1. Donations are not allowed, with the exception of ordinary gifts, the value of which does not exceed three thousand rubles:
1) on behalf of minors and citizens recognized as incapable, their legal representatives;
2) employees of educational organizations, medical organizations, organizations providing social services, and similar organizations, including organizations for orphans and children left without parental care, citizens who are in them for treatment, maintenance or upbringing, spouses and relatives these citizens;
3) to persons replacing state posts of the Russian Federation, state posts of constituent entities of the Russian Federation, municipal posts, a government employee, a municipal employee, an employee of the Bank of Russia in connection with their official position or in connection with the performance of their official duties;
4) in relations between commercial organizations.
2. The prohibition on donating to persons replacing state posts of the Russian Federation, state posts of constituent entities of the Russian Federation, municipal posts, civil servants, municipal employees, employees of the Bank of Russia, established by clause 1 of this article, does not apply to cases of donation in connection with protocol events, official travel and other official events. Gifts that were received by persons filling in government posts of the Russian Federation, government posts of constituent entities of the Russian Federation, municipal posts, government employees, municipal employees, employees of the Bank of Russia and the value of which exceeds three thousand rubles are recognized respectively by federal property, property of a constituent entity of the Russian Federation or municipal property and transferred to the employee under the act in the authority in which the specified person replaces the position.
Commentary on Art. 575 of the Civil Code of the Russian Federation
1. The concept of "ordinary gift" is determined primarily by its value. Accordingly, luxury goods, collectibles, and other expensive gifts are not suitable for this concept. In addition, “ordinary” presupposes the tradition of the situation in which the gift is presented: as a rule, this is a generally accepted reaction to a common reason – an anniversary, the successful completion of a certain stage of life, a solemn event and
The cost of the gift in any case is the dominant characteristic when deciding on its admissibility. Even if the gift meets the other characteristics of the "ordinary", but its value exceeds the amount specified in the law, donation is prohibited.
The current edition of the commented article, while retaining the use of the term “regular gift”, replaces the previously used floating criterion of the significance of such a gift in the form of five minimum wages by a fixed amount of 3 thousand rubles. This is fully in the context of the general policy of the legislator to abandon the use of the minimum wage when calculating fines and other legal amounts of monetary amounts.
2. In accordance with paragraph 2 of Art. 37 of the Civil Code of the Russian Federation, the guardian is not entitled to conclude transactions on alienation, including the exchange or donation of the property of the ward, renting it out (for rent), free of charge or pledging, transactions involving a waiver of rights belonging to the ward, section of his property or separation from it shares, as well as any other transactions entailing a decrease in the property of the ward, without prior permission of the guardianship authority. Rule 1 of the commented article should be applied taking into account this provision. Thus, to make an ordinary gift only on the basis of its own will and without any permission can only the parents of a minor on his behalf. The donation of property to minors or children recognized as incapable for more than 3 thousand rubles is unacceptable even with the consent of the guardianship and trusteeship bodies.
3. Federal Law No. 49-FZ of April 24, 2008 “On Amendments to Certain Legislative Acts of the Russian Federation in connection with the adoption of the Federal Law“ On Guardianship and Custody ”clarified the list of organizations whose employees are prohibited from giving gifts that are not subject to the concept ordinary. Earlier in the commented article it was about medical, educational, social and similar institutions. Subparagraph 2 of paragraph 1 of the article being commented upon is intended to extend the gift ban to unacceptable, from the point of view of the legislator, situations in which the donee do not replace the positions listed in subsection. 3 of the same paragraph. Employees of institutions listed in sub. 2, can be at the same time state or municipal employees, which will entail the extension of additional restrictions on them.
4. In the interpretation of the provisions of sub. 3 p. 1 of the commented article can meet unjustified extremes. Sometimes they are considered as allowing officials to receive gifts in connection with their official position and official activity, regardless of the background of such a gift, so long as the cost of the latter does not exceed the size specified by this standard.
On the other hand, there is the point of view of the “hawks”, calling for banning persons holding these positions in the system of state and municipal service from accepting any kind of gifts from strangers at all, including regular birthday gifts, memorable events and
The international anti-corruption organizations, with which the Russian Federation cooperates within the framework of its convention obligations, take a fairly orthodox position (for example, GRECO is a group of anti-corruption states, in which Russia is by virtue of its accession to the Council of Europe Convention on Criminal Responsibility for corruption of January 27, 1999). In their opinion, the presence in civil legislation of countries – participants of this Convention of such a "loophole" provokes corruption facts, veiled by gifts.
5. It appears that the new edition of the commented article, which established in paragraph 2 the rules defining the fate of the “protocol” gifts worth more than 3 thousand rubles, brought some clarity to these discussions.
Firstly, it is clear from the text of this point that the prohibition on donating special subjects does not apply to situations related to “official” occasions. Such transactions can not be interpreted as insignificant, and the actions of donors should not raise doubts regarding their legality.
Secondly, the textual and logical interpretation of paragraph 2 of the commented article gives grounds to believe that the employee received for such “official” occasions worth less than 3 thousand rubles the employee has the right to retain. Using the same logic, one cannot fail to recognize the admissibility of giving ordinary gifts to employees by outsiders (in particular, work colleagues who are familiar with in connection with personal memorials, national holidays and
However, this clarity, introduced into the situation of the new edition of the commented article, seems to end. By virtue of the same textual interpretation of the law, the prohibition of donation set forth in clause 1 of the article being commented on should be considered not applicable only to donors. In case of exceeding the value of the gift of the established milestone, the official who received the gift still cannot acquire ownership rights to it, even if the gift was handed to him on an official occasion. Significantly changed only the consequences of such impossibility. If earlier a donation agreement for an amount greater than that established by the Civil Code of the Russian Federation should have been qualified as insignificant in such a case, now it will entail legal consequences in the form of the emergence of the right of state or municipal ownership of the gift.
6. The terminology of paragraph 2, in particular, the notion of “official reason”, causes a lot of questions. To date, the procedure for transferring expensive gifts to state or municipal property has not been determined. All these issues are intended to be settled at the level of the secondary legislation, which is currently being developed.
On the other hand, it is categorically unacceptable to consider the promotion of any gifts (even of insignificant cost) of officials in connection with the exercise of their official duties in the provision of public services, regardless of whether they are carried out in accordance with the law or in violation of the law. In accordance with the General Principles of Service Conduct of Civil Servants, approved by Presidential Decree No. 885 of August 12, 2002, civil servants are not intended to give preference to any professional or social groups and organizations to be independent of the influence of citizens, professional or social groups and organizations; exclude actions related to the influence of any personal, property (financial) and other interests that prevent the conscientious performance of official (official) duties; refrain from behavior that would cause doubt in the objective performance of official (official) duties by them.
——————————— Meeting of the legislation of the Russian Federation. 2002. N 33. Art. 3196; 2007. N 13. Art. 1531.
Article 290 of the Criminal Code of the Russian Federation considers as a bribe any property or property benefits received by an official for the relevant actions (inaction) in favor of the bribe giver. Only an item 2 of Art. 14 of the Criminal Code, excluding criminal liability for insignificant actions, however, such an assessment is made in each specific case and is not focused on fixed remuneration.
Since civil legislation cannot interfere in the sphere of public law regulation, repeal or change its prohibitions and restrictions, the commented article is not special in relation to the norms establishing special procedures for exercising authority in state and municipal services. Any transactions directly or indirectly aimed at remuneration of employees for actions included in the scope of their official duties, or for the so-called general favors in the service, are void, regardless of their size.
7. The rule prohibiting donations in the relations between commercial organizations is fully justified in a market economy, since it allows to prevent various kinds of financial fraud and abuse in the economic sphere. At the same time, it is entirely acceptable for entrepreneurs to donate property to non-profit legal entities, individual citizens or whole categories of consumers, either in the form of gifts, or through the establishment of preferential terms for the payment of goods, works, services, exemption from certain duties and
Of particular importance with the complication of market relations acquired turnover of property rights. The absence of conditions on the retribution of the provision of property in the form of the assignment of the right of claim, acceptance of the debt, debt forgiveness, release from the obligation directly in the relevant agreements between business entities does not always indicate the absence of a reciprocal grant from the other party. Such contracts should be qualified as gift contracts only in the case when the presumption of their retribution can be refuted (clause 3 of Article 423 of the Civil Code).
Not at all any debt forgiveness, exemption from duty in another form should be qualified as a gift, a sign of which is always the donor’s intention to create a property benefit in the economic sphere of the donee, not caused by reciprocal granting. As a pragmatic motive for the assignment of the right of claim, it can be included in the scheme of netting, compensation, saving own funds and
Such a position after a rather long period of inconsistency of court decisions prevailed in arbitration practice. Paragraph 9 of the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 120 of October 30, 2007 states that an agreement on the assignment of a right (claim) between commercial organizations can be qualified as a gift only if the parties set the intention to free transfer of rights (requirements). The absence in the transaction of the assignment of the right (claim) of the condition on the price of the transferred right (claim) does not in itself constitute grounds for declaring it null and void as a gift transaction between commercial organizations. According to the Presidium of the Supreme Arbitration Court of the Russian Federation, the courts should take into account the provisions of paragraph 3 of Art. 423 of the Civil Code of the Russian Federation, by virtue of which the contract is supposed to be paid for, unless the law, other legal acts, the content or substance of the contract otherwise provide. The qualification of the agreement on the assignment of the right (claim) as a deed of gift is possible only if the intention to transfer the right (claim) free of charge is established. The absence of a condition on the price of the right (requirement) transferred in the evaluated agreement does not in itself indicate a gift of the corresponding right (requirement).
——————————— Bulletin of the Supreme Arbitration Court of the Russian Federation. 2008. N 1.
The question of the hidden retribution should be decided in each case with the study of the actual relationship of the subjects and the circumstances of the conclusion of the contract.
It is unacceptable in relations between commercial organizations in advance of the agreed release of the counterparty from payment under contracts that the Civil Code defines solely as compensated (for example, credit and warehousing contracts).
If a legal entity receives property free of charge from a donor (natural or legal person), owning more than 50% of the authorized (share) capital of a gifted organization, or from a donor – a legal entity, in the authorized (share) capital of which more than 50% belongs to the donee, also in the cases provided by law for the organization of gratuitous assistance, the income received is not taken into account when calculating the tax base (Article 251 of the Tax Code). In all other cases, property, works, services and property rights acquired by taxpayers – legal entities free of charge – are considered by tax authorities as non-operating income.