In a new issue of magazine “Arbitration practice for lawyers” № 9 for September 2017 there was published the interview of CEO National Law Company “Mitra” Yury Mirzoev and head of Energy and Antimonopoly practice Soslan Kairov.
Colleagues, good afternoon! Tell us, what is happening in tax law? I know you are interested in antitrust. But let's start the conversation with the tax. The last conversation about tax law I had with Sergey Budylin a year ago. Therefore, I wanted to return to this problem.
Yury Mirzoev: I can draw your attention to one of the latest letters from the Federal Tax Service of Russia, dated 23.03.2017. By the way, from the Federal Tax Service now more positive signals are coming to the taxpayers and the tax system than from the courts. We know that recently the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 12.10.2006 No. 53 "On Evaluation by Arbitration Courts of the Justification of Receiving a Tax Benefit by a Taxpayer" applies wherever possible. And the meaning of the decree is treated essentially differently, than occurred at its acceptance. So, the Federal Tax Service officially told its employees that the depth of the taxpayer's check should be limited to the first link.
And what does "the first link" mean?
YM: If a taxpayer has concluded an agreement with a company that is not one-day, pays taxes, etc., then this taxpayer can`t be blamed for the fact that the said company cooperates with such one-day ones.
But is it really different now?
YM: Yes, until recently it was almost impossible to win in courts if the tax authority found a one-day trip at the depth of the third or fourth link from the taxpayer. And this despite the fact that there were two Supreme Court rulings where it was said that this can`t be done, and a fresh review of his jurisprudence in 2017. The Federal Tax Service has just referred to these judicial acts and rather threateningly pointed out to its subordinate structures that this judicial practice should be observed.
Yeah, so all the same not only from the FTS benefits, but also from the courts, too. At least, from the highest instance. A FTS, rather, well done is that he does not stubborn, but respects the decision of the court.
YM: You can say that. Just now I have a dispute in court one in one under this explanation of the Federal Tax Service.
The taxpayer purchased the goods from a completely transparent fertilizer supplier company, which is 10 years old as an official registrant of drugs allowed for use in agriculture (information on the official website of the Ministry of Agriculture of Russia), and this company purchased goods from the classical one-day trip. And the taxpayer wants to be punished for this.
Wait, and who could come to check deeper than the first link. How can I find out if my counterparty is taxing with taxes? Even if I ask him for information, he will not give it to me, that's all. Trade secret. This is some kind of objective imputation in its pure form, it violates the basic principles of responsibility. There can be no liability in the absence of guilt, especially in public law. Either this is the Middle Ages ...
YM: Actually, sometimes there can be a responsibility for the second or third link. But only if it is proved that the taxpayer controlled these persons.
No, of course. If it is proved, at least 50 links. This is the fault called. No problem.
If companies from the second or third level were created by employees of the taxpayer or his longtime business partners, I can agree that there are indirect signs of his guilt. But in your own example, for sure, the supplier of fertilizers such buyers as your taxpayer had a million. And so clearly they were not included in the scheme, did not supply the producer with one-day firms, etc.
YM: Of course, this is already too much. Although it is strange, our lower-level judges in controversial situations still follow the path of protecting the budget and support the tax authorities.
For example, I lost the first instance in this case. Despite references to the same Supreme Court rulings that form the basis of the letter of the Federal Tax Service. And the appeal has already postponed the case for three sessions, does not know, apparently, how to proceed. Here's how to explain it? This is exactly what concerns the positive in tax law. And about negative points you can tell, of course, infinitely long ...
Soslan Kairov: Wait, so now are we discussing positive points? (Laughs.)
YM: Yes, they are positive. Because now there is an opportunity to cut off the wrong practice even at the pre-trial stage. Whatever you say, I have a good attitude towards the Federal Tax Service.
The FTS has a letter stating that if judicial practice has developed, then it is not necessary to produce court decisions against the tax authorities, it is necessary to solve everything with the taxpayer at the pre-trial stage.
O, the exit of this letter was preceded by lengthy meetings of the judges of the tax structure of the Supreme Arbitration Court of the Russian Federation and the Federal Tax Service, which were first subjected to exhortations, and when they did not help, the collection of judicial expenses from the tax authorities began in full (and the amounts were estimated in millions). After that, the tax service "surrendered," issued the same letter you are talking about, and the tax structure of the Supreme Arbitration Court of Russia - the most heavily loaded in court (first of all, because of the appeals of the Federal Tax Service for identical disputes) - has turned into the calmest, with a normal working environment.
YM: Well, now you don`t have to talk about exacting such expenses from the budget.
So, they are already used to it. And they act so simply out of habit, and not because it is threatened with some kind of punishment (legal expenses or something else).
I recently saw a story on Facebook about an unusual experiment. They put him in a room of monkeys, put a ladder and hang a banana. But if some monkey climbs a banana, then all the other monkeys get an electric discharge. That is, everything is bad. After a while, anyone who climbs a banana, their own companions give out cuffs. And then quietly, one by one, all monkeys are changed. A new one comes in, wants to climb behind a banana, but her fellow tribesmen give it up, and she obeys. Then comes the moment when all the monkeys are replaced, and they do not climb after the banana, and they beat the newcomers who want to climb after him, not knowing, and what's wrong with getting a banana from under the ceiling. This is the story. Habit…
YM: So, I had a situation.
The judge of the first instance ruled in favor of the budget for the tax period of 2013. He was corrected in the appeal, and the cassation agreed with the appeal. But the judge was caught in principle (in a bad sense), and in a similar dispute again brought the taxpayer accountable only as early as 2014. The Court of Appeal again overturned his decision. Well, what is the reason for the cassation in such a situation? Again, it was possible to earn on this for escorting the case at the cassation instance. But I acted differently. I decided to write a letter to the Federal Tax Service (to write to our territorial department). He appended two appeals, highlighting the most important thing. It takes 2 months, there is no cassation complaint. Then I find out that the central office has forbidden the Federal Tax Service of the subject to file a complaint. Those in shock. The judge in the first instance tears and swears. Apparently, he hoped for a cassation, though. Here's how after that do not love the FTS?
It seems to me, Yury, after our interview, the number of letters from taxpayers to the Federal Tax Service will grow. I hope they do not understand what's the reason, and they will not come to us with an evil desk audit.
YM: Before starting consulting, we discussed with my partner and my good friend Zaurbek Akhmetov as follows.
Courts began to make decisions in favor of entrepreneurs, and already 20% of taxpayers are not afraid to go into litigation with the state. Yes, some prefer to simply not pay taxes, working in gray, some are used to somehow negotiate. But neither is highly recommended by law. Hence, more and more citizens will choose the legal way, believe in justice and appeal to tax lawyers ...
It turned out exactly the opposite. That roll, which laid the courts in the direction of protecting the interests of the budget, led to the fact that the relations of the state and business in the tax sphere most resemble to the utmost the compressed spring. Further, either it will burst, or with a crazy speed will open. All the appeals reviewed their previous positions on tax disputes. Some manage to do this every six months. This undermines confidence in justice and leads to a rollback in the 90's, when everything was gray. How can you not understand this, seeing before yourself only a momentary benefit from replenishing the budget, I`m surprised.
Yes, we are passing through some kind of an original stage.
Y. M .: I think I felt this turn one of the first and I wrote about it on “zakon.ru”.
After Olympic Games I began to lose the courts. Before that, I did not lose at all. And here one by one. Probably, money is not enough. And then it will be even worse. I wrote all this in the comments, they say, do not force, everything is normal, etc. And then they liquidated the Supreme Arbitration Court and all said: yes, and everything has become bad for us.
S.K .: Recently, when Yury talks about tax practice, I often recall one story.
In 2014 in Greece, one local businessman, a producer of olives, complained to me that the local fiscal authorities would add to him a large amount of taxes, which almost completely absorbed his profits. I was indignant, why not try to challenge the decision of the tax authority in court. I received the answer: "Is it possible to go into litigation with the state, I will never prove my rightness."
About myself, I thought, "how wonderful is it in Russia with tax practice." But now I understand and often hear stories from colleagues that we "integrate" with Europe.
Nature hates emptiness, somewhere will be lost, it will arrive somewhere.
Y.M .: We reoriented. Now we have an important tax practice, but not the main one in the company . Soslan develops everything else. Soslan, tell us where we earn money. (With a laugh.)
Tell me where you store it ...
S.K.: Money is evil. They need to get rid of, but with the mind. (Laughs.)
I heard that in the Arbitration Court at the Russian Union of Industrialists and Entrepreneurs, where I recently became an arbitrator, all the disputes only go according to the contracts. And quite simple, I understand. Estimated.
Y. M .: We have the same observations in the courts of arbitration. We in the rating Pravo.ru in the past year were in the Southern Federal District because of what? Have several cases where the penalty was reduced from 3 billion to 120 million rubles.
S.K.: The courts on these cases in fact changed the practice that had developed in the district that the penalty should be charged to the total amount of the contract (as in the contract). We have formed an approach according to which one must count05 from the cost of uncompleted work.
Not so long ago I saw that the Supreme Court conducts such practice on state contracts.
S.K .: In our case, purchases were made according to the law on the procurement of goods, works and services by certain types of juridical persons. However, the essence of the matter does not change, it is a very close subject. The situation was further complicated by the fact that the contractors did not raise objections to the inclusion in the contract of conditions for charging penalties for the entire amount of the contract, and not only for the volume of outstanding work. Thus, they have greatly complicated the ability to protect themselves against such a contractual condition as unfair under art. 428 Civil Code of Russian Federation.
I watched the practice of state contracts and saw cases in which the courts said that it was senseless to object to the terms of the state contract, so protection under art. The party must receive.
Moreover, I generally don`t understand what kind of system is created for us, in which after the bidding we need to conclude another contract. According to me, the protocol based on the results of bidding should formalize, as it were, the acceptance of the offer of the one who is recognized as the winner of the bidding. And then there will be no disputes about the contents of the contract. It should be the same for all participants and known for them in advance. Otherwise, you will throw something out of the contract later in the final stage, and other participants will come running with the words that without such a condition they would trade further.
For this reason, I don`t understand what negotiations can be at the stage of concluding a contract based on the results of trading in Russia. It's just some formality, signing of papers, but not negotiations. And so, art. 428 Civil Code should protect the person who won the auction.
S.K .: The purchasing procedures remind me the theater where everyone plays a role. First, the customer finds a contractor, and then everyone starts to "play the theater." Sometimes they invite FAS to play. But all the salt is that the legislator is a director only on paper. After all, the goal of regulated competitive procurement is to choose the best counterparty. And what do we actually get? Probably, every second procurement procedure for a more or less serious purchase ends with a trial and all the time, somewhere near the law enforcement agencies are looking for trains. The company had several disputes over the Olympic construction projects, many disputes over contracts in the electric power industry. Absolutely all contractors are now in bankruptcy proceedings. I have a stereotype that this is a normal result for the construction business, which seeks orders in regulated purchases.
It turns out that the controversy over contracts provides food for your bankruptcy practice?
S.K .: To some extent, yes. However, contractors are not our main audience.
And who is your audience?
SK: Energy companies. Here is just now an interesting case is connected with offsetting counterclaims.
Oh, it seems, now they will come to the pebble in the shoe...
SK: It is not excluded. In our competitive weight there was a requirement to the person who was simultaneously the creditor of the given debtor-bankrupt. True, our demands were late (registered).
The claims of the debtor to us from the bankruptcy estate were sold on the auction, and we became vested against the new creditor. The first instance supported us, the appeal decided that such a set-off violated the rights of other competitive creditors. For three weeks we have been sitting and thinking about what, how it can violate them.
Yes, it`s an interesting question. Apparently, it is necessary to equate the late for bankruptcy requirement to the one by which the limitation period is missed, and then the credit should not in principle be allowed not simply on the basis of the provisions of the Bankruptcy Law, but also because of the general principles of the Civil Code of the Russian Federation. And if the counterclaim is unprofitable, then the basic requirement can be sold without much risk, it turns out. His buyer should not be afraid that he will come to the debtor, and he will claim the offset, referring to the rules of Art. 412 CC.
And in your example of the offset he said, right? Then the appeal is right, in my opinion. Just motivated wrong. Violated not the rights of creditors in the bankruptcy case, but the rights of the buyer of the right against which the claim was set off.
If the late creditor was not entitled to read out his claim in the bankruptcy case, he also does not have the right to read his claim against the assignee of his previous creditor. Otherwise, the competitive mass sold to the buyer a virtually non-existent requirement (after the statement of set-off, it becomes such as the claims terminate with retroactive force, that is, retrospectively) and will bear responsibility for it in accordance with the rules of Art. 390 Civil Code of the Russian Federation. And who needs it?
Did the judges recognize the transaction of the assignment as invalid, thus saving the demand in the bankrupt mass? Maybe he was sold very cheaply?
If not, then a strange decision. It turns out that the bankruptcy manager will have to recover the debt under this claim right from the late competing creditor. This time and money. Is the game worth the candle? Of course, this is a matter of fact, but on the whole, I don`t see any problems with the implementation of such a requirement with respect to the general procedure for selling the bankruptcy estate.
S.K .: I have another opinion on this problem.
Let's take a classic situation, when a creditor gives way to a third party. In turn, the debtor, having counter claims to the previous creditor, has the right to set off his claims against the new creditor. Are there any restrictions for the debtor? I think - no.
Concerning the new creditor, his rights can be violated only if he didn`t know about the presence of counter claims from the debtor. If he knew or should have known, it should not be canceled. In addition, as I understand it, if the new creditor, knowing about the existence of counterclaims, has bought a debt, the topic "who will buy the debt against which it is counted" doesn`t work and can`t work.
Now the classic situation is complicated by the fact that the original creditor is in bankruptcy. Than this situation is aggravated?
The fact that the general principles of bankruptcy procedure must be observed, including the order and proportionality of the satisfaction of creditors' claims. In other words, everything, that is not forbidden, is allowed. There is no absolute ban on credit in bankruptcy. In case that the right of claim is transferred from the competitive mass at the market price, and the register creditors are satisfied in the established order from the proceeds for the assigned rights, I think that in the dry balance of the difference between the classical situation and the situation where the bankrupt debtor is in the debtor's rights, should not be.
Did the debtor have the right to set-off against bankruptcy? Yes, it was, subject to the order and proportionality.
From this we conclude that the debtor can set off against the new creditor claims that he acquired from the assignor-bankrupt under two conditions:
1) the priority and proportionality of the register creditors of the assignor are not violated (after all, the debtor (by cession) receives satisfaction no longer at the expense of the bankrupt mass), and the cost of the right of claim does not take into account the presence of counterclaims;
2) the new creditor knew that he was buying claims against which there were counter claims.
Therefore, the competitive mass here in any case will not suffer, and the lender, aware of the claims encountered, in principle, will not be able to refer to Art. 390 Civil Code of the Russian Federation. In our case, the new creditor was the main competitive creditor in the bankruptcy case, effectively driving money through the cession from one pocket to another. And we got a set-off against our other "very lively" independent demand for a new creditor.
Interesting case. Maybe publish more detailed information on it in our magazine?
S.K .: I thought about it. By the way, one day it helped me a lot. Last year, we picked up the bankruptcy case of an energy sales company. It so happened that before I took up this matter, I published an article in "AP" on "The peculiarities of the bankruptcy procedure for guaranteeing electricity suppliers".
Y.M .: Soslan Kairov saved from the bankruptcy of the largest guaranteeing supplier in the North Caucasus by publishing an article in the magazine "Arbitration practice for lawyers"! How do you like this title? Moreover, he laid his article on the basis of the appeal, and the court based on it when writing the resolution.
SK: Officially declare: "This was not the originally planned action". True, our theses moved from the article to additions to the appeal, and from additions to the judicial act. Cassation supported.
Y.M: The topic is really controversial, I still think so.
S.K .: There is nothing controversial. There are two points against which it is impossible to oppose anything.
Y. M .: This is just a special case. The network company was in a situation even worse, so it could not be transferred to the functions of the guaranteeing supplier. But in general the topic is very controversial.
SK: I will not agree. Although I may have believed in my own hypothesis. (Laughs.)
Maybe you believed in her, Soslan, but I do not understand anything yet. I, of course, editor in chief and read all the articles, but I do not remember yours anymore. There is not enough RAM. Let's look in more detail.
SK: The situation is as follows. If the subject of natural monopoly goes bankrupt, then observation with regard to it can`t be introduced earlier than the bailiffs will apply for all of its property that doesn`t participate in its natural monopoly activity (clause 3 of Article 197 of the Bankruptcy Law). Conditionally, until all of its sanatoriums, maritime rest homes, etc., are sold out, the observation can`t be introduced. What do we get with the guaranteeing suppliers? Their activity consists in the sale of electricity, and it is not named in the law on natural monopolies as a separate type of such activity. In the law there are only four such activities, the electric power industry concerns only one of them - the transmission of electricity through electric grids. The supplier wasn`t engaged in such activities, accordingly, it was not a natural monopoly.
Now the guaranteeing supplier begins to go bankrupt. It had a 100% market share in the region, there were no other energy sales companies in the region, there were no other participants in the wholesale electricity market in the region. The only organization with the status of a guaranteeing supplier.
And what is this status?
SK: The guaranteeing supplier differs from a simple sales organization in that it sells energy under public contracts and has no right to refuse to the consumer who will apply for the contract. And now a bankruptcy case is being filed against him.
The first instance introduces observation. We are connected to the case at the stage of appeals and we say that the observation was entered incorrectly, because there are assets. The main asset - accounts receivable, which covers almost all accounts payable. That's when the bailiffs with this debtor will sort out, sell it from the auction and the proceeds from the sale will not be enough to settle with the creditors, that's when you enter the observation.
To this our opponents stood on the formal position that we are not subjects of natural monopoly by law and therefore such rules should not be applied.
Formally they are right. Apparently, Yury said about this, that the issue is not unique.
S.K .: Of course. And this answer immediately lies on the surface. However, we are deep in the situation, as it is now fashionable to say, "with the teleological interpretation of the law on bankruptcy." We raised the publications of V.V. Vitryansky, linked with the period of adoption of the law on the specifics of bankruptcy of subjects of natural monopolies, in which he explained the reason for introducing such special regulation. We conducted a comparative study and proved that there is no such regulation anywhere in the world of analogs. Is that in America there are features of the bankruptcy of the railways. We proved to the court that the main reason for introducing such features is the risk of infringement of public interests, and therefore the public interests of electricity consumers must prevail over the private interests of the lender in this case. And then we proved that the risk of infringement of public interests in case that the only guaranteeing supplier in the region will go bankrupt as an ordinary legal entity is certainly present. This was the first line of reasoning.
The second line was based on the principle of the unity of production and distribution of energy. The main debtor of the guaranteeing supplier were two grid companies, they did not pay for the energy they should buy in order to compensate for losses in the networks. The guaranteeing supplier received a court decision on one of the companies and went bankrupt. But the courts gave him a turn from the gate with reference to Section 3, Art. 197 of the Bankruptcy Law. The grid company was a subject of natural monopolies, and it had non-core assets (the same debtor, but for small consumers and related network organizations).
In this regard, we raised the question of what is the sense in bankruptcy of the guaranteeing supplier in such a situation? When will our creditors receive money?
It was clear to everyone that it was only when the network organization paid us. The economic sense in initiating the procedure was not. All the same, everyone would wait, when the guaranteeing supplier will deal with his receivables, otherwise only the courts would load the work for years to be performed by the bailiffs. After all, we were bankrupted as mere mortals, and our debtors did not want to disconnect from life support devices. Where is justice? After all, energy supply is a single production process.
As a result, the appeal agreed with our arguments and abolished the definition of the first instance of imposing an observation.
YM: It should be noted that the law takes into account the potential risk of bankruptcy of the guaranteeing supplier and indicates that in case of the introduction of observation procedure in relation to it, the status of the guaranteeing supplier passes from that organization to the network organization. And this, in fact, removes all these risks.
SK: It's true. The legislator settled this issue. And there would be no problems if, from the moment of introduction of the observation, the status of the guaranteeing supplier would be transferred to the network organization. And then there would be a competition for obtaining status among the new companies. However, this was an exceptional case. The territorial network organization was also in bankruptcy, the status was not transferred, and one more observation would have let the power ship of the region under water, and the arbitration court would have turned into a visiting department of energy sales activity that would have led the entire billing of the current debt. (Laughs.)
Yeah, now I understood. And she has long and reliably lies on her side and doesn`t go bankrupt only thanks to the defensive law?
YM: If there was someone to transfer the status of a guaranteeing supplier, then such a practice could not arise. That is, this is a special case and an exception to the rules. Therefore, even the Supreme Court first demanded the case on the complaint (indeed, it seems like a law that is not applicable to the forehead is applied), but then figured out all these subtle specifics and did not begin to reconsider the judicial acts.
SK: And the noise around the country in certain circles, this case has done a lot. If this practice is thoughtlessly based, then at first glance it will turn out that in general one can not bankrupt in the electric power industry and among other providers of public resources, too. But, by and large, we gave a chance to many guaranteeing suppliers with an unstable financial position.
And what`s the reason of their bankruptcy? Non-payments? Cash gap they get? The population does not pay on time?
SK: Non-payments and high losses in networks.
YM: In difficult regions, 100% of payment does not happen almost never, therefore debts accumulate constantly.
S.K .: If you take some Caucasian republics, then there is added to these problems the third one - inefficient tariff regulation, which does not allow to earn power supply companies.
That is, they lower the tariffs to protect the population, while they do not give money from the budget to the falling incomes?
S.K .: I have long conjectured for myself that the cost of a tariff is directly related to the passionarity of the inhabitants of the region. The higher the risk that the people go with pitchforks to the area, the lower the tariff, the more tightly the state controls the dynamics. By the way, it is with this I link the change in jurisdiction over tariff disputes. For example, the average consumer in Dagestan pays much less for energy than in Stavropol, and even more so in Moscow.
There is such an expert on the Caucasus Denis Sokolov. He always has rational answers to the Caucasian problems, which are not connected either with ethnoses, with religion, or with anything else that usually leads to the substantiation of the specifics of the Caucasian republics.
Returning to the history of taxes. The most obvious example is Dagestan. According to some estimates, 50% of business in the country is in shadow. For example, there is a brick factory, but INN has no, neither for civil turnover, nor for tax it is not. If it is not there, it can`t officially buy electricity or gas, having concluded the relevant contracts. Energy, then he needs somewhere to take? The factory works. That's excessive losses in networks and gas pipelines. Here the inefficiency of energy companies. One problem gives birth to another.
Ok. In general, it's funny. Previously, our magazine had a slogan: read "Arbitration practice" to win the case in court. It seems that it can be modified: write articles in the "Arbitration practice" to win the case in court.
SK: In my case it helped, although I did not refer to the article.
YM: They turned to us when they lost the first instance, they say, guys, help in the appeal. We look at the materials, and here Soslan says: colleagues, I wrote about this article in the "AP", everything should be fine.
A funny episode.
SK: And I did not have a solution in the article, it was just a statement of the problem. The separation of energy companies as a result of the reform is actually artificial, due to the need to improve efficiency by type of activity. Previously, there was one company that produced, transported, and sold electricity. Now there is a division by type of activity. However, the physical process remained unified and inseparable. Therefore, in all network companies and guaranteeing suppliers have a very similar status. This is evident from the antitrust practice.
Let's say a consumer does not pay for energy, and the guaranteeing supplier instructs the network organization to turn off this consumer. And the network organization may not have a separate "switch" on it, and it disconnects the whole house. As a result, the bona fide payers suffer. They reasonably flee to the antimonopoly authority with complaints. Whom does he punish? Both! Network company - for such an inattentive execution of the assignment. The network always knows about the consequences. And the guaranteeing supplier for the fact that he, as a professional market participant, had to foresee such actions of the network company.
If we talk about how articles help you win, I can tell you about my example.
The private law center gave an opinion on one issue of the bank guarantee for Norilsk Nickel. Obvious case, it seemed to me, but then they lost in the first three instances. And I, in order not to lose material, published an article in our journal last spring. So, this spring, in April, the case was requested by the Supreme Court and satisfied the demand of Norilsk Nickel. So, justice triumphed and, perhaps, the article helped.
S.K .: Here you are talking about bank guarantees, and I remembered one thing. Very interesting. The customer began to twist the hands of the contractor, scaring him with the fact that he would make demands on bank guarantees. The guarantees were unconditional and irrevocable.
The contractor did not want this, because he had significant loans issued by the same bank that acted as guarantor. At the same time, because of the cash gaps by other persons, an application was filed for the bankruptcy of the contractor. If the contractor would have figured out with small creditors yet, then he did not want to get an early demand for these loans (an extremely real threat of bankruptcy) from the bank, and he went on absolutely benign conditions. I signed an agreement on termination of the contract, in which the works were valued at 150 million instead of 300 million, which they really cost. So, the customer has deceived him in this, and he still did not withdraw the bank guarantees. There were two cases: the recovery from the guarantor of the amounts under the guarantee (the latter refused to pay, referring to the abuse of the right by the beneficiary) in the conditions when the contract was terminated, and about contesting the agreement on termination of the contract.
As one-sided transaction?
S.K .: Yes. And simultaneously we refer to the fact that there was a threat of lawful actions.
Oh, about the threat I have great doubts. I highly recommend Dmitry Zhubrin's article on this topic, published in our journal last year. It is clearly shown that courts recognize the threat of lawful acts in an abstract manner, but at the same time not a single case where on this basis the deal would be successfully challenged. As for the covetousness, my sympathies are entirely on your side. This is our long-standing dispute with Artem Karapetov. He believes that an entrepreneur is a samurai. Die, but do not settle for such enslaving conditions. And if agreed, then you can`t argue. Conditionally speaking, die now.
I do not know why, because we are encouraging people who are obviously dishonest, who do not enjoy the advantage of their products or knowledge, but the weakness of the other person, his plight. You have an excellent example. Sincerely I wish victory in disputing the transaction. It is necessary to teach those who abuse. Teach hard.
I remember that in 2004 the Presidium of the Supreme Arbitration Court of the Russian Federation considered a case where the court took the same samurai position: if, using your weakness, you were forced to evaluate the work under the contract instead of 200 million to 37 million, then this is your problem. And the fact that Gosgortechnazdor came to you and created unbearable conditions so that you quickly agreed, we do not care. Very worried because of this case. In the course of the civil law reform, we tried to change the Civil Code norm for one-side transactions by expanding the membership. But opponents did not allow us to do this. Therefore, the maximum is the position in the review of the Supreme Arbitration Court of the Russian Federation of December 10, 2013, No. 162, stating that the article on one-sided transactions still applies to entrepreneurs. In general, I wish good luck. It is high time to form such a practice.
Let us, perhaps, dwell on this. Thank you very much for the conversation. I think that those people who know your company for work in the North Caucasus and trust it to conduct projects already in Moscow, make the right choice. By the way, I want to congratulate you on the 5th anniversary of the company. Good luck!
Materials were taken from the "Arbitration practice for lawyers"
