The reform of civil legislation over the past two years has received mixed reviews from the legal community. On the one hand, the Civil Code is supplemented with clauses and articles that are revolutionary from the point of view of legal relations. On the other hand, the changes have posed a difficult task for specialists to comprehend and adequately implement the legislator’s decisions in everyday practice. Mikhail Schwartz, managing partner of the law firm "Schwartz and Partners", spoke about key changes in the Civil Code of the Russian Federation and procedural legislation at a business seminar organized by the Kommersant Publishing House in St. Petersburg.

The specialist identified several trends that the legal community is experiencing. One of them is related to the liquidation of the Supreme Arbitration Court and the ensuing thoughts about what awaits the legal positions laid down by it. Another important area is changes to the Civil Code. Mikhail Schwartz also recalled that a reform of procedural legislation is coming. “It so happened that the changes in the Civil Code coincided with the liquidation of the arbitration court. And it is clear that we must approach the new provisions of the law taking into account old experience. But, understanding that since they are new, then perhaps some of them should be considered as abolishing those legal positions to which we are accustomed,” the lawyer noted.

Presumption of good faith

The first thing the lawyer drew the attention of his colleagues was the legal enshrinement of the principle of good faith in Article 1 of the Civil Code. “On the one hand, as is known, a state court does not have the right to interfere with the competence of the arbitration court and verify the correctness of its consideration of the case on the merits. On the other hand, if now we are talking about the fact that the principle of good faith is enshrined in Article 1, where we are talking about the fundamental principles of Russian law, then it is probably possible to raise the question of the possibility of challenging the decision of the arbitration court on the grounds that when it was made, such a fundamental principle as the principle of good faith was violated,” says Mikhail Shvarts.

Another interesting change in the Civil Code is associated with the concept of good faith. “We are all accustomed to the fact that conscientiousness and reasonableness are traditionally listed separated by commas: if you are not conscientious, then you are not reasonable, and vice versa,” the lawyer reminds. However, in Article 53.1, which came into force on September 1, 2014, on the liability of the general director of a legal entity for damage caused to this company, the legislator for the first time distinguished between these categories. Clause 5 states that the manager of a private company is liable for unconscionable conduct, and in public companies, for unconscionable and unreasonable conduct. This is important not so much for considering cases of the general director’s liability for harm caused to a legal entity (such disputes are atypical and rather exclusive). Through the distinction introduced by Article 53.1, one should take a fresh look at Article 10 of the Civil Code.

Mikhail Schwartz emphasized the difference between conscientiousness and reasonableness, pointing out that conscientiousness is subjective honesty, it is a person’s internal attitude towards his behavior. At the same time, being conscientious, a person can act unreasonably, since reasonableness is a standard of behavior, a set of legitimate expectations of counterparties.

Article 53.1 will add puzzles to the practice of law and in cases under the article “State registration of rights to property.” It follows from paragraph 6 of the article that in the event of disputes regarding a registered right, a person who knew or should have known about the unreliability of the State Register data does not have the right to refer to the relevant data. “The question arises: can the buyer limit himself to information from the register and not get acquainted with the title documents? Should he get acquainted with them? My subjective good faith is ensured by reading the extract from the Unified State Register. So if I rely only on the register data, am I conscientious, but am I reasonable? ?" - the speaker asks. According to the lawyer, the wording “the person knew or should have known” from paragraph 6 of Article 8.1 is a time bomb

A register of everything

Some provisions of the decision of the plenum of the Supreme Court N10/22 also raise questions. In particular, paragraph 52, which states that if the court recognizes a transaction as invalid, but does not apply the consequences of its invalidity, then the decision to recognize the transaction as invalid is not the basis for making changes to the register. There is an extract from the Unified State Register based on the transaction, and there is a court decision that declares this transaction invalid. But changes are not made to the register because restitution is denied. Thus, a legislative paradox arises - the plenum allows the preservation of a record for which there is no basis.

Error Codification

In general, according to the managing partner of the law office, the changes in the Civil Code generalize and codify what already existed in the legislation or was developed in practice. In most cases, these changes are justified, proven by many years of practice and are necessary.

However, in some cases, legislators also codified errors. This is what happened with Article 181, according to which claims to recognize a transaction as void began to be “stuck out,” that is, subject to limitation. Previously, the conclusion that insignificant transactions were being “squashed” followed from the resolution of Plenum 6/8. But in practice, experts ignored this point. A void transaction is void regardless of whether it is recognized as such by the court, and claims aimed at establishing the legal status cannot be subject to limitation.

But from a political and legal point of view, this is also wrong. For example, loan agreements include numerous commissions and additional fees. Even in the event of a global crisis, the borrower will no longer be able to challenge the transaction after three years of conscientious payments and will be forced to pay exorbitant interest for the remaining 15-25 years.

The injustice of this formulation became obvious to the Supreme Court itself. Explanations can be found in the Review of the Supreme Court's judicial practice on credit transactions. “The review says that even though resolution 6/8 says that the transaction is “suppressed” by its nullity, within the meaning of this clause it is still invalid no matter how much time has passed. Therefore, it should be written that the conditions are void in the reasoning part of the court decision ", - Mr. Schwartz gives an example of a previously existing practice. However, this clarification was given before changes were made to the Civil Code. And now the provision on the application of limitation for a void transaction is directly enshrined in law.

Misconceptions are motivated

Mikhail Schwartz calls a revolution what happened in Article 178 on the invalidity of a transaction made under the influence of a mistake. A clause appeared in it that gives the motives of the transaction causal significance. Firstly, this raises the issue of proving that the party knew about the motives for entering into the transaction. The correspondence between the parties prior to the conclusion of the transaction becomes important. Secondly, it is fundamentally important to distinguish between motives that are causal and which are not. Not all motives can serve as grounds for challenge.

Also controversial are the changes concerning the invalidity of transactions for the disposal of seized property - Article 174.1 of the Civil Code. Now it has been directly established that the transaction is valid, which is incorrect, since seizure is the abolition of the administrative power of the owner, and when concluding a transaction for the sale of seized property, the owner does not have the necessary administrative authority. In addition, the consequence of the alienation of the seized property is now the emergence of a right of pledge for the plaintiff. But, firstly, a pledge arises only if the acquirer of the thing is in bad faith, which means that once a bona fide acquirer is created, there will be nothing left of interim measures. Secondly, if the owner is dishonest, then before the plaintiff has a right of pledge, he needs to pledge this thing for another obligation. Then the pledge of the successful plaintiff will become subsequent, which will also make interim measures meaningless.

In addition, Article 204 related to the limitation period was discussed. Recently, it has been particularly interesting because in the sensational case with OJSC ANK Bashneft, when making a decision, the court rejected the defendant’s references to limitation “as contrary to the principles of justice.” According to the speaker, it is possible and necessary to reject the reference to limitation if signs of abuse of rights are identified in the defendant’s actions.

“An application for the application of a statute of limitations, like any other remedy, has conditions for its application, which must be established by the court. A statement of limitation is not an automatic basis for dismissing a claim; the court is obliged to identify the existence of conditions for its application and the circumstances under which it cannot be used. Otherwise, the decision will be unfair,” sums up Mikhail Shvarts.

Marina Kostyukevich

Challenges and paradoxes