Olga Aleksandrovna Belyaeva, PhD in Law, Leading Researcher at the Institute of Legislation and Comparative Law under the Government of the Russian Federation.

In recent years, bidding as a special way of choosing a counterparty for concluding a contract is becoming more widespread, and not only in the field of state and municipal orders, enforcement proceedings. Often, bidding is conditioned by the desire or need to choose an objectively best counterparty, while striving to ensure the most favorable transaction conditions by intensifying competition between bidders.

Auctions held in violation of the rules established by law may be declared invalid by the court at the suit of the interested person (clause 1, article 449 of the Civil Code of the Russian Federation). However, the law does not establish a specific list of these violations, as a result of which the auction may be declared invalid. A very common reason for declaring an auction void is the improper form of the deposit, which all participants are required to pay to the organizer of the auction. Often deposits are made not in cash, instead of them, bills of exchange or bank guarantees are transferred to the organizer of the auction. Such a "non-monetary" form of the deposit is not only recognized by the courts as improper, but also serves as an independent basis for recognizing the auctions held as invalid.

Thus, the debtor's property was sold at auction in the course of external management, the deposit was paid with promissory notes previously issued by the debtor himself. The court pointed out that a sum of money is recognized as a deposit as a measure to ensure the fulfillment of payment obligations; the law does not specify other types of deposit. A bill of exchange, like other securities, as well as other objects of civil rights, including property and property rights, cannot be used as a deposit, since it certifies the unconditional obligation of the drawer to pay the borrowed amounts of money before the due date stipulated by the bill. Therefore, deposit agreements, the payments for which are the debtor's bills, violate the requirements of the Civil Code of the Russian Federation<1>.

<1>Decree of the Federal Antimonopoly Service of the Volga District of June 8, 2004 N A49-4991 / 03-181 / 26.

In a similar case, the debtor's property was sold by the bankruptcy trustee at an auction, one of the participants in which deposited a promissory note of Sberbank of the Russian Federation as a deposit. The bill was presented to the credit institution for payment before the date of the auction. However, the court did not consider this fact as grounds for declaring the auction invalid.<2>.

<2>Decree of the Federal Antimonopoly Service of the Volga-Vyatka District of April 28, 2005 N A79-8966 / 2004-SK2-8454.

In any case, when considering a claim for recognition of the auction as invalid, the court assesses whether the committed violations are significant and whether they affected the result of the auction. for example, bidder in violation of the requirements of paragraph 4 of Art. 448 of the Civil Code of the Russian Federation made a part of the deposit in promissory notes, but did not become the winner. The contract of sale was concluded with the person who offered the highest price during the auction, no violations were found when he made the deposit. The violation committed was minor and did not affect the result of the auction, so the court concluded that there were no grounds for declaring the auction invalid<3>. In this case, although the auction was not declared invalid by the court, there was nevertheless an indication that a violation had been committed during their conduct, although it was of a minor nature.

<3>Paragraph 5 of the Review of the practice of resolving disputes related to the invalidation of public auctions held as part of enforcement proceedings. Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated December 22, 2005 N 101 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2006. N 4.

These court decisions raise the question of the role and purpose of the deposit in the process of bidding, as well as the possibility of using other forms of securing an application for participation in the bidding.

The deposit is a kind of advance payments, combining some of the features inherent in penalties. If the parties duly fulfill the terms of the secured transaction, the deposit retains the functions of an advance, otherwise a penalty mechanism is in place: leaving the amount of the deposit with the party who received it in case of violation of obligations under the secured transaction by the person who gave the deposit, and, conversely, the obligation to pay a double amount of the deposit to the counterparty, if the person who received the deposit is responsible for non-performance of the contract.

As you know, a deposit is recognized as a sum of money issued by one of the contracting parties on account of payments due from it to the other party, as proof of the conclusion of the contract and to ensure its execution (clause 1 of article 380 of the Civil Code of the Russian Federation). In civil law, the concept of a deposit is traditionally revealed through its functions: evidence - an agreement on a deposit confirms the existence of a contract; payment - the deposit is counted against the payments due under the contract; security - a deposit is a way to secure the fulfillment of an obligation<4>. But, above all, the deposit is intended to prevent non-performance of the contract<5>.

<4>Ioffe O.S. Obligation law. M.: Legal literature, 1975. S. 167.

ConsultantPlus: note.

Monograph M.I. Braginsky, V.V. Vitryansky "Contract Law. General Provisions" (Book 1) is included in the information bank according to the publication - Statute, 2001 (3rd edition, stereotypical).

<5>Braginsky M.I., Vitryansky V.V. Contract law. Book one. General provisions. 2nd ed., rev. M.: Statute, 2000. S. 604.

In paragraph 4 of Art. 448 of the Civil Code of the Russian Federation establishes a mandatory procedure for making a deposit by bidders in the amount, terms and procedure specified in the notice of bidding. The functional value of the deposit made by bidders is intended to confirm the seriousness of their intentions<6>.

<6>Bezbakh V.V. Commentary on the Civil Code of the Russian Federation, part one (item-by-article). 3rd ed., corrected, supplemented. and reworked. / Rev. ed. IS HE. Sadikov. M.: Law firm "Kontrakt": INFRA-M, 2005. S. 1004.

Most often, in the process of bidding, a deposit agreement is concluded in the form of an accession agreement (Article 428 of the Civil Code of the Russian Federation), the terms of which are unilaterally determined by the bidding organizer. The deposit is returned to participants who did not win the auction, as well as if the auction did not take place. For the winning bidder, the amount paid as a deposit is credited towards the fulfillment of obligations under the concluded contract. Evasion of the person who won the auction from signing the protocol on the results of the auction entails the loss of the deposit made by him. In turn, the organizer of the auction, who evaded signing the protocol, is obliged to return the deposit in double size, as well as to compensate for the losses caused by participation in the auction, in excess of the amount of the deposit.

If the winner of the auction does not sign the protocol on their results within the established period, the results of the auction will be canceled. It should be emphasized that the cancellation of the results of the auction cannot be regarded as the termination of the obligation before the start of its execution by agreement of the parties or due to the impossibility of its execution, when the deposit must be returned (clause 1 of article 381 of the Civil Code of the Russian Federation)<7>.

<7>Unfortunately, there are court decisions when the deposit is returned to the winner of the auction, who did not sign the protocol on its results, which directly contradicts the current legislation. See: Decree of the FAS of the Volga-Vyatka District of January 31, 2006 N A11-5831 / 2004-K1-1 / 177.

What is the legal nature of the funds contributed by bidders and referred to in our legislation as a "deposit"? Is it permissible to assume that during the auction, the method of security of the same name to the deposit is used, but having a different content compared to it?

First, it must be emphasized that, within the meaning of Art. 380 of the Civil Code of the Russian Federation, a deposit can only be used to ensure the fulfillment of contractual obligations; it is not applicable in non-contractual relations. In my opinion, there is no contract between the organizer of the auction and their participants. The deposit at the auction is aimed at securing the obligation, according to which the participant and the organizer of the auction are obliged to conclude an agreement only if this participant wins. The "earnings" paid by the bidders cannot be considered proof of the conclusion of the contract, since it will be concluded in the future and only with the person who won the bidding.

Secondly, the deposit at the auction is deprived of its payment function, it is paid by applicants for participation in the auction not as a payment for participation or payment for winning<8>. At the end of the auction, the amounts of deposits are returned to all participants, with the exception of the winner of the auction. Only a monetary obligation can be secured with a deposit, but no one has such obligations during the bidding process. The sums of money contributed by bidders are, rather, a pledge of funds. But law enforcement practice is dominated by the position of the Supreme Arbitration Court of the Russian Federation on the fundamental impossibility of pledging funds, since the "realization" of money as a subject of collateral contradicts their legal nature.<9>.

<8>Petrov I.S. Privatization auctions: Dis. ... cand. legal Sciences. M., 2005. S. 106; I eat V.S. Civil law. T. 2. Polutom 1 / Ed. E.A. Sukhanov. M.: Volters Kluver, 2004. S. 67.
<9>Clause 3 of the Review of the practice of considering disputes related to the application by arbitration courts of the norms of the Civil Code of the Russian Federation on pledge. Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 15, 1998 N 26 // VVAS. 1998. No. 3.

Most likely, the deposit referred to in Art. 448 of the Civil Code of the Russian Federation, is a combined form of security for an obligation, which includes elements of a regular deposit and a penalty<10>. A kind of forfeit in this case is applied for non-fulfillment by the participant of the tender or auction of obligations related to participation in the auction. In other words, Art. 448 of the Civil Code of the Russian Federation we are talking about an alternative form of a deposit, to which the general rules of Art. 380 of the Civil Code of the Russian Federation<11>.

<10>In pre-revolutionary legislation, a contract for the sale of real estate secured by a deposit was characterized by a similar legal mechanism. See: Shershenevich G.F. Civil law course. Tula, 2001, p. 426.

ConsultantPlus: note.

Issues related to the legal nature of the deposit paid for participation in the auction are also considered in the monograph by B.M. Gongalo "The doctrine of securing obligations. Issues of theory and practice", included in the information bank according to the publication - Statute, 2004.

<11>Gongalo B.M. Ensuring the fulfillment of obligations. M.: Spark, 1999. S. 124, 125.

It is characteristic that in the normative legal acts of recent years, in relation to the bidding procedure, the term "deposit" has ceased to be used, it has been replaced by a more appropriate concept - "bid security", which is paid in cash and is optional, that is, at the discretion of the bidding organizer, the deposit may not required from participants at all<12>.

<12>Paragraph 4 of Art. 20 of the Federal Law of July 21, 2005 N 94-FZ "On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs" // SZ RF. 2005. N 30 (part I). Art. 3105.

It is worth remembering that Art. Art. 447 - 449 of the Civil Code of the Russian Federation regulate bidding only for the sale of something. Naturally, in such auctions, the deposit, with the proper performance of the contract secured by it, should be counted towards the performance of the monetary obligation. Suppose that the auction (auction or competition) was held for the purchase of something, in this case the winner does not have an obligation to pay money. Therefore, the amount of the "deposit" paid by him cannot be set off against payment under the contract, and then the application of the relevant norms of the Civil Code of the Russian Federation loses all meaning.

It is interesting to note that the corporate trading rules of a number of companies regulate this situation. Thus, in accordance with paragraph 7.4 of the Regulations on the procedure for holding auctions, paragraph 8.4 of the Regulations on the procedure for holding tenders of the Unified Regulations for the Implementation of Contractual Work of OAO TNK-BP-Management, the deposit is returned to participants who were not recognized as winners of the auction (competition), as well as to the winner auction (competition) in the event that the amount of the deposit made cannot be credited towards the fulfillment of the obligations of the winner.

In recent years, the role of a deposit for participation in the auction is often played not by "live" money, but by their "substitutes". So, not only promissory notes, but also bank guarantees on demand became widespread as a deposit (it is this type of guarantee that is regulated in detail by the norms of § 6 of Chapter 23 of the Civil Code of the Russian Federation)<13>. On the one hand, a bill of exchange and a bank guarantee are monetary obligations, and in this part they are close to a cash deposit. On the other hand, they are significantly different from money, since they provide for cash payments only after a certain period (bill) or upon presentation of the beneficiary's demand (bank guarantee). A bill of exchange and a bank guarantee are not money, but documents that allow them to be received, that is, monetary surrogates.

<13>Antsiferov O. Problems of issuing a bank guarantee in the form of an electronic document // Economy and law. 2006. N 6. S. 102.

Both the bill and the bank guarantee are unconditional and abstract in nature, they do not depend on the obligation for the execution of which they were issued, although the bill does not secure the obligation, but aims only to fulfill the payment on it.

As for a bank guarantee, it is often called the most reliable way to ensure the fulfillment of contractual obligations.<14>, since under the guarantee the beneficiary (payee) not only ensures his own risk of violation by the debtor of the secured obligation, but is also exempted from the risk of presenting objections not specified in the guarantee agreement. At the same time, there is a peculiar presumption of guilt of the debtor in violation of the secured obligations. It manifests itself in the fact that the beneficiary has the right to receive from the guarantor the amount of money specified in the guarantee, without presenting any evidence of a violation of obligations by the debtor (Article 368 of the Civil Code of the Russian Federation)<15>.

<14>Gizatullin F. Legal issues of the practical use of a bank guarantee // Economy and law. 2006. N 6. S. 101.
<15>Latyntsev A.V. Ensuring the fulfillment of contractual obligations. M.: Lex-Kniga, 2002. S. 247.

The legal mechanisms included in a bank guarantee can be classified according to various criteria. In particular, the types of guarantee can be distinguished according to the grounds on which it is issued. Uniform Rules on Contractual Guarantees (International Chamber of Commerce Publication No. 325, Rev. 1978)<16>issue a tender guarantee. It is an obligation of a bank or insurance company, issued at the request of the bidder (principal) to the party that announced the bidding (beneficiary). In the event that the principal fails to fulfill his obligations as the winner of the tender (competition) arising from the proposal declared by him, the guarantor undertakes to make payment to the beneficiary within the specified amount of money. The organizer of the auction intends to cover his costs of conducting the auction by receiving payment under the guarantee.

<16>International private law in documents: Collection of normative acts. T. I. M.: Yurist, 1996. S. 47 - 57.

So, a bank guarantee can be converted into money at the first request of the organizer of the auction. Practice shows that the tender (competitive) guarantee for the organizer of the auction is more attractive than the deposit. Similar functions can be performed by a promissory note with a maturity date "at sight"; he also allows his holder (organizer of the auction) at any time during the year from the date of drawing up the bill unconditionally demand payment from the drawer.

The deposit protects the interests of the auction organizer in only one case: if the person recognized as the winner of the auction evades signing the protocol on their results (clause 5, article 448 of the Civil Code of the Russian Federation). However, various other violations by the participants are possible in the course of the auction, and the deposit of the organizer of the auction does not protect against them. Suppose that before the expiration of the announced period for the bidding, the participants withdrew their proposals, as a result of which the bidding must be recognized as invalid.

Tender guarantees often use a mechanism whereby one guarantee provides for several obligations of the bidder: not to withdraw the bid, to conclude the contract after winning the tender, and to provide security for the performance of this contract.<17>. In this case, the failure of the principal to fulfill the first obligation automatically entails the impossibility of fulfilling the remaining secured obligations.

<17>Such obligations of the principal are listed in the recommended form of a bank guarantee as part of the tender documentation drawn up in accordance with the Methodological recommendations for holding tenders (tenders) for the purchase of goods (works), prequalification of suppliers (contractors) - (tender documentation), approved. Order of the Ministry of Economy of the Russian Federation of September 30, 1997 N 117.

Abroad, the guarantee of a competitive (auction) offer can be provided in the form of a bank guarantee, a pledge of securities for which there is a demand on the stock exchange (Czech Republic), or the payment of a sum of money (Bulgaria). This amount of money is not referred to as a "deposit"; most often it is considered a deposit fee for participation in the auction. Under the terms of the auction, the need to provide appropriate security follows either from the requirements of special legislation (for example, if a state order is placed at the auction), or from the published notice of the auction.

In international practice, the provision of competitive (tender) proposals is also not limited to receiving deposits from bidders. So, according to par. "f" paragraph 1 of Art. 32 of the Model Law of the United Nations Commission on International Trade Law (UNCITRAL) "On the Procurement of Goods (Works) and Services" (New York, 1994), the nature, form, volume and other basic conditions of the required security of the tender application are indicated in the tender documentation<18>. Often, in international purchases, not even guarantee documents are used, but a cash deposit. Moreover, it is not necessary to secure tender bids in any bidding procedures; such security, as a rule, is important only in the case of purchases of goods (works) of high value.

<18>Report of the UN Commission on International Trade Law on the work of its 27th session May 31 - June 17, 1994 General Assembly. Official reports. Forty-ninth session. Supplement No. 17 (A/49/17). New York: United Nations, 1994, pp. 60 - 102.

In the practice of the International Bank for Reconstruction and Development and the International Development Association, there is an optional nature of a pledge under a tender (competitive) offer. So, according to paragraph 2.14 of the Guidelines "Procurement under IBRD loans and IDA loans", the amount and form of collateral must be indicated in the tender documentation, the form is a guarantee issued by a reliable bank or financial institution at the choice of the tenderer. The bid deposit is returned to the losing bidders upon signing the contract with the winner. Also, in accordance with clause 15.3 of the Standard Bidding Document "Purchase of Goods"<19>The bid security shall be expressed in the currency of the bid itself or in another freely convertible currency. It may take the form of a bank guarantee or an irrevocable letter of credit issued by a reputable bank, as well as a cashier's or certified check.<20>.

<19>Guidelines "Procurement under IBRD Loans and IDA credits". January 1995. Final revised March 2004. The World Bank. Washington, D.C.
<20>A cashier's check or a certified check (certified check) are financial documents similar to ordinary checks, but unlike them, they are paid in advance and cannot be canceled. According to Article 3-409 of the Uniform Commercial Code of the United States, a certified check - this is a check accepted by the bank to which it was issued.When providing a bid with a "certified" check, the organizer of the auction does not bear the risk of non-payment of this check by the bank.See for more details: Belyaeva O.A. Practice, M.: Law Firm "Kontrakt", 2004, pp. 58 - 60.

From the point of view of international experience, as well as the need to respect the interests of all bidders, in my opinion, now there is no reason to limit the choice of the form of participation in the bidding to a single deposit. It seems quite justified to use other legal structures, such as a bill of exchange, a bank guarantee. Therefore, it is necessary to amend Art. 448 of the Civil Code of the Russian Federation in terms of abandoning the use of the term "deposit" and replacing it with the concept of "bid security", the form of which in each specific case is independently determined by the organizer of the auction.

Very often auction participants have concerns about the return of the deposit paid at the bankruptcy auction. This issue is clearly spelled out in the Federal Law No. 127 "On Insolvency".

The deposit is returned in FULL within 5 working days if you did not win the auction, if you withdrew your participant's application before the formation of the Protocol for determining the participants in the auction or wrote an application for the return of the deposit to the name of the organizer of the auction.

When the deposit is not returned to you:

1. You have won the auction(in the final protocol posted on the site, your last name), but within 5 days from the date of presentation to you of the contract of sale (DCT) of the lot, you did not sign it.

Simply put, you were offered to buy the lot, but you do not agree. The deposit will not be returned!

2. You won the auction, signed the DCT, but did not pay for the property within the terms specified in the terms of the auction. The deposit will not be returned to you.

It should be noted right away that this period, according to the law, is 30 days from the moment you sign the DCT. Any changes to this figure are a gross violation of Federal Law No. 127, and such auctions can be appealed in court sometimes before the results are cancelled.

3. The most harmless option of non-return of the deposit- Bidding winner. This is logical and you do not need to wait that if you won the auction, then you will be returned the deposit. Although many people think so for some reason!

Your deposit goes towards paying for your property, you will pay the amount for the won lot MINUS the deposit already paid.

And a couple more points:

• The deposit is returned within 5 WORKING days from the date of publication of the final protocol on the trading floor;
• So that the return of the deposit does not stretch for a month, indicate in the application the DETAILS where to return it;
• If you lost the auction and indicated the details in the application, do not be lazy and duplicate the details to the organizer of the auction by email with a request to return the deposit.

Do not forget that the organizers of the auction are also people and they may have their own force majeure, so if they did not meet within five days, you should not swear at them and scare them with courts.

In this article, I will focus on the basic points of this question. This is a very simple question, but as the well-known joke says, “there is a nuance” ...

So, if you decide to participate in some kind of bankruptcy auction, then in most cases you need to pay this very Deposit. Not a deposit, not an advance, not an advance payment, namely a DEPOSIT. Don't get confused with terminology. In the matter of transferring money to someone, the meaning of the words advance and deposit has a very serious meaning. There are rare cases when a deposit is not required at all, but this, as they say, is lucky.

1. Who do we pay?

There are only two options: either to the account of the bankrupt enterprise or to the account of the auction organizer. The second is preferable for the simple reason that the organizer's account cannot be attacked by the tax office, but the bankrupt's account can very well.

Therefore, competent competitive ones try to accept deposits either to the account of the organizer of the auction or to a special account of a bankrupt, which the tax authorities cannot block.

Advice: if you see that the deposit is being taken to the bankrupt's account, check with the credit institution or the organizer of the auction if the tax authority has any claims to this account. Let him think about this for himself.

2. How do we pay?

We determine the amount of the deposit we need (more on this in the next letter) and go to the bank. Or we don’t go if you have an online banking service like Telebank from VTB 24 or Sberbank Online and you can pay the deposit from any device.

If you participate in the auction as an individual entrepreneur or LLC, OJSC, etc. everything is extremely simple for you - a non-cash transfer to the account specified in the trading procedure and minimal financial costs for posting one payment order.

Everything is much more complicated if you pay the deposit as an individual. face. Here the main task is not to get on all sorts of bank commissions. It's good if the amount of the deposit is small, but if it's a million?!

Advice: you need to study the market and find out which bank in your locality is the most not greedy in terms of commissions. In my case, this is VTB 24 and its Telebank system. Because My deposits are not small.

VTB 24 can take a commission of 4% of the payment amount if you transfer a deposit without opening an account with them and only 0.2% if you open an account. Now multiply these percentages by a million rubles! Guard!!! But they have a limit - the commission for the transfer does not exceed 1200 rubles per payment. Those who tried to transfer a deposit of over 500 thousand from physical. people will understand how miserable commission is.

3. Payment - what's wrong with it?

It is always necessary to attach a scan of the payment order from the bank for paying the deposit or a bank receipt to the package of documents.

So, often the organizers of the auction write a phrase like "Payment document with a bank mark on the payment." This means that the payment must have a blue seal of the bank and the signature of the employee. Of course, this is a formality, because you paid the deposit, but negligent organizers can use this moment against you.

Document's name:
Document Number:	2121-P
Document type:
Host body:	Administration of the city of Kirov
Status:	current
Published:	"Our City. Newspaper of the municipal formation "City of Kirov", No. 67 (992), 06/30/2017
Acceptance date:	June 29, 2017

ADMINISTRATION OF THE CITY OF KIROV

RESOLUTION

On the procedure for establishing the amount of the deposit for participation in auctions for
sale and the right to conclude a lease agreement for a land plot,
the initial price of the subject of auctions for the sale and the right to conclude
land lease agreements

In accordance with article 11, paragraphs 12, 14, 15 of article 39.11 of the Land Code of the Russian Federation, article 3.3 of the Federal Law of October 25, 2001 No. 137-FZ "On the Enactment of the Land Code of the Russian Federation", on the basis of the Charter of the municipal formation "City of Kirov Administration of the city of Kirov

decides:

1. In the event of auctions for the right to conclude a lease agreement for a land plot with citizens for individual housing construction, personal subsidiary farming within the boundaries of a settlement, gardening, as well as with citizens and peasant (farmer) households for the peasant (farm) economy to carry out its activities the initial price of the subject of the auction for the right to conclude a lease agreement for a land plot is set at 50 percent of the cadastral value of such a land plot, taking into account the rounding of kopecks to whole rubles, if the results of the state cadastral valuation were approved no earlier than five years before the date of the decision to hold the auction.

If the results of the state cadastral valuation are approved earlier than five years before the date of the decision to hold the auction, the initial price of the subject of the auction is set at the annual rent determined based on the results of the market valuation in accordance with Federal Law No. 135-FZ of July 29, 1998 "On Appraisal Activities in the Russian Federation" (hereinafter referred to as the Law on Appraisal Activities).

2. In the case of holding auctions for the sale of a land plot with citizens for individual housing construction, running a personal subsidiary plot within the boundaries of a settlement, gardening, as well as with citizens and peasant (farmer) households for the peasant (farmer) household to carry out its activities, the initial price of the item auction for the sale of a land plot is the cadastral value of such a land plot, if the results of the state cadastral valuation are approved no earlier than five years before the date of the decision to hold the auction.

If the results of the state cadastral valuation are approved earlier than five years before the decision to hold an auction is made, the initial price of the subject of the auction is set at the market value of such a land plot, determined based on the results of a market valuation in accordance with the Law on Valuation Activities.

3. In the event of an auction for the right to conclude a lease agreement for a land plot for the integrated development of a territory or for running a dacha economy (except for the case of an auction in accordance with paragraph 7 of Article 39.18 of the Land Code of the Russian Federation), the initial price of the subject of the auction for the right to conclude a lease agreement for such land plot is the amount of the first lease payment, determined based on the results of market valuation in accordance with the Law on valuation activities.

4. In other cases, when conducting auctions for the right to conclude a lease agreement for a land plot, the initial price of the subject of the auction is set at 100 percent of the cadastral value of such a land plot, taking into account the rounding of kopecks to whole rubles, if the results of the state cadastral valuation were approved no earlier than five years before the date of the decision to hold the auction.

If the results of the cadastral valuation are approved earlier than five years before the date of the decision to hold the auction, the initial price of the subject of the auction is set in the amount of the annual rent determined based on the results of the market valuation in accordance with the Law on Valuation Activities.

5. In the event of holding auctions for the sale of a land plot and for the right to conclude a lease agreement for a land plot with citizens for individual housing construction, personal subsidiary farming within the boundaries of a settlement, gardening, as well as with citizens and peasant (farmer) households for the implementation of peasant ( farm) of its activities, the amount of the deposit for participation in auctions is set at 50 percent of the initial price of the subject of the auction, taking into account the rounding of kopecks to whole rubles.

6. In other cases, the size of the deposit for participation in auctions for the right to conclude a lease agreement for a land plot is set at 100 percent of the initial price of the subject of the auction, taking into account the rounding of kopecks to whole rubles.

7. Recognize invalid the decision of the administration of the city of Kirov dated 05.02.2016 No. 285-p "On the procedure for establishing the amount of the deposit for participation in auctions for the sale and for the right to conclude a lease agreement for a land plot, the initial price of the subject of auctions for the sale and for the right to conclude a lease agreement plot of land".

8. To impose control over the execution of this resolution on the head of the department of municipal property of the administration of the city of Kirov Mamedova N.A.

The head of administration
of the city of Kirov A.V. Pereskokov

On the procedure for establishing the amount of the deposit for participation in auctions for the sale and for the right to conclude a lease agreement for a land plot, the initial price of the subject of auctions for the sale and for the right to conclude a lease agreement for a land plot

Document's name:	On the procedure for establishing the amount of the deposit for participation in auctions for the sale and for the right to conclude a lease agreement for a land plot, the initial price of the subject of auctions for the sale and for the right to conclude a lease agreement for a land plot
Document Number:	2121-P
Document type:	Decree of the Administration of the city of Kirov
Host body:	Administration of the city of Kirov
Status:	current

• Question: No. 1403 dated: 2015-01-08.

By virtue of clause 22 of the Order of the FAS Russia No. 67 dated February 10, 2010, the organizer of a tender or auction may establish a requirement to make a deposit. The amount of the deposit is determined by the organizer of the competition or auction. If the organizer of a tender or auction establishes a requirement to make a deposit, such a requirement applies equally to all participants in the tender or auction and is indicated in the notice of the tender or auction.

According to the explanations of the FAS Russia on the application of Article 17.1 of the Federal Law of July 26, 2006 No. 135-FZ "On Protection of Competition" (hereinafter referred to as the Law on Protection of Competition) and the Order of the FAS of Russia No. 67 of February 10, 2010, the rules for conducting trading are not regulated the procedure for determining the amount of the deposit, therefore, during the tender, auction, the amount of the deposit and the need to make it are determined by the organizer of the auction.

However, there is judicial practice, according to which, during the auction, the amount of the deposit must correspond to the goalsantitrust laws.

In particular, when conducting tenders, actions that lead or may lead to the prevention, restriction or elimination of competition are prohibited.

The Federal Arbitration Court of the Far Eastern District, in Resolution No. Ф03-829/2013 dated May 20, 2013, indicated that setting the size of the deposit, several times higher than the initial auction price, is in conflict with the goals of antimonopoly regulation, since it is actually aimed at restricting access to participation in auction.

Thus, the determination of the deposit is entirely within the competence of the organizer of the auction, however, the amount should not be unreasonably high, including several times higher than the initial price of the auction.

Attention! The information provided in the article is current at the time of its publication.