The Content and Form of the Pledge Agreement in the Civil Law of the Russian Federation

By Netishinskaya, Lyubov F.; Mokhovaya, Tatiana A. et al. | Journal of Legal, Ethical and Regulatory Issues, January 1, 2018 | Go to article overview

The Content and Form of the Pledge Agreement in the Civil Law of the Russian Federation


Netishinskaya, Lyubov F., Mokhovaya, Tatiana A., Ivanova, Elena U., Journal of Legal, Ethical and Regulatory Issues


INTRODUCTION

One of the characteristic features of a modern economy is an extensive development of bank lending (Gullifer and Payne, 2015; Kvon, Yakupova, Fatykhova, Levachkova & Puris, 2016; Ronzhina, Romantsev, Piskunov & Vrbka, 2016). Bank lending is one of the main elements of a modern market mechanism, which ensures the normal functioning of economic entities in the economy. Mass non-performance of lending contracts on the part of debtors makes the solution of problems related to the repayment of issued loans and removal of the debt loss threat a relevant task not only for any given bank, but also for the government, since it requires the legislator to adequately react to the socioeconomic situation at hand (Braginsky and Vitryansky, 2001; Pokrovsky, 2001; Gullifer and Payne, 2015). At that, a major role should be played by legal instruments intended to protect the interests of both the state and entrepreneurs, which will allow stimulating the economic development of the country. The necessary condition for the successful solution of the problems under consideration is the improvement of legal mechanisms for the active usage of the pledge as the most reliable means of securing the performance of an obligation. This problem is especially relevant for post-Soviet countries, including Russia, due to the socioeconomic crisis that said countries are experiencing. Considering the recent and already effective changes to the laws on pledge, the state of regulation of pledge relationships can be assessed as satisfactory, although one should not stop at that. Therefore, it is necessary to conduct studies, the results whereof could be used by the legislator to further improve the laws on the application of a pledge, including in banking.

The problems of legal regulation of pledge relationships have long been a subject of active discussions in the theory of civil law. Their theoretical investigation is a relevant and important problem that allows solving specific issues related to the application of pledges, for instance, to protect of rights of pledgers and pledge holders and register pledged personal property. It is worth noting that researchers interpret the concept of pledge differently: Some see its fundamental principles of property rights (Selivanovsky, 2006), while others see its obligatory and legal nature (Dashtserengiyn, 1999). Despite this, the pledge is an additional means of securing obligations.

It should be noted that amendments made to ?3 "Pledge" of Article 23 of the Civil Code of the Russian Federation (Civil Code of the Russian Federation, 1995) filled in many gaps in the legal regulation of pledge relationships; for instance, they enshrined new ways of selling pledged property and introduced records of personal property pledges. The assumption is that the provisions on the recoding of personal property pledges via registration of notices of pledge and the availability of a register of notices of pledge will soon prove to be positive factors that will ensure a more efficient usage of pledges as a means of securing the performance of obligations in the civil law.

According to Dashtserengiyn, the lack of personal property registration is the main factor that inhibits the development of personal property pledge in Russia (Dashtserengiyn, 1999). In addition, the Civil Code of the Russian Federation now has provisions on the pledge of exclusive rights to the results of intellectual activity and equation thereto of means of individualization, on the state registration of the pledge of exclusive rights and the pledge of securities and its registration. At that, the legislator set the rules that protect the rights and legitimate interests of the pledge holder and pledger under the conditions of an unstable economy, which is very important, including for bank lending, at the current stage of economic development of Russia and generally facilitates the stability and sustainability of civil commerce. …

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