What can you cook from squid: quick and tasty

	Article of the law	Case number
1. Inspection report		№ 68/05-18.1-2014
2. The deposit is paid based on the current sale price of the property during the period of the offer (that is, taking into account its step-by-step decrease from the initial sale price)		No. А40-127620 / 12-158-984
3. Formation of lots		57/05-18.1-2014 »
4. In the message about the sale of the enterprise should contain	Art. 28 Bankruptcy Law	complaint No. 64 / 05-18.1-2015
5 . The applicant's rights were not violated and the applicant was not a bidder	Part 2 of Art. 18.1 Law No. 135-F3	Resolution No. 17974/13 dated 04.22.2014 complaint No. 64 / 05-18.1-2015 bankruptcy commissioner of OJSC "Novokuznetsk autobaza"
6. There is no thirty-day period for posting a notice on the sale of the debtor's property by means of a public offer. paragraph 4 of Art. 139 of the Law, clause 9 of Art. 110 Art. Art. 110 and the Bankruptcy Act. The procedure for the sale of the debtor's property through a public offer consists in the sale of the debtor's property already put up for auction, recognized as invalid, and is aimed at the earliest completion of the bankruptcy proceedings. In this case, the content of this procedure is determined by the period of the offer, and not by the date of the auction.	paragraph 4 of Art. 139 of the Bankruptcy Law	Resolution Resolution defining
7. The application for participation in the auction must also contain information about the presence or absence of interest applicant
8. If the bankruptcy commissioner performs the function of the organizer of the parties, then the antimonopoly authority haspowers to consider complaints against the actions of the bankruptcy commissioner during the auction.		Resolution Presidium of the Supreme Arbitration Court of the Russian Federation
9. The use of the settlement account of the organizer of the auction for depositing the deposit does not contradict the current legislation. Art. 133 paragraph 10 of article 110	clause 10 of Art. 110	ruling ruling
10. The bankruptcy (external) manager, within 5 days from the date of signing the protocol, sends the winner an offer to conclude a purchase and sale agreement. bankruptcy commissioner - auction organizer
11. Non-refund of the deposit paid by the applicant to participate in the auction
12. Non-electronic Bidding form are subject to: Real estate; Securities; Property rights; Pledged property; exceeds five hundred thousand rubles		Resolution

Kemerovo OFAS Russia is an executor in the specialization "Practice and problematic issues of application of Article 18.1 of the Federal Law" On Protection of Competition ". This article defines the procedure for consideration by the antimonopoly authority of complaints about violations of the bidding procedure and the procedure for concluding contracts.

The anti-monopoly authority has analyzed and summarized the violations that the department faces when considering complaints about organizing and conducting tenders in accordance with the Bankruptcy Law.

Experts have prepared an overview of common violations, indicating the qualification of the violation and with reference to judicial practice:

Content of violations, reasons for complaints

Article of the law

Case number

1. Inspection report

The notice of the auction for the sale of the debtor's property through a public offer includes the requirement that legal entities and individuals who have confirmed the inspection of the property are allowed to participate in the auction. Also, the organizer of the auction requires an inspection certificate to be attached to the application.

Violation of subparagraphs 11, 12 of Article 110, paragraph 4 of Art. 139, paragraph 2 of Art. 111, paragraph 1 of Art. 179 of the Bankruptcy Law

Resolution of the Federal Antimonopoly Service of the Z-S district in case No. A27-15972 / 2014

the decision and order of the Kemerovo OFAS Russia upheld on the complaint № 68/05-18.1-2014

2. The deposit is paid based on the current sale price of the property during the period of the offer (that is, taking into account its step-by-step decrease from the initial sale price)

A different interpretation and calculation of the amount of the deposit at any stage of the auction, based on the initial sale price of the property, does not comply with the provisions of the current legislation.

According to Articles 329, 380 of the Civil Code of the Russian Federation, a deposit is one of the ways to ensure the fulfillment of an obligation. Bidding is a way to conclude a contract. The obligation of the bidder to make a deposit is established in order to ensure the conclusion of an agreement between the organizer of the auction and the person who won the auction.

Consequently, when establishing a sufficiently significant amount of the deposit in relation to the price of the property being sold, the security function of the deposit is implemented to a greater extent, stimulating the parties to conclude the main contract.

Reasonable and corresponding to the requirements of the legislation is the establishment of the amount of the deposit, based on the current initial sale price of the property in the relevant time period.

Obligation of the tenderer to pay a deposit to participate in the tender by means of a public offer in an amount greater than the established percentage of the current initial sale price of the debtor's property at a certain time interval imposes on the tenderer, in addition to the security functions of the deposit, additional property encumbrances not provided for by the current legislation.

clause 8 of Art. 110 of the Bankruptcy Law, the amount of the deposit for participation in the auction is established by the external manager and must not exceed twenty percent of the initial selling price of the enterprise.

Determination of the Supreme Arbitration Court of the Russian Federation of 24.04.2014 No. VAS-2319/14 in case No. A65-9469 / 2013

Resolution of the Federal Antimonopoly Service of the Moscow District of June 25, 2013 on the case

No. А40-127620 / 12-158-984

3. Formation of lots, which entailed the sale at auction in different lots of immovable property and their integral parts, which contradicts the requirements of clause 1 of Article 133 of the Civil Code of the Russian Federation.

According to clause 1.1 of Article 139 of the Bankruptcy Law, within one month from the date of the end of the inventory of the debtor's enterprise or the assessment of the debtor's property, if such an assessment was carried out at the request of the bankruptcy creditor or the authorized body in accordance with this Federal Law, the bankruptcy commissioner must submit to the meeting creditors or to the creditors' committee for approval of a proposal for the sale of the debtor's property, including information on the composition of this property, on the timing of its sale, on the form of bidding (auction or competition), on the conditions of the competition, on the form of submission of proposals on the price of this property, on the initial price of its sale, about the mass media and sites on the Internet, where it is proposed to respectively publish and place a message on the sale of this property, on the timing of publication and placement of the said message.

By virtue of paragraph 1 of Part 1 of Art. 18.1 of Law No. 135-FZ, the antimonopoly authority does not have the authority to consider complaints against the actions of creditors, the debtor in bankruptcy cases, and the formation of lots upon the sale of the debtor's property is not within the powers of the organizer of the auction.

Assessment of the legality of the formation of lots for the purpose of further sale of the debtor's property in the framework of bankruptcy cases is beyond the competence of the Commission.

By the decision of the Arbitration Court of the Kemerovo Region in case No. A27-16254 / 2014, the decision of the Kemerovo OFAS Russia was upheld on the complaint No. 57/05-18.1-2014 applicant LLC "TD Flex-Art" organizer of the auction LLC "Priority »

4. In the message about the sale of the enterprise should contain: information about the enterprise, its composition, characteristics, description of the enterprise, the procedure for familiarization with the enterprise.

The above information in accordance with Art. 28 of the Bankruptcy Law are included in the Unified Federal Register of Bankruptcy Information and are published in the official publication determined by the order of the Government of the Russian Federation of July 21, 2008 No. 1049-r "On the official publication that publishes information provided for by the Federal Law" On Insolvency (Bankruptcy) "newspaper Kommersant

In pp. 1 item 10 of Art. 110 Bankruptcy Law

Art. 28 Bankruptcy Law

Resolution 7ААС case No. А27-19288 / 2015

The decision and order of the Kemerovo OFAS Russia were upheld by complaint No. 64 / 05-18.1-2015 bankruptcy commissioner of OJSC "Novokuznetsk autobaza"

5. The applicant's rights were not violated and the applicant was not a bidder

The applicant may be another person whose rights or legitimate interests may be infringed upon or violated as a result of violation of the procedure for organizing and holding tenders, if the appeal is related to a violation of the procedure for posting information on the conduct of tenders, the procedure for submitting applications for participation in tenders, established by the regulatory legal procedures.

Article 18.1 of Law No. 135-FZ does not establish the obligation of the antimonopoly authority to prove such circumstances that the violation of the bidding procedure directly caused real damage, since any violation of the established bidding rules violates the uniformity of bidding, affects the rights and legitimate interests of persons, bidders, including potential ones.

Part 2 of Art. 18.1 Law No. 135-F3

Resolution
Presidium of the Supreme Arbitration Court of the Russian Federation
No. 17974/13 dated 04.22.2014

Resolution 7ААС in case No. А27-19288 / 2015 The decision and order of the Kemerovo OFAS Russia were upheld by complaint No. 64 / 05-18.1-2015 bankruptcy commissioner of OJSC "Novokuznetsk autobaza"

The arguments were confirmed by resolution 15ААС in case No. 15P-22524/2015

6. There is no thirty-day period for posting a notice on the sale of the debtor's property by means of a public offer.

paragraph 4 of Art. 139 of the Bankruptcy Law establishes a special procedure for the sale of the debtor's property through a public offer if the repeated bidding for the sale of the debtor's property was declared invalid or the sale and purchase agreement was not concluded with their only bidding. These norms of the Bankruptcy Law are special in relation to the general norms establishing the procedure for holding tenders in the form of an auction or competition, to which clause 9 of Art. 110 of the Bankruptcy Law. These special rules have not established a thirty-day period for publication of the sale of the debtor's property through a public offer.

In addition, the requirement to comply with such a period contradicts the meaning of the norms of the legislation on insolvency (bankruptcy), which establish the procedure for the sale of the debtor's property, in particular Art. Art. 110 and 139 of the Bankruptcy Law. The procedure for the sale of the debtor's property through a public offer consists in the sale of the debtor's property already put up for auction, recognized as invalid, and is aimed at the earliest completion of the bankruptcy proceedings. In this case, the content of this procedure is determined by the period of the offer, and not by the date of the auction.

paragraph 4 of Art. 139 of the Bankruptcy Law

Resolution of the Arbitration Court of the East Siberian District of December 15, 2015 No. F02-6149 / 2015 in case No. A19-6028 / 2015

Resolution of the Eighteenth Arbitration Court of Appeal dated 10.11.2015

No. 18AP-12787/2015 in case No. A34-849 / 2015

determination of the Supreme Arbitration Court of the Russian Federation dated June 17, 2014 No. VAS-7402/14.

7. The application for participation in the auction must also contain information about the presence or absence of interest applicant in relation to the debtor, creditors, the external administrator and the nature of this interest, information about the participation of the external administrator in the applicant's capital, as well as the self-regulatory organization of bankruptcy administrators, of which the external administrator is a member or head.

Clause 11 of Article 110 of the Bankruptcy Law

Resolution of the Federal Arbitration Court of the West Siberian District of April 22, 2014 in case No. A45-18226 / 2013

8. If the bankruptcy commissioner performs the function of the organizer of the parties, then the antimonopoly authority haspowers to consider complaints against the actions of the bankruptcy commissioner during the auction.

The powers of the antimonopoly body to consider complaints about violation of the procedure for bidding, sale of state or municipal property, which are mandatory in accordance with the legislation of the Russian Federation, are determined by paragraph 4.2 of Part 1 of Article 23 of the Law on Protection of Competition.

Federal legislation provides for the possibility of filing a complaint with the antimonopoly authority against the actions (inaction) of the auction organizer during the auction, and also establishes the procedure for considering such complaints.

If the liquidator is not the organizer of the auction, then the antimonopoly authority does not have the authority to consider complaints against the actions of the liquidator.

Clause 4.2, Part 1 of Art. 23 of the Law on Protection of Competition.

Clause 1, part 1, part 4, 5 of Article 18.1 of the Law on Protection of Competition - according to the rules of this article, the antimonopoly body considers complaints about the actions (inaction) of the organizer of the auction

Resolution
Presidium of the Supreme Arbitration Court of the Russian Federation
No. 17974/13 dated April 22, 2014 in case No. A39-3314 / 2012 F01-11520 / 2013)

9. The use of the settlement account of the organizer of the auction for depositing the deposit does not contradict the current legislation.

The transfer of the deposit for participation in the auction to the account of the auction organizer is not a violation of Art. 133 of the Federal Law "On Insolvency (Bankruptcy)", since the provisions of this article do not contain a prohibition on the transfer of a deposit when organizing the sale of the debtor's property to the account of the organizer of the auction.

In clause 4.4. of the procedure for the sale of the debtor's property, paragraph 10 of Article 110 of the Bankruptcy Law, it is indicated that the organizer of the auction in the notice of the auction indicates, among other things, the details for transferring the deposits.

clause 10 of Art. 110, art. 133 of the Bankruptcy Law

The Supreme Court of the Russian Federation dated 8.04.2016 No. 310-ES16-2200 in case No. A08-3908 / 2014 (ruling of the Arbitration Court of the Belgorod Region dated 07.07.2015, ruling of the Nineteenth Arbitration Court of Appeal dated 23.10.2015 and ruling of the Arbitration Court of the Central District dated 08.12.2015 in case No. A08-3908 / 2014)

10. The bankruptcy (external) manager, within 5 days from the date of signing the protocol, sends the winner an offer to conclude a purchase and sale agreement.

It is not recognized as a violation of the requirements of Art. 18.1 of the Law on Competition in the event that the bankruptcy commissioner concludes a purchase and sale agreement earlier than 10 days from the date of summing up.

In the notification of acceptance of the complaint in accordance with part 19 of Article 18.1 of the Law on the Protection of Competition bankruptcy commissioner - auction organizer is not entitled to conclude an agreement before the antimonopoly authority makes a decision on the complaint. An agreement concluded in violation of the requirement established by this clause is null and void. It makes no sense for the organizer of the bargaining to write this norm, since it is not in his powers to conclude a sale and purchase agreement.

Clause 16 of Art. 110 Bankruptcy Law

The antimonopoly body has no powers under Art. 18.1 of the Law on Competition in relation to the liquidator, if he does not act as the organizer of the auction.

Part 19 of Art. 18.1 of the Law on Protection of Competition

11. Non-refund of the deposit paid by the applicant to participate in the auction

The sums of the deposits made by the applicants are returned to all applicants, except for the winner of the auction, within five working days from the date of signing the protocol on the results of the auction.

The antimonopoly body is empowered to consider, in the specified order, complaints, including those against the actions of the auction organizer and issuing appropriate decisions and orders. Consideration of such complaints is carried out by the antimonopoly body in order to exercise the powers granted to it by Federal Law No. 135-FZ and in order to protect the legal relations protected by this law.

P. 15 Art. 110 Bankruptcy Law

Art. 18.1 and Art. 23 of the Law on Protection of Competition

Resolution of 09/25/2014 17 of the Arbitration Court of Appeal A60-22953 / 2014

12. Non-electronic Bidding

The organizer of the auction must act in accordance with the requirements of paragraph 3 of Article 111, paragraph 3 of Article 139 of the Bankruptcy Law and in accordance with the Regulations of Creditors.

According to clause 3 of article 111 of the Bankruptcy Law, sales at auctions held in electronic form are subject to:

Real estate;

Securities;

Property rights;

Pledged property;

Items of historical or artistic value;

Item, the market value of which exceeds five hundred thousand rubles, including an indivisible thing, a complex thing, the main thing and a thing associated with it by a common purpose (belonging).

Clause 3 Article 111, Clause 3 Article 139, Bankruptcy Law

The ruling of the Supreme Court of the Russian Federation dated 17.03.2015 No. 66-KG14-11 confirmed the position that the auction should be conducted in electronic form.

Ruling of the Eighteenth Arbitration Court of Appeal dated 30.01.2015

No. 18AP-14709/2014 in case No. A07-13542 / 2012

full version of the article

Friends, today let's talk about the conditions under which the deposit is returned or not returned to you at bankruptcy auctions.

Consider firstthe situation of the return of the deposit.

First option.If you submitted all the documents for participation in the auction, but did something wrong, for example, the applications were not completed correctly, then in this case you are not allowed to the auction, and your deposit is returned.

Second option.When you yourself have changed your mind to participate in the auction. Until a certain moment, you can refuse to participate and, in this case, if you did everything on time, the deposit will be returned to you.

The third option.If you participated in the auction, but did not become the winner, then in this case the winner takes the object, and all the rest of the deposit will be returned to you as well.

There is also a second a scenario in which the makings are not returned.At least the deposit will not be returned to you.

What scenario is this?

First.You decided to cancel the bidding, but did not do it in time. In this case, the deposit will not be returned.

Second.You are the winner, but you have not signed the purchase and sale agreement. In this case, it turns out that you became the winner, you did not sign the contract, the deposit is not returned to you.

Third.You are the winner, you have signed the sales contract, but you have not paid the rest of the property. It turns out that the object has been purchased, but you have not fully redeemed it. It turns out that you yourself did not take and did not give to another. In this case, the deposit will not be returned to you.

You need to keep these things in mind. Always keep your finger on the pulse. If you change your mind, then refuse to bid in advance, and if you have not changed your mind, do everything on time.

What does on time mean?The purchase and sale agreement must be signed in a certain number of days, the full amount must also be paid for the object in a certain number of days. All these regulations and terms are described in the information on participation in the auction. Follow and do everything on time, then everything will be fine.

You will also be interested in:

Is it possible to pay a deposit for participation in bankruptcy auctions not from the current account of an individual entrepreneur, but from a personal bank card?

By virtue of paragraph 1 of Art. 380 of the Civil Code of the Russian Federation, a deposit is an amount of money issued by one of the contracting parties against payments due from it under the contract to the other party, as evidence of the conclusion of the contract and to ensure its execution.

According to paragraph 1 of Art. 381 of the Civil Code of the Russian Federation, upon termination of an obligation prior to the commencement of its performance by agreement of the parties or due to the impossibility of performance (Article 416), the deposit must be returned.

As follows from Art. 448 of the Civil Code of the Russian Federation, auctions and tenders can be open and closed. Any person can participate in an open auction and open tender. Only persons specially invited for this purpose participate in a closed auction and a closed competition.

The terms of the contract concluded based on the results of the auction are determined by the organizer of the auction and must be indicated in the notice of the auction.

The organizer of an open auction has the right to refuse to hold it, moreover, at any time, but no later than three days before the date of its holding, and from holding a tender - no later than thirty days before the holding of the competition. In case of refusal in violation of the specified terms, the organizer is obliged to compensate the participants for the actual damage they have suffered.

ATTENTION! The organizer of a closed auction or a closed tender is obliged to compensate the participants invited by him for real damage, regardless of the exact period after the notification was sent to the refusal to hold the auction.

In accordance with paragraph 5 of Art. 448 of the Civil Code of the Russian Federation, bidders make a deposit in the amount, on time and in the manner specified in the notice of bidding.

The deposit is subject to return in cases where:

the auction did not take place;
the person took part in the auction, but did not win it;
failure of the person to appear to participate in the auction.

When concluding an agreement with the person who won the auction, the amount of the deposit paid by him shall be counted towards the fulfillment of obligations under the concluded agreement.

Unless otherwise provided by law, the person who won the auction and the organizer of the auction sign on the day of the auction or competition bidding protocol, which has the force of an agreement (clause 6 of article 448 of the Civil Code of the Russian Federation).

Attention! The only case of refusal to return the deposit to the applicant:

The person who avoided signing the protocol is obliged to compensate the losses caused by this in the part exceeding the amount of the provided security. That is, the person who won the auction, if he avoids signing the protocol, loses the deposit made by him.

If, in accordance with the law, the conclusion of an agreement is possible only by holding an auction, if the organizer of the auction avoids signing the protocol, the winner of the auction has the right to apply to the court with a demand to compel the conclusion of an agreement, as well as to compensate for losses caused by evasion of its conclusion.

If, in accordance with the law, the conclusion of an agreement is possible only by holding an auction, the winner of the auction shall not have the right to assign rights and transfer the debt under the obligations arising from the agreement concluded at the auction. Obligations under such an agreement must be fulfilled by the winner of the auction personally, unless otherwise provided by law.

The terms of the contract concluded based on the results of the auction in the case when its conclusion is allowed only through the conduct of the auction can be changed by the parties, if this change does not affect the terms of the contract that were essential for determining the price at the auction, as well as in other cases established by law ...

See FAS of the Far Eastern District of August 25, 2008 N F03-A51 / 08-1 / 3396 in case N A51-13180 / 200714-471 / 18

Useful template:

(statement of claim)
(statement of claim)

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Resolution of the Arbitration Court of the Central District of September 30, 2015 N F10-3419 / 15 in case N A08-9592 / 2014

The operative part of the resolution was announced on September 30, 2015.

The decree was issued in full on 09/30/2015.

The Arbitration Court of the Central District, composed of:

presiding	Sorokina I.V.
	Leonova L.V.
	Narusova M.M.
with participation in the court session:
"Agrotechnology"	A.A. Zhuikov - representative (dov. N 60/01 from 21.08.2013 to 20.08.2016)
from the defendant Arbitration manager Buka Alexander Viktorovich from third parties NP SOPAU "Alliance of Managers" Limited liability companies "Insurance community" Help " Closed Joint Stock Company "GUTA- Insurance"	Buka A.V. (passport) Representative did not appear, duly notified Representative did not appear, duly notified

Having considered in open court the cassation appeal of the bankruptcy commissioner Buk Alexander Viktorovich, Belgorod, against the decision of the Arbitration Court of the Belgorod Region dated March 24, 2015 and the decision of the Nineteenth Arbitration Court of Appeal dated July 21, 2015 in case No. A08-9592 / 2014,

INSTALLED:

Limited Liability Company "Agrotechnology", Zherdevka, Zherdevsky District, Tambov Region (PSRN 1036846999298) filed a claim with the Arbitration Court of the Belgorod Region against the bankruptcy trustee Alexander Viktorovich Buka, Belgorod, for damages in the amount of 2,741,910.30 rubles.

By the decision of the Arbitration Court of the Belgorod Region of 03.24.2015 (judge Volovikova M.A.), upheld by the ruling of the Nineteenth Arbitration Court of Appeal dated 21.07.2015 (judges Potapova T.B., Bezborodov E.A., Vladimirova G.V.) the claims were satisfied in part, with the bankruptcy manager Buka A.The. in favor of OOO Agrotekhnologii, losses were recovered in the amount of 2,705,383.30 rubles, the rest of the claim was rejected.

Referring to the violation by the courts of first and appeal instances of substantive law, as well as the discrepancy between the conclusions of the courts and the actual circumstances of the case, the bankruptcy trustee Buka A.The. appealed to the district court with a cassation appeal, in which he asks to cancel the judicial acts adopted in the case, to issue a new judicial act on the refusal to satisfy the stated claims.

At the hearing the representative of the plaintiff, considering the arguments of the cassation appeal unfounded, asked to leave it unsatisfied, and the judicial acts - unchanged.

The defendant supported the arguments of the cassation appeal on the grounds set out in it.

Other persons participating in the case, notified of the time and place of consideration of the cassation appeal properly, did not send their representatives to the district court. The case was considered in the absence of the parties who did not appear in the manner prescribed by Article 284 of the Arbitration Procedure Code of the Russian Federation.

Having studied the materials of the case, evaluating the arguments of the cassation appeal and response to it, having heard the representative of the plaintiff and the defendant, the court of cassation finds no grounds for canceling or changing the contested judicial acts, due to the following circumstances.

As seen from the materials of the case and established by the courts of first and appeal instances, the decision of the Arbitration Court of the Tambov Region dated February 26, 2013 in case No. Buka A.V.

11/15/2013 in the newspaper "Kommersant" bankruptcy trustee Buka A.V. an announcement was published on the holding of tenders in the form of an auction for the sale of property of OOO Shuvaevo, the price of the lot was set in the amount of 27,053,833.00 rubles. without VAT, the deposit amount - 10%, which also indicated the procedure for submitting applications and documentation in accordance with the requirements of Order of the Ministry of Economic Development N 54 and Article 110 of the Federal Law "On Insolvency (Bankruptcy)" METS ", while it is reflected that the deposit must go to the trading account of the organizer of the auction no later than 16:00 Moscow time on December 23, 2013, and the term for the return of the deposit is 5 days from the end of the auction.

Based on the results of consideration of the specified information, LLC "Agrotechnologies" made a decision to participate in the auction, in connection with which the company paid a deposit in the amount of 2,705,383.30 rubles. to the settlement account of Shuvaevo LLC, which is confirmed by the payment order dated December 23, 2013 N 011246.

Meanwhile, Agrotekhnologii LLC did not take part in the auction, due to the lack of an opportunity to send an application within the prescribed period.

At the same time, the deposit paid by him for participation in the auction in the amount of 2 705 383, 30 rubles. was not returned to society.

By the ruling of the Arbitration Court of the Tambov Region of 10.02.2014 in case N A64-5056 / 2012, the bankruptcy proceedings against LLC Shuvaevo were completed.

By the decision of the Arbitration Court of the Tambov Region of 08.05.2014 in case N A64-481 / 2014 with OOO Shuvaevo represented by the bankruptcy trustee Buka A.The. in favor of OOO "Agrotekhnologii" the principal debt was recovered in the amount of 2,705,383, 30 rubles, court costs for the payment of state fees in the amount of 36,527 rubles.

On the basis of the writ of execution issued on August 26, 2014 by the Tambov Region Arbitration Court, by the order of the bailiff-executor of the Znamensky ROSP of the FSSP for the Tambov Region dated September 16, 2014, enforcement proceedings were initiated against Shuvaevo LLC.

At the same time, on the basis of the arbitration court's ruling on the completion of bankruptcy proceedings on October 23, 2014, an entry was made in the Unified State Register of Legal Entities on the liquidation of Shuvaevo LLC.

By the decree of the bailiff-executor of the Znamensky ROSP of the Federal Bailiff Service for the Tambov Region dated 10/27/2014, the above decision to initiate enforcement proceedings was canceled, the writ of execution was returned to Agrotechnology LLC.

Referring to the fact that the bankruptcy trustee A.V. Buka, as the organizer of the auction, did not unlawfully return to Agrotekhnologii LLC the amount of the deposit in the amount of 2,705,383.30 rubles, and considering this amount, as well as the amount of the paid state duty in connection with the presentation in court of a claim for the return of the deposit in the amount of 36 527 RUB. as losses caused to the company by the illegal actions of the bankruptcy trustee A.V. Buka, the plaintiff applied to the arbitration court with this claim.

In the opinion of the cassation instance, in partly satisfying the stated claims, the courts of first and appeal instances reasonably proceeded from the following.

In accordance with clause 4 of Article 20.4 of the Federal Law "On Insolvency (Bankruptcy)", the insolvency administrator is obliged to compensate the debtor, creditors and other persons for losses incurred as a result of non-fulfillment or improper performance by the insolvency administrator of the obligations imposed on him in a bankruptcy case, the fact the infliction of which is established by a court decision that has entered into legal force.

Clause 48 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 12/15/2004 N 29 "On some issues of the practice of applying the Federal Law" On Insolvency (Bankruptcy) "explains that creditors and other persons have the right to file a claim with the bankruptcy commissioner if their illegal actions have caused them losses.

According to the materials of the case, in the announcement of the auction in the form of an auction for the sale of the property of Shuvaevo LLC, the term for the return of the deposit is indicated - 5 days from the end of the auction.

By virtue of clause 4 of article 448 of the Civil Code of the Russian Federation, if the auction did not take place, the deposit is refundable. The deposit is also returned to persons who participated in the auction, but did not win it.

Clause 15 of Article 110 of the Federal Law "On Insolvency (Bankruptcy)" stipulates that the amounts of the deposits made by the applicants are returned to all applicants, except for the winner of the auction, within five working days from the date of signing the protocol on the results of the auction.

Consequently, the deposit is a means of securing the conclusion of an agreement with the person who won the auction, in connection with which the amounts of the deposits received during the auction are not subject to inclusion in the bankruptcy estate and cannot be used for settlements with creditors.

The obligation to return the deposit is imposed by law on the liquidator as the organizer of the auction. Failure to fulfill this obligation and withholding the amount of the deposit by the bankruptcy commissioner is unlawful and violates the rights of the person who made the deposit and is not the winner of the auction. The return of the deposit is carried out in a special procedure established by Federal law"On insolvency (bankruptcy)", due to the security nature of this payment, and not in the general order of settlements with creditors.

However, evidence of the return of LLC "Agrotekhnologii" paid deposit for participation in the auction in the amount of 2 705 383, 30 rubles. in the materials of the case is not available.

From the bankruptcy commissioner's report on the use of the debtor's funds dated 01/27/2014, it follows that the funds in the amount of 2 705, 38 thousand rubles. were credited to the debtor's current account - 12/23/2013.

The decision of the Arbitration Court of the Tambov Region of 08.05.2014 on case N A64-481 / 2014, which has come into legal force when considering this dispute, with OOO Shuvaevo represented by the bankruptcy trustee Buka A.The. in favor of Agrotechnologii LLC the principal debt was recovered in the amount of 2,705,383.30 rubles, court costs for the payment of the state fee in the amount of 36,527 rubles, while the court established that Agrotekhnologii LLC transferred to the settlement account of Shuvaevo LLC "the deposit specified in the notice of the auction in the amount of 2 705 383, 30 rubles. according to the details specified in the letter of 12/18/2013 N 37, as evidenced by the payment order of 12/23/2013 N 011246, statement of transactions on the personal account of 12/24/2013 for 12/23/2013.

Having paid the deposit for participation in the auction, the plaintiff accepted the deposit agreement posted by the defendant on the electronic platform, in addition, before the actual payment of the deposit, the plaintiff signed the said agreement for his part.

Thus, the above decision confirmed that the funds in the amount of 2 705 383, 30 rubles., Transferred to the settlement account of LLC "Shuvaevo", are a deposit for participation in the auction, in accordance with the requirements specified by the bankruptcy trustee Buka A.The. in the message about the bidding.

According to the case file before the completion of the bankruptcy proceedings, the bankruptcy trustee Buka A.The. did not take action to transfer funds to be returned to Agrotechnology LLC, while the defendant had no grounds for withholding the disputed amount.

At the same time, the courts correctly noted that the plaintiff's failure to submit an application for participation in the auction does not release the bankruptcy commissioner from the obligation to return the received deposit.

Since it follows from the payment order dated December 23, 2013 N 011246 that the money was transferred by the plaintiff as a deposit according to the announcement of the auction, the courts of both instances correctly indicating that the defendant had a direct obligation to return the amount received in accordance with paragraph 15 of Art. .110 of the Law "On Insolvency (Bankruptcy)", came to the correct conclusion that the liquidator's repayment of the claims of creditors included in the register of claims of the debtor's creditors and current debt if there are grounds for the return of funds in the amount of 2,705,383.30 rubles ., transferred to the debtor's current account by a payment order dated December 23, 2013 N 011246, is unreasonable.

Under such circumstances, given that the amount of the deposit was transferred to the settlement account of LLC "Shuvaevo", which is currently not a valid legal entity, cash in the amount of 2 705 383, 30 rubles. The plaintiff was not returned, based on the presence in the case file of evidence confirming the fact of the unlawful and unfair behavior of the defendant, the presence of a causal link between the behavior of the inflictor and the losses incurred, the courts of first and appeal instances came to a legitimate conclusion about the partial satisfaction of the stated claims.

At the same time, the courts correctly pointed out that there were no grounds for satisfying the claim in terms of recovering the amount of damages in the amount of 36,527 rubles. (state duty in case N A64-481 / 2014), since in this case the plaintiff exercised his right to judicial protection by filing a statement of claim against LLC Shuvaevo.

The arguments of the clerk are to be rejected, since they were known to the arbitration court of the appellate instance and they were given a proper legal assessment, taking into account the evidence presented and evaluated in the aggregate in the case.

In such circumstances, the court of cassation considers that the conclusions of the courts of first and appeal instances correspond to the factual circumstances of the case and are based on the correct application of the norms of substantive and procedural law, and therefore there are no grounds for canceling judicial acts.

Guided by clause 1 of part 1 of article 287, article 289 of the Arbitration Procedure Code of the Russian Federation, the court

DECIDED:

The decision of the Arbitration Court of the Belgorod Region dated March 24, 2015 and the resolution of the Nineteenth Arbitration Court of Appeal dated July 21, 2015 in case No.

The decision comes into legal force from the date of its adoption and can be appealed within two months to the Judicial Collegium of the Supreme Court of the Russian Federation in the manner prescribed by Article 291.1 of the APC RF.

L.V. Leonova
MM. Narusov

A deposit is a form of advance payment used in situations when the conclusion of the main transaction is still impossible for one reason or another. The agreement concluded by the parties obliges subsequently to fulfill the main contract concerning the sale of property or the provision of services.

IMPORTANT

The deposit is always expressed in monetary form, and its transfer is a way of guarantee that protects the participants from non-fulfillment of their obligations by the counter-agent.

What is a deposit?

The legal concept of this type of money transfer is formulated in the Civil Code of the Russian Federation. Article 380 specifies that a deposit is an amount of money transferred by one party to the other as a preliminary contribution from the full amount of payment due by written agreement.

Attention

The contingency payment is a reciprocal way of obligations for the fulfillment of a full-fledged contract between the parties.

The transfer of money is always accompanied by the conclusion of a written agreement, which indicates the form (deposit), parties, subject and amount of the transferred amount of money. Notarization of the document is not required, however, the concept of a deposit must be indicated in its title and in the text, otherwise it will be considered that the parties have entered into an advance payment agreement, which entails other obligations.

For your information

Oral agreements or non-compliance with legal requirements in writing are not recognized as a deposit, and the contribution itself is likely to be recognized as an advance.

An alternative to a written agreement is a receipt for money, which is written from the person who received the payment. The receipt also indicates the parties, the subject of the obligation and the amount of the contribution. The receipt must indicate that the financial contribution is a deposit.

Differences from advance and pledge

The legal concept of an advance is not used in Russian legislation, however, in practical terms, advance and deposit are close but not identical terms.

An advance payment is also a prepayment before the transfer of property, the provision of services or the performance of work. However, it is not a form of securing obligations and can always be returned or reclaimed without any consequences for the parties. Making an advance payment does not oblige the parties to complete the transaction.

A pledge is a form of securing obligations under a contract. However, it does not apply to the advance payment and is drawn up in a separate agreement. If the contribution is expressed in monetary terms and cannot exceed the principal amount, then the collateral is usually property, the value of which is equal to or greater than the value of the subject of the contract.

Additional Information

Usually, a pledge agreement is concluded as security for a loan agreement, for example, for a mortgage.

Thus, an advance payment is a prepayment that does not ensure the fulfillment of the contract, and a pledge is a form of securing obligations, which is not a down payment.

Civil Code of the Russian Federation on the return of the deposit

The return is governed by Art. 381 of the Civil Code of the Russian Federation "Consequences of termination and failure to fulfill an obligation secured by a deposit." According to the article, the refund of payment is carried out as follows:

if the contract is terminated through the fault of the party that made the deposit, then it remains with the counter-agent;
if the party that accepted the payment is the culprit, then it undertakes to return the contribution in double size;
if the agreement is terminated by agreement of the parties or due to "force majeure", then the amount is refunded in a single amount.

When is the deposit returned?

The deposit can be returned to the person who transferred it in two cases:

the transaction was thwarted through the fault of the person who received the cash tranche;
the breakdown of the deal was committed for reasons beyond the control of both parties.

In the latter case, the concept of force majeure is applied, due to which the parties could not fulfill their obligations. The so-called "force majeure" does not depend on the will of the participants and is not a manifestation of their intentions. Such a circumstance, for example, is the destruction of a dwelling as a result of a natural disaster. If an advance payment has been made for the apartment, then it is transferred back to the buyer in a single amount.

For your information

Also, the money should be returned to the person who made the payment in situations where the opposite party voluntarily refuses its obligations prescribed in the text, or changes the terms of the agreement. For example, by raising the price of an apartment, the seller violates the terms of the contract, which allows the buyer to terminate the preliminary contract. Since in this situation the refusal was made through the fault of the contractor or the seller, he is obliged to return the financial security in double the amount.

When is it not returned?

The down payment is not returned to the buyer / customer in situations where he waives his obligations specified in the text of the agreement. In such circumstances, the buyer / customer is the culprit for the breakdown of the transaction / contract. Since the deposit payment is a form of securing obligations under a written agreement, all transferred money remains with the counter-agent (seller / executor).

Refund of the deposit by receipt

A receipt for receipt of funds is one of the options for issuing an advance payment. The text must indicate that the money is transferred as a deposit for the execution of any agreement. The document must contain the following details:

passport details of both parties;
registration address;
the item for which the money is transferred (car, real estate, etc.);
the exact cost of the item;
the exact size of the transferred funds (in numerical and letter terms);
terms of conclusion and execution of intentions;
signatures of counter-agents.

Attention

Subject to the legal form of drawing up and signing a receipt, it is recognized as a full contract and entails full legal responsibility of the parties in court. It is not necessary to indicate the penalties of the parties in the text, since the concept of "deposit" itself already provides for those for all participants.

Under contract

When the parties sign the deposit agreement, it has the form of a preliminary agreement, which guarantees the conclusion of the main agreement (alienation of real estate, purchase and sale of a vehicle, etc.). To fully protect themselves, the parties must correctly draw up the text and indicate:

name of the document (deposit agreement);
exact passport details of counter-agents;
subject of the contract;
legal action with the subject (sale and purchase, rent, performance of services, etc.);
responsibility of the parties;
conditions for the return of the deposit;
signatures with decryption.

Additional Information

Since the written contract is an extended form, the parties can indicate special conditions for the return of the deposit or indicate that the money must be returned on the grounds provided for by law. The conclusion of the agreement does not prevent the parties from specifying special conditions: fines for non-performance or forfeits.

Actions in case of refusal to return the deposit

In the event of the refusal of the opposite party to return the deposit, the participant who contributed the funds has the right to demand their return exclusively in court. Contacting the police or other authorities will most likely not bring the desired result. Cases of financial disputes between individuals are considered by courts of general jurisdiction. You can only file a claim after the date specified in the agreement or receipt.

For your information

After filing a lawsuit, the court will consider the case and issue a ruling. If the judge finds that the breakdown of the agreement was due to the fault of the person who received the preliminary payment or due to force majeure obstacles, then most likely, a decision will be made to return the money. If the court finds that the transaction was thwarted through the fault of the participant who transferred the funds, then the deposit will remain with the opposite party.

The deposit is refunded in double size

The refund of the doubled amount is provided in cases where the party that received the contribution as financial security is the culprit for the failure of the transaction. In such a situation, the participant who made the down payment has the right to demand the return of the entire amount of the down payment in double amount. This measure is applied due to the fact that when signing an agreement, both parties must risk the loss of funds equally.

Deposit when buying an apartment: is it returned or not?

The deposit transferred as a prepayment in the course of the real estate alienation transaction does not differ from the contributions securing other contracts. If the parties conclude a deposit agreement or the money is transferred by receipt indicating the form of payment, then in case of the buyer's refusal, the money remains with the seller.

The seller's refusal to fulfill the contract obliges him to return the money in double amount. If the transaction fails due to force majeure (for example, the seller has died), then only the transferred amount is returned.

Is the deposit returned to the winner and the loser of the auction?

The conduct of auctions and competitive bidding is often accompanied by a preliminary deposit of funds as security for the intent of the auction participant. According to Art. 448 of the Civil Code of the Russian Federation, the deposit is returned to the participant:

in case of participation, but defeat in the auction;
in case of cancellation of the auction.

For your information

Payment refund period - 20 calendar days from the date of the auction or cancellation.

The money deposited by the winner will be counted as a down payment on the subject of the auction. If the winner refuses to pay the full cost, then the deposit remains with the organizers.

Nuances

The parties may refuse to fulfill the terms of the deposit agreement if the counter-agent has changed the criteria for the sale and purchase. If the terms of the transaction, the circumstances are violated (the price has been increased), the subject of the agreement has been changed (for example, the car being sold has an accident), then either party may demand termination of the agreement and payment of its obligations by the counter-agent.

Attention

In order to guarantee a refund, it is necessary to prove the guilt of the opposite party in disrupting the transaction. For example, if the seller increased the value of the property or did not show up to sign the documents, then it is advisable to take care of the evidence of the seller's guilt - take a certificate from the registration department about not concluding a transaction, attract witnesses, etc.