of April 10, 2008 No. 22
About some questions of practice of consideration of the disputes connected using Article 169 of the Civil code of the Russian Federation
Due to the questions arising in court practice connected using Article 169 of the Civil code of the Russian Federation and for the purpose of ensuring uniform approaches to their permission the Plenum of the Supreme Arbitration Court of the Russian Federation based on article 13 of the Federal constitutional Law "About Arbitration Courts in the Russian Federation" decides to give to Arbitration Courts (daleesuda) the following explanations.
1. According to Article 169 of the Civil code of the Russian Federation (further - the Civil Code of the Russian Federation, the Code) the transactions made on purpose, obviously opposite to bases of law and order and morality are insignificant.
In case of determination of scope of article 169 Civil Code of the Russian Federation courts need to recognize that as the transactions made with the specified purpose transactions which not just do not conform to requirements of the law or other legal acts (article 168 of the Code) can be qualified, and break the fundamental beginnings of the Russian law and order, the principles of the public, political and economic organization of society, its moral principles. The transactions directed to production and alienation of the certain types of the objects withdrawn or limited in civil circulation can be carried to the called transactions, in particular, (the corresponding types of weapon, ammunition, drugs, other products having properties, life-threatening and health of citizens, etc.); the transactions directed to production, distribution of the literature and other products propagandizing war, race, racial or religious strife; the transactions directed to production or sale of forgery documents and securities.
Thus, for application of article 169 Civil Code of the Russian Federation it is necessary to determine that the purpose of the transaction, the right and obligation which the parties aimed to establish in case of its making or desirable change or the termination of the existing rights and obligations (article 153 of the Code) obviously contradicted bases of law and order and morality. At the same time the purpose of the transaction can be acknowledged obviously opposite to bases of law and order and morality only if during legal proceedings intention availability on it at least at one of the parties is established.
2. Courts need to consider that the transactions made on purpose, obviously opposite to bases of law and order and morality can be covered with other transactions which formally do not violate requirements of the legislation.
In these cases the rules (Item 2 of article 170 Civil Code of the Russian Federation) relating to it are applied to the transaction which the parties really meant, taking into account being of the transaction owing to what the colourable transaction is qualified as insignificant only under article 170 Civil Code of the Russian Federation, and the covered transaction, in the presence to that the bases, can be qualified under article 169 of the Code.
3. According to Item 1 of article 167 Civil Code of the Russian Federation the invalid transaction does not attract legal effects, except for those which are connected with its invalidity, and is invalid from the moment of its making. For the transactions made on purpose, obviously opposite to bases of law and order and morality, article 169 of the Code provides special effects of invalidity, namely: non-admission of restitution and collection from the parties in the income of the Russian Federation of everything received (being due) according to the transaction - with intention at both parties - and unilateral restitution with simultaneous collection in the income of the Russian Federation received (being due) on transaction with one of storonpra availability intention only at one of the parties of such transaction. At the same time proceeding from direct specifying of article 169 Civil Code of the Russian Federation the called effects of invalidity of the transaction are subject to application if it was performed at least by one of its parties. The corresponding effects have the right to apply court on own initiative (Item 2 of article 166 Civil Code of the Russian Federation).
Courts should mean that the specified effects cannot be applied partially, and are subject to application only in full. For example, if by court it is determined that intentionally on transaction on purpose, obviously opposite to bases of law and order and morality, only one of the parties was effective, and the claimant requires collection in the income of the Russian Federation only performed by this party (the received execution which was due from it in compensation), then court, applying effects of invalidity of the transaction, shall not only meet the requirement of the claimant, but also make unilateral restitution, having collected from the party operating intentionally, received by it according to the transaction for benefit of other party (the paragraph third article 169 of the Code).
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