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problems of minimisation of risk of participants exchange and vnebirzhevyh contracts

Studying of separate kinds of derivative financial tools with evidence testifies, that the urgent market is closely connected with risk. In Strategy of development of the financial market of the Russian Federation in the period till 2020 (it is approved by the Order of the Government of the Russian Federation from December, 29th, 2008 № 2043-r) it is specified, that the market of derivative financial tools promotes decrease in risks at fulfilment of transactions with basic actives [238].

The history analysis testifies, that occurrence of the market of derivative financial tools is dictated not only search of ways of increase in profit, but also minimizirovanija various risks. However development derivativov has generated paradox: the market created for minimisation of risks, at increase in volume of transactions made on it itself becomes vysokoriskovym, and the operations spent on it, have high degree of risk.

The modern condition of the world and Russian financial markets puts in the forefront a question on influence of risk on stability of the civil circulation and mikro - macroeconomics as a whole.

Derivativy are difficult financial tools that gives rise to danger of increase in system risk. As marks G.Rajner, the system risk inherent in a modern international financial system, has considerably grown for last years. In 1993 Bundesbank has specified, that great volume of transactions with derivative financial tools causes alarm. Increasing use derivativov at realisation of the financial strategy mentioning various market segments, has strengthened integration of the financial markets and has weakened their ability to resist кризисам1.

However the increase in risks is promoted not only complexity derivativov, but also by increase in quantity of the speculative transactions made in the urgent market which basic active are vysokoriskovye tools. Economists call derivativy «a substitute of money», «rychagovymi money», that it is possible to explain on a following example. We will present, that enterprise actives are estimated in hundred millions roubles. With a view of attraction of financial assets, for example for manufacture expansion, release derivativov which turn in the financial markets at real cost of actives in hundred millions roubles can make profit several times more is possible. Thus far not the fact, that enterprise actives will really increase. So, in 2007 - 2008 cost of the real capital fluctuated about 50 bln. US dollar, and the volume of the speculative capital was equaled 560 bln. US dollar [239 [240]. According to the Moscow stock exchange, if for February, 9th, 2003 The day volume of the auctions by options in roubles has constituted 87 million 649 000 rbl. for February, 8th, 2013 - 261 917 rbl. [241] Nearby 40 - 50 % of growth of the financial market speculative character [242] has 16 billion 162 million.

According to a number of scientists, derivativy, connected with the American hypothecary bonds, have served one of the reasons of world financial crisis 2008 [243] As a basic active of the derivative securities which have been let out by banks of the USA, the hypothecary credits which are given out under low interest rates to borrowers with an unstable financial position have acted. The significant amount of non-returns of extra means has provoked destruction of all "pyramid".

So-called «the soap bubble» has burst, having started chain reaction in the world financial market. «Rychagovye money» was reduced to real cost that has led to deep crisis of liquidity and a credibility gap to the authorities. Negative consequences have concerned not only speculators, but also the manufacturers of the real goods strongly depending on bank crediting, essentially reduced in financial crisis.

According to I.J.Jurgensa, anybody does not know, where there can be a new problem of non-payments and what it will cause consequences as besides the mentioned hypothecary securities there is still a set of other kinds of derivative financial tools. Bankruptcy of several largest financial institutions, according to the scientist, yet a limit of negative consequences of uncontrolled application of derivatives financial инструментов1. Pertinently to recollect as an example crash of one of the oldest English banks Barings with faultless reputation and 230-year-old history. The employee of Singapore branch Barings Nik Lison speculated by means of derivative financial tools on the basis of index Nikkey that has led to bankruptcy of bank. This case visually shows, how much strongly world financial markets are dependent on mood of players [244 [245]. The known investor Warren Baffet in 2002 rather precisely named derivativy «the financial weapon of mass defeat».

For the businessman functioning in vysokoriskovoj is characteristic to environment, however with reference to the urgent market the above-stated obviously testifies to negative influence of derivative financial tools on stability and efficiency of functioning of the civil circulation as mikro - and macroeconomics as a whole. As the research spent in the previous paragraph, has shown, that the majority of the derivative financial tools fixed in the Russian legislation, are aleatory contracts, it is available necessity of perfection of their legal regulation taking into account received before conclusions.

In Strategy of development of the financial market of the Russian Federation development of derivative financial tools is specified in the period till 2020 as one of directions. In the given Strategy following problems are put: 1) necessity of maintenance of the account of the rights to the financial tools which are not securities; 2) the reference of financial tools by rules of the account and the reference of securities; 3) distribution of the risks connected with activity of intermediaries in the market of financial tools; 4) maintenance of protection of the rights of owners of financial tools. The decision of the specified problems promotes not only to development of the urgent market, but also provides its stability [246].

According to the author of dissertation, with reference to derivative financial tools as to aleatory contracts most sharply there is a question on limits of expediency of the conclusion of such contracts. Now in some cases the legislation, protecting interests of creditors, establishes restrictions at fulfilment of aleatory contracts. For example, in ч.2 item 40 of the Federal act from November, 29th, 2001 №156 - FZ «About investment funds» it is specified, that the operating company which is operating as confidential joint-stock investment fund operating actives or share investment fund or carrying out functions of an individual executive office of joint-stock investment fund, have the right to conclude dogovory, being derivative financial tools, under condition of observance established by standard legal acts of federal body, the executive authority on a securities market of the requirements directed on restriction of risks. As an example of such certificate it is possible to specify Order FSFR of Russia from 10.11.2009 № 09-45/пз-н «About the Position statement about decrease (restriction) of the risks connected with confidential management by actives of investment funds, placing of means of pension reserves, investment of means of pension accumulation and accumulation for housing maintenance of military men, and also about the statement of changes in some standard legal acts of Federal service on the financial markets» [247]. Item 3.1. The given Order provides, that in case at management (confidential management) actives (actives of investment funds, means of pension reserves, means of pension accumulation and accumulation for housing maintenance of military men) consist the urgent contracts, the operating company is obliged to organise a control system of risks, in particular to establish limits of cost of financial tools under urgent contracts which can constitute actives.

In pravoprimenitelnoj to practice also there are the decisions illustrating opinion of vessels about necessity of protection of interests of creditors and restriction of risk at the conclusion of aleatory contracts. As an example we will consider following known case.

NPF «old age Social protection» Dialogue »about collecting of the sum of not returned means of pension reserves at a rate of 147 297 189 rbl. 92 copeck and percent for using another's money resources at a rate of 3 746 8 72 rbl. 27 copeck has addressed in Arbitration court of a city of Moscow with the claim to Joint-Stock Company" УК "the Three

The award of a city of Moscow from 20.07.2011 on business № А40-33903/11-91-145, the decision of the Ninth arbitration appeal court left without change from 10.10.2011 and the decision of Federal arbitration court of the Moscow district from 07.02.2012 on the same business, fund claims are satisfied. By definition YOU the Russian Federation from May, 28th, 2012 in transfer of business to Presidium YOU the Russian Federation it is given up.

Vessels establish the following. On August, 07th, 2007 between NPF «old age Social protection» (the founder of management) and Joint-Stock Company "УК" the Three Dialogue »(the confidential managing director) has been concluded the contract of confidential management by pension reserves of not state pension fund (further - the contract). During currency of the contract NPF« old age Social protection »has transferred Joint-Stock Company" УК "the Three Dialogue» pension reserves to a total sum 489 832 678 rbl. 39 copeck

According to contract item 13.1, term of its action has been certain by the parties till December, 31st, 2008. According to podp. Item 4.1 of the contract of Joint-Stock Company "УК" the Three Dialogue »would be obliged to provide return of pension reserves NPF« old age Social protection »according to conditions of item 9.1 of the contract providing realisation of principles of reliability, safety, liquidity and diversifikatsii actives.

The size returned by the respondent - Joint-Stock Company "УК" the Three Dialogue »to the claimant - NPF« old age Social protection »pension reserves has constituted 342 535 488 rbl. 47 copeck Of them money resources - 176 492 247руб. For the sum 1 66 043 241 rbl. 14 copeck the Difference between the transferred and returned pension reserves constitutes 33 copeck, securities 147 297 189руб. 92 copeck

Being guided by current legislation positions, including item 431 of the Civil code of the Russian Federation, the Federal act «About not state pension funds» taking into consideration, a literal word meaning and, expressions containing in the contract, courts have come to conclusion that by the appropriate such execution by the operating company of the contractual obligations of confidential management which provides achievement of the purposes of safety and a gain of pension reserves for what company activity at placing of means of pension reserves should be carried out on principles of reliability, liquidities, profitablenesses and diversifikatsii can be recognised only.

Such position on the given question corresponds to judicial-arbitration practice. As has specified the Supreme Arbitration Court of the Russian Federation on similar business (definition from 29.07.2010 № ВАС-9541/10) «legal effect has achievement of the purpose of safety and a gain of pension reserves, instead of in itself fulfilment of actions irrespective of, whether they have led to the specified purpose or not. Otherwise the sense of transfer of pension reserves in confidential management» is lost.

The operating company, being the professional managing director under the contract of confidential management of means of pension reserves, independently defines investment strategy and owing to point 4 of article 25 FZ «About not state pension funds» bears responsibility before fund on the bases provided by the Civil code of the Russian Federation. Proceeding from it, acquisition by the operating company in the course of execution of contractual obligations of confidential management of illiquid securities cannot be recognised by appropriate execution of contractual obligations by it. Hence, acquisition by the respondent at the expense of pension reserves of illiquid securities cannot be the refusal basis in satisfaction иска1.

The specified legal position is stated in definition of the Constitutional court of the Russian Federation from July, 17th, 2012 № 1479 [248] [249].

Speaking about risk in enterprise activity, we will remind of communication of risk and the subjective decision. The conclusion of any time bargain is preceded by an economic substantiation, but decision-making on the introduction in vysokoriskovuju the transaction depends on the subject.

The analysis of the economic literature on risk in the enterprise activity, spent to item 1.2. The present work, has allowed to find out «paradox of risk», expressed in simultaneously positive and negative values of risk. The given phenomenon as is impossible precisely reflects the situation which has developed now in the world financial market. The dual nature of risk has proved more than once in the form of shattering financial crises.

The risk paradoxicality has formed a basis for development of the concept of comprehensible risk according to which the businessman should adhere rational, instead of the adventurous relation to risk. According to the author of dissertation, the given concept should lay down in a basis of legal regulation of aleatory contracts of the businessman.

Unlike three risk levels (admissible, critical, catastrophic) in the economic concept of comprehensible risk, in the right application only two levels is practically possible: admissible and catastrophic.

The admissible (comprehensible) risk level is possibility of loss of a part of profit on realisation of this or that decision; or receptions of zero profit, but at compensation by the businessman of the suffered expenses; or non receipt of profit and compensation of all expenses at own expense. Aleatory contracts with an admissible risk level represent the widespread and effective tool of enterprise activity, as a rule, directed on risk minimisation. As an example it is possible to result the time bargains concluded for the purpose of hedging.

The catastrophic is understood as such risk level at which possible losses are equal or exceed cost of property of the businessman. Thus, in case of execution of the aleatory contract with catastrophic risk as a negative consequence losses, and bankruptcy of the person act not simply. The given risk is adventurous, similar to game risk and any positive economic effect does not bear. It is necessary to carry to such contracts vnebirzhevye derivativy, and also exchange speculative transactions.

According to the author of dissertation, in interests of counterparts of owners of financial tools the establishment of the measures limiting aleatory contracts with catastrophic risk as practice of application of derivative financial tools shows is required, that the subjective factor gets the major value in connection with possible abusings from the head of the commercial organisation. Thus it is necessary to mean, that toughening of requirements to brave activity in the urgent financial market should not affect development and expansion of activity of its other participants negatively.

As one of such measures position fastening about the subsidiary liability of the person, made the decision on the aleatory contract conclusion which execution has entailed bankruptcy of the legal person is offered. This position will allow to limit effectively the conclusion of the specified contracts, thus having provided interests of counterparts of owners of financial tools.

Introduction of a similar rule will serve as development of positions of the operating Russian legislation. So, according to item 10 of the Federal act from 26.10.2002 № 127-FZ «About an inconsistency (bankruptcy)» (in red. The Federal act from. 28.06.2013 №134-ФЗ) if the debtor is recognised by insolvent (bankrupt) owing to actions and (or) inactivity of the supervising debtor of persons, such persons in case of insufficiency of property of the debtor bear the subsidiary liability under its obligations. Other is not proved yet, it is supposed, that the debtor is recognised by insolvent (bankrupt) owing to actions and (or) inactivity of the supervising debtor of persons, including if harm is caused property rights of creditors as a result of fulfilment by this person or in favour of this person or approval by this person of one or several transactions of the debtor, including the transactions specified, in particular, in article 61.2 of the considered law. Let's remind, that transactions concern the such with not equivalent counter-execution of obligations by other party of the transaction, including if the price of the transaction and (or) other conditions it is essential in the worst to the debtor the party differ from the price and (or) other conditions at which in comparable circumstances similar transactions (for example if market cost of the property transferred by the debtor or other execution of obligations carried out by it essentially exceeds cost of the received counter-execution of obligations) are made.

Also item 14 of the Federal act from February, 25th, 1999 №40-ФЗ «About an inconsistency (bankruptcy) of the credit organisations» contains a rule that the subsidiary liability under obligations of the credit organisation is applied by courts of justice to founders (participants), to members of board of directors (supervisory board), heads of the credit organisation in the presence of following conditions:

- If the specified persons have the right to give obligatory instructions for the given credit organisation or have possibility otherwise to define its actions;

- If bankruptcy of the credit organisation has occurred because of data

Persons.

However, as A.Kurbatov considers expert of application of item 14 of the Federal act from February, 25th, 1999 №40-ФЗ, has shown requirement for rule modernisation about the subsidiary liability. First, the risk inherent in enterprise activity and expressed in non receipt of planned result, blocks any attempts of qualification of actions of responsible persons as the guilty. In - the second, complexity causes rule application about the subsidiary liability to the collegiate body (shareholder meeting, board of directors) as to define degree of fault of each of participants (members) of these bodies for the made decision is impossible. Always there are the persons who were not accepting participations in session for various reasons, refrained from voting, voting against, but remained in minority and t.p [250].

According to the author of dissertation, application of a principle of the guilty

Responsibility of the persons who have made the aleatory contract, which execution has entailed bankruptcy of the legal person, it is ineffective for following reasons. In item 14 of the Federal act from February, 25th, 1999 №40-ФЗ it is specified, that persons, admit guilty, if their decisions or action (including excess of power), entailed occurrence of signs of bankruptcy, mismatched the conscientiousness and rationality principles corresponding to standard legal acts of the Russian Federation, bank rules, the charter of the credit organisation or customs of a business turn.

According to item 53.1 GK the Russian Federation the person who owing to the law, other legal act or the constituent instrument of the legal person is authorised to speak on behalf his name, is obliged to compensate on request of the legal person, its founders (participants) acting in interests of the legal person, the losses caused through his fault to the legal body. Such person bears responsibility if it will be proved, that at realisation of the rights and execution of the duties it operated unfairly or unreasonably, including if its actions (inactivity) mismatched usual conditions of the civil circulation or usual enterprise risk.

According to vysherassmotrennomu to the Decision of Plenum of the Supreme Arbitration Court of the Russian Federation № 62 from July, 30th, 2013 «About some questions of the indemnification the persons who are a part of bodies of the legal person» the person who is a part of bodies of the legal person, (an individual executive office, members of the collegiate body of the legal person, etc., further - the director) is obliged to operate in interests of the legal person honesty and reasonably. In case of infringement of this duty the director on request of the legal person and (or) its founders (participants), by which law it is accorded a right to a presentation of the corresponding requirement, should pay the damages caused to the legal body by such infringement. As criteria of guilt or innocence of the person in both certificates conscientiousness and a rationality are named.

In the legal literature the concept of conscientiousness is considered from an objective and subjective position. According to G.A.Gadzhiev, conscientiousness as the objective category represents such realisation of rights by the person at which it is not damnified and threat of injury to other лицам1 is not created. Under A.A.Malinovsky's statement, conscientiousness is an internal limit of realisation of the right, representing aspiration of the subject to refuse harmful realisation of the right, proceeding from internal убеждений2.

As an example of unconscientiousness of actions (inactivity) of the director in the Decision of Plenum considered above YOU the Russian Federation transaction fulfilment (voting for its approval) on obviously unprofitable conditions for the legal person is specified. As it was marked, the transaction on unprofitable conditions is understood as the transaction, the price and (or) which other conditions it is essential in the worst to the legal person the party differ from the price and (or) other conditions on which in comparable circumstances similar transactions (for example if the granting received under the transaction by the legal body are made, in two or more times below cost of the granting made by the legal body in favour of the counterpart). Unprofitableness of the transaction is defined at the moment of its fulfilment.

The conclusions drawn earlier about essence of the aleatory contract testify to impossibility of application to them of the specified criteria of conscientiousness. Otherwise, any aleatory contract it is necessary to concluded to recognise unfair, since a key sign of the aleatory contract is the special character of subjective risk expressed in [251 [252] possibilities of non receipt by one of the parties owing to casual circumstance instead of the property blessing given by it of counter granting on which she counted at making contract. At the conclusion of the aleatory contract of the party do not know, what will be its final economic result, whether property damage will be caused the legal body or the third parties. At the moment of making deal to define its advantage or unprofitableness it is impossible, it is obviously possible only subsequently at approach of the reserved casual event.

Let's address to a being of a category "rationality". V.S.Em understands intelligence (rationality), logicality and expediency of behaviour of the subject as a rationality. Reasonable it is necessary to consider behaviour of the subject if it grows out of judgement of social and economic conditions in which it is, logically follows from it and it is expedient for него1. Agreeing with the given statement, S.A.Ivanov believes, that the rationality in civil law means display by subjects of feeling of a measure, rational understanding objective реальности2.

In the considered Decision of Plenum of the Supreme Arbitration Court of the Russian Federation № 62 from July, 30th, 2013 unreasonableness of actions (inactivity) of the director is considered proved, in particular, when the director has made the decision without the information known to it important in the given situation, or before decision-making has not undertaken the actions directed on reception of the necessary and sufficient information for its acceptance which are usual for business practice under similar circumstances, in particular, if is proved, that [253 [254] under available circumstances the reasonable director would postpone decision-making before reception of the additional information.

In the aleatory contract the economic result is put by the parties in dependence on casual circumstance. Reception have arrived counterparts of such contract directly it is connected with fluctuation of changeable size (an exchange rate, the price of the goods, weather conditions, etc.). The Aleatory contract always consists in conditions of incompleteness of the information concerning approach or failure of consideration of the reserved event, as allocates it from among other civil-law contracts.

The above-stated testifies that criteria

Unconscientiousness and the unreasonableness, developed in a science and practice and used for qualification of actions of the person as guilty, are applicable to exchange contracts. Concerning aleatory contracts their application is complicated in view of a special design of such contracts. According to the author of dissertation, in situations of the bankruptcy, the caused execution of the aleatory contract, more effectively an establishment corrected about bezvinovnoj responsibility of the persons, made the decision on the conclusion of such contract [255].

On the basis of the above-stated it is offered to item 56 GK to add the Russian Federation with point the third the following maintenance:

«If the inconsistency (bankruptcy) of the legal person is caused by execution of the aleatory contract concluded by founders (participants), the proprietor of property of the legal person or other persons who have the right to give obligatory instructions for this legal person or otherwise have possibility to define its action, such persons in case of insufficiency of property of the legal person solidary bear the subsidiary liability under its obligations irrespective of fault».

In summary it is necessary to notice, that the legislator undertakes many decades actions under the control exchange and vnebirzhevoj trade, to restriction of brave speculative transactions, protection of the rights of interested persons, however legislative regulation as it is truly noticed in the literature, is in constantly catching up condition in relation to development of the financial market. Nevertheless, timely and effective legal reaction to new relations should remain an invariable reference point, both for the legislator, and for pravoprimenitelja.

The conclusion

Summing up to the spent research, we will notice, that in work the system judgement of features of aleatory contracts in system of aleatory contracts in a complex of the interconnected problems and features of legal regulation is spent.

Studying of specificity brave, including aleatory contracts as independent civil-law contracts was necessary for the further perfection of the civil legislation and pravoprimenitelnoj experts. From creation effective

Toolkit of legal regulation of the specified contracts depend not only stability of the civil circulation, but also prospect of development of economic relations.

The research objective formulated in work - working out of a theoretical basis of the doctrine about aleatory contracts in system of aleatory contracts, revealing of problems of legal regulation of corresponding public relations, and also development of practical recommendations about perfection of the civil legislation of the Russian Federation and pravoprimenitelnoj experts - basically is reached, the problems put for its achievement are solved. Definition of frameworks of research, its object, a subject, and also development of methodology of research, a support on achievements of a science of civil law in the field of aleatory contracts, use enough extensive empirical base - all it has allowed to receive results which are reflected in a number of theoretical conclusions and practical recommendations.

1. The key category underlying brave, including aleatory contracts, is the risk. Despite extensive application of the term "risk", in the Russian legislation there are no uniform approaches to its definition, and separate rules of law contradict a being of this phenomenon. In whole, in a science and practice the uncooperative altitude to risk was generated traditionally. The risk represents possibility of approach of the negative consequences expressed in injury, both to property, and a life and health of the individual. Thus the risk is represented a category probable, but not come. Risk realisation is adhered to the casual circumstance which is not dependent on will of the subject.

The risk depending on the occurrence reason should be considered in quality both objective, and the subjective phenomenon. The objective risk arises in property sphere of the subject without dependence from its actions (for example, thing risk of accidental loss). The subjective risk is formed in property sphere of the subject at its will (for example, risk of the player).

2. Comparison of exchange and brave contracts testifies to that, as that, and another consist the parties for the purpose of acquisition of the property blessing. However the design of the exchange contract allows its parties to establish total economic result of the transaction at the conclusion. The brave contract is specially simulated so that from the moment of its conclusion there was an uncertainty concerning final economic result for both parties. Probably, at the aleatory contract conclusion there is a probability to establish volume of the property blessing, but to define, what party will have a right to its reception, and at what party - a duty on its payment, the case allows only. The subjective risk is konstitutivnym the sign of aleatory contracts allowing

To delimit them from exchange contracts. In the aleatory contract the risk expressed in possible neekvivalentnosti of the passer

Grantings, is the integral element mediating achievement of the contractual purpose. The parties, concluding such contract, on own will create risk as the satisfaction of their interest otherwise is not obviously possible.

Besides subjective risk brave contracts it is necessary to carry dependence of economic result to signs, and, hence, and realisations of the concrete rights and duties of the parties of the transaction from casual event, and vozmezdnost, expressed in granting or the property blessing (in insurance, the rent), or possibilities of acquisition of the property blessing (in game and a bet, exchange and vnebirzhevyh the contracts which are not providing real transfer of the goods).

3. Research has shown, that, despite allocation in group of cummutative contracts of aleatory contracts of insurance, the rent, game, a bet, exchange and vnebirzhevyh the contracts, essential distinctions in designs of the specified contracts cause necessity of their further division. Allocation of separate subspecies of the contracts called aleatornymi to which it is necessary to carry game, a bet, exchange and vnebirzhevye dogovory Is represented expedient. Unlike aleatory contracts as a whole, aleatory contracts are characterised by the special character of subjective risk expressed in possibility of non receipt by one of the parties owing to casual circumstance instead of the property blessing given by it of counter granting on which she counted at making contract. For example, in insurance and the rent reception by both parties of the property blessing is supposed, the risk is expressed in it neekvivalentnosti depending on casual circumstance. The risk of the player or the party urgent exchange and vnebirzhevogo contracts consists in non receipt of the desirable property blessing as a whole.

4. Allocation brave, including aleatory contracts in independent group is caused not only theoretical, but also the practical importance. Such dogovory possess the specificity, not allowing to apply to them legal regulation of exchange contracts to the full. In particular, formation by the parties brave and aleatornogo contracts of subjective risk on own will does inapplicable to such contracts the majority of designs concerning equivalence of counter granting. So, concerning the specified contracts use of positions about so-called "unprofitableness" (laesio епогшів) is impossible. This concept, in particular, is shown in item 179, item 451 GK the Russian Federation, item 61.2 of the Federal act from 26.10.2002 № 127 FZ «About an inconsistency (bankruptcy)», the Decision of Plenum of the Supreme Arbitration Court of the Russian Federation № 62 from July, 30th, 2013 « About some questions of the indemnification the persons who are a part of bodies of the legal person »which action on brave, including aleatory contracts to extend it is impossible, that demands fastening in the civil legislation.

5. Dependence of economic result of the aleatory contract and realisation of the concrete rights and duties of the parties of the contract on casual event has allowed a number of scientists to carry aleatory contracts to conditional juristic acts. According to the author of dissertation, the conditional juristic act and aleatory contract identification contradicts a being of the last. In the aleatory contract the establishment of dependence of occurrence of the rights and duties from the future event is a part of the basic will of the parties. It is obvious, that it is impossible to exclude from the contract of insurance, game, soar instructions on certain event, having kept thus the contract. The instructions on the future event in the aleatory contract are, as well as risk, a sign defining a kind of the contract. In conditional transactions the instructions on the future event are defined as the additional will of the parties which are not influencing qualification of the transaction. Thus, use in pravoprimenitelnoj as the legal analogy of rules of law about conditional juristic acts concerning aleatory contracts is impossible for practice, as between them there are essential distinctions.

6. Now among aleatory contracts practically

Not settled are dogovory, made on exchange and vnebirzhevyh the auctions, called derivatives financial

Tools. These transactions serve as the effective tool for minimisation of economic risks of the businessman. The analysis

The civil doctrine and practice of fulfilment of such contracts as the future, the forward, the option, a swap, has shown, that their legal nature is various. postavochnyj the future and postavochnyj the forward should be considered as dogovory purchase and sale with the time of performance in the future, i.e. exchange dogovory. postavochnyj the option is an aleatory contract of a special sort. The settlement future, the settlement forward, a settlement option and a swap are contracts of a special sort and concern group of aleatory contracts. The specified distinctions of legal qualification should be considered in the legislation and pravoprimenitelnoj to practice that will promote qualitative consideration of the disputes following from such contracts, and increase of their appeal to wide layers of businessmen.

7. Despite the high importance exchange and vnebirzhevyh contracts, practice of their application testifies to negative influence of some of them on stability and efficiency of functioning of the civil circulation, and also micro-and macroeconomics as a whole. It is a question of aleatory contracts with catastrophic risk, that is such contracts, a possible which consequence of execution is bankruptcy of the businessman. A state problem is formation at the businessman of the reasonable approach to the conclusion of aleatory contracts. Despite undertaken attempts of legislative regulation, neither in operating normative acts, nor in bills there is no express indication on restriction of the conclusion of similar transactions. According to the author of dissertation, one of the measures limiting the businessman from the conclusion of aleatory contracts with catastrophic risk, position fastening about the subsidiary liability of the person, made the decision on the conclusion of the similar contract is, in a case if its execution has entailed bankruptcy of the legal person.

Stated above and other theoretical conclusions stated above experts have allowed to develop as practical results of research a number of concrete recommendations about perfection of the legislation of the Russian Federation and pravoprimenitelnoj.

1. For restriction of the conclusion by businessmen of aleatory contracts with catastrophic risk, it is recommended to item 56 GK to add the Russian Federation with point the third the following maintenance:

«If the inconsistency (bankruptcy) of the legal person is caused by execution of the aleatory contract concluded by founders (participants), the proprietor of property of the legal person or other persons who have the right to give obligatory instructions for this legal person or otherwise have possibility to define its action, such persons in case of insufficiency of property of the legal person solidary bear the subsidiary liability under its obligations irrespective of fault».

2. With a view of fastening in the legislation of specificity brave and aleatory contracts it is offered to add chapter 27 GK the Russian Federation with article 423.1"Exchange and aleatory contracts» the following maintenance:

«1. The exchange contract the agreement at which conclusion of the party adjust volume of counter granting admits.

2. The aleatory contract the agreement in which the volume of counter granting is put in dependence on the circumstance not subject an ox of the parties admits.

The aleatory contract as an aleatory contract version, the agreement in which counter granting is expressed in possibility of acquisition of the property blessing depending on the circumstance not subject an ox of the parties admits.

3. Application to brave, including to aleatory contracts of the norms regulating exchange dogovory, is possible so far as as it does not contradict a being of aleatory contracts ».

3. With a view of effective legal regulation exchange and vnebirzhevyh contracts and uniform qualification their vessels offer in Order FSFR «About the position statement about kinds of derivative financial tools» from March, 4th, 2010 № 10-13/пз-н to make changes:

1. Point 5 to state in the following edition:

«Optsionnyj the contract (contract) providing a duty, established by subparagraph 2 of point 3 of the present Position, except for a duty to conclude the contract which is the derivative financial tool which does not provide a duty to transfer, buy to (sell or put securities, currency or the goods, is postavochnym, the aleatory contract. Others optsionnye dogovory (contracts) are settlement, aleatory contracts».

2. Point 8 to state in the following edition:

«The future contract (contract) providing a duty, established by point 7 of the present Position, except for a duty to conclude the contract which is the derivative financial tool which does not provide a duty to transfer, buy to (sell or put securities, currency or the goods, is postavochnym, the exchange contract. Others future dogovory (contracts) are settlement, aleatory contracts».

3. The paragraph of fourth point 9 to state in the following edition:

«The exchange forward contract (contract) is postavochnym,

The exchange contract ».

4. Point 11 to state in the following edition:

«Vnebirzhevoj the forward contract (contract) providing a duty, established by subparagraph 1 or 2 points 10 of the present Position, are postavochnym, the exchange contract. Others vnebirzhevye forward dogovory (contracts) are settlement, aleatory contracts».

5. Point 14 to state in the following edition:

"A swap the contract (contract) providing duties, established by subparagraph 2 of point 12 or point 13 of the present Position, except for a duty to conclude the contract which is the derivative financial tool which does not provide a duty to transfer, buy to (sell or put securities, currency or the goods, is postavochnym, the exchange contract. Others a swap dogovory (contracts) are settlement, aleatory contracts».

4. The Decision of Plenum of the Supreme Court of the Russian Federation №6 Is offered, Plenum of the Supreme Arbitration Court of the Russian Federation №8 from July, 1st, 1996 «About some questions connected with application of a part of the Russian Federation first the Civil code» to add item 54.1 of the following maintenance:

«At disposal of legal proceeding on the disputes connected with the conclusion, execution, change, cancellation and contest brave, including aleatornyh, contracts, vessels should consider impossibility of application to similar legal relations of positions of the legislation on conditional juristic acts in view of distinctions of the given categories. In brave, including aleatornyh, contracts dependence of occurrence or the termination of the rights and duties on concrete event concerning which it is not known, will come it or will not come, is an essential sign of the specified contracts, allowing to delimit them from other civil-law contracts. In the conditional juristic acts which are as a matter of fact exchange, dependence of occurrence or the termination of the rights and duties from casual event represents itself as the additional

The will of the parties which are not influencing qualification of the transaction ».

In the present work, first of all, owing to an insufficient readiness and complexity of investigated problems, the problem was not put by exhaustive image to investigate all problems arising in the course of legal regulation brave, including aleatory contracts and practical application of the corresponding legislation. However it can form base for the further scientific researches in the given area.

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A source: Madagaeva Tatyana Fyodorovna. ALEATORY CONTRACTS IN SYSTEM OF ALEATORY CONTRACTS In CIVIL LAW of the RUSSIAN FEDERATION. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2014. 2014

More on topic problems of minimisation of risk of participants exchange and vnebirzhevyh contracts:

  1. the brave beginnings in exchange and vnebirzhevyh Contracts
  2. 3.2.1. General provisions about exchange and vnebirzhevyh Contracts
  3. 4.2.2. Modelling of function of a bias volatilnosti on the basis of exchange options for the future of the Russian Open Society "United Power Systems" at the moment of an estimation vnebirzhevyh options
  4. the Appendix 6 Example of the mechanism of indemnification of an exchange risk of a creditor bank
  5. CHAPTER 3. RISK And RESPONSIBILITY In OBLIGATIONS FROM PROPERTY INSURANCE CONTRACTS
  6. CHAPTER 1. THE RISK CATEGORY AS THE INTRINSIC BEGINNING OF ALEATORY CONTRACTS IN THE CIVIL LEGISLATION OF THE RUSSIAN FEDERATION AND IN THE SCIENCE CIVIL LAW
  7. problems of change, cancellation and a recognition void brave and aleatory contracts
  8. Issue and an estimation vnebirzhevyh options for the Russian equity market
  9. 1. Strategy of minimisation of costs
  10. exchange bias. Anisotropy of magnetic properties of thin-film structures with exchange bias
  11. §1. Minimisation of bank investment risks.
  12. 3.3. Methodical bases of minimisation of risks of business banks at the project financing organisation
  13. 2.2.1 Purposes, problems, hypotheses and participants of research
  14. § 3. Problems of the prevention of crimes against participants of the criminal trial and possible ways of their overcoming
  15. 4. Problems of joining to international treaties of the state-participants CIS and the East European countries
  16. 2.5.2. An estimation vnebirzhevyh options on model Bleka - shoulsa at a bias volatilnosti for all strikes of manufactured options
  17. §3. Problems of differentiation of responsibility of participants of dorozh the movement taking into account features of fulfilment of road and transport crimes
  18. Programming in language VBA for a finding internal volatilnosti and estimations vnebirzhevyh options
  19. Madagaeva Tatyana Fyodorovna. ALEATORY CONTRACTS IN SYSTEM OF ALEATORY CONTRACTS In CIVIL LAW of the RUSSIAN FEDERATION. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2014, 2014