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of December 4, 2000 No. 33/14

About some questions of practice of consideration of the disputes connected with the circulation of bills of exchange

Due to the questions arising in court practice and for the purpose of ensuring uniform approach to their permission the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation decide to give to courts and Arbitration Courts (further - to courts) the following explanations:

1. By consideration of the disputes connected with the circulation of bills of exchange, courts should consider that the specified relations in the Russian Federation are governed by the Federal Law of March 11, 1997 N48-FZ "About the Translated and Promissory Note" and the Resolution of Central Executive Committee and Council of People's Commissars of the USSR of August 7, 1937 N104/1341 "About Enforcement of the Regulations on the Translated and Promissory Note" (further - the Provision) applied according to the international obligations of the Russian Federation following from its participation in the Convention establishing the Uniform law about the translated and promissory note, and the Convention which is intended for permission of some collisions of the laws on translated and promissory notes (Geneva, on June 7, 1930).

By consideration of disputes it must be kept in mind that bill transactions (in particular, on issue, the acceptance, indorsing, avalization of the bill of exchange, its acceptance according to the procedure of mediation and payment of the bill of exchange) are regulated by regulations of the special bill legislation.

At the same time these transactions are regulated as well by general regulations of the civil legislation on transactions and obligations (Article 153 - 181, 307 - 419 of the Civil code of the Russian Federation) *. Proceeding from it in cases of lack of special regulations in the bill legislation courts should apply general regulations of the Code to bill transactions taking into account their features.

2. According to article 142 of the Code security is the document certifying property rights with observance of the established form and obligatory details, implementation or transfer of which are possible only in case of its presentation. Therefore by hearing of cases about execution of bill obligations the court needs to check whether the document conforms to the formal requirements allowing to consider it as security (bill of exchange).

Article 4 of the Federal Law of March 11, 1997 of N48-FZ "About the Translated and Promissory Note" allows possibility of creation simple and bill of exchange only on paper (paper). With respect thereto it is necessary to consider that regulations of the law of bills cannot be applied to the obligations which are drawn up on electronic and magnetic media.

3. The list of obligatory details for bill of exchange is established in Article 1 of the Regulations on the translated and promissory note, and for the promissory note - in Article 75 of the Provision.

Owing to part 2 of article 144 of the Code and Articles 2 and 76 of the Provision the document in which is absent any of the designations specified in the mentioned Articles of the Provision is not valid the bill of exchange, except as specified, of Articles 2 and 76 of the Provision which are directly called in the second, third and fourth paragraphs.

The requirement of the bill holder about execution of the bill obligation based on the document which is not meeting the requirements to form and availability of details is subject to variation court that is not obstacle for presentation of the independent claim based on general regulations of the civil legislation on obligations.

5. In case of interpretation of the term "text of the document" (podp.1 Art. 1 and podp.1 of Art. 75 of the Provision) to courts need to recognize that the text of the bill of exchange should be considered that its part in which the essence (content) of this document, that is the offer or the promise to pay is put into words. Therefore the bill tag (the word "bill of exchange" expressed in that language in which the document is constituted) shall be included in the offer (promise) of payment of certain amount. The name of the document "bill of exchange" included in other part of the document is not bill tag and is deprived of bill and legal value.

6. By consideration of requirements about execution of the bill obligation courts should consider that the claimant shall submit to court the authentic document on which it bases the requirement as implementation of the right certified by security is possible only after its presentation (item 1 of Art. 142 of the Code).

The document shall be considered authentic if on it there is signature executed with own hand by person who constituted it or assumed liability.

At the same time absence at the claimant of the bill of exchange in itself cannot form the basis to refusal in the claim if by court it is determined that the bill of exchange was transferred to the defendant for the purpose of receipt of payment and the claimant this payment did not receive. The claimant in this case shall prove the called circumstances (item 2 of Art. 408 of the Code).


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