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25 07 / 17

POSITIVE IMPULSE. ARTICLE OF THE MANAGING PARTNER OF THE LEGAL GROUP PARADIGMA KI RIUSAKOMSKY IN THE ” NEW ATTORNEY’S NEWSPAPER”.

Recently the Federation Council approved the Law "On Amendments to Parts One and Two of the Civil Code of the Russian Federation and Certain Legislative Acts of the Russian Federation". The block of amendments concerns provisions on on factoring, a bank deposit, the bank account, settlement obligations, loan agreements and the credit. I will stop on the changes, most interesting and significant for business community.

The link of material in New Attorney's Newspaper here: http://www.advgazeta.ru/blog/posts/762

The translation of the article below.

About the changes, most significant for business community, in the Civil Code of the Russian Federation

Recently  the Federation Council has approved the Law "About Modification of Parts the First and Second Civil Code of the Russian Federation and Separate Acts of the Russian Federation". The block of amendments concerns regulations on factoring, a bank deposit, the bank account, settlement obligations, loan agreements and the credit. I will stop on the changes, most interesting and significant for business community.

The contract of factoring

First, the contract of factoring doesn't cover itself all cases of a paid concession any more. The law allows also other contracts containing a condition about a concession of monetary requirements instead of providing financing to the party of the agreement or to the third party.

Secondly, in Art. 824 the list of the actions connected with the monetary requirements which are a subject of a concession, not less than two of which the financial agent (factor) has to make, is concretized:

– to transfer to the client money on account of monetary requirements, including in the form of a loan or preliminary payment (advance payment);

– to carry out the accounting of monetary requirements of the client to the third parties (debtors);

– to carry out the rights according to monetary requirements of the client, including to show them to debtors for payment, to receive payments from debtors and to make calculations connected with monetary requirements;

– to carry out the rights under contracts on ensuring performance of obligations of debtors.

Thirdly, in the Art. 829 the legislator has changed a presumption: in last edition of this article the general rule was that the subsequent factoring isn't allowed by the financial agent. Now the legislator specifies that by the general rule the subsequent factoring is allowed by the financial agent (factor) if the contract of factoring hasn't provided other, in that case when the factoring to the financial agent (factor) is carried out for acquisition by him of the specified requirement.

The contract of a bank deposit

Change of Art. 844 of the Civil Code of the Russian Federation which is devoted to savings and deposit certificates deserves attention. The legislator has established that only the natural person, including the individual entrepreneur, and the owner of the deposit certificate – only the legal entity can be the owner of the savings certificate.

The law enters new subspecies of the contract of a bank deposit – the contract of a bank deposit in precious metals. His feature consists that the bank returns to the investor or the precious metal of the same weight and the same name brought earlier by the investor, or issues money in the sum equivalent to the cost of this metal and also pays percent. The legislator places emphasis on a priority of return to the investor of his contribution in the form of earlier brought precious metal, having specified that the bank can return to the investor instead of precious metal money only if such opportunity is directly provided by the contract. It is an important guarantee of the rights and legitimate interests of the investor.

The contract of the bank account

First, the legislator enters new kinds of the contract of the bank account: the contract of the bank account in precious metals, the contract of the joint bank account, the contract of the public deposit account.

Nuances of the contract of the bank account in precious metals are similar to the above-stated nuances of the contract of a bank deposit in precious metals. The essence of such contract consists in a possibility of transfer on the bank account of precious metal, his transfer to the account and also his deliveries from the account.

The possibility of signing of the contract of the joint account between several natural persons is provided. The rights for the money which is on the account are considered belonging to such persons in the shares defined in proportion to amount of money, brought by each of clients or the third parties in favor of each of clients (if the agreement between clients hasn't provided disproportion).

Features contracts of the public bank account are signed in the following. The notary, court, Federal Bailiff Service or other public authority can be its owner. Such account can be opened only in those credit institutions which size of own means is not less than 20 billion rubles. In my opinion, establishment of this restriction is justified as it is connected with the fact that into the public account money for deposition by their debtor or the other person on a deposit in cases when such deposition is provided by the law will be enlisted.

Secondly, important changes in a part of the contract of an escrow account are made. Period of validity of the contract can't exceed an escrow 5 years. Cash, documentary securities and documents and also non-cash money and paperless securities can be subject to deposition. Now the legislator has specified that the rights for the money which is on such account belong to the depositor before date of emergence of the bases for data transmission of money to the beneficiary. After this date the rights for money arise at the beneficiary. The legislator has provided special protection on such account: suspension of the operations on him, arrest or funds write-off which are on him according to obligations of the depositor to the third parties and according to obligations of the beneficiary isn't allowed.

Settlement obligations

Changes in a part of banking liability for non-execution or for inadequate execution of the payment order are made to Art. 866 of the Civil Code of the Russian Federation. Now the bank will be obliged to pay damages in case the intermediary bank or recipient's bank has violated translation rules of money. At the same time the bank of the payer can be brought to joint liability if he has carried out the choice of intermediary bank. Besides, for violation of the rules of money transfer the bank will be obliged to pay percent for use of someone else's money on Art. 395 of the Civil Code of the Russian Federation that has to increase settlement discipline and the responsibility of credit institutions at execution of payments.

Noted changes have to give a positive impulse to strengthening of reliability of financial instruments, expansion of a line of the services offered in the market and also standardization of rules of the financial transactions of the Russian market and applied in world practice.