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Чтение книги "The implementation of the economic cycle: freedom, trust, duty" (страница 22)

   1.3. Institutional affiliation of collateral relationship. Specificity of civil regulation

   The question of the institute of law is a pledge (lien, the relationship) – of property or a debt, has a long history, and, of course, many have tried to resolve it[215].
   Г. Дернбург, Г.Ф. Шершеневич, Ю. Барон, В.М. Будилов and other authors have assumed that the bail is extremely proprietary institution, an essential feature of which is the alienation and transfer of things with the emergence of a mortgagee the right to the mortgaged property. Proponents of a material nature of collateral generally acknowledge the existence of the Law of Obligations hell collateral, but indicate that only features in ram collateral account of its nature. The main arguments in favor of a material nature of collateral commonly referred to as: following the law of collateral pledged for, the absolute protection of the lien creditor against any person and the resolution of conflict on the basis of seniority of creditors. The jurisprudence confirms this position[216]. Other authors, such as Д.И. Мейер, Л.В. Гантовер, Л.А. Кассо, А.С. Звоницкий, С.И. Вильнянский and В.М. Хвостов, viewed as a pledge of obligations law institute. Proponents of obligations of the legal nature of collateral relied mainly on the following considerations: a pledge does not give her the subject of the possibility of prolonged direct exposure of the thing. The domination of the creditor over a thing does not even influence character: while the existence of the debt security leads to burdening things, payment of the debt burden is destroyed[217].
   We cannot agree either with the advocates of a material nature of collateral, or the adherents of his Obligations of nature, since both of these positions greatly simplify the nature of the collateral by reducing it to the characteristics of complex formed in the civil law institutions.
   At the present stage of development of knowledge about the relationship of collateral issue, the legal nature of the collateral remains open, what stresses existing interest in this institution and the relevance of research in this area. Besides the practical relevance of research collateral relationships exist scientific interest, as confirmed by carrying out research in this area, preparation of papers on related topics. Nature of mortgage is twofold, and it is characterized as proprietary, and as the Law of Obligations, the focus on this issue distracts the researcher from the spirit, which consists in the method of enforcement of obligations.
   If we consider the legal structure of collateral relations in society, the legal registration of the collateral encumbered by rules of law of obligations. When activated, the creditor in respect of the collateral when it comes to the right of bail as a right, and burdensome thing that follows it, there is a real right[218].
   Thus, on the mortgage, with its existing item of publicity, namely the registration of the commission, confirming the charge, I believe, by the proprietary rule of law. A key player in credit relations in the broadest sense is a credit institution whose primary function is to provide loans and attracting deposits and making settlements.
   A credit institution – a legal person with special permission of the central bank to conduct banking operations, it has its own capital, also has the right to engage in monetary funds of natural persons and legal entities, which constitute the basis of a lot of money, which is calculated from the distribution of loans among borrowers.
   Some people have the available funds, which provide the bank, providing it with liquidity, and some lack the free cash and turning to the first or directly, or to a credit institution, forming a credit portfolio. Unlike credit, mortgage portfolio combines the assets transferred to a bank for temporary use and possession, but dispose of the bank has no right, and then there may not use the mortgaged property for a profit[219].
   Reasons for lack of funds may be different, if the «connect vessels», the level is equalized, but the debtor will be the obligation to return, and the lender the right to demand repayment in time, and together with the remuneration the amount of money lent.
   There is a risk of infringement of the debtor's obligation to avoid an institution thereof, to enforce the obligations presented as collateral relationship. The subject of mortgage lender compensates for the costs incurred in connection with the failure or improper performance of obligations by the debtor[220]. Subject of a pledge – a kind of a thing of value which the creditor may be entitled to the payment from the debtor through the sale of the collateral and to obtain from the sale of a certain sum of money.
   In case of excess proceeds over the amount of debt, the difference shall be returned to the debtor, if failure is part of the debt is subject of a claim from the debtor.
   In the field of civil relations all have financial evaluation. All transactions are in cash and cashless form by transferring cash from one person to another, or transfer of bank deposits in accounts in financial agents.
   The interaction of agents because their relationship, each of them has a picture of the inner world to strive to create an image due to the further conduct of any other actor, then, is a contract, an agreement between two or more persons representing the set of agreements about anything.
   The owner of the material goods needed to store their possessions, in the absence of his physical capabilities to implement their own security of property he refers to the ability to do this subject.
   A credit institution for withdrawal of collateral from the borrower's unfair, because some of specialization, financial operations, refers to the entities with the land, storage facilities, the right of ownership or leasehold basis with a view to making them, of course, on a reimbursable basis, seized the car from the borrower for the purpose of its implementation in arrears.
   When lending to buying a car for 008 off-balances by taking into account the car to ensure obligations are carried at acquisition cost, the so-called «collateral costs». However, the vehicle is operated by the borrower for a certain period of time, was in his possession, and has been exposed to the external environment that does not rule out changes in its fair value. During the term of the loan agreement the fair value of mortgage-thing may undergo a qualitative change[221]. At the moment, the credit institution and the borrower collateral interest as a commodity that has value as possible to receive at his disposition, while the cost goes to paying off debt.
   To determine the value of the collateral the credit institution or by the borrower draws an independent appraiser, which is an agreement by which he undertakes, using their professional knowledge and experience, with the support of appraisers offer an informed opinion on the value of the car.
   If you are not achieving the result in finding a buyer for the vehicle privately, the car passed specializing in buying and selling automobiles organization, accompanied by the transfer condition, the contract of the host organization and the owner of the car. Under the agreement, trade organizations committed to responsibly keep and maintain a marketable car periodically publish in the media about the desire and the conditions of his exclusion, the owner shall pay the fee for the service.
   Banks engage in various ways to protect their rights, the degree of non-uniform validity and feasibility. One common measure is the withdrawal of passports of vehicles, vehicles transferred as collateral for the credit obligations of the borrowers[222]. The owner of the collateral, the car is a borrower under the terms of the loan agreement the vehicle passport is stored in the client's management of the bank in the region to provide free cash. In the case of separation of ownership from the process of implementation of the car they used the mechanism of the power of attorney granting authority to another person to enter into relationships on the use, ownership and disposition of the vehicle.
   Of course we all know about the physics of «communicating vessels» – except if it is initially filling level is different, then it is aligned with their connection, and after separation of the return to the previous conditions gradually become different again. People tend to consume the material and spiritual goods, which, in turn, produces humanity and, with the help of nature. Turnover before the emergence of consumer demand, production, distribution, consumption, etc. For the rational allocation requires equal sharing, in view of existing expertise, someone bakes bread, and someone makes boots. Without going into details of economic theory, simply denote that the exchange takes place through cash flow, which are produced equivalent benefits. That is, money is a synthetic element promotes circulation of material and spiritual wealth, like a catalyst in chemical reactions. Operators are money lending institutions that conduct banking transactions, particularly credit. That is, provide a sum of money to the borrower for a fee in advance on condition of repayment and maturity. Operations conducted by credit institutions subject to internal accounting and external control by the Central Bank, as the banks are the operators of financial flows, whose total volume is equivalent to the aggregate public goods, the transparency of their activities is very significant for the society and state. Instead of providing cash, a credit institution takes account of property of similar or greater extent.
   If you have any mortgage agreed by the parties of the contract value of the mortgaged property transferred by the mortgagee or the mortgagor left, is reflected in off-balance account 008, «Guarantees received»[223].
   If the collateral is transferred by the pledge to the pledge, he is advisable to have an inventory card for the property received, indicating that the property is pledged, by analogy with the procedure established by section 14 of the Guidelines on accounting of fixed assets[224].

   The subject of pledge transferred to the pledgee, the pledger remains in the property (par. 2 art. 335 Civil Code), so returning it does not happen and the implementation of the obligation to pay value added tax does not arise (subpar. 1 par. 1 art. 146, par. 1 art. 39 Tax Code).
   The cost of the collateral is returned to the pledger, in the expenses is not included[225], since it does not get recognized as income (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. Upon termination of the contract agreed by the parties pledge of the pledged assets is deducted from the off-balance account 008, «Guarantees received». On the off-balance account 008 reflects the emergence and cessation of collateral, not a physical receipt and return of the collateral. Consequently, the write-off amount of collateral may be made by the pledgee before the return of the collateral mortgagor. If the collateral, the pledgee who was, they were wound up inventory card, then return information about the depositor of the collateral should also be reflected in the card.

   If mortgaged property were purchased by the mortgagee, in this case, secured by the pledge to the pledger shall be counted (in whole or in part) in repayment of obligations to pay for purchased assets (par. 6 art. 350 Civil Code).
   Implementation of the auction of the collateral owned by the depositor, not recorded mortgagee. At the date of receipt of funds from the auction organizer mortgagee makes an entry in the debit account 51 «Settlement Account» in correspondence with a score of 76 «Calculations with various debtors and creditors». Crediting amounts received in arrears the mortgagor (collateralized) reflects account charged to 76 in correspondence with the credit account, where the number of specified debt (sub 58-3 «Loans receivable»).
   If the mortgagee acquires the mortgagor collateral, it is accepted by the pledgee to accounting as an underlying asset at a bargain price (without VAT, subpar. 5, 6 PBU 5 / 01, subpar. 7, 8 PBU 6 / 01) while an entry is charged to the account of such assets and credited to the account 60 «Settlements with suppliers and contractors», which included payments to the depositor in connection with the acquisition of the collateral. Offset obligations to pay the mortgage acquired the collateral and the secured claim to the depositor account reflected a debit account 60 and credit account, which reflects commitment to the mortgagor, secured by the pledge.
   Termination of bail in connection with the sale (purchase) the mortgaged property and (or) the repayment of the secured obligation is reflected write-off agreed by the parties value of the collateral with off-balance account 008, «Guarantees received».
   Accounting for costs of the bank for payment of secured parking and security of collateral in order to calculate the income tax.

   According to the subpar. 1 – 2 par. 1 art. 343 of the Civil Code mortgagor or mortgagee, depending on which of them is the mortgaged property is required, including, unless otherwise provided by law or contract:
   – At the expense of the mortgagor to insure the mortgaged property to its full value from the risks associated with a decrease in market value of collateral loans cannot be entered in the ownership of the pledge[226], and if the full value of the property exceeds the amount secured by the pledge, in an amount not less than the amount of claim;
   – To take the measures necessary to ensure the safety of the mortgaged property, including protecting it from abuse and claims of third parties.
   Thus, as a general rule to ensure preservation of the pledged assets entrusted to the other side of the pledge agreement, in which the property is located on the treaty.
   Another procedure is designed for the costs of insurance of mortgaged property against risk of loss and damage. As a general rule, these costs are incurred by the mortgagor (art. 344 Civil Code).
   The above rule is discretionary, that is, the pledge agreement may provide for a different procedure for incurring such costs.
   In accordance with paragraph 1 art. 252 of the Tax Code costs deemed reasonable and documented expenses (and in cases under Art. 265 of the Tax Code, losses), exercise (sustained) by the taxpayer.
   Under the reasonable costs mean economically viable cost estimate is expressed in monetary terms. Expenses are recognized at any cost, provided that they are made to carry out activities aimed at generating income.
   In accordance with subpar. 7 par 1 art. 263 of the Tax Code for tax revenue costs of voluntary organizations include property insurance premiums in voluntary insurance of other property used by the taxpayer in carrying out activities aimed at generating income. Thus, insurance premiums (contributions) paid by the bank under insurance of mortgaged property received as collateral for bank loans, may be recognized as expenses of the bank's profits for tax purposes, unless the contract provides insurance on mortgage collateral by the mortgagee – the bank.
   With regard to expenditures for payment of services parking lot on which the vehicle is mortgaged, you should consider the position of subpar. 31 par. 1 art. 264 Tax Code. Other expenses related to production and sales are accounted for costs associated with payment services to third parties on the content and implementation of the legislation of the Russian Order of collateral and mortgage for the time of the specified items from the mortgagee after the transfer of the depositor. If the collateral under the pledge agreement is a mortgagee, the latter shall bear the cost of maintenance, including paying for their services through the parking lot and the right to take them into account other expenses associated with implementation. This is the specificity of the civil legal regulation of relations in society, associated with collateralized loan obligations fulfillment.
   Regarding the institutional affiliation of mortgage relations, science is still no certainty, what stresses the relevance and significance of the issue, because that certainly is not scientific. Existing academic potential can be absorbed if the proper argument. I think if there is an item of publicity, registration actions against the collateral, limiting its appeal, there is a proprietary feature of collateral relations. In practice, professional participants of this relationship to attempt to give publicity to individual types of collateral relations, but they are often suppressed. The basis of the test the right mortgage is a contractual obligation.
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