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Чтение книги "The implementation of the economic cycle: freedom, trust, duty" (страница 20)

   3.5. Issue bench warrant to recovered

   Based on the provisions of Art. 128 Code of Civil Procedure of the Russian Federation will send a copy of the judge of the court order the debtor, who, within ten days of receiving the order shall have the right to present their objections to its execution[201].
   If, within ten days after the debtor receives a copy of the writ on him of their objection, the second copy of the writ is issued to the claimant for submission to the execution (Sec. 1, Art. 130 Code of Civil Procedure Code). The court order is also an executive document, in connection with which the writ is issued[202].
   At the request of the claimant the court order may be directed by the court for the execution of a court bailiff. The request claimant must be expressed in writing, in practice, the application for issuance of the writ petition is applied, in which the claimant seeks an order to send a bailiff, in the case of a court order against the debtor.
   Enforcement proceedings instituted bailiff in the presentation of a court order. Orders can be enforced within three years. According to Art. 211 Code of Civil Procedure of the Russian Federation is subject to immediate execution of the writ:
   – alimony;
   – payment of employee wages for three months;
   – reinstatement;
   – the inclusion of a citizen of the Russian Federation to the list of voters, referendum participants.

   Chapter 4
   The order of satisfaction with the financial equirements of the credit institution through the implementation of the collateral

   1. Collateral relationship: concept, features, peculiarities of legal regulation

   1.1. The concept of bail in civil law

   By mortgage lender on the secured obligation is entitled in the event of default by the debtor of the obligation to obtain satisfaction from the value of the mortgaged property prior to other creditors of the person who owns the property, with the exceptions established by law (par. 1, art. 334 Civil Code). Pledge performs security functions, determines how the principle of preferential position of the pledge in relation to other creditors and the principle of following the right mortgage for a foreclosure sale[203].
   The pledge is known since Roman law that called for three main types of collateral[204]:
   – General mortgage (pledge of all assets in general);
   – Hand-held mortgages (transfer possession of the things the lender the right to use without obligation to include in the backup);
   – To send things to the creditor, with the proviso that, if debtor has defaulted, the thing goes into foreclosure, regardless of the size of the debt and value of the mortgaged property.
   Providing a guarantee provided by borrowing a sum of money to provide opportunities to meet the priority requirements of the mortgagee of the property value of the mortgaged property and proprietary rights restrictions – on the order laid down by the mortgagor[205].
   As a general rule collateral arises under the contract (par. 3 art. 334 Civil Code). The contract shall be in writing (par. 1 art. 339 Civil Code). The security deposit can be transferred to any property, including property rights and things, with some exceptions (art 336 Civil Code)[206].
   Owing to the nature of collateral relations, funds cannot be pledged[207]. The pledge may be both the debtor and the third person. To pledge things necessary to the mortgagor was entitled to its ownership or the right of economic management. The pledge of property right may be the person to whom the pledged right belongs (art 335 Civil Code). The right of pledge arises from the conclusion of the pledge agreement. If the property must be transferred to the pledge, the pledge right there at the time of transfer of the thing. May otherwise be provided in the contract (art 341 Civil Code).
   The main drawback is the inability of collateral circulation in the foreclosure of the collateral. In case of failure of the principal obligation the creditor is forced to sell the mortgaged property itself and meet its requirements only obtained from its value[208]. If there is a dispute between the pledge and the pledge the initial selling price of collateral established by the court on the basis of market price of the property[209]. In practice, the party concerned shall evaluate the property. Based on the results, as reflected in the report, agree with the other party selling price of the collateral.
   The pledged property in its entirety provides the pledge’s claim, including interest, penalty, damages caused by delay in performance[210]. In addition, the cost of the mortgaged property is reimbursement of the mortgagee for the maintenance of things as well as the costs of foreclosure. May otherwise be provided in the contract (art 337 Civil Code).
   The essential conditions required for contracts of this kind, without a contract will be deemed not concluded (art. 432 Civil Code) are:
   – Information on the property, pledge, and its evaluation (par 1. art. 339 Civil Code). The contract of pledge must contain information enabling identification of the pledge the property. The language defining the collateral, such as “cars and other vehicles owned by the borrower” is not possible to determine the estate passed to collateral that is taken into account by the court[211];
   – A condition on the size and duration of the obligation secured by the pledge (par. 1 art. 339 Civil Code). This condition is considered to be consistent if the agreement of the pledge is an allusion to the contract governing the principal obligation of the debtor[212];
   – A condition that, at any of the parties (the mortgagor or mortgagee) the pledged property (par. 1 art. 339 Civil Code). The mortgagee in the test situation is a credit institution, a legal entity.
   Obtaining property in the pledge does not entail any tax consequences on the value added tax, as the ownership of the collateral remains with the mortgagor (par. 2 art. 335 Civil Code). Value of property received in pledge, revenue is not included (subpar. 2 par. 1 art. 251 Tax Code). Property received in bail, remains the property of the mortgagor, regardless of whether it is the mortgagor or mortgagee in.
   If the object of pledge is a vehicle, the vehicle passport makes no marks, although the science continues to discuss the issue of maintaining a database of encumbrance of vehicles, but in practice do not enter such arrangements. The introduction of registration of mortgage transactions vehicles can only be set by issuing regulations, providing for state registration of rights for vehicles according to paragraph 2 art. 130 Civil Code[213].
   The legal nature of a dual pledge, I think, it must not be simplified by reducing the complex formed by the characteristics of the civil law institutions. In the social sense of security is the value of the mortgagor is the property of value, which the lender in an advantageous manner is able to obtain satisfaction of claims of financial misconduct in the performance of duties by the borrower to repay the loan. The main function of collateral flow from its definition, this is an interim, minimizing the risks associated with the lender and the deterrent associated with the psychological impact on the behavior of the debtor. Public activity is catalyzed by a combination of factors, one of which is wealth, which by their nature can act as pledged. Subjects having them in his possession, in the normal course of business subject to the motivation and stimulation, which is often the psychological basis of entry into collateral relations.
   The scope of property and of personal relations in a society based on equality, autonomy of the will and property independence of the participants referred to the sphere of civil society. One of its key categories is the property the absolute right, stipulating the right of possession, use and disposal facility. And as the category the money, means of payment, must be accepted at face value. On the activity of the will, property and cash based civil circulation by means of which human needs are met, there is coordination of its internal and external peace, manifest mental activity. The movement of property takes place through its alienation and acquisition, one of the mechanisms of acquisition is the realization of the Institute of sale. Buying and selling is a counter-exchange of the owner of things, one of her orders, and the holder of cash, which results in a change of ownership thing and transfer of funds in payment for it. In this case the property is assessed by the ratio of demand for it and supply of these things, but also in terms of its values, its ability to meet the needs of end users.
   Cash at their failure to compensate the owner for the disposal of the property for the benefit of another person may be obtained from a person, through the implementation of the mechanism of borrowing free cash. The mechanism of borrowing is the use of funds as an object property, taking into account the meaning of the following rules of financial management: «the value of a certain amount today, much higher than it tomorrow». Due to this condition, the acquisition of a sum of money, its buyer agrees to «tomorrow» to return the equivalent value of an amount of time the return and compensation for its provision.
   Under the obligation refers to the implementation actions of one person to do otherwise. Moreover, in view of free will, and those which obliged the risk of misconduct liable to stimulate his good conduct there is a mechanism to enforce the obligations. One of the key is to provide preventive and a punitive fine.
   The penalty has an effect on the human psyche through the creation of the inner world of human representation of the adverse effects of increasing monetary obligations to the outside world, which should be fulfilled in misconduct.
   Economically active entity becomes a party to pledge relations with the need for free cash and the desire to retain ownership of the collateral[214].
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