Commentary on Chapter 58 1.
Before the entry into force of part two of the Civil Code of the Russian Federation, the conduct of games and bets in Russia was not regulated at the legislative level. Certain acts of the highest governing bodies concerned the streamlining of lottery activities only.
A number of decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation, adopted after the entry into force of part two of the Civil Code, were designed to strengthen the regulation of this new type of activity, aimed ultimately at generating profit, attracting additional funds necessary for implementation social programs. Thus, in the system of Russian law of obligations, a special legal institution based on the law has emerged - the conduct of games and bets.
, receipt or other document or in any other way provided for by the conditions of the lottery. Among other basic concepts, the Law on Lotteries includes winning, prize fund
lotteries, lottery prize fund draw, lottery ticket, lottery organizer, lottery organization, lottery holding, lottery operator, lottery ticket distributor, lottery participant, lottery bet (paid game combination).
The central group of rules is formed by the rules relating to the issuance of permission to conduct a lottery, notification of an incentive lottery, general conditions lottery and conditions of the incentive lottery, mandatory lottery standards, targeted deductions from the lottery, requirements for lottery tickets. This group also includes norms on the most common lotteries: the All-Russian state lottery, the regional state lottery, the municipal lottery, the organizer of which is an authorized local government body.
The final group of norms are rules aimed at ensuring the protection of the rights of lottery participants and monitoring the conduct of the lottery. It is possible for credit institutions to participate in lotteries (this, in particular, is the right of the lottery organizer or operator to engage credit institutions on a contractual basis to distribute lottery tickets). There are rules governing the audit of the lottery organizer and lottery operator, liability for violation of the Law on Lotteries.
4. Depending on the organizer, lotteries are divided into state and non-state. Organizer state lottery is the Russian Federation or a subject of the Russian Federation. On behalf of the Russian Federation, the organizer of a state lottery held throughout the Federation can only be federal body
executive power, authorized by the Government of the Russian Federation. On behalf of a constituent entity of the Russian Federation, the organizer of a state lottery held on the territory of one constituent entity of the Russian Federation can only be an authorized executive body of the constituent entity of the Russian Federation.
The organizer of a non-state lottery can be a municipal entity or a legal entity created in accordance with the legislation of the Russian Federation and located in the Russian Federation.
The lottery organizer conducts the lottery directly or through the lottery operator by concluding an agreement (contract) with him and is responsible to the lottery participants for violation of their obligations under the agreement.
Revenue from a lottery is money received from the distribution of lottery tickets for a specific lottery.
The types of lotteries held on the territory of the Russian Federation are determined depending on the method of its implementation. A lottery, depending on the method of forming its prize fund, is divided into a lottery, the right to participate in which is associated with the payment of a fee, through which the prize fund is formed; a lottery, the right to participate in which is not associated with paying a fee and the prize fund of which is formed at the expense of the lottery organizer (stimulating lottery).
Depending on the territory where it is held, the lottery is divided into international, all-Russian, regional and municipal.
The first of them is carried out on the territories of two or more states, including the territory of Russia, on the basis of an international treaty of the Russian Federation. The procedure for conducting such a lottery is determined in accordance with the requirements of the Law in question.
The All-Russian lottery is held throughout the Russian Federation.
A regional lottery is held on the territory of one constituent entity of the Russian Federation. The organization and conduct of lotteries in the territories of several constituent entities of the Russian Federation is carried out in the manner established by the Law on Lotteries for conducting an all-Russian lottery. A municipal lottery can be held on the territory of one municipality.
Article 1062. Requirements related to the organization of games and bets and participation in them
Commentary on Article 1062
1. As can be seen from the title of the article, it does not contain any indication of the nature of the relations developing between the parties. Its text does not provide a legal definition of such relations, does not establish any rules of conduct for the participants, and at the same time provides for specific negative consequences - the law does not provide for judicial protection of interested parties.
At first glance, the article eliminates the contractual nature of these relations. This is expressed in the words: “The demands of citizens and legal entities... are not subject to judicial protection." Such a formulation may indicate not only that non-contractual relations are meant, but also relations that are generally outside the scope of civil law regulation. 2.
However, judicial protection is provided to persons who took part in games or bets under the influence of unlawful actions of their organizers, as well as participants in games and bets that are conducted by the state and municipalities or with their permission (clause 5 of Article 1063 of the Civil Code).
The unclear definition of betting and games in the Civil Code has led to the fact that court practice began to include settlement forward transactions for the sale of currency concluded by banks among them. Accordingly, the courts began to refuse legal protection to the claims arising from the non-fulfillment of such transactions (Bulletin of the Supreme Arbitration Court of the Russian Federation, 1999, No. 9, Art. 40).
According to the complaint of the commercial joint-stock bank "Bank Societe Generale Vostok" about the verification of the constitutionality of Art. 1062 of the Civil Code, the issue was considered by the Constitutional Court of the Russian Federation. The court recognized itself as incompetent to resolve the dispute on the merits, but noted the need to establish in this area the prerequisites for an organized market for such contracts (Determination of the Constitutional Court of the Russian Federation of December 16, 2002 N 282-O (SZ RF, 2002, N 52 (Part II), Art. 5291)). This indicates the need for legislative changes in the area under consideration.
Chapter 52. Conducting games and betting § 1. General provisions
Concept of games and betting. The word game in Russian has several meanings, which can vary depending on the context and the specific life situation. At the institute in question civil law a game is understood as a phenomenon that is traditionally designated by the phrase gambling (from the French hazard - chance, chance, risk). Based on the legal definition of gambling contained in Art. 4 Federal Law dated December 29, 2006 "On state regulation of activities related to the organization and conduct of gambling and on amendments to some legislative acts Russian Federation" (hereinafter referred to as the Gambling Law) *(973) , a game in civil law is understood as a risk-based agreement to win, concluded by two or more participants in such an agreement between themselves or with the organizer of a gambling game according to pre-established rules. An integral feature of a game in civil law is its risky nature, which requires the parties to consciously various options changes in their property, the occurrence of which may depend on their own actions as players, on the actions of third parties or on the forces of nature.
A bet is a type of gambling in which the outcome of a risk-based agreement on winnings, concluded by two or more bettors among themselves or with the organizer of this type of gambling, depends on an event for which it is unknown whether it will occur or not (Article 4 of the Law about gambling). As can be seen from this definition, the occurrence of changes in the property sphere of bettors is in no way connected with their own behavior, but depends solely on the actions of third parties or the forces of nature.
Current legislation pays significant attention only to a narrow range of gambling games, including lotteries, games held in casinos, slot machine halls, bookmakers and betting shops. Lack of detailed regulation of other games, in particular various card games, which have become widespread outside the walls of casinos, does not at all mean that they are outside the scope of civil law. Relations arising between participants in such games are regulated by general rules on games and betting, as well as general rules of civil law.
Sources of legal regulation. The rules governing the conduct of games and bets and participation in them are dispersed among several regulations. The most general provisions are enshrined in Chapter. 58 of the Civil Code, consisting of two articles - 1062 and 1063. They define: the grounds for the emergence of obligations from the conduct of games and bets; the range of subjects of the obligations under consideration; general requirements for the content of agreements on gaming and betting; rules for the protection of rights arising from the obligations in question.
One of the main sources of regulation in this area is the Gambling Law, which contains legal definitions of such key concepts for the legal institution under consideration as gambling, betting, betting, winnings, gambling establishment; the rules for organizing and participating in games held in casinos, slot machine halls, betting shops and bookmakers have been established, including defining the subjects, objects and features of the content of the obligations from the conduct of the relevant games. The conceptual innovation of the Gambling Law is the establishment of territorial boundaries for the occurrence and fulfillment of obligations to conduct games in casinos and halls slot machines. According to Art. 9, 16 of the Law on Gambling, from July 1, 2009, the occurrence and fulfillment of these obligations will become possible not throughout the entire territory of the Russian Federation, but only in its certain parts, called gambling zones. Gambling zones will be located in separate areas Altai Territory, Primorsky Krai, Kaliningrad region, Krasnodar region and Rostov region. Outside the gambling zones, transactions aimed at the emergence and fulfillment of the obligations in question will be considered invalid from July 1, 2009 on the basis of Art. 168 Civil Code.
Another source of legal regulation in this area is the Federal Law of November 11, 2003 “On Lotteries” (as amended and supplemented) *(974) (hereinafter referred to as the Law on Lotteries). The Law on Lotteries contains legal definitions of the concepts of lottery, winnings, lottery ticket, defines the subject composition of the obligations of conducting lotteries, the objects of the obligations in question, the features of their content, types of lotteries, requirements for lottery tickets.
In order to implement certain provisions of the Law on Lotteries, in particular, the norms on all-Russian and regional lotteries, on maintaining a register of lotteries, the executive authorities of the Russian Federation and the legislative and executive authorities of the constituent entities of the Federation have adopted relevant laws and by-laws regulations. Thus, the Government of the Russian Federation adopted Resolution No. 338 of July 5, 2004 “On measures to implement the Federal Law “On Lotteries” *(975) (hereinafter referred to as the resolution on lotteries). As for regional regulations, for example, in St. Petersburg the Law of St. Petersburg of 2005 “On state register regional lotteries of St. Petersburg" *(976) , as well as Decree of the Government of St. Petersburg dated October 1, 2004 N 1637 “On measures to implement the Federal Law of November 11, 2003 N 138-FZ “On Lotteries” *(977) (hereinafter referred to as the St. Petersburg resolution on lotteries). It should be noted that these regulations do not contain civil law norms, but regulate exclusively the relations of persons applying for the organization of regional lotteries with the authorities of the Russian Federation and its constituent entities.
The basis for the emergence of obligations from the conduct of games and bets.
The basis for obligations arising from the conduct of games and bets is an agreement concluded between the organizer of the game and the participant or directly between the participants.
Depending on the type of game and its subject composition, the contract in question can be either consensual or real. For example, an agreement between two citizens concluded on the outcome football match, based on the general rule of paragraph 1 of Art. 433 of the Civil Code and in the absence of any special rules will be consensual. On the contrary, an agreement concluded between the organizer of casino games and visitors, on the basis of clause 2 of Art. 433 of the Civil Code will be real, since according to paragraph 3 of Art. 4 of the Gambling Law, making a bet is prerequisite participation in the game. Reaching an agreement between the participant and the organizer in this case is not enough; The moment the contract is concluded is the moment the participant places a bet.
The agreement to conduct games and bets is compensated, since the material provision in the form of a bet made by one party is opposed by the likelihood of receiving material provision in the form of a win from the other party in the event of a positive result of the game. Due to the fact that the bet is not opposed to the winnings themselves, but only the probability of receiving them, this agreement is usually referred to as the so-called risk (aleatory) contracts.
Depending on the type of game and the subjective composition of the participants, the agreement on conducting games and betting can be either bilaterally binding or unilateral.
The contract in question is a conditional transaction, since the emergence of the rights and obligations of the parties depends not only on the fact of concluding the contract and its terms, but also on whether the result of the game turns out to be positive for at least one of the parties.
The agreement on holding games and betting concluded between the organizer and the participant is, as a rule, an agreement of adhesion. However, despite the fact that the game organizer usually has commercial organization, the contract in question is not public, since the entrepreneurial activity of the game organizer cannot be reduced to the sale of goods, performance of work or provision of services, which is necessary by virtue of Art. 426 Civil Code.
The essential terms of the agreement on holding games and bets concluded between the organizer and the participant, in addition to the condition on the subject, are the conditions on the period of the game and the procedure for determining the winnings (clause 3 of Article 1063 of the Civil Code). The only essential condition of the agreement on holding games, the parties to which are exclusively the participants, is the condition on its subject.
The price is not considered by law to be an essential term of the contract for conducting games and betting. However, in the vast majority of cases, price acts as an essential condition of the contracts in question, since the need to agree on it arises at the will of the parties.
The form of the agreement on conducting games and betting is subject to the general rules of the Civil Code. Norm clause 2 art. 1063 of the Civil Code, according to which, in cases provided for by the rules for organizing games, an agreement between the organizer and a participant in the games is formalized by issuing a lottery ticket, receipt or other document, as well as in another way, in essence, it does not establish any special requirements for the form of the agreement in question. This rule contains only an approximate list of documents that can act as a written form of an agreement if, firstly, this is provided for by the rules of organizing games and, secondly, they include all the essential terms of the agreement. Taking into account Art. 12 of the Law on Lotteries, which contains mandatory requirements for the content of lottery tickets, it can be concluded that from the moment this Law comes into force, a lottery ticket represents a written form of an agreement on participation in the lottery. As for receipts and other documents issued during other gambling, since they, as a rule, are not detailed enough, they should be regarded mainly as possible evidence the fact of concluding a contract in case of a dispute.
Questions about the subject and parties of the agreement, the rights and obligations of the parties will be discussed in the next paragraph in relation to obligations from the conduct of games and bets.
Play is an activity that is voluntary, enjoyable, and has no apparent purpose other than pleasure. This concept is enshrined in the Large Explanatory Sociological Dictionary of David D., Jerry J. This is one of the fundamental concepts modern philosophy and sociology. In the context of these sciences, play is understood as an activity, the meaning and value of which lies in itself, in the very process of play.
The legal definition of the concept of “gambling” is contained in the federal law of December 29, 2006 N 244-FZ “On state regulation of activities related to the organization and conduct of gambling and on amendments to certain legislative acts of the Russian Federation”, where gambling is understood as “based on at risk, an agreement on winnings concluded by two or more participants in such an agreement between themselves or with the organizer of a gambling game according to the rules established by the organizer of a gambling game. A bet is a game of chance in which the outcome of a risk-based agreement to win, concluded by two or more bettors among themselves or with the organizer of this type of gambling, depends on an event for which it is unknown whether it will occur or not”1 Federal Law dated 29.12 .2006 N 244-FZ (as amended on October 16, 2012) “On state regulation of activities related to the organization and conduct of gambling and on amendments to certain legislative acts of the Russian Federation” (ConsultantPlus). A bet in the form of a conflict of forecasts is actually a dispute not between the caller and those who responded, but only between the latter. The caller accepts bets, forecast options and sums up the results.
Carrying out games (betting) is almost always (with the exception of the so-called charity lotteries) commercial activities for the caller, whose profit consists of the difference between the amount of risk contributions of those who responded and the amount that constitutes the prize fund and the costs of organizing and running the game.
Basic distinctive feature games and betting in civil law is their risky, or aleatory nature, which is expressed in the fact that the parties are aware of the possibility of both favorable and unfavorable consequences occurring equally or with a certain probability ratio, in other words, winning or losing. In addition, their important feature is the property nature of winnings, as well as losses.
The concepts of gaming and betting are very close in nature. Traditionally, the distinction between them is based on the ability of participants to influence the outcome. Thus, a game is defined as an agreement by virtue of which the participants in the game are promised (to one or more of them) a certain win, depending on the degree of dexterity of the participants, their combination abilities, or to one degree or another on chance, i.e. usually the participants in the game have a significant influence on the result. With a bet, this possibility is absent, since one side claims and the other denies the existence of a certain circumstance that occurs independently of them. When betting, the participation of the parties in the occurrence of these circumstances is excluded or minimized and only verification of the facts is assumed. In essence, betting is a type of game. The meaning of this special attention, given to this type of games, probably lies in the fact that betting has more specificity than other types of games, as well as in its wide distribution.
The concept of games and betting. The word game in Russian has several meanings, which can vary depending on the context and the specific life situation. In the institution of civil law under consideration, a game is understood as a phenomenon that is traditionally designated by the phrase gambling (from the French hazard - chance, chance, risk). Based on the legal definition of gambling contained in Art. 4 of the Federal Law of December 29, 2006 “On state regulation of activities related to the organization and conduct of gambling and on amendments to certain legislative acts of the Russian Federation” (hereinafter referred to as the Law on Gambling) * (973), in civil law gaming is understood as a risk-based agreement to win, concluded by two or more participants in such an agreement between themselves or with the organizer of a gambling game according to predetermined rules. An integral feature of a game in civil law is its risky nature, which presupposes the parties’ conscious assumption of various options for changes in their property sphere, the occurrence of which may depend on their own actions as players, on the actions of third parties or on the forces of nature.
A bet is a type of gambling in which the outcome of a risk-based agreement on winnings, concluded by two or more bettors among themselves or with the organizer of this type of gambling, depends on an event for which it is unknown whether it will occur or not (Article 4 of the Law about gambling). As can be seen from this definition, the occurrence of changes in the property sphere of betting participants is in no way connected with their own behavior, but depends solely on the actions of third parties or the forces of nature.
Current legislation pays significant attention only to a narrow range of gambling games, including lotteries, games held in casinos, slot machine halls, bookmakers and betting shops. The lack of detailed regulation of other games, in particular various card games that have become widespread outside casinos, does not mean that they are outside the scope of civil law. Relations arising between participants in such games are regulated by general rules on games and betting, as well as general rules of civil law.
Sources of legal regulation. The rules governing the conduct of games and bets and participation in them are dispersed among several regulations. The most general provisions are enshrined in Chapter. 58 of the Civil Code, consisting of two articles - 1062 and 1063. They define: the grounds for the emergence of obligations from the conduct of games and bets; the range of subjects of the obligations under consideration; General requirements to the content of agreements on conducting games and betting; rules for the protection of rights arising from the obligations in question.
One of the main sources of regulation in this area is the Gambling Law, which contains legal definitions of such key concepts for the legal institution under consideration as gambling, betting, betting, winnings, gambling establishment; the rules for organizing and participating in games held in casinos, slot machine halls, betting shops and bookmakers have been established, including defining the subjects, objects and features of the content of the obligations from the conduct of the relevant games. The conceptual innovation of the Gambling Law is the establishment of territorial boundaries for the occurrence and fulfillment of obligations to conduct games in casinos and slot machine halls. According to Art. 9, 16 of the Law on Gambling, from July 1, 2009, the occurrence and fulfillment of these obligations will become possible not throughout the entire territory of the Russian Federation, but only in its certain parts, called gambling zones. Gambling zones will be located in certain areas of the Altai Territory, Primorsky Territory, Kaliningrad Region, Krasnodar Territory and Rostov Region. Outside the gambling zones, transactions aimed at the emergence and fulfillment of the obligations in question will be considered invalid from July 1, 2009 on the basis of Art. 168 Civil Code.
Another source of legal regulation in this area is the Federal Law of November 11, 2003 “On Lotteries” (as amended and supplemented) * (974) (hereinafter referred to as the Law on Lotteries). The Law on Lotteries contains legal definitions of the concepts of lottery, winnings, lottery ticket, defines the subject composition of the obligations of conducting lotteries, the objects of the obligations in question, the features of their content, types of lotteries, requirements for lottery tickets.
In order to implement certain provisions of the Law on Lotteries, in particular, the norms on all-Russian and regional lotteries, on maintaining a register of lotteries, the executive authorities of the Russian Federation and the legislative and executive authorities of the constituent entities of the Federation have adopted relevant laws and by-laws. Thus, the Government of the Russian Federation adopted resolution No. 338 of July 5, 2004 “On measures to implement the Federal Law “On Lotteries” * (975) (hereinafter referred to as the resolution on lotteries). As for regional regulations, for example, in St. In St. Petersburg, the Law of St. Petersburg of 2005 “On the State Register of Regional Lotteries of St. Petersburg” * (976) is in force, as well as Decree of the Government of St. Petersburg dated October 1, 2004 N 1637 “On measures to implement the Federal Law of November 11, 2003 N 138-FZ “On Lotteries” * (977) (hereinafter referred to as the St. Petersburg Decree on Lotteries). It should be noted that these regulations do not contain civil law norms, but regulate exclusively the relations of persons applying for the organization of regional lotteries with the authorities of the Russian Federation and its constituent entities.
The basis for the emergence of obligations from the conduct of games and bets.
The basis for obligations arising from the conduct of games and bets is an agreement concluded between the organizer of the game and the participant or directly between the participants.
Depending on the type of game and its subject composition, the contract in question can be either consensual or real. For example, an agreement between two citizens concluded on the outcome of a football match, based on the general rule of paragraph 1 of Art. 433 of the Civil Code and in the absence of any special rules will be consensual. On the contrary, an agreement concluded between the organizer of casino games and visitors, on the basis of clause 2 of Art. 433 of the Civil Code will be real, since according to paragraph 3 of Art. 4 of the Gambling Law, placing a bet is a mandatory condition for participating in the game. Reaching an agreement between the participant and the organizer in this case is not enough; The moment the contract is concluded is the moment the participant places a bet.
The agreement to conduct games and bets is compensated, since the material provision in the form of a bet made by one party is opposed by the likelihood of receiving material provision in the form of a win from the other party in the event of a positive result of the game. Due to the fact that the bet is not opposed to the winnings themselves, but only the probability of receiving them, this agreement is usually referred to as the so-called risk (aleatory) contracts.
Depending on the type of game and the subjective composition of the participants, the agreement on conducting games and betting can be either bilaterally binding or unilateral.
The contract in question is a conditional transaction, since the emergence of the rights and obligations of the parties depends not only on the fact of concluding the contract and its terms, but also on whether the result of the game turns out to be positive for at least one of the parties.
The agreement on holding games and betting concluded between the organizer and the participant is, as a rule, an agreement of adhesion. However, despite the fact that a commercial organization usually acts on the side of the game organizer, the agreement in question is not public, since entrepreneurial activity the organizer of the game cannot be reduced to the sale of goods, performance of work or provision of services, which is necessary by virtue of Art. 426 Civil Code.
The essential terms of the agreement on holding games and bets concluded between the organizer and the participant, in addition to the condition on the subject, are the conditions on the period of the game and the procedure for determining the winnings (clause 3 of Article 1063 of the Civil Code). The only essential condition of the agreement on holding games, the parties to which are exclusively the participants, is the condition on its subject.
The price is not considered by law to be an essential term of the contract for conducting games and betting. However, in the vast majority of cases, price acts as an essential condition of the contracts in question, since the need to agree on it arises at the will of the parties.
The form of the agreement on conducting games and betting is subject to the general rules of the Civil Code. Norm clause 2 art. 1063 of the Civil Code, according to which, in cases provided for by the rules for organizing games, an agreement between the organizer and a participant in the games is formalized by issuing a lottery ticket, receipt or other document, as well as in another way, in essence, it does not establish any special requirements for the form of the agreement in question. This rule contains only an approximate list of documents that can act as a written form of an agreement if, firstly, this is provided for by the rules of organizing games and, secondly, they include all the essential terms of the agreement. Taking into account Art. 12 of the Law on Lotteries, which contains mandatory requirements for the content of lottery tickets, it can be concluded that from the moment this Law comes into force, a lottery ticket represents a written form of an agreement on participation in the lottery. As for receipts and other documents issued during other gambling, since they are usually not detailed enough, they should be regarded mainly as possible evidence of the conclusion of an agreement in the event of a dispute.
Questions about the subject and parties of the agreement, the rights and obligations of the parties will be discussed in the next paragraph in relation to obligations from the conduct of games and bets.
§ 2. Elements of obligations from conducting games and betting
Subjects. The current legislation distinguishes two categories of subjects of obligations from the conduct of games and bets - the organizer and the participant. Modern civil turnover is characterized by the presence of obligations of both categories of subjects in the form under consideration: the participant is on the creditor’s side, and the organizer is on the debtor’s side. At the same time, the law allows for the emergence of obligations, the subject composition of which is formed exclusively by the participants. The specificity of such obligations is that for a certain period - from the moment an agreement is reached between the participants until the outcome of the game occurs - the question of the creditor and the debtor remains open. Only after the outcome of the game has occurred, the subject composition acquires the traditional characteristics of an obligation: the winning participant takes the place of the creditor, the loser - the place of the debtor.
Depending on the type of game, various subjects of civil law may act on the side of the organizer and participant.
Organizers of games held in casinos, in slot machine halls, in bookmakers' offices and on sweepstakes can only be legal entities registered on the territory of the Russian Federation in accordance with the established procedure. At the same time, legal entities whose founders (participants) include: Russian Federation, its subjects or local governments.
The law establishes special requirements for the property status of organizers of games held in casinos, slot machine halls, bookmakers and betting shops. Thus, the value of the net assets of the organizer of games in casinos and slot machine halls during the entire period of activity cannot be less than 600 million rubles. The net assets of the game organizer in bookmakers' offices and betting during the entire period of activity cannot be less than 100 million rubles.
To organize and conduct games in casinos and slot machine halls, the organizer is obliged to obtain, in accordance with the established procedure, the appropriate permission from the competent state body - the gambling zone management body. To organize and conduct games in bookmakers and betting shops, the organizer must have a license. IN currently authority to issue the said license has been transferred State Committee RF according to physical culture and sports*(978).
The circle of people who can be lottery organizers is much wider. These may include the Russian Federation, its constituent entities, municipalities and Russian legal entities. Citizens, including individual entrepreneurs, according to current legislation, they cannot be lottery organizers.
To organize and conduct a lottery, these subjects of civil circulation are required to obtain permission to conduct a lottery in accordance with the procedure established by law. Currently issuing permits for All-Russian lotteries falls within the competence of the Federal Tax Service (clause 1 of the resolution on lotteries). As for issuing permits for organizing and holding regional lotteries, in each subject of the Federation this function assigned to a specific executive body. For example, in St. Petersburg the Committee is vested with the corresponding authority economic development, industrial policy and trade of the Government of St. Petersburg (clause 1 of the St. Petersburg resolution on lotteries).
Participants in games held in casinos, in slot machine halls, in bookmakers' offices and on sweepstakes can only be individuals who have reached the age of 18. Citizens who acquired full legal capacity before reaching the age of majority cannot be participants in these games. Moreover, based on paragraph 3 of Art. 7 of the Gambling Law, the organizer has the right to establish special requirements for participants, including increasing their age barrier.
As with the organizers, the range of lottery participants is wider. From Art. 2 of the Law on Lotteries it follows that any subject of civil law can be a participant in the lottery. This legislative provision should be interpreted restrictively due to the fact that a number of subjects of civil turnover, by their legal nature, cannot be participants in the lottery. These include legal entities with special legal capacity, as well as the Russian Federation, its constituent entities and municipalities with so-called target legal capacity.
Participants in games that do not have an organizer, due to general provisions civil legislation and art. 1062 of the Civil Code can be citizens, as well as legal entities with general legal capacity.
Objects. Based on the currently prevailing pluralistic concept of the object of the legal relationship, the objects of obligations from the conduct of games and bets are material goods, in relation to which interested participants in the turnover enter into the game, and whose movement occurs as a result of the outcome of the game. Both the Civil Code and special laws refer to these objects as winnings. Depending on the type of obligation in question, various material benefits can be considered as winnings.
The objects of obligations arising from games held in casinos, in slot machine halls, in bookmakers' offices and on sweepstakes are funds or other property, including property rights (Article 4 of the Gambling Law). This provision of the Gambling Law, in essence, means that the object of the considered subtype of gaming obligations can be any property, including things, money, securities, cash and other claims, property rights to the results of intellectual activity. The exception, of course, is things that are limited in circulation and withdrawn from circulation.
The objects of obligations from holding a lottery are cash and funds (Article 2 of the Law on Lotteries).
The objects of obligations arising from games that do not have an organizer, within the meaning of Art. 1062 of the Civil Code can be any property in the broadest sense of the word for civil law, with the exception of things limited in circulation and withdrawn from circulation.
First of all, let us turn to the obligations, the subject composition of which is formed by the organizers and participants. The content of this subtype of obligations is characterized by two distinctive features.
Firstly, even before the obligation arises, the organizer bears a number of responsibilities directly related to the content of the obligation itself. So, by virtue of paragraph 3 of Art. 1063 of the Civil Code, a proposal to conclude an agreement, which the organizer of the games addresses to potential participants, must include conditions on the period of the games, the amount of winnings and the procedure for determining it. According to paragraph 4 of Art. 6 of the Law on Gambling, the organizer of games held in casinos, slot machine halls, bookmakers and betting shops is obliged to ensure the personal safety of all persons present in the gambling establishment, including game participants.
Secondly, the contracts underlying the obligations of this subtype are general rule one-sided nature. From the moment of their conclusion - the participant makes a bet or purchases a lottery ticket - the participant does not bear any obligations towards the organizer, but only has the right to demand payment of winnings in the event of a positive result of the game for him. The organizer, on the contrary, is obliged to pay the winnings and has no rights of claim against the participant. It should be taken into account that the content of obligations from games held in casinos, slot machine halls, bookmakers and betting shops can be supplemented by an agreement based on the rules for visiting a gambling establishment, which the organizer has the right to establish independently (clause 3 of article 7 of the Law about gambling).
The main responsibilities of the organizer, arising directly from the contract for the conduct of games, are the obligation to conduct the game on time and the obligation to transfer the winnings to the winning participant in the agreed form and amount. If the exact amount of the winnings is not known in advance, after the result of the game occurs, the organizer is obliged to determine it in the manner established by the agreement on the game.
If the contract does not provide for a deadline for paying out the winnings, the organizer is obliged to transfer the winnings to the winning participant within 10 days from the date of determining the results of the game or within another period established by law (clause 4 of Article 1063 of the Civil Code). At the moment, no other period is established by law.
The general rules of Art. 316 Civil Code.
The content of the obligations, the subjects of which are exclusively the participants, consists of the obligation of the losing person to transfer the winnings to the winning participant in a pre-agreed form and amount, and the subjective right of the winning participant to receive the winnings corresponding to this obligation. Distinctive feature The considered subtype of obligations from the conduct of games is that the specified right of claim and the corresponding obligation belong equally to all participants in the game until its result occurs. From the moment the result of the game occurs, the obligation to pay the winnings rests with the losing participant, and the winning participant has the right to receive the winnings and does not bear any obligations other than creditor ones.
With regard to the time and place of fulfillment of obligations of this subtype, the general rules of the Civil Code on obligations apply.
§ 3. Protection of rights arising from games and betting
General rule. In legal science, the division of obligations into civil (claim) and natural ones has become widespread. This division is carried out depending on whether the rights of claim that constitute the content of obligations are subject to judicial protection. Obligations, the rights of claim for which are not subject to judicial protection, are called natural. The specificity of natural obligations is that their fulfillment depends entirely on the will of the debtor. The creditor has no right to demand in court that the debtor fulfills the obligation or to apply any sanctions to him for non-fulfillment. This is the fundamental difference between natural obligations and legal obligations, failure to fulfill which voluntarily can lead to the debtor being forced to perform in kind and the application of sanctions against him. Common to the types of obligations under consideration are the consequences of their voluntary fulfillment: from the moment the obligation is fulfilled, the debtor has no right to demand back what was fulfilled as acquired unjustifiably.
In accordance with paragraph 1 of Art. 1062 of the Civil Code, the claims of citizens and legal entities related to the organization of games and bets or participation in them are not subject to judicial protection, with the exception of the claims of persons who took part in games or bets under the influence of deception, violence, threats or malicious agreement of their representative with the organizer of the games and bets, as well as the requirements specified in clause 5 of Art. 1063 Civil Code. It follows from this provision that, as a general rule, obligations arising from the holding of games are not subject to judicial protection and are natural.
From point of view legal technology norm clause 1 art. 1062 of the Civil Code is not without its shortcomings. A number of formulations of this norm do not fully correspond to its content.
Firstly, this applies to the circle of persons who, by virtue of paragraph 1 of Art. 1062 of the Civil Code are deprived of the opportunity to protect their rights in court. As already noted, the range of subjects of obligations from holding games may vary depending on the type of game. For example, the organizer of the lottery may be the Russian Federation, its constituent entities, municipalities and Russian legal entities. In this regard, the indication in paragraph 1 of Art. 1062 of the Civil Code that the claims of citizens and legal entities are not subject to judicial protection should not be taken literally. Contained in paragraph 1 of Art. 1062 of the Civil Code, deprivation of the right to judicial protection applies to all entities that may act as parties to obligations related to the conduct of games and bets.
Secondly, it is incorrect to indicate that claims related to the organization and participation in games and bets are not subject to judicial protection. This formulation unreasonably expands the scope of the norm in question. Its literal interpretation and application can lead to an absurd situation when the right of claim arising from an obligation that by time, place, object or circle of persons turned out to be connected with the obligation to conduct games and bets will not be subject to judicial protection. The real meaning of the rule is that claims that constitute the content of obligations to conduct games or bets are not subject to judicial protection. It's about, mainly about the right of the winning player to receive the winnings.
Thirdly, it is not accurate enough in modern conditions is the wording of paragraph 1 of Art. 1062 of the Civil Code regarding the deprivation of rights to claim exclusively judicial protection. As is known, at present the court is the main, but not the only authority that applies the law. In addition, we must not forget that the fulfillment of a natural obligation depends only on the will of the debtor; accordingly, the creditor does not have the right to seek protection of his rights not only in law enforcement agencies, but also through recourse to extrajudicial law enforcement agencies that do not directly carry out law enforcement functions. In this regard, the norm in question should be understood in such a way that claims arising from the conduct of games and bets are not subject to jurisdictional protection, which, in turn, presupposes the possibility of applying judicial and administrative procedures.
Thus, as a general rule, claims arising from obligations to conduct games and bets are not subject to jurisdictional protection. Participants in the obligations under consideration have the right to resort only to means of self-defense, to the extent possible in the case of protecting the rights arising from the obligations under consideration.
Special rules. The general rule on the release of obligations from the conduct of games and bets from jurisdictional protection, enshrined in paragraph 1 of Art. 1062 of the Civil Code, has a number of exceptions. Special rules allowing for the possibility of forcing a debtor to fulfill an obligation in kind are established in relation to the protection of the rights of a participant:
1) if his participation in the game was the result of deception, violence or threat from the organizer, another participant or third parties;
2) if his participation was the result of a malicious agreement between his representative and the organizer;
3) to receive winnings from the organizer and to compensate for losses caused by improper fulfillment of the obligation by the organizer.
In these cases, the rights of claim that constitute the content of the obligations to conduct games and bets are subject to judicial protection.
In addition, in paragraph 2 of Art. 1062 of the Civil Code, special rules are established in relation to the protection of rights of claim that constitute the content of obligations that are not, in the strict sense, obligations to conduct games and bets, but have similar features to them. This norm was included in the Civil Code only in 2007, and its appearance is the legislator’s reaction to the controversial judicial practice of recent years. * (979) In accordance with paragraph 2 of Art. 1062 of the Civil Code, the general rule on the protection of rights from obligations to conduct games does not apply to rights of claim arising from:
1) so-called settlement forward contracts - rights of claim associated with participation in transactions providing for the obligation of a party or parties to a transaction to pay amounts of money depending on changes in prices for goods, securities, the exchange rate of the relevant currency, the amount interest rates, inflation rate or from values calculated on the basis of a combination of these indicators;
2) transactions made under a suspensive condition - rights of claim associated with participation in transactions that provide for the obligation of a party or parties to a transaction to pay sums of money depending on the occurrence of a circumstance that is provided for by law and regarding which it is unknown whether it will occur or not.
The specified rights of claim belonging to legal entities are subject to judicial protection if at least one of the parties to the transaction:
Is a legal entity that has received a license to carry out banking operations or a license to carry out professional activity on the securities market;
A participant on an exchange is a legal entity that has received a license, on the basis of which it is possible to conclude transactions on the exchange.
Claims from settlement forward contracts and contingent transactions held by individuals, are subject to judicial protection, provided that these transactions are exchange transactions.
In relation to all other rights of claim for obligations arising from the conduct of games and bets, including in relation to rights of claim arising from games that do not have an organizer, a general rule applies that does not allow the debtor to be forced to fulfill an obligation in kind and the application of any sanctions to it for non-compliance.
103. Organization and conduct of games, lotteries and bets.
A game- this is an obligation by virtue of which the organizers promise one of the participants to receive a certain win, depending, on the one hand, on chance, and on the other, on the dexterity, dexterity, skill and abilities of the participants in the games. In the game, participants have the opportunity to influence its outcome.
Bet is an obligation in which one party asserts and the other denies the existence of a certain circumstance. The circumstance itself occurs independently of them. The parties only note its onset.
The claims of citizens and legal entities related to the organization of games and bets involving participation in them are not subject to judicial protection (Article 1062 Civil Code), with the exception of the claims of persons who took part in games or bets under the influence of deception, violence, threats or malicious agreement of their representative with the organizer of the games or bets.
Claims related to participation in transactions involving the obligation of the parties to pay sums of money depending on changes in prices for goods, securities, inflation, etc., are subject to judicial protection if at least one of the parties to the transaction is a legal entity. the person who received the license and the transaction was concluded on the exchange.
Lotteries, sweepstakes and other risk-based games conducted by the state, municipalities or on their behalf have special regulations.
Lottery- a mass game, during which the lottery organizer conducts a drawing of the lottery prize pool among the lottery participants - owners of lottery tickets. At the same time, winning any lottery ticket does not depend on the will and actions of all subjects of lottery activity, is a matter of chance and cannot be specially arranged by anyone.
Totalisato p - a game in which the participant makes a forecast (bet) on a possible variant of a gaming situation, where the winnings depend on the partial or complete coincidence of the forecast with the resulting consequences, documented by facts.
System (electronic) game- a game in which bets are fixed and participants’ forecasts are carried out using electronic devices.
Persons who, in accordance with the conditions of a lottery, sweepstakes or other games, are recognized as winners must be paid by the organizer of the games the winnings in the amount, form (cash or in kind) and period stipulated by the conditions of the games, and if the period is not specified in these conditions, not later than ten days from the moment the results of the games are determined. If these conditions are not fulfilled by the game organizer, the participant has the right to demand from the game organizer payment of winnings, as well as compensation for losses caused by violation of the contract by the organizer (clauses 4 and 5 of Article 1063 of the Civil Code).
Requirements related to the organization of games and bets and participation in them
1. The claims of citizens and legal entities related to the organization of games and bets or participation in them are not subject to judicial protection, with the exception of the claims of persons who took part in games or bets under the influence of deception, violence, threats or malicious agreement of their representative with the organizer games or bets, as well as the requirements specified in paragraph 5 of Article 1063 of this Code.
2. For claims related to participation in transactions that provide for the obligation of a party or parties to a transaction to pay amounts of money depending on changes in prices for goods, securities, the exchange rate of the relevant currency, interest rates, the level of inflation or on values calculated on the basis of a combination of these indicators, or from the occurrence of another circumstance that is provided for by law and regarding which it is unknown whether it will occur or not, the rules of this chapter do not apply. These requirements are subject to judicial protection if at least one of the parties to the transaction is a legal entity that has received a license to carry out banking operations or a license to carry out professional activities in the securities market, or at least one of the parties to a transaction concluded on the stock exchange is a legal entity has received a license on the basis of which it is possible to conclude transactions on the stock exchange.
Claims related to the participation of citizens in the transactions specified in this paragraph are subject to judicial protection only if they are concluded on the stock exchange.
Article 1063. Conducting lotteries, sweepstakes and other games by the state and municipalities or with their permission
1. Relations between the organizers of lotteries, sweepstakes (mutual betting) and other risk-based games - the Russian Federation, constituent entities of the Russian Federation, municipalities, persons, and for lotteries - legal entities who have received the right to conduct such games from an authorized state or municipal body in the manner prescribed by law - and the participants of the games are based on an agreement.
2. In cases provided for by the rules of organizing games, the agreement between the organizer and the participant of the games is formalized by issuing a lottery ticket, receipt or other document, as well as in another way.
3. A proposal to conclude an agreement provided for in paragraph 1 of this article must include conditions on the duration of the games and the procedure for determining the winnings and its amount.
If the organizer of the games refuses to hold them within the established period, the participants of the games have the right to demand from their organizer compensation for real damage incurred due to the cancellation of the games or the postponement of their dates.
4. Persons who, in accordance with the conditions of a lottery, sweepstakes or other games, are recognized as winners must be paid by the organizer of the games the winnings in the amount, form (cash or in kind) and term stipulated by the conditions of the games, and if the period is not specified in these conditions , no later than ten days from the date of determining the results of the games or within another period established by law.
5. If the game organizer fails to fulfill the obligation specified in paragraph 4 of this article, a participant who wins a lottery, sweepstakes or other games has the right to demand payment of winnings from the game organizer, as well as compensation for losses caused by violation of the contract by the organizer.
