot.
This means that they could only dispose of a share in the right of common shared ownership of the parking lot and only in compliance with the rules for the alienation of shares in the right of common shared ownership of property.

After January 1, 2017, each owner of a separate parking space (parking space) can allocate his share in kind and register the right of sole ownership of this parking space. This is directly stated in paragraph 3 of Art. 6 of the Federal Law of July 3, 2016 No. 315-FZ. As a result, the parking place will become the sole property of the person, who, thereby, will receive the right to dispose of it at his own discretion - to sell, contribute to the authorized capital, pledge, lease, etc.

It is important to note that the condition under which a parking space can acquire the status of an independent real estate object is a description of the boundaries of the parking space in the manner prescribed by the legislation on state cadastral registration. At the same time, according to paragraph 6.1 of Art. 24 of the Federal Law of July 13, 2015 No. 218-FZ “On State Registration of Real Estate”, the location of a parking space is established by graphical display on the floor plan or part of the floor of a building or structure of a geometric figure corresponding to the boundaries of the parking space.

Changes to the rules for canceling powers of attorney

From January 1, 2017, new rules regarding the cancellation of powers of attorney came into effect. Federal Law No. 332-FZ of July 3, 2016 “On Amendments to Articles 188 and 189 of the First Part of the Civil Code of the Russian Federation and to the Fundamentals of Russian Legislation on Notaries”, sub. 2 p. 1 art. 188 of the Civil Code of the Russian Federation is supplemented with a rule according to which the cancellation of a power of attorney is carried out in the same form in which the power of attorney was issued, or in a notarial form.

At the same time, information about the cancellation of a power of attorney made in a notarial form is entered in the register of notarial actions, which is maintained in electronic form in the manner established by the legislation on notaries; the specified information is provided by the federal notarial chamber to an unlimited circle of persons using the Internet (paragraph 2, clause 1, article 189 of the Civil Code of the Russian Federation).

It is especially important to pay attention to the new norm, enshrined in par. 4 p. 1 art. 189 of the Civil Code of the Russian Federation, which states that third parties are considered notified of the cancellation of a power of attorney made in a notarial form the next day after entering information about it in the register of notarial acts(unless, of course, they did not know about the cancellation of the power of attorney until this moment). The fact is that the law protects the interests of bona fide third parties who have entered into a deal with a representative whose power of attorney has been canceled. So, in accordance with paragraph 2 of Art. 189 of the Civil Code of the Russian Federation, if a power of attorney is presented to a third party, the termination of which he did not know and should not have known, the rights and obligations acquired as a result of the actions of the person whose powers were terminated remain valid for the represented person and for his successors. In other words, if the principal canceled the power of attorney, but the power of attorney itself, for some reason, remained with the former representative, who, under this power of attorney, made a deal with a third party, and at the same time the third party did not know and could have known about the cancellation of the power of attorney, for the principal this transaction will be mandatory, he will have to fulfill it.

Thus, the cancellation of a power of attorney in a notarial form will allow the principal to avoid adverse consequences caused by the unawareness of third parties about the fact of the cancellation of the power of attorney. If the power of attorney is notarized, then the very next day after entering information about this in the register of notarial acts, all third parties will be considered aware of the cancellation of the power of attorney, even if in fact this is not the case. This means that in the event of a transaction, they will no longer be able to refer to their good faith and require the execution of the transaction from the principal.

Changes in the legislation on notaries

From January 1, 2017, a new version of clause 1 of Art. 34.1 of the Fundamentals of Russian Legislation on Notaries (the version was approved by Federal Law No. 332-FZ of July 3, 2016 “On Amending Articles 188 and 189 of Part One of the Civil Code of the Russian Federation and the Fundamentals of Russian Legislation on Notaries”).

If, in accordance with the previous version of this norm, only information about canceled powers of attorney was reflected in the unified information system of the notary, then from January 1, 2017, it must reflect information about all powers of attorney certified by a notary. This means that any interested person who has been presented with a notarized power of attorney will be able, using the Internet information and telecommunication network, to check whether such a power of attorney was really certified by a notary (whether it is fake), whether the specified power of attorney has been canceled, etc.

Mandatory claim procedure for settling disputes

On June 1, 2016, the norms on the mandatory pre-trial (claim) procedure for the settlement of civil disputes came into force.

So, according to part 5 of Art. 4 of the Arbitration Procedure Code of the Russian Federation (as amended by Federal Law No. 47-FZ of 02.03.2016), a dispute arising from civil legal relations may be submitted for resolution by the arbitration court after the parties have taken measures for pre-trial settlement after 30 (thirty) calendar days from the date of filing the claim (requirements), unless other terms and/or procedures are established by law or contract.

In this regard, it is important to pay attention to the following:

First of all , a mandatory pre-trial procedure has been established to resolve only those civil disputes that fall within the jurisdiction (competence) of arbitration courts. Accordingly, if the resolution of a dispute falls within the competence of a court of general jurisdiction, then compliance with the pre-trial procedure for resolving this dispute is not necessary (unless otherwise provided by law or contract);

Secondly , the parties, by their agreement, can adjust the procedure for pre-trial settlement of a dispute that has arisen between them. For example, they can change the deadline for responding to a claim, they can agree that the response period begins to run not from the moment the claim is sent, but from the moment it is received by the addressee, etc. At the same time, under no circumstances can the parties agree on the exclusion of the mandatory pre-trial procedure for settling the dispute;

third , It should be borne in mind that the legislator made an exception for certain categories of disputes. So, according to part 5 of Art. 4 of the Arbitration Procedure Code of the Russian Federation, the mandatory pre-trial procedure does not apply to cases of corporate disputes, cases on the protection of the rights and legitimate interests of a group of persons, insolvency (bankruptcy) cases, cases on the early termination of the legal protection of a trademark due to its non-use, cases on establishing facts that have legal significance, cases on awarding compensation for violation of the right to legal proceedings within a reasonable time or the right to execution of a judicial act within a reasonable time, cases on challenging decisions of arbitration courts;

fourthly , it should be noted, in accordance with paragraph 3 of Art. 202 of the Civil Code of the Russian Federation (the norm is valid from 09/01/2013) if the parties have resorted to statutory dispute resolution procedure out of court (mediation, mediation, administrative procedure, etc.), the limitation period is suspended for the period established by law for such a procedure, and in the absence of such a period - for 6 months from the date of commencement of the relevant procedure. Accordingly, since now the pre-trial procedure for the settlement of civil disputes falling within the competence of arbitration courts is mandatory by law, then filing a claim, in our opinion, should serve as a basis for suspending the limitation period by virtue of paragraph 3 of Art. 202 of the Civil Code of the Russian Federation.

Changes in the procedure for calculating legal interest

On August 1, 2016, a new version of paragraph 1 of Art. 317.1 of the Civil Code of the Russian Federation on the so-called "legitimate interest", which was approved by the Federal Law of July 3, 2016 No. 315-FZ "On Amendments to Part One of the Civil Code of the Russian Federation and Certain Legislative Acts of the Russian Federation".

The previous edition of paragraph 1 of Art. 317.1 of the Civil Code of the Russian Federation (came into force on June 1, 2015), a rule was established according to which legal interest is charged on the amount of debt under a monetary obligation between business entities at the refinancing rate of the Bank of Russia for the entire period of use of funds. The indicated interest was subject to accrual by default (automatically), unless otherwise provided by law or by agreement of the parties. At the same time, by their agreement, the parties could exclude the accrual of legal interest, establish a certain procedure for their calculation (for example, the moment from which interest is accrued), change the rate at which interest is accrued, etc.

In accordance with the new wording of paragraph 1 of Art. 317.1 of the Civil Code of the Russian Federation, legal interest is subject to accrual on the amount of a monetary debt only if their accrual is expressly provided for by law or contract. By default, as before, they are no longer charged. In addition, the contract can provide for the accrual of legal interest in relation to any monetary obligation, and not only to an obligation to which business entities are parties.

It is also important to note that the new version of paragraph 1 of Art. 317.1 of the Civil Code of the Russian Federation applies to monetary liabilities that arose after August 1, 2016. Accordingly, if a monetary obligation arose under an agreement concluded between June 1, 2015 and July 31, 2016 (inclusive), the previous version of paragraph 1 of Art. 317.1 of the Civil Code of the Russian Federation. So, in this case, in the absence of a clause in the contract on non-application of the rules on legal interest to the relations of the parties, legal interest will be charged on the amount of the monetary debt by default.

Changes in the procedure for calculating interest for late payment

From August 1, 2016, paragraph 1 of Art. 395 of the Civil Code of the Russian Federation on the calculation of interest for the use of other people's funds, in particular, in case of delay in their return or payment (the new version was approved by Federal Law No. 315-FZ of July 3, 2016 "On Amendments to Part One of the Civil Code of the Russian Federation and Certain Legislative Acts of the Russian Federation" ).

In accordance with the previous wording of paragraph 1 of Art. 395 of the Civil Code of the Russian Federation (effective from 06/01/2015), interest for the use of other people's funds, as a general rule, was subject to accrual at the average bank interest rates on deposits of individuals published by the Bank of Russia. From August 1, 2016, the amount of the specified interest is determined by the key rate of the Bank of Russia, which was in effect during the entire period of use of other people's funds .

True, it should be borne in mind that at the key rate, interest is charged only for the use of funds that took place after August 1, 2016. For the use of other people's funds in the period from June 1, 2015 to July 31, 2016 (inclusive), interest must accrued at the average rates of bank interest on deposits of individuals, even if the claim for the payment of these interest is declared by the creditor after August 1, 2016.

Making contributions to the property of a joint-stock company

Since July 15, 2016, Federal Law No. 208-FZ of December 26, 1995 “On Joint Stock Companies” regulates the procedure for making contributions to the property of a joint stock company. Prior to this, the possibility of making contributions to the property of a business company was allowed only in relation to limited liability companies.

As expressly stated in paragraph 1 of Art. 32.2 of the Federal Law "On Joint Stock Companies", contributions to property may be made in order to finance and maintain the activities of the company. At the same time, contributions to property do not increase either the size of the authorized capital of the company or the nominal value of its shares.

The main provisions on the procedure for making contributions to the property of any joint-stock company are as follows:

First of all , making contributions to the property of a joint-stock company is a right, but not an obligation, of shareholders. As an exception, the statute non-public of the company, it may be provided that by decision of the general meeting of shareholders the shareholders may be obliged to make contributions to the property of the company. True, in order for such a decision to be made, all shareholders of a non-public joint-stock company must vote for it unanimously. And this, in turn, means that, in fact, it is impossible to oblige shareholders to make contributions to the company's property against their will in any case. This, by the way, distinguishes joint-stock companies from limited liability companies, contributions to whose property, in accordance with the law, are made on the basis of a decision of a meeting of participants adopted by a majority of at least two-thirds of the votes of the total number of votes of the participants in the company;

Secondly , contributions to property can be made, regardless of whether such a possibility is provided for by the charter of the company or not, and also regardless of the decision of the general meeting of shareholders on making contributions;

third , contributions to property can be made by all shareholders of the company, and some of them (or even one of them);

fourthly , making contributions to the property of the company is carried out on the basis of a deposit agreement, which must be preliminarily approved by the board of directors of the joint-stock company in whose property the contribution is made;

fifth , Contributions to the property of a joint-stock company may be made in cash or in any other form. The only restriction is that the property contributed as a contribution must refer to the objects specified in paragraph 1 of Art. 66.1 of the Civil Code of the Russian Federation. And this, in particular, means that as a contribution to the property of the company property rights cannot be entered, with the exception of exclusive and licensing rights in relation to the results of intellectual activity;

New procedure for large transactions

Since January 1, 2017, a new procedure for making major transactions by joint-stock companies and limited liability companies has been in force (Federal Law No. 343-FZ dated 03.07. responsibility” in terms of regulation of major transactions and transactions in which there is an interest”). The main changes in the procedure for making such transactions are as follows:

First of all , now, when determining the size of a transaction related to the alienation or the possibility of alienation by the company of property, the largest of the two values ​​​​is compared with the book value of assets - either the book value of this property, or the real price of its alienation (possible alienation) . Accordingly, if, for example, the book value of the assets is - 1 million rubles, the book value of the alienated property is 200,000 rubles, and the price of alienation of the said property under the contract is 400,000 rubles, the transaction is large, since the larger of the two values (in this example - 400,000 rubles) exceeds 25% of the book value of the company's assets. According to the "old" rules, the transaction would not be a major one, since the book value of the property is less than 25% of the book value of the company's assets;

Secondly , now the law explicitly states that transactions involving the transfer of property for temporary possession and / or use (lease agreement, gratuitous use, etc.), as well as license agreements providing for the right to use the result of intellectual activity or means of individualization, if the book value of these objects is 25 percent or more of the book value of the company's assets;

third , in the decision on consent to the conclusion of a major transaction, the period during which such a decision is valid may be indicated. If such a period is not specified, then the consent is considered valid for 1 (one) year from the date of its acceptance. In addition, a major transaction may be made subject to a suspensive condition for obtaining approval for its completion. For example, an agreement that is a major transaction can include a condition that it enters into force subject to its approval by a higher management body of a business entity;

fourthly , the court with a claim for recognition of a major transaction as invalid now has the right to apply: the company itself; shareholders (participants) owning at least 1% of the voting shares of the company (at least 1% of the votes of the total number of votes of the participants in the limited liability company); members of the board of directors;

fifth , According to the new rules, the court refuses to recognize a major transaction as invalid in the presence of one of the following circumstances: evidence of the subsequent approval of the transaction has been presented to the court, or it has not been proven that the other party to the transaction knew or should have known that the transaction was a major one and/or that there was no proper consent to it. Recall that, according to the "old" rules, the basis for refusing a claim was, for example, the absence of adverse consequences as a result of a major transaction, both for the company itself and for its participants (shareholders). Now the absence of such adverse consequences will not save the deal.

New procedure for transactions with interest

From January 1, 2017, a new procedure for making interested-party transactions by joint-stock companies and limited liability companies (Federal Law No. 343-FZ of 03.07. limited liability” in terms of regulation of large transactions and transactions in which there is an interest”).

The main changes in the procedure for making such transactions are as follows:

First of all , to the list of persons who may be interested in the transaction, included so-called "controlling persons". At the same time, a controlling person means a person who has the right, directly or indirectly (through persons controlled by him), to dispose of more than 50% of the votes in the supreme management body of the controlled organization, or to appoint (elect) the sole executive body and / or more than 50% of the composition of the collegial management body of the controlled organization. organizations.

Along with this, shareholders (participants) owning independently or jointly with their affiliates 20 or more percent of the voting shares of the company (20 or more percent of the votes of the total number of votes of the company's participants with limited liability). Now shareholders (participants) can be recognized as interested in the transaction if they fall under the signs of a controlling person. The mere possession of more than 20% of voting shares (votes) is no longer sufficient for this;

Secondly , an interested party transaction, as a general rule, does not require a mandatory prior consent to its completion. An interested party transaction may be agreed to by the board of directors or the general meeting of shareholders (members) if the transaction was required by: the sole executive body, members of the collegial executive body, members of the board of directors, or shareholders holding at least 1% of the voting shares of the company (members , whose shares in the aggregate amount to at least 1% of the authorized capital of a limited liability company);

third , a claim for recognition of an interested-party transaction as invalid may be filed by: the company itself; shareholders (participants) owning at least 1% of the voting shares of the company (at least 1% of the total number of votes of the participants of the limited liability company); members of the board of directors;

fourthly , under the new rules, an interested party transaction may be invalidated only if there are grounds provided for in paragraph 2 of Art. 174 of the Civil Code of the Russian Federation. Primarily, it must be proved that the interested party transaction was made to the detriment of the interests of the company. In the absence of damage, the court will refuse the claim for recognition of the transaction as invalid. In addition, it must be proven that the other party to the transaction knew or should have known that the transaction was an interested party transaction for the company and / or that there was no consent to its conclusion.

It is important to note that at present, the lack of consent to an interested-party transaction is not in itself a basis for challenging this transaction. If an interested party transaction has caused damage to the company, it may be challenged even if there is consent to its commission;

fifth , The current legislation introduced the rule that the person interested in the transaction shall be liable to the company for the damage caused by this transaction. Moreover, liability arises regardless of whether the interested party transaction was challenged (recognised invalid) or not;

At sixth , the charter of a limited liability company or a non-public joint-stock company may establish a different procedure for approving interested-party transactions than that provided for by law, and it may also provide that the provisions of the law on interested-party transactions do not apply to this company.

Changes in the legislation on registration of real estate

On January 1, 2017, Federal Law No. 218-FZ of July 13, 2015 “On State Registration of Real Estate” came into force, which, ultimately, should completely replace Federal Law No. 122-FZ of July 21, 1997 “On State Registration of rights to real estate and transactions with it.

The most important innovations concern the following:

First of all , from January 1, 2017, real estate objects must be recorded in the new register, namely in the Unified State Real Estate Register (EGRN), which includes information from the State Real Estate Cadastre (GKN) and from the Unified State Register of Rights to Real Estate (EGRP);

Secondly , to carry out cadastral registration of real estate and registration of rights to it will now be one body - Rosreestr (and its territorial bodies);

third , the general terms for cadastral registration of real estate objects and state registration of rights to real estate have been reduced;

fourthly , the new law does not provide for the issuance of certificates of rights to immovable property. Now the state cadastral registration, state registration of the emergence or transfer of rights to real estate will be certified by an extract from the USRN. State registration of contracts and other transactions will be certified by making a special registration inscription on a document expressing the content of the transaction.