"Real Estate and Investments. Legal Regulation", the journal

Issue 2-3 (3-4) 2000

Peculiarities of the Use of Real Estate Penalty in the Executive Production

Yarkov V.V., doctor of legal sciences, professor, head of the chair of civil process of the Ural Legal Academy

The penalty on the real property is regulated by the general rules of final process. At the same time here there is a series of features defined in legal performances of the real estate as of plant of the civil circulation.

According to article 130 CC the following refer to the real estate: the land lots, sites of a subsoil isolated aquatic plants and everything, that is strongly linked to ground, that is plants, which can not be removed without considerable damage to their assigning, including forest, perennial plants, buildings. The subjects of state registration - aerial and maritime vessels, inland vessels, spatial plants refer also to the real estate. The law can refer other assets to the real estate. According to article item 131 CC the property right and other real rights on the real estate, the limitations of these rights, their apparition, transition and cease are subject to state registration in the uniform state registry by bodies of justice.

As the real estate holds a special place both in life of the man, and in ensuring the conditions of enterprise activity of organizations, according to paragraph 3 of article 59 of the federal Act "On executive production" arrest and realization of the real property of an organization-debtor are realized in third turn. The given rule is unconditional, and its violation can result in declaration of invalidity of the arrest and tenders on the given real property. To prove it we can make an example from the practice of the Supreme Arbitration court of Russian Federation, which though concerns sharply the activity of bodies of tax police (which now do not possess the authorities on realization of asset), but stays completely urgent at realization of the real property within the framework of final process.

The decree of Presidium of the Supreme Arbitration court of Russian Federation dated January 19, 1999 6139/982 concerns the turn of claims on property. The presidium of the Supreme Arbitration court of Russian Federation has considered the protest of the vice-president of the Supreme Arbitration court of Russian Federation against the decision of the Chairman of the Supreme Arbitration court of the Sverdlovsk area dated 13.05.98 on the case 60-415/98-1 and the decree of Federal arbitration court of the Ural district dated 18.08.98 on the same case and has established the following.

The closed joint-stock company "Slobodo-Turinskii Agrospetsmontaj" has addressed the Arbitration court of the Sverdlovsk area with the claim to the Department of the federal service of tax police of the Sverdlovsk area, administration of the Slobodo-Turinskii district, Department of the state fire service of the State department for interior affairs of Sverdlovsk area (further referred to as DSFS SDIA of Sverdlovsk area) about declaration of invalidity of the results of tenders on selling of assets of closed joint-stock company "Slobodo-Turinskii "Agrospetsmontaj", conducted by the Committee on control of asset of the Slobodo-Turinskii district 10.03.98.

The claims are motivated by the fact that the tenders are conducted with violation of article 447-449 CC paragraph 16 of the Temporal provision on the order of the claim to property of organizations passed by the Decree of the President of Russian Federation dated 14.02.96 199, and also article 62 of the federal Act "On final process ". The decision dated 13.05.98 refused the claim, as the auction was conducted according to the demands of the local law. In a court of appeal the lawfulness and validity of the decision were not tested. The federal arbitration court of the Ural district by the decree dated 18.08.98 has left a solution without modification.

In the protest of the vice-president of the Supreme Arbitration court of Russian Federation it is suggested to cancel the named judicial acts, to direct the case on a new trial in connection with uncompleted consideration of all details of the claim. The presidium considers that the protest is subject to sufficing on the following reasons. As follows from materials of the case, Irbitskii inter-district department the Federal department on taxation has accepted the order dated 21.05.97 310 on execution of administrative arrest of the property of the closed joint-stock company "Slobodo -Turin "Agrospetsmontaj" for the sum of 355 394 914 roubles claiming the tax payments. The administrative arrest was effected on the following asset of the debtor: an office building, garage on 10 automobiles with the maintenance spaces, asphalt cover, i.e. plants of the real estate directly participating in the production process of the claimant. The indicated asset was sold on auction tenders on 10.03.98 of the fire department 241 DSFS SDIA of the Sverdlovsk area.

The order of claims on property is established by the Temporal provision on the order of claims on property of organizations adopted by the Decree of the President of Russian Federation dated 14.02.96 199 (further referred to as the Temporal provision). According to article 16 of the Temporal provision the sale of the real property of the debtor is realized according to civil, civil - processual and other local law of Russian Federation, and also Temporal provision.

Article 8 of the Temporal provision stipulates, that at the reference of the claim on the property of debtor the sale of this asset is made in order of priority, and subjects of the sale at third turn are plants of the real property, and also raw materials and materials, machine tools and equipment, other fixed assets directly involvement in production.

According to the paragraph 10 of the Temporal provision at the arrest by an entity or a body authorized to do that by the federal act, of an asset, owned by the debtor, of the third or fourth turn of sale the indicated entity or body in tree days period after the accomplishment of the arrest of property of the debtor files to the Federal department on incompetence (bankruptcy) at State committee of Russian Federation on control of the state-owned property the notification on the effected arrest of the property of debtor with the enclosure of information about composition and cost of arrested asset and also about the sum of demands of the claimer.

Thus, according to the indicated standard the claim on property referred to the third or fourth turn, can not be effected before the submitting of the notification on arrest of asset in the Federal department on incompetence (bankruptcy) and adoption by the latter of an appropriate decision concerning the debtor. In case of adoption by the above-stated department of a decision on bringing in arbitration court an action on the case on an incompetence (bankruptcy) of the debtor, final process and selling of claimed asset, are delayed till the consideration by the arbitration court of the case in essence. The same order is established by the federal Act "On final process ", acting during tendering. In the materials of a case there are no information about keeping to the above-stated order, therefore it is impossible to make conclusion about lawfulness of tendering on selling the real property. Besides being guided by article 52 of the federal Act "On final process ", the court should specify market cost of asset, sold on tenders, as materials of the case on the given problem contain contradictory information, provided by two companies: Middle Ural regional office of the Russian society of valuators and limited liability society "Ural valuation committee".

Taking this into account and being guided by article 187-189 APC, the Presidium of the Supreme Arbitration court of Russian Federation has canceled the decision of Sverdlovsk area dated 13.05.98 on the case 60-415/98-1 and decree of the Federal arbitration court of the Ural district dated 18.08.98 on the same case and has directed the case on a new trial to the Arbitration court of Sverdlovsk area.

It is obligatory at arrest of the real estate as an asset subject to special state registration to report to the appropriate authorized body about the arrest so that all operations with this asset were disabled. Therefore at arrest of the real estate it is obligatory to direct of a duplicate of the act about arrest of property to the establishment of justice on registration of the rights on the real property and transactions with it, if the arrest was not effected earlier by a decision of the court in a way of application of measures of the claim.

Otherwise, even at exemption of the document giving right, for example, on the property right on living space, the debtor has the right to receive the duplicate of the rightgiving document in local authorities (agreement of transmission of a flat in the property of citizens), from the notary (under the notarially certified agreements), in other bodies which were registering the property right, and, having registered it in bodies of state registrations of the rights on the real property and transactions with it to commit the agreement on its disposal.

According to article 62 of the federal Act "On final process" the sale of the real property are organized and conducted by specialized organizations having the right to effect operations with the real estate, with which the appropriate agreement is concluded. The specialized organizations according to the governmental order of Russian Federation dated April 23, 1999 459 are selected and contracts with them are concluded by Federal debt center at Government of Russian Federation.

According to article 17 of the federal Act "On licensing of particular aspects of activity" 3 the realtor activity is subject to obligatory licensing in the authorized state executive bodies. The specialized organizations conduct tenders under the application of the court executive with the indicating of the minimum initial price of asset on tenders. In the case that the penalty on the pledged real property is converted under the decree of the court, it should define an initial sale price of asset. At the reference of penalty on the real property under the notarial certified agreement of the pledger and pledgee (article 349 CC) the initial sale price is defined by the given agreement.

To the application for tendering should be enclosed:

1) Duplicate of the executive document;

2) Duplicate of the act of arrest of property made by the court executive;

3) Documents describing plant of the real estate;

4) Duplicate of the documents reconfirming the right of use of the land lot or the property right on it, in case of sale of a separate building.

Legally significant for tendering is the selection of the documents necessary for conducting of appropriate tenders. As the speech goes about the real estate, at comprehension of the documents describing plant of the real estate, it is necessary to mean the documents defining its legal and technical parts. It is possible thus to consult the federal Act "On state registration of the rights on the real property and transactions with it", where the list of the documents necessary for state registration of rights on the real property and transactions with it is defined. Though in executive production the tenders are conducted on the basis of the executive document, which is actually an executive sheet given by appropriate court but at the same time the tenders are conducted on the basis of other documents, which characterize plant of the real estate.

In particular, according to article 17 of the federal Act "On registration of the rights on the real property and transactions with it" as the rightestablishing documents are considered:

  • The acts issued by public authorities or local authorities within the framework of their competency and in the order, which is established by the local law acting in a place of issuing of such acts on the moment of their issuing;

  • The contracts and other agreements concerning the real property accomplished according to the local law, acting in the location of plants of the real property on the moment of committing of the agreement;

  • The acts (certificates) on privatization of uninhabited premises produced according to the local law, acting in a place of accomplishment of a privatization on the moment of its committing;

  • Decisions of the court entered into force;

  • The acts (certificates) on the rights on the real property produced by the authorized bodies of state authority in the order, established by the local law acting in a place of the issuing of such acts on the moment of their issuing;

  • Other acts of a transfer of ownership rights on the real property and transactions with it to the applicant from the former legal owner according to the local law acting in a place of transmission on the moment of its committing.

The obligatory enclosure to the documents necessary for state registration of the rights, are the plan of the land lot, site of a subsoil and (or) plan of plant of the real estate with the indicating of its cadastral number.

According to article 18 of the federal Act "On registration of the rights on the real property and transactions with it" the documents establishing presence, apparition, cease, transition, limitation (encumbrance) of the rights on the real property and presented on state registration of the rights, should meet the demands established by local law of Russian Federation, and to contain the information necessary for consequent state registration of the rights on the real property in the Uniform state registry of rights. The indicated documents should contain description of the real property and aspect of the registered right and in cases, established by the local law, should be notarially certified, sealed, should have suitable signatures of parties or of the officials defined by the local law.

The plan of the land lot should be certified by a body responsible for conducting of cadastral operations, and plans of other real property by an appropriate body of the registration of plants of the real property.

In case the operations on the cadastral registration of the land lot are absent or are not completed (there is no cadastral number, the boundaries are not fixed, the location of plants of the real estate and communications on a site is not defined), the state registration of the rights is realized at presence of the plan of a site constituted on the basis of data, available on the moment of state registration of the rights in a body of cadastral registration, including on the basis of the description of boundaries. Before the conferment of the cadastral number to plant of the real property the conventional number can be used, permitting to identify uniquely indicated plant. The specified boundaries and area of the land lot can be brought in to the Uniform state registry of the rights without repeated registration at presence of the consent of a legal owner (legal owners) of a site in a writing form.

Thus, the appropriate documents, which are made out for tendering, should, in our view, correspond to the demands of consequent state registration of rights on the real property and transactions with it and registration of the rights in the Uniform State registry of rights.

The sale of the real property should be made on public tenders conducted by organization, authorized by FDC and judicial authority, according to article 448 CC. The tenders are conducted in the shape of auctions or competition. The winner of tenders on auctions is the entity who has offered the highest price, and on competition an entity, which, has offered the best conditions - at a decision of a competitive commission assigned beforehand as the organizer of tenders. According the logic of the law for realization of asset by way of execution of the judicial act the tenders should be conducted only in open form of auctions, that eliminates any abuses.

If the law does not stipulate other, the announcement about the conducting of tender should be made not later that in thirty days before their start. According to the article 448 CC of Russian Federation the announcement should contain at least the information about time, place and form of the tender, their subject and order of conducting, including about registration of participants, definition of the winner and information about the initial price.

The participants of tender deposit the earnest money in amount, time and order, defined in the announcement on tendering. If the tender was not held, the earnest money has to be returned. The earnest money is returned also to the entities, which participated in tenders, but have not won them. At concluding a contract with the entity which has won tenders, the sum of the earnest money is considered as part of the under the concluded agreement. The winner of tenders and organizer of tenders sign at the day of tendering the protocol on results of tenders, which has the power of an agreement. The winner of tenders loses the earnest money if does not sign the protocol.

In paragraph 4 of article 54 of the federal Act "On final process" the rule is established that, if the asset (irrespective of its aspect) is not realized in a two months period, the claimer receives the right keep this asset. In the case the claimer refuses the asset it is returned to the debtor, and executive document to the claimer. Earlier the possibility to keep an asset was given to the claimer only if it was at impossible to sell an apartment house on tenders (article 404 CPC) or asset being a subject of the pledge contract (paragraph 4 of article 350 CC).

The indicated two-month period is calculated from the date of the asset arrest. Thus at the given phase the following operations on sale of the debtor's asset, should be undertaken: its transmission for trade, organization of tenders on the real estate.

Unfortunately, in the federal Act "On final process" is not indicated, at what price a claimer can keep the non-realized asset (except for the impossibility of realization of a subject of the deposit). And the size of a rating influences a degree of sufficing of demands of the claimer. Such rating should be effected in the order, foreseen by article 52 of the federal Act "On final process ", with engaging of the expert and with involvement of the claimer and the debtor. If the claimer and the debtor can not reach an agreement on the price of such asset kept by the claimer, its price should depend on the initial price of last tenders.

Besides in paragraph 4 of article 54 of the federal Act "On final process" the order of legal documentation of such operation, as keeping of asset by the debtor is not defined. In the civil local law there is no such foundation for transition of the property right and its registration by a new owner. It is possible to recommend to conclude according to the rules of article 350 CC the contract of purchase signed by representatives of specialized organization and the claimer.

Sometimes a practice is to take a formal note about transmission of assets of the debtor to the claimer in connection with impossibility of its realization. In this case such act, as document establishing the right, should contain all significant data, which are necessary for the agreements with particular aspect of asset with reference to the civil circulation. For example, the act of transmission of the real property should contain the actual and legal information, which is obligatory according to CC for the agreements with the real property and their consequent state registration in bodies on state registration of the rights on the real property and transactions with it. Besides the act should contain necessary legal information about what measures were undertaken to sell the arrested asset within two months given on these purposes.

If the claimer refuses to keep asset of the debtor which has not been sold at the execution of the executive document, the executive document is given back to the claimer (point 5 of paragraph 1 of article 26 of the federal Act "On final process "), that does not hinder with new presentation of the executive document to penalty.

According to paragraph 2 of article 237 CC the property right on asset, which is subject of the penalty under the liabilities of the owner, is lost by the owner from the moment of apparition of the property right on the withdrawn asset of an entity, which receives this asset. Therefore in this case as well keeping to the rules on state registration of transition of the property rights on the real property established by the local law for setting of the moment of transition of the property right from one entity to another is necessary.

According to article 449 CC tenders conducted with violation of rules, established by the law can be considered invalid under the claim of the interested person. The recognition of tenders invalid is followed by invalidity of the agreement concluded with the entity, which has won tenders. A series of problems of reviewing by arbitration courts of disputes about disputing of results of public tenders is clarified in articles 26 and 27 decrees of the full Commission of Supreme Arbitration court of Russian Federation 8 dated February 25, 1998 "On some problems of practice of the resolution of disputes connected with protection of property right and other real rights"

4. According to the stated decree the claim of the owner about reclamation of asset from the entity which has gained disputable asset as a result of public tenders, conducted in the order established for execution of the judicial acts and the acts of other bodies, indicated in article 1 of the federal Act "On final process ", is subject to sufficing in case the asset, sold from tenders, is lost by the owner or entity, to which the asset was transmitted by the owner, or is stolen from one or anther, or has left their possession by any other way besides their will, as according to article 302 CC in this case the owner has the right to claim an asset and from the innocent purchaser.

The public tenders conducted in the order, established for execution of the judicial acts and acts of other bodies indicated in article 1 of the federal Act "On final process ", can be declared invalid under the claim of the interested person in case of violation of rules of tendering established by the law. The claims on declaration of such tenders invalid are considered by rules established for declaration of the invalidity of voidable contracts. In case of declaration of tenders invalid the parties of executive production are return to the former state.

At effecting of penalty on living quarters owned on the basis of property right to the citizens, it is necessary to consider limitations established in article 1 of the Enumeration of aspects of asset of the citizens, which are not subject of penalty under the execution documents (Application 1 to CPC RSFSR). Here it is told, that the penalty under the execution documents can not be effected on an apartment house concerning persons, which primary occupation is agriculture, if the debtor and his family live there permanently, except for the cases, when the loan given by bank for the purpose of the house construction is claimed. It is necessary to consider that the Application 1 has not changed since the moment of adoption of CPC in 1964, therefore it is treated in practice widely, and in this connection it is practically impossible to move citizens from not only unique apartment house, but also flat, room, owned by the citizens on the property law.

Features of the effecting of penalty on the pledged real property

According to paragraph 1 of article 49 of the federal Act "On final process" pledged asset can be subject of penalty if the assets of the debtor are insufficient to satisfy completely the demands, claimed to him, which have been not provided with the deposit, with keeping to the rights of the pledgee, established by the civil local law of Russian Federation, and also rules, foreseen by the chapter V of the federal Act "On final process ".

The special regulating of the effecting of penalty on pledged asset is linked to the necessity of a guarantee of rights of the pledgee in executive production, and also keeping to the rights others claimers. Deposit is one of the main and most ancient ways of ensuring of execution of the liabilities

5. Order of the effecting of penalty on pledged asset in the federal Act "final process" is reflected extremely insufficiently, and in this connection it is necessary to be guided by rules of the paragraph 3 of the chapter 23 CC and Federal act "On the hypothecation (deposit of the real estate)". According to article 349 CC demands of the pledgee (creditor) are satisfied from cost of the pledged real property under the decree or notarially certified agreement of the pledger and pledgee, concluded after apparition of the reasons for claims on the deposit.

Therefore the role of the executive document, on the basis of which the penalty concerning the pledged real property can be effected, is played the execution sheet produced by court of the general jurisdiction or arbitration court. The order of court, though is issued by court of the general jurisdiction, can not represent a basis for the reference of penalty on the pledged real property for the following reasons. At first, the order of court is not a decision of court, as it is a result of a facilitated judicial procedure that does not meet the general rules of a trial, the result of which is a decision. Secondly, the order of court according to article 125-1 CPC is declared only to claim penalty money resources or reclaim the personal property from the debtor. Therefore the order of court basically can not be endured at the necessity of claims on the pledged real property.

The sufficing of demands of the pledgee at the expense of the pledged personal property happens also on the basis of the decree, if other order is not stipulated by the agreement of the pledger and pledgee. The deposit transmitted to the pledgee (the agreement of the pledge), can be subject of the penalty in the order established by the pledge contract, if the law does not establish other order. Thus, on conditions, defined in the mortgage contract of the personal property, the reference of penalty can be effected without the decree as well by the appropriate authorized party of the agreement.

The reference of penalty on the pledged real property can not be effected on the basis of other court orders as well, for example, notarially certified agreement on payment of the aliments, decrees of bodies of an administrative jurisdiction etc.

The realization (sale) of pledged asset, which is subject of penalty according to article 349 CC, is effected by the way of sale on public tenders in the order established by the processual local law, if the law does not establishes other order. The initial price of the pledged asset is defined by the decree in case of effecting the property claim judicially or by an agreement of the pledger and the pledgee in other cases.

The decree of Presidium of the Supreme Arbitration court of Russian Federation dated March 10, 1998 N 7773/976, issued in connection with a particular case, is interest in this connection. The commercial bank "Tarkhany" has addressed Arbitration court of the Penza area with the claim to an open joint-stock company "Paritet" at the matter of effecting the penalty on pledged asset and fixing of its initial sale price. The claim was satisfied by a decision dated August 19, 1997, as the demands are based on a contract about the deposit and local law. By the decree of a court of appeal dated October 1, 1997 the decision was left without modification. The federal arbitration court of a Povoljskii district by the decree dated November 25, 1997 has canceled the named judicial acts and has ceased the execution on case, as the reference of the claim on property is effected at a phase of execution of a decision on standards of the processual local law.

In the protest of the vice-president of the Supreme Arbitration court of Russian Federation it was suggested to cancel the decree of the court of cassation, having left in force the decree of the first instance and decree of a court of appeal. The presidium of the Supreme Arbitration court of Russian Federation has satisfied the protest for the following reasons. A joint-stock company "Paritet" is the debtor of a bank "Tarkhany" under the credit agreements dated April 2, 1996 36, April 12, 1996 -104. By the decision of the Penza area dated November 12, 1996 on the case 49-2633/96-60/7; dated February 18, 1997 on the case 49-191/97-9/8; dated June 03, 1997 on the case 49-1251/97-77/6, entered in force, joint-stock company "Paritet" has paid the debts according the stated credit agreements for the benefit of the bank. In ensuring the execution of the credit liabilities parties have concluded an agreement dated April 12, 1996 -104 on the deposit of a building of a shop "Supermarket", and its property is claimed in connection with lack of money resources for execution of the indicated decisions. Joint-stock company "Parity" has accepted the claim in a part of property claims, however considers, that there is no judicial reasons for fixing of an initial sale price of a building, as it is coordinated by the pledge contract.

According to articles 349 and 350 CC at lack of the agreement of parties about sufficing of demand of the pledgee at the expense of pledged asset and definition of its initial sale price these problems are solved judicially. Thus, the bank has a financially - legal basis for bringing the case in court, and the conclusion of court of cassation that the reference of penalty on pledged asset is realized at a phase of final process according to the processual local law, is improper.

The basis of the decree of the first instance about installation of an initial sale price of a pledged building is the conclusion of the society with limited authority "Regional agency of valuation", defining a market price of a building is necessary. Such approach to appraisal of property of the debtor corresponds standards of the federal Act "On final process" (article 52). Under the indicated circumstances the decree of the first instance is valid and justified, and the decree of court of cassation has to be cancelled, being not appropriate to the local law. Taking into account all this and being guided by the articles 187-189 APC, the Presidium of the Supreme Arbitration court of Russian Federation has canceled the decree of Federal arbitration court of Povoljskii district dated November 25, 1997 on the case 49-2049/97 (13/17) of Arbitration court of the Penza area and has left in force a decision dated August 19, 1997 and the decree of a court of appeal dated October 1, 1997 of Arbitration court of the Penza area.

It is possible to state also a series of provisions from the Review of practice of considering of disputes linked to application by the arbitration courts of standards of the Civil Code of Russian Federation on the deposit, directed by the information letter of the Higher Arbitration court of Russian Federation 26 from January 15, 1998. It follows from the provisions of the Review, that the violation of a court's duty on definition of an initial sale price of realizable pledged asset is the foundation for a canceling of the judicial act. Therefore in such cases the bailiffs-executives should pose to the appropriate court which has made a judgement, a problem on articulating of such judicial act with the purpose of clear definition of an initial sale price or about protesting in the order of supervision.

So, at the reference of penalty on the deposit judicially, in the decree court of the initial sale price of pledged asset (article 5 of the Review) should be stated. The Sberbank of Russia has made a claim to an individual private enterprise on the reference of penalty on pledged equipment on account of a debt services of the enterprise under the credit agreement. Having detected the validity of the claim and taking into account, that asset, the cost of which exceeded an amount of claims of the pledgee considerably, was a subject of the pledge contract, the arbitration court has pointed out in a decision, that the penalty is effected at the expense of pledged asset within the limits of the amount due, established by court. In the substantive part of a decision the court has not taken into account the demands of paragraph 3 of article 350 CC, according to which in the decree on the reference of penalty for the deposit the initial sale price of pledged asset should be defined. In similar cases arbitration courts should take into account, that the violation of the demands of paragraph 3 of article 350 CC can result in significant infringement of the property rights of the pledger during consequent realization of asset, owned by him.

At presence of a conflict between the pledger and pledgee the initial sale price of pledged asset is established by court depending on a market price of this asset (article 6 of the Review). The commercial bank addressed the arbitration court with the claim to the limited liability company on the subject of the juridical penalties on the pledged real property on the account of execution of the liabilities of the defendant under the credit agreement. There was no opposition from the part of the partnership at a subject of stated demands. As it was established by the court, at definition of the price of plant of the real estate in the pledge contract parties were based on its book values according to the note of BTI, received on the inquiry of loaner in the period of establishing of the contract relations with the bank under the credit and deposit. Taking into account an appreciable time interval, passed from the moment of receiving of the indicated note, and also actual rise in price of pledged asset, the defendant petitioned for installation in the decree of an initial sale price of realization of a pledged building according to the conclusion of regional laboratory of expert court testimony.

The last, in particular, establishes, that market cost of asset being a subject of the deposit, has increased in comparison with the estimation, given before by parties of the pledge contract. According the opinion of the claimant objecting on the indicated application, the installation in the decree of an initial sale price of pledged asset, and estimation cost, different from it, in the pledge contract, is not supposed without the consent of the pledgee. At presence of a conflict between the pledger and pledgee the initial sale price of pledged asset is established by court being based on a market price of this asset (article 6 of the Review).

At taking a decision on the case the arbitration court was based on the following. According to paragraph 3 of article 350 CC in the case of the reference of penalty for the deposit arbitration judicially, the court establishes an initial sale price of pledged asset subject to realization on public tenders. In this connection the argument of the pledgee about attempt, ostensibly having a place, of the pledger to change unilaterally the contract clauses concerning the deposit in a part of valuation of a subject of the deposit does not correspond the facts. According to demands of an article 53 APC each entity participating in the case, should prove those circumstances, to which it refers in a justification of the demands. Besides, the decree of the court in a part of the indicating of an initial sale price of pledged asset should be documentary justified.

Thus, considering that during the reviewing of the indicated conflict to the pledgee did not prove the validity of its position, and the pledger, on the contrary, presented the concrete documents testifying to a modification of cost of asset, being a subject of deposit, the arbitration court has satisfied the application of the defendant for installation of an initial sale price plant of the real estate, subject of realization according to the presented conclusion of an expert.

At taking a decision on the reference of penalty for the deposit the arbitration courts should take into account the condition, that the indicating in the decree of a court of an initial sale price of pledged asset, essentially different from its market cost for the moment of realization, can afterwards result in violation of rights of the creditor or debtor during the accomplishment of final process. Therefore, if by reviewing of the indicated disputes under the initiative of any of the interested parties will be presented evidences testifying that market cost of asset being subject of the deposit, essentially differs from its valuation effected by the parties in the pledge contract, the arbitration court can offer to entities participating in the case, to make a coordinated decision or to define an initial sale price of such asset according to the introduced evidences irrespective of its valuation by the parties in the pledge contract.

The demand of the creditor to the pledger who is not a debtor on the main agreement, is restricted to the sum obtained from realization of a subject of the deposit (article 7 of the Review). The commercial bank addressed the arbitration court with the claim to individual private enterprise and society with limited authority on the subject of penalty for the sum of 8 billion roubles of debts under the credit agreement and claims on the pledged asset. According to the data of the case the credit to the amount 1,5 billion roubles was given to individual private enterprise, and the role of a pledger was played by a society, who has presented as a subject of the deposit a river vessel valuated by the parties of the agreement in 2 billion roubles. The arbitration court has satisfied demands of the claimant completely at the expense of the pledger, having pointed in the substantive provision of a solution: to effect the claim on property of the society with limited authority, the cost of which is in sum 8 billion roubles.

Canceling the given solution, the court of cassation has pointed that the character of the liability of the entity, which has granted a pledge to the creditor on a case of the debtor's failure, is stipulated by character of the selected way of ensuring. In particular, the essence of the deposit as way of ensuring of execution of the main liabilities consists in the right of the creditor (pledgee) to ask for a realization of the subject of deposit and transmission to him of the money resources, obtained from such realization, at an amount, not superior to the sums of debts under the guaranteed liability.

At insufficiency of the obtained money recourses for covering the demands of the creditor (pledgee) the latter has the right, at the lack of other indication in the law or an agreement, to receive the missing sum from other asset of the debtor (paragraph 5 of article 350 CC). Thus, by reviewing the given dispute it was necessary to start with the following. As the pledger was the third person who was not a debtor on the main agreement its liabilities to the pledgee could not exceed the sum obtained from the realization of a pledged asset. In this connection in the substantive provision of the decree of the court of cassation it is indicated about effecting a penalty from an individual private enterprise at the amount of 8 billion roubles of debts and reference of penalty on pledged asset owned by the society, on account of cancellation of this debt.

At the reference of penalty on pledged asset under the decree of the court the following problems are solved. According to article 54 of the federal Act "On the hypothecation (deposit of the real estate)" the effecting the claim on property, pledged on the agreement on hypothecation, can be refused, if the violation, admitted by the debtor, of the liability, ensured with the hypothecation, is extremely insignificant also amount of claims of the pledgee thereof is explicitly disproportionate to the cost of pledged asset, except for a case, foreseen by paragraph 2 of article 50 of the given law (we talk about the cases, when the main liability is executed by periodic payings).

Making a decision about effecting the claim on property pledged according the agreement on the hypothecation, the court should define and point in it:

1) The sums subject to payment to the pledgee from the cost of pledged asset, except for the sums of expenses on protection and realization of asset, which are defined after the completion of its realization. For the sums calculated in percentage terms, the following should be indicated: the main sum, rate of interest and period when they are charged;

2) Asset being a subject of the hypothecation, from the cost of which the demands of pledgee are satisfied;

3) The way of realization of asset, which is subject of penalty;

4) Initial sale price of pledged asset at its realization. The initial sale price of asset on public tenders is defined on the basis of the agreement between the pledger and pledgee, and in a case of a conflict by court;

5) The measures on ensuring the safety of asset before its realization, if those are necessary.

At the request of the pledger the court, at presence of the reasonable excuses, in a solution about effecting of penalty on pledged asset has the right to delay its realization for the period less then one year in cases, when, at first, the pledger is the citizen irrespective of the fact what asset is pledged by him under the agreement on the hypothecation, provided that the deposit is not connected with the enterprise activity of this citizen; secondly, a subject of the hypothecation is the land lot from included in lands of agricultural assigning, subject to the federal Act "On the hypothecation (deposit of the real estate)". Defining the period of delay of the realization of pledged asset, the court should take into account, that the sum of demands of the pledgee, subjects to sufficing from the cost of pledged asset on the moment of the expiration of the delay, should not exceed the cost of pledged asset indicated in the agreement on the hypothecation. The delay of the realization of pledged asset does not affect the rights and duties of parties on the liabilities ensured by the hypothecation of this asset, and does not release the debtor from refund of the losses of the creditors, which have increased during the delay, percents and penalty due to the creditor. If the debtor within the limits of time granted to him by the delay satisfies the demands of creditors ensured with the hypothecation, the court on the application of the pledger cancels a decision on the effecting of penalty.

The delay of the realization of pledged asset is not supposed, if it can result in significant aggravation of a financial position of the pledgee; if there is a case against the pledger or pledgee on the subject of their bankruptcy.

The delay of realization of pledged asset should be made out by the decision of appropriate court by way of article 18 of the federal act "On final process ".

Features of the effecting of penalty on a share in the common real property

According to paragraph 6 of article 46 of the federal Act "On final process" in a case, when the debtor owns an asset on the right to the joint property, the subject of penalty is his share defined according to the federal act. Thus, is necessary to define the share of a debtor.

According to article 254 CC the division of the common property between the participants of the joint property, and also definition of a share of one of them can be realized after preliminary definition of a share of each of the participants in the right on the community property. At the division of the community property and defining in it a share, if the law or agreement of the participants does not stipulate other, their shares are considered equal. The reasons and order of the division of the community property and definition (extracting) from it of a share are defined by the rules of article 252 CC, as for separate aspects of the joint property other is not established by the CC, other laws and does not result from relations of the participants of the joint property.

With reference to the joint property of the marital partners the following rules is established. According to paragraph 1 of article 38 FC (Family Code) the division of the common property of the marital partners is effected in case of application by the creditor of demand about the division of the common property of the marital partners for effecting a penalty on a share of one of the marital partners in the common property of the marital partners. According FC such division can be effected only at the agreement of the marital partners, including the notarially certified, or at the decree of the court. The creditor of one of the marital partners in any case according to an article 46 FC has the right to require judicially of a definition of a share of the marital partner - debtor, as on the liabilities of one of the marital partners the penalty can be effected only on assets of this marital partner.

The penalty is effected on the common property of the marital partners only at common liabilities of the marital partners, and also under the liabilities of one of the marital partners, if the court establishes, that everything, earned by one of the marital partners, was spent on the needs of family. At insufficiency of this asset marital partners bear under the indicated liabilities the joint liability. If the court decides, that the common property of the marital partners was acquired or is enlarged at the expense of the means received by one of the marital partners in a criminal way, the penalty can be effected accordingly on the common property of the marital partners or on his part.

Besides the marital partner is obliged to inform the creditor (creditors) on a conclusion, modification or breaking of the marriage contract. If not, the marital partner has to satisfy all claims irrespective of a content of the marriage contract. The creditor (creditors) of the marital partner - debtor has the right to require a modification of conditions or avoidance of the agreement, concluded between them, in connection with considerably changed circumstances in the order established by articles 451-453 CC (article 46 FC).

At realization of a share in the right of the joint property, owned by the debtor, the remaining participants of the common property do not have the right of first option (paragraph 1 of an article 250 CC). In such case they have the right to participate in public tenders on the general conditions with other buyers.

There is also a problem on applicability of the provisions of article 255 CC, establishing the common order of reference of penalty on a share in the common property. According to article 255 CC the creditor of the participant of share or joint properties at insufficiency of other asset have the right to demand on extraction of the share of debtor from the common property for the reference of penalty on it. If in such cases the extraction of a share is impossible or the remaining participants of share or joint property protest against it, the creditor has the right to require the sale by the debtor of the share to the remaining joint owners at the price proportional to the market cost of this share, and use the money resources, obtained from sale, to serve the debt. In the case of refusal of the remaining joint owners to acquire a share of the debtor the creditor has the right to require in the order of court the reference of penalty on a share of the debtor in the right of the joint property by sale of this share at public tenders.

These rules of article 255 CC are usable in the sphere of the relations of civil circulation of private-law character, but not of the final process having the public character. It is necessary to take into account a terminological difference linked to the fact, that not only the creditor participates in the executive relations, but an entity, whose rights are reconfirmed by the executive document and who has thus the legal status of the claimer. It is hardly legal to put a question on dependence of the realization of asset of the debtor in the joint property on a conduct of the remaining participants. Therefore realization of asset of the debtor in the joint property should happen in the common order established by the executive local law.

Now under the civil and family local law the joint property is possible in the relations between the marital partners, and also with reference to asset of a peasant (farmer) facilities. During a privatization of living quarters the practice of transmission of flats and rooms in the joint property of the citizens took place according to the Law of Russian Federation "On a privatization of state and municipal housing fund ".

The extraction of a share of the debtor at the joint property with reference to final process is not arranged directly, therefore here there is a problem on the procedure of such selection. In article 378 CPC the following order of selection of a long of the debtor in asset was established which he owns together with other individuals. According to article 378 CPC (in view of a nomenclature CPC) the definition of a share of the debtor in asset of a collective-farm or facilities of the citizens occupied with individual labor activity in agriculture, at insufficiency of asset of the debtor for cancellation of the recoverable sum is effected by the court at presentation of the law enforcement officer. The debtor and interested persons are informed about time and place of meeting, however their default of appearance does not hinder for the presentation consideration. A private complaint can be sent or the protest can be brought on the decision of the court on a problem of a debtor's share in asset of a court yard or facilities. Some experts suppose, that the given order is applied today.8

More correct, on our view, is the application in this case of the article 46 FC, according to which the extraction of a share of the marital partner - debtor from the common property of the marital partners should to happen on the basis of the decree of the court on the demand of the creditors of the debtor. The bailiff - executive does not refer to the creditors of the debtor, therefore such claims should be filed in courts of the general jurisdiction by the creditors recognized by claimers in final process on the basis of the appropriate court orders.

The similar problems can arise at execution of the court orders of arbitration courts at the reference of the claim to property of a peasant (farmer) facilities, and such conflicts are under the jurisdiction of arbitration courts.

As the executive local law does not give the direct answer to a question, in what an extraction of a share in asset owned by the debtor on the right of the joint property with other entities, should be done, at the reference of penalty on it under the acts of arbitration court, it is possible to recommend to the claimers to address also the courts of the general jurisdiction with the claims about an extraction of such share. Such cases are not under the jurisdiction of arbitration courts in connection with the features of their subjective composition. It is necessary to involve other marital partner as the co-defendant, which may not have the status of the individual businessman. In the future at perfecting the standards of the executive local law the given problem should find the solution in the form of its procedural simplification.

The reference of penalty on pledged asset happens in non-court order as follows. The given procedure with reference to the penalty on the pledged real property is especially regulated in article 55 of the federal Act "On the hypothecation (deposit of the real estate)". Though such realization of asset also happens beyond the framework of final process, it wears public character, as obeys to all general rules of realization at tenders.

The common legal ground for sufficing demands of the pledgee at the expense of asset pledged on the agreement on the hypothecation, without addressing in court is the notarially certified agreement between the pledgee and pledger concluded after rise of the foundation for the reference of penalty for the hypothecation. The agreement on sufficing of demands of the pledgee under the consequent agreement on the hypothecation is valid, if it is concluded with involvement of the pledgees under the previous contracts on hypothecation.

We can give an example of the decree of Presidium of the Supreme Arbitration court of Russian Federation dated December 8, 1998 5657/98.9. Presidium of the Supreme Arbitration court of Russian Federation has considered the protest of the deputy of the Prosecutor General of Russian Federation on the award of Republic Sakha (Yakutia) dated 06.05.96 on the case 58-761/96 and has decided the following.

The joint-stock company "Mercury" has addressed the Arbitration court of Republic Sakha (Yakutia) with the claim to individual private enterprise "Vilia" with penalty of debts in an amount of 1 900 420 833 roubles and indemnity of losses caused by the forfeit of asset, in an amount of 3 339 327 360 roubles. The decision of a court dated 06.05.96 satisfied the claims completely.

In the protest of the deputy of the Prosecutor General of Russian Federation it was suggested to cancel a solution in connection with its illegality and groundlessness, and to start a new trial on the case. The presidium has decided that the protest is subject to sufficing for the following reasons.

Making a decision in a part of penalty of debts in an amount of 1 900 420 833 roubles, the court was based on the fact that under the agreement dated 14.06.94 the claimant has transmitted to the defendant the bills of exchange on the sum of 1 000 000 000 roubles received from the Department of the pension service of Republic Sakha (Yakutia) on the basis of the credit agreement dated 20.07.94.

By the decision of Republic Sakha (Yakutia) dated 05.02.96 on other case (1766) from the "Mercury" corporation the debt and percents are collected for the benefit of the named department in a total amount of 1 879 722 222 roubles derivated in connection with non-execution of the credit agreement dated 20.07.94.

However court did not investigate the agreement dated 14.06.94 and the character of legal relations between the "Mercury" corporation and "Vilia", in particular, it is not defined, in what order, on what foundation and conditions the bills of exchange were transmitted. In this connection the court should also specify a subject and foundation of the claims of the "Mercury" corporation.

Fulfilling the demand in a part of an indemnity caused by the forfeit of asset, the court has recognized established the fact of the reference of research on the executive inscription of the notary on industrial base of the "Mercury" corporation costing 3 339 327 360 roubles. This asset on the basis of the agreement on joint cooperation dated 10.03.94, concluded between the "Mercury" corporation and "Vilia", was a subject of the deposit under the credit agreement of share commercial bank "Aeroflot" and "Vilia" dated 24.08.94.

At the same timet this conclusion is made by the court on deficiently investigated circumstances and is a not founded on evidence, present in the case. In the case there is a contract of the asset pledge (of an industrial base located at the address: Iakutsk, Viliuiski per., 22), concluded 24.08.94 between the "Mercury" corporation (pledger) and SCB "Aeroflot" (pledgee) in ensuring of return of the credit received by "Vilia" in SCB "Aeroflot" on the credit agreement dated 24.08.94 in an amount of 1 000 000 000 roubles. However in materials of the case there are no data on state registration of the pledge contract on the location of the real property, foreseen by the article 43 of the Law of RSFSR "On the deposit" (acting in that moment). The installation of this fact matters for the case, as article 11 of the indicated Law defined, that the lack of such registration is the reason for considering of the pledge contract invalid.

Executive inscription of the notary, documents establishing cost of pledged asset and the evidence, confirming its transmission to the pledgee are also absent from the case. The court did not investigate a problem on an amount of debts of "Vilia" to SCB "Aeroflot" and has not defined a size of real damage suffered by the claimant.

Taking into account, that in a sphere of judicial reviewing there were also rights SCB "Aeroflot", it was necessary to court on the basis of article 39 APC to involve it in a case as the third person. Besides in the judicial act there are no links to standards of the substantive law, according to which the court has made a decision. Thus, the decision of Republic Sakha (Yakutia) is subject to a canceling, as the decision made at deficiently examined circumstances, having significant value for a solution of a conflict, and in connection with a misapplication of standards of material and procedural right, and case is a subject to direction on new trial. At new trial it is also necessary to the court to take into account, that according to paragraph 1 of article 349 CC demands of the pledgee (creditor) are satisfied from the cost of pledged asset under the decree of the court. The sufficing of demand of the pledgee at the expense of the pledged real property without the reference in court is supposed on the foundation of the notarially certified agreement of the pledgee with the pledger, concluded after apparition of the reasons for the reference of penalty on the deposit.

Taking this into account, the Presidium of the Supreme Arbitration court of Russian Federation has decided to cancel the decision of Republic Sakha (Yakutia) dated 06.05.96 on the case 58-761/96 and to direct the case on new trial to the same arbitration court.

The sufficing of demands of the pledgee is not supposed in that order, if:

1) For the hypothecation of asset the consent or admittance of other entity or body is needed;

2) A subject of the hypothecation is the firm as a property complex;

3) A subject of the hypothecation is the asset having appreciable historical, art or other cultural value for the society;

4) A subject of the hypothecation is the asset finding in the joint property, and someone from its owners does not give the consent in written or other form, established by the federal act, on sufficing of demands of the pledgee in a non-court order.

In the indicated cases the penalty on pledged asset will be effected only under the decree.

In the federal act "On the hypothecation (deposit of the real estate)" the obligatory and optional provisions of the notarially certified agreement about the reference of penalty on pledged asset differ.

At the conclusion of the notarially certified agreement about sufficing of demands of the pledgee parties should necessarily provide in a it:

1) The title of asset pledged on the agreement of the hypothecation, at the expense of which demands of the pledgee and cost of this asset are satisfied;

2) The sums subject to payment to the pledgee by the debtor on the basis of the liabilities, provided with the hypothecation, and the agreement on the hypothecation, and if the pledger is the third person, by the pledger as well;

3) Way of realization of pledged asset or condition on its acquisition by the pledgee;

4) The precedent and consequent hypothecations of the given asset and available for the third persons real rights and right of use concerning this asset, known to the parties on the moment of concluding an agreement.

The following refer to optional conditions of the notarially certified agreement. In the agreement on sufficing of demands of the pledgee parties can provide:

1) Realization of pledged asset by one of the ways indicated in article 56 of the federal act "On the hypothecation (the deposit of the real estate) ";

2) Acquisition of pledged asset by the pledgee for himself or third persons with offset on account of a purchase price of demands of the pledgee to the debtor provided by the hypothecation.

In the indicated agreement the acquisition of pledged asset by the pledgee can not be stipulated, if a subject of the hypothecation is the land lot. To the agreement on acquisition of a pledged asset the pledgee applies the rules of the civil local law of Russian Federation on the contract of purchase, and in case of acquisition of asset by the pledgee for the third persons about the contract of factorage as well.

It is necessary to take into account, that, as any civil-law agreement, the agreement on sufficing of demands of the pledgee in a non-court order can be declared invalid by the court at a claim of an entity, whose rights are outraged by this agreement.

In the federal Act "On the hypothecation (deposit of the real estate)" the ways of realization of pledged asset are clearly listed. According to article 56 of the indicated law the asset pledged on the agreement on the hypothecation, on which is subject of the under the decree, is realized by sale on public tenders, except for cases, foreseen this law.

The order of conducting of public tenders on sale of asset pledged on the agreement on the hypothecation, is defined by the processual local law of Russian Federation, as the law on the hypothecation does not establishe other rules. However now processual local law (CPC and APC) does not contain such order, to say nothing of the rules of public tenders on apartment houses in CPC (article 399-405). Therefore the order of conducting of public tenders established in CC (article 447-449) and in the federal Act "On the hypothecation (deposit of the real estate)" has practical value.

According to paragraph 2 of article 56 of the federal Act "On the hypothecation (deposit of the real estate)", at making a decision about the reference of penalty on pledged asset, the court can, with the consent of the pledger and pledgee, make a decision, that the asset is subject to realization by sale on auction. The same way of realization of pledged asset can be stipulated by the pledger and pledgee in the notarially certified agreement on sufficing of demands of the pledgee in a non-court order. However realization of pledged asset by sale on auction is not supposed in cases, when the penalty on this asset can not be converted in a non-court order.

The order of sale of asset pledged on the agreement on the hypothecation, on auctions is defined by rules of an article 447-449 CC and article 57-61 of the federal Act "On the hypothecation (deposit of the real estate)", and that is not stipulated by them, is defined by the agreement on sufficing of demands of the pledgee in a non-court order.

In case of the reference of penalty on the pledged right of rent of the real property it is realized according to rules of the federal Act "On the hypothecation (deposit of the real estate)" with consequent registration of concession of the given right.

The order of conducting of public tenders according to article 57 of the federal Act "On the hypothecation (deposit of the real estate)" consists in the following. The public tenders on sale of the pledged assets are organized and conducted by the bodies who, according to the processual local law of Russian Federation effectuate the execution of the court decisions, if other is not established by the federal act. The public tenders on sale of the pledged assets are conducted at the location of this asset. The organizer of public tenders notifies on forthcoming public tenders not later than one month prior to their conducting in a periodical edition being an official information organ of an executive body of the appropriate subject of Russian Federation, with a statement of the date, time and site of negotiations of public tenders, character of asset sold and its initial sale price. So, in Sverdlovsk area such body is "Regional newspaper", where such information is published.

Entities wishing to participate in public tenders, pay the earnest money in the amount, time and order, which should be indicated in the notification on public tenders. The amount of the earnest money should not exceed 5 percents from an initial sale price of pledged asset. To the entities, who have participated in public tenders, but have not won them, the earnest money is returned immediately after the terminatioin public tenders. The earnest money is also subject to return, if the public tenders were not held. The presence on public tenders on sale of the pledged asset of entities, not participating in them, can be restricted only by local authorities in the interest of maintaining of the public order. On public tenders, anyway, the entities having rights of usage of sold asset or real rights on this asset have the right to be present.

The winners of the public tenders are entities who have offered the highest price for the asset on public tenders. This entity and organizer of public tenders sign in the day of the tenders the protocol on the results of public tenders. The evasion of one or another from signing of the protocol have the results foreseen by the paragraph 5 of article 448 CC, which consist in following. An entity which has won tenders, at evasion from signing the protocol loses the earnest money brought in by him. The organizer of the tenders who has evaded from signing of the protocol, is obliged to return the earnest money in a double amount, and also to reimburse to the entity who has won tenders, the costs caused by the participation in tenders, in a part superior to the sum of the earnest money.

The entity who has won public tenders, within five days after their termination has to bring in the sum, which he paid for the pledged asset (purchase price), less earnest money on the account indicated by the organizer of public tenders. If this sum is not paid the earnest money is not returned.

Within five days from the moment of importation of a purchase price by the winner of public tenders, the organizer of public tenders concludes with him the contract of purchase. This agreement and protocol on results of public tenders are the foundation for importation of necessary records in the Uniform State registry of the rights on the real property.

In a lot of cases the public tenders can be declared not valid. The organizer of public tenders declares them not valid in cases, when:

1) When there were less than two buyers on public tenders;

2) An extra charge against an initial sale price of pledged asset is not made on public tenders;

3) The entity who has won public tenders, has not brought a purchase price in the time due.

The public tenders should be declared invalid not later than the next day after any of the indicated conditions took place. Within 10 days after the declaration of public tenders invalid the pledgee has the right under the agreement with the pledger to gain pledged asset on its initial sale price on public tenders and put it on account of a purchase price the demands, provided by the hypothecation of this asset. The rules of the civil local law of Russian Federation on the contract of purchase are applied to such agreement. The hypothecation in this case ceases.

If the indicated agreement on acquiring asset by the pledgee was not held, not later than in one month after the first public tenders the repeated public tenders are conducted. The initial sale price of pledged asset on repeated public tenders, if they are a result of the above stated reasons (subitems 1 and 2 paragraph 1 of article 58 of the federal Act "On the hypothecation (deposit of the real estate)", is decreased on 15 percents. The public tenders are conducted in the earlier indicated order.

In case of the declaration of repeated public tenders invalid on reasons indicated in paragraph 1 of an article 58 of the federal Act "On the hypothecation (the deposit of the real estate)", the pledgee has the right to gain (to keep) the pledged asset at a price no more than 25 percents below its initial sale price on the first public tenders and put on account of a purchase price his demands provided by the hypothecation of asset. As it can be seen, the federal Act "On the hypothecation (deposit of the real estate)" establishes the greater size of the discount for the pledgee at acquiring the pledged real property, rather than in paragraph 4 of article 350 CC for other aspects of pledged asset. According to paragraph 4 of article 350 CC at the declaration of repeated tenders invalid the pledgee has the right to keep a subject of the deposit with its estimation no more than in 10 percents below the initial sale price on the repeated tenders. Therefore with reference to the real property the amount of such estimation can be decreased to 25 percents, but from the price on the first public tenders. The right of definition of an amount of the discount belongs according to the law to the pledgee together with the bailiff - executive, as the law points out only its upper limit (no more than 10 or 25 percents).

If the pledgee has reserved pledged asset, which can not belong to him on the character and assigning, including asset having appreciable historical, art or other cultural value for the society, land lot, he is obliged to effect disposal of the given asset within one year according to article 238 CC. If the pledgee does not take advantage of the right of keeping a subject of the hypothecation within one month after the declaration of repeated public tender invalid, the hypothecation ceases.

At the sale of a pledged asset on auction according to article 59 of the federal Act "On the hypothecation (deposit of the real estate)" the role of the organizer of auction on sale of a pledged asset plays the specialized organization chosen for this purpose by the pledgee with the consent of the pledger, which acts on the basis of agreements with the pledgee and acts on its own behalf or on the behalf of the pledgee. The sale of a pledged asset on the auction is supposed, if the auction is open. The sale of a pledged asset on a closed auction is supposed only in cases, foreseen by the federal act. Within five days from the moment of execution of the demand about repayment of asset by a winner of an auction, the organizer of auction concludes with him the contract of purchase. This agreement and protocol on the results of the auction are the foundation for importation of necessary recordings in the Uniform State registry of the rights on the real property.

It is necessary to take into account, that according to article 54 of the federal Act "On final process" any sale of asset within the framework of procedures of enforcement should be realized by specialized organization. Therefore the indicated order of conducting of auctions can be applied only at its conducting on the foundation of the notarially certified agreement of the pledger and pledgee in a non-court order.

The cease of the reference of penalty on the pledged real property and its realization happens as follows. A debtor under the liability, provided by the hypothecation, and a pledger being the third person, has the right to cease the reference of penalty on pledged asset, having satisfied all demands of the pledgee, provided by the hypothecation, the evasion from which has formed the basis for the reference of the claim to property, in an amount of these demands at the moment of payment of the appropriate sums. A pledgee can realize in a due order this right at any time up to the moment of sale of the pledged asset on public tenders, auctions or competition, or buying this asset.

According to paragraph 7 of article 350 CC the agreement limiting the right of a debtor or pledger to cease the reference of penalty on the deposit by execution of the main liability, is void.

The entity demanding the cease of the reference of penalty on pledged asset or its realization, is obliged to reimburse to the pledgee the losses suffered in connection with the reference of penalty on this asset and its realization.

The allocation of the sum obtained from realization of the pledged real property is regulated by article 61 of the federal Act "On the hypothecation (deposit of the real estate)".

The sum obtained from realization of asset, pledged on the agreement on the hypothecation, after deducting from it of the sums necessary to cover the expenses connected with the reference of penalty on this asset and its realization, is distributed between those who stated the demand to penalty - pledgees, other creditors of the pledger and pledger itself. The allocation is conducted by the bailiff - executive, and if the penalty on pledged asset was effected in a non-court order by a notary who has certified the agreement on such order of penalty, with keeping of rules of article 319, paragraph 1 of article 334 and paragraphs 5 and 6 articles 350 CC, and also article 46 of the federal Act "On the hypothecation (deposit of the real estate)".

If a subject of the hypothecation, on which the penalty is effected, is the state or municipal asset, sums subject to transfer to the pledger in the order and turn, which are defined by the present article, are directed to the appropriate budget.

If the sum obtained at realization of pledged asset, is insufficient to cover the demands of the pledgee, he has the right, at lack of other indications in the law or agreement, to receive the missing sum from other asset of the debtor, not using the advantage, based on the deposit (paragraph 5 of article 350 CC). If the sum obtained from realization of pledged asset, exceeds a size of the demand of the pledgee, provided by the deposit, the variance is returned to the pledger.

In the law a problem linked to a possibility of the reference of penalty on the deposit on demand of the claimer, not being the pledgee is not arranged directly. In the CC and Federal act "On the hypothecation (deposit of the real estate)" the order of execution of demands of the claimer, being simultaneously a pledgee is regulated explicitly.

At the same time the situations are frequent, when the deposit ensures the liabilities referring, for example, to the fifth turn (under the credit agreement), and the debtor faces the claims, referring to precedent turns, for example, on salary, tax payings and payings in state extra-budgetary funds. In the event that the debtor does not have other asset (or it is insufficient for complete cancellation of demands of precedent turns), except for being under the deposit with the purpose of ensuring penalty of the fifth turn, according to paragraph 1 of article 49 of the federal Act "On final process" the reference of penalty on such pledged asset is possible.

It is certainly possible to object, having pointed that thus deposit loses its ensuring role as a warranty of keeping the main liability. However final process has a public character, therefore at the contravention of the private-law rules of the CC and public rules of final process the priority belongs to standards of the executive local law. The procedure of the reference of penalty on pledged asset by the claimers, which do not refer to number of the pledgees, and order of its forced realization obeys to the general rules of final process, which were subject of the commentaries to the given and other articles of the federal Act "On final process ".

According to paragraph 2 of article 49 of the federal Act "On final process" the pledgee who kept the pledged asset, is obliged to satisfy the demands of creditors, using advantage before his demand, from the cost of pledged asset at an amount not superior to the cost of this asset. Such legal situation also is quite possible on circumstances stated above. At execution of the given provision of the law there is a problem on the order of sufficing of demands of the creditors of precedent turns. The claimer-pledgee for sufficing of his demands has received not money resources, but an asset itself. Therefore it is hardly possible to force such pledgee to pay money resources to other creditors of the debtor.

As subject of paragraph 2 of article 49 of the federal Act "On final process" there is a sufficing of demands from the cost of pledged asset, two variants of legal acts here are possible. At first, the pledgee has the right with the purpose of sufficing demands of the creditors having advantage before his demand, to pay them money resources in an amount of their demands, but not more than the cost of asset, at which it was transmitted to the property of the pledgee. Secondly, at lack of possibilities for the pledgee to pay cost of the given asset to other creditors the new tenders should be conducted according to the earlier described order of forced realization of pledged asset. In this case it is obviously necessary to reimburse all expenses on tendering, also from the sum, which will be obtained after tendering.

It is necessary to take into account, that at expulsion from apartment houses and flats being an object of the mortgage contract, there is a series of features, which consist in following.

According to article 78 Federal acts "On the hypothecation (deposit of the real estate)" the reference by the pledgee of penalty on a pledged apartment house or flat and realization of this asset are not a reason for expulsion by the purchaser of an apartment house or flat of the pledger and members of his family living in this premise, if it is a unique suitable permanent residence for them.

Between a person, which has gained a former subject of the hypothecation an apartment house or flat as a result of its realization, and a former owner of an apartment house or flat or somebody from members of his family, living with him, the rent agreement is concluded. If the agreement on conclusion of a contract is not reached, any party has the right to demand its conclusion and definition of its conditions judicially.

The forced expulsion of persons living in pledged living quarters, is possible only in the following case. After the reference of penalty on a pledged apartment house or flat and realizations of this asset the pledger and the members of his family living together with it are obliged on demand of the owner of an apartment house or flat to liberate borrowed premise within one month under the following conditions:

  • Apartment house or flat were pledged under the agreement on the hypothecation in ensuring the return of the credit granted on acquisition or construction of this apartment house or a flat;

  • The members of his family, living with the pledger, have given the notarially certified obligation to liberate a pledged apartment house or flat in case of the reference of penalty on it before making contract on the hypothecation, and if they were installed in a pledged apartment house or flat later before to their installation.

The persons living in pledged apartment houses or flats on employment contract or contract of the rent of living quarters, are not subject to expulsion at realization of a pledged apartment house or flat. The employment agreement or rent contract of living quarters concluded with them, before making contract on the hypothecation, is valid, and the conditions of its breakage are defined by the local law.

Thus, the stated order of the reference of penalty on the real property in final process displays the necessity of simultaneous application as procedural standards of the federal Act "On final process ", and provisions of the appropriate civil local law, first of all CC and federal act "On the hypothecation (deposit of the real estate)". The present problems in the given sphere of legal activity can be overcome by a step-by-step development of the judicial practice, and by perfecting of the local law.