State and Law. Art. 181 Civil Code of the Russian Federation with comments

Art. 181 of the Civil Code (in a new wording) establishes the statute of limitations for the presentation of claims on the application of the legally established consequences of recognizing the nullity of null and voidable transactions. The norm also determines the moment from which the calculation of the prescribed periods begins. Let's consider further art. 181 Civil Code of the Russian Federation with comments of 2015

Terms for sending claims for invalidity of void transactions

The period for claims under such contracts is 3 years. The calculation of this period begins with the date of execution of a void agreement. The claim can be presented by the subject, not participating in the disputable legal relationship. For him, the duration of the term can not be more than 10 years. The calculation of the period starts from the day when the specified person found out or was to become aware of the execution of the transaction.

P. 2 tbsp. 181 of the Civil Code of the Russian Federation

The statute of limitations on the requirements to recognize the invalidity of disputable transactions and the application of relevant consequences is 1 year. The calculation of the period is carried out from the date of cessation of threats or violence, under which the relevant treaty was signed. The beginning of the period may also coincide with the date when the plaintiff became or should have become aware of other circumstances permitting the submission of the relevant claim.

Art. 181 Civil Code of the Russian Federation (with comments of 2015)

The considered norm describes the cases of the application of long-term deadlines to disputable and insignificant transactions. For the first periods, stipulated in the earlier provisions, remained the same. In the present exposition of Art. 181 of the Civil Code of the Russian Federation, the statute of limitations for insignificant transactions was reduced to 3 years. From 01.01.1995 (from the date of introduction of the first part of the Code) to 26.07.2005 (before the entry into force of Federal Law No. 109), this period was 10 years. This provision seemed to be fully justified, in particular regarding privatization transactions that were committed before the adoption of the relevant norms.

However, over time it began to create certain obstacles to ensure the legal and economic stability of entities involved in civil circulation. On the one hand, within 5-10 years the owner of the object can change several times, and today, as a rule, the current owner is considered to be conscientious. On the other hand, the practice of art. 181 of the Civil Code of the Russian Federation shows that the three-year period established for insignificant transactions is quite enough to protect the person's interests.

Relevance of the issue

Comments on art. 181 of the Civil Code reflect the opinions of various specialists. However, most of them express a common point of view, which boils down to the following. A prolonged long-term period earlier significantly complicated the resolution of cases due to the high risk of loss of evidence, the increased possibility of contradictory reflection of circumstances, persons involved in the dispute, and so on. These and other factors complicated the procedure for making an objective decision, which, in turn, formed the prerequisites for making erroneous decisions with the corresponding consequences. Establish reasonable time in Art. 181 of the Civil Code of the Russian Federation contributes to the stabilization of turnover, the elimination of uncertainty in the interactions of participants inevitably arising during long-standing periods of time.

Scope of duties and rights

It is always specified when making transactions by traders. With detailed regulation of duties and rights, subjects resolve conflicts in a short time. The absence of reasonable limits to ensure the protection of interests caused negative consequences for the defendants and third parties. This was mainly due to the fact that the latter could not always take into account the need to collect and preserve evidence. Established in Art. 181 of the Civil Code of the Russian Federation terms ensure the protection of the parties to civil trafficking from presenting unreasonable claims, prompting, at the same time, to take care of the implementation and protection of their rights. As a result, all this makes it possible to strengthen economic and financial discipline in society.

Features of the application of the long-standing period

In the first paragraph of Art. 181 of the Civil Code defined that the period is calculated from the day when the terms of the transaction began, but not the date that the subject learned or should have learned about the violation of their rights. In Art. 166 point 1 it is established that an insignificant transaction will be considered invalid, regardless of whether it was recognized by the court or not. When satisfying the requirements in the reasoning part of the decision, there must be an appropriate indication. An insignificant transaction, as is known, does not give rise to legal consequences. In this regard, its invalidity can be recognized only from the time it was committed. To begin calculating the long-term period, it is enough that at least one party starts to implement it.

Participation of third parties

An insignificant transaction can infringe the interests of not only the parties that knew about the fulfillment of its conditions. In particular, in the housing sector, there were often situations where apartment owners in residential buildings that did not act as contractors could not protect the rights to objects recognized as common property. Speech, for example, is about attics, cellars and other premises. Often, local authorities transfer these objects into ownership or leased to outsiders. To solve this kind of problems, the legislation specified the rules for calculating the time limits for certain categories of void and disputable transactions.

Thus, in accordance with paragraph 42 of the Plenary Decision of the Supreme Arbitration Court No. 29 of 15 December 2004, it was determined that an action for invalidating contracts on the grounds provided for in paragraphs 2 and 3 of Art. 103 FZ "On Bankruptcy", may be sent by the creditor or an external manager within a year. Specifics of the calculation of the term are also set here. It begins with the moment when the transaction became or should have become known to the original external manager (if he acts as an applicant), rather than to the debtor. In case of missing the deadline in this case, it is not subject to recovery.

Features of recognition of invalidity

Satisfaction of the relevant requirements imposed by an external manager is allowed if, in the performance of the transaction in respect of which the claim is filed, the creditor has incurred or could incur losses. A contract executed with an individual subject after the adoption in court of an application for recognition of the debtor's bankruptcy or during the six months preceding that time may be classified as invalid. The following condition must be satisfied. The transaction should assume preferential satisfaction of claims of some creditors before the rest.

The specificity of Chap. 9.1 of the Civil Code

In Art. 181.1 Civil Code established the main provisions. In accordance with them, all the rules that are defined in the said chapter, are subject to application, unless otherwise provided in the law or in the order defined by the rules. In the process of large enterprises, the general meeting plays a key role in decision-making. In the second paragraph of Art. 181.1 it is determined that the acts adopted on it give rise to the legal consequences on the origin of which they are directed, for all the entities that had the right to take part in it, and other persons, if it proceeds from the essence of relations or follows from the law.

Decision making at meetings

Features of the procedure are defined in Art. 181.2 Civil Code of the Russian Federation. The corresponding act shall be deemed approved if a majority of the participants' votes were cast for it. At the same time, at least 50% of the total number of members of the public should be present at the meeting. Decision-making by absentee voting is allowed. When you include several issues on the agenda, decisions on them are approved separately. Another procedure may be established by the participants of the company, if for its approval everyone voted unanimously. The fact of making a decision is fixed by the protocol. The document is signed by the secretary and the chairman of the meeting. The protocol specifies:

1. Place, time and date of the meeting.
2. Information about the subjects who participated in the event.
3. The results of the voting held at the meeting. They are listed separately for each issue on the agenda.
4. Data on subjects authorized to vote count.
5. Information about the participants who opposed the adoption of the discussed decision and demanded to bring the relevant information to the record.

The disputability of decisions

About it it is told in art. 181.4 Civil Code of the Russian Federation. In accordance with the norm, a decision approved at a meeting can be declared invalid by the court if violations of legislative requirements are revealed. This includes, among other things, the following:

1. Failure to comply with the procedure for the preparation, convening, holding of an event, if this had an impact on the will of its participants.
2. Absence of authority of a person who spoke on behalf of a member of the meeting.
3. Assumption of equality of rights of the persons participating in the event.
4. Violation of the rules of registration of the protocol.

The decision adopted at the meeting can not be declared invalid on the grounds of non-compliance with the procedure for its approval, if it is confirmed by the decision of the next measure passed in accordance with the established rules, until the end of the proceedings.

Additionally

The decision of the meeting can be challenged by a member of the society who did not participate in it or voted "against". The right of appeal of the act is possessed by the subject, who abstained or voted for the decision, if his will was violated during the approval process. The decision of the meeting can not be recognized as invalid if the voting of the entity whose interests are affected by it could not influence its adoption, and it itself does not entail significant negative consequences for it. You can challenge the decision within six months. The calculation of the term starts from the date when the subject whose rights were infringed, should have learned or learned about it. In this case, the claim must be filed no later than 2 years from the date when information about the decision was made publicly available to the participants of this society.

Conclusion

The entity that challenges the decision taken by the meeting is obliged to notify in advance the members of the company in writing of their intentions to apply to the court. In addition, he must provide them with other information relevant to the case. Those participants who did not accede to the lawsuit in the manner provided for in the legislation, and who have other grounds for challenging, can not later apply to the court with the requirements to declare the decision invalid. The exception is cases where the reasons for which they did not send their objections, the authorized body considers respectful. The invalidity of the disputable decision, recognized by the court, comes into effect from the moment of adoption of the relevant definition.