The public competition must be aimed at. Civil law of Russia. Public competition with an obligation to pay a reward

1. A person who publicly announced the payment of a monetary reward or the issuance of another reward (payment of an award) for the best performance of work or achievement of other results (public competition) must pay (give out) the stipulated reward to the one who, in accordance with the terms of the competition, is recognized as his winner.

2. Public competition must be aimed at achieving some socially useful goals.

3. A public competition can be open when the offer of the competition organizer to take part in it is addressed to everyone by means of an announcement in the press or other means mass media, or closed, when an offer to take part in the competition is sent to a certain circle of people chosen by the competition organizer.

An open competition may be conditioned by the preliminary qualification of its participants, when the organizer of the competition carries out a preliminary selection of persons who wish to take part in it.

4. The announcement of a public competition must contain at least the conditions stipulating the essence of the task, the criteria and procedure for assessing the results of work or other achievements, the place, deadline and procedure for their presentation, the size and form of the award, as well as the procedure and timing for announcing the results of the competition.

5. For a public competition containing an obligation to conclude an agreement with the winner of the competition, the rules provided for by this chapter apply to the extent that Articles 447 - 449 of this Code do not provide otherwise.

Commentary to Art. 1057 Civil Code of the Russian Federation

1. Today, such a legal action as the announcement of a public competition is becoming increasingly widespread in civil circulation. According to S.A. Chernysheva, by its legal nature, the competition is a unilateral transaction, which is characterized by the expression of the will of one party. The announcement of a competition is a one-sided transaction, because for it to occur, the expression of the will of the organizer of the competition is sufficient. Submission by a person of work completed in accordance with the terms of the competition is also a one-sided transaction, since the person’s desire to participate in the competition is expressed without prior agreement on issues related to the competition.

The Constitution of the Russian Federation (Article 43) introduces the concept of “on a competitive basis” in relation to obtaining higher education in state or municipal educational institutions. However practical use this concept is much broader. It is found in many laws adopted recently and affects various aspects of the life of the state and society. Thus, in pursuance of Decree of the President of the Russian Federation of April 12, 1993 N 443 “On urgent measures state support undergraduate and graduate students educational institutions higher vocational education» and Regulations on Presidential Scholarships Russian Federation, approved by Decree of the President of the Russian Federation dated September 6, 1993 N 613-rp (as amended by Decrees of the President of the Russian Federation dated February 14, 2010 N 182, dated June 22, 2010 N 773, dated March 8, 2011 N 285), announced an open public competition for scholarships from the President of the Russian Federation to study abroad for students and graduate students of Russian universities in the 2011/2012 academic year.

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Collection of acts of the President and Government of the Russian Federation. 1993. N 16. Art. 1341.

Collection of acts of the President and Government of the Russian Federation. 1993. N 37. Art. 3451.

Collection of legislation of the Russian Federation. 2010. N 8. Art. 837.

Collection of legislation of the Russian Federation. 2010. N 26. Art. 3331.

Collection of legislation of the Russian Federation. 2011. N 11. Art. 1514.

Usually a public competition is announced by organizations interested in achieving best result in a certain field of activity. However, as practice shows, the organizers and participants of a public competition do not always clearly understand the legal side of the relationship they enter into in connection with its announcement.

A public competition is, first of all, one of the most important institutions of civil law, by virtue of which a person who has publicly announced the issuance of an award for the best performance of work or the achievement of other results, undertakes to hold the competition within a specified period and give the stipulated award to the one who, in accordance with the conditions of the competition was declared the winner.

A public competition and a public announcement of a reward are united by a public promise of a reward for performing a lawful action.

The public nature is manifested in the fact that the advertisement is addressed to an indefinite number of people in a public place. This could be an appeal made on the Internet or at a press conference during an international exhibition, in print and electronic means mass media.

The announcement of a public competition is understood as a message made by the organizer of the competition in a manner accessible to an indefinite circle of persons about his acceptance of the obligation to pay a property reward to the winner of the competition, i.e. to the one who, in accordance with the terms of the competition, will be recognized as having best performed certain work or achieved other best results.

2. A necessary feature of the results of the actions of competition participants must be their contribution to the achievement of any socially useful goals. As for the public promise of an award, the message about this, as in the case of a public competition, should be accessible to an indefinite circle of people. At the same time, unlike a competition, with a public promise, a reward can be promised for performing not only a socially useful action, but also any other lawful action, usually aimed at satisfying the interests of a private person (for example, finding a lost item, obtaining necessary information). In addition, the reward must be paid to anyone who completes the action specified in the advertisement. If the required action is performed by several persons, then the right to the reward is acquired by the one who performed this action first, and not by the one who achieved the results and is recognized as the winner of the competition.

Both the public promise of a reward and the public competition as a type of public promise of a reward, as noted above, are traditionally considered one-sided transactions. Meanwhile, in relation to them in this aspect one can discern some difference.

According to Professor A.M. Erdelevsky, the qualification of a public promise of a reward as a unilateral transaction is beyond doubt. For an obligation to pay a reward to arise, two legal facts must exist: 1) a public announcement by the promisor of the payment of the reward; 2) the commission by another person of the action that determines the payment of the reward. Of these actions, only the first should be aimed at the onset of legal consequences inherent in the promise of a reward, namely, the emergence of an obligation to pay the reward. The actual direction of the will of the person who committed the corresponding action is legally indifferent for the emergence of this obligation, since according to paragraph 4 of Art. 1055 of the Civil Code of the Russian Federation, the obligation to pay a reward arises regardless of whether the corresponding action was taken in connection with the announcement made or independently of it.

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Erdelevsky A.M. Public promise of reward // Legality. 2000. N 8. P. 11.

The direction of the will of the person performing the required action to receive a reward has legal significance only as the basis for the emergence of his right to reimbursement of expenses incurred in connection with the commission of this action, in the event of the lawful cancellation of the public promise of a reward, since such a right may arise for the person who “responded” to announcement (clause 2 of article 1056 of the Civil Code).

The one-sided nature of such a transaction as a public competition is not so obvious. For the obligation of the organizer of a public competition to pay an award, four legal facts must exist: 1) the organizer’s announcement of a public competition; 2) performance of certain work by competition participants or achievement of other results; 3) presentation of the results of the competition task for participation in the competition; 4) recognition of the competition participant as the winner.

It is easy to see that completing the competition task and presenting the results for participation in the competition together form the action the fulfillment of which determines the promise of a reward in a public competition. Completing the first part of this action - completing the competition task - may well not be related to the announcement of the competition and may not be aimed at taking part in it. However, the second part of the competition participant’s action - submitting the results of the completed work to the competition - is always aimed at entering into an obligatory legal relationship with the organizer of a public competition and achieving the legal consequences inherent in such a competition.

The foregoing gives grounds for some Russian civil law scholars (including V.P. Mozolin, S.A. Chernysheva, A.M. Erdelevsky and some others) to consider a public competition not as a one-sided transaction, but as a kind of agreement, where the announcement of the competition turns out to be a type of public offer, which becomes irrevocable after the first half of the period established for the submission of works, and the submission of the results of the work to the competition becomes an acceptance of the offer in accordance with clause 3 of Art. 438 of the Civil Code of the Russian Federation, which states that the performance by the person who received the offer, within the period established for its acceptance, of actions to fulfill the terms of the contract specified in it (shipment of goods, provision of services, performance of work, payment of the appropriate amount, etc.) is considered acceptance, unless otherwise provided by law, other legal acts or not specified in the offer.

3. The organizers of a public competition can be: legal entities, and citizens, and the public competition itself can be open or closed. The legal capacity of citizens participating in the competition is determined general standards civil law. There are no age restrictions. This means that not only adult citizens, but also minors aged 14 to 18 years can participate in the competition, because they have the right to independently, without the consent of parents, adoptive parents and trustees, exercise the rights of the author of a work of science, literature or art, invention or other protected the law of the result of one’s intellectual activity (). For minors under 14 years of age according to Art. 28 of the Civil Code of the Russian Federation, transactions can be made on their behalf by legal representatives (parents, adoptive parents, guardians).

The range of participants in the competition depends on the type of competition. If the public competition is open, then the organizer’s offer to take part in it is addressed to everyone through an announcement in the media.

An open competition may also be conditioned by the preliminary qualification of its participants, when the organizer of the competition carries out a preliminary selection of persons who wish to take part in it.

So, before the XIV International Competition named after P.I. Tchaikovsky, held from June 14 to July 2, 2011 in Moscow, all applicants for participation in this competition were asked to undergo a preliminary selection, which formed the final composition of competitors in four categories (piano, violin, cello, solo singing) . It should be noted that a certain age limit was established for this competition: instrumentalists - 16 - 30 years old, singers - 19 - 32 years old.

In a closed competition, participants make up a certain circle of people chosen by the competition organizer.

The possibility of holding a closed competition in relation to, for example, placing orders for the supply of goods, performance of work, provision of services for state and municipal needs is regulated by special Federal law dated 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” (as amended and additionally entered into force on January 1, 2011).

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Collection of legislation of the Russian Federation. 2005. N 30 (part 1). Art. 3105.

The Ministry of Economic Development and Trade of the Russian Federation, by its Order dated May 3, 2006 N 124, approved the Procedure that regulates the issues of holding a closed competition, a closed auction, the possibility of concluding a state or municipal contract with sole supplier(performer, contractor).

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Bulletin of normative acts. 2006. N 30.

Nevertheless, the announcement of a closed competition itself must be made publicly, although in this case not necessarily through the media, but in any way, for example, through a wall newspaper, posting advertisements, distributing information leaflets. This conclusion follows from paragraph 1 of the commented article, where the publicity of the announcement of the payment of the award is indicated as a mandatory feature of any public competition, both open and closed.

4. The content of a unilateral transaction (public announcement by the organizer of a competition) or an agreement on a public competition constitutes essential and other conditions. Clause 4 of the commented article establishes fairly stringent requirements for the content of the announcement of a public competition. It should include conditions defining the essence of the task (i.e., what kind of work must be performed or what results must be achieved), criteria and procedure for evaluating the results of work or other achievements (by the organizer of the competition itself, a specially formed jury, etc. .), place, timing and procedure for submitting results to the competition, size and form of the award, as well as the procedure and timing for announcing the results of the competition. Establishing criteria for evaluating results is necessary, in particular, in order to exclude the possibility of arbitrarily determining the winner of the competition. The absence of any of the necessary conditions in the competition announcement entails its invalidity.

Thus, the essential conditions of a public competition include the following: subject of the transaction; place, date and procedure for providing work or other achievements; criterion and procedure for evaluating work results; size and shape of the award; procedure and timing for announcing the results of the competition.

Other conditions may include the procedure and timing of payment of remuneration, as well as the fate of works submitted to the competition that were not awarded.

The subject of the transaction is the implementation of lawful actions aimed at achieving a socially useful goal and constituting the essence of the task.

The presence of a socially useful purpose means that the competition itself and its results serve society as a whole, since it is interested in identifying and supporting talented performers, developing projects for the protection of monuments, protecting environment and so on.

The essence of the task is described as the requirements for the work and its result. Detailed requirements for the result of work are also practiced. Thus, the program of the XIII International Competition named after P.I. Tchaikovsky regulated in detail the content of each round, as well as mandatory requirements to the performance of certain types of musical works by the contestants in each round.

The place where the work is presented is usually the address of the organizer or his authorized representative. The terms of the competition may stipulate that the work is presented in a public place, i.e. Along with the jury, access to spectators and listeners is also provided.

Setting a deadline for submitting work is necessary to ensure that all participants are in the same time conditions for the successful completion of the task specified in the advertisement. The deadline must be realistic. Final and intermediate deadlines may be set for the submission of work. For a performing competition, the organizer usually approves calendar plan competition indicating the dates of registration, draw, each round (listening, viewing), awards ceremony and closing.

The terms of the competition may provide for the provision of work under a motto in order to maintain the secret of the participant’s name in order to objectively determine the winner.

The essential conditions include the criteria and procedure for assessing the results of work. The organizer has the right to independently evaluate the achievements submitted to the competition or to involve third parties. Sometimes, as noted above, a jury, competition commission or committee is created specifically for these purposes. The results of the work can be assessed by any permanent body of the competition organizer.

For each competition, taking into account its specifics, criteria for assessing the results of work are established. The score can be derived based on the sum of points scored for each criterion.

A prerequisite is to determine the procedure and deadline for announcing the results of the competition. The exact date for announcing the results of the competition or the period during which the result is announced after the decision to select the winner is made.

The result is communicated either orally to all participants, or through the media simultaneously with the notification of each winner, or in writing. Sometimes it is specifically stated that the result will be announced in a solemn atmosphere.

5. A separate group is represented by the rules governing the conclusion of contracts at auctions, one of the forms of which is competitions (Article 447 of the Civil Code). The purpose of these competitions is the alienation of certain property to the one who offered for it best conditions. As a result of such competitions, the organizers are obliged to enter into an agreement with the winner, which defines their obligations. The object of the competition in the sense of Ch. 57 of the Civil Code of the Russian Federation are pre-announced obligations of the organizer. Therefore, the norms of the commented chapter can be applied to relations arising during bidding only in cases where these relations are not regulated by these norms and do not contradict them.

Public competition is a type of public promise of reward. The person who publicly announced the payment of a monetary reward or the issuance of another award (payment of an award) for the best performance of work or achievement of other results (the organizer) must pay (give out) the stipulated award to the one who, in accordance with the terms of the competition, is recognized as its winner. A public competition must be aimed at achieving some socially useful goals.

Organizers of the competition there may be any legal entities and (or) individuals, as well as state bodies and local governments. Circle of participants public competition is also unlimited.

Types of public competition: open - when the offer of the competition organizer to take part in it is addressed to everyone by means of an announcement in the press or other media; closed – when an offer to take part in a competition is sent to a certain circle of people chosen by the competition organizer.

Form announcement of a public competition can be of any kind.

Conditions that must be contained competition announcement, are divided into mandatory and optional.

Mandatory conditions include: information about the essence of the task (the subject of the competition); deadline for completing the task; the procedure for presenting works or other achievements; place of presentation of the work; criterion, procedure and deadline comparative assessment works; amount of remuneration (bonus); procedure and deadline for announcing the results of the competition.

Optional conditions are specified at the free discretion of the competition organizer, and their number and nature depend on the characteristics of the competition.

Changing the conditions and canceling the public competition: the person who announced a public competition has the right to change its conditions or cancel the competition only during the first half of the deadline established for the submission of works; notification of changes in conditions or cancellation of the competition must be made in the same way as the competition was announced; the person who announced the competition must reimburse the expenses incurred by any person, cat. completed the work specified in the advertisement before he became or should have become aware of the change in the conditions of the competition and its cancellation; the person who announced the competition is released from the obligation to reimburse expenses if he proves that the specified work was not performed in connection with the competition, in particular before the announcement of the competition, or knowingly did not comply with the conditions of the competition.

The competition organizer is obliged to return competition works that are not awarded an award to the participants immediately after the announcement of the results. Failure to fulfill this obligation gives the competition participants the right to demand the return of their works, and in case of their loss or damage, compensation for losses.

Civil Code, N 14-FZ | Art. 1057 Civil Code of the Russian Federation

Article 1057 of the Civil Code of the Russian Federation. Organization of a public competition (current edition)

2. A public competition must be aimed at achieving some socially useful goals.

3. A public competition can be open, when the offer of the organizer of the competition to take part in it is addressed to everyone by means of an announcement in the press or other media, or closed, when the offer to take part in the competition is sent to a certain circle of people at the choice of the organizer of the competition.

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Commentary to Art. 1057 Civil Code of the Russian Federation

1. The article under comment is devoted to the organization of a public competition. A public competition is a type of public promise of a reward. When announcing it, the person who publicly announced the payment of a monetary reward or the issuance of another award (payment of an award) for the best performance of work or achievement of other results must pay (give out) the stipulated award to the one who, in accordance with the competition, is recognized as the best performer of the work or has achieved best results.

2. In contrast to the public promise of a reward, a public competition is aimed at achieving some socially useful goals and can be addressed to everyone (open competition) and to a certain circle of people chosen by the competition organizer (closed competition).

For example, the purpose of holding an open public competition for the best history lesson on the topic: “The first World War on the map of the Union State" there was a need to find new formats for conducting history lessons in order to form and educate military-patriotic feelings among the younger generation, to identify the common historical roots of the Russian and Belarusian peoples.

The purpose of the public competition “BAM in the history of my family” is to popularize the history of Russia, promote patriotism and the achievements of domestic railway construction.

Purpose of the All-Russian competition for the best scientific work among undergraduates, graduate students and young scientists of higher education educational institutions Ministry of Agriculture of Russia - support for talented youth, promotion of scientific knowledge and creative achievements, identification and development of creative abilities and interest in Russian youth scientific activity(see Order of the Ministry Agriculture RF dated July 17, 2014 N 283).

3. The announcement of the competition may take place in the press or other media. This announcement, like the promise of a reward, is a unilateral transaction or public offer. Clause 4 of Art. speaks in favor of the latter. 1057 of the Civil Code of the Russian Federation, namely the fact that the announcement of a public competition must contain conditions stipulating the essence of the task, the criteria and procedure for assessing the results of work and other achievements, the place, deadline and procedure for their presentation, the size and form of the award, the procedure and timing for the implementation of the results competition.

For example, an announcement about an open public competition of works for the Russian Government awards in the field of education in 2014 was published on January 15, 2014 in " Rossiyskaya newspaper"(federal issue N 6278), as well as on the website of the Russian Ministry of Education and Science.

Announcements about the competition “BAM in the history of my family” and for the best history lesson on the topic: “The First World War on the map of the Union State”, as well as the corresponding regulations on the conduct of these competitions, were published on the website of CJSC “Publishing House “Komsomolskaya Pravda” on the Internet at: www.kp.ru.

4. Since the competition is a competition that determines the best among its participants, it assumes the presence of several participants who take into account the announced conditions and submit works to the competition - the results of authorship, performing skills, sports achievements, scientific works, etc.

Submission of works and achievements to the competition is acceptance and the moment of concluding the contract (Article 433 of the Civil Code of the Russian Federation). This is a conditional transaction with a suspensive condition, since the obligation to pay the reward arises only for the winner. The form of the agreement can be any. Most often, evidence of its conclusion is a written presentation of work results or other achievements. An essential condition of such an agreement is its subject: the above-mentioned works or achievements, the criteria and procedure for their evaluation, the size and form of the award, the procedure and timing for announcing the results of the competition.

The reward can be paid not only in cash. Memorial signs are awarded as a reward. The issuance of an award may be accompanied by the awarding of various types of certificates, the awarding of honorary titles of laureate or diploma winner of the competition. However, these are only measures of moral encouragement, which in themselves are not a competitive award.

The subjects of the agreement can be any individuals and legal entities. The competition organizer can be: government bodies and organs local government.

5. For a public competition that contains an obligation to conclude an agreement with the winner of the competition, the provisions on the public competition and, accordingly, the articles on concluding an agreement at auction (Articles 447 - 449 of the Civil Code of the Russian Federation) apply.

6. Applicable law:

Decree of the Government of the Russian Federation of August 28, 2013 N 744;

Order of the Ministry of Transport of the Russian Federation dated 09/08/2014 N MS-127-r;

Order of the Ministry of Transport of the Russian Federation dated 09/08/2014 N MS-126-r;

Order of the Ministry of Labor and social protection RF dated 04.08.2014 N 516;

Order of the Ministry of Agriculture of the Russian Federation dated July 17, 2014 N 283;

Order Federal service execution of punishments dated May 13, 2014 N 224;

Order Federal agency for youth affairs dated March 17, 2014 N 60;

Order of the Federal Agency for Youth Affairs dated March 12, 2014 N 56;

Order of the Federal Agency for Youth Affairs dated March 12, 2014 N 50;

Order of the Federal Forestry Agency dated 03/07/2014 N 61;

Order of the Federal Bailiff Service dated January 15, 2014 N 3;

Order of the Federal Agency for Youth Affairs dated January 13, 2014 N 6;

Order of the Ministry of Internal Affairs of Russia dated August 10, 2013 N 612;

Regulations on the competition "For the production of high-quality food products"(approved by the Ministry of Agriculture of the Russian Federation on August 20, 2014);

Regulations on All-Russian competition"For service to sport" (for contribution to the development physical culture and sports) (approved by the Ministry of Sports of the Russian Federation on July 21, 2014);

Regulations on the All-Russian competition "Sports Solidarity" (for strengthening international sports relations) (approved by the Ministry of Sports of the Russian Federation on July 1, 2014);

Judicial practice under Article 1057 of the Civil Code of the Russian Federation:

Decision of the Supreme Court: Determination N 74-APG17-2, Judicial Collegium for Civil Cases, appeal
At the same time, the Judicial Collegium considers the position of the trial court about the contradiction of the Regulations in Article 1057 of the Civil Code of the Russian Federation and the uncertainty contained therein to be erroneous legal regulation, entailing the breadth of discriminatory powers and indicating the presence of corruption factors in the regional regulatory legal act...
Decision of the Supreme Court: Determination N 74-G09-17, Judicial Collegium for Civil Cases, cassation
In this case, a mandatory condition of the competition is also the form and size of the award to be paid to the winner. However, in violation of Part 4 of Art. 1057 of the Civil Code of the Russian Federation, the Regulations do not contain criteria and a procedure for assessing work results or other achievements, or a procedure for announcing the results of a competition, which are essential conditions...
Decision of the Supreme Court: Determination N 305-ES17-3374, Judicial Collegium for Economic Disputes, cassation
The courts, having examined the circumstances of the dispute and the evidence presented, came to the conclusion that the disputed collection by the defendant of proposals for the formation of a list of national projects was not a public competition in the sense of Article 1057 of the Civil Code of the Russian Federation. The selection of applications was carried out by the defendant in pursuance of the instructions of the Government of the Russian Federation, the responsibility for the implementation of which is special public entity - the Ministry of Economic Development...

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There are two parties involved in the obligations of a public competition:

The person who organized the competition (announced the competition);

Persons participating in the competition, including those who won this competition (fulfilled the conditions presented).

Public competition with an obligation to pay a reward

Article 1057 of the Civil Code of the Russian Federation establishes that a person who publicly announced the payment of a monetary reward or the issuance of another reward (payment of an award) for the best performance of work or achievement of other results (public competition) must pay (give out) the stipulated reward to the one who, in accordance with the conditions of the competition are recognized as its winner.

A public competition must be aimed at achieving some socially useful goals.

A public competition can be open or closed.

A public competition is open when the offer of the competition organizer to take part in it is addressed to everyone by means of an announcement in the press or other media. In this case, an open competition may be conditioned by the preliminary qualification of its participants, when the organizer of the competition carries out a preliminary selection of persons who wish to take part in it.

A public competition is closed when an offer to take part in the competition is sent to a certain circle of people chosen by the competition organizer.

The announcement of a public competition must contain conditions stipulating the essence of the task, the criteria and procedure for assessing the results of work or other achievements, the place, deadline and procedure for their presentation, the size and form of the award, as well as the procedure and timing for announcing the results of the competition.

Public competition with an obligation to conclude an agreement

Paragraph 5 of Article 1057 of the Civil Code of the Russian Federation establishes that for a public competition containing an obligation to conclude an agreement with the winner of the competition, the rules of Article 447449 of the Civil Code of the Russian Federation on concluding an agreement at auction and on the organization and procedure for conducting auctions are applied.

Article 447 of the Civil Code of the Russian Federation provides that an agreement can be concluded through bidding, and the contract is concluded with the person who wins the bidding.

The organizer of the auction can be the owner of the thing or the holder property law or a specialized organization acting on the basis of an agreement with the owner of the thing or the holder of the property right.

Bidding may be conducted in the form of an auction or competition, in which more than one participant must participate.

The winner of the auction is the person who offers the highest price.

The winner of the auction is the person who, based on the conclusion of the competition commission, pre-appointed by the auction organizer, offered the best conditions.

Auctions and competitions can be open or closed.

Any person can participate in an open auction and open competition.

Only persons specifically invited for this purpose participate in a closed auction and closed competition.

Notification of the auction must be made by the organizer at least 30 days before the auction and must contain information about the time, place and form of the auction, its subject and procedure, including registration of participation in the auction, determination of the person who won the auction, as well as information about the starting price. If the subject of the auction is only the right to conclude a contract, the notice of the upcoming auction must indicate the period provided for this.

Bidders make a deposit in the amount, terms and manner specified in the notice of bidding. If the auction does not take place, the deposit will be returned. The deposit is also returned to persons who participated in the auction but did not win it. When concluding an agreement with the person who has won the auction, the amount of the deposit paid by him is counted towards the fulfillment of obligations under the concluded agreement.

The person who wins the auction and the auction organizer sign on the day of the auction or competition a protocol on the results of the auction, which has the force of a contract. The person who wins the auction, if he evades signing the protocol, loses the deposit he made.

The organizer of the auction, who evaded signing the protocol, is obliged to return the deposit in double amount, as well as to compensate the person who won the auction for losses caused by participation in the auction, in a part exceeding the amount of the deposit. If the subject of the auction was only the right to conclude an agreement, such an agreement must be signed by the parties no later than 20 days or another period specified in the notice after the completion of the auction and the execution of the protocol.

Reward

The decision to pay the award must be made and communicated to the participants of the public competition in the manner and within the time limits established in the competition announcement.

If the results specified in the advertisement are achieved in work performed jointly by two or more persons, the reward is distributed in accordance with the agreement reached between them. If such an agreement is not reached, the order of distribution of the award is determined by the court.

Reimbursement of expenses of competition participants

In the event of a change in the terms of the competition or its cancellation, the person who announced the competition must reimburse the costs incurred by any person who performed the work specified in the announcement before he became or should have become aware of the change in the terms of the competition and its cancellation.

However, the person who announced the competition is released from the obligation to reimburse expenses if he proves that the specified work was not performed in connection with the competition, in particular before the announcement of the competition, or knowingly did not comply with the conditions of the competition.

Accounting

Accounting with the person who organized the competition

Accounting depends on the goals pursued by the organizer of the competition when it was announced:

If the purpose of the competition was to choose the best architectural project for the construction of a building or structure, the costs incurred are subject to reflection in the debit of account 08 “Capital investments”; Moreover, in cases where these costs are not provided for in the consolidated estimates of the cost of construction, they are subsequently not included in the initial cost of completed construction of fixed assets, but are attributed to the developer’s own funds: Dt 88 “Retained earnings (uncovered loss)” Kt 08 "Capital investments";

If the purpose of the competition was to choose best option manuscript or other work of literature, art, science for subsequent commercial publication or distribution in another paid manner, then the costs incurred are subject to reflection in the debit of account 08 “Capital investments” with subsequent inclusion in the inventory value of an intangible asset (rights to use the corresponding works of literature, art, science ) with the mandatory execution of the corresponding copyright or license agreement: Dt 04 “Intangible assets” Kt 08 “Capital investments”.

However, if the corresponding agreement was not concluded and the right to commercial use of the work was not transferred to the organizer of the competition, there is no need to talk about the acquisition of an intangible asset, so the only way out would be to attribute all costs incurred to own sources: Dt 88 “Retained earnings (uncovered loss)” Kt 08 “Capital investments”;

If the purpose of the competition was to identify (or achieve) any results not related to production activities of the person who announced the competition, the costs incurred are subject to reflection in the debit of account 88 “Retained earnings (uncovered loss)”.

Based on the above accounting records, the transfer of award money and reimbursement of expenses to the winners (participants) of the competition are reflected as follows:

calculation of the amount to be paid (depending on the purpose and results of the competition):

Dt 08 “Capital investments” (88 “Retained earnings (uncovered loss)” Kt 76 “Settlements with various debtors and creditors”;

transfer of the reward amount (payment in cash from the cash register):

Dt 76 “Settlements with various debtors and creditors” - Kt 51 “Cash account” (50 “Cash”). When making payments to individuals, it should be borne in mind that subparagraph “h” of paragraph 1 of Article 3 of the Law “On Income Tax” provides tax benefit for complete exemption from taxation of the value of “prizes in cash and in kind received at competitions and competitions during the year, not exceeding the amount of twelve times the monthly salary established by law.” When an award is paid in an amount exceeding the established amount, income tax is withheld from the excess amount according to the established scale of rates. For example, in letter No. 040406 of the Ministry of Finance of Russia it is explained that “if the winners of International competitions receive prizes in cash and in kind, then the cost of these prizes in part exceeds twelve times statutory the amount of the minimum monthly wage is subject to inclusion in taxable income.”

With regard to the calculation of mandatory insurance contributions to the Pension Fund, the same points should be noted that we focused on when considering the obligations arising from the public promise of a reward.

On the one hand, paragraph 14.9 of the resolution of the Pension Fund Board No. 22 explains that mandatory insurance premiums in the Pension Fund of Russia should be accrued, among other things, for the cost of “awards awarded in cash or in kind for prizes in competitions, shows, competitions (sports, professional, artistic, in-plant, republican) and other similar events” in cases where such payments are accrued to the employee from the employer’s funds. A similar explanation is contained in paragraph 10 of the resolution of the Board of the Pension Fund of the Russian Federation No. 73.

On the other hand, paragraph 21 of the “List of payments for which insurance premiums are not charged in Pension Fund Russian Federation" established that mandatory insurance contributions to the Pension Fund are not charged on "remunerations paid to citizens under civil law contracts, excluding remuneration paid under contracts the subject of which is the performance of work or provision of services, as well as excluding remuneration under copyright contracts" . At the same time, in the letter of the Board of the Pension Fund No. EB09 11/2147IN it is explained that insurance contributions to the Pension Fund should be calculated on remunerations paid to individuals under contracts the subject of which is the performance of work or the provision of services; at the same time, “agreements... of a public competition cannot fall into this category.” A similar explanation is contained in the letter of the Pension Fund Board No. EB1628/8929.

Thus, if the reward is paid to an individual without proper documentation transactions, inspectors from the Pension Fund will inevitably raise the question of charging insurance contributions to the Pension Fund for these payments and subject the organization to a corresponding fine.

However, even proper written documentation of the transaction for the payment of an award based on the results of a public competition does not guarantee against a conflict with inspectors from the Pension Fund of the Russian Federation. Therefore, when paying an award, it is necessary to formalize all documents in writing in strict accordance with the norms of civil law.

Accounting for competition participants

In a competition with an obligation to pay a reward

If the costs did not lead to victory in the competition, then all costs incurred must be reflected in the debit of account 88 “Retained earnings (uncovered loss)” as an unproductive diversion own funds.

If all expenses incurred by the competition participant are reimbursed by the competition organizer, in the prescribed manner they must form the competition participant’s revenue:

Accounting for all costs incurred Dt 20 “Main production” Kt 10 “Materials” (70 “Settlements with personnel for wages”, 69 “Settlements for social insurance and security”, 60 “Settlements with suppliers and contractors”, etc.) ;

Accrual of the amount of cost reimbursement receivable under the contract Dt 62 “Settlements with buyers and customers” - Kt 46 “Sales of products (works, services)”;

Allocation of VAT as part of revenue Dt 46 “Sales of products (works, services)” Kt 68 “Calculations with the budget” / subaccount “Calculations for VAT”;

User tax calculation highways— Dt 26 “General business expenses” Kt 67 “Calculations for off-budget payments”;

Write-off of all costs of the competition participant Dt 46 “Sales of products (works, services)” Kt 20 “Main production” (26 “General expenses”, etc.); definition financial result(profit) Dt 46 “Sales of products (works, services)” Kt 80 “Profits and losses”;

Dt 80 “Profits and losses” Kt 68 “Settlements with the budget” accrual of tax on the maintenance of housing stock and social and cultural facilities;

Repayment of debt by the organizer of the competition Dt 51 “Current account” - Kt 62 “Settlements with buyers and customers”.

In a competition with an obligation to conclude an agreement

If the costs did not lead to the conclusion of the corresponding agreement, all costs are subject to reflection in the debit of account 88 “Retained earnings (uncovered loss)” as an unproductive diversion of own funds.

If, as a result of the competition, a result is achieved - a corresponding agreement is concluded - then the amounts transferred to the organizer of the competition must be counted towards the deposit under this agreement.

At the same time, a special category consists of such costs of the competition participant as payments “for the right to conclude” the relevant contracts, which were the subject of the competition (for example, real estate lease agreements).

When analyzing this type of expense, the following should be noted. Firstly, by letters of the Ministry of Finance of Russia No. 040311 and No. 040311, the right to conclude a land lease agreement is not subject to VAT. However, when selling (reselling) this right, VAT is applied to the full sale price.

Secondly, letter No. 1113/9767 of the State Tax Inspectorate for Moscow clarified that the “Regulation on the Composition of Costs” does not provide for the attribution of fees for the right to conclude land lease agreements to the cost price. Therefore, “the transfer of funds to the settlement accounts of Moskomzem in the form of a fee for the right to conclude lease agreements is carried out at the expense of the profits remaining at the disposal of enterprises after paying taxes.”

Thus, such payments “for the right to conclude an agreement”, which are subsequently not counted towards the deposit under the concluded agreement, are subject to reflection in accounting as follows: actual transfer of payments - Dt 76 “Settlements with various debtors and creditors” Kt 51 “Current account "; attribution of expenses incurred at the expense of own funds - Dt 88 “Retained earnings (uncovered loss)” - Kt 76 “Settlements with various debtors and creditors.”

The person who announced the competition sets the terms for holding this competition: the start date and the end date.

At the same time, Article 1058 of the Civil Code of the Russian Federation establishes that the person who announced a public competition has the right to change its conditions or cancel the competition only during the first half of the period established for the submission of works. In this case, notification of changes in conditions or cancellation of the competition must be made in the same way as the competition was announced.

The person who announced a public competition must clearly determine the place where the competition will be held (or the place where the results of the competition will be summed up). Moreover, in the case of payment of an award (both to an individual and a foreign legal entity), the source of such income must make appropriate tax withholdings.

Use of competition results

If the subject of a public competition is the creation of a work of science, literature or art and the terms of the competition do not provide otherwise, the person who announced the public competition acquires the preemptive right to conclude an agreement with the author of the work that has been awarded a specified award on the use of the work with the payment of an appropriate remuneration for this.

Return of submitted works to competition participants

The person who announced a public competition is obliged to return works not awarded to the participants of the competition, unless otherwise provided by the announcement of the competition and does not follow from the nature of the work performed (which, in principle, cannot be returned to the participant, for example, when holding a competition for the best sand sculpture on seaside beach).

Commentary on Article 1057 of the Civil Code of the Russian Federation - the Civil Code of the Russian Federation in the current edition with the latest amendments

The Constitution of the Russian Federation (Article 43) introduces the concept of “on a competitive basis” in relation to obtaining higher education in state or municipal educational institutions. However, the practical application of this concept is much broader. It is found in many laws adopted recently and affects various aspects of the life of the state and society. Thus, in pursuance of Decree of the President of the Russian Federation of April 12, 1993 N 443 “On urgent measures of state support for students and graduate students of educational institutions of higher professional education”<1>and the Regulations on scholarships of the President of the Russian Federation, approved by order of the President of the Russian Federation of September 6, 1993 N 613-rp<2>(as amended by Decrees of the President of the Russian Federation dated February 14, 2010 N 182<3>, dated June 22, 2010 N 773<4>, dated March 8, 2011 N 285<5>), an open public competition has been announced for scholarships from the President of the Russian Federation to study abroad for students and graduate students of Russian universities in the 2011/2012 academic year.

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<1>Collection of acts of the President and Government of the Russian Federation. 1993. N 16. Art. 1341.

<2>Collection of acts of the President and Government of the Russian Federation. 1993. N 37. Art. 3451.

<3>Collection of legislation of the Russian Federation. 2010. N 8. Art. 837.

<4>Collection of legislation of the Russian Federation. 2010. N 26. Art. 3331.

<5>Collection of legislation of the Russian Federation. 2011. N 11. Art. 1514.

Typically, a public competition is announced by organizations interested in achieving the best results in a certain field of activity. However, as practice shows, the organizers and participants of a public competition do not always clearly understand the legal side of the relationship they enter into in connection with its announcement.

A public competition and a public announcement of a reward are united by a public promise of a reward for performing a lawful action.

According to Professor A.M. Erdelevsky<1>, the qualification of a public promise of a reward as a unilateral transaction is beyond doubt. For an obligation to pay a reward to arise, two legal facts must exist: 1) a public announcement by the promisor of the payment of the reward; 2) the commission by another person of the action that determines the payment of the reward. Of these actions, only the first should be aimed at the onset of legal consequences inherent in the promise of a reward, namely, the emergence of an obligation to pay the reward. The actual direction of the will of the person who committed the corresponding action is legally indifferent for the emergence of this obligation, since according to paragraph 4 of Art. 1055 of the Civil Code of the Russian Federation, the obligation to pay a reward arises regardless of whether the corresponding action was taken in connection with the announcement made or independently of it.

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<1>Erdelevsky A.M. Public promise of reward // Legality. 2000. N 8. P. 11.

The direction of the will of the person performing the required action to receive a reward has legal significance only as the basis for the emergence of his right to reimbursement of expenses incurred in connection with the commission of this action, in the event of the lawful cancellation of the public promise of a reward, since such a right may arise in the person who “responded” to announcement (clause 2 of article 1056 of the Civil Code).

3. The organizers of a public competition can be both legal entities and citizens, and the public competition itself can be open or closed. The legal capacity of citizens participating in the competition is determined by the general rules of civil law. There are no age restrictions. This means that not only adult citizens, but also minors aged 14 to 18 years can participate in the competition, because they have the right to independently, without the consent of parents, adoptive parents and trustees, exercise the rights of the author of a work of science, literature or art, invention or other protected the law of the result of his intellectual activity (Article 26 of the Civil Code). For minors under 14 years of age according to Art. 28 of the Civil Code of the Russian Federation, transactions can be made on their behalf by legal representatives (parents, adoptive parents, guardians).

In a closed competition, participants make up a certain circle of people chosen by the competition organizer.

The possibility of holding a closed competition in relation to, for example, placing orders for the supply of goods, performance of work, provision of services for state and municipal needs is regulated by a special 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”<1>(with amendments and additions that entered into force on January 1, 2011).

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<1>Collection of legislation of the Russian Federation. 2005. N 30 (part 1). Art. 3105.

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<1>Bulletin of normative acts. 2006. N 30.

Other conditions may include the procedure and timing of payment of remuneration, as well as the fate of works submitted to the competition that were not awarded.

The subject of the transaction is the implementation of lawful actions aimed at achieving a socially useful goal and constituting the essence of the task.

The essence of the task is described as the requirements for the work and its result. Detailed requirements for the result of work are also practiced. Thus, the program of the XIII International Competition named after P.I. Tchaikovsky regulated in detail the content of each round, as well as the mandatory requirements for the performance of certain types of musical works by contestants in each round.

The place of presentation of the work is usually the address of the organizer or his authorized representative. The terms of the competition may stipulate that the work is presented in a public place, i.e. Along with the jury, access to spectators and listeners is also provided.

Setting a deadline for submitting work is necessary to ensure that all participants are in the same time conditions for the successful completion of the task specified in the advertisement. The deadline must be realistic. Final and intermediate deadlines may be set for the submission of work. For a performing competition, the organizer usually approves the competition calendar, indicating the dates of registration, drawing, each round (audition, viewing), awards ceremony and closing.

The terms of the competition may provide for the provision of work under a motto in order to maintain the secret of the participant’s name in order to objectively determine the winner.

For each competition, taking into account its specifics, criteria for assessing the results of work are established. The score can be derived based on the sum of points scored for each criterion.

5. A separate group is represented by the rules governing the conclusion of contracts at auctions, one of the forms of which is competitions (Article 447 of the Civil Code). The purpose of these competitions is the alienation of certain property to the one who offered the best conditions for it. As a result of such competitions, the organizers are obliged to enter into an agreement with the winner, which defines their obligations. The object of the competition in the sense of Ch. 57 of the Civil Code of the Russian Federation are pre-announced obligations of the organizer. Therefore, the norms of the commented chapter can be applied to relations arising during bidding only in cases where these relations are not regulated by these norms and do not contradict them.

Article 1058. Change of conditions and cancellation of a public competition

Commentary on Article 1058 of the Civil Code of the Russian Federation - the Civil Code of the Russian Federation in the current edition with the latest amendments

1. The commented article changes the rules previously contained in Art. 440 of the Civil Code of the RSFSR, establishing the possibility of not only changing the conditions of the competition, but also its cancellation. In this case, the competition organizers must comply with the following conditions:

a) announcements about changes in conditions or cancellation of the competition can only be made during the first half of the period specified for the submission of works. This provision is established in order to protect the interests of participants, therefore changes in the conditions of the competition that improve their position can be made at any time;

b) notification of the change must be made by the organizers in the same way as the announcement of the competition. If, for example, a competition advertisement was given in a newspaper, then a notice of cancellation or change in the conditions of the competition should be published in the same newspaper.

It is important to emphasize that if the organizers violate one of these conditions, they must pay the announced remuneration to everyone who submits a work to the competition that meets the requirements contained in the announcement of the competition.

In practice, difficulties may arise in determining the moment from which a tender participant should become aware of changes in conditions or cancellation of the competition. Obviously, this should be considered the moment of publication of the relevant notice. Clause 3 of Art. 10 of the Civil Code of the Russian Federation establishes the principle of the presumption of reasonableness of actions of participants in civil legal relations. The actions of a participant in the competition will be reasonable if he, having learned about the announcement of the competition, for example, from a newspaper, and based on the fact that changing the conditions or canceling the competition is possible during the first half of the term with mandatory notification of this in the same newspaper, will During this period of time, closely monitor all issues in order to acquire the right to reimbursement of all expenses that he incurs in connection with participation in the competition.

2. The commented article establishes the obligation of the organizers to reimburse expenses incurred by persons who have completed work that meets the conditions of the competition by the time of the announcement of changes in conditions or cancellation of the competition. Reimbursement of expenses should be distinguished from compensation for losses; the latter is a broader concept (see Article 15 of the Civil Code).

3. The organizers of the competition are exempt from reimbursement of expenses only in two cases: firstly, when the work was performed by the participant not in connection with the competition; secondly, when the work performed does not meet the requirements established by the terms of the competition. The burden of proving these circumstances rests with the competition organizer. This rule is explained by the absence in these cases of a causal connection between changes in conditions or cancellation of the competition, on the one hand, and losses incurred by the participant in the form of expenses incurred, on the other.

4. Particular difficulties arise in connection with the application of paragraph 4 of the commented article. This provides for the responsibility of the competition organizer for violating the rules for changing the conditions or canceling the competition established in paragraphs 1 and 2 of Art. 1058 of the Civil Code of the Russian Federation. In this case, the competition organizer must “pay a reward to those who completed work that satisfies the conditions specified in the advertisement.” It is easy to see that this phrase can also be interpreted in such a way that the organizer of the competition, who changed the conditions or canceled it in the second half of the competition period, or who did this, although in the first half of the period, but in a different way compared to how the competition was announced, is obliged pay a reward to each participant whose work meets the conditions of the competition.

Without seriously doubting the legality of the wording of paragraph 4 of the article under comment, it is still necessary to note the following. In many authoritative commentaries of the Civil Code of the Russian Federation<1>the authors emphasize the need in such cases to pay a reward to those who completed work that satisfies the conditions specified in the advertisement. At the same time, it should be emphasized that the commented article speaks in the singular about the reward that must be paid to all those participants whose works meet the conditions of the competition: the reward must be paid, but one for all such participants. This is quite fair and complies with the requirements of the law. Firstly, even if we proceed from the principle of full compensation to the participant for losses incurred, what should be understood in this case as the losses of the competitor in the form of lost profits? After all, receiving an award is conditioned by summing up the results of the competition, and if the organizer of the competition or the jury appointed by him have not determined the winner, then no one, including the court, can replace them. Meanwhile, only the winner can have a full right to the award. The conclusion about the legality of distributing one award among all participants in the competition is also based on the fact that, as noted above, the announcement of a public competition is a type of public promise of an award. According to paragraph 5 of Art. 1055 of the Civil Code of the Russian Federation, in cases where an action corresponding to the promise of a reward was performed by several persons, the right to receive the reward is acquired by the one who performed the corresponding action first. But if this action was committed by two or more persons and it is impossible to determine which of them performed the corresponding action first, as well as if it was committed by two or more persons at the same time, the reward between them is divided equally or in another amount provided for by agreement between them. In relation to a competition, if the rules for its cancellation are violated, a similar situation arises. The difference lies, in particular, in the fact that if the competition is canceled, it becomes impossible to determine not the primacy in performing the action, but who performed the required action better. Therefore, in the event of an unlawful cancellation of the competition, it is quite acceptable for the purposes of determining lost profits to apply, by analogy with the law, the principle of distributing the cost of the award equally among those participants whose works meet the conditions specified in the announcement. As for the expenses incurred by the competition participants, they must be reimbursed to each of the participants within the cost of the reward promised in the competition announcement in relation to each participant (clause 2 of Article 1056 of the Civil Code, as well as clause 3 of the commented article).

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<1>See, for example: Commentary on the Civil Code of the Russian Federation / Ed. THOSE. Abova and A.Yu. Kabalkina. 2nd ed. M., 2009. T. 1. Parts I, II; Commentary on the Civil Code of the Russian Federation, part two / Ed. V.P. Mozolin and M.N. Maleina. M., 2006; and so on.

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