An agreement under which one party (the founder of the management) transfers property to trust management for a certain period of time to the other party (the trustee), and the other party undertakes to manage this property in the interests of the founder of the management or the person specified by him (the beneficiary) (Article 1012
Civil Code of the Russian Federation). D.d.u.i. should not be identified with the transfer of property into trust.
Features of D.d.u.i. the following:
a) the founder of trust management can only be the owner of the property; b) the agreement establishes an obligatory relationship between the founder of trust management and the trustee, without transferring ownership rights to him: c) the essential condition of the agreement is the designated period, since the agreement gives rise to ongoing legal relations: d) unlike contracts of commission and commission, the trustee has the right not to make only legal, but also actual actions in the interests of the owner or beneficiary;
E) the trustee acts on his own behalf, but must indicate that he is acting as a trustee - if he does not make such a notification, he will be liable for obligations with his personal property, and not with the property transferred to him for trust management; in written documents after the name designation there must be the note “D.U.”
The testator has the right to appoint an executor of the will ("executor"), whose functions include protecting the inherited property and managing it until it is transferred to the heirs. The immovable and valuable movable property of the ward may be according to D.d.u.i. transferred to a person who is not a guardian or trustee, and in relation to the remaining property the latter retain their powers. The guardianship and trusteeship authority concludes a D.d.u., based on the act of establishing guardianship or trusteeship. In this case, the will of the property owner is replaced by the will of the governing body.
D.d.u.i. took shape in the legislation of the Russian Federation only with the adoption in 1995 of the second part of the Civil Code of the Russian Federation, although the possibility of concluding such agreements was already provided for in the first part (clause 4 of article 209 of the Civil Code of the Russian Federation).
The founder of trust management can be either a citizen or a legal entity. Legal entities that own property under the right of economic management or operational management are deprived of the right to establish trust management. Property management may require transactions of a business nature. In connection with this, if necessary, any subject of civil law, but only an entrepreneur or a commercial organization, cannot become the executor of the will, if it is necessary to manage the inherited property while carrying out entrepreneurial activities. As a beneficiary? Any person can be appointed, both physical and legal, except for the trustee. The beneficiary does not participate. as a party (see Agreement, in favor of a third party).
D.d.u.i. lies in interest? the owner of the property or the beneficiary indicated by the owner. The property is transferred to the trustee on a separate balance sheet. The latter bears civil liability to the founder of the management.
The object of the agreement can be any property (with some exceptions) owned by the founder by right of ownership, including real estate, securities, rights certified by uncertificated securities, exclusive rights protected by both copyright and patent law. However, in relation to movable property, trust management can be established provided that it is isolated and accounted for separately, since upon expiration of the contract it must be returned to the trustee. As a rule, trust management is established for fairly complex and valuable objects, such as an enterprise, residential building, hotel, etc. Objects encumbered with collateral may be transferred to trust management. However, the trustee must be warned that the property transferred to him is encumbered. Otherwise, he has the right to demand in court the termination of the contract and payment of the remuneration due to him for the year.
Can not be an independent object trust management of funds, except for cases provided for by law. Thus, a credit organization, which, on the basis of a license from the Central Bank, has the right to carry out banking operations, can enter into agreements on trust management of funds and other property of individuals and legal entities. Other organizations carry out trust management of funds of individuals and legal entities only if they have a license issued in accordance with the procedure established by the Federal Law. Cash - things defined generic characteristics, and when transmitting them
in trust management, the ownership of them passes to the trustee, and the founder is given the right to demand from the counterparty of the organization the effective management of the corresponding amount of money. When transferring securities into trust management, the management founder does not lose ownership rights to them. The rights of the trustee in relation to securities may be limited by special regulations. Such a limitation occurs, for example, when shares assigned to federal property are transferred to trust management through a competition. According to Decree of the President of the Russian Federation of December 9, 1996 No. 1660 “On the transfer to trust management of federally owned shares of joint stock companies created in the process of privatization,” the trustee does not have the right to dispose of shares (donate, sell, pledge, etc. ), and his vote on the most important issues activities of the JSC must be agreed in writing with the federal executive body authorized by the Government of the Russian Federation. When transferring securities to trust management, their association is allowed, even if they were transferred to the management of different persons.
In D.d.u.i. The following must be indicated: the composition of the property transferred to trust management; the name of the legal entity or the name of the citizen in whose interests the property is managed (the founder of the management or the beneficiary);
the amount and form of remuneration to the manager, if the payment of remuneration is provided for in the contract; the duration of the contract. Trust management is assumed to be free of charge, unless otherwise provided by agreement or law. Remuneration to the trustee, as well as compensation for expenses incurred by him related to management, is paid from the income from the property transferred to management.
The contract cannot be concluded for a period of more than 5 years. however, if after the expiration of the period stipulated by the contract. neither party declares its termination, it is considered extended for the same period and on the same conditions that were originally established. For certain types of property transferred into trust management, the law may establish other deadlines.
D.d.u.i. must be concluded in writing. Failure to comply with this legal requirement does not entail the invalidity of the contract, but in the event of a dispute, it deprives the parties of the right to refer to witness testimony in confirmation of the conclusion of the contract and its terms. Only a real estate trust management agreement is subject to state registration in the same way as a real estate purchase and sale agreement. The transfer of property into trust management is formalized in the same manner as the transfer of ownership of this property.
The transferred property must be individualized and clearly distinguished from other property of the management founder and the property of the trustee. During the period of validity of the contract, the specified property cannot be the object of collection of debts of the founder of the management, with the exception of two cases: declaring him bankrupt. when this property is included in the bankruptcy estate; transfer of pledged property to management.
In relations between the parties D.d.u.i. increased liability of the manager is provided for the fact that as a result of the lack of due care for the interests of the founder of the management or the beneficiary, they suffered losses. The beneficiary is compensated for lost profits, the founder of the management is compensated for losses caused by loss or damage to property, taking into account its natural wear and tear, as well as lost profits. For these purposes, the agreement may provide for the provision of a security by the manager to the founder of the management.
D.d.u.i. must clearly define the limits of the trustee's powers. The consequences of going beyond the powers defined by the contract are borne by the manager. If losses occur, he is obliged to cover them from his property. At the same time, the law provides the trustee with rights that ensure the protection of the property transferred to him. During the period of validity of the contract, he is endowed with the rights of the title owner and can demand the elimination of any violation of his rights on an equal basis with the owner of the property.
The trustee does not have the right, at his own discretion, to transfer management of the property to another person. However, he can entrust an attorney to perform the actions necessary to manage the property. The trustee gives such an instruction in cases provided for by the D.u.i., either with the written permission of the founder of the management, or when he is forced to do so due to circumstances to ensure the interests of the founder of the management or beneficiary and is not able to receive instructions from the founder management within a reasonable time. The attorney does not replace him in the trust management agreement, and the manager is responsible for the actions of the attorney as if he were his own.
The essential responsibility of the trustee is to submit reports on his activities to the founder of the management and the beneficiary. The timing and procedure for submitting reports must be defined in the contract. Payment of remuneration and reimbursement of necessary expenses to the trustee may be made dependent on the timing of the submission and consideration of reports.
Not everyone individual entrepreneur there is an opportunity, in addition to the activities that he conducts in accordance with the certificate of state registration, to also competently manage his property. After all, as a rule, ownership of certain types of property provides its owner with more than just income. There are a lot of hassles associated with maintaining and using property.
That is why in Lately More and more entrepreneurs prefer to put their existing real estate and securities into trust management. As a result, they only receive profit from the use of their property - however, minus the costs of its maintenance and the remuneration of the trustee.
An individual entrepreneur himself can also act as a trustee, except for cases specifically provided for by law.
Fiduciary management relationships (or trust relationships) are relatively new to Russian legislation and business practices. However, they are gaining increasing popularity among entrepreneurs. The author’s task is to help you understand the features of these operations.
Legal basis of trust management
Trust management of property is the process of managing property transferred by the founder of management to a trustee for a certain period. Relations between participants in the process are regulated by the Civil Code of the Russian Federation.
The owner can transfer his property into trust management to another person (trustee). In this case, the trustee does not receive ownership rights to the transferred property (clause 4 of Article 209 of the Civil Code of the Russian Federation).
Thus, the powers of the owner are transferred to the manager only within the limits established by the contract and the law, allowing the latter to carry out not only legal, but also actual actions in the interests of the beneficiary.
If the trustee enters into a transaction orally, then he must warn the counterparty about his status, that is, that he acts as a trustee (clause 3 of Article 1012 of the Civil Code of the Russian Federation). If the transaction is made in writing, then in the documents after the name or title of the trustee the mark “D.U.” must be made.
If this condition is not met, it is considered that the manager has made a transaction for personal purposes, and not in the interests of managing someone else’s property, and he will be liable for it to the counterparty with his personal funds, and not with the property transferred to him for management (clause 3 of Article 1012 of the Civil Code RF).
In practice, the question often arises about which documents bear the mark “D.U.” must be entered. For example, only when signing contracts, additional agreements, letters, or in all cases where a person acts as a trustee?
So, often the mark “D.U.” is indicated in payment orders for the payment of any amounts. A number of organizations and entrepreneurs acting as managers put the mark “D.U.” even in orders to pay rent. This is not entirely true. Payment documents must contain a number of details (clause 2.10 of the Regulations of the Central Bank of the Russian Federation dated October 3, 2002 No. 2-P “On non-cash payments in the Russian Federation”). In particular, the name of the recipient of the funds, his account number and taxpayer identification number (TIN). Meanwhile, the mark “D.U.” is not part of the name of the organization or individual entrepreneur. This means that the payment order should not indicate “D.U.” In the “Purpose of payment” column of the payment order, in the author’s opinion, a reference should be made to the document in accordance with which the payment is made.
Thus, the use of the mark “D.U.” should not conflict with regulations establishing the procedure for processing documents in a particular area.
It is not uncommon that certain agreements have already been concluded in relation to the transferred property. A typical example is real estate lease agreements. The transfer of real estate into trust management does not in any way affect the tenants, since the transfer of property into trust management is not grounds for termination of the lease agreement. Exactly the same as the transfer of ownership (Article 617 of the Civil Code of the Russian Federation). Their agreements with the property owner remain valid. However, the owner and trustee are interested in bringing to the attention of tenants the fact of concluding a property management agreement. This is necessary to ensure that the tenants fulfill their obligations under the lease agreement to the manager. They must also turn to him to exercise their rights under the contract. This can be done by concluding an additional agreement on the change of persons in the obligation to the lease agreement. It is necessary to take into account that lease agreements for a building or structure concluded for a period of more than one year are subject to state registration (Article 651 of the Civil Code of the Russian Federation). Accordingly, it is necessary to register all additional agreements to such contracts.
As for the lease agreements that the trustee will enter into during the term of the trust, no questions arise here. The normal rules will apply to them.
Subjects of trust management
Participants in trust relations can be:
- founder of the management;
- beneficiary;
- trustee.
The decision to establish trust management is made by the owner of the property. It is he who concludes the contract and establishes management. If the agreement was not concluded by the owner of the property, then it is void and does not entail legal consequences (resolution of the Federal Antimonopoly Service of the Volga Region in resolution dated March 9, 2004 No. A72-2890/03-G199). The founder of the management can be any individual, including an individual entrepreneur. And with regard to legal entities, legislators have established a number of restrictions. Property cannot be transferred into trust management either to a unitary enterprise or government agency, nor to the local government.
In many cases, trust relations involve a beneficiary (beneficiary), who does not become a party to the agreement. At the same time, this person has the right to demand from the manager execution in his favor and to defend this right in court if the trustee evades his duties (Article 430 of the Civil Code of the Russian Federation). Early modification or termination of the contract may also require his consent.
The beneficiary can be any individual or legal entity, including the founder, if he has established management in his favor.
Trustees can be a commercial organization or an individual entrepreneur, with the exception of cases of professional management of securities (Article 5 of the Federal Law of the Russian Federation “On the Securities Market”). If trust management is carried out on the grounds provided for by law, the manager may be a citizen who is not an entrepreneur, or non-profit organization, for example, a foundation other than an institution. An example of such management is the management of the property of a ward (Article 38 of the Civil Code of the Russian Federation) or the management of inherited property (Article 1173 of the Civil Code of the Russian Federation).
The manager can be neither a founder nor a beneficiary. At the same time, he can occupy for his work one of the offices of the building transferred to management. How to format this correctly? The simplest way is to exclude from the property transferred to the trust the premises that the manager intends to use as an office. Instead, they should be leased to him under a separate agreement. For example, a building can be transferred to trust management with the exception of rooms No. 1-15 on its first floor.
In addition, the trustee has the right to remuneration provided for in the agreement (Article 1023 of the Civil Code). The founder is also obliged to reimburse the manager for reasonable expenses incurred during the trust management of property (this rule also applies in the case of gratuitous property management). This should be done at the expense of income from the use of this property. The law does not determine how remuneration should be calculated, however, the arbitration court in a decision on a specific case indicated that it is unlawful to establish remuneration in a fixed amount that does not depend on the results of management (Resolution of the Federal Antimonopoly Service of the Volga-Vyatka District dated August 9, 2005 No. A17-324 /1). In this regard, it seems to the author that it is most appropriate to set the management fee as a percentage of the income received.
Objects of trust management
Objects of trust management are organizations, property complexes, individual objects related to real estate, securities, rights certified by uncertificated securities, exclusive rights and other property. Other property should be understood as movable things and rights of claim or use.
It would seem that any movable property can be transferred to trust management. However, legislators prohibited “managing” money as an independent object, except in cases provided for by law. Such exceptional cases can be considered the management of funds by credit institutions on the basis of the Law of December 2, 1990 No. 395-1 “On Banks and Banking Activities”. It should be borne in mind that the legislation allows a credit institution to manage funds denominated in both national and foreign currencies.
By general rule, the right to trust management belongs to a credit organization (for example, a bank) that has a license to carry out relevant banking operations. And only in some exceptional cases, trust management of funds can be carried out by a non-credit organization that has received a license to conduct the specified activity in the prescribed manner.
When trusting funds for the purpose of investing in securities, the trustee must maintain the asset structure agreed upon by the parties throughout the duration of the agreement. That is, to maintain the ratio between securities and funds of a given founder, as well as the ratio between different types of securities. Such information is reflected in the investment declaration.
The investment declaration is a mandatory part of the trust management agreement for funds and contains information about the directions and methods of investing these funds. The declaration also indicates information about the purpose and term of management (clause 7.3. Regulations on trust management of securities and funds for investing in securities, approved by Resolution of the Federal Commission for the Securities Market of October 17, 1997 No. 37).
By the way, funds can be transferred to management in another way: as part of other property, in particular, a property complex.
Only individually defined property can be in trust management. This means that each object must have characteristics unique to it. Accordingly, upon termination of the contract, it is the previously transferred property that is returned, and not its analogues. In this case, the terms of the agreement may stipulate that property that is still subject to acquisition or even creation, that is, property that does not yet exist at the time of conclusion of the agreement, will be transferred to management. The most common object of management is corporate securities - shares, especially voting ones, that is, including the powers to manage the affairs of the company that issued them - the issuer. The second most common object of management is real estate.
Trust management of issue-grade securities has some features that are determined by federal legislation (Part 3 of Article 1025 of the Civil Code of the Russian Federation, Law of April 22, 1996 “On the Securities Market” No. 39-FZ) and the regulations on trust management of securities and funds investing in securities, approved by Resolution of the Federal Commission for the Securities Market dated October 17, 1997 No. 37.
Only an appropriately licensed professional participant in the securities market can act as a manager under a trust management agreement for shares and bonds (Article 5, 39 of the Law of April 22, 1996 No. 39-FZ).
The trustee of shares and bonds exercises all the powers of their founder (owner), secured by the corresponding security. This means that he is not limited to just playing on stock prices, he can use all the rights of a shareholder, including the right to vote on general meeting. If trust management is associated solely with participation in the management of the company, a license for a professional participant in the securities market is not required (Article 5 of the Law “On the Securities Market”).
A trust management agreement cannot contain provisions on the transfer to management of only one or several powers of the owner of a security (for example, only the right to receive a dividend or only the right to vote at a general meeting of shareholders of the company). At the same time, the possibility of alienation of shares and bonds transferred for management may be limited or excluded by agreement.
In the interests of the founder (or beneficiary), rules have been established that the manager does not have the right to alienate the securities transferred to him for management into his own property or into the property of his founders. And also he cannot enter into transactions with them in which he simultaneously represents the interests of another person as his attorney, commission agent or agent. The manager is deprived of the right to exchange these securities for his own securities or the securities of his founders or clients (principals, principals, principals). In addition, he cannot alienate shares and bonds transferred to his management under compensated agreements that provide for deferred or installment payment for more than 30 days, nor transfer them for storage, indicating a third party as a recipient or manager. Finally, the manager cannot pledge the securities transferred to him for management to secure personal obligations, the obligations of his founders or other persons (clause 8.1 of FCSM Regulation No. 37).
If a trustee in the same transaction simultaneously represents the interests of two parties with whom he has concluded trust management agreements, then he is obliged to obtain the prior consent of the counterparties to carry out such a transaction. The securities that the manager acquired during the execution of the agreement also become the object of his trust management on the terms provided for in the original agreement with the founder.
Property trust management agreement
The property trust management agreement is concluded in writing (Clause 1, Article 1017 of the Civil Code of the Russian Federation).
The transfer of real estate into trust management requires state registration in the same manner as the transfer of ownership of this property (clause 2 of article 1017 of the Civil Code of the Russian Federation, article 4 of the law of July 21, 1997 No. 122-FZ “On state registration rights to real estate and transactions with it"). It should be borne in mind that for third parties - tenants or organizations providing public utilities, - the agreement will come into force only from the date of such registration (clause 2 of Article 551 of the Civil Code of the Russian Federation). This situation must be taken into account. Until this date, all rights and obligations to third parties are borne by the owner himself, and not by the trustee.
Failure to comply with the requirements for registering the transfer of property entails the invalidity of the management agreement itself.
Is it necessary to register changes in the agreement regarding trust management? real estate? The real estate trust management agreement itself does not require state registration. Accordingly, if changes and additions to the agreement do not directly concern real estate, but only the procedure for managing it, then they also do not require registration.
A situation may arise when other regulations establish additional requirements for the transfer of certain types of property into trust management. Thus, when transferring securities and funds for investing in securities into trust management, an investment declaration is required, which is an integral part of the agreement (clause 7.2 of FCSM Regulation No. 37).
The parties must indicate in the property trust management agreement (Article 1016 of the Civil Code of the Russian Federation):
- composition of property transferred to trust management;
- the name of the legal entity or the name of the citizen in whose interests the property is managed (the founder of the management or the beneficiary);
- the amount and form of remuneration to the manager, if the payment of remuneration is provided for in the contract;
- contract time.
The composition of the property transferred to trust management must be clearly and in detail described. Failure to agree on this condition, as well as the conditions on the term and form of remuneration, will entail the recognition of such an agreement as not concluded. In this case, the founder may accuse the manager of unjust enrichment. But this is difficult to prove, so it is worth agreeing on a condition on the exact list of property being transferred, including the amount of money.
The term of management cannot exceed five years. Lawmakers have limited it to protect the owner. However, without a special statement from the parties, the agreement upon expiration of its validity period will be in force under the same conditions. By the way, a management agreement cannot be concluded to perform any one-time action, since “the nature of trust management presupposes the ongoing nature of the relationship” (Resolution of the Federal Antimonopoly Service of the Moscow District dated January 30, 2001 No. KG-A41/112-01).
Property transferred to trust management is separated from other property of the management founder, as well as from the property of the manager (Article 1018 of the Civil Code of the Russian Federation). These objects are reflected by the trustee on a separate balance sheet, for which he maintains independent accounting.
If a manager receives securities for trust management from different founders, then they can combine their stakes of shares for transfer to him (Article 1025 of the Civil Code of the Russian Federation).
Property encumbered with a pledge can be transferred to trust management, since the pledgor remains its owner and retains the ability to dispose of it. In addition, additional income from the profitable use of the property will help the owner fulfill his obligations to the mortgagee. Legislators have established that the manager must be warned about the pledge. Otherwise, he has the right to demand in court the termination of the contract and payment of remuneration for one year (clause 2 of Article 1019 of the Civil Code of the Russian Federation).
Rights and obligations of the parties under the property trust management agreement
In accordance with the agreement, the manager receives complete freedom in managing the property. If the founder wants to control the actions of the manager, then he must stipulate in detail the following points in the agreement:
- manager's reporting;
- the need to coordinate the conclusion of individual transactions with the transferred property.
That is, the founder of the management can limit the manager. For example, prohibit him from selling property without his consent.
If such restrictions are not established, then the transactions cannot be challenged in the future (resolution of the Federal Antimonopoly Service of the Far Eastern District dated September 15, 2003 in case No. F03-A51/03-1/2252).
Property transferred to management must be separated. In this case, foreclosure on the debts of the founder is not allowed, with the exception of cases of bankruptcy (clause 2 of Article 1018 of the Civil Code of the Russian Federation). If the court finds the founder insolvent, then the trust management is terminated and the property goes into the bankruptcy estate.
But it would be a mistake to believe that separate property is absolutely inviolable. If during the validity of the trust management agreement debts have arisen regarding obligations in connection with the management of property, then they are repaid at the expense of it. If it is insufficient, the property of the manager himself is sold to offset the debts. If the founder’s property transferred under the trust management agreement and the manager’s property are not enough to pay off the debts, then foreclosure may be applied to the rest of the founder’s property. This means that an entrepreneur should be very careful in choosing a manager, because the profit and loss from management depends on his actions.
The manager is liable with his own property even if he did not notify the counterparty about the conclusion of the transaction as a manager, or carried out the transaction in excess of the powers granted to him or in violation of the restrictions established for him. In the same case, he compensates for any losses incurred by the founder.
The manager is obliged to take care of the interests of the founder and beneficiary. Otherwise, he compensates them for lost profits, and the founder also for losses caused by loss or damage to property.
Being a professional entrepreneur, the manager is responsible for both faulty and accidental losses. But he can escape liability if he proves that the losses arose as a result of force majeure circumstances (force majeure) or the founder. Force majeure is extraordinary and unavoidable circumstances under given conditions (clause 3 of Article 401 of the Civil Code). For example, the manager is responsible for losses caused to property as a result of a fire due to the fault of third parties, but if the property was destroyed as a result of a natural disaster, the manager is not responsible.
The founder may include in the contract a requirement that the manager must provide him with a deposit to ensure compensation for possible losses (Clause 4 of Article 1022 of the Civil Code of the Russian Federation).
It should be noted that the trustee often tries in the contract to leave only his responsibility for guilty behavior, excluding accidental damage or damage caused by third parties. This is unacceptable, since the norm of paragraph 1 of Article 1022 of the Civil Code of the Russian Federation is imperative, that is, it is not subject to change by agreement of the parties. Such a condition should alert the founder, as it indicates the manager’s lack of confidence in his competence.
A very controversial condition, often found in securities trust management agreements, releases the manager from liability due to the fact that the issuer has not fulfilled its obligations. After all, only force majeure relieves a manager from responsibility. Such force majeure circumstances do not include, for example, violations of obligations on the part of the debtor's counterparties, the lack of goods on the market necessary for performance, or the debtor's lack of necessary funds.
It is recommended to exclude these items, since illegal actions by the issuer are a fairly common occurrence. Consequently, the manager, by abdicating responsibility, significantly worsens the position of the founder compared to the legal one.
Termination of relations under a trust management agreement
The founder of the management may unilaterally repudiate the agreement if he pays the manager the remuneration stipulated by the agreement.
In addition, the bankruptcy of the founder terminates this agreement, since the property transferred for management must go to the bankruptcy estate. The death of the founder (while retaining the beneficiary) may not entail the termination of the agreement, because his rights and obligations in this case will pass to the heirs. However, the death of the beneficiary or the liquidation of the beneficiary organization terminates the contract.
Recognition of the beneficiary citizen as incompetent, partially capable or missing, as well as the reorganization of the beneficiary company does not entail termination of the contract. Moreover, the agreement of the parties may provide for its preservation in the event of the death of the beneficiary (for the latter’s heirs).
As a general rule, a trust management agreement is terminated due to the unilateral refusal of the beneficiary to receive benefits, since the beneficiary independently disposes of the right received under the agreement concluded in his favor. However, the agreement may provide for other consequences in this case in the form of transfer of the rights of the beneficiary to the founder (clause 4 of article 430, clause 1 of article 1024 of the Civil Code of the Russian Federation).
Upon termination of the contract, the manager must return to the founder the property transferred for management (clause 3 of Article 1024 of the Civil Code of the Russian Federation). However, the agreement may also provide for another consequence, for example, the transfer of property to the beneficiary or its acquisition by the manager (under a purchase and sale agreement).
Taxation
VAT
If the trustee-entrepreneur is a VAT payer, then he acts in accordance with the general rules of the Tax Code: he calculates the tax and also pays it to the budget. “Input” VAT presented to him by suppliers is accepted for deduction in the usual manner. The regulations do not provide any special requirements for this situation. At the same time, in tax registers, documents and reports, after the name of the manager, a note “D.U.” is made.
Due to the fact that all the duties of the taxpayer are performed by the manager, the founder (beneficiary) does not pay VAT on income. According to the author, the transfer of property for management is not subject to VAT, since there is no sale (Article 146 of the Tax Code of the Russian Federation).
Transport tax, land tax, property tax for individuals
The transport transferred into trust management is the property of the founder. Accordingly, it is in his name that vehicles are registered (clause 12 of the Rules for Registration of Motor Vehicles, approved by Order of the Ministry of Internal Affairs of Russia dated January 27, 2003 No. 59). This means that the owner must calculate and pay taxes to the budget. Neither the trustee nor the beneficiary has obligations to the budget.
The issue of land tax and property tax was resolved in a similar manner. individuals. In accordance with Art. 388 of the Tax Code of the Russian Federation and Art. 1 of the Law of December 9, 1991 No. 2003-1 “On taxes on property of individuals”, these taxes must be paid by the owner.
Personal income tax
The income of an individual entrepreneur as a management founder (beneficiary) is taxed as follows.
Income from the use of property is subject to personal income tax (subclause 4, clause 1, article 208 of the Tax Code of the Russian Federation). The agreement should clearly indicate that the income of the founder (beneficiary) is the income received from the use of the property minus the manager’s remuneration. It is on this difference that tax should be paid.
Special rules for determining the tax base are established for income from transactions of purchase and sale of securities (Article 214.1 of the Tax Code of the Russian Federation). In particular, it directly states that the income of the founder (beneficiary) is reduced by the loss from the sale of securities, as well as by the manager’s remuneration (clauses 4-7 of Article 214.1 of the Tax Code of the Russian Federation).
At the same time, a feature of paying personal income tax on such transactions is that for each type of securities the tax base is determined separately (paragraph 4, paragraph 7, article 214.1 of the Tax Code of the Russian Federation). For example, if income is received from the sale of shares, and a loss is received from the sale of bonds, then this loss cannot reduce the income generated from the sale of shares. In this case, no object of taxation arises in relation to bonds, but the tax on transactions with shares is paid in full.
Upon termination of the trust management agreement, the property can either be returned to the founder or transferred to another person. In the case of such a return, the founder does not generate income (loss), regardless of the occurrence of a positive (negative) difference between the value of the property at the time of entry into force and at the time of termination of the trust management agreement. In this case, he does not pay personal income tax.
The trustee acts as a tax agent, that is, he calculates, withholds and pays personal income tax to the budget for the founder of the management or the beneficiary (Article 226 of the Tax Code of the Russian Federation). In this case, a tax rate of 13 percent applies. If the manager did not withhold tax, the recipient of the income must independently declare and pay it (clause 4 of Article 228 of the Tax Code of the Russian Federation).
As for the entrepreneur-manager, he pays personal income tax on his income in the form of remuneration under the contract in the generally established manner.
Like any entrepreneur, he can claim a professional tax deduction in the amount of actually confirmed expenses associated with management, or 20 percent of the amount of income (clause 1 of Article 221 of the Tax Code of the Russian Federation).
Article 1012. Property trust management agreement
1. Under a property trust management agreement, one party (the management founder) transfers property into trust management for a certain period of time to the other party (the trustee), and the other party undertakes to manage this property in the interests of the management founder or the person specified by him (the beneficiary).
The transfer of property into trust management does not entail the transfer of ownership of it to the trustee.
2. Carrying out trust management of property, the trustee has the right to perform any legal and actual actions in relation to this property in accordance with the trust management agreement in the interests of the beneficiary.
The law or agreement may provide for restrictions on certain actions related to trust management of property.
3. The trustee makes transactions with property transferred into trust management on his own behalf, indicating that he acts as such a manager. This condition is considered met if, when performing actions that do not require written form, the other party is informed of their commission by the trustee in this capacity, and in written documents after the name or designation of the trustee the note “D.U.” is made.
In the absence of an indication of the trustee's action in this capacity, the trustee is obligated to third parties personally and is liable to them only with the property belonging to him.
1. Analysis of the text of the article, as well as specific types transfer of property into trust management allows us to highlight a number of distinctive features of the agreement:
a) this is a special agreement for the management of the owner’s property in the interests of the owner himself or another person named by him - the beneficiary. Although trust management under the Civil Code does not achieve such high degree trust, as in the Anglo-American system of law, nevertheless, the importance of the identity of the parties to the contract, as well as the identity of the third party - the beneficiary, is quite large for it. This is especially noticeable when analyzing the grounds for termination of the contract (see Article 1024 and commentary thereto).
Trust management under this agreement must be distinguished from the “internal” management of a company, partnership, unitary enterprise by their director, as well as other statutory bodies. The director (board of a company, etc.), although he has the right to dispose (to one degree or another) of the property of such organizations, but acts on his behalf, never accepts the property he disposes of on his own separate balance sheet, and even if bears civil liability to the company (partnership, enterprise), then only in cases provided for by law or agreement (clause 3 of article 53 of the Civil Code).
The absence of direct management of the property of a subsidiary or dependent company, which is a mandatory feature of trust management, allows us to distinguish the latter from “external” management, in particular, of a holding company
(Article 105–106 of the Civil Code, Article 6 of the Law on joint stock companies; Appendix No. 1 to Decree of the President of the Russian Federation of November 16, 1992 No. 1392 “On measures to implement industrial policy during the privatization of state-owned enterprises” - SA RF, 1992, No. 21, art. 1731);
b) the transfer of property into trust management is a form of exercise by the owner of his powers granted to him in paragraph 4 of Art. 209 Civil Code. It is the owner who determines the purpose of establishing trust management, the scope of transferred powers, as well as the person in whose interests the trustee must act. As such, the owner can name himself, as well as, with certain exceptions, any other person. In the latter case, the property trust management agreement becomes a type of agreement in favor of a third party (see Article 430 of the Civil Code).
IN in some cases, directly provided for by law (see, for example, Articles 38, 43 of the Civil Code), the founder of trust management has the right not to be the owner himself, but another person (guardianship and trusteeship authority, executor, etc.). However, even in this case, these persons act exclusively in the interests of the owner, exercising one of the powers granted to him to dispose of property (for more information about the founder of the management, see Article 1014 and the commentary thereto);
c) this agreement gives rise to an obligatory relationship between the management founder and the trustee. It does not entail the transfer of ownership to the latter;
d) the contract is of a “continuing” nature, i.e. is concluded for a certain period and for the performance of a whole series, and not just one specific action (for more details, see paragraph 2 of Article 1016 and the commentary thereto);
e) the contract is property (for more information about the object of the contract, see Article 1013 and the commentary thereto);
f) the trustee has the right to perform not only legal, but also any actual actions in the interests of the owner or beneficiary. The law or agreement may provide for restrictions on certain trust management actions.
This ability to perform not only legal, but also actual actions - the trust management agreement differs significantly from the agency agreement, according to which the attorney has the right to perform only legal actions in the interests of the guarantor. At the same time, these agreements are similar in that both the attorney and the manager act not in their own interests, but in the interests of other persons. Therefore, in a number of cases, the law invites the owner to choose which of the agreements best suits his goals (see, for example, Article 41 of the Civil Code);
g) under a property management agreement, the trustee must act on his own behalf, making sure to indicate that he is the manager. In cases that do not require written documentation, he does this orally, and when signing written documents, including transactions, he puts the mark “D.U.” after his name or title.
2. A property trust management agreement is, as a general rule, compensated.
Article 1013. Object of trust management
1. Objects of trust management may be enterprises and other property complexes, individual objects related to real estate, securities, rights certified by uncertificated securities, exclusive rights and other property.
2. Money cannot be an independent object of trust management, except for cases provided for by law.
3. Property under economic management or operational management cannot be transferred to trust management. Transfer to trust management of property that was under economic management or operational management is possible only after the liquidation of the legal entity in whose economic management or operational management the property was, or termination of the right to economic management or operational management of the property and its receipt by the owner as otherwise provided by law reasons.
1. Most objects can serve as objects of trust management civil rights listed in Art. 128 Civil Code. This is, first of all, different kinds property (enterprises, other property complexes, real estate, securities, etc.), property rights (for example, lease rights), as well as exclusive rights (copyrights to works of science, literature, art, rights to a company name, etc. .P.). Intangible benefits (Chapter 8 of the Civil Code), on the contrary, cannot be considered the object of this agreement.
The transfer of exclusive rights (intellectual property) into trust management should be distinguished from their transfer under a commercial concession agreement
(Chapter 54 of the Civil Code). In the latter case, exclusive rights are transferred to the user for his own business activities.
2. The law, with the exception of paragraph 2 of the commented article, does not contain a direct prohibition on the transfer to trust management of things determined by generic characteristics. However, the very structure of the agreement, the nature of the relationships developing between the participants, as well as the approximate list of objects of the agreement given in the article itself, leave no doubt that, as a rule, individually defined property should be transferred to trust management.
In a number of cases, the object of the future contract is directly named in the law. Yes, according to
Art. 38 of the Civil Code, only real estate and valuable movable property of the ward can be transferred to trust management.
3. As a general rule, transfer of funds to trust management is not allowed. Exceptions are made in cases provided for by law. So, in accordance with Art. 5 of the Banking Law, a credit organization, i.e. a legal entity that, on the basis of a special permit (license) of the Bank of Russia, has the right to carry out banking operations, among others, has the right to enter into trust management agreements for funds and other property of individuals and legal entities. Trust management of funds of legal entities and citizens by organizations that are not credit institutions can be carried out only on the basis of a license issued in the manner established by federal law (Article 7 of the Law of the Russian Federation of February 3, 1996 “On Amendments and Additions to the Law of the RSFSR “On banks and banking activities in the RSFSR").
4. State, municipal, and private property can be transferred to trust management. However, that state or municipal property that was previously transferred under the proprietary right of economic management or operational management to a unitary enterprise or state or municipal institution must lose its previous legal status before it is transferred to trust management. Strictly speaking, neither a unitary enterprise, nor a state or municipal institution has the right to transfer any property into trust management, since it is presumed that they have it either under the right of economic management or under the right of operational management. Such a function can only be performed by a special body that carries out on behalf of the owner the functions of disposing of state or municipal property (see Article 1014 and commentary thereto).
Article 1014. Founder of the management
The founder of the trust management is the owner of the property, and in the cases provided for in Article 1026 of this Code, another person.
1. It is necessary to add to the text of the article that the founder of trust management can be either a sole owner or owners of property under the right of common or joint ownership. Thus, spouses have the right to transfer into trust management a residential building owned by them by right of joint ownership. In these cases, in addition to Ch. 53 of the Civil Code must also be guided by the rules of Chapter. 16 of the Civil Code on the right of common ownership and Art. 35 of the Family Code of the Russian Federation.
2. In cases provided for by law, the role of the founder of the management, and therefore the party to the agreement, has the right to be not the owner himself, but another person - the guardianship and trusteeship body (Articles 38, 42, 43 of the Civil Code), the executor of the will (executor) ( Art. 1026 of the Civil Code), etc. However, in this case, the founder of the management acts in the interests of the owner himself, implementing one of the clauses 4 of Art. 209 Civil Code of powers.
3. A situation similar in content arises when state or municipal property is transferred to trust management. In this case, only a body authorized by the owner to manage his property has the right to be the founder of management on behalf of the owner of the property (the Russian Federation as a whole, a subject of the Russian Federation, a municipal entity). In particular, when transferring into trust management blocks of shares of privatized enterprises owned by the state or municipality, such a body is the corresponding property fund (Articles 6 and 7 of the Law on Privatization, Section 2 of the Agreement between the State Property Committee of the Russian Federation and the Russian Federal Property Fund of October 28, 1992. ) The beneficiary under this agreement can also be named either the fund itself or the corresponding financial body, which has the right on behalf of the owner to accumulate funds belonging to it.
Article 1015. Trustee
1. The trustee may be an individual entrepreneur or a commercial organization, with the exception of unitary enterprise.
In cases where trust management of property is carried out on the grounds provided for by law, the trustee may be a citizen who is not an entrepreneur, or a non-profit organization, with the exception of an institution.
2. Property is not subject to transfer into trust management to a state body or local government body.
3. A trustee cannot be a beneficiary under a property trust management agreement.
1. As a general rule, transferring property into trust management means transferring it into the hands of a professional. Such in economic turnover is an entrepreneur. It is he (an individual entrepreneur - Article 23 of the Civil Code or one of the commercial organizations listed in paragraph 2 of Article 50 of the Civil Code) who has the right to act as a trustee of someone else’s property.
It is possible that the owner or other person interested in receiving the property will establish a special commercial organization, to which the property will be transferred in the future. Depending on the type of property and the nature of the activity of the trustee, the issue of obtaining a special permit (license) to engage in such activity will be decided (see Article 49 of the Civil Code).
2. By virtue of paragraph 1 of Art. 49 of the Civil Code, a unitary enterprise has special legal capacity. The latter does not cover the possibility of engaging in trust management of someone else's property. In addition, the prohibition for a unitary enterprise to act as a trustee will avoid the hidden transfer of state or municipal property into “trust” management by any of the officials of the unitary enterprise.
For the same reasons, there is a ban on transferring property into trust management to a government body (ministry, department, department, inspection, etc.) or local government (elected body, head of a municipality, other elected officials).
3. In certain cases provided for by law, trust management is established primarily not for increasing the owner’s property, but for its preservation or distribution, i.e. for non-commercial purposes. These, in particular, are cases of trust management of the property of a ward (Article 38 of the Civil Code), a missing person (Articles 42 and 43 of the Civil Code), etc. Here, a citizen who is not an entrepreneur and a non-profit organization (for example, fund), except for the establishment.
Article 1016. Essential terms of a property trust management agreement
1. The property trust management agreement must indicate:
composition of property transferred to trust management;
the name of the legal entity or the name of the citizen in whose interests the property is managed (the founder of the management or the beneficiary);
the amount and form of remuneration to the manager, if the payment of remuneration is provided for in the contract;
contract time.
2. A property trust management agreement is concluded for a period not exceeding five years. For certain types of property transferred to trust management, the law may establish other deadlines for which an agreement can be concluded.
In the absence of an application from one of the parties to terminate the contract at the end of its validity period, it is considered extended for the same period and on the same conditions as provided for in the contract.
1. The article directly lists those terms of the contract, without the agreement of which it is considered not concluded. This is the so-called essential terms of the contract directly named in the law. In accordance with Art. 432 of the Civil Code also includes essential conditions, agreement on which must be reached at the request of one of the parties (negotiated conditions). Thus, when concluding a specific agreement on trust management of property, the parties must agree on all the conditions listed in paragraph 1 of the commented article, as well as those that one of the parties insists on under the threat of abandonment of the agreement. Recognition of an agreement as not concluded entails the consequences of invalidity of the transaction (Article 167 of the Civil Code).
2. One of the essential terms of the contract is its term. On the one hand, a property trust management agreement cannot be concluded to perform any one-time action (for example, to cover a transaction for the purchase and sale of a car); on the other hand, the validity period of the agreement, as a rule, should not exceed 5 years. The presence of a sufficiently long term of the contract creates additional guarantees for the trustee to fulfill his duties.
3. The ongoing nature of the trust management relationship is once again emphasized by the possibility of prolonging it under the same conditions. If the parties disagree with the previous terms of the agreement, they have the right to change it or terminate it according to the rules of Chapter. 29 and art. 1024 Civil Code.
Article 1017. Form of property trust management agreement
1. A property trust management agreement must be concluded in writing.
2. The agreement for trust management of real estate must be concluded in the form provided for the agreement for the sale of real estate. The transfer of real estate into trust management is subject to state registration in the same manner as the transfer of ownership of this property.
3. Failure to comply with the form of the property trust management agreement or the requirement to register the transfer of real estate into trust management entails the invalidity of the agreement.
1. Paragraph 1 of the commented article requires that the agreement for trust management of movable property be concluded in writing. The parties have the right not to draw up a single written document; it is sufficient that both the offer (proposal to conclude an agreement) and the acceptance comply with the rules of paragraphs. 2 and 3 tbsp. 434, art. 435, 436 and paragraph 3 of Art. 438 Civil Code.
The contract comes into force at the moment the person who sent the offer receives its acceptance (clause 1 of article 433 of the Civil Code).
2. Paragraph 2 of the commented article imposes special requirements on the form of the real estate trust management agreement. It must comply with the form of the contract for the sale of real estate (Article 550 of the Civil Code), i.e. be written and compiled in the form of a single document. In accordance with Art. 7 of the Introductory Law, pending the entry into force of the federal law on the registration of rights to real estate and transactions with it, for contracts provided for in Art. 550 of the Civil Code, the rules on their mandatory notarization, established by law before the entry into force of part two of the Civil Code (purchase and sale of a residential building, dacha - Article 239 of the Civil Code 1964; in accordance with the Information Letter of the Moscow Property Committee and the Moscow City Notary Chamber dated March 15, remain in force
1994 “On the procedure for registering rights to real estate (buildings, structures, non-residential premises in Moscow)” in Moscow, in order to register ownership of acquired buildings, structures, non-residential premises, it is required that the purchase and sale agreement, exchange, etc. .P. such objects were notarized - Bulletin of the Moscow City Hall, 1994, No. 5, p. 63–64).
3. Another feature of the real estate trust management agreement is that the Civil Code, in addition to giving a special form to the agreement itself, requires state registration of the transfer of real estate for management. Such registration must comply with the procedure for state registration of the transfer of ownership of real estate (Article 551 of the Civil Code). For the current procedure for state registration of the transfer of ownership of real estate, see Art. 551 and comments. To her.
4. Failure to comply with any of the above forms of a property trust management agreement entails its recognition as invalid with the consequences provided for in Art. 167 Civil Code.
5. Failure of the parties to comply with the requirements for state registration of the transfer of real estate into trust management leads to the same consequences. If only one of the parties evades such registration, the other has the right to apply to the culprit those measures that are provided for a similar situation in paragraph 3 of Art. 551 Civil Code.
Article 1018. Segregation of property held in trust
management
1. Property transferred into trust management is separated from other property of the management founder, as well as from the property of the trustee. This property is reflected by the trustee on a separate balance sheet, and independent accounting is maintained for it. A separate bank account is opened for payments for activities related to trust management.
2. Foreclosure of the debts of the founder of the management of the property transferred by him to trust management is not allowed, except for the insolvency (bankruptcy) of this person. If the founder of the management goes bankrupt, the trust management of this property is terminated and it is included in the bankruptcy estate.
1. After concluding a trust management agreement, the property that is its object must be actually transferred to the trustee. Even in cases where the law does not require state registration of the transfer of such property, it is advisable that the parties draw up a transfer and acceptance certificate (transfer deed).
It is this, together with the agreement, that will form the basis for the legal and actual separation of property both from the personal property of the trustee himself and from the property of the owner (founder of the management). The means of such isolation are a separate balance sheet, independent accounting, and a separate bank account.
2. There are three exceptions to the general rule of complete legal separation of property held in trust:
a) if the founder of the management is declared insolvent (bankrupt), collection of debts may be applied to his property transferred to trust management (Article 1018);
b) foreclosure can be applied to the pledged property transferred into trust management (Article 1019 of the Civil Code);
c) if the property transferred to trust management is insufficient to cover losses from the activities of the manager, recovery in a subsidiary manner can be applied first to the property of the trustee, and then to the property of the founder of the management (clause 3 of Article 1022 of the Civil Code).
Article 1019. Transfer of property into trust management,
encumbered with collateral
1. The transfer of pledged property into trust management does not deprive the pledgee of the right to foreclose on this property.
2. The trustee must be warned that the property transferred to him for trust management is encumbered with a pledge. If the trustee did not know and should not have known about the encumbrance of the property transferred to him for trust management, he has the right to demand in court the termination of the property trust management agreement and payment of the remuneration due to him under the agreement for one year.
1. P. 1 comment. Art. emphasizes the proprietary nature of the right of pledge. Having the right to follow (see Articles 216, 353 of the Civil Code), the pledgee retains his right to the thing even when it passes to a new owner or possessor. In this case, the property passes to the new owner, since the one who established the trust remains its owner and mortgagor. The grounds and procedure for foreclosure on pledged property, including those transferred to trust management, are provided for in Art. 348–351 Civil Code.
2. Since the trustee accepts property for a long term, he must have certain guarantees of the stability of his management (ownership). One of such guarantees is the obligation of the management founder (owner) to notify him that the property is encumbered with a pledge. In the event of a possible dispute, the burden of proving that the manager knew about the pledge of property rests with the founder of the management (owner).
The trustee, on the contrary, is obliged to prove that he did not know and, due to the situation, professional skills, and other circumstances, should not have known about the pledge.
3. The grounds for terminating the contract provided for in this article are covered
subp. 2 p. 2 art. 450 GK. If the manager is not at fault, he has the right to demand payment of the remuneration due to him for 1 year. The real losses should be assigned to the founder of the management (owner of the property).
Article 1020. Rights and obligations of the trustee
1. The trustee exercises, within the limits provided for by law and the property trust management agreement, the powers of the owner in relation to the property transferred to trust management. The trustee shall dispose of real estate in cases stipulated by the trust management agreement.
2. The rights acquired by the trustee as a result of actions for trust management of property are included in the composition of the property transferred to trust management. The obligations arising as a result of such actions of the trustee are fulfilled at the expense of this property.
3. To protect the rights to property under trust management, the trustee has the right to demand the elimination of any violation of his rights (Articles 301, 302, 304, 305).
4. The trustee shall submit to the founder of the management and the beneficiary a report on his activities within the time frame and in the manner established by the agreement on trust management of property.
1. In accordance with paragraph 4 of Art. 209 and paragraph 1 of Art. 1012 of the Civil Code, the trustee does not acquire ownership of the transferred property. However, within the limits provided to him by law and the agreement, the manager can own, use, dispose of this property, including transferring it into the ownership of other persons, renting it out, pledging it, etc.
The manager has the right to dispose of real estate (sell, lease, for gratuitous use, pledge, etc.) only in cases provided for by the contract, under penalty of applying to the relevant transaction the consequences of the invalidity of a void transaction (Articles 166–168 of the Civil Code) .
2. Since the overall burden of maintaining property transferred to trust management continues to be borne by the owner (Article 210 of the Civil Code), it is he who bears the risk of increase and decrease in such property, including the emergence of rights and obligations from trust management. As a general rule, fruits, products and income from property held in trust are at the disposal of the founder (Article 136 of the Civil Code).
3. pp. 1 and 2 comments. Art. are devoted mainly to the manager’s relations with third parties. As for his “internal” relations with the founder of the management, they must be clearly regulated in the contract. The general responsibility of the manager is to show due care for the interests of the founder of the management and the beneficiary and timely submit to them a report on their activities; the main right is to receive remuneration and cover expenses for property management (see Article 1023 and commentary thereto). It should also be noted that after concluding an agreement, the manager has the right to demand from the founder of the management the actual transfer of property to him (Article 398 of the Civil Code), and in relation to real estate - state registration of such transfer (Articles 398, 551 and 1017 of the Civil Code).
4. Being the legal (title) owner of the property transferred to him, the manager uses any proprietary methods to protect his rights against any third parties, including the founder of the management, the owner of the property and the beneficiary. In particular, he can bring a claim for recognition of his right to property; on reclaiming property from someone else’s illegal possession (vindication claim); to eliminate any violations of one’s right, even if these violations were not associated with loss of possession (negative claim).
In cases where property defined by generic characteristics (for example, money) was transferred to trust management, these methods of protection do not apply.
Article 1021. Transfer of trust management of property
1. The trustee carries out trust management of property personally, except for the cases provided for in paragraph 2 of this article.
2. The trustee may instruct another person to perform on behalf of the trustee the actions necessary to manage the property if he is authorized to do so by a property trust agreement, or has received the consent of the founder in writing, or is forced to do so due to circumstances to ensure interests the founder of the management or the beneficiary and does not have the opportunity to receive instructions from the founder of the management within a reasonable time.
The trustee is responsible for the actions of his chosen attorney as if they were his own.
1. Comment. Art. provides three grounds for transferring trust management to a third party. This list is exhaustive and cannot be expanded in specific property trust management agreements.
2. The main difference between this action and the transfer of trust under Art. 187 of the Civil Code is that the trustee, even after the transfer of control, continues to bear responsibility for the actions of the trustee. In addition, the attorney performs legal and actual actions with the property transferred to him on behalf of the trustee, and not on his own behalf or on behalf of the founder of the management.
Article 1022. Liability of the trustee
1. A trustee who has not shown due care for the interests of the beneficiary or the management founder during the trust management of property shall compensate the beneficiary for lost profits during the trust management of the property, and the management founder for losses caused by loss or damage to the property, taking into account its natural wear and tear, as well as lost profits.
The trustee is liable for losses caused unless he proves that these losses occurred as a result of force majeure or the actions of the beneficiary or the founder of the management.
2. The obligations under a transaction made by a trustee in excess of the powers granted to him or in violation of the restrictions established for him shall be borne by the trustee personally. If third parties participating in the transaction did not know and should not have known about the excess of authority or about the established restrictions, the resulting obligations are subject to fulfillment in the manner established by paragraph 3 of this article. The founder of the management may in this case demand from the trustee compensation for losses incurred by him.
3. Debts under obligations arising in connection with the trust management of property are repaid at the expense of this property. In the event of insufficiency of this property, foreclosure may be applied to the property of the trustee, and if his property is insufficient, to the property of the management founder that has not been transferred to trust management.
4. A property trust management agreement may provide for the provision by the trustee of a collateral to ensure compensation for losses that may be caused to the management founder or beneficiary by improper execution of the trust management agreement.
1. P. 1 comment. Art. provides for the general grounds and procedure for the responsibility of the trustee in his “internal” relations with the founder of the management and the beneficiary.
It should be noted that the content of this paragraph is somewhat contradictory. On the one side, we're talking about on the liability of the trustee for lack of due care for the interests of the beneficiary or founder of the management, i.e. about culpable liability. On the other hand, there is a rule according to which the trustee is released from liability only in the presence of force majeure circumstances or corresponding actions of the beneficiary or the founder of the management, i.e. about responsibility without fault.
It seems that the general rule of trustee liability is liability without fault. However, the manager has the right to prove that the losses occurred not only due to force majeure, but also due to the actions of the founder of the management and (or) the beneficiary. This rule will correspond to paragraph 3 of Art. 401 of the Civil Code, which provides for the general liability of entrepreneurs (and mainly entrepreneurs act as trustees) without fault. An exception to this rule may be provided for by special law.
2. Other characteristic feature The responsibility of the trustee under the contract is the obligation to compensate for losses not only to the founder of the management, but also to the beneficiary - in the form of lost profits. When determining the amount of damages caused, it is necessary to be guided by Art. 15 and 393 Civil Code.
3. P. 3 comments. Art. sets general order liability for transactions lawfully concluded by the manager with third parties. The grounds for such liability will largely depend on who acted as the trustee - an entrepreneur or a citizen (non-profit organization) (Article 401 of the Civil Code).
However, if the manager himself or the attorney appointed by him (clause 2 of Article 1021 of the Civil Code) when making such transactions went beyond the powers granted to the manager or acted in violation of the restrictions established for him, the manager of his personal property bears responsibility.
The possibility of executing such transactions before third parties is made dependent on a subjective factor - the conscientious behavior of third parties. If the latter, in the event of a dispute, manage to prove that they did not know about the manager exceeding his powers or about the restrictions established for him, then they can receive compensation directly from the property transferred to trust management (clause 3 of Article 1022). In this case, the founder of the management, by way of recourse, recovers the damage caused to him from the trustee.
Article 1023. Remuneration to the trustee
The trustee has the right to remuneration provided for in the property trust management agreement, as well as to reimbursement of the necessary expenses incurred by him during the trust management of the property from income from the use of this property.
1. Comment. Art. provides for the payment of remuneration and compensation to the trustee for expenses incurred by him, which allows us to draw a conclusion about the compensated nature of the agreement as a whole.
2. At the same time, the norm contained in the article is not mandatory in nature, therefore, firstly, the trustee has the right to fulfill his duties free of charge, and, secondly, the agreement may change the procedure for paying him remuneration and covering expenses. In particular, it is hardly possible to talk about receiving profit or income from managing the property of a ward (Article 38 of the Civil Code), an unknown person (Article 43 of the Civil Code), under patronage (Article 41 of the Civil Code), etc. It is rather a question of its maintenance or distribution, which nevertheless involves significant effort and expense on the part of the manager.
The remuneration payment system proposed in the article is suitable mainly for business managers. As for expenses, only the necessary ones, supported by relevant documents or a report from the manager, are subject to reimbursement.
Article 1024. Termination of a property trust management agreement
1. The property trust management agreement is terminated due to:
death of a citizen who is a beneficiary, or liquidation of a legal entity - beneficiary, unless otherwise provided by the agreement;
refusal of the beneficiary to receive benefits under the agreement, unless otherwise provided by the agreement;
death of a citizen who is a trustee, recognition of him as incompetent, partially capable or missing, as well as recognition of an individual entrepreneur as insolvent (bankrupt);
refusal of the trustee or founder of the management to carry out trust management due to the inability of the trustee to personally carry out trust management of the property;
refusal of the management founder from the agreement for reasons other than those specified in paragraph five of this clause, subject to payment to the trustee of the remuneration stipulated by the agreement;
recognition as insolvent (bankrupt) of a citizen-entrepreneur who is the founder of the management.
2. If one party refuses a property trust management agreement, the other party must be notified of this three months before termination of the agreement, unless the agreement provides for a different notice period.
3. Upon termination of a trust management agreement, the property under trust management is transferred to the founder of the management, unless otherwise provided by the agreement.
2. The article names three forms of refusal of the contract, which lead to its termination. Despite certain specifics, they correspond general requirements, which are presented for refusals to fulfill the contract, clause 3 of Art. 450 GK. These include:
a) refusal of the beneficiary to receive benefits under the agreement, unless otherwise provided by the agreement;
b) refusal of the trustee or founder of management to fulfill the contract due to the impossibility of the trustee to carry out his duties personally. In this case, the latter does not have the right to demand payment of remuneration for the entire period;
c) refusal of the management founder to execute the agreement due to circumstances other than the impossibility of the trustee personally executing the agreement. In this case, the manager has the right, upon termination of the contract, to demand payment of the entire amount of remuneration due to him.
If the contract does not provide for a different period, then notification of refusal to perform it must be received by the other party no later than three months before its termination. This rule does not apply to the waiver of a beneficiary agreement.
Article 1025. Transfer of securities into trust management
When transferring securities into trust management, it may be possible to provide for the merger of securities transferred into trust management by different persons.
The powers of the trustee to dispose of securities are determined in the trust management agreement.
The specifics of trust management of securities are determined by law.
The rules of this article accordingly apply to rights certified by uncertificated securities (Article 149).
1. The transfer of securities into trust management has a number of features. One of them is that the trustee must be recognized as a professional participant in the securities market, and this is confirmed by having the appropriate license. Currently, the list of bodies that have the right to issue such licenses (the Federal Commission for Securities and the Stock Market under the Government of the Russian Federation and other bodies authorized by it), as well as the procedure for issuing them, is established by Decrees of the President of the Russian Federation of November 4, 1994 No. 2063 “On measures on state regulation of the securities market in Russian Federation"(SZ RF, 1994, No. 28, Art. 2972) and dated December 20, 1994, No. 2203 "On some measures to streamline activities on the securities market in the Russian Federation" (SZ RF, 1994, No. 35, Art. 3689) .
2. In accordance with Art. 6 of the Law on Banks, banks licensed by the Central Bank to carry out banking operations have the right to enter into agreements for the trust management of securities with individuals and legal entities. Securities are understood to mean all those that perform the functions of a payment document, confirm the attraction of funds into deposits and bank accounts, as well as other securities, the implementation of transactions with which does not require, in accordance with federal laws, obtaining a special license.
Other credit organizations have the right to carry out professional activity on the securities market only in accordance with federal laws.
3. One of the main such laws could be the law on the securities market, the draft of which is being discussed in Federal Assembly RF.
Article 1026. Trust management of property on the grounds
provided by law
1. Trust management of property may also be established:
due to the need for constant management of the ward’s property in the cases provided for in Article 38 of this Code;
on the basis of a will in which an executor of the will (executor) is appointed;
on other grounds provided by law.
2. The rules provided for by this chapter respectively apply to relations for trust management of property established on the grounds specified in paragraph 1 of this article, unless otherwise provided by law and does not follow from the essence of such relations.
In cases where trust management of property is established on the grounds specified in paragraph 1 of this article, the rights of the founder of the management provided for by the rules of this chapter belong, respectively, to the guardianship and trusteeship body, the executor of the will (executor) or another person specified in the law.
1. In the comments. Art. special cases of trust management of property are listed. Their list can be supplemented with cases of trust management of the property of a missing person (Articles 42 and 43 of the Civil Code) and the property of a person over whom guardianship in the form of patronage has been appointed (Article 41 of the Civil Code). The list is not exhaustive and may be supplemented by special law.
2. Despite the specifics that each has, these cases have certain common features: a) they are provided separately in the Civil Code or by a special law; b) the basis for the emergence of a legal relationship in these cases is, as a rule, not just a contract, but a complex legal structure - the decision of the guardianship and trusteeship authority on the appointment of trusteeship and the agreement, will and agreement of the executor with the trustee, etc.; c) in such cases, as a rule, trust management is established not by the owner himself, but by another person (guardianship and trusteeship authority, executor, etc.); d) the content of the legal relationship for trust management is formed in general according to the rules of Chapter. 53 of the Civil Code, unless otherwise provided by law and does not follow from the essence of such relations. Yes, Art. 37 and 38 of the Civil Code provide additional limits for the actions of the trustee arising from the essence of the trusteeship relationship. It also talks about a special case of termination of the contract - termination of trusteeship itself.
3. In separate practical comments to part two of the Civil Code, the opinion was essentially expressed that the cases of trust management of property provided for by law, along with those listed, should also include: a) actions of the liquidation commission (liquidator) during the liquidation of a legal entity (Article 62 GK); b) actions of the temporary administration to manage the credit institution for a period of up to 18 months
(Part 2 of Article 75 of the Law on the Central Bank; Temporary Regulations on the Interim Administration for the Management of Commercial Banks and Other Credit Institutions - Economics and Life, 1994, No. 39, p. 5); c) actions of an arbitration manager appointed by the arbitration court for the purpose of external management of the property of the debtor enterprise (Article 12 of the Bankruptcy Law); d) actions of the bankruptcy trustee appointed by the arbitration court (Article 2 of the Bankruptcy Law).
These conclusions appear imprecise and are based on a desire to cover everything non-standard forms enterprise management using the norms of Ch. 53 Civil Code. Firstly, none of the cases given here meets the entire sum of the features of an agreement on trust management of property (see Article 1012 and commentary thereto). In particular, neither the liquidation commission nor the temporary administration for managing a credit institution makes transactions with the property of the enterprise (bank) on its own behalf; secondly, in none of the listed cases there is separation of property. In other words, none of the named management entities puts the received property on a separate balance sheet or opens a separate bank account for settlements on it; thirdly, even taking into account the norm of paragraph two of paragraph 1 of Art. 1015 of the Civil Code, which allows the exercise of the functions of a trustee by a citizen who is not an entrepreneur, the legal status of the temporary administration remains unclear. In accordance with clause 7 of the Temporary Regulations on the Temporary Administration for the management of commercial banks and other credit institutions, it represents a group of persons who do not have the status of a legal entity. Fourthly, even in cases where a separate agreement with the manager is nevertheless concluded (for example, with a member of the temporary administration who is not an employee of the Bank of Russia), the possibility of using a trust management agreement raises certain doubts. This can be seen especially clearly in the example of a bankruptcy trustee, the appointment and control of whose activities is carried out by the arbitration court, and permission for particularly important transactions is given by the meeting of creditors. And besides, up to exclusion from state register legal entities, the liquidated enterprise itself remains operational, which also has the right to claim both the role of founder of management and the role of beneficiary under the agreement.
Taking into account the above, one should come to the conclusion that: a) in each of the listed cases there is a special type of enterprise (bank) management. This type of management, neither in content nor in form, coincides with trust management of a property complex; b) management is carried out by a person who temporarily replaces the traditional management bodies of the enterprise (bank); c) in cases where an agreement is concluded with these persons, its content, as a rule, corresponds to a civil law contract of the contract type.
3. The beneficiary (beneficiary) may be the founder of the management or any third party, however, the figures of the beneficiary and the trustee may not coincide in one person.
4. The founder of the management may transfer part of his property or even all of his property into trust management. The object of trust management can be various types of property, including enterprises, other real estate, securities, including uncertificated, exclusive rights, etc. (Article 1013 of the Civil Code).
In relation to certain types of property, certain restrictions are established on their transfer to trust management:
- property under economic management or operational management cannot be transferred to trust management;
- money can be the object of trust management only if it is provided for by law. However, if money is transferred to trust management as part of an enterprise as a property complex, then the specified restriction does not apply to it;
- When transferring property encumbered with a pledge into trust management, the trustee must be warned about this. If he did not know and should not have known about this circumstance, then he has the right to terminate the property trust management agreement in court and demand payment of the remuneration due to him for one year. At the same time, the transfer of pledged property into trust management does not deprive the pledgee of the right to foreclose on this property (Article 1019 of the Civil Code).
5. In accordance with paragraph 1 of Art. 1018 of the Civil Code, property transferred to trust management is separated from other property of the management founder, as well as from the property of the trustee. This property is reflected by the trustee on a separate balance sheet, and independent accounting is maintained for it. For payments for activities related to trust management, a separate bank account is opened.
Another manifestation of the isolation of property under trust management is the peculiarities of foreclosure on it for the debts of the management founder - such recovery is prohibited. However, in the event of bankruptcy of the founder of the management, the trust management of this property is terminated and it goes to the bankruptcy estate (Article 1018 of the Civil Code).
Essential terms of the agreement. Rights and obligations of the parties
1. Clause 1 of Art. 1016 of the Civil Code specifies the following essential terms of this agreement:
- composition of property transferred to trust management;
- the name of the legal entity or the name of the citizen in whose interests the property is managed (the founder of the management or the beneficiary);
- the amount and form of remuneration to the manager, if the payment of remuneration is provided for in the contract;
- contract time. A property trust management agreement is concluded for a period not exceeding five years. For certain types of property transferred into trust management, the law may establish other deadlines. For example, Art. 19 Federal Law dated November 11, 2003 No. 152-FZ “On Mortgage Securities” established that the validity period of the trust management agreement for mortgage coverage should not be less than a year and more than 40 years.
In the absence of an application from one of the parties to terminate the contract at the end of its validity period, it is considered extended for the same period and on the same conditions as provided for in the contract.
There is an opinion that the essential terms of the property trust management agreement should also be considered the procedure and timing for the trustee to submit a report on his activities.
Naturally, an essential condition of a property trust management agreement, like any agreement in general, is its subject - the legal and actual actions of the manager in relation to the property transferred to him for management.
2. The trustee exercises, within the limits provided for by law and agreement, the powers of the owner in relation to the property transferred to trust management. Disposal of real estate is possible, however, only in cases stipulated by the contract (clause 1 of Article 1020 of the Civil Code). The law or agreement may establish other restrictions on the powers of the manager (for example, he may be prohibited from renting out the property transferred to him).
The manager makes transactions on his own behalf, but at the same time he must indicate that he is acting specifically as a manager. This condition is considered to be met if, when performing actions that do not require written documentation, the other party is informed about their performance by the trustee in this capacity, and in written documents after the name of the trustee the note “D.U.” is made. (clause 3 of article 1012 of the Civil Code).
It is allowed to indicate the fact of a person’s action as a trustee in another way, in addition to putting the mark “D.U.” (for example, the manager records in writing that he is acting on the basis of a trust management agreement). In case of failure to comply with this requirement, the trustee is considered to have made the transaction for personal purposes and is liable for these obligations only with property belonging to him personally.
3. The trustee is obliged to carry out management personally. He can entrust the performance of this duty to another person only in the following cases:
- if authorized to do so by agreement;
- if you have received consent to this from the founder of the management in writing;
- if forced to do so due to circumstances to ensure the interests of the management founder or beneficiary and does not have the opportunity to receive instructions from the management founder within a reasonable time.
The trustee is responsible for the actions of the attorney he has chosen as for his own (Clause 1 of Article 1021 of the Civil Code).
4. The rights acquired by the trustee as a result of actions for trust management of property are included in the composition of the property transferred to trust management. The obligations arising as a result of such actions of the trustee are fulfilled at the expense of this property (clause 2 of article 1020 of the Civil Code).
5. The trustee is given the right to use proprietary methods of protection in relation to the property transferred to him for trust management (vindication, negatory action, etc.) (Articles 301, 302, 304, 305 of the Civil Code).
6. Another responsibility of the trustee is to provide the management founder and beneficiary with a report on his activities within the time frame and in the manner established by the property trust management agreement (clause 4 of Article 1020 of the Civil Code).
7. In accordance with Art. 1023 of the Civil Code, the founder of the management is obliged to pay the manager a remuneration, as well as reimburse the necessary expenses incurred by him during the trust management of the property, from the income from the use of this property. The law does not impose other duties on the founder of the management.
Responsibility of the parties under the property trust management agreement
1. The responsibility of the trustee should be divided into two types: responsibility to the founder of the management and the beneficiary (i.e. in “internal” relations) and responsibility to third parties in the process of carrying out his activities (in “external” relations).
2. As for the responsibility of the trustee in “internal” relations, the Civil Code contains following rules(clause 1 of Article 1022): a trustee who has not shown due diligence during the trust management of property shall compensate the founder of the management for losses caused by loss or damage to the property, taking into account its natural wear and tear, and lost profits, and the beneficiary - only lost profits.
The trustee is liable for losses caused unless he proves that these losses occurred as a result of force majeure or the actions of the beneficiary or the founder of the management.
The agreement may provide for the provision by the trustee of a pledge to ensure compensation for losses that may be caused to the founder of the management or the beneficiary by improper execution of the trust management agreement (clause 4 of Article 1022 of the Civil Code).
3. As for the responsibility of the manager in “external” relations, in paragraph 3 of Art. 1022 of the Civil Code provides for the order of foreclosure on property for debts arising in connection with trust management:
- First of all, foreclosure is applied to property transferred to trust management;
- if such property is insufficient, then foreclosure is applied to the personal property of the trustee;
- if such property is not enough, then the penalty is applied to the property of the founder of the management that has not been transferred to trust management.
4. Special rules are established for the case when a trustee acts in excess of the powers granted to him or in violation of the restrictions established for him.
As a general rule, the trustee is personally liable for the relevant obligations. If third parties participating in the transaction did not know and should not have known about the excess of authority or about the established restrictions, the resulting obligations are subject to fulfillment in the order specified above. The founder of the management may in this case also demand from the trustee compensation for losses incurred by him.
5. Special rules regarding the responsibility of the management founder (for example, in case of late payment of remuneration to the manager) Civil Code does not contain, which means it is determined in accordance with general provisions on liability for violation of obligations.
Termination of a property trust management agreement
1. The grounds for termination of a property trust management agreement include the following:
- death of a citizen or liquidation of a legal entity - the beneficiary, unless otherwise provided by the agreement;
- recognition as insolvent (bankrupt) of a citizen-entrepreneur who is the founder of the management;
- death of a citizen who is a trustee, recognition of him as incompetent, partially capable or missing, as well as recognition of an individual entrepreneur as insolvent (bankrupt);
- refusal of the beneficiary to receive benefits under the agreement, unless otherwise provided by the agreement;
- refusal of the trustee or founder of the management to carry out trust management due to the inability of the trustee to personally carry out trust management of the property;
- refusal of the management founder from the agreement for other reasons, subject to payment to the trustee of the remuneration stipulated by the agreement.
2. If one party refuses a property trust management agreement, the other party must be notified of this three months before termination of the agreement, unless the agreement provides for a different period.
3. Upon termination of the agreement, the property under trust management is transferred to the founder of the management, unless otherwise provided by the agreement (Article 1024 of the Civil Code).
4. The contract is also terminated upon expiration of the contract, since the contract is characterized as a fixed-term contract.
Under the trust management agreement one party, the founder of the management, transfers to the other party, the trustee, property for trust management for a certain period, and the other party undertakes to manage this property in the interests of the founder of the management or the person indicated by him - the beneficiary (Article 1012 of the Civil Code).
The parties to the trust management agreement are founder of the management And trustee. The founder of the management, being the owner of the property, transfers it to the manager, and he undertakes to manage this property in the interests of the founder. If property management is not carried out in the interests of the founder of the management or not only in his interests, another subject is included in the legal relationship - the beneficiary, who has an independent right of claim against the trustee. In these cases, the trust management agreement acquires the features of an agreement concluded in favor of a third party (Article 430 of the Civil Code).
Describing the trust management of property, the Civil Code names any legal and actual actions of the manager in relation to the transferred property (clause 2 of Article 1012), indicates the ability of the manager to treat this property as his own (clause 1 of Article 1020). The limits of managing someone else's property are established by law, as well as by the parties to the contract on the basis of free will.
The transfer of property is not included in the content of the trust management obligation, but is one of the elements of the actual composition necessary for the occurrence of the obligation. If real estate is transferred to trust management, then state registration of such a transfer is required to conclude an agreement (clause 2 of Article 1017 of the Civil Code). This allows us to speak of a real estate trust management agreement as a formal agreement.
The trust management agreement is personal-fiduciary, or fiduciary character, which is reflected in its name, in the name of the main debtor, as well as in the signs of his behavior. In entrepreneurial relations, without trust in the manager, based on knowledge about his professional and personal qualities, the owner is unlikely to enter into such a relationship with him. This is due to the risk of ineffective management or loss (full or partial) of property, which the owner bears when transferring the property to management. In the non-commercial sphere (for example, in the trust management of the property of a ward, in patronage, in the management of inheritance), the relationship of kinship or friendship between the owner and the manager is important. The Civil Code emphasizes the personal nature of the obligations of the trustee to the founder (clause 1 of Article 1021), and establishes the right of either party to refuse the agreement due to the impossibility of personal execution of the agreement by the manager (clause 1 of Article 1024).
In the Civil Code norms, the trust management agreement is modeled as a paid one. By virtue of Art. 1016 of the Civil Code, if there are no terms in the contract regarding remuneration to the manager, the contract will be considered not concluded. At the same time, the Civil Code allows for the gratuitous nature of the trust management agreement (clause 1 of Article 1016). These are those cases when the parties to the agreement are citizens who do not pursue entrepreneurial goals (managing the property of the ward, etc.).
Trust management of property and proprietary rights to property.
The subject of limited property rights (unitary enterprise, institution) is endowed by the owner with the rights of ownership, use and disposal of the owner’s property.
It is necessary to distinguish between trust management of property and property rights to property. A direct legal connection arises between the subject of property rights and the property assigned to him. The subject of property rights is vested with the powers of the owner within the limits determined by law (Articles 294, 296 of the Civil Code). The trustee is the actual owner of the founder's property and does not have the powers of the owner, but the right to exercise these powers in relation to the property on his own behalf * (222). The manager receives this right by virtue of the concluded agreement and exercises it as part of the performance of his primary responsibility for property management. By its nature, this right is obligatory. The limits of the manager’s powers are determined not only by law, but also by agreement (clause 2 of article 1012, clause 1 of article 1020 of the Civil Code). In addition, the subject of property law exercises the powers of the owner in his own interest, and the trustee always in the interests of another person (Article 1012 of the Civil Code).
Legal qualification of the agreement: real- is considered concluded at the moment of delivery of the thing, consensual when real estate is transferred to trust management, such transfer in accordance with clause 2 of Art. 1017 of the Civil Code of the Russian Federation must be carried out in the form provided for the contract for the sale of real estate, compensated, gratuitous, bilaterally binding- responsibilities are assigned not only to the trustee, but also to the founder of the management, who must pay the trustee the remuneration stipulated by the agreement and reimburse the costs of running the management.
Agreements in which the founders of management appoint beneficiaries are classified as contracts in favor of a third party.
Trust management of property can arise not only on the basis of an agreement, but also by force of law (trust management of the property of a ward, missing person, etc.). The basis of such a legal relationship (by force of law) is not just an agreement, but a complex legal structure - the decision of the guardianship and trusteeship authority to establish guardianship and the agreement.
Parties to the agreement : founder of trust management And trustee.
Subject composition of the parties: the founder of trust management is the owner of the property, and in cases provided for by law, other persons who are not owners of the property (guardianship and trusteeship authority, that is, other entities by law). The trustee is a commercial organization (except for a unitary enterprise) or an individual entrepreneur. In cases where trust management of property is carried out on the grounds provided for by law, the trustee may be a citizen who is not an entrepreneur, or a non-profit organization, with the exception of an institution.
If the founder of the management indicates in the agreement, instead of himself, another person in whose interests the trustee should act, then, along with the two named parties to the agreement, a third person - the beneficiary - also becomes a beneficiary.
The subject of the trust management agreement is the performance by the manager of legal and actual actions in the interests of the management founder (beneficiary);
Essential terms of the agreement.
· Composition of property transferred to trust management. The objects of trust management are:
o enterprises and other property complexes;
o individual objects related to real estate;
o securities, rights and other property.
The law does not contain a direct prohibition on the transfer into trust of things defined by generic characteristics. At the same time, the transfer of funds alone to trust management is allowed only if the trustee is a credit organization or another legal entity that has received permission (license) to carry out trust management of funds of citizens and legal entities (clause 2 of Article 1013 of the Civil Code of the Russian Federation).
When transferring securities into trust management, the owner does not lose ownership of them; it is not the right that is transferred to management, but the thing.
If property is transferred to trust management, then it must be separated from other property of the founder of the management and the property of the trustee himself, and a separate account is opened for settlements on it (Article 1018 of the Civil Code of the Russian Federation). It is not allowed to foreclose on this property for the debts of the founder. In this case, the trust management agreement is terminated and the property is included in the bankruptcy estate.
· The name of the legal entity or the name of the citizen in whose interests the property is managed (the management founder or beneficiary).
· Amount and form of remuneration to the manager (if the contract is paid). Typically, trust management agreements are compensated. Conditions on the form and timing of payment of remuneration to the trustee must be provided for in the agreement. If there is no provision for remuneration in the agreement, it is considered gratuitous, for example, when the guardianship and trusteeship body concludes an agreement on trust management of the ward’s property with his relative.
· Term validity of the contract, which cannot exceed five years, unless other deadlines are established by law. If, after the expiration of the contract, there is no statement from at least one of the parties about its termination, then the contract is considered extended for the same period and on the same conditions as were provided for in the contract (Clause 2 of Article 1016 of the Civil Code of the Russian Federation). Thus, the ongoing nature of the relationship under the contract makes it possible to extend it on the same terms.
Contract form : written(Article 1017 of the Civil Code of the Russian Federation). A real estate trust management agreement must be concluded in the form of a single document signed by the parties, with mandatory state registration. The transfer of property is carried out according to a transfer deed. If we are talking about the transfer of an enterprise, then this act is accompanied by: a property inventory act, a balance sheet, an independent auditor’s conclusion on the composition and value of the enterprise, as well as a list of all debts (liabilities) included in the enterprise, indicating creditors, characteristics, size and the duration of their demands. The manager always performs the corresponding action on his own behalf, but at the same time indicates in whose capacity he is acting. This is achieved through relevant information from third parties in oral transactions or marks “DU” (Clause 3 of Article 1012 of the Civil Code of the Russian Federation).
The rights and obligations of the parties must be clearly regulated in the contract.
The trustee is obliged:
· exercise, within the limits provided for by law and (or) agreement, the powers of the owner in relation to property transferred to trust management (Article 1020 of the Civil Code of the Russian Federation). The law requires him to carry out trust management of property personally. The manager can entrust these actions to another person in the following cases (Article 1021 of the Civil Code of the Russian Federation):
a) if authorized to do so by agreement, or has received the written consent of the founder of the management;
b) if forced due to circumstances to ensure the interests of the founder or beneficiary and does not have the opportunity to receive instructions from the founder of management within a reasonable time;
· provide the management founder and beneficiary with a report on its activities within the time limits established by the agreement (clause 4 of Article 1020 of the Civil Code of the Russian Federation);
· termination of the agreement entails the obligation of the trustee to return to the founder of the management all property under trust management, unless otherwise provided by the agreement.
The trustee has the right:
· exercise the owner’s powers over the property transferred to him within the limits established by law and (or) agreement;
· apply all civil law methods to protect property transferred to trust management (clause 3 of article 1020 of the Civil Code of the Russian Federation). To protect the rights to property under management, the trustee is endowed with the legal right to bring vindication and negatory claims (Articles 301, 302, 304, 305 of the Civil Code of the Russian Federation, by virtue of clause 3 of Article 1020 of the Civil Code of the Russian Federation);
· demand payment of remuneration, if provided for by the contract, as well as reimbursement of necessary expenses incurred during the trust management of property at the expense of income from the use of this property (Article 1023 of the Civil Code of the Russian Federation);
· demand from the founder of management after the conclusion of the agreement the actual transfer of property to him.
Rights of the management founder:
· has the right to demand from the trustee the proper execution of the contract;
· has the right to demand from the trustee a report on his activities in property management;
· has the right to demand termination of the contract if it is impossible for the trustee to implement it.
Responsibilities of the management founder - a third party:
· payment of remuneration;
· reimbursement of expenses from income received from the use of property.
The primary responsibility of the trustee is to third parties (Article 1022 of the Civil Code of the Russian Federation):
· for obligations to third parties arising in connection with the implementation of trust management of property, losses are repaid from the property under trust management, if there is a shortage of it - from the personal property of the manager, and only if there is a shortage - from the property of the founder of the management not transferred to the trust control. Further, the founder of the management has the right to demand, by way of recourse, compensation for losses incurred by him from the actions of the trustee. E. Sukhanov defined this complex structure of liability as two-stage subsidiary liability;
· if, when making transactions with third parties, the trustee or the attorney appointed by him goes beyond the powers granted to the trustee, or acts in violation of established restrictions, then the trustee with his own property bears responsibility for the obligations arising in this case, unless third parties prove that they did not know and could not know about the violations committed by the trustee or the attorney appointed by him.
The property trust management agreement is terminated (Article 1024 of the Civil Code of the Russian Federation) due to :
· proper fulfillment of the obligation;
· death of a citizen who is a beneficiary, or liquidation of a legal entity - beneficiary;
· death of the trustee, recognition of him as incompetent, partially capable, or missing;
· recognition of a trustee who is an individual entrepreneur as insolvent (bankrupt);
· recognition of the founder of the management, who is an individual entrepreneur, as insolvent (bankrupt);
· the impossibility for the trustee to personally carry out trust management of the property, and the trustee is obliged to notify the founder of the management about this, as a general rule, three months before termination of the agreement.
Commercial concession agreement
The term “commercial concession” is essentially synonymous with the term “franchising”, which has entered into international practice, which means the voluntary cooperation of two or more entrepreneurial partners for the purpose of sharing means of individualization (company name, commercial designation, trademark or service mark) belonging to one of them. In this case, the party that has granted the right to use means of individualization simultaneously provides the user with protected commercial information (know-how) and provides ongoing consulting assistance in organizing a business. (The most famous example is the opening of the McDonald's restaurant chain around the world.)
Under a commercial concession agreement one party (the copyright holder) undertakes to provide the other party (the user), for a fee for a period or without specifying a period, the right to use in the user’s business activities a set of exclusive rights belonging to the copyright holder, including the right to the company name and (or) commercial designation of the copyright holder, to the protected commercial information, as well as other objects of exclusive rights provided for in the contract - trademark, service mark, etc. (Clause 1 of Article 1027 of the Civil Code of the Russian Federation).
Commercial concession agreement - consensual, compensated, bilaterally binding. The parties to the contract are copyright holder(a person granting the right to use his means of individualization and know-how) and user(the person to whom these rights are granted). They may be commercial organizations and citizens registered as individual entrepreneurs (clause 3 of Article 1027 of the Civil Code of the Russian Federation).
Subject A commercial concession agreement is a set of exclusive rights to a company name and (or) commercial designation, a trademark and commercial information, including experience in organizing relevant business activities. From the definition of the contract it follows that the subject of the contract may include exclusive rights to other objects of intellectual property (for example, an industrial design).
In the subject of a commercial concession agreement, special emphasis should be placed on commercial designations - for example, the name of a legal entity, although unregistered, but widely known, which is protected without special registration (for example, Coca-Cola).
A commercial concession agreement must be concluded in simple written form, non-compliance with which entails its invalidity (clause 1 of Article 1028 of the Civil Code of the Russian Federation). This agreement is subject to state registration by the body that registers the legal entity or individual entrepreneur acting under the agreement as the copyright holder. The need for such registration is due to the fact that by transferring the use of rights that individualize the activity, the copyright holder also limits his own rights, and such a limitation must be public.
State registration of legal entities is carried out by the relevant bodies of local administration (a special Registration Chamber has been created in Moscow). In the future, it is planned to concentrate this function in the justice authorities.
When concluding a commercial concession agreement, exclusive rights to certain objects of intellectual property are transferred, the transfer of rights to which is subject to special registration at the Patent Office (right to a trademark, invention, industrial design).
Therefore, if the complex of exclusive rights includes rights to the specified objects, then, in addition to state registration, registration with the Patent Office is required. Failure to comply with the requirement for such registration also leads to the invalidity of the contract.
A mandatory condition of a commercial concession agreement is the remuneration paid by the user to the copyright holder. Article 1030 of the Civil Code of the Russian Federation contains an approximate list of forms of such payments, among which are mentioned fixed one-time or periodic payments, deductions from revenue, markups on the wholesale price of goods transferred by the copyright holder for resale. However, in practice, the copyright holder's remuneration usually consists of two parts: a fee for joining the copyright holder's corporate network and subsequent periodic payments, determined in fixed amounts or as a percentage of revenue.
Situations are possible when the copyright holder changes his company name or commercial designation to one that is more consistent with his image. Such a change to a certain extent affects the user, therefore the law establishes that the commercial concession agreement also applies to the new brand name or commercial designation of the copyright holder. If the user does not want to exercise his right, he may demand termination of the contract and compensation for losses or a proportionate reduction in the remuneration due to the copyright holder.
Commercial concession agreements are characterized by the presence of conditions, the implementation of which may lead to restriction of competition in the market. In particular, we are talking about assigning a certain territory to the user, in which neither other users nor the copyright holder himself can act, as well as a prohibition for the user to enter into competition, either independently or by obtaining similar rights from the copyright holder’s competitors (such a ban may valid for a certain period and after the expiration of the contract).
Realizing that these provisions may contradict antimonopoly legislation, the Civil Code of the Russian Federation makes it possible to challenge these conditions and invalidate them at the request of the antimonopoly authority (State Committee on Antimonopoly Policy) or another interested party, if these conditions, taking into account the state of the relevant market and the economic situation of the parties, contradict antimonopoly legislation (clause 1 of article 1033 of the Civil Code of the Russian Federation). The decision to challenge the restrictive terms of the contract should be made both after studying the general situation and clarifying the position that the parties to the contract occupy in this market. At the same time, in Art. 1033 of the Civil Code of the Russian Federation mentions two conditions limiting the rights of the parties, which in any case must be recognized as void. Such restrictions apply to:
a) the right of the copyright holder to determine the selling price of goods by the user or the price of work (services) performed (rendered) by the user, or to set an upper or lower limit for these prices;
b) the user’s obligation to sell goods, perform work or provide services exclusively to a certain category of buyers (customers) or exclusively to buyers (customers) located (place of residence) in the territory specified in the contract.
A commercial concession agreement can be concluded for a specific period or without specifying a period. It follows from this that the term is not an essential condition of the contract.
The Civil Code of the Russian Federation provides for a number of obligations of the copyright holder, which must be included in the commercial concession agreement. So, in accordance with paragraph 1 of Art. 1031 of the Civil Code of the Russian Federation, the copyright holder is obliged to:
transfer to the user technical and commercial documentation and provide other information necessary for the user to exercise the rights granted to him under the commercial concession agreement, as well as instruct the user and his employees on issues related to the exercise of these rights;
issue the user the licenses provided for in the contract, ensuring their execution in the prescribed manner.
A number of obligations of the copyright holder are optional and can be included in the contract at the discretion of the parties. These, in particular, include the responsibilities of the copyright holder:
ensure registration of the commercial concession agreement (clause 2 of Article 1028 of the Civil Code of the Russian Federation);
provide the user with constant technical and advisory assistance, including assistance in training and advanced training of employees (clause 2 of article 1031 of the Civil Code of the Russian Federation);
control the quality of goods (work, services) produced (performed, provided) by the user on the basis of a commercial concession agreement (clause 2 of Article 1031 of the Civil Code of the Russian Federation).
A commercial concession agreement may provide for the right of the user to allow other persons to use the complex of exclusive rights granted to him or part of this complex on the terms of the subconcession agreed upon by him with the copyright holder or specified in the commercial concession agreement. The agreement may provide for the user’s obligation to provide, within a certain period, to a certain number of persons the right to use the specified rights on the terms of a subconcession (Clause 1 of Article 1029 of the Civil Code of the Russian Federation).
Thus, according to the agreement subconcessions the user acts as a secondary copyright holder, and his counterparty acts as a secondary user. With the help of a subconcession, the original copyright holder expands its ability to influence the market for its goods or services and is therefore interested in issuing them. In this regard, the law allows for the possibility of replacing the secondary copyright holder (i.e. the user under the main commercial concession agreement) with the primary copyright holder in the event of early termination of a concession agreement concluded for a period, or termination of such an agreement concluded without specifying a period (clause 3 of Art. 1029 of the Civil Code of the Russian Federation).
If a commercial concession agreement was concluded for a certain period, then it is valid during this period, and if concluded without specifying a period, until termination in the manner prescribed by law. However, even before the expiration of the contract, it can be terminated or amended.
The agreement is amended by agreement of the parties. It can also be changed in court at the request of one of the parties in the event of a significant violation of the contract by the other party. Finally, the contract can be amended if there is a significant change in the circumstances from which the parties proceeded when concluding the contract. Moreover, any changes to the commercial concession agreement are subject to mandatory state registration in the same manner as its conclusion (Article 1036 of the Civil Code of the Russian Federation), and only from the moment of registration the changes become valid for third parties.
As for the termination of the contract, in addition to the general grounds for termination of obligations, it is also terminated in the following cases:
a) unilateral refusal of a contract concluded without specifying a period. Each of the parties to the agreement has the right to withdraw from the agreement at any time, notifying the other party six months in advance, unless the agreement provides for a longer period (clause 1 of Article 1037 of the Civil Code of the Russian Federation);
b) the user’s unilateral refusal of the contract in the event of a change in the company name or commercial designation of the copyright holder (Article 1039 of the Civil Code of the Russian Federation);
c) termination of the rights to a company name and commercial designation belonging to the copyright holder without replacing them with new similar rights (clause 3 of Article 1037 of the Civil Code of the Russian Federation);
d) death of the copyright holder, if the heir does not register as an individual entrepreneur within six months from the date of opening of the inheritance (clause 2 of Article 1038 of the Civil Code of the Russian Federation);
e) declaring the copyright holder or user insolvent (bankrupt) in the prescribed manner (clause 4 of Article 1037 of the Civil Code of the Russian Federation).
Termination of a commercial concession agreement is subject to state registration with the same authorities that register the conclusion of this agreement. Moreover, if any change to the contract is registered, then the termination of the contract is registered only if it occurred ahead of schedule (in cases where the contract was concluded for a certain period) or if the contract was concluded for an indefinite period.
During the term of the commercial concession agreement, the copyright holder may assign one or all of the exclusive rights belonging to him to a third party. In itself, such a transfer of rights is not a basis for changing or terminating the contract (Clause 1 of Article 1038 of the Civil Code of the Russian Federation). In this case, the new copyright holder simply acquires all the rights and obligations arising from the previously concluded commercial concession agreement.
In the event of termination of one of the exclusive rights included in the complex of exclusive rights transferred under a commercial concession agreement, the agreement continues to be in force with the exception of those provisions that relate to the terminated right.
As an exception to the general rule, the liability of the parties under a commercial concession agreement occurs regardless of fault. In this case, the copyright holder is responsible not only to the user for improper performance of the contract, but also to third parties for the inadequate quality of goods (work, services). This liability can be either subsidiary (additional) or joint.
In particular, the copyright holder bears judicial liability for the requirements presented to the user regarding the non-conformity of the quality of goods (work, services) sold, performed, provided by the user under a commercial concession agreement (Part 1 of Article 1034 of the Civil Code of the Russian Federation). If the requirements are presented to the user as a manufacturer of products (goods) of the copyright holder, then the latter is liable jointly with the user. At the same time, the liability of the copyright holder is limited to the quality condition and does not extend to the user’s violation of other terms of contracts concluded with third parties (quantity, terms, etc.).
