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

Art. 181 of the Civil Code of the Russian Federation (as amended) establishes a limitation period for filing claims on the application of the consequences of recognition of invalidity of void and disputable transactions established by law. The norm also determines the moment from which the calculation of the stipulated periods begins. Consider further Art. 181 of the Civil Code of the Russian Federation with comments of 2015

Terms for filing claims for the invalidity of void transactions

The period for claims under such agreements is 3 years. The calculation of the specified period begins from the date of execution of the void agreement. A lawsuit may be brought by an entity not participating in a disputed legal relationship. For him, the duration may not exceed 10 years. The calculation of the period begins on the day when the specified person found out or should have become aware of the execution of the transaction.

P. 2, Art. 181 of the Civil Code

The statute of limitations for claims for the invalidity of contested transactions and the application of the relevant consequences is 1 year. The calculation of the period is carried out from the date of termination of threats or violence, under the action of which a corresponding agreement was signed. The beginning of the term may also coincide with the date when the plaintiff became aware of or should have become aware of other circumstances that would allow him to file a claim.

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

The norm under consideration describes the cases of applying statutory periods to disputable and void transactions. For the first, the periods provided for in previous provisions have remained the same. In the current statement of Art. 181 of the Civil Code of the Russian Federation, the statute of limitations for void transactions was reduced to 3 years. From 01.01.1995 (from the date of the introduction of the first part of the Code) to 07.26.2005 (until the entry into force of the Federal Law No. 109), this period was 10 years. This provision seemed quite justified, in particular with respect to privatization transactions that were completed before the adoption of the relevant standards.

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 an object can change several times, and today, as a rule, the current owner is considered to be in good faith. 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 void transactions is sufficient to protect a person's interests.

Relevance of the issue

Comments on Art. 181 of the Civil Code of the Russian Federation reflect the views of various experts. However, most of them express a general point of view, which boils down to the following. A long prescriptive period previously made it difficult to resolve cases due to the high risk of loss of evidence, the increased possibility of conflicting reflection of circumstances, by persons involved in a dispute, and so on. These and other factors complicated the process of making an objective decision, which, in turn, formed the prerequisites for making erroneous decisions with corresponding consequences. Establishing reasonable timelines 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, which inevitably arises during long prescription periods.

Scope of Responsibilities and Rights

It is always specified when transactions are made by the participants in the turnover. With a detailed regulation of duties and rights, subjects resolve conflicts in a short time. The absence of reasonable limits to protect interests entailed negative consequences for 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. Installed in Art. 181 of the Civil Code of the Russian Federation ensures the protection of parties to civil circulation from the presentation of unreasonable claims by them, prompting along with this to take timely care of the realization 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 prescriptive period

In the first paragraph of Art. 181 of the Civil Code of the Russian Federation, it is determined that the period is calculated from the day on which the implementation of the terms of the transaction began, but not by the date on which the subject found out or should have known about the violation of his rights. In Art. 166 p. 1 it is established that a void transaction will be deemed invalid regardless of whether it was recognized by the court or not. When satisfying the requirements, the motivation part of the decision must contain a corresponding instruction. A void transaction, as you know, does not give rise to legal consequences. In this regard, its invalidity can be recognized only from the moment of commission. To start calculating the statute of limitations, it is enough for at least one party to start its execution.

Third party involvement

A void transaction may infringe upon the interests of not only parties who knew about the fulfillment of its conditions. In particular, in the housing sector, situations often occurred when owners of apartments in residential buildings, not acting as parties to the agreements, could not protect the rights to objects recognized as common property. This, for example, is about attics, basements and other rooms. Local authorities often transfer these properties to property or lease them to third parties. To solve these kinds of problems, the legislation specified the rules by which terms are calculated for certain categories of void and contested transactions.

So, in accordance with paragraph 42 of the plenary resolution of the Supreme Arbitration Court of Ukraine No. 29 of December 15, 2004, it was determined that the claim for invalidating the contracts on the grounds provided for in paragraphs 2 and 3 of Art. 103 Federal Law "On Bankruptcy", may be directed by the creditor or external manager during the year. It also sets the features of calculating the term. It begins from the moment when the transaction became or should have become known to the original external manager (if he acts as the applicant), and not to the debtor. If you miss the deadline in this case, it cannot be restored.

Features of invalidation

Satisfaction of the relevant requirements presented by the external manager is allowed if the creditor incurred or could incur losses in the execution of the transaction in respect of which the lawsuit is filed. An agreement drawn up with an individual entity after the court accepts an application for the recognition of the bankruptcy of the debtor or within six months preceding this moment, can be classified as invalid. In this case, the following condition must be fulfilled. The transaction should provide for the preferential satisfaction of claims of some creditors to others.

The specificity of Ch. 9.1 Civil Code

In Art. 181.1 of the Civil Code of the Russian Federation established the basic provisions. In accordance with them, all the rules that are defined in this chapter are subject to application, unless otherwise provided by law or by the procedure determined by the rules. In the process of activity 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 legal consequences for the occurrence of which they are directed, for all entities that had the right to participate in it, and other persons, if this proceeds from the essence of the relationship or follows from the law.

Decision making at meetings

Features of the procedure are determined in Art. 181.2 of the Civil Code of the Russian Federation. The corresponding act is considered approved if a majority of the votes of the participants has been cast. At the same time, at least 50% of the total number of members of the company must be present at the meeting. Decision making by absentee voting is allowed. When several issues are included in the agenda, decisions on them are approved separately. A different procedure may be established by the participants of the company if everyone voted unanimously for its approval. The fact of decision making is recorded by the protocol. The document is signed by the secretary and the chairman of the meeting. The protocol shall indicate:

1. Place, time and date of the meeting.
2. Information about the subjects participating in the event.
3. The results of the voting held at the meeting. They are given separately for each item included in the agenda.
4. Data on entities authorized to vote counting.
5. Information about the participants who opposed the adoption of the discussed decision and demanded to enter the relevant information into the protocol.

Challengeability of decisions

It is mentioned in art. 181.4 of the Civil Code of the Russian Federation. In accordance with the norm, a decision approved at a meeting may be declared invalid by a court if violations of legislative requirements are identified. These include:

1. Non-observance of the procedure for preparing, convening, holding an event, if this had an impact on the will of its participants.
2. Lack of authority on behalf of a member of the meeting.
3. Assuming equal rights for the participants in the event.
4. Violation of the rules for registration of the protocol.

The decision made at the meeting cannot be invalidated on the grounds of non-compliance with the procedure for its approval, if it is confirmed by the decision of the next event, made according to the established rules, before the end of the proceedings.

Additionally

The decision of the meeting may be challenged by a member of the company who did not participate in it or who voted “against”. The right to appeal the act belongs to the subject who abstained or spoke in favor of the decision, if during the approval process his expression of will was violated. The decision of the meeting cannot be invalidated if the vote of the subject whose interests are affected by it could not influence its adoption, and it itself does not entail significant negative consequences for it. It is possible to challenge the decision within six months. The calculation of the term starts from the date when the subject whose rights were infringed should have known or learned about it. In this case, the claim must be filed no later than 2 years from the moment when the information on the decision became publicly available to the participants of this company.

Conclusion

An entity who disputes a decision made by the meeting is obliged to notify in advance the company's participants in writing of their intentions to appeal to the court. In addition, he must provide them with other relevant information. Those participants who have not joined the lawsuit in the manner prescribed by law and who have other grounds for contesting can no longer appeal 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 instance considers valid. The invalidity of the contested decision, recognized by the court, shall enter into force upon adoption of the relevant determination.