The legislation allows for the commission of various transactions with property. One of the options for the alienation of values is gift. Moreover, to complete any transaction certain requirements must be met. Gratuitous transfer of property may be subject to restrictions provided for by norm 575 of the Civil Code of the Russian Federation.
Gift prohibition
The legislation does not allow the alienation of property free of charge:
- On behalf of minors and persons recognized by the court as legally incompetent, their representatives.
- Employees of medical, educational organizations, structures providing social services, institutions for orphans and children without parental care, citizens staying in them during treatment, education, maintenance, as well as their spouses and relatives.
- Persons who are in government posts at the federal or regional level, who hold municipal offices, are employees of the Central Bank, in connection with the performance of their duties.
- In the framework of relations between commercial enterprises.
An exception to these rules is provided for material assets considered as ordinary gifts, the value of which is less than 3 thousand rubles. In addition, the requirements provided for in the first part of rule 575 of the Civil Code of the Russian Federation for employees and officials do not apply to cases of gratuitous transfer of property in connection with protocol events, business trips and other similar events. Material assets, the value of which is more than 3 thousand rubles, accepted by these persons, become the property of the state. Property should be transferred to the authority in which the entity occupies its position.
Norm 575 of the Civil Code of the Russian Federation: comments
The category “ordinary gift” used in the legislation is characterized, first of all, by its value. It follows from this that collection products, luxury goods, and other expensive valuables do not fall under it. In addition, “customary” provides for the traditional conditions in which the thing is conveyed. Usually, this is a generally accepted reaction to an event - an anniversary, the successful end of an event, etc. When deciding the admissibility of transferring things within the framework of norm 575 of the Civil Code of the Russian Federation, its value will be the dominant characteristic. Moreover, even if the subject corresponds to other signs of "ordinary", but its price is more than 3 thousand rubles, subjects defined by law cannot accept it. It is worth paying attention to the fact that Article 575 of the Civil Code of the Russian Federation replaces the previously used amount of the value of the thing. In the previous version of the norm, it was indicated that its price cannot be more than 5 minimum wages. The amount is currently fixed.
Protecting the interests of the wards
It is provided, first of all, by the 37th norm of the Code. In the second paragraph, it is established that the guardian cannot make transactions related to alienation, including donating, exchanging property of his ward, leasing, pledging, gratuitous use, concluding other contracts that entail a reduction in the amount of material assets without obtaining consent authorized bodies. The rule established in Art. 575 of the Civil Code of the Russian Federation, it is necessary to apply taking into account this requirement. Accordingly, to transfer something of their own free will without obtaining permission from the guardianship and guardianship authorities can on behalf of the minor exclusively his parents. At the same time, norm 575 of the Civil Code of the Russian Federation does not allow gratuitous alienation of property of a ward recognized as legally incompetent in the amount of more than 3 thousand rubles, even if the consent of the said structure was obtained.
Restrictions for certain categories of workers
Federal Law No. 49 clarifies the list of organizations whose employees cannot accept as a gift items that do not qualify as “ordinary”. The Codex norm under consideration refers to employees of social, educational, medical institutions, orphanages and children without parental care. The relevant provisions are intended to extend prohibitions to situations in which subjects do not hold the positions provided for in paragraph 3. In this case, an important nuance should be taken into account. Employees of organizations identified by subparagraph two may simultaneously act as municipal or civil servants. This, in turn, will entail additional restrictions for them, provided for by norm 575 of the Civil Code of the Russian Federation .
Rules for officials
According to some lawyers, in the interpretation of the regulations regarding employees in the norm 575 of the Civil Code of the Russian Federation there are unjustified extremes. In practice, sometimes the rules are considered as allowing accepting values regardless of the background, the main thing is that their value should not be higher than 3 thousand. At the same time, proposals are being put forward to prohibit accepting any gifts from third parties at all, including on the occasion of a birthday, a memorable event and etc. The position of international organizations fighting corruption, with which Russia cooperates in view of its obligations, is also quite specific. They believe that the presence of such a “loophole” in the legislation of the state provokes bribery veiled under gifts.
"Official Events"
The provision on “protocol” items, the cost of which is more than 3 thousand, made clear in the discussion. The text of the norm states that the prohibitions do not apply in situations related to “official events”. The relevant transactions cannot be qualified as void, and the actions of entities, respectively, as unlawful. In addition, a logical and textual interpretation of the provisions gives reason to believe that employees may retain gifts received as part of official events. Following this approach, it is impossible not to recognize the legitimacy of the transfer of ordinary items to third parties (colleagues, acquaintances, etc.) in connection with the memorable dates, if the meaning of such actions clearly implies that there is any relationship with the official duties of the host citizen. In any case, this will be true for things worth less than 3 thousand rubles.
Relations between commercial legal entities
In paragraph 4 of Art. 575 of the Civil Code of the Russian Federation established a restriction on the transfer and acceptance of things from one organization to another. It seems quite justified in market conditions. The fact is that the established order allows to prevent various financial frauds, abuses within the framework of the economic activities of entities. At the same time, in practice, one can admit the possibility of free transfer of material assets by entrepreneurs to non-profit structures, some citizens, categories of consumers, and in the form of gifts, and as the provision of preferential terms for payment of work, products, services, release from a number of duties, etc.
Nuances
Of particular interest has recently been the circulation of property rights. Failure to include in the agreement reservations on the transfer of property in the form of assignment of a claim, acceptance of a debt, forgiveness or release from obligations does not in all cases indicate the absence of a counter offer from another participant. Clarity in the situation brings 423 article of the Civil Code (paragraph 3). Relevant agreements may qualify as gift transactions only when the presumption of their retribution can be refuted. Far from any debt forgiveness or any other form of exemption from obligations can be attributed to such agreements. The main sign of donation is the person’s desire to create a property benefit for the recipient, which is not caused by a counter provision.