25.02.2022

Question. A payment order is an order from the account owner (payer) to the bank servicing him, formalized by a settlement document

At the same time, claims of creditors for payment for goods supplied, services rendered and work performed that arose after the initiation of bankruptcy proceedings are considered current. Creditors' claims for such payments are not included in the register of claims and such creditors are not recognized as persons participating in the bankruptcy case. Please note that the Plenum of the Supreme Arbitration Court of the Russian Federation, in Resolution No. 63 dated July 23, 2009, clarified that only an obligation that involves the use of money as a means of payment, a means of repaying a monetary debt, can be qualified as a current payment. It should also be borne in mind that Law No. 127-FZ does not contain instructions on the inadmissibility of the debtor, in respect of whom a monitoring procedure has been introduced, from using his bank account. And one more argument.

Using a bank account during the surveillance procedure

The exception is cases where the violation of the rules by the manager is obvious to any reasonable person - in such a situation credit organisation does not have the right to execute the order, and upon its execution bears property liability. Powers to dispose of the debtor's accounts after the introduction of bankruptcy proceedings A credit organization, from the date of declaring the debtor bankrupt, does not have the right to execute orders to carry out operations on the debtor's account, signed by the head of the debtor - a legal entity or by the debtor - an individual, as well as by a representative of the debtor who, before the opening of bankruptcy proceedings, a power of attorney has been issued.
In the event of bankruptcy of an individual, a credit institution does not have the right to write off funds from his account under any orders, except for cases specifically provided for by the Law (clause 2 of Article 207 of the Bankruptcy Law).

Current payments in the monitoring procedure

Letter of the Ministry of Finance of the Russian Federation No. 03-02-07/1/47850 dated 08/19/2015 Question: On the suspension of transactions on an organization’s bank account if a monitoring procedure has been introduced in relation to it. Answer: The Department of Tax and Customs Tariff Policy reviewed the appeal and reported the following.

According to paragraph 1 of Article 76 Tax Code RF (hereinafter referred to as the Code), suspension of transactions on bank accounts and electronic money transfers is used to ensure the execution of a decision to collect a tax, fee, penalty and (or) fine, unless otherwise provided by paragraph 3 of this article and subparagraph 2 of paragraph 10 of Article 101 Code.

The order of payments during the observation procedure

The documents must contain specific data confirming that the obligation is classified as current. In the absence of information sufficient to formally classify the payable claim of the recipient of funds as current payments or other claims for which payment from the debtor’s account is allowed during the relevant procedure, the credit institution returns the order to the person who provided it, indicating the reason for the return.
A credit institution that has written off funds from the debtor’s account in violation of the established priority is liable in the form of compensation for losses. The right to demand compensation for losses caused by violation of the order of writing off funds from the debtor’s account belongs to the debtor himself, including in the person of an external or bankruptcy trustee, on the basis of Art. 15, 393, 401 Civil Code of the Russian Federation.

Article 133. Accounts of the debtor during bankruptcy proceedings

Clause 7.11 of the Instruction of the Central Bank of the Russian Federation dated September 14, 2006 No. 28-I “On opening and closing bank accounts, deposit accounts” stipulates that the bankruptcy trustee (liquidator), external manager affix the seal used by them in the implementation of bankruptcy proceedings (liquidation), external control. As we can see, the instructions do not contain a requirement to provide the bank with the seal of the temporary manager carrying out supervision.

The use of a client's seal during the monitoring procedure indicates the possibility of him carrying out transactions on the account. In paragraph 2 of Art. 63 of Law No. 127-FZ, in particular, provides for the direction of an arbitration court ruling on the introduction of surveillance in credit institutions with which the debtor has a bank account agreement, in order to ensure the occurrence of the consequences provided for in this article.

Suspension of account transactions when introducing a monitoring procedure

For violation of this requirement, the credit institution is liable in the form of compensation for losses caused to the debtor (bankruptcy estate). Consequences of the introduction of procedures applied in a bankruptcy case in relation to the suspension of operations on the debtor’s accounts previously carried out by the tax authority. The Plenum of the Supreme Arbitration Court explained that Art.

63 of the Bankruptcy Law does not provide for the cancellation of the suspension of transactions on the debtor’s account carried out by the tax authority before the introduction of the monitoring procedure. At the same time, the suspension does not apply to payments whose priority precedes the fulfillment of the obligation to pay taxes and fees in accordance with Art.
134 of the Bankruptcy Law. From the date of introduction of the procedure for financial rehabilitation, external management or bankruptcy proceedings, the suspension of operations ceases automatically, of which the credit organization notifies the tax authority.

4. Features of restrictions on the disposal of an account in bankruptcy proceedings

Important

In addition, a credit organization has the right to demand compensation for the amount of losses it has paid from the creditor to whom it transferred money from the debtor’s account if, at the time of receiving the funds, the creditor knew or should have known about the introduction of bankruptcy proceedings against the debtor. After the creditor compensates the bank for losses, the creditor’s previously repaid claim against the debtor is restored.

Attention

Features of checking the priority of current payments and delimitation of responsibilities of the credit institution and the arbitration manager Monitoring compliance with the provisions provided for in clause 2 of Art. 134 of the Bankruptcy Law, the priority of current payments in any bankruptcy procedure when spending funds from the debtor’s account is assigned to the credit institution. At the same time, when determining the priority, documents that are solely informational and not administrative in nature are not taken into account.

The first stage of the bankruptcy procedure for a legal entity is observation.

Article 64 of Law No. 127-FZ states that the introduction of surveillance is not a basis for the removal of the head of the debtor and its other management bodies, which continue to exercise their powers subject to the restrictions established by this article. In particular, these bodies can carry out only with the consent of the temporary manager, expressed in writing, with the exception of cases expressly provided for by law, transactions or several interrelated transactions related to: - the acquisition, alienation or possibility of alienation directly or indirectly of the debtor’s property, whose book value is more than 5% of the book value of its assets at the date of observation; - receiving and issuing loans (credits), issuing sureties and guarantees, assigning claims, transferring debt, as well as establishing trust management the debtor's property.

In this regard, banking institutions, as well as creditors for current obligations of persons in respect of whom any of the procedures applied in a bankruptcy case have been introduced, in the event of disputed payments and claims for compensation for losses, are recommended to receive professional support from specialists in the field of bankruptcy. Consultant's assistance Specialists of the Pepeliaev Group have extensive experience in protecting the interests of all categories of persons involved in procedures applied in bankruptcy cases and provide qualified legal assistance, including in court proceedings related to challenging debtor payments made in violation the order provided for in Art. 5 and paragraph 2 of Art. 134 of the Bankruptcy Law, or with compensation for losses caused by such violations.

Disposal of the debtor's accounts at the monitoring stage

Completion of transactions also involves making settlements on them. Consequently, the debtor, represented by authorized representatives, taking into account established by law restrictions has the right to give instructions to the bank to carry out transactions on his bank account.
Our conclusion is confirmed by the provisions of Art. 63 of Law No. 127-FZ, according to which claims of creditors for monetary obligations and for the payment of mandatory payments, with the exception of current payments, can be presented to the debtor only in compliance with the procedure for their presentation established by law. We note that according to Art. 5 of Law No. 127-FZ, current payments mean monetary obligations and mandatory payments that arose after the date of acceptance of the application for declaring the debtor bankrupt.

Disposal of the debtor's accounts at the monitoring stage is carried out by

The greatest difficulty in assessing the legality of banks’ actions to execute orders to transfer funds from debtors’ accounts is the question of what is considered a sufficient degree of verification by the bank of payment documents in terms of the authority to dispose of the account and establish the nature and order of payments. Changes in practice On July 11, 2014, the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 6, 2014 No. 36 “On some issues related to the maintenance by credit institutions of bank accounts of persons undergoing bankruptcy proceedings” was published.

The said Resolution clarifies controversial issues that have arisen in judicial practice in relation to assessing compliance with the order of execution of orders for the transfer of funds from the accounts of the debtor (with the exception of the debtor - a credit institution) and compensation for losses caused by violation of the order.

Payment order is an order of the account owner (payer) to the bank servicing him, documented in a settlement document, to transfer a certain amount of money to the recipient’s account opened in this or another bank. The payment order is executed by the bank within the period provided for by law, or within a shorter period established by the bank account agreement or determined by business customs applied in banking practice.

Payment orders can be made:

a) transfer of funds for goods supplied, work performed, services rendered;
b) transfers of funds to budgets of all levels and to extra-budgetary funds;
c) transfer of funds for the purpose of returning/placing credits (loans)/deposits and paying interest on them;
d) transfer of funds for other purposes provided for by law or agreement.

In accordance with the terms of the main agreement, payment orders can be used for advance payment of goods, work, services or for making periodic payments.

The payment order is drawn up on form 0401060 and is accepted by the bank regardless of the availability of funds in the payer’s account.

After checking the correctness of filling out and processing payment orders, on all copies (except the last one) of payment orders accepted for execution, the responsible executive of the bank marks the date of receipt of the payment order by the bank. The last copy of the payment order, which contains the bank's stamp, the date of acceptance and the signature of the responsible executor, is returned to the payer as confirmation of acceptance of the payment order for execution. If there are no or insufficient funds in the payer's account, as well as if the bank account agreement does not specify the terms for payment of settlement documents in excess of the funds available in the account, payment orders are placed in the file cabinet "Settlement documents not paid on time." In this case, on the front side in the upper corner of all copies of the payment order, a mark in any form is placed on the placement in the card index indicating the date. Payment of payment orders is made as funds are received in the order established by law.

Partial payment of payment orders from the “Payment documents not paid on time” file is allowed.

In case of partial payment of a payment order, the bank uses a payment order of the established form. The procedure for its production and filling corresponds to general order production and filling out payment document forms. When issuing a payment order for partial payment, all copies are affixed with the bank’s stamp, the date, and the signature of the bank’s responsible executive. The first copy of the payment order for partial payment is also certified by the signature of the bank’s supervisory employee.

On the front side of a partially paid payment order, a “Partial payment” note is made in the upper right corner. The entry on the partial payment (the serial number of the partial payment, the number and date of the payment order, the amount of the partial payment, the amount of the balance, signature) is made by the responsible executive of the bank on the reverse side of the payment order.

When making a partial payment under a payment order, the first copy of the payment order by which the payment was made is placed in the bank's daily documents, the last copy of the payment order serves as an attachment to the extract from the payer's personal account.

When making the last partial payment under a payment order, the first copy of the payment order by which this payment was made, together with the first copy of the paid payment order, is placed in the documents of the day. The remaining copies of the payment order are issued to the client simultaneously with the last copy of the payment order attached to the personal account statement. When paying a payment order, the date of debiting funds from the payer’s account is affixed to all copies of the payment document (in case of partial payment - the date of the last payment), the bank’s stamp and the signature of the responsible executor are affixed.

The bank is obliged to inform the payer, upon his request, about the execution of the payment order no later than the next business day after the payer contacts the bank, unless a different period is provided for in the bank account agreement. The procedure for informing the payer is determined by the bank account agreement.

The bank has the right to attract other banks to perform operations to transfer funds to the account specified in the client’s order.

Main stages of settlements by payment orders can be represented as follows:

1) sending by the payer to the bank servicing him a payment order to write off a certain amount of money from his account and credit it to the account of the recipient of the funds;
2) control of the correct execution of the payment order by the payer’s bank;
3) debiting funds from the payer’s account and transferring settlement documents to the executing bank;
4) crediting of funds to the recipient’s account by the executing bank;
5) informing the recipient of funds by the executing bank about the settlement transaction by sending an account statement.

Proper execution of the payer's payment order consists in the fact that the bank that accepted it is obliged to write off the amount specified in the order from the payer's account and transfer it to the bank in which the recipient's account is opened (also specified in the payment order) for crediting to the recipient's account within the prescribed period (p 1, Article 865 of the Civil Code). Execution of a payer's payment order in a situation where the banks serving the payer and recipient of funds are connected by correspondent relations is carried out in this way. In other cases, the recipient payment order The payer's bank has the right to attract other banks to perform operations to transfer funds to the account specified in the client's payment order. Consequently, the payer's bank has the discretion to choose the "route" of the bank transfer and the optimal structure of the relationship associated with the bank transfer.

In paragraph 3 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 19, 1999 No. 5 regarding the moment when the bank’s obligation to its client (payer) to transfer funds on the basis of a payment order is considered fulfilled, there is the following explanation. According to Art. 865 of the Civil Code, the payer’s bank is obliged to transfer the corresponding amount to the recipient’s bank, which, from the moment funds are credited to its correspondent account and receives documents that are the basis for crediting funds to the recipient’s account, has an obligation based on a bank account agreement with the recipient of funds, but the amount is credited to account of the latter (clause 1 of Article 845 of the Civil Code). Therefore, when resolving disputes, courts must take into account that the payer’s bank’s obligation to the client under a payment order is considered fulfilled at the time the corresponding amount of money is properly credited to the recipient’s bank account, unless otherwise provided by the agreement between the client’s bank account and the payer’s bank.

In contrast to this rule, the obligation to pay tax is considered fulfilled by the taxpayer - a legal entity (individual entrepreneur) from the moment of presentation to the bank of an order to transfer funds to the budget system of the Russian Federation to the appropriate account of the Federal Treasury from the taxpayer's bank account if there is a sufficient cash balance on it on the day of payment (clause 3 of article 45 of the Tax Code).

Speaking about the civil liability of credit institutions, in settlement legal relations it is necessary to particularly highlight the bank’s responsibility for the execution of a payment order executed in violation of established rules and “unauthorized” orders, as well as responsibility for non-execution or improper execution of a payment order. According to general standards civil law for violation by the bank of the obligation to verify the payment document submitted to it using standard procedures and the execution of such an order, the bank is liable for losses caused to the client.

This position is also held by arbitrage practice, which proceeds from the fact that unless otherwise provided by law or agreement, the bank is responsible for the consequences of executing orders issued by unauthorized persons, and in cases where, using the procedures provided for by banking rules and agreement, the bank could not establish the fact of issuing orders by unauthorized persons .

The court has the right to reduce the amount of the bank's liability when it is established that the client, through his actions, contributed to the receipt of these orders by the bank (clause 2 of Article 404 of the Civil Code) (see clause 2 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 19, 1999 No. 5).

This approach is a way to resolve the problem of imposing the risk of a so-called unauthorized transfer, when funds are debited from an account as a result of illegal actions of third parties. As an example, we can cite cases of banks writing off funds on the basis of forged or counterfeit payment documents, when the use of the standard verification procedure carried out by banks did not reveal the fact of forgery.

As for non-execution or improper execution by credit institutions of the payment order of the payer client, this entails, in accordance with Art. 866 of the Civil Code is the responsibility of servicing credit institutions to the client on the grounds and in the amounts provided for by the general provisions of civil legislation (Chapter 25 of the Civil Code). The bank is obliged to compensate the client for losses determined in accordance with the rules provided for in Art. 15 and 393 of the Civil Code, caused by non-execution or improper execution of an order. At the same time, according to the norm of Art. 403 of the Civil Code, the servicing bank may also be held liable for failure to fulfill or improper fulfillment of an obligation committed by the banks that were entrusted with the execution of the order.

Banks are not exempt from liability in cases where non-fulfillment or improper execution of a client’s order occurred as a result of improper fulfillment of obligations by communications authorities providing services to the bank in transmitting information (clause 9 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 19, 1999 No. 5).

At the same time, according to paragraph 2 of Art. 866 of the Civil Code, in cases where non-execution or improper execution of an order occurred in connection with a violation of the rules for performing settlement transactions by the bank hired to execute the payer’s order, liability may be imposed by the court on this bank. This provision is fully consistent with the legislation enshrined in Art. 403 of the Civil Code to the rule on the liability of a third party who is the direct executor of an obligation - the debtor is responsible for non-fulfillment or improper fulfillment of the obligation by third parties who were entrusted with the performance, unless the law establishes that the liability is borne by a third party who is the direct executor.

Based general provisions civil legislation, the monetary obligation of the debtor under the main obligation (payer) must be considered fulfilled from the moment funds are received in the correspondent account of the servicing creditor under the main obligation (recipient) of the bank. Consequently, the liability of the bank serving the payer is limited to the moment funds are credited to the correspondent account of the bank serving the recipient. This provision does not apply to relations related to the fulfillment of clients’ obligations to pay taxes and fees, since, as stated above, taking into account the special rules established by clause 3 of Art. 45 of the Tax Code, the obligation to pay tax is considered fulfilled by the taxpayer from the moment of presentation to the bank of a payment order for payment of the corresponding tax, if any

sufficient cash balance in the taxpayer's account. Thus, taking into account the fact that the untimely transfer of funds for the payment of tax for the client - the account holder (taxpayer) does not entail negative consequences, the latter does not have the right to apply a penalty established by civil law to the bank, since the bank in this case bears the liability provided for by the PC .

In accordance with Art. 856 of the Civil Code in cases of untimely crediting of funds received to the client’s account or their unjustified debiting from the account by the bank, as well as failure to comply with the client’s instructions to transfer funds from the account or to issue them from the account to banks servicing both the payer and the recipient of funds, also may be obligated to pay interest on this amount in the manner and in the amount provided for in Art. 395 Civil Code.

Clause 3 of Art. 866 of the Civil Code establishes another measure of responsibility for banks, both servicing the payer and those involved in executing the order - violation of the rules for performing settlement transactions by a bank, resulting in unlawful withholding of funds, entails for such a bank the obligation to pay interest to the client in the manner and amount provided for in Art. . 395 Civil Code. According to paragraph 22 of the resolution of the Plenum of the Supreme Court and the Supreme Arbitration Court of the Russian Federation dated October 8, 1998 No. 13/14, unlawful withholding occurs in all cases of delay by the bank in transferring funds on behalf of the payer. The payer client, served by the bank under a bank account agreement, in the event of unjustified retention by this bank of funds when executing a payment order, has the right to present either a demand for payment of a penalty provided for in Art. 856 of the Civil Code, or a requirement to pay interest on the basis of Art. 866 Civil Code.

Losses caused to the payer are reimbursed by the bank to the extent not covered by penalties or interest.

In accordance with paragraph 2 of Art. 395 of the Civil Code if losses caused to the creditor by unlawful use of it in cash, exceed the amount of interest due to him on the basis of clause 1 of Art. 395 of the Civil Code, he has the right to demand compensation from the debtor for losses in excess of this amount.

Interest for the use of other people's funds is charged on the day the amount of these funds is paid to the creditor, unless by law or otherwise legal acts or the agreement for calculating interest does not specify a shorter period.

Although the bank is granted the right to use the funds available in the account, the client can freely (unhindered) dispose of them (clause 2 of Article 845 of the Civil Code of the Russian Federation), guarantees of which are, in particular, the following regulations:

- the bank cannot determine and control the direction of use of the client’s funds;
- restrictions on the right to dispose of funds at the client’s discretion can only be established by law or agreement (clause 3 of Article 845 of the Civil Code of the Russian Federation). The situation in which the write-off is made at the request of third parties, but on the basis of the client’s order, is not a restriction on the right of disposal.

Certification of the right to dispose of funds in the account.

The circle of persons carrying out orders on behalf of the client to carry out debit transactions (on transferring and issuing funds from the account) is determined by the general rules on the methods of exercising the legal capacity of subjects of civil law (for an organization - through authorized bodies, through participants in cases established by law, and through representatives; for a citizen - through his own actions or through the use of the institution of representation).

IN banking sector distinguish between the right of the first signature and the right of the second signature on payment documents. The right of first signature belongs to:

1) in relation to clients - individuals (including individual entrepreneurs) - to the client or individuals to whom the client has issued a power of attorney;
2) for clients - legal entities- the client’s manager (sole executive body), as well as other persons authorized by the client’s administrative act or power of attorney; among other things, in cases established by the legislation of the Russian Federation, the right of first signature may be transferred to the manager or management organization.

The right of the second signature (in relation to clients - legal entities), according to general rule, belongs to the client’s chief accountant and (or) persons authorized to maintain accounting, based on the client’s administrative act. If the client’s manager keeps accounting records personally, then there are no persons with the right of second signature.

It should be taken into account that several employees of an organization can have the right of the first or second signature at the same time (their number is not limited), however, vesting one individual with the right of the first and second signature at the same time is not allowed (clause 7.5-7.10 of Instruction No. 28-I).

The rights of persons managing funds in the account are subject to certification by submitting to the bank documents provided for by law, banking rules and agreement (clause 1 of Article 847 of the Civil Code of the Russian Federation). Such documents, in particular, are protocols (orders, instructions) on the election (appointment) of the sole executive body, powers of attorney, etc.

In most cases, a credit institution in mandatory a card with samples of signatures and seal imprints is presented, in the corresponding field of which the handwritten signatures of persons having the right of first (second) signature are affixed. The authenticity of signatures can be certified by a notary; in addition, the card can be issued without notarization in the presence of an authorized official of the credit institution (clauses 7.12, 7.13 of Instruction No. 28-I). There are no other methods of certifying (witnessing) the authenticity of signatures of persons having the right of first or second signature, as well as the possibility of presenting an uncertified card.

In practice, the use of documents (mainly electronic means of payment) without handwritten signatures is becoming increasingly widespread, but with the use of special means confirming that the order was given by an authorized person: analogues of a handwritten signature, codes, passwords, etc. The legality of such confirmation powers depends on whether the contract allows for this possibility (clause 3 of Article 847 of the Civil Code of the Russian Federation).

An analogue of a handwritten signature is a personal identifier of a credit institution or its client, which is a control parameter for the correctness of all mandatory details of a payment document and the consistency of their content. In this regard, payment documents signed with an analogue of a handwritten signature are recognized as having equal legal force with other forms of instructions from account holders signed by them personally. The procedure for accepting orders from account holders for execution, including those drawn up on electronic media, signed with an analogue of a handwritten signature, is currently determined by the Temporary Regulations of the Central Bank of Russia dated February 10, 1998 No. 17-P.

A special type of analogue of a handwritten signature is an electronic one. digital signature(hereinafter - EDS), used, of course, only in electronic documents, i.e. documents in which information is presented in electronic digital form. An electronic signature is a requisite of an electronic document, intended to protect the document from forgery, obtained as a result of cryptographic transformation of information using the private key of the digital signature and allowing to identify the owner of the signature key certificate, as well as to establish the absence of distortion of information in the electronic document. In order for an electronic digital signature to be recognized as equivalent to a handwritten signature, a number of conditions must be met: firstly, the signature key certificate has not lost force (is valid) at the time of verification or at the time of signing the electronic document if there is evidence determining the moment of signing; secondly, the authenticity of the digital signature on the electronic document is confirmed; thirdly, the digital signature is used in accordance with the information specified in the signature key certificate (Article 4 of the Federal Law of January 10, 2002 No. 1-FZ “On Electronic Digital Signature”).

The need to certify the right to dispose of funds arises from the bank’s obligation to verify the authority of the person who signed the payment document. When transmitting payment documents in writing, the bank must check:

1) correspondence of the signatures and seal on the payment document to the samples of signatures and seal imprint on the card based on external features;
2) the presence of a power of attorney when it is the basis for the disposal of funds (clause 2 of the resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated April 19, 1999 No. 5).

Funds can be debited from the account at the request of third parties. As a rule, this is due to the existence of any obligations between the client and a third party, in which the client acts as a debtor and the third party as a creditor. However, in this case, the write-off is carried out by virtue of the client’s order; without such an order, write-off is allowed only in certain cases (see Article 854 of the Civil Code of the Russian Federation). The client’s order to write off funds at the request of a third party must necessarily contain the data necessary to identify the third party (Clause 2 of Article 847 of the Civil Code of the Russian Federation).

Reasons for debiting funds from an account. Debiting funds from the account can be carried out voluntarily (by order of the client) and compulsory (without the order of the client) order.

By order of the client, the write-off is carried out on the basis of such payment documents as a payment order, letter of credit, check and payment request, paid with the payer's acceptance.

Without a client’s order, the Civil Code of the Russian Federation allows funds to be written off only in three situations:

1. By court decision.
2. In cases provided for by law. So, without the client’s order, the following funds can be written off:
- - when collecting taxes (fees), as well as penalties from organizations (Articles 45, 46, 75 N Code of the Russian Federation);
- - in case of failure to comply with the requirement to pay customs duties (Article 158.159 of the Federal Law of November 27, 2010 No. 311-FZ “On customs regulation in Russian Federation");
- - if the lessee fails to transfer lease payments more than two times in a row after the expiration of the payment period established by the leasing agreement (Clause 1 of Article 13 of the Leasing Law).
3. In cases provided for by the agreement between the bank and the client (clause 2 of Article 854 of the Civil Code of the Russian Federation).

We especially point out that we are talking specifically about the agreement between the client and the bank, and not the client with his counterparty. In the absence of a corresponding provision in the bank account agreement, the bank may write off funds at the request of third parties, but in any case on the basis of the client’s order. In this regard, when making collection payments, funds are written off in an unaccepted (indisputable) manner in cases provided for in the main agreement between the payer and the recipient of funds, the bank carries out only if there is a condition in the bank account agreement (additional agreement thereto) that allows such write-off (Clause 11.2, 12.8 of the Regulations on non-cash payments).

The order in which funds are written off from the account. The sequence of debiting funds from an account in the presence of several documents for debiting is made dependent on the sufficiency of funds to satisfy all requirements presented to the account. If the client has the necessary funds, then the calendar priority regime is applied, when write-offs are made in the order of receipt of the client’s orders and other documents for write-off, the payment deadline for which has come. The Civil Code of the Russian Federation does not exclude the possibility of federal law establishing exceptions to the published rule (clause 1 of Article 855).

In the event of insufficient funds in the account, the legislator ranks all claims in a certain way and introduces six queues, and the requirements relating to the subsequent queue cannot be satisfied until the documents relating to the previous queue are written off. Here the principle of calendar priority is of secondary importance and is applied only within one queue.

In paragraph 2 of Art. 855 of the Civil Code of the Russian Federation defines the following order of write-off:

- first of all, write-offs are carried out according to executive documents providing for the transfer or issuance of funds from the account to satisfy claims for compensation for harm caused to life and health, as well as claims for the collection of alimony;
- secondly, write-offs are made according to executive documents providing for the transfer or issuance of funds for settlements for the payment of severance pay and wages with persons working under an employment contract (including under a contract), for the payment of remuneration to the authors of the results of intellectual activity;
- in the third place, write-offs are made according to payment documents providing for the transfer or issuance of funds for settlements of wages with persons working under an employment agreement (contract), as well as for deductions to Pension Fund RF, Foundation social insurance Russian Federation and compulsory health insurance funds;
- in the fourth priority, write-offs are made on payment documents providing for payments to the budget and extra-budgetary funds, deductions to which are not provided for in the third priority;
- fifthly, write-offs are made according to executive documents providing for the satisfaction of other monetary claims;
- in the sixth place, write-offs are made for other payment documents in calendar order.

The given rules of the Civil Code of the Russian Federation on the order of write-off of funds should be applied taking into account the Resolution of the Constitutional Court of the Russian Federation of December 23, 1997 No. 21-P, which recognized the provision of paragraph. 4 p. 2 tbsp. 855 of the Civil Code of the Russian Federation (on the third stage), as allowing inequality in the implementation of the rights and legitimate interests of various groups of citizens and competition of constitutional obligations for payment wages and paying taxes.

Despite the fact that this Resolution of the Constitutional Court of the Russian Federation was adopted more than ten years ago, the corresponding changes have not yet been made to the Civil Code of the Russian Federation. Legal uncertainty is partially compensated by the laws on the federal budget, which, starting from 1998, establish that before changes are made to paragraph 2 of Art. 855 of the Civil Code of the Russian Federation, the write-off of funds according to settlement documents providing for payments to the budgets of the budget system of the Russian Federation, as well as the transfer or issuance of funds for settlements with persons working under an employment contract, are carried out in the calendar order of receipt of documents after the transfer of payments of the first and second priority (clause 1 of article 5 of the Federal Law of December 13, 2010 No. 357-FZ “On the federal budget for 2011 for the planning period of 2012 and 2013”). In accordance with this, the third and fourth stages do not have an advantage over each other.

When applying the rules on priority, it should be taken into account that in the event of liquidation of a legal entity, as well as within the framework of insolvency (bankruptcy) procedures, the claims of creditors should not be satisfied in the considered order, but according to special rules (see Article 64 of the Civil Code of the Russian Federation, Article 134 of the Federal Law "On Insolvency (Bankruptcy)"). However, the Concept for the Development of Civil Legislation of the Russian Federation indicates the need to unify approaches to determining priority (clause 2.4.3 of Section VI).

Limitation of account management. The Civil Code of the Russian Federation exhaustively defines the list of grounds for limiting the client’s rights to manage funds in the account. There are two of them: seizure of funds in the account and suspension of operations on the account, and specific cases of introducing these restrictions can only be established by federal law (Article 858).

Both seizure and suspension of operations mean a temporary cessation of debit transactions on the account. The difference between these forms of restricting the disposal of an account, logically, should be reduced to the following: if during suspension the account is blocked (fixed), and the client generally does not have the right to make debit transactions (with some exceptions, which will be discussed below), then during arrest the blocking of operations applies to amounts within the limits of funds that are seized. Thus, in the event of arrest, the client can dispose of the remaining amount at his own discretion (of course, if there is any). At the same time, one cannot help but notice that the specified distinguishing criterion does not always “work”, because special legislation sometimes allows for the possibility of suspending transactions within the established amount (see paragraph 2 of Article 76 of the Tax Code of the Russian Federation).

According to Art. 27 of the Law on Banks to the number of persons (bodies) seizing funds and other valuables of legal and individuals held in accounts and deposits or stored in a credit institution, as well as on the balance of electronic funds, include:

a) court, arbitration court, judges; the seizure of funds by decision of the judicial authorities is an interim measure (see Article 91 of the Arbitration Procedure Code of the Russian Federation, Article 140 of the Code of Civil Procedure of the Russian Federation);
b) the preliminary investigation body, which makes the appropriate decision in the presence of a court decision (the last clause is fundamental, because by virtue of clause 9, part 2, article 29 of the Code of Criminal Procedure of the Russian Federation, only the court, including during pre-trial proceedings, is authorized to make a decision to seize the property, including funds held in accounts and deposits or deposited with credit institutions).

In Art. 77 of the Tax Code of the Russian Federation provides for the possibility of seizing property by decision of the tax or customs authority with the sanction of the prosecutor; Moreover, it is specifically stated that arrest may be imposed on all property of the taxpayer-organization. Thus, formally, the Tax Code of the Russian Federation, in comparison with the Law on Banks, expands the range of bodies that have the right to seize funds in an account. In the literature, however, a point of view has been expressed according to which the right of arrest under Art. 77 of the Tax Code of the Russian Federation is provided to the tax authorities in relation to property other than funds in bank accounts, this is evidenced by the structure and content of Art. 77 of the Tax Code of the Russian Federation, its comparison with the content and purpose of Art. 76 NK RF1. According to other authors, Art. 77 of the Tax Code of the Russian Federation also applies to funds in the account2. It seems that there are compelling reasons for a restrictive interpretation of the provisions of Art. 77 of the Tax Code of the Russian Federation is not available today.

For a long time, the practice regarding the permissibility of seizing future proceeds was controversial. Currently, in paragraph 1 of part 1 of Art. 91 of the Arbitration Procedure Code of the Russian Federation directly allows for the possibility of seizing funds that will be transferred to a bank account.

The tax authority has the right to suspend transactions if the taxpayer fails to comply with the requirement to pay taxes, penalties or fines, as well as fails to submit a tax return to the tax authority within the prescribed period. The suspension is effective from the moment the bank receives the decision tax authority on the suspension of operations and does not apply to payments of the previous priority of execution, as well as operations to write off funds to pay taxes (advance payments), fees, insurance premiums, relevant penalties and fines and to transfer them to the budget system of the Russian Federation.

By virtue of Art. 24 of the Federal Law “On the Accounts Chamber of the Russian Federation”, in case of repeated non-fulfillment or improper execution of the instructions of the Accounts Chamber of the Russian Federation, its Board has the right, in agreement with State Duma of the Federal Assembly of the Russian Federation to decide to suspend all types of financial payment and settlement transactions on the accounts of inspected organizations.

In Art. 282 of the Budget Code of the Russian Federation, suspension of transactions on accounts in credit institutions is considered as a measure applied to violators of budget legislation.

The given examples of suspension of account transactions do not form an exhaustive list; However, we repeat that cases of restriction of the disposal of an account in the form of suspension of operations must be contained in federal law.

Collection of funds and other valuables of individuals and legal entities located in accounts and deposits or stored in a credit institution, as well as the balance of electronic funds, can be applied only on the basis of enforcement documents in accordance with the legislation of the Russian Federation (Article 12 Federal law"On enforcement proceedings").

Based on clause 3 of Art. 81 of this Law, a bank or other credit organization immediately executes a resolution to seize the debtor’s funds and informs the bailiff of the details of the debtor’s accounts and the amount of the debtor’s funds seized for each account.

The credit institution and the Central Bank are not liable for damage caused as a result of the seizure or foreclosure of funds and other valuables of their clients, except in cases provided for by law.

A power of attorney to manage a bank account is issued to a representative or person responsible for the management of the owner’s funds.

The attorney has the right to manage and carry out monetary transactions at the direction of the principal. This type of power of attorney can be issued by any citizen of the Russian Federation, subject to the age of majority, legal capacity and availability of a deposit in the bank.

The owner of a bank deposit may have several attorneys. The client has the right, if there are several deposits, to issue all permits for one person (this is often practiced when registering in matters of cargo transportation, or for an individual).

What actions can you take if you have a power of attorney for a bank account?

Obtaining account statements or other documentation about the status or transactions with the owner’s bank deposit;
Transfer of funds from the principal's account to any other bank account;
Depositing or withdrawing funds from the owner's bank deposit;
The attorney has the right to enter into any agreements with bank deposits or accounts of the owner;
Receipt and withdrawal from the account of interest, compensation, donated funds, funds received during promotions, etc.;
Closing the deposit and terminating the agreement with the bank;

The most important thing that the owner should know is that the attorney has the right to fully manage the principal’s deposit in the bank. That is why the owner must discuss possible transactions with the attorney and accurately and in detail describe in the document the capabilities of the person in charge. In the absence of a list of powers, the bank provides all possibilities to the attorney.

When does the document expire?

Article 186 of the Civil Code of the Russian Federation indicates that the validity period of a power of attorney for the disposal of a bank deposit cannot exceed three years. The validity period begins from the date of issue. The date must be indicated in words on the document, otherwise it will be considered invalid.

If the owner of a bank deposit does not indicate a specific period of validity in the power of attorney, then its duration is one year. The notary orally informs the parties about this.

According to Article 857 of the Civil Code of the Russian Federation, banks guarantee the confidentiality of depositors' data, therefore, according to Article 847 of the Civil Code of the Russian Federation, the depositor is obliged to personally bring documents to obtain a power of attorney to manage a bank account to the bank.

1. Above (commenting on the practice of applying Article 852 of the Civil Code), we have already considered the situation in which the client, who submitted an application for termination of the bank account agreement, subsequently made orders on the account (other than those provided for in paragraph 3 of Article 859 of the Civil Code). FAS TsO (see resolution dated 04.08.2005 N A14-13-2005-15/5) found that the latter must be executed by the bank, primarily because the bank has the right to perceive the presence of such orders as confirmation of the will to continue the contractual relationship between the parties and cancellation of the previously made application for termination of the contract. In any case (regardless of whether the execution of such orders is recognized as an obligation or right of the bank), “services” for such execution are subject to payment on a general basis, like any other services under a bank account agreement.
Unfortunately, the practice of applying Art. 859 of the Civil Code is absolutely disharmonious with this, in our opinion, completely correct conclusion. Thus, considering the case on the claim of a former client - the owner of the account against the bank for the recovery of a sum of money unjustifiably written off from the account, the FAS VVO (see resolution dated 04.04.2006 N A38-5006-6/293-2005) established that on 12.11.2004 OJSC AKB Svyaz-Bank received a letter from the client (OJSC Silikat) about the termination of the bank account agreement between them. On November 15, 2004, the bank received a collection order from the tax authority for the undisputed debiting of funds from this bank account, which by that time the bank had not yet closed and the balance from which had not yet transferred or issued.
Despite the client’s application to terminate the bank account agreement, the bank executed the collection order received for the account. The court found such actions of the bank illegal, pointing out that, in accordance with Art. 859 of the Civil Code "... the bank account agreement is terminated at the request of the client at any time. In the event of termination of the bank account agreement, the bank becomes obligated, within seven days after receiving the corresponding written application from the client, to issue the latter or transfer to another client account the balance of funds. From It follows that the obligations under the bank account agreement... ceased between the disputing parties on November 12, 2004. From this moment on, the bank has no right to carry out banking operations on the client’s account, including executing collection orders. Thus, OJSC AKB Svyaz-Bank "On November 15, 2004, he illegally wrote off funds from the account of Silikat OJSC on the basis of a collection order from the Inspectorate..." * (547). As the Federal Antimonopoly Service of North Kazakhstan put it in another case (see resolution dated May 10, 2007 N F08-1680/2007), “from the moment of termination of the agreement, the bank was not a credit institution servicing ... (the account owner - V.B.), and had no right to execute the... writ of execution presented to him."
The competence of the judges of the FAS VSO was tested by an even more complex dispute (see resolution dated January 25, 2005 N A58-4468/03-Ф02-5857/04-С2): a former client invited them to assess the legality of the actions of the bank, which had the imprudence to perform after receiving the application on the closure of an account, a decree on the seizure of funds in this account. The court found such an arrest illegal precisely because it was made not only after the bank received the client’s application to terminate the bank account agreement, but also even after the expiration of the seven-day period established by the Civil Code (clause 3 of Article 859) for transferring the balance to another account.
2. Studying the above-mentioned and a number of other similar arbitration cases allows us to understand the reason for the emergence of such a practice. It lies in the incorrect interpretation of the Civil Code norms on termination of a bank account agreement.
If we agree that the bank account agreement is considered terminated from the moment the bank receives the client’s application to close the account (termination of the agreement), then it is impossible to draw a different conclusion than the one made by the arbitration courts. Termination of the agreement excludes, on the one hand, the occurrence in the future of the bank’s obligation to execute any orders of the client, even if not actually closed account, on the other hand, it deprives the bank of the right to dispose of the amounts in the account otherwise than in accordance with the will of the former client, made in accordance with clause 3 of Art. 859 Civil Code.
But if we agree with our position and recognize that the bank account agreement exists as long as the bank account actually exists *(548), then the assessment of the described arbitration practice should change radically. As long as the bank does not take actions leading to termination of the contract, nothing prevents the client from abandoning his intention to terminate it, even if he does so through such conclusive actions as submitting orders to the bank for something that has not yet been closed (and, therefore, still belonging to the client) account in relation to their (!) monetary claims to the bank. In this case, the conclusions of the courts about the illegality of execution by banks of those orders on the account that come from third parties, including orders to seize funds in the account, are fundamentally incorrect. Third parties are not aware of the relationship between the bank and the client; They “do not see” either the application for termination of the contract or any other documents about these relations and do not know about them. Third parties “see” a bank account opened by a certain bank in the name of the debtor or defendant they are interested in - they should be able to be guided by this external appearance.