Николай Камзин.

Diffusion value of the pledge. Collector activity



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Introduction

Institute of lending performs security functions in the global economy. The expediency of actions of the participants revealed by periodic debriefing activities. Socially important sector of the economy through government protectionism is not experiencing discomfort from the practical implementation of this institution. Innovative projects of the same business and consumer sector of society to use the credit facility requires an external stimulus. Such acts Institute of collateral to enforce credit obligations, guaranteeing financial compensation to the lender, which on the one hand to the subject for the insolvent, and other psychological factors, stimulating to the proper performance of obligations under the loan agreement. The subject of pledge encumbered in favor of the creditor, in what appears in ram lien being manifested in a pure form, subject to availability and properties of publicity followed[1]1
  Концепция развития гражданского законодательства Российской Федерации // Вестник ВАС РФ. № 11. 2009.


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. By foreclosure on the collateral the lender is authorized to satisfy the financial requirement.

The dynamics of the financial situation of the modern credit institutions and their clients determine the relevance to the consideration of the proposed research topic. The main objective of the bank – to make the maximum number of profitable operations in the shortest period. At this same time for each credit institution's priority is the recovery of debts from the debtors, that is, the use of legal mechanisms returns the previously provided finance.

The author intends to investigate the interaction of the legal lending institution and the borrower. A credit institution shall promote non-cash issue the national currency. Borrowers on a contractual basis are the currency at their disposal, as well as the money supply is the equivalent of the existing wealth and services, the equivalent emitted by cash collateral acts. Public relations is the essence of investigation is that the collateral for the borrower is a goal that is achieved by burdening credit obligations, and for the credit institution's legal basis for issuance of non-cash and property shall be credited to the account off-balance sheet accounting, that is the financial instrument through which the obligation is extinguished.

Based on the license the Russian Central Bank credit institution provides funds to the borrower to purchase a vehicle (car for non-commercial purposes.) Later on the basis of the credit agreement is calculated on a credit obligation.

When improper performance by the borrower of any financial obligation on the basis of a collateral agreement under implementation vehicle for the full, or the circumstances of a particular situation, a partial repayment of the loan obligation.

The main objective of the work is to investigate the methodological foundations of the legal regulation of mortgage lending sector relations in the acquisition of vehicles by individuals. Also require analysis of the legal mechanisms relations developing in the sale of collateral by credit institutions. To justify the practical relevance of research to study the practical arrangements to meet the requirements of credit institutions through foreclosure on collateral, taking into account the financial interest of the debtor and the credit institution.

Goal is achieved the following tasks:

– The study of theoretical and methodological bases of collateral in the functioning of the legal lending institution;

– Analysis of socio-legal basis of collateral and the factors determining the need for implementation of the collateral, storage, evaluation, presentation to a potential buyer.

– The study of theory and practice of sale of collateral with a credit institution.

The object of this study is the relationship of the bank and the borrower on the debt repayment on the loan obligation from the proceeds from the sale of the collateral.

The subject of research supports the legal mechanism to meet the requirements of the lender in the face of the credit institution through the implementation of the vehicle, which is the subject of a pledge of financial liabilities arising from the loan agreement.

The theoretical and methodological bases of the research were the works of experts. It should identify the works of researcher such as Ю. Барона, Р.С. Бевзенко, В.А. Белов, В.М. Будилов, А.Ю. Буркова, Д. Васильев, С.И. Вильнянский, Л.В. Гантовер, О.В. Грицай, Г. Дернбург, Д.В. Добрачев, Е. Евтюхина, А. Егоров, С.К. Загайнова, А.С. Звоницкий, Н.В. Золотько, Л.А. Кассо, М.Ю. Катвицкая, Б. Кемпл, М. Киселев, А. Коневский, С.А. Кузнецов, Ю.М. Лермонтов, А. Максуров, Д.И. Мейер, Д.В. Минимулин, А.П. Миронова, С. Нестин, Д.А. Паленов, Д. Петров, О. Плешанова, Ж.А. Подкопалова, Д.В. Пристансков, К.В. Раев, Н.Ю. Рассказова, М.А. Рожков, И. Рябинина, С.К. Соломин, И.Н. Сбитнева, В.В. Скворцов, А.А. Слуцкий, И.Е. Солова, М.Ю. Тихомиров, В.М. Хвостов, Л.Б. Шейнин, М. Шубенко, Ю. Шумилов, Jeffrey K. Liker.

Also was used legislation in the field of banking regulation and regulation of foreign trade, official statistical publications of international organization (IMF, WTO), the states, international banks and institutions.

The solutions of these problems in the research performed with a single methodological position, the basis of the research were scientific methods of research: logical, comparative, normative, comprehensive, systematic, specific theoretical approach: an ascent from the abstract to the concrete[2]2
  Яскевич Я.С. Методология и этика в современной науке: поиск открытой рациональности. – Минск: БГЭУ. 2007. – С. 33.


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The study author used the techniques of systems analysis of psychological, social, economic, but above all, legal phenomena, synthesis, problem approach to the study of issues of debt obligations, collateral, valuation of collateral.

The study examined regulations, the data of the Central Bank of Russia, credit institutions, research and development of textbooks, monographs and periodicals.

The scientific novelty of the results is proof of the following findings:

– Relationship to obtain available funds of the credit institution by the borrower to allow non-cash issue and the urgent needs of the borrower. Institute of Credit, which allows people due to the possibility of a subject to obtain satisfaction of their material needs, have a negative impact on socio-economic status of citizens thoughtlessly or deliberately overestimated their financial capabilities;

– A legal mechanism to enforce the obligations of the collateral value is widely used in lending, but security functions and is offset by the distribution. Credit institutions in view of the magnitude of its organizational and functional structure is not able to adequately monitor the collection process, which leads to reduced income from the proceeds after sale of collateral and their dispersal among the affiliated bank officials and their staff;

– Legal regulation of the sphere of money circulation makes its professional participants to ensure compliance with the requirements of the Bank of Russia. Credit institutions, carrying out performance targets, make loans with little support, and in the process of foreclosure is often collusion of participants in various combinations, leading to the realization of the collateral at a reduced cost, resulting in the denial of rights, such as the borrower and the bank.

The essential results of the study may also include the following:

– Define the concept of bail in civil law from the perspective of social value;

– Investigated the psychological aspects of the legal characteristics of the collateral relations;

– Analyzed the institutional ownership of collateral relationship, the specificity of civil regulation;

– The content of the credit agreement secured by a pledge;

– Investigated the types and reasons of financial claims of credit institutions to the participants of legal mortgage and third parties;

– Studied theoretical concepts and practical procedures for implementing the activities of the collateral.

The practical significance of the results of the study. Performed in the framework of the analysis allowed the construction of a unified picture of the implementation procedure of the collateral to repay the debt to the lending institution. The dynamic structure provides insight into the key points of the procedure, allowing a significant effect on its socio-economic results, which is important for the borrower in particular and society in general, significant financial result for the Bank, its affiliates and their employees.

Testing results. The main results of the author in the scientific and practical article, “Sputtering value of the collateral of the credit institution affiliated entities”, prepared for publication in the Journal of SSEU (№ 5 (67) 2010) and applied in practice in auditing procedures for the implementation of collateral credit the organization.

In the text of the study includes a list of references containing 86 items.

Chapter 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[3]3
  Рассказова Н.Ю. Залог движимого имущества // Меры обеспечения и меры ответственности в гражданском праве: сборник статей / рук. авт. кол. и отв. ред. М.А. Рожкова. М.: Статут, 2010. С. 8.


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The pledge is known since Roman law that called for three main types of collateral[4]4
  Кемпл Б. Практика применения права судами Кыргызской Республики. Сб. лекций: В 2 т.: Том I. – «Premier LTD», 2006. С. 156.


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– 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[5]5
  Кузнецов С.А. Судебные обеспечительные средства в российском гражданском праве. – М.: Волтерс Клувер, 2008. С. 79.


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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)[6]6
  Лермонтов Ю.М. Договоры – бухгалтерские и налоговые последствия. Велби ТК. 2010. С. 198.


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Owing to the nature of collateral relations, funds cannot be pledged[7]7
  Золотько Н.В. Некоторые проблемы залога имущественных прав // Вестник Федерального Арбитражного суда Северо-Кавказского округа. № 3. 2006.


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. 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[8]8
  Паленов Д.А. Залоговые правоотношения с учетом нового нормативно-правового регулирования // Регламентация банковских операций. Документы и комментарии. № 4. 2009.


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. 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[9]9
  Постановление ФАС Поволжского округа от 03.03.2010 по делу № А55-16293/2008 // СПС Гарант.


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. 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[10]10
  Раев К.В. Обращение взыскания на предмет залога // Имущественные отношения в Российской Федерации. № 5. 2009.


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. 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[11]11
  Определение ВАС РФ от 12.04.2010 по делу № ВАС-3332/10; Определение ВАС РФ от 12.04.2010 по делу № ВАС-3336/10; Определение ВАС РФ от 13.05.2010 по делу № ВАС-5585/10; Определение ВАС РФ от 13.05.2010 по делу № ВАС-5718/10; Определение ВАС РФ от 28.06.2010 по делу № ВАС-8174/10 // СПС Гарант.


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– 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[12]12
  Постановление Пленума Верховного Суда РФ № 6, Пленума ВАС РФ № 8 от 01.07.1996 «О некоторых вопросах, связанных с применением части первой Гражданского кодекса Российской Федерации» // Российская газета. № 151. 10.08.1996.


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– 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[13]13
  Егоров А. Проблемы регистрации залога автомобильного транспорта // Эж-ЮРИСТ. № 8. 2004.


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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.

1.2.Psychological aspects of legal characteristics of the collateral relations

The society is managed by appearing in its relationships. Man as a psycho-physiological system is the subject of relationships and people together make up the society with their individual legal culture, largely independent of the psychological motives of human action. Before it is adopted and enacted regulation, civil society focuses on the needs of regulatory settlement of existing relationships or qualitative changes in individual integrated relationships in order to correct a coherent social system.

The subject of law is as collective entities, as individual persons. Collective entities can be a structure with a common purpose and the distribution of functional roles and can also be complicated by a set of equal members in the form of public association. I think it is indisputable that it is human psychology, but rather the mental processes influence human activity and its relationship reasoned choice, in which he must come to their own or public necessity.

Time abstractly represented as a direct strike a point on it, which define the present, on either side of it, respectively, will be past and future. A person staying in the present, aware of the inevitability of the passage of time, having an idea about the past, looking to the future, free to plan, implement their plans, commensurate capabilities and desires. Desires are the consequence of the representation of something, to some extent known. Depends on the degree of knowledge of the validity of space needs for the future of man.

Features of the planning are closely linked with the responsibility for implementing the goals and the potential for further planning. If you violate the natural flow of things, an alien who violates the determining factor, the pressures on a person and all the planning to be with him in terms than narrower range of cognitive human nature that is unnatural.

Man exists in the environment of their own kind, in society, the society also dynamically in time, like a single person has the abstract mind, modeling his fortune and position in the future. To implement the will of society restricts the individual through the regulatory mechanisms of behavior in certain circumstances. By implementing these mechanisms in consciousness of generations of people, the culture of the peoples, the people “separated” from natural plants and host of the template defined in the future aspirations and opportunities in the present. In the process of improving the social mechanisms and social structures, one is totally abstracted from nature and is not without prejudice to his mind barely separable part of the social system in which there is until now. His mind knows and is subject to social environment, his aspirations for the future are determined mainly social factors, and the will is passive, undervalued opportunities. In this situation, there is a potential conflict of man and society for which a permit is either in complete subjection of human society and has further shaping its future through public awareness, or individualization of rights and the impact it will on the public consciousness.

Time is the catalyst for a man, human life, and that is a public catalyst that serves as a stimulating element in society, the state – the set of products, obtained possession of the material and spiritual values, “Gross Domestic Product”.

The person carrying out its activities, creates, consumes, uses, benefits of the material world, existing at the moment. Through his mind, he models the need for it in the future of some goods, possession of which is not possible with the currently existing opportunities. By appealing to the public mechanisms person meets all their needs, but now the company is competent to vindicate rights commensurate with the currently good for the balance of opportunities for all members of society.



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