Good faith is understood as the subjective state of a person when performing legal acts, his ignorance of the circumstances that discredit the external or internal legitimacy of the act and can force a legally honest person to refuse to commit it, despite the absence of formal obstacles to this. Modern economic relations lack good faith. It is the lack of integrity in the implementation of entrepreneurial activities that is the cause of many other violations. When carrying out transactions, the parties are often guided solely by their own benefit, while ignoring the rights of their counterparties. Often actions are performed with a vice of form, openly disregarding the requirements of the law. But in some cases, dishonest actions formally fit into the requirements of the law.
Until 2012, provisions on good faith were contained in the general provisions of the Civil Code of the Russian Federation only in relation to the establishment of rights and obligations when it was impossible to use the analogy of law or law. The good faith of a person was assumed in all cases where the protection of rights depended on it. The need for good faith was established for the heads of a legal entity. Good faith was a condition for the emergence of ownership of a new movable thing created by processing someone else's material, as well as under acquisitive prescription. Good faith was a key condition for vindication. In other words, good faith as a general principle of law was not enshrined in the Civil Code of the Russian Federation. With a certain degree of conditionality, it is permissible to talk about the manifestation of the principle of conscientious behavior in Part 3 of Art. 17 of the Constitution of the Russian Federation by indicating that the exercise of the rights and freedoms of man and citizen should not violate the rights and freedoms of other persons. At the same time, acting without violating the rights and freedoms of others is only one of the manifestations of good faith.
It is obvious that the listed particular cases did not cover the entire scope of legal relations requiring good faith from the participants. The legal order was forced to look for more universal countermeasures. But the complexity of their introduction is due, among other things, to the fact that such important and understandable at first glance concepts as conscientiousness, honesty, reasonableness, justice do not have clear criteria. For all their apparent obviousness, it is far from always possible to unequivocally answer the question of what behavior is conscientious and what is not. There is no guarantee that errors will not occur. But how do you know if an error really happened? In this sense, a system that takes into account exclusively the violation of the law, non-observance of the external form, has greater certainty. Such a system not only makes it easier to make decisions, but also to control the correctness decisions taken higher authorities, checking them solely on formal grounds.
At the same time, mistakes are made in the formal approach. It is also obvious that blatantly immoral acts that formally comply with the law should not receive judicial protection. The first opposition is developed at the level of judicial practice. This reaction, in some cases, manifests itself in a less formal adherence to the letter of the law, which is allowed in order to comply with the basic principles of civil law regulation. Ignoring formal requirements is justified by the need to protect public law interests, avoid shifting the balance of interests, and prohibit abuse of the right. The basic principle is becoming more and more clear and clear, according to which only bona fide participants receive judicial protection. Unscrupulous participants are denied protection. It is this refusal that is the lever that encourages participants to behave honestly. The need to introduce appropriate provisions into the legislation becomes obvious.
Reforming the civil legislation as one of the fundamental goals considered ensuring the conscientious and proper exercise of civil rights and the fulfillment of civil obligations. “To this end, the Concept proposes a wide range of measures aimed at strengthening the moral principles of civil law regulation — the introduction of the principle of good faith into civil law as one of the most general and important principles civil law, concretization of “other forms of abuse of rights” deprived of legal protection, the introduction of the institution of pre-contractual liability on the principle of culpa in contrahendo into the Civil Code, a significant modification of many rules on the invalidity of transactions, etc.
As a result of the reform of legislation, the Civil Code of the Russian Federation includes a number of norms that introduce good faith as a basic principle and establish the features of its application. Fundamental changes are made to Article 1 of the Civil Code of the Russian Federation by the Federal Law of December 30, 2012 N 302-FZ. The previous requirement that the terms of the contract determined by the parties do not contradict the law is expanded by the requirements of good faith in the establishment, exercise and protection of civil rights, as well as provisions on the inadmissibility of taking advantage of one's own or unfair behavior. The same law narrows the limits of the exercise of civil rights. The prohibition of acts carried out solely with the intent to harm another person is complemented by the prohibition of acts circumventing the law with an unlawful purpose. It also establishes a ban on abuse of the right. The consequence of the violation of the prohibition is the refusal of the court to protect the violated right, the recovery of damages caused to other persons.
Explaining the application of the principle of good faith, the Plenum of the Supreme Court of the Russian Federation indicates that the provisions of acts containing civil law norms are subject to interpretation in a systemic relationship with the basic principles of civil legislation enshrined in Article 1 of the Civil Code of the Russian Federation. According to paragraph 3 of Article 1 of the Civil Code of the Russian Federation, when establishing, exercising and protecting civil rights and in the performance of civil obligations, participants in civil legal relations must act in good faith. By virtue of paragraph 4 of article 1 of the Civil Code of the Russian Federation, no one has the right to take advantage of his illegal or dishonest behavior. Accordingly, the obligation to act in good faith rests with the participants in any civil legal relationship.
Observing further changes in the Civil Code of the Russian Federation, one can notice that the principle of good faith is becoming one of the key principles. In addition to the basic principles of civil law, the principle of good faith is introduced into the regulation of obligations, including the emergence, exercise and protection of rights and obligations. Conscientious participants in the turnover receive greater protection. Conscientious behavior in relation to obligations is introduced by the Federal Law of March 8, 2015 N 42-FZ. The parties are obliged to act in good faith both when establishing and fulfilling the obligation, and after its termination. At the same time, good faith implies consideration of mutual rights and legitimate interests, assistance to achieve the purpose of the obligation, as well as providing each other with the necessary information. Good faith is obligatory for the party entitled to withdraw from the contract.
The good faith behavior of the parties is established by the Federal Law of March 8, 2015 N 42-FZ and for negotiations on the conclusion of an agreement. Good faith is required when entering into negotiations, during their conduct and at their conclusion. The consequence of bad faith during negotiations is compensation to the other party for the losses caused by this.
Provisions on good faith are also introduced into the code by the federal law of June 28, 2013 N 134-FZ. Good faith of a person relying on public registry data legal entities, protects it from the possible consequences of data inconsistencies. Conscientiousness, established as a criterion for the behavior of a member of the collegial management body of a legal entity by the Federal Law of 05.05.2014 N 99-FZ, protects him from compensation for losses caused to the legal entity by not taking part in voting. Also, good faith is established as an obligation of a person who has the ability to determine the actions of a legal entity and the liquidation commission. The good faith of the counterparty retains the force of the transaction with the organization created as a result of the reorganization, if the reorganization is declared invalid. The transaction in this case remains valid for the restored legal entities.
Conscientiousness becomes essential in establishing the invalidity of a transaction. Thus, the recognition of a transaction as invalid means the bad faith of a person who knew or should have known about the grounds for the invalidity of a voidable transaction. It is considered dishonest and means deception intentional omission of a person about known circumstances. It is unfair and not subject to satisfaction the requirement to recognize the contract as not concluded, declared by the party that accepted full or partial performance, or otherwise confirmed the validity of the contract.
Good faith protects the purchaser of bearer securities, as well as order and registered securities certifying a monetary claim, from their recovery. The conscientiousness of the owner of a security in the case of someone else's illegal possession limits what is recoverable from him, received from the moment he learned about the illegal possession. Conscientiousness of acquisition protects against demand non-documentary securities certifying only the monetary right of claim, as well as non-documentary securities acquired at organized auctions. Good faith still remains a condition for acquiring a right by virtue of acquisitive prescription. The need for conscientious performance of duties is established for the guardians of a citizen. The good faith of the pledgee means the emergence of the rights and obligations of the pledger from the owner of the pledged property when the thing is transferred by a person who is not the owner.
These examples show that at present the principle of conscientious behavior has been enshrined in law as a truly general and important principle of civil law. However, the law does not provide general criteria for good faith conduct. In the above paragraph 1 of the Resolution of June 23, 2015 N 25, the Plenum of the Supreme Court of the Russian Federation notes that the assessment of the actions of the parties as bona fide or dishonest should be based on the behavior expected from any participant in civil circulation.
As conditions for good faith behavior, the Resolution indicates the need for a person, when exercising his rights, to take into account the rights and legitimate interests of the other party, as well as to assist her, including in obtaining the necessary information. According to the general rule of paragraph 5 of Article 10 of the Civil Code of the Russian Federation, the obligation to prove bad faith rests with the other party. But are these criteria sufficient to qualify behavior as conscientious?
The principle of good faith was already known to Roman law. I.A. Pokrovsky notes that the principle of bona fides implies the resolution of the dispute not according to the norms of strict law (stricti juris), but taking into account the customs of turnover and the rules of business decency. For the conscientiousness of the acquisition, it was required that the acquirer at the time of acquisition did not know that the thing was someone else's. It is disgusting bona fides the seller's silence about such shortcomings, which he was aware of. It looks like cheating.
In defining conscientiousness, Brockhaus and Efron point out that conscientiousness is different from good conscience. Good conscience (bona fides) determines the course of action of the parties entering into legal transactions, forming the principle of interpretation of these transactions. Conscientiousness means the subjective state of a person when performing legal acts. Wherein legal the concept of good conscience should also be distinguished from the everyday one. It is noted that the legal concept of good conscience implies agreement with the current norms of law and the system of legal relations, and not with the prescriptions of morality or what is called justice. It seems correct that when establishing the correspondence of a person's actions to the prescribed course of action, it is necessary to be guided by some normative prescriptions, and not by abstract, albeit universal, concepts. The existing legal order, due to its inherent formalism, needs at least some criteria.
The modern doctrine relates the principle of good faith to those arising from civil law principles responsible for maintaining the original systemic foundations of all civil legislation, “since the system of law cannot allow its elements to be exploited in a way that is not in accordance with their systemic purpose” .... “The category of good faith used in paragraph 3 of Art. 1 of the Civil Code of the Russian Federation in its subjective sense (knew, did not know) in the civil legal apparatus is a special systemic regulatory and operational structure designed to eliminate the selfish inclinations of the participants in the turnover and take into account the interests and goals of civil turnover as a whole. By their immanent nature, unfair actions include actions, according to Stammler, with a “double” bottom, i.e. actions of subjects who knew (could or should have known) the real circumstances of the case, but deliberately exercised their rights, hiding behind their external legality " .
Of course, the criteria of good faith were used in judicial practice even before Resolution No. 25. While the good faith of the purchaser or the good faith of the owner claiming acquisitive prescription is specific, these provisions also reveal the essence of the principle of good faith. So, to determine the good faith of the acquisition, it is necessary that the buyer does not know and could not know about the lack of the right to alienate from the seller. It is confidence in the correctness, permissibility of the actions taken that forms the subjective side of conscientious behavior.
Considering integrity in general, it is advisable to pay attention to the criteria for the integrity of the head of the organization, since it is the head who acts on behalf of society in the most different situations. The criteria for the integrity of directors were considered in more than detail by the Plenum of the Supreme Arbitration Court of the Russian Federation in Resolution No. 62 of July 30, 2013.
The specificity of the director's actions is the need to respect both the interests of counterparties and the interests of the legal entity itself. Consideration of the criteria for the director's behavior is expedient, since it clearly illustrates the importance of maintaining a balance of interests. Any shift can cause negative consequences. The preference of the interests of the counterparty to the detriment of the company means the possibility of presenting such damage to the director. Violation of the interests of the counterparty means making demands on the company, and, if they are satisfied, leads to the same consequences. Of course, in the second case, the probability of negative consequences is lower, which in itself stimulates the director to prefer the interests of society. It is also important to keep in mind the personal interests of the director, which objectively exist and influence his actions in addition to the interests of the counterparty and society.
Despite the obvious need for the director to act in good faith in relation to the company's counterparties, Resolution No. 62 considers the criteria for the director's good faith only in relation to the company. In the same aspect, the second criterion of the director's behavior is considered - reasonableness. However, the approach taken by the Plenum is also important, since good conscience in the broadest sense does in some cases indeed involve the use of the same standard of conduct both towards others and towards oneself.
The director's bad faith is presumed to act if there is a conflict between his personal interests (or those of his affiliates) and the interests of the legal entity. It is conscientious in such a situation to disclose information about the conflict and obtain approval. This principle can hardly be applied to relations with a counterparty. It is the personal interest that is the incentive for the transaction by the party. One should not expect from anyone to act in the interests of the counterparty and to the detriment of oneself. Such behavior would rather indicate unreasonableness.
However, it is possible to imagine a situation in which the seller who made the deal but did not fulfill the deal receives a better offer. An unscrupulous seller in such a situation will sell the goods more expensively, without fulfilling the initial obligation on time. Having earned, such a seller will try to get out by finding the same product and selling it to the first buyer. This will be the preference of their interests to the interests of the counterparty. Having concluded the transaction, the parties determined the interest that must be satisfied as a result of its execution. It is dishonest to try to get something else after the terms have been agreed. In turn, it would be conscientious to offer to change the conditions for the first buyer, offering him a discount for a delay in delivery. But is it necessary to resort to the principle of good faith in the described situation? Probably not. In most cases, contractual liability means are sufficient. At the same time, in the absence of the buyer's ability to influence the terms of the contract, assessing the seller's actions for good faith can make practical sense.
The criterion of bad faith of actions carried out contrary to the interests of the represented person is also not suitable for qualifying the actions of a person in relation to the counterparty. This criterion is determined increased level confidence in the representative and the corresponding duty to act in the interests of the represented. The significant unprofitability of the transaction concluded by the representative, which is obvious to the parties at the time of its conclusion, leads not only to the recovery of damages, but may also result in the recognition of such a transaction as invalid. Such is the price of preferring the director's own interests. But the primary task of any participant in civil relations is the observance of their own interests. Therefore, what is unacceptable for a representative is normal for a counterparty.
And when recognizing the invalidity of the transaction, and when recovering losses from the representative, similar criteria of unprofitability are used. Unprofitability is implied with a significant (several times) difference in the cost of providing, as well as when concluding a transaction without the intention of execution. Provided by paragraph 2 of Art. 174 of the Civil Code of the Russian Federation, invalidity is impossible when the transaction is made by the person himself, which indicates the focus of this rule on protecting the represented representative from bad faith. Accordingly, the criteria of disadvantage used to protect against a representative are not suitable for qualifying the bad faith of direct participants in civil transactions. This position seems to be correct, since the standard of good faith between an organization and a representative obliged to act in its interests cannot coincide with the standard of good faith of counterparties. If we can talk about the permissibility of prohibiting unprofitable transactions, then the standard of such unprofitability should be more significant.
The bad faith of the director is also assumed when hiding information about the transaction he made from the participants of the legal entity, or when providing false information. In our opinion, this criterion is also applicable to a certain extent for assessing the good faith behavior of counterparties. The need to assist the other party in obtaining the necessary information is indicated in Resolution No. 25. Concealment of information available to the party, which may affect the rights of the counterparty, in a broad sense, is the concealment of information about the product. Entering into a transaction with competitors of the counterparty may affect the market and may also affect its rights. On the other hand, it is unacceptable to force anyone to disclose information about their commercial relations with other counterparties. Obviously, it is unacceptable to provide false information to the counterparty, to deceive him regarding the essential terms of the obligation. Without a doubt, such misrepresentation would be dishonest.
A director's bad faith, implied in a transaction without the required approval, can also be considered as a criterion of general bad faith. Such a situation may arise, for example, if it is necessary to obtain the approval of the antimonopoly authority when acquiring assets strategic companies or permission of the Central Bank of the Russian Federation. A counterparty that relies on assurance that approval is available, or assurance that approval is not required, may enter into a voidable transaction. The consequence may be its invalidity.
The criterion of dishonest behavior by evading the transfer of documents relating to circumstances that led to adverse consequences is a way of hiding information. Such inaction does not correspond to the behavior expected from any participant in civil circulation. The absence of documents may lead to other negative consequences, different from the consequences of the absence of information. The same is true for holding required documents counterparty. For example, failure to provide acceptance certificates or invoices may result in the inability to offset VAT, which will cause negative tax consequences. At the same time, failure to provide such documents is illegal in itself.
It is also interesting to pay attention to examples of dishonesty in pre-contractual negotiations. It is unfair to enter into negotiations or continue them in the absence of intention to reach an agreement with the other party. This criterion is similar to the criterion of bad faith of a director knowingly entering into a transaction with the aim of its non-execution or improper execution. The example given in the article of unfair actions in the form of providing incomplete or inaccurate information, including silence about the circumstances that, due to the nature of the contract, must be brought to the attention of the other party, is clarifying the principle of assisting the other party, including in obtaining the necessary information . In turn, the prohibition of a sudden and unjustified termination of negotiations on the conclusion of a contract under such circumstances in which the other party to the negotiations could not reasonably have expected this is comparable to the principle of inadmissibility of entering into a transaction knowingly with a view to non-performance or improper performance.
Sharing the burden of proof.
According to the general rule established in paragraph 5 of Art. 10 of the Civil Code of the Russian Federation, the good faith of the participants in civil legal relations and the reasonableness of their actions are assumed until proven otherwise. Accordingly, the duty to prove the bad faith behavior of the other party rests with the party claiming bad faith.
The behavior of one of the parties may be recognized as unfair not only if there is a reasonable statement from the other party, but also at the initiative of the court. The condition for recognizing bad faith at the initiative of the court is an obvious deviation of the actions of a participant in civil turnover from good faith behavior. In this case, the court, when considering the case, brings for discussion the circumstances that clearly indicate such dishonest behavior, even if the parties did not refer to them.
It seems that the burden of proving good faith can also be placed by the court on the other party in case of its procedural bad faith. This assumption follows from the position of the Plenum of the Supreme Arbitration Court of the Russian Federation, reflected in clause 2 of Resolution No. 62 of July 30, 2013. persons in good faith and reasonably may be entrusted by the court to the director.
Consequences of dishonesty.
Paragraph 1 of the Decree of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 N 25 “On the application by the courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation” formulates the main consequence of establishing dishonest behavior of one of the parties. Depending on the circumstances of the case and taking into account the nature and consequences of such behavior, the court refuses to protect her right in whole or in part.
Other measures are also applied to ensure the protection of the interests of the bona fide party or third parties from the bad faith behavior of the other party (paragraph 2 of Article 10 of the Civil Code of the Russian Federation):
The good faith of a person, in addition to the above methods of protection against bad faith, means the possibility of using the following protection mechanisms:
Summing up the above, it should be noted that good faith undoubtedly refers to the basic principles of civil law. There is no doubt as to its importance and influence on all legal relations. The principle of good faith is the basis for many rules established in special regulations. Despite the correctness of its introduction in Article 1 of the Civil Code of the Russian Federation, this causes a certain temptation to use it for any reason. But the recognition of the need for good faith behavior and the introduction of a liability mechanism for bad faith should not replace the application of special rules. Therefore, the reference to good faith in many norms of the Civil Code of the Russian Federation should be considered not as an indication of the need to use a standard mechanism to challenge all actions without exception, but as an indication of the need to accept good faith as a standard of conduct.
Despite the apparent obviousness, the lack of good faith criteria in the law can lead to both overly broad and underinterpretation. The interpretation given in paragraph 1 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated June 23, 2015 N 25 is also quite broad and, for all its correctness, does not provide answers to many questions.
Defining good faith, it is necessary to emphasize that good faith means the subjective state of a person when performing a legal act, and does not determine the course of action of the parties. Good faith implies that a person is not aware of the circumstances that would make a legally honest person refuse to commit.
When evaluating behavior for good faith, a comparison is made with the behavior expected from any participant in civil transactions. Conscientious behavior presupposes agreement with the current rules of law and the system of legal relations.
Good faith is legal. Violation of the law is unfair in any case. Bad faith manifests itself precisely in the absence of formal obstacles, since in case of violation of the law, additional proof of bad faith is not required. At the same time, good faith is also possible when the law is violated, for example, when acting to prevent greater harm.
Good faith implies action without violating the rights and freedoms of others, the need to take into account the rights and legitimate interests of the other party. Restriction of freedom by the interests of other persons entails the inadmissibility of taking advantage of dishonest behavior, the prohibition of actions carried out solely with the intent to harm another person, the prohibition of actions bypassing the law with an unlawful purpose, the prohibition of abuse of the right.
Honesty means honesty. Honesty means assisting the other party, including obtaining the necessary information. It is considered dishonest and means deception intentional omission of a person about known circumstances. It is dishonest to provide incomplete or inaccurate information, including silence about circumstances that, due to the nature of the contract, must be brought to the attention of the other party. Not honest intentional misrepresentation about the quality of the goods or the terms of the transaction. It is not fair to conclude a transaction without disclosing the need for approval by the antimonopoly authority or the Central Bank of the Russian Federation.
Conscientiousness means conformity of actions and intentions. It is dishonest to conclude a transaction knowingly with the aim of its non-execution or improper execution. Also in bad faith is the intentional non-performance of the agreement that occurred after the start of execution due to the preference of own income to the detriment of the counterparty. Misleading actions are also possible when negotiating a contract, both in the knowing absence of an intention to reach an agreement with the other party, and by abruptly and unjustifiably terminating them under such circumstances in which the other party to the negotiations could not reasonably have expected this.
The considered examples allow us to single out the criteria of conscientious behavior. These criteria are action without violating the rights and freedoms of others, honesty and compliance of existing intentions with the actions taken.
Of course, the listed examples do not cover the whole variety of dishonest actions. Nevertheless, the criteria identified during their consideration allow, to a certain extent, to classify cases of bad faith. The foregoing indicates the undoubted importance of the considered principle, the need for its further study.
Encyclopedic Dictionary F.A. Brockhaus and I.A. Efron. - St. Petersburg: Brockhaus-Efron. 1890-1907.
Paragraph 2 of Art. 6 of the previous edition of the Civil Code of the Russian Federation.
Paragraph 3 of Art. 10 of the previous edition of the Civil Code of the Russian Federation.
Paragraph 3 of Art. 53 of the previous edition of the Civil Code of the Russian Federation.
Paragraph 1 of Art. 220 of the previous edition of the Civil Code of the Russian Federation.
Paragraph 1 of Art. 234 of the previous edition of the Civil Code of the Russian Federation.
Article 302 of the Civil Code of the Russian Federation. The Brockhaus and Efron dictionary of 1907 provides the following description of the difference in ownership when claiming property, which is still relevant today: “A conscientious owner, that is, one who, owning the legal means thing, did not know about the existence of other, stronger rights on it on the side of another person - namely, the right of ownership taken away by force, fraudulent or generally unlawful way - in case of loss of possession of the thing in favor of this owner, at his claim, he is obliged to issue the thing in the form in which what it was by the day the suit was brought against him or by the time he learned about the existence of the right of another person. He is liable for damages only for such deterioration of the thing, reduction in value or alienation of its accessories, which constitute an act of arbitrary disposal of property, and are not due to chance, negligence, natural causes or the economic needs of the property itself. On the contrary, the unscrupulous owner returns the thing in the form in which it was at the time of possession, answering by paying damages for all the deterioration of the thing that occurred not only due to his arbitrariness, but also due to simple negligence in the performance of master's duties.
Abolonin V.O. Principles of good faith and cooperation in the "new" civil process // Arbitration and civil procedure. 2013. N 8. S. 2 - 8.
Clause 6 of the “Concept for the Development of the Civil Legislation of the Russian Federation”, approved by the decision of the Council under the President of the Russian Federation for Codification and Improvement of Civil Legislation of 07.10.2009.
Federal Law No. 302-FZ of December 30, 2012 “On Amendments to Chapters 1, 2, 3 and 4 of Part One of the Civil Code of the Russian Federation”.
1. The exercise of civil rights solely with the intent to cause harm to another person, actions bypassing the law with an unlawful purpose, as well as other obviously unfair exercise of civil rights (abuse of the right) are not allowed.
The use of civil rights to restrict competition, as well as the abuse of a dominant position in the market, is not allowed.
2. In the event of non-compliance with the requirements provided for by paragraph 1 of this article, the court, arbitration court or arbitration court, taking into account the nature and consequences of the abuse committed, shall refuse to protect the right belonging to him in whole or in part, and also apply other measures provided by law.
3. If the abuse of the right is expressed in the commission of actions bypassing the law with an unlawful purpose, the consequences provided for in paragraph 2 of this article shall apply, since other consequences of such actions are not established by this Code.
4. If the abuse of the right resulted in the violation of the right of another person, such a person has the right to demand compensation for the losses caused by this.
5. The conscientiousness of the participants in civil legal relations and the reasonableness of their actions are assumed.
Comments to Art. 10 Civil Code of the Russian Federation
1. The article establishes the boundaries (limits) of the exercise of civil rights, prohibiting certain behavior. It provides for a general limitation on the discretion of subjects of civil rights in exercising their rights and disposing of their rights: one cannot abuse one's rights if this leads to a violation of the rights and interests of others. Here we mean: a) abuse of the right with direct intent to harm the interests of other persons; b) abuse of the right, although not having such a purpose, but objectively causing harm to other persons; c) abuse of a dominant position in the market and restriction of competition; d) unfair competition and advertising. Other forms of abuse are also possible.
The first of the mentioned types of abuse, the so-called chicane, is singled out according to the purpose of using the right. A classic example of a chicane is the construction of a fence by a citizen for the sole purpose of blocking a neighbor's close path to his site. There is no violation of the law in this, however, from the position of the commented norm, the intention to harm another person is reprehensible.
In the second of the noted types of abuse of the right, there is no direct intent to infringe on the interests of other persons, however, the behavior of the person objectively causes such a result. For example, the construction of one house near another, leading to the dimming of its windows.
Judicial and arbitration practice also refers to the abuse of the right as a violation of public interests (see Commentary on judicial and arbitration practice. 1997. Issue 4. P. 77).
2. The ban on restricting competition and exercising monopolistic activity is addressed primarily to economic entities (entrepreneurs) that occupy a dominant position in the commodity market.
Dominance itself is not reprehensible. Comment. article forbids its abuse and contains a prohibition in general form. Specific individual actions (inaction), interpreted as abuse of a dominant position, are named in Art. 5 of the Competition Law. These include: imposing conditions on the other party to the contract that infringe on its interests and disadvantageous for it, as well as conditions that are not related to the subject of the contract; inclusion in the contract of discriminatory conditions that put one of the parties in an unequal position compared to others; setting monopolistically high or monopolistically low prices. Prohibits Art. 5 committing other actions that have or may result in restriction of competition and (or) infringement of the interests of other persons.
Article 6 of the Law on Competition prohibits agreements (concerted actions) reached in any form by economic entities (entrepreneurs), if their share on the market of a certain product in the aggregate is more than 35%, provided that the agreement (concerted actions) has (or may have) its own the result is a restriction of competition. This ban is also directed to those entrepreneurs who do not occupy a dominant position, but their market share, together with the share of the other (other) parties to the agreement, exceeds 35%. The mentioned agreements (concerted actions) include agreements aimed at: setting prices, as well as raising, lowering or maintaining prices at auctions and auctions; market section; restriction of access to the market; refusal to conclude contracts with certain sellers and buyers, etc.
To establish the dominant position of an economic entity (entrepreneur) in the market of a certain product, two criteria are used - its market share, as well as the ability to exert a decisive influence on general terms and Conditions circulation of goods on the market and competition, i.e. the presence of an entrepreneur's market potential, "market power", which puts him in a position independent of other competitors.
Establishing the dominant position of Art. 12 of the Law on Competition attributed to the exclusive competence of the antimonopoly authorities - the State Antimonopoly Committee of the Russian Federation and its territorial bodies.
In accordance with Art. 4 of the Law on Competition, with a market share of 65% or more, a dominant position is presumed, and with a share not exceeding 35%, it is excluded. In the range from 35 to 65%, the dominant position is established by the antimonopoly authorities based on an analysis of the competitive environment. Entrepreneurs with a market share of more than 35% are included in the register maintained by the antimonopoly authorities. The register of economic entities with a market share of a certain product of more than 35% serves as a source of information for monitoring and determining the dominant position in the market.
The Law on Competition prohibits the conduct of competition by unfair methods aimed at acquiring business advantages, i.e. unfair competition. Various forms of unfair competition are listed in Art. 10 of the Law on Competition, including: distribution of false, inaccurate or distorted information that can cause losses or damage the business reputation of a competitor; misleading consumers about the quality of goods, etc. The Federal Law of July 18, 1995 "On Advertising" (SZ RF. 1995. N 30. Art. 2864) prohibits unfair, unethical, false advertising.
Restrictions on the discretion of entrepreneurs occupying a dominant position in the market in the exercise of civil rights, the prohibition of unfair competition and advertising are aimed at protecting the rights and interests of opposing persons and are one of the forms of state regulation of the market.
3. According to paragraph 2 of the commented article, the general consequence of the mentioned violations is the refusal of the court to protect the rights belonging to him to the person who abuses his rights. Thus, when an arbitration court considered an application to invalidate the decision of the antimonopoly authority obliging an energy supply organization to conclude an agreement for the transit of electricity through its networks from another energy supply organization in order to fulfill the latter's obligations to its counterparty, the court did not recognize the lawful reference to Art. 209 GK. Organization, based on Art. 209 of the Civil Code, argued that she had the right to dispose of the energy conducting networks independently owned by her, and no one was entitled to use them without her consent. The court refused to protect the right of ownership on the grounds that the energy supplying organization, which occupies a dominant position (having one hundred percent market share), did not prove the impossibility of transiting the energy of another person through its networks, therefore, its behavior goes beyond the established Art. 10 of the Civil Code limits the exercise of property rights. The court recognized such behavior as abuse of dominance and restriction of competition (see Commentary on Court Arbitration Practice, 1997, issue 4, p. 48).
The plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation in Resolution No. 6/8 indicated that when resolving disputes, a refusal on the basis of Art. 10 of the Civil Code in the protection of the right by the court is allowed only in cases where the case materials indicate that a citizen or legal entity has committed actions that can be qualified as an abuse of the right, in particular actions aimed at causing harm to other persons.
The Decree of the Plenums emphasizes the need to indicate in the reasoning part of the relevant court decision the grounds for qualifying the actions of one of the parties as an abuse of the right (paragraph 5 of the Decree).
4. Paragraph 3 of the article established the presumption of reasonableness of actions and good faith of the behavior of participants in civil legal relations, applied in cases where the law makes the protection of civil rights dependent on such behavior. The requirement of reasonableness and conscientiousness Art. 53 of the Civil Code applies to persons acting as a body of a legal entity. The principle of reasonableness and good faith by virtue of paragraph 3 of Art. 602 and Art. 662 of the Civil Code, the court should be guided by the court in resolving disputes between the parties: a) on the amount of maintenance provided to a citizen under a life maintenance agreement with a dependent; b) on compensation to the lessee for the cost of improvements made to the leased property. Article 1101 of the Civil Code provides that the court takes into account the requirements of reasonableness and fairness when determining the amount of compensation for moral damage.
In accordance with Art. 4 of the Law on Competition, the court may recognize competition as unfair if the actions of the entrepreneur are contrary to the requirements of integrity, reasonableness and fairness.
The inclusion of a norm presuming the reasonableness and good faith of the actions of subjects of civil rights in Art. 10 of the Civil Code, which establishes the limits of the exercise of civil rights, can be considered as equating unreasonable and dishonest behavior with the abuse of the right.
5. In paragraph 3 of the commented article there are no signs that allow recognizing the behavior as unfair and unreasonable. The content of such concepts is established by the court when considering a particular case, i.e. left to the discretion of the court.
The main legal significance of the commented norm is that it establishes the presumption of good faith and reasonableness of the actions of the subjects of civil legal relations. Any presumption is primarily of procedural significance, since distributes the obligation (burden) of proof between the parties to the disputed legal relationship. It follows from this presumption that the one who associates legal consequences with such behavior must prove the unreasonableness, bad faith, unfairness of behavior. The court proceeds from the assumption that the person to whom the demands are made acted reasonably and in good faith. So, the founders, presenting a claim for damages to a person who, by virtue of law or constituent documents, acts on behalf of a legal entity, must prove that the losses were caused by dishonest and unreasonable behavior (see Article 53 of the Civil Code and comments to it).
The well-known resolution of the plenum of the RF Armed Forces No. 25 dated June 23, 2015 touched, among other things, on the problem of good faith in the behavior of participants in civil transactions.
First of all, it is necessary to define the concepts, conscientiousness is more a philosophical category than a legal one. However, in legal science there are works devoted to this category in relation to law, first of all, this is the work of I.B. M. Shirvindt "To the anniversary of D.V. Dozhdev."
Urgent message for a lawyer! The police came to the office
Objective and subjective conscientiousness
There is subjective and objective conscientiousness, and although one is different from the other, the same term is used in Russia. Subjective conscientiousness, for example, consists in the wording "the person did not know or should not have known about certain circumstances." For example, a conscientious purchaser of a thing “did not know or should not have known” that he was buying a thing from an unauthorized person, not from the owner of the thing. Subjective good faith is important in disputing transactions: a transaction can only be disputed if the party “did not know or should not have known” that there were some flaws in it. So, according to paragraph 1 or paragraph 2 of Art. 174 It is possible to challenge a transaction made on clearly unfavorable terms when the second party knew or should have known about the obvious disadvantage of the transaction for the first party. It should be noted that the words "should have known ..." is a kind of objective imputation of guilt: if the other side claims that she did not know something, she is answered that she should have known, and is accused of not knowing .
Clause 1 interprets only objective good faith. Unfortunately, the reservation that there is also subjective conscientiousness was not made during the preparation of the document, although conscientiousness is not limited only to its objectivity. “Assessing the actions of the parties as bona fide or bad faith, one should proceed from the behavior expected from any participant in civil circulation, taking into account the rights and legitimate interests of the other party, assisting it, including in obtaining the necessary information” - says paragraph 1 of Resolution No. 25 Of course, here we are talking about objective conscientiousness, not subjective.
In his work, I. B. Novitsky argued that conscientious behavior should be recognized as the minimum acceptable in society. In fact, the principle of good faith serves different tasks- including, concretizing, clarifying in relation to the norms of the law, formulated with a certain degree of abstraction. The principle of good faith is fundamental for any field of activity. According to Novitsky, this is the minimum limit of what is acceptable in society. At the same time, Novitsky emphasized that the principle of conscientiousness is not equal to the idea of \u200b\u200b"love your neighbor more than yourself", although, of course, conscientiousness also includes the so-called "golden rule of morality" - "do not do to others what you do not want to others have done to you." The Supreme Court of the Russian Federation in paragraph 1 of Resolution No. 25 focuses on this aspect of good faith.
A similar rule about good faith in the performance of obligations is present in paragraph 3 of Art. 307 of the Civil Code of the Russian Federation. Conscientiousness in the performance of an obligation is a typical manifestation of objective good faith. Conscientious behavior is equally required of all participants in the turnover - not only, for example, from debtors, but also from creditors. Controversial situations and the limits of admissibility of actions of the parties will be determined by the court.
Good faith also consists in the fact that the party should not behave inconsistently. This aspect was not included in resolution No. 25, but the principle of estoppel, that is, the prohibition of contradictory behavior, also follows from the essence of good faith. If a person first approves a certain transaction, and then seeks to challenge it, this is contradictory behavior, a manifestation of bad faith. The objectively conscientious side of the transaction behaves consistently.
In the course of a trial, the court, on its own initiative, may apply the estoppel rule and refuse to defend a person suspected of abuse of rights, even if the other party does not require it. However, the parties should be notified of this so that there is no misunderstanding why one of them was denied the protection of rights and what, from the point of view of the court, is her bad faith. A party suspected of bad faith must be able to prove that it is acting in good faith.
Good faith presumption
In paragraph 5 of Art. 10 of the Civil Code of the Russian Federation says: "The good faith of the participants in civil legal relations and the reasonableness of their actions are assumed." The Supreme Court did not specifically dwell on explaining this provision, only stating its existence, however, from the point of view of a number of experts, this is a rather slippery moment: it is possible to predict many situations where good faith cannot be assumed, cannot be presumed. For example, if a certain owner files a claim for vindication against a bona fide purchaser of property, then the owner must prove the acquirer's bad faith, and if the acquirer himself initiates the process of recognizing his ownership right, proving his good faith is already his task. But according to the current rules, conscientiousness is always presumed.
At one time, the SAC closely considered the presumption of good faith in "On some issues of compensation for losses by persons who are members of the bodies of a legal entity." In part 5, clause 1 of the resolution, it was said: “If the director refuses to give explanations or their obvious incompleteness, if the court considers such behavior of the director to be unfair (Article 1 of the Civil Code of the Russian Federation), the burden of proving the absence of a violation of the obligation to act in the interests of the legal entity in good faith and may reasonably be imposed by the court on the director. This way of shifting the burden of proof by the court, the decision of the plenum of the Supreme Court No. 25 does not refute, but does not confirm either, the question was left out of the brackets. However, there is an opinion that the SAC clarification was made not only in relation to corporate disputes, but also in a broader sense, and this method can be applied in practice if necessary.
The new wording of Article 1 of the Civil Code of the Russian Federation states that in the performance of civil obligations, participants in legal relations must act in good faith. That no one has the right to take advantage of their illegal or dishonest behavior. It follows that the legislator "equated" dishonest behavior in civil law relations with illegal behavior. But there were no clear instructions from the legislator on what behavior is conscientious and what is not.
In order to get an idea of good faith, one should turn to judicial practice, based on the fact that any legal behavior that corresponds to the principle of good faith as a political and legal idea that has received recognition from the legislator by fixing it in law is good faith.
Hence, it becomes necessary to draw up a set of extracts (ratio decidendi) from the decisions and rulings of the Constitutional Court of the Russian Federation, decisions of the plenums of the Supreme Arbitration Court of the Russian Federation, reviews of case law.
Pacta sunt servanda:
“The obligation of subjects of civil law relations to fulfill their contractual obligations in good faith is based on the general legal principle pacta sunt servanda, as well as on guaranteeing the inviolability of property, freedom of economic activity and freedom of contract, judicial protection of violated rights (Article 8, Part 1; Article 17, Part 3 ; Articles 34, 35 and 46 of the Constitution of the Russian Federation), it provides for the restoration of the violated rights of creditors, the possibility of collecting debts at the expense of debtors' property (paragraph four of clause 2.1 of the motivational part). Consequently, the corresponding obligation is, in essence, constitutionally conditioned in nature, ”the Resolution of the Constitutional Court of the Russian Federation dated May 14, 2012 No. 11-P says. The ruling thus emphasizes that the principle of good faith is applied in the same system with other principles of civil law (inviolability of property, freedom of contract, judicial protection of violated rights) and is based on them. The principle of conscientiousness in the performance of civil obligations, taken in a system with the principles of inviolability of property (creditor), freedom of contract and judicial protection of violated rights, allows foreclosure on debtors' property.
Inviolability of property vs. right to housing
“By exercising appropriate legal regulation, taking into account the specific historical conditions for the functioning of the Russian legal system, the federal legislator has a certain discretion in choosing certain measures aimed at ensuring the conscientious fulfillment by citizens of their civil obligations and their liability, including with all their property, before creditors.
Clear instructions from the legislator on the subject of what behavior is conscientious and what is not, as it was not, and is not ...
However, these measures, within the framework of the implementation of judicial protection of the property interests of persons related relationships"debtor - creditor" should not violate a fair balance between the values expressed in the recognition and guarantee of the right to private property and the general legal principle of conscientious performance of obligations, on the one hand, and the right to housing, on the other," the decision of the Constitutional Court of the Russian Federation of May 14, 2012 No. 11-P. In this decision, the idea is carried out that the principle of conscientious fulfillment of obligations cannot prevail over other principles of law, in particular, over the principle of recognizing the right to housing (clause 1, article 1 of the Housing Code of the Russian Federation). In turn, other principles and rights, including the right to housing, should not take precedence over the principle of conscientious fulfillment of obligations. Measures aimed at ensuring the conscientious fulfillment by citizens of their civil obligations should not violate a fair balance between the values expressed in the recognition and guarantee of the right to private property and the general legal principle of conscientious fulfillment of obligations, on the one hand, and the right to housing.
Integrity and justice
“When property rights to a disputed thing, which have arisen on the grounds provided for by law, have other than the owner, persons - owners and users of the thing, these persons must also be guaranteed state protection of their rights. These property rights also include the rights of bona fide purchasers. By virtue of Articles 15 (Part 2), 17 (Part 3), 19 (Parts 1 and 2) and 55 (Parts 1 and 3) of the Constitution of the Russian Federation and based on the general legal principle of justice, the protection of property rights and other property rights, as well as rights and obligations of the parties in the contract should be carried out on the basis of proportionality and proportionality in order to ensure a balance of the rights and legitimate interests of all participants in civil circulation - owners, parties to the contract, third parties, ”approved in Resolution of the Constitutional Court of the Russian Federation dated April 21, 2003 No. 6-P. In other words, the court clarifies that the protection of the acquirers' good faith is based on the general legal principle of fairness.
“The federal legislator should provide for such methods and mechanisms for the implementation of property rights that would provide protection not only to owners, but also to bona fide purchasers as participants in civil circulation. Otherwise, for a wide range bona fide purchasers who show good will, reasonable diligence and caution when concluding a transaction, there will be a risk of unlawful loss of property that can be reclaimed from them by way of restitution. Such insecurity conflicts with the constitutional principles of freedom of economic activity and freedom of contracts, destabilizes civil circulation, undermines the trust of its participants in each other, which is incompatible with the fundamentals constitutional order of the Russian Federation as a state of law,” emphasizes the resolution of the Constitutional Court of the Russian Federation of April 21, 2003 No. 6-P. The court says that the acquirer of property, when making transactions, must show good will, reasonable diligence and caution. In this case, his behavior during the transaction is recognized as consistent with the principle of good faith. The protection of bona fide purchasers, that is, participants in civil transactions, corresponds to the constitutional principles of freedom of economic activity and freedom of contracts, contributes to the stability of civil transactions and the trust of subjects of civil law in relation to each other.
Claims for procedural costs
“In the system of current legal regulation, including in normative unity with Article 131 of the Code of Criminal Procedure of the Russian Federation, the costs of paying for the services of a representative are not among the procedural costs, but can be regarded as harm caused to a person as a result of his unjustified criminal prosecution within the meaning of Article 15” Compensation for losses” of the Civil Code of the Russian Federation. These expenses, as follows from the stated legal position of the Constitutional Court of the Russian Federation, may be recovered on the basis and in the manner prescribed by Article 1064 of the Civil Code of the Russian Federation. Its provisions must be interpreted in the context common principles civil legislation, which include the principle of good faith: according to Article 1 of the Civil Code of the Russian Federation, when establishing, exercising and protecting civil rights and in the performance of civil obligations, participants in civil legal relations must act in good faith (paragraph 3); no one has the right to take advantage of his illegal or bad faith behavior (paragraph 1).
The obligation of subjects of civil law relations to fulfill their contractual obligations in good faith is based on the general legal principle pacta sunt servanda...
In other words, the interpretation of the provisions of Article 1064 of the Civil Code of the Russian Federation in the system of current legal regulation implies the possibility of full or partial compensation by a private prosecutor for damages, depending on the actual circumstances of the case, indicating an honest error or, on the contrary, malicious intent that took place in his actions, as well as taking into account the requirements of reasonable sufficiency and fairness, ”is explained in the definition of the Constitutional Court of the Russian Federation of July 2, 2013 No. 1057-O. This definition confirms the right to recover damages caused by a private accusation of committing a criminally punishable act in civil proceedings. In addition, the definition emphasizes that the norms of civil law must be applied in accordance with the principles of civil law, which include the principle of good faith of participants in civil legal relations.
Director and Integrity
“The fact that the director’s action, which entailed negative consequences for the legal entity, including the transaction, was approved by the decision of the collegial bodies of the legal entity, as well as its founders ( participants), or the director acted in pursuance of the instructions of such persons, since the director bears an independent obligation to act in the interests of a legal entity (paragraph 3 of Article 53 of the Civil Code of the Russian Federation) ”, - is recorded in paragraph 7 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 30, 2013 No. 62 “On some issues of compensation for losses by persons who are members of the bodies of a legal entity”. This paragraph destroys the concept according to which the sole executive bodies of a legal entity (joint stock company) can “close themselves” from claims for compensation for losses caused to a legal entity by referring to decisions of a collegial management body (management board, directorate, board of directors, supervisory board) or meetings members of a legal entity. In case of disagreement with a decision that may lead to losses, the director is obliged to ask to be released from the duties of the sole executive body or agree with it and make a more balanced decision that is in accordance with the law and the principle of good faith of participants in civil turnover.
The protection of bona fide purchasers, that is, participants in civil transactions, is consistent with the constitutional principles of freedom of economic activity and freedom of contracts...
“Approving to himself as the general director of the company payrolls for the issuance of funds not provided for employment contract, having received a remuneration not agreed with his employer - the company represented by the Board of Directors, Gluzman I.Ya. violated the statutory principle of good faith and reasonableness in the exercise of their duties, under Art. 71 of the Law on joint-stock companies, as a result of which he caused losses to the society, which together testifies to the illegality and guilt of his actions, ”the decision of the Federal Antimonopoly Service of the Urals District of October 16, 2013 No. F09-9317 / 13 in case No. A34-6637 / 2012 in the case of revision of judicial acts on the claim of the joint-stock company for the recovery of 14 million 867 thousand 646 rubles. 37 kop. losses caused to the company as a result of illegal accrual and payment of bonuses not provided for by the employment contract and not agreed with the company's board of directors for the period from January 2009 to October 2011.
“The courts have not given an assessment of the defendant’s actions in terms of their good faith and reasonableness, it has not been established whether they were taken during the sale CEO any actions to determine its market value, whether public offers were made to sell them, whether the alienation of property pursued a reasonable economic goal, and whether such alienation was necessary for society in principle, and therefore, the conclusions of the courts that the causal relationship between the actions of the defendant and the consequences, as well as the fault of the defendant, are premature, ”the decision of the Federal Antimonopoly Service of the Moscow District of September 26, 2013 in case No. recovery of damages caused former director during the leadership of the organization.
Freedom of contract + good faith is not the same as Good faith + freedom of contract
In accordance with Art. 310 of the Civil Code of the Russian Federation, as well as part 2 of Art. 29 of the Law on banks and banking activity No. 395-1 interest rates for loans, as well as the loan term, can be changed by the bank unilaterally if this is provided for by the agreement with the borrower. However, these provisions do not mean that a contracting party who is notified of a change in the terms of the contract and does not agree with such changes cannot prove that a unilateral change in contractual terms violates a reasonable balance of rights and obligations of the parties to the contract, is contrary to established business habits, or otherwise violates fundamental private law principles of reasonableness and good faith”, - is resolved in paragraph 3 of the Review of judicial practice in resolving disputes related to the application of the provisions of the Civil Code of the Russian Federation on a loan agreement (Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 13, 2011 No. 147). The foregoing confirms the thesis that the principle of good faith is a requirement addressed to the participants in civil circulation, including when they exercise individual civil law regulation through the conclusion of contracts.
The director bears an independent obligation to act in the interests of the legal entity in good faith and reasonably ...
“The provisions of the loan agreement ... contain clearly onerous conditions for the acceding party, which, based on its reasonably understood interests, it would not accept if it had the opportunity to participate in determining the terms of the agreement. The controversial provisions of the agreement do not comply with the principle of good faith in commercial activities, they are clearly burdensome for the borrower, therefore, they significantly violate the balance of interests of the parties to the loan agreement, as they provide the lender with the opportunity to unilaterally change the terms of the agreement agreed by the parties, which are essential for agreements of this type. The agreement does not provide for the possibility of a borrower who disagrees with a change in lending conditions, without the consent of the lender, to repay the loan ahead of schedule on the same terms and thereby terminate relations with the bank; 2 of the Review of judicial practice in resolving disputes related to the application of the provisions of the Civil Code of the Russian Federation on a loan agreement (Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 13, 2011 No. 147).
Public order and integrity
Public order is based on the principles of equality of the parties to civil law relations, the good faith of their behavior, the proportionality of civil liability measures to the consequences of an offense taking into account guilt, ”the Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation dated April 23, 2013 No. 16497 / 12 says. It is recognized here that the legal behavior of participants in civil circulation, corresponding to the principle of good faith, is one of the principles of public order (legal order) of the Russian Federation, along with the principle of equality of participants in civil circulation.
Reasonableness, equality, conscientiousness
To civil legal relations, the dispute on which is considered within the framework of a specific case, the provisions of the Civil Code of the Russian Federation should be applied in their mutual connection, that is, "in a systematic interpretation, taking into account the general principles of civil law - equality of participants in business relations, conscientious and reasonable performance of civil duties by them" , - is explained in the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated May 28, 2013 No. 16246/12. In other words, civil laws must be interpreted in accordance with the principle of good faith of participants in civil transactions in the aggregate and in a system with other principles.
Fair exercise of rights
“Depending on the methods of violations of an obligation, their elimination may require both the provision of a certain period of time to the violator, and the immediate cessation of behavior that is contrary to the terms of the contract and the principle of fair exercise of rights. The requirement to eliminate violations of the obligation to establish fares within the tariff does not require additional material and time costs on the part of the entrepreneur and implies an immediate cessation of illegal behavior, ”says the Presidium of the Supreme Arbitration Court of the Russian Federation in Resolution No. 3378/12 dated September 11, 2012. In other words, the terms of the contract must be interpreted in accordance with the principle of good faith, and the obligation arising from the contract must be performed without violating the principle of good faith.
The bankruptcy commissioner has an independent obligation to act in good faith and reasonably in relation to the debtor and creditors ...
“In civil circulation, persons must act in good faith (paragraph 2 of Article 6, paragraph 3 of Article 10 of the Civil Code). All legal relations of the parties are regulated, among other things, on the basis of the principles of good faith, reasonableness and fairness. In violation of the principle of good faith, the Russian Ministry of Defense provided the company with a floating crane in obviously unusable condition. From memo It follows from the captain of this floating crane that the Ministry was aware of the absence of sewage and fecal and bilge water collection systems, navigation and radio equipment on the floating crane even before it left the port of Sevastopol. However, the executor not only failed to inform the customer about the unavailability of the vessel for sailing in violation of the contractual obligation assumed (subparagraph 2.1.2 of the contract), but also provided a certificate of seaworthiness,” states the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated February 21, 2012 No. 12499/11.
Denial of relief
The same Resolution No. 3378/12 states: “The provision of judicial protection to an entity that has been committing unlawful actions for a long time, which entailed a violation of the rights of an indefinite circle of persons - payers of inflated tariffs, and who was aware of the unlawful nature of their actions, does not comply with the principles of conscientious conduct of activities by participants in civil circulation and balance of public and private interests. In other words, the provision of judicial protection, that is, the recognition by the court of a subjective right or legally protected interest, the plaintiff or defendant may be made dependent on their good faith in the exercise, establishment, and execution of civil rights and obligations.
Integrity of the bankruptcy trustee
“The insolvency practitioner has an independent obligation to act in good faith and reasonably in relation to the debtor and creditors (clause 4, article 20.3 of the Bankruptcy Law), the mere fact that the actions of the insolvency practitioner were approved by the decision of the meeting of creditors, the recognition of which was denied invalid, does not may exclude the possibility of qualifying these actions as inconsistent with the standards of good faith and reasonableness, ”the resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated September 10, 2013 No. 14917/11 explains, - the arbitration manager improperly performed the duties of the bankruptcy trustee of the company, was aware of the illegality of her actions (inaction) , which were contrary to the interests of the debtor and creditors, the violations committed by her are significant, therefore she is subject to liability under paragraph 1 of Art. 20.4 of the Bankruptcy Law, in the form of removal from the duties of the bankruptcy trustee, which in this case corresponds to the general legal principle of proportionality of the measure of responsibility to the nature of the violation committed. In other words, the approval of the actions of an arbitration manager by a committee or a meeting of creditors is not in itself a circumstance excluding bad faith and unreasonableness of his actions.
“Actions (inaction) of the bankruptcy trustee in terms of fulfilling the obligation to ensure the safety of other collateral property (selection of an insolvent custodian, lack of proper control over the fulfillment by such custodian of the obligations assumed under the storage agreement, lack of proper verification of the condition of the debtor’s property transferred for storage), not comply with the principles of reasonableness and good faith; that the obligations of the bankruptcy trustee to ensure the safety of the debtor's property, which was the subject of pledge, were improperly performed, contrary to the interests of the debtor and its creditors, ”stated the Federal Arbitration Court of the East Siberian District in a decision dated September 5, 2013 in case No. A33 -2865/2013.
Integrity and Judicial Drama
“According to paragraph 2 of part 3 of Article 239 of the Arbitration Procedure Code of the Russian Federation, the enforcement of the decision would be contrary to fundamental principles Russian law (public order of the Russian Federation), aimed, among other things, at protecting the violated rights and legitimate interests of persons exercising entrepreneurial activity(Resolution of the Presidium of the Supreme Arbitration Court dated September 25, 2008 No. 13848/08). The public policy of the Russian Federation presupposes the good faith of the parties entering into private relations, the violation of which is the creation of the appearance of a private legal dispute, including by referring it to an arbitration court to obtain formal grounds for the alienation of real estate in order to withdraw the assets of the company by one of its participants " , - in the decision of the Presidium of the Supreme Arbitration Court of the Russian Federation of June 14, 2011 No. 1884/11 in case No. A41-9221 / 09, the idea is developed that the staging (“appearance”) of a private law dispute by its parties indicates bad faith of the parties. The public policy of the Russian Federation is identified with the system of principles of Russian law.
Limitation period and good faith
“Based on the principle of reasonableness and good faith, the plaintiff should have had information about financial condition affairs of society, to know about the provision of a loan to Shishmareva T.N. even before December 2011, the plaintiff's lack of information about the transaction does not indicate the proper exercise by the latter of the shareholder's rights established by Articles 67 of the Civil Code of the Russian Federation and 91 of the Law on Joint Stock Companies," the Federal Antimonopoly Service of the East Siberian District ruled, substantiating the decision to dismiss the claim in connection with the omission of the limitation period by the shareholder (decision dated October 21, 2013 in case No. A10-5301/2012).
Integrity and exceeding limits
“The demand to recognize as illegal the inaction of the bankruptcy trustee, expressed in not applying to the arbitration court with a request to increase the limit on spending funds to pay for the services of involved persons, was not stated, and the court of first instance had no procedural grounds to consider it. The arguments of the applicant of the cassation appeal about the validity of the overestimation of the spending limit are rejected by the court of cassation, since the bankruptcy trustee had real opportunity file a petition in accordance with paragraph 6 of Article 20.7 federal law dated October 26, 2002 No. 127-FZ “On Insolvency (Bankruptcy)”, however, he did not exercise his right, which led to a violation of the principles of reasonableness and good faith,” the FAS of the East Siberian District ruled, examining the case on a complaint against judicial acts on an application for declaring illegal the actions of the bankruptcy trustee to unreasonably involve persons who ensure the activities of the bankruptcy trustee in order to ensure their activities and the unjustified payment of remuneration to them in an amount exceeding the limit of expenses for these purposes (decision dated September 19, 2013 in case No. A58-2032 / 09) .
burden of proof
"Based …. presumptions of good faith and reasonableness of participants in civil legal relations and general principle evidence in arbitration proceedings, a person from whom reasonableness or good faith is required in the exercise of a right is recognized as acting reasonably and in good faith until proven otherwise. The burden of proving the opposite lies with the person who claims that the defendant used his right exclusively to harm another person, ”the decision of the Federal Antimonopoly Service of the Urals District dated October 18, 2013 No. F09-8338 / 12 in case No. A07-20394 / 2011 says. The court thus explains to the participants in civil legal relations the connection between the civil law principle of good faith, the presumption of good faith and the procedural burden of proof.
Lessor's dishonesty
“The rights of the lessor as a participant in lease legal relations are connected with his obligations to use his rights properly, therefore, his actions must be performed in good faith and reasonably, not allowing the creation of conditions for violating his rights, with subsequent application for their protection, and without placing another participant in the legal relationship into an unequal and worse position, bringing him to justice and creating additional adverse consequences for him, based on the complex relationships that have developed, "- proclaims the FAS of the Moscow District in a decision dated November 6, 2013 in case No. A40-172721 / 12-85-1080, wishing justify the decision to dismiss the claim to the lessor, who created insurmountable obstacles for the lessee's business, withholds the amount of the security deposit and the amount of the overpayment for.
Bad faith of the state customer
“The actions of the plaintiff in filing claims against the supplier for recovery for the short supply of goods in the amount of 202,341.41 rubles. penalties in the amount of more than 17 million rubles, in case of loss of interest in the actual supply of these products, established by the courts, do not indicate the observance by the state customer, as a participant in civil legal relations, of the principles of reasonableness and good faith, but are, in essence, an abuse of the right”, - Approves the Federal Antimonopoly Service of the Moscow District in a resolution dated October 4, 2013 in case No. А40-145772/12. In other words, one who does not wish to receive the product cannot demand a penalty for its underdelivery.
Conclusion
The study of judicial acts, which were decided with reference to the principle of good faith, allows us to come to the following conclusions:
- in general, the courts refer to the violation of the principle of good faith when making decisions on corporate disputes and disputes arising in the course of bankruptcy proceedings;
- The Federal Arbitration Court of the Moscow District, the Federal Arbitration Court of the Urals District, the Federal Arbitration Court of the North-Western District, following the Constitutional Court of the Russian Federation and the Presidium of the Supreme Arbitration Court of the Russian Federation, seek to formulate when deciding judicial acts in specific cases general provisions(ratio decidendi), on which they can rely in resolving other cases; in contrast to the named courts, the Federal Arbitration Court of the East Siberian District avoids proclaiming its own legal positions on the content of the principle of good faith when deciding judicial acts in specific cases;
- for the courts it is obvious that the principle of good faith is a requirement that is imposed on participants in civil legal relations, they propose to evaluate the behavior of the parties before the case is referred to the court through the prism of good faith even when the actions of a participant in a civil legal relationship, which were the reason for going to court, were committed before amendments to the Civil Code of the Russian Federation.
- for the courts, the connection between the principles of good faith and other principles of civil law is obvious, as well as the connection of the principle of good faith with civil law and procedural presumptions and the subject of proof in a particular case; the courts believe that the content of a principle of civil law, for example, freedom of contract, should be established taking into account the content of other principles. Principles "work" only in a system of principles, each of them cannot be considered as self-sufficient or prevailing over others;
- the courts believe that legal principles, including the principle of good faith, are the basis of the public order of the Russian Federation, or identify the legal order itself with the system of principles of civil law.
Lawyer at the enterprise
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The need to consolidate this principle was established by the Concept for the Development of the Civil Legislation of the Russian Federation in 2009. For comparison: this principle was legally enshrined in the French Civil Code in 1804, and the role of a powerful tool in the struggle of justice against strict law, the principle of good faith begins to play in the practice of German courts shortly after the adoption of the GGU, which entered into force in 1900.
The principle of good faith is enshrined for the first time at the level of a codified act of the Russian Federation, but it immediately became a key one, since all civil law regulation is based on it. Similarly, all amendments to the Civil Code of the Russian Federation that have followed since March 2013 take into account this principle or are directly based on it. Thus, the legislator recent years consistent in their decisions in this direction.
Many criteria for good faith have been developed judicial practice; For example, Resolution No. 62 of the Plenum of the Supreme Arbitration Court of the Russian Federation establishes the criteria for bad faith actions (inaction) of a director, which is considered proven, in particular, when the director:
1) acted in the presence of a conflict between his personal interests (the interests of affiliated persons of the director) and the interests of the legal entity, including if the director is actually interested in the transaction by the legal entity, unless information about the conflict of interest was disclosed in advance and actions directors have been approved in accordance with the procedure established by law;
2) concealed information about the transaction made by him from the participants of the legal entity (in particular, if information about such a transaction, in violation of the law, the charter or internal documents of the legal entity, was not included in the reporting of the legal entity) or provided the participants of the legal entity with inaccurate information about the relevant transaction;
3) made a transaction without the approval of the relevant bodies of the legal entity required by law or the charter;
4) after the termination of his powers, withholds and evades transferring to the legal entity documents relating to circumstances that entailed adverse consequences for the legal entity;
5) knew or should have known that his actions (inaction) at the time they were committed did not meet the interests of the legal entity, for example, he made a transaction (voted for its approval) on conditions that were obviously unfavorable for the legal entity or with a person who was obviously incapable of fulfilling the obligation ("one-day firm", etc.).
In terms of scope, the principle of good faith is not limited to any particular area, therefore, good faith is the main requirement in any legal relationship.
Initially, the conscientiousness category received legislative consolidation in real legal relations (this is the vindication and recovery of property from an illegal owner, who may or may not be in good faith, and acquisitive prescription, when the owner of the prescription must possess the property in good faith during the specified period), as well as in Art. 10 of the Civil Code of the Russian Federation as a limit to the exercise of civil rights.
However, law enforcement practice has shown that this category is necessary not only in property relations, but also in obligations, inheritance, intellectual property relations and, finally, corporate ones. Therefore, the trends of recent years show the desire of the legislator to regulate this category in contractual and pre-contractual relations, and the latter is especially important.
So, from June 1, 2015 Art. 434.1 of the Civil Code of the Russian Federation "Negotiations on the conclusion of a contract", which settled the relations of the parties at the stage of concluding a contract, when the contract itself has not yet been concluded. Paragraph 2 of this article is fully devoted to the good faith of future counterparties, namely: when entering into negotiations and during their conduct and upon their completion, the parties are obliged to act in good faith. This provision supplements Art. 1 of the Civil Code of the Russian Federation, in which the principle is indicated only in relation to participants in civil legal relations, and if there is no agreement yet, then the legal relationship has not arisen. Thus, the legislator obliged the counterparties to act in good faith and at this stage, too, understanding it most widely. It is indicated that it is not allowed to enter into negotiations or continue them with the deliberate absence of an intention to reach an agreement with the other party (it should be noted that in this case it will be difficult to prove "a deliberate absence of intention"). It is important that there are clear criteria for bad faith of the parties in the negotiations, namely:
1) providing the party with incomplete or false information, including silence about the circumstances that, due to the nature of the contract, must be brought to the attention of the other party;
2) sudden and unjustified termination of negotiations on the conclusion of a contract under such circumstances, in which the other party to the negotiations could not reasonably have expected it.
We believe that the specified criteria (types) of bad faith of future counterparties can be applied by analogy to such stages as the execution, amendment and termination of the contract (for example, failure to provide important information or provision of incomplete or inaccurate information).
The article also provides for the possibility of concluding an agreement on the procedure for conducting negotiations. At the same time, it is important that a reservation is made: the terms of this agreement, which limit liability for the parties' dishonest actions, are void (clause 5). This rule is not enshrined in other civil legal relations, but we believe that it can be applied by way of analogy of the law. The obligation of future counterparties to compensate for losses is established if a party conducts or interrupts negotiations on concluding an agreement in bad faith (clause 3).
It is also not clear whether the legislator classifies illegal behavior as bad faith (clause 4, article 1 of the Civil Code of the Russian Federation separates them, for example). In our opinion, any behavior that is contrary to the requirements of the law or the contract can be classified as dishonest, for example: failure to provide a land plot for construction under a construction contract, evasion of the commission agent from transferring the acquired property to the committent, or failure to perform other actions that the party is obliged to perform under the contract. This raises the question of the relationship of good faith with such a category as the delay of the debtor or creditor (Article 405, Civil Code of the Russian Federation) or non-performance (improper performance) of an obligation. It seems that these categories can be present together. In case of non-performance (improper performance) of an obligation, we can talk about bringing a person to civil liability. In case of bad faith, a refusal to protect the right that is exercised in bad faith follows, as well as the liability measures specified in the law (Article 10 of the Civil Code of the Russian Federation).
In science, there is an understanding of good faith as a duty to take into account other people's rights and legitimate interests, and such an interpretation (in a broad sense) corresponds to this. We can talk about good faith when the law requires taking into account the opinion of any persons, for example, in accordance with paragraph 2 of Art. 29 of the Civil Code of the Russian Federation, on behalf of a citizen recognized as legally incompetent, transactions are made by his guardian, taking into account the opinion of such a citizen, and if it is impossible to establish his opinion, taking into account information about his preferences received from the parents of such a citizen, his former guardians, other persons who provided such service to a citizen and conscientiously fulfilling their duties. Guardians and trustees perform their functions, taking into account the opinion of the ward, and if it is impossible to establish it, taking into account information about the preferences of the ward received from his parents, former guardians, other persons who provided services to him and faithfully performed their duties (Article 36 of the Civil Code of the Russian Federation) .
Good faith rules have also appeared in corporate relations. So, according to Art. 53.1 of the Civil Code of the Russian Federation, a person who, by virtue of a law, other legal act or constituent document of a legal entity, is authorized to act on its behalf, must act in the interests of the legal entity it represents in good faith and reasonably under pain of compensation for losses caused through its fault to the legal entity. At the same time, actions (inaction) that do not correspond to the usual conditions of civil circulation or ordinary business risk are classified as dishonest, but the list of such is open.
Voting by a collegial body for a deliberately unlawful decision is considered as dishonest behavior (Article 53.1 of the Civil Code of the Russian Federation); liability in the form of losses in this case is also borne by the members of the collegiate bodies of the legal entity, with the exception of those who voted against the decision that caused losses to the legal entity, or, acting in good faith, did not take part in the voting.
Even earlier, the Supreme Arbitration Court of the Russian Federation, speaking of the invalidity of the transaction, explained that from the disposition of Art. 10 of the Civil Code of the Russian Federation, it follows that the abuse of the right should be understood as the actions of participants in civil circulation, formally within the legal field, but aimed at achieving illegal goals, causing harm to other persons, exercising by participants in civil circulation of their rights in bad faith. When evaluating the actions of the parties as bona fide or bad faith, one should proceed from the behavior expected from any participant in civil transactions, taking into account the rights and legitimate interests of the other party, assisting it, including in obtaining the necessary information. As a general rule, paragraph 5 of Art. 10 of the Civil Code of the Russian Federation, the good faith of the participants in civil legal relations and the reasonableness of their actions are assumed until proven otherwise. However, if circumstances are established that indicate an abuse of the right, the transaction is declared invalid due to its nullity in accordance with the provisions of Art. 168 of the Civil Code of the Russian Federation.
Another short story about good faith is found in the new Art. 431.1 of the Civil Code of the Russian Federation "Invalidity of the contract". These rules, established by paragraph 2 of Art. 431.1 of the Civil Code of the Russian Federation, as amended by the Law under consideration, entered into force on June 1, 2015 and apply to contracts concluded after that date. In particular, a party that has accepted performance under a business contract from a counterparty and, at the same time, has not fully or partially fulfilled its obligation, will not be able to demand that such an agreement be declared invalid. To the contrary would mean dishonesty of this party. The exception is cases when a requirement is made to recognize the contract as invalid on such grounds as Art. 173, and the Civil Code of the Russian Federation, as well as if the performance provided by the other party is associated with knowingly unfair actions of this party.
A similar rule, applicable to all transactions, was already included a little earlier in Art. 166 of the Civil Code of the Russian Federation in the form of clause 5: a statement on the invalidity of a transaction has no legal significance if the person referring to the invalidity of the transaction acts in bad faith, in particular if his behavior after the conclusion of the transaction gave reason to other persons to rely on the validity of the transaction. For example, considering a dispute under a lease agreement, the Supreme Arbitration Court of the Russian Federation indicated: the court does not take into account the arguments of the tenant who used the property, but did not pay for the use, that the ownership of the leased property does not belong to the lessor, but to other persons, in connection with which the lease agreement is an invalid transaction (Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of November 17, 2011 N 73).
This rule is called "estoppel" - the prohibition to refer to a certain circumstance as an objection to the stated requirement. As rightly noted in science, this norm is saturated with evaluation categories; it should be expected that the courts will experience certain difficulties in its application until the Presidium of the Supreme Arbitration Court of the Russian Federation establishes guidelines as to what kind of bad faith behavior of the party should be taken into account [, p. 38-45].
Now the principle of good faith limits the parties in the right to demand recognition of the contract as not concluded. Important clarifications in this regard are given in the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation N 165:
A party to an agreement that has not passed the necessary state registration is not entitled on this basis to refer to its non-conclusion. As pointed out by the Supreme Arbitration Court of the Russian Federation, a different interpretation of the rules of civil law on the state registration of a lease agreement contributes to the unfair behavior of the parties to the agreement, which did not pass necessary registration but performed by them;
If the parties did not agree on any condition of the contract related to the essential ones, but then by joint actions for the execution of the contract and its acceptance eliminated the need to agree on such a condition, then the contract is considered concluded. At the same time, the Supreme Arbitration Court of the Russian Federation noted that if there is a dispute about the conclusion of the contract, the court must evaluate the circumstances of the case in their relationship in favor of maintaining, rather than canceling, obligations, and also based on the presumption of reasonableness and good faith of the participants in civil legal relations, enshrined in Art. 10 of the Civil Code of the Russian Federation;
The recovery of unjust enrichment for work actually performed in the absence of a state contract would open up for unscrupulous performers of work and state customers the opportunity to acquire illegal property benefits bypassing Federal Law No. 94-FZ of 21.07. for state and municipal needs".
Good faith in real legal relations is still of great importance. Thus, a bona fide purchaser can be reclaimed by vindication property acquired by him for compensation only in the case when the property is lost by the owner or the person to whom the property was transferred by the owner into possession, or stolen from one or the other, or left their possession in another way against their will. Money, as well as bearer securities, cannot be claimed from a bona fide purchaser (Article 302 of the Civil Code of the Russian Federation). At the same time, the concept of a bona fide purchaser is given: this is an acquirer who did not know and could not know that a person did not have the right to alienate this property. An important addition was made by the Constitutional Court of the Russian Federation, indicating that a bona fide acquisition in the sense of Art. 302 of the Civil Code of the Russian Federation is possible only when the property is acquired not directly from the owner, but from a person who did not have the right to alienate this property.
There is also the concept of an unscrupulous owner (Article 303 of the Civil Code of the Russian Federation) - a person who knew or should have known that his possession was illegal. Legal meaning of this factor: a bad faith owner can be required to return or reimburse all income that this person has derived or should have received during the entire period of ownership, and from a bona fide owner - only from the moment when he knew or should have known about the illegal possession or received a summons for claim by the owner for the return of the property.
The law interprets the possibility of compensation for costs and inseparable improvements in the event of vindication in different ways. The owner, both in good faith and in bad faith, in turn, has the right to demand compensation from the owner for the necessary expenses incurred by him on the property from the time from which the income from the property is due to the owner. A bona fide owner has the right to retain the separable improvements made by him or to demand compensation for the costs incurred for the improvement, if they are inseparable (but not more than the increase in the value of the property).
The Supreme Court of the Russian Federation has formulated the criteria for the good faith of the purchaser of a dwelling when claiming it under vindication:
The acquirer cannot be recognized as bona fide if, by the time the onerous transaction was made, there were claims of third parties in respect of the disputed property, of which he was aware, and if such claims were subsequently recognized as legitimate in the prescribed manner;
It is necessary to take into account the awareness of the purchaser of residential premises about the presence of an entry in the Unified State Register of Rights to Real Estate and transactions with it about the ownership right of the property alienator;
The adoption by the acquirer of reasonable measures to ascertain the seller's authority to alienate the residential premises, to ascertain the existence of encumbrances, including the imposed arrest,
Direct inspection of the dwelling before its acquisition;
Acquisition of residential premises at a price corresponding to the market;
Other facts due to the specific circumstances of the case. The conscientiousness of ownership is also assessed in the case of acquisitive prescription and is one of the conditions for acquiring ownership of property on this basis (Article 234 of the Civil Code of the Russian Federation). Long-term possession is conscientious if the person, when receiving possession, did not know and should not have known about the absence of grounds for the emergence of his ownership right.
From June 1, 2014, the concept of a bona fide pledgee appeared in the pledge legislation: if a thing was pledged to a pledgee by a person who was not its owner or otherwise was not duly authorized to dispose of property, which the pledgee did not know and should not have known (a bona fide pledgee ), the owner of the pledged property has the rights and obligations of the mortgagor (clause 2, article 335 of the Civil Code of the Russian Federation). An additional ground for terminating a pledge has also appeared - the acquisition of the subject of pledge by a bona fide purchaser.
There are direct indications of good faith in the bankruptcy legislation: the good faith of the person controlling the debtor (Article 10); good faith of a candidate for the position of an arbitration manager (Art. 20, 20.5,); the obligation of the arbitration manager, when carrying out the procedures applied in the bankruptcy case, to act in good faith and reasonably in the interests of the debtor, creditors and society (Article 20.3); good faith of the management company when investing the funds of the compensation fund (Article 25.1); the obligation of the bankruptcy trustee to act in good faith and reasonably, taking into account the rights and legitimate interests of creditors, a credit institution, society and the state (Article 189.78) .
Failure by the head of the requirements of the Bankruptcy Law to apply to the arbitration court with the debtor's bankruptcy statement indicates unfair concealment from creditors of information about the unsatisfactory property situation of the legal entity. Thus, the failure to act in accordance with the principle of good faith by a manager who evades the obligation imposed on him by the Bankruptcy Law to file a debtor’s application for his own bankruptcy (to transfer to a liquidation procedure carried out under the control of the court) is unlawful, guilty, entails property losses on the side of creditors and public legal entities, violates both the private interests of the subjects of civil legal relations and the public interests of the state. Based on this, the legislator in paragraph 2 of Art. 10 of the Bankruptcy Law presumed the existence of a causal relationship between the failure of the head of the debtor to file a bankruptcy petition and the negative consequences for creditors and the authorized body in the form of the inability to satisfy the increased debt.
In the subject of proof in disputes about bringing managers to responsibility, provided for in paragraph 2 of Art. 10 of the Bankruptcy Law, includes the establishment of the following circumstances:
The occurrence of one of the conditions listed in paragraph 1 of Art. 9 of the Bankruptcy Law;
The moment the condition occurred;
The fact that the manager did not file an application for bankruptcy of the debtor with the court within a month from the date of the occurrence of the relevant condition;
The volume of the debtor's obligations that arose after the expiration of the one-month period provided for in paragraph 2 of Art. 9 of the Bankruptcy Law.
When examining the combination of these circumstances, it should be taken into account that the obligation to file a bankruptcy petition arises at the moment when a conscientious and reasonable manager, within the framework of standard management practice, should have objectively determined the presence of one of the circumstances mentioned in paragraph 1 of Art. 9 of the Bankruptcy Law [, paragraph 2].
Along with the principle of good faith enshrined in 2013, from June 1, 2015, the Civil Code of the Russian Federation introduced a new obligation of the parties in legal obligations: when establishing, fulfilling an obligation and after its termination, the parties are obliged to act in good faith, taking into account the rights and legitimate interests of each other, mutually providing the necessary assistance to achieve the purpose of the obligation, as well as providing each other with the necessary information (Article 307 of the Civil Code of the Russian Federation). This obligation is specified in the subsequent norms on contractual obligations: the parties to the contract are obliged to act in good faith in case of unilateral refusal to perform the contract (clause 4 of article 450.1 of the Civil Code of the Russian Federation), in case of unilateral amendment of the contract (clause 4 of article 450 of the Civil Code of the Russian Federation), upon recognition of the contract not concluded, if the party accepted from the other party full or partial performance under the contract or otherwise confirmed the validity of the contract (clause 3 of article 432 of the Civil Code of the Russian Federation).
AT certain types contractual obligations, there are also rules on good faith:
Under a rent agreement, when resolving a dispute between the parties about the amount of maintenance that is provided or should be provided to a citizen, the court must be guided by the principles of good faith and reasonableness (clause 3 of article 602 of the Civil Code of the Russian Federation);
Under a lease agreement for an enterprise, the lessor may be released by the court from the obligation to reimburse the lessee for the cost of improvements to the leased property if he proves that the lessee’s costs for these improvements increase the value of the leased property disproportionately to the improvement in its quality and (or) operational properties, or the principles of good faith were violated in the implementation of such improvements and reasonableness (Article 662 of the Civil Code of the Russian Federation).
How is the content of the concept of good faith interpreted in specific legal relations?
For example, the court regarded as an abuse of the right and dishonest behavior the signing by the director on the day of his removal from office of a surety agreement that was obviously unprofitable and unprofitable for the company and declared it invalid under Art. 168 of the Civil Code of the Russian Federation. It is characteristic that the governing body of a legal entity is not an independent subject of law, nevertheless, the courts also evaluate their behavior for good faith, since a legal entity acquires rights and obligations through its bodies.
In another case, the court did not take into account the argument about the bad faith of the security company during the period of resolving the corporate conflict, since the corporate conflict in this case was resolved by a court decision only after the conclusion and termination of the disputed transaction. Evidence that the security organization during the period of resolution of the named conflict, in which it did not participate, unfairly relied on the data of the unified state register of legal entities, is not presented. The courts correctly pointed out that the negative consequences of a corporate dispute cannot be shifted to a person who has provided services to the defendant in good faith.
If the court establishes the existence of a corporate conflict in the company, the transaction may be declared invalid due to abuse of the right. Thus, the court considered that the director of the company with limited liability, abusing the position of the director of the company, made a transaction for the alienation of property contrary to the interests of other participants in the company. The court recognized that the loss of corporate control by the company's participants due to the illegal exclusion from its membership of one participant with a 50 percent stake in the authorized capital by another participant who is the general director did not allow them to change the general director in a timely manner and apply to the court for the protection of their violated property rights. This became possible only after the consistent contestation of all transactions made as a result of abuse by the General Director, the forced termination of his powers, carried out through the exercise by the participants of a limited liability company of the right to judicial protection. Taking into account the possibility of filing this claim only after the restoration of corporate control violated by one member of the company, as well as the fact established by the courts that the last buyer acquired the disputed property at a clearly underestimated price, the Presidium considers it justified that the courts refuse to apply the limitation period, which in its meaning corresponds to paragraph 2 tbsp. 10 of the Civil Code and acts in this case as a sanction for the abuse of rights.
In contractual relations, bad faith can manifest itself in the following: a party abuses its right arising from the terms of the contract that is different from the dispositive norm or excludes its application, or abuses its right based on a peremptory norm. In these cases, the court, taking into account the nature and consequences of the abuse committed, refuses this party to protect its right in whole or in part, or applies other measures provided for by law (clause 2, article 10 of the Civil Code of the Russian Federation). At the same time, situations are possible when the right is abused by both parties to the contract, who unfairly used the freedom to determine contractual terms in violation of the legally protected interests of third parties or public interests. In the accession agreement, the inclusion of unfair conditions is considered as unfair behavior (paragraphs 8-10 of Resolution of the Plenum No. 16).
With the introduction of the new principle, the practical value and the application of the rules of good faith in court. The behavior of one of the parties may be recognized as bad faith not only if there is a reasonable statement from the other party, but also at the initiative of the court, if there is an obvious deviation of the actions of a participant in civil circulation from good faith behavior.
Thus, the normative consolidation of the principle of good faith will not only establish the most important guidelines for the behavior of subjects of law, but also more widely apply civil protection measures in cases of dishonest actions of participants in the turnover.
If speak about legal system RF as a whole, then the requirements for the conscientiousness of participants can be traced in other codified acts; For example, in the Family Code of the Russian Federation Art. 1 establishes the requirements of equality, voluntary union, unhindered exercise of rights, but there is no principle as such.
In tax legal relations, this category is actively used when considering tax disputes. Thus, the Plenum of the Supreme Arbitration Court of the Russian Federation in one of its decisions indicated that the judicial practice of resolving tax disputes proceeds from the presumption of good faith of taxpayers and other participants in legal relations in the economic sphere. In this regard, it is assumed that the actions of the taxpayer, resulting in the receipt of tax benefits, are economically justified, and the information contained in the tax return and financial statements is reliable.
In housing disputes and legal relations, courts often use the category of good faith, but there is no such principle in the Housing Code of the Russian Federation either: in Art. 1 establishes the obligation of citizens, exercising housing rights and fulfilling the obligations arising from housing relations, not to violate the rights, freedoms and legitimate interests of other citizens. However, there is no obligation to act in good faith as such.
Thus, if initially the category of good faith was fixed in relation to real legal relations, then at present the principle of good faith common to all civil legal relations is fixed. Moreover, special norms on good faith began to appear actively in obligations and corporate relations, which was initially caused by arbitration practice and is a positive trend. However, practice has shown the need to include the obligation to act in good faith in other areas of law (tax, family, housing, etc.).
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