Modern Problems of Void Transactions in the Civil Law of the Russian Federation

Kuznetsova Almira Raisovna Lawyer, St. Petersburg Bar Association "Triumph" 191186, Russia, Saint Petersburg, Malaya Morskaya str., 11 premises. 188-1, of. 331 advokat.kuznetsowa@gmail.com Other publications by this author

Relevance. At the present stage, the problems of void transactions are one of the most relevant in Russian civil law, both in a scientific and theoretical context and in terms of practical application.

Special attention to the institution of void transactions and to current problems in this legal field is confirmed at all stages of the genesis of the institution of civil law transactions, starting from the historical period of ancient Roman jurisprudence. Despite the fact that during the designated period there were no definitions of the legal categories "transaction", "invalid transaction", and the normative classification of invalid transactions into void and disputed, the main part of the legal structures, in essence corresponding to an insignificant transaction in the modern sense, was realized as committed against the norms of current law ("in circumvention of the law"). Initially, in the law of Ancient Rome, transactions that did not receive external expression were recognized as non-existent (vicious) ^[1]. and later - transactions with serious flaws in the content that do not correlate with the rule of law ^{[2, p.71]} and indicate both the lack of correlation of the content of the transaction with legal regulations, the true will of the parties, and the expected legal consequences ^{[3, p.291]}.

Thus, the ancient Roman politician of the period of the late Roman Republic, K. Pedius (before 110 — after 90 BC) argued: not any transaction can be recognized as such (with the threat of non-recognition of the existence of the transaction as a whole), but only one in which all claims are respected, including with regard to the expression of the true will of all its subjects, formed when at the same time, without any external, extraneous influence (D.2.14.1.3). Upon stating the fact of invalidity, the entire system of negative consequences was canceled, i.e. the legal mechanism of restitution was used. At the same time, the following legal facts also belonged to the grounds for the allocation of these transactions in the designated historical period of the development of the legal thought of Ancient Rome: the statement of the transaction, which, firstly, does not directly fall under the ban of the legislator, however, determines the achievement of a legal outcome, which is "opposed by the current law"; and, secondly, It was committed with the actual intention of the parties to a civil law transaction to achieve such a basic goal, which is in contradiction with the current law ^{[4, p.444]}.

In the future, the progressive ideas of ancient Roman jurisprudence on insignificant (in essence) transactions, having been developed in connection with the special consequences and other problems of these transactions throughout the civilized world, influenced legal regulation and its improvement in relation to this type of invalid transactions in Russian law.

Despite the attention of the legislator to the problems of this type of invalid transactions, to the improvement of civil law norms in the designated legal sphere, it seems possible to recognize that the most common requirements to the court for the recognition of transactions as invalid include requirements specifically regarding nullity, while the results of consideration of such cases indicate a lack of uniformity. It seems that a significant part of the problems of insignificant transactions is caused not only by the imperfection of civil law standards, contradictions in the scientific community, but also by problems caused by the lack of correlation between the positions of the legislator and the highest judicial instances of Russia, which allows us to state the insufficiency of resolving contradictions in the field under study ^{[5, p.62]}.

Discussion. In Russia, the Civil Code of the Russian Federation identifies void transactions simultaneously with the disputed ones (Article 166), while the named differentiation of invalid transactions, their essence, proposed by V. S. Em ^{[6, p.147]}, in connection with problems of law enforcement, were subject to adjustments in accordance with Federal Law No. 100 adopted in 2013-Federal Law ^[7]. Prior to these legislative adjustments, despite the legal position of the higher courts ^[8], law enforcement problems arose due to the lack of an actual possibility of filing claims to the court for recognition of the invalidity of the transaction, which was negligible, which was subjected to fair criticism in the scientific community.

In addition, by virtue of these amendments, the problem of ways to protect the relevant civil rights was solved by supplementing Article 12 of the Civil Code of the Russian Federation ("application of the consequences of invalidity of an insignificant transaction").

Meanwhile, according to the opinion of the Supreme Court of the Russian Federation, reflected in 2015 in paragraph 78 of Resolution No. 25 ^[9], this method of protecting rights in the field of civil law should be applied in a situation where there is no other way to ensure the protection of relevant civil rights at the legislative level. Without detracting from the importance of the legal positions of this highest court and taking into account their increasing role for law-making in the Russian Federation, which has been repeatedly emphasized ^[10-13], it should be noted: The Russian legal system traditionally refers to the continental legal system (family), in which judicial precedent is not recognized as a source of Russian law. In this regard, it should be recognized: the clear position of the legislator, reflected in Article 12 of the Civil Code of the Russian Federation regarding such a method of protecting civil rights as "the application of the consequences of the invalidity of an insignificant transaction", contradicts the legal position of the Supreme Court of the Russian Federation on the conditions of its practical application. It seems that, in order to eliminate additional problems in the field of nullity of the transaction, this conflict should be eliminated.

The problem of recognizing the nullity of a transaction, the subject of which is property, with respect to the disposal of which an imperative prohibition or restriction applies (Article 174.1 of the Civil Code of the Russian Federation), is also of scientific interest. Thus, in accordance with paragraph 2 of this civil law norm, a transaction made in violation of the relevant prohibition (restriction), which is established by the court or at the regulatory level in favor of both the creditor and another authorized person, does not interfere with the exercise of the civil rights of these entities, except in situations in which the acquirer of these material goods I did not have information about such a ban (restriction) and could not have such information, in principle.

The solution to this problem was not initially reflected in the Concept of the development of civil law norms ^[14], the analysis of the provisions of which allows us to note that there is an initial position that a transaction made in violation of any prohibition (restriction) on the disposal of property established by the court, as in other legal order, is void. It is seen that the exclusion from the first edition of the Concept of the stated provision is not fair: the current norms provide for provisions regarding unjustified priority on the part of the creditor (other authorized person), which in the process of concluding the transaction did not reflect concerns about ensuring the fulfillment of obligations, which in the future may contribute to the acquisition of the status of the pledgee by sending a petition to the court on the need to ensure the requirements for to the counterparty. Such a possibility is regulated by the novella on collateral (§ 3 of Chapter 23 of the Civil Code of the Russian Federation), as well as on the transfer of the creditor's powers to another person, on the transfer of debt (Chapter 24 of the Civil Code of the Russian Federation).

As a result, in order to level the problems of insignificant transactions by improving the Concept, the formation of existing norms and relevant judicial practice has occurred, contributing to the understanding of the following: the measures taken to ensure civil obligations (including the seizure of the debtor's property), in the presence of certain conditions, do not cause the necessary legal result, for example, with respect to the realization of the right to commit purchase and sale transactions by the debtor, when the buyer is a bona fide acquirer of property that is subject to seizure. In addition, the system of grounds indicating the termination of the legal relationship of the pledge (Part 2, paragraph 1, Article 352 of the Civil Code of the Russian Federation) indicates the acquisition of pledged property on a reimbursable basis by a person who does not have information about the true nature of material goods.

The insignificance of a part of the civil law transaction is also of interest. Since the domestic legislator carries out the legal regulation of the invalidity of a part of a civil transaction under Article 180 of the Civil Code of the Russian Federation in an extremely brief manner, problems arise with regard to the statement of a part of the transaction either as void or as disputed.

It should be noted that the invalidity of a transaction, as a result of the recognition of certain of its defects (in terms of content, form, subject composition, rules of reflection of the will), can have a direct impact on both the whole transaction and exclusively on its part (i.e. reflected both universally and specifically) ^{[15, p. 41]}. At the same time, as follows from the literal interpretation of Article 180 of the Civil Code of the Russian Federation, in such cases, the insignificance of the transaction in the part characterized by the corresponding "flaws" does not extend to other terms of the transaction (valid), i.e. the transaction in the rest is recognized as valid. However, as evidenced by law enforcement practice, the courts come to an unequivocal opinion: this fact does not create obstacles for the court to resolve the nullity of the transaction, in general ^[16].

Summarizing the position of the legislator, representatives of the scientific community, and the practice of law enforcement, we note: the legal facts, according to which, as an exception to the general rule of invalidation (void) part of the transaction (Article 180 of the Civil Code of the Russian Federation), the transaction should be declared void, in general, it is advisable to include the facts caused by: 1) the lack of the necessary level of civil legal personality for the subject of the transaction; 2) recognition as an insignificant part of the transaction, which is an essential condition; 3) statement as an insignificant part of the transaction, contrary to the fundamental principles in the field of law and order, as well as morality. The above rules are also applicable to transactions that 4) violate public interests, as well as 5) circumvent the law, 6) under the influence of deception, as well as threats, violent actions, adverse factual circumstances.

Characterizing some of these transactions, it seems necessary to emphasize: certain problems arise in law enforcement with respect to the invalidity (nullity) of a part of a transaction committed under the external influence of deception and violent acts, threats, and circumstances unfavorable to a person (Article 179 of the Civil Code of the Russian Federation). As determined by the legislator, this transaction is recognized as invalid (void) on the above grounds, taking into account the legal consequences of invalidity provided for in Article 167 of the Civil Code of the Russian Federation. The Supreme Court of the Russian Federation expressed the following legal position: such transactions are invalid, since they were committed with a defect of will ^[17].

In this regard, when identifying the condition of unfavorable circumstances for the party to the transaction that fall under the qualification under Article 179 of the Civil Code of the Russian Federation, the transaction should be recognized as void, in general, when considering such civil cases, it is necessary to take into account: due to the fact that the volitional nature of civil transactions is determined by both subjective and objective correlating factors When analyzing a transaction, it is advisable to attribute the will of an individual to subjective facts, and his will to objective ones. When making a transaction at the risk of its invalidity (nullity), the expression of will and will must correspond, correctly reflecting the internal intention. Meanwhile, until the absence of such a correspondence is revealed, it is necessary to take into account the presumption of such a correlation ^[18], which, like any presumption, is a common obligation for subjects of civil law ^{[19, p.64]}.

At the present stage, issues mediated by the invalidation of the part of the transaction provided for in Article 168 of the Civil Code of the Russian Federation (committed with a purpose that contradicts the current law and order, generally recognized moral values) remain problematic in judicial practice. Russian courts, ambiguously approaching the formation of decisions in such civil proceedings, as a general rule, recognize the need to pass a resolution on the nullity of such a transaction as a whole. At the same time, in order to establish the transaction as void, it is advisable for the courts to find out whether there is an illegal influence on public interest.

However, as practice shows, when considering such disputes in court, problems arise due to the absence of the concept of "public interest" at the legislative level, and, as a result, the complexity of qualifying such transactions.  In the Recommendations of the council established under the Federal Antimonopoly Service of the Ural District, it is noted: "... as public interests, courts need to understand the public interest in the legal plane related to stability, certainty, guarantee of protection of the interests of economically weaker entities in their relations with strong counterparties, the inadmissibility of violating prohibitions and circumvention of the law" ^[20].

It seems that the court's position regarding the nullity of transactions that violate the interests of a public nature should be aimed at clarifying both the nature and legal nature (essence) and the legal consequences of such transactions. Thus, when satisfying claims for recognition of such a transaction as void, the purpose of such recognition should be: 1) termination of a continuing offense that encroaches on certain public interests, 3) elimination of the legal consequences of the nullity of the transaction, which contradict the relevant regulations.

Taking into account the above, in connection with the gaps in the current legislation regarding the absence of the concept of "public interest" in relation to Article 169 of the Civil Code of the Russian Federation, in order to level the problems of the insignificance of transactions, the following wording of this norm is proposed: "1. A transaction made for a purpose deliberately contrary to the foundations of law and order or morality, violating the public interests of society (stability, guarantee of protection of rights and legitimate interests, inadmissibility of violation of prohibitions, restrictions, actions circumventing the law) is negligible and entails the consequences provided for in Article 167 of this Code. The court, in the cases specified in the law, has the right to collect into the income of the Russian Federation received under such a transaction by persons who acted intentionally, to apply other legal consequences provided for by law."

The analysis also indicates the need to specify in Article 180 of the Civil Code of the Russian Federation the legal category "part of the transaction" and the legal consequences of recognizing a part of the transaction as void, by forming the following wording: "The invalidity of a part of the transaction does not entail the invalidity of its other parts, if it can be assumed that the transaction would have been completed without including the invalid part of it, in addition to cases of recognition as void terms of the transaction: the absence of the party to the transaction of the necessary level of legal capacity and legal capacity to complete the transaction; being an essential condition; indicating a goal contrary to the foundations of law and order or morality. These transactions are generally considered void. These rules are subject to application to transactions that violate public interests; committed in circumvention of the law; under the influence of deception, violence, threat or adverse circumstances.".

Conclusion. Despite the improvement of the current civil law regulations, the massive nature of the recognition of transactions as void indicates significant problems, as void transactions in general, as well as parts of these transactions (in practical and scientific-theoretical contexts).  The above, as well as the lack of uniformity in the decisions taken in similar cases, are stated by the results of the consideration of such cases in Russian courts. It seems that a significant part of the identified and other urgent problems are caused by both imperfection of the norms of current legislation, contradictions in science, and difficulties caused by the lack of compliance in some cases with the positions of the legislator and the highest judicial instances of Russia.

Results. In order to improve legislation and law enforcement practice in relation to void transactions (parts of void transactions), eliminate certain existing problems, it is justified:

1) to bring into line Article 12 of the Civil Code of the Russian Federation and the position of the Supreme Court of the Russian Federation (Plenum No. 25 of 2015) in relation to such a method of protecting civil rights as "the application of the consequences of the invalidity of an insignificant transaction";

2) formulate Article 169 of the Civil Code of the Russian Federation in a new version, which reflects the concept of "public interest";

3) specify Article 180 of the Civil Code of the Russian Federation in terms of indicating the exclusion from the general rule of invalidation of the part of the transaction ("does not entail the invalidity of its other parts, if it can be assumed that the transaction would have been completed without including the invalid part of it");

4) specify in Article 180 of the Civil Code of the Russian Federation a list of legal facts – exceptions to the general rule of invalidation of a part of a transaction, according to which (exceptions) the transaction is recognized as void, as a whole.

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