Art. 448 Civil Code of the Russian Federation with comments

State trades can be held in different ways. The most common options are auctions and competitions. They can be closed or open. Features of their implementation are disclosed in Art. . 448 Civil Code of the Russian Federation . Let's consider the norm in detail.

General information

As the art. , к участию в открытом аукционе/конкурсе допускаются любые лица. 448 of the Civil Code of the Russian Federation , any person is allowed to participate in an open auction / competition . To closed trades are allowed only specially invited subjects. If the other does not establish legislation, the notice of bidding shall be published by the organizers no later than one month before the date of the meeting. In the notice, according to p . 2 tbsp. , должна присутствовать информация о месте, форме, предмете, времени торгов, существующих обременениях реализуемых ценностей, порядке проведения мероприятия, правилах оформления участия, определения победителя и данные о первоначальной цене имущества. 448 of the Civil Code of the Russian Federation , information on the place, form, subject, time of the auction, existing encumbrances of the values to be realized, the procedure for conducting the event, the rules for registration of participation, the determination of the winner and data on the initial price of the property should be present. The organizers of the auction / auction determine the terms of the agreement signed with the winning bidder. They are also indicated in the notification.

Organizer Features

Unless otherwise provided in the notification or the law, the entity that published the notice may refuse to conduct the bidding. According to para . 4 tbsp. соответствующее решение в отношении аукциона должно быть обнародовано не позднее 3-х дн. 448 Civil Code, the relevant decision regarding the auction should be made public no later than 3 days. Before the set date. Notification of the refusal to hold a tender is published no later than a month before it begins. If the organizer violated the specified deadlines, he is charged with the obligation to compensate the damage caused to bidders. Reimbursement of real damage is carried out regardless of the period in which the notification was followed by a refusal.

Deposit

About him it says in paragraph 5 of Art. . 448 Civil Code of the Russian Federation . As indicated by the rule, bidders are required to deposit a deposit in the manner, amount and time specified in the notification of the tender / auction. If, for one reason or another, trades have not been made, the amount paid is returned. P. 5 tbsp. предусматривает также, что лица, участвовавшие в аукционе/конкурсе, но не выигравшие их, также получают задаток обратно. 448 Civil Code also provides that persons who participated in the auction / competition, but did not win them, also receive a deposit back. When registering an agreement with the winner, the amount paid by the winner is credited against the fulfillment of the obligation under the transaction. If the other is not established by law, the integrity of the organizers and participants can be provided with an independent guarantee.

Documentation Features

If the other is not stipulated by the legislation, the bidder who won the tender and the organizer should sign a protocol on their results on the day of the event. This document has the power of a treaty. The subject who evades signing it must compensate for the damage caused by this in proportion to the amount of the security provided. In a number of cases, the conclusion of a contract is allowed only through bidding. If, in accordance with the law, this situation occurs, if the organizer evades signing the protocol, the person who won the auction / tender can apply for compulsion to conclude the contract in court. In addition, the subject has the right to file an action for compensation of damages caused to him.

Additionally

In accordance with Part 7 of Art. , если оформление договора допускается только по результатам торгов, победитель не может уступать права и переводить долг по обязательствам, вытекающим из такого контракта. 448 Civil Code , if the registration of the contract is allowed only by the results of bidding, the winner can not assign the right and transfer the debt for obligations arising from such a contract. Terms of the agreement must be executed by the person who won the contest / auction personally, unless otherwise stipulated by law. The content of the contract in the case when its registration is allowed only by the results of trades, can be changed by the parties. At the same time, adjustments should not affect the essential terms of the contract, which were important in determining the price, as well as in other cases specified by law.

Art. 448 Civil Code of the Russian Federation with comments 2016.

In the first paragraph of the rule under consideration, the division of tenders and auctions into closed and open ones is provided. The level of freedom of participation is the basis for classification. Any subjects can be attracted to open trades, and to closed ones, accordingly, exclusively specially invited. Meanwhile, it is necessary to take into account the nuance. The possibility of participation of any entity in an open auction / tender does not mean that the law can not establish certain requirements or restrictions. Thus, according to Article 5 of Federal Law No. 178, in such auctions any organizations and citizens, except for unitary enterprises, institutions and companies, can act as purchasers of municipal / state property if their share in the capital is more than 25%. These restrictions also apply to entities that can participate in privatization auctions / competitions. At the same time, these restrictions do not transform open trades into closed ones. From this it follows that the sign fixed in part one of Art. , следует трактовать в том смысле, что к конкурсу/аукциону может привлекаться любое лицо, соответствующее установленным законодательством требованиям (если они определены). 448 of the Civil Code of the Russian Federation , should be interpreted in the sense that any person who meets the requirements established by legislation (if they are defined) may be involved in the tender / auction.

Notification rules

The general order of notification of forthcoming trades is fixed by the second art. 448 Civil Code of the Russian Federation. The regulations establish, among other things, the period in which the notification is to be published. The notice is considered an important and compulsory legal act within the bidding procedure. It captures the key parameters of the upcoming auction / auction. It should be noted that the notice is not a public offer. This is due to the fact that a contract that is drawn up on the basis of bidding results can not be concluded with any entity that responds to the offer. The latter, in turn, is an essential sign of the offer. Considering Art. экспертов, необходимо обратить внимание на то, что специалисты расценивают извещение как акт, выражающий волю организатора заключить договор посредством проведения конкурса/аукциона. 448 Civil Code of the Russian Federation with the comments of experts, it is necessary to pay attention to the fact that experts regard the notice as an act expressing the will of the organizer to conclude a contract by holding a competition / auction. This determines the content of the notice.

Minimum requirements

Analyzing Art. юристов, можно выделить следующие обязательные пункты, включаемые в уведомление: время, место, форма, предмет и порядок проведения торгов. 448 Civil Code of the Russian Federation with comments of lawyers, the following mandatory items included in the notice: time, place, form, subject and procedure for bidding. An indication of the initial price must be present in the notice of tenders in which the price condition is significant. ). The term for signing the contract is included in the notification of the tender / auction, the subject of which is only the right to execute the contract ( Article 447, 448 of the Civil Code of the Russian Federation ). These requirements are considered to be minimal for all trades. The organizer can specify in the notice other information, except obligatory. Additional requirements to the content of the act may be fixed in the legislation.

Form of notification

In this rule, there are no requirements for the type of notification. Meanwhile, the significance and nature of the notice indicate the priority of the written form. Oral notification of potential participants is also permitted. For example, a property owner who wants to sell it more expensively can himself act as an organizer of a closed auction. In this case, he is entitled to notify each person invited to participate in the bidding by phone.

Refusal of the event

Its conditions and consequences are fixed in the third article in question. As a general rule, it is possible for the organizer of an open auction / tender that published a notice to refuse an event. The notice or the law may, however, fix this restriction. For closed events, the possibility of a refusal is not provided for directly, but is implied indirectly. This is indicated in clause 3, which regulates the consequences of refusal to hold such an auction / competition.

P. 7 of Art. 448 Civil Code: comments

When applying individual points of the norm in question, difficulties often arise. In particular, we are talking about paragraph 7 of Art. 448 Civil Code of the Russian Federation. показывает, что далеко не все заявители правильно толкуют норму. Practice shows that not all applicants correctly interpret the norm. The clause establishes a ban on cases in which the customer does not purchase goods, services or work for municipal or state purposes, while individuals or enterprises receive rights in relation to public education in their own interests. In such situations, Section 7, Art. при отсутствии регламентации конкретных отношений в специальном законодательстве. 448 Civil Code of the Russian Federation in the absence of regulation of specific relations in special legislation. That is, the prohibition acts because of the significant importance of the creditor's personality.

Destiny of the deposit

In the fourth paragraph of the rule, the obligation of bidders to make a preliminary (security) amount is established. It should be noted that the issue of the deposit and its subsequent fate is settled by the article so much that there is no need to apply the provisions of Art. 380 and 381 of the Code. The size of the amount, the procedure and the deadline for making the payment is determined by the organizer and indicated in the notification. The deposit must be returned to all participants if the event has not taken place. If the auction / competition was held, then the security payment is transferred back to those subjects that did not win.

An Important Moment

Considering the question concerning the deposit, it is necessary to pay attention to one nuance. Under the rules of the norm, if a contract is concluded with the subject, the amount contributed by him as security is counted against the performance of the obligation if the relevant provision is provided for in the contract. However, there is an exception to this rule. The deposit will be returned to the winner of state contracts for the supply of goods for state needs. This is due to the fact that the contract does not establish the supplier's obligation to pay any amount to the counterparty.

The last stage of the auction / competition

It is regulated by paragraph five of the article being commented. To understand the essence of the provisions, it is necessary to clearly distinguish the types of trades that are delimited depending on their subject matter. In paragraph 5 there are appropriate instructions. In particular, the conclusion of a contract may be the subject of a tender. In other words, an auction / competition is organized directly for the execution of the contract. Accordingly, the result of the event will be a contract concluded with the winning entity. The subject of bidding may be the right to contract execution. The provisions of the first paragraph of paragraph 5 apply to a certain extent to all types of auctions / competitions. Abs. 2 applies only to those trades, the subject of which is the right to execute a contract. The general meaning of the first paragraph is that the necessity of drawing up and signing a protocol based on the results of an event, the consequences of avoiding this action in the form of loss of a deposited deposit or payment of its double amount, as well as compensation for losses, apply to auctions of both types. The prescription that this document has the force of a contract refers only to those trades, the subject of which is the conclusion of a contract.

conclusions

In view of the foregoing, within the meaning of paragraph 5, we can conclude the following:

1. The entity that wins the bidding of any type, and the organizer must sign a protocol on its results on the day of the event.
2. The document, drawn up following the auction, in which the subject was the conclusion of the contract, is equal in force to the contract.
3. The protocol signed by the results of the auction / competition held for the right to conclude an agreement is considered a legal act. It fixes the results of the bidding and confirms the winner's authority.
4. The entity that won the auction / competition, in case of evasion from signing the protocol, loses the deposit paid to them, and the organizer in the same situation should return the double amount to the interested person, and also compensate the latter for the participation in the event in the part exceeding the double payment amount . These rules apply to trades, the subject of which is, both the conclusion of a contract and the right to design it.

Thus, it is necessary to clearly distinguish and understand the specifics of a specific type of auction / competition, in order to avoid negative consequences. For each type of bidding, there are rules regarding the allocation of participants to certain legal possibilities. In addition, it should be said about the timing. The contract on the results of the auction / competition, the subject of which was the right to sign the contract, must be concluded no later than 20 days after the end of the event and the preparation of the protocol. The notice may provide for a different period for the commission of this action.

Appeal to the court

It is allowed in the case when either side evades the signing of the contract. The interested subject can send a request to compel the contract to court. In addition, he has the right to expect compensation for losses caused by the counterparty's avoidance of signing the contract. Here we should pay attention to another difference between trades, the subject of which is the conclusion of a contract and the right to design it. If in the first case the possibility of applying for compulsion to sign a contract to a court is provided, then in the second situation it is impossible to force a counterparty to sign the protocol. Paragraph 5 does not clarify when a contract is considered concluded. It seems that in connection with the fact that the signed protocol has the force of a contract, the latter will be deemed to be formalized at the time of the certification of the act.