On April 24, 2013 the State Duma adopted the Federal Law “On Amendments to Subsections 4 and 5, Section I, Part One, and to Article 1153, Part Three, of the Civil Code of the Russian Federation” (Draft No. 47538-6/4) in its third reading (hereinafter – the “Draft Law”).
The main object of the Draft Law is to improve Part I of the Civil Code of the Russian Federation (hereinafter – the “CC”) which contains the most general and essential Russian civil law regulations.
Amendments introduced by the Draft Law can be conditionally divided to the following main blocks described below.
1. Provision on voidance of a transaction in case of violation of its mandatory state registration requirement has been cancelled
Under the current version of the CC ,violation of a statutory requirement on transaction state registration results in the transaction being invalid. Suchtransactionisvoid.
The Draft Law cancels this regulation. Such transaction has legal effect after its registration.
2. The concept of “notarial certification of a transaction” has been introduced
The current version of the CConly provides a notarial certification procedure but does not define its content.
The Draft Law introduces the notion of “notarial certification of a transaction” defining it as verification of a transaction’s legal validity, including each party rights to make such transaction. Such verification shall be carried out by a notary or an official with an authority to perform such notarial act.
3. Alimitation period for actions where a transaction party eludes its notarial certification or state registration
At the moment a general limitation period constituting 3 years applies to claims arising in connection with a transaction party eluding its notarial certification or state registration.
The Draft Law provides a shorter limitation period in relation to such claims, constituting 1 year.
Under draft CC provisions on calculation of limitation periods and performance time limits, a limitation period begins:
- upon completion of a term within which an eluding party shall have performed the notarial certification or the state registration of a transaction (where such time period is provided by an agreement);
- upon completion of a term of 7 days from the date when a lender files a claim according to which an eluding party shall perform such actions (where an agreement does not contain the relevant performance term).
4. The state registration of an amendment agreement to the terms and conditions of a transaction subject to state registration under Russian legislation has become mandatory
The current version of the CC does not contain any such requirement. In the meantime, such approach has developed in court practice, and the Draft Law has set it forth legally.
5. Provision on voidance of foreign trade transactions where they are not made in the written form
This CC provision had been introduced at the time when foreign trade was monopolized by the state, and it reflected a specific attitude of the state to such transactions. Under the Concept of Civil Legislation Development of the Russian Federation approved by the Presidential Council of Russia for Civil Law Codification and Enhancementas of 07.10.2009, such rule is not reasonable and puts foreign trade transaction parties in a position which is not equal to that of common transaction parties.
Invalidity of transactions
1. Anumber of amendments has been introduced aiming at limitation of unreasonable challenge of transactions on formal grounds
- a mandatory condition for a challenged transaction being void has been set, that is violation of rights and legal interests of a party challenging the transaction;
- it is prohibited for a transaction party to challenge the transaction on a ground which it was or should have been aware of, but nevertheless performed actions indicating its intention to secure that the transaction shall remain in force;
- a limitation has been set in relation to parties authorised to claim for the application of consequences of invalidity of a void transaction. Under the current version of the CC, such claim can be made by any interested party. Under the Draft Law, such claim can be made by a transaction party and by any other party, however, only in cases provided by law;
- the right of a court to apply the consequences of invalidity of a void transaction has been limited. At the moment a court may apply such consequences at its own initiative. The Draft Law has limited this right to cases when it’s necessary for the purposes of public interests protections, as well as to other case provided by law;
- it has been set forth that a transaction voidance application is not legally effective if a party referring to the transaction being void is not acting in good faith, in particular, if other parties could rely on the validity of the transaction basing on the behavior of such referring party after the execution of the transaction;
- courts have been given a right not to apply the consequences of invalidity of a transaction, if such application contravenes public policy;
- a party that gave its consent, necessary by law, to the execution of a challenged transaction may not challenge it on the ground which such party was or shall have been aware of at the moment it gave such consent.
2. Legal regulation of certain types of invalid transactions has been amended
2.1. Invalidity of a transaction which is not in compliance with laws or regulations
Under the current version of the CC, a transaction that is not in compliance with the requirements of laws or regulations is void when it is not provided by law that such transaction is challengeable or when law does not provide other incompliance consequences.
The Draft Law has changed this approach by setting forth that a transaction that is not in compliance with the requirements of laws or regulations is challengeable, except where it infringes public interests or rights and third party interests protected by law, as well as in other cases provided by law.
2.2. Invalidity of a legal entity’s transaction out of the scope of its legal capacity
At the momenta legal entity’s transaction out of the scope of its legal capacity can be invalidated if it was made in both of the following circumstances:
- the transaction was executed by a legal entity in breach of its business objects directly determined in its constitutional documents, or by a legal entity that does not hold a license to perform the corresponding activity;
- it has been proved that another transaction party was or shall have been aware of the invalidity of such transaction.
Invalidity of a transaction can be claimed by:
- the legal entity itself;
- its founder (member);
- a state authority controlling and supervising the activity of the legal entity.
The Draft Law excludes absence of a license to perform the corresponding activity from the number of grounds on which a transaction can be invalidated on such ground.
Also, the Draft Law excludes a state authority controlling and supervising the activity of the legal entity from the number of persons that may challenge a transaction on such ground.
2.3. Invalidity of a transaction made for purposes contravening public policy
Under the current legislation, if both parties to a transaction made for purposes contravening public policy made it intentionally: if such transaction is performed by both parties, everything they acquired under such transaction shall be surcharged in favour of the Russian Federation, if such transaction is performed by one of the parties, everything it acquires and everything it owed to the other party as a consideration of what was acquired shall be surcharged from such party in favour of the Russian Federation.
Where only one of the parties to such transaction has the corresponding intention, everything it acquires under such transaction shall be returned to the other party, and everything that such other party acquired or everything that was owed to it as a consideration for performed obligations shall be surcharged in favour of the Russian Federation.
The Draft Law suggests providing an obligation of each transaction party to return everything it acquired under such transaction to the other party, as a legal consequence of such transaction invalidity.
In cases provided by law a court may surcharge in favour of the Russian Federation everything that transaction parties, acting intentionally, acquired or apply other consequences provided by law.
2.4. Invalidity of a simulated or sham transaction
The Draft Law directly provides that a simulated transaction, i.e. a transaction made in order to conceal another transaction, may conceal, inter alia, a transaction made on other terms and conditions.
2.5. Consequences of limitation of authorities to make a transaction
Under the current version of the CC, a transaction made by a person with limited authorities to make such transaction can be challenged if it is made in both of the following circumstances:
- the person’s authorities to make the transaction are limited by an agreement, or the authorities of a legal entity’s relevant body are limited by its constitutional documents, in comparison to as determined by a power of attorney, by law or as they might be rendered as obvious in circumstances in which the transaction is made;
- when making the transaction the person (the body) exceeded the limitations;
- it has been proved that the other party was or shall have been aware of such limitations
The Draft Law widens the list of documents that may contain limitations on authorities to make a transaction by adding a clause on a branch or representative office and other documents regulating the activity of a legal entity.
2.6. Invalidity of a transaction influenced by misrepresentation
Under the current version of the CC, a transaction can be declared invalid if it was influenced by a material misrepresentation. A misrepresentation is material if it concerns the nature of a transaction or the identity of its subject matter or such aspects of its subject matter that materially affect the subject matter being used as intended.
According to the Draft Law, a transaction can be challenged under such ground if a misrepresentation was material to such an extent that a party acting reasonably and in good faith would not have made the transaction if it had been aware of the factual circumstances.
Also, the Draft Law provides conditions under which a misrepresentation is assumed to be fairly material:
- a party has made an obvious lapse, mistype, a clerical error etc.;
- a party is under a delusion regarding the subject matter of the transaction, in particular, concerning such aspects of the subject matter that are considered material in the circulation;
- a party is under a delusion regarding the nature of the transaction;
- a party is under a delusion regarding the party with which it enters into the transaction, or regarding a related party;
- a party is under a delusion regarding a circumstance it mentions in its declaration of will or on the basis of which (which is obvious to the other party) it makes the transaction.
It has been set forth that a transaction cannot be challenged if the other party agrees to hold the transaction valid on conditions of which it had an idea that served as the basis for such party under a delusion.
Also, a court may reject declaring a transaction invalid if a delusion could not be identified by a party acting with its usual prudence, subject to the content of the transaction, attending circumstances and the peculiarities of the parties.
2.7. Invalidity of a transaction made under the influence of fraud, violence, threat, willful arrangement between a representative of one party and the other party or in the combination of adverse consequences
For the purposes of challenging transactions made under the influence of fraud the Draft Law defines fraud as willful omission of circumstances which the corresponding party shall have reported on acting in good faith necessary under the circulation terms.
The Draft Law separately regulates cases when a transaction has been made by a third party under the influence of fraudulent actions performed towards an affected party. Such transaction can be challenged by an affected party if the other party or a party involved in a unilateral transaction was or shall have been aware of the fraud. It is assumed, in particular, that a party was aware of fraud if a third party responsible for such fraud acted as a representative or an employee of that party or assisted such party in making such transaction.
Making a transaction under the influence of a willful arrangement between a representative of one party and the other party is excluded from the list of self-standing grounds for a transaction to be declared invalid. Such arrangement is referred to in the Draft Law as one of potential conditions for declaring a transaction invalid if it was made by a representative or a body of a legal entity against the interests of the represented party or the corresponding legal entity.
Under the current version of the CC, if a transaction made under the influence of fraud, violence, threat, willful arrangement between a representative of one party and the other party or in the combination of adverse consequences is declared invalid:
- an affected party shall recover everything that the other party has acquired under the transaction;
- property acquired by an affected party from the other party under the transaction, and compensation owed to an affected party against anything it transferred to the other party shall be surcharged in favour of the state;
- an affected party shall recover actual damage incurred by it.
The Draft Law has set forth other consequences of declaring such transaction invalid:
- each party shall return to the other party everything it acquired under such transaction;
- losses incurred by an affected party shall be reimbursed by the other party.
3. The Draft Law sets forth a number of special grounds for a transaction to be declared invalid
3.1.Invalidity of a transaction made without the consent of a third party, legal entity’s body or a state or municipal authority, required by law
A transaction can be declared invalid on such ground if it is made in both of the following circumstances:
- the consent of a third party, legal entity’s body or a state or municipal authority is required by law to make such transaction;
- the transaction has been made without such consent;
- it has been proved that the other transaction party was or shall have been aware of the absence of such necessary consent when the transaction was made (applicable to challengeable transactions).
Generally, such transaction is challengeable. The law can set forth that such transaction:
- is void;
- does not have any legal consequences for a party authorised to give its consent if such consent is not given.
Moreover, other consequences (apart from invalidity) of the absence of a necessary consent to a transaction can be determined by law or (in cases provided by law) by agreements with a party the consent of which is necessary to make the transaction.
The Draft Law sets forth an obligation of persons which consent to a transaction is required by law to respond with a consent or a denial in a reasonable time after receiving a consent request, to a party that sent such request and to any other interested party. Such consent can be precedent and subsequent. Other conditions may be provided by law or by any other legal act.
3.2. Invalidity of a transaction made by a representative or a body of a legal entity against the interests of such represented party or legal entity
A transaction can be declared invalid on such ground if it is made in both of the following circumstances:
- the transaction is made by a representative (a body of a legal entity);
- the transaction is made against the interests of the represented party (the legal entity);
- the other transaction party was or shall have been aware of express damages, or there were circumstances evidencing the existence of an agreement between, or other joint actions of a representative (a body of a legal entity) and the other transaction party, infringing the interests of the represented party (the legal entity).
A claim for declaring a transaction invalid can be filed by:
- a representative (a legal entity);
- another party or body, if provided by law.
3.3. Invalidity of a transaction made in breach of a freezing injunction
Such transaction shall be void to an extent it involves disposal of property in relation to which a freezing injunction applies.
A transaction made in breach of a freezing injunction issued in favour of a debtor’s lender or another authorised party in relation of debtor’s property in court or otherwise as established by law does not hinder the execution of such lender’s or such other authorised party’s rights secured by the injunction, except where a party that acquired the property was not or shall not have been aware of such injunction.
4. Aspecial procedure has been set for calculation of limitation periods in relation to void transactions, applicable to parties that are not a transaction party
Under the current version of the CC, limitation of actions period in relation to a certain claim begins from the date at which the implementation of the relevant transaction commenced, and does not depend on whether a claiming party is a party to such transaction or not.
The Draft Law sets forth that limitation of actions period in cases when a corresponding claim is filed by a person that is not a party to the transaction begins from the date at which such party became or shall have become aware of the fact that the implementation of such transaction had commenced.
Resolution of a meeting
The Draft Law suggests introducing chapter 91 on legal regulation of meeting resolutions. It is assumed that the provisions of such chapter will apply to the meetings of participants of a legal entity, its co-owners, bankruptcy lenders and other parties, as provided by law or arises out of the nature of relationships.
According to the Draft Law, a meeting resolution which by law relates to civil law consequences gives rise to civil consequences indented by the corresponding resolution for all persons authorised to take part in such meeting.
A meeting resolution is considered to have been adopted if the majority of meeting participants have voted for such resolution, given that not less than 50 per cent of the total number of participants authorised to take part in such meeting were present.
A meeting resolution can be adopted by absentee voting.
A separate resolution shall be adopted on each item of the agenda, if not provided otherwise by an unanimous resolution of a meeting.
The Draft Law provides that a meeting resolution can be declared invalid by court if if law requirements are violated, including in cases when:
- there is a material breach of the procedure of convocation, preparation to and holding of a meeting, influencing the declaration of will of its participants;
- a person which represented a meeting participant did not have the relevant authorities,
- the equality of participants’ rights has been violated when a meeting was held;
- there is a material breach of rules regarding the preparation of minutes, including rules on the written form of minutes.
A meeting resolution can be challenged in court by a participant:
- who did not take part in the meeting or voted against the resolution in dispute;
- who voted for the resolution or abstained from voting, if his/her declaration of will as a voter was violated.
A meeting resolution cannot be declared invalid by court if:
- it is confirmed by a resolution of a subsequent meeting adopted before a court decision in accordance with an established procedure;
- the adoption of such resolution did not depend on the vote of a person whose rights are affected by the resolution in dispute, and such resolution does not give rise to any material adverse effect for such person.
A meeting resolution can be challenged in court within six months from the date when a person whose rights are affected by the adoption of such resolution became or shall have become aware thereof, however, not later than within 2 years from the date at which information on the adopted resolution became available to the participants.
A person challenging a meeting resolution shall notify participants in a written form in advance on his/her intention to file a corresponding claim to a court and provide them any further related information. Participants who did not adhere to the claim as established by procedural law, including those having other grounds for challenging such resolution, later may not file any claims to a court for the purposes of challenging such resolution, unless a court recognises grounds for filing such claims as legitimate.
A challengeable resolution of a meeting that has been declared invalid by a court shall be invalid from the moment of its adoption.
If otherwise is not provided by law, a meeting resolution is void if:
- is was adopted on an item not included into the agenda, except when all participants took part in the meeting;
- is was adopted in the absence of a quorum;
- it was adopted on an item outside the competence of the meeting;
- contravenes public policy.
Legally valid communications
The Draft Law introduces the notion of “legally valid communications” defining them as statements, notifications, announcements and other communications related to civil law consequences for the other party by law or under a transaction.
Such consequences for a person who is the addressee of a communication arise from the moment of its delivery to such person or to his/her representative. A communication is also considered to be delivered if it was left at an addressee’s address but was not delivered to him/her due to reasons within his/her control of if an addressee did not read it.
Other regulation of such communications can be provided by law or under a transaction or be a result of practice established in parties’ relationships.
1. Rights of a party to a transaction made with an unauthorised person have been determined
At the moment, if there are no authorities to act on behalf of another person or if such authorities are exceeded a transaction shall be regarded as made on behalf and in the interests of the person who has made it, unless the other (represented) person subsequently directly approves such transaction.
The Draft Law provides the following rights for a person with whom a transaction by an unauthorised person has been made:
- before the transaction has been approved by a represented person – to unilaterally reject the transaction (except where such person was or shall have been aware that the person making the transaction did not have the authorities or was exceeding them at the moment when such transaction was made);
- if a represented person rejected making the transaction or there has been no response from him/her regarding the approval of such transaction within a reasonable time – to require the unauthorised person that has made the transaction to perform it, or to unilaterally reject it and require such unauthorized person to compensate losses. Losses may not be compensated if at the moment when the transaction was made the other party was or should have been aware that the unauthorised person did not have the authorities or was exceeding them.
2. It is provided that if a commercial representative is acting in an auction it is assumed (since a contrary has not been) that a represented person agrees to be simultaneously represented by such representative of the other party or parties.
3. Alist has been extended in relation to cases when a transaction may be made by a representative on behalf of a represented person in relation to such representative himself/herself, transactions in relation to another person whom he/she is simultaneously representing.
The current version of the CCprohibits a representative from making transactions on behalf of a represented person in relation to the representative himself/herself. Transactions in relation to another person whom the representative is simultaneously representing may be made only in case of commercial representation.
Under the Draft Law, it is possible to establish by law additional cases when a representative may make transactions mentioned above.
A transaction made in breach of rules mentioned above and to which no consent has been given by a represented person may, if its violates the interests of a represented person, be declared invalid by a court on the basis of his/her claim. Violation of the interests of a represented person is presumed, unless a contrary has been proved.
4. An obligation of a commercial representative to comply with requests with a prudence of a regular entrepreneur in cases when he/she is acting as a simultaneous commercial representative of different transaction parties has been excluded.
This is determined by the establishment of a good faith principle in the CC as one of the basic principles of civil legislation.
Power of attorney
1. The maximum term for a power of attorney has been cancelled
Under the current CC, the maximum term of a power of attorney constitutes 3 years from the date it was issued. An exception is made for a power of attorney to perform actions abroad: if such power of attorney is notarised is can be undated and shall be valid until revocation by an issuer.
The Draft Law cancels such limitation and allows issuing a power of attorney for any term.
2. An opportunity to issue an irrevocable power of attorney has been introduced
The current version of the CCprovides an unconditional right of the issuer of a power of attorney to revoke it at any time. Anywaiverofsuchrightisvoid.
The Draft Law provides an opportunity to issue an irrevocable power of attorney, i.e. a power of attorney that contains a limitation of an opportunity to revoke it. Such power of attorney can be issued for the purposes of performance of, or securing business related obligations of a represented party.
A right to revoke a power of attorney can be limited:
- till the end of its term;
- by including cases to such power of attorney allowing its revocation.
An irrevocable power of attorney may be cancelled in any of the following cases:
- after an obligation for the performance of or securing which it was issued, is terminated;
- if a representing person abuses his/her powers or some circumstances arise evidencing that such abuse can occur.
An irrevocable power of attorney shall be notarised and shall contain an express limitation of an opportunity to cancel it.
An irrevocable power of attorney can be delegated only if provided by such power of attorney.
3. An opportunity has been set forth allowing to present a power of attorney authorising to make a transaction directly to the other transaction party, or to present a power of attorney authorising to make a bank operation over an account or a deposit or to obtain correspondence directly to a corresponding bank or a post office.
4. Requirements to the notarisation of a power of attorney have changed
- a power of attorney issued by a legal entity does not any more require affixing a stamp of such entity;
- under the current version of the CC, delegated powers of attorney shall be notarised. The Draft Law provides an exception from this rule in relation to powers of attorney delegated by legal entities and branch managers;
- a requirement to notarise a power of attorney authorising to submit applications on the state registration of rights and transactions, and to dispose of rights registered in state registers has been introduced, except for cases provided by law;
- a requirement has been cancelled, under which a chief accountant’s signature had to be affixed on a power of attorney authorising to obtain or to give out cash and other property, issued by a legal entity based on a state or municipal property.
5. Amendments to the legal regulation of delegation have been introduced
It is unclear from the current text of the CC if delegation of a power of attorney results in the termination of authorities of a person who performed such delegation. The Draft Law expressly provides that in such case the authorities of a person who performed such delegation shall not terminate. Otherwise can be provided by a power of attorney or by law.
At the momenta person for whom a power of attorney was issued may delegate his/her authorities if he/she is forced by circumstances, in order to protect the interests of a person who issued such power of attorney. The Draft Law provides an opportunity to prohibit such delegation by a power of attorney.
The current version of the CC does not contain legal regulation of authority sub-delegation by a person for whom such authorities were delegated (sub-delegaton). According to the Draft Law, sub-delegation may be provided by an initial power of attorney or by law.
6. Amendments to the legal regulation of a power of attorney termination have been introduced
Under the current version of CC,if a power of attorney is cancelled an issuing party it shall notify the person in favour of which the power of attorney has been issued and related third parties before which such party was to be represented, of such termination.
The Draft Law provides as opportunity to give such notifications by publishing an announcement in an official edition in which announcements on bankruptcy are published. Third parties are considered to have been notified of power of attorney cancellation a month after the date of such publication (if they have not been notified earlier).
Limitation of actions
1. Limitation period has changed
Under the current version of the CC,a general limitation of actions period is 3 years from the date such period commences. In relation to certain types of claims other special limitation periods can be prescribed by law, reduced or longer in comparison to a general period.
The Draft Law provides that, in any case, a limitation of actions period cannot exceed 10 years from the date when a right for protection of which such period has been set, was violated.
2. Determination procedure in relation to limitation period commencement date has changed
Under the current version of the CC,if otherwise is not provided by law, a limitation period commences from the date when a party became or shall have become aware of its right violation.
The Draft Law provides that for a limitation period to commence, it is necessary that a person whose right has been violated shall become or have become aware of who is the proper defendant in a claim on such right protection.
At the moment, a limitation period in relation to obligations without a performance period or with a performance period defined by the date of a request, a limitation period commences when a lender’s right to claim the performance of such obligation arises.
The Draft Law suggests setting forth that a limitation period in such case shall commence from the date when a lender requests the relevant obligation to be performed.
3. Alist of grounds for suspending a limitation period has been extended
At the moment, one of the grounds for suspending a limitation period is making an agreement between relationship parties on mediation.
The Draft Law suggests suspending a limitation period in all cases when parties refer to an out-of-court dispute resolution procedure provided by law (mediation procedure, prejudicial administration procedure etc.). In such case a limitation period is suspended for a term determined by law in relation to such procedure and if there is not such term – for six months from the date when the corresponding procedure commenced.
4. Duration procedure in relation to a limitation periodin case of in-court violated right protection has changed
Under the current version of the CC, limitation period duration aborts by filing a claim as set out by law. After such abortion limitation period duration commences from the start; time that has passed before such abortion is not taken into account for a new term.
The Draft Law suggests taking for the basis the fact that a limitation period does not run from the date when a claim has been filed to a court (as set out by law) for the purposes of protecting a violated right, during the whole period when the protection of such violated right is performed in court.
If a court dismisses a claim the duration of a limitation period that commenced before such claim was filed, continues to run according to the standard procedure, unless a contrary arises from grounds on which such judicial right protection has terminated.
If a court dismisses a claim filed in a criminal case a limitation period that commenced before such claim was filed shall be suspended till a verdict according to which such claim was dismissed comes to force.
If after a claim has been dismissed the remaining part of a limitation period is less than 6 months it shall be prolonged up to 6 months, except for cases where actions (or omission) of the claimant served as a ground for dismissing the claim.
5. It has been prohibitedto unilaterally exercise a right (set-off, direct debit, out-of-court enforcement etc.), in relation to which a limitation period for its protection has expired.