20.02.2020
Vladlen Golubyatnikov
Expert
The concept of a contract in a market economy in most cases implies that it is concluded voluntarily. Exceptions are cases when the contract is binding for one of the parties by law - the Civil Code of the Russian Federation, other federal laws, etc. However, there are situations when the contract is not an obligation for one of the parties, and it prevents its conclusion.
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This may occur, for example, if the organization, one of the parties to the contract, has economic power in the relevant market. In this case, it is capable of influencing, including through economic means, other participants, adapting their behavior to its interests, imposing conditions on them and forcing them to accept the order of interaction. Let's consider an administrative method of protecting the counterparty from the imposition of unfavorable contract terms.
Imposing contract terms: what is it?
Clause 3 of Part 1 of Article 10 of Federal Law No. 135-FZ “On the Protection of Competition” (hereinafter referred to as the “Law on the Protection of Competition”) contains a prohibition on the commission by an economic entity occupying a dominant position of actions expressed in the imposition of contract terms that are unfavorable for the counterparty or not related to the subject of the contract.
Within the framework of the Law on the Protection of Competition, imposition is usually understood as active actions (behavior) or passive unlawful inactions of the subject associated with forcing the counterparty to enter into an agreement.
For example, only preparing a draft agreement containing conditions unfavorable for the counterparty, as well as sending a proposal to conclude an agreement cannot be considered an imposition. As well as its implementation, in the manner and form that is directly prescribed by special legislation.
Therefore, to establish the fact of imposition, it is necessary to have additional signs in the actions of the party or circumstances:
- violation by the organization of the procedure of Article 445 of the Civil Code of the Russian Federation (exchange of protocols of disagreements, refusal to accept disagreements, conducting conciliation procedures, etc.);
- the presence of active influence on the will of the counterparty on the part of the organization when concluding an agreement, as a result of which the counterparty is deprived of the right to make a decision independently (for example, when a condition for concluding an agreement is the mandatory conclusion of another agreement);
- the organization taking active actions aimed at forcing the counterparty to sign an agreement on terms not related to the subject of the agreement and under the threat of negative consequences (refusal to enter into an agreement binding on the counterparty, terminate an existing agreement, terminate the fulfillment of obligations under the agreement, apply economic sanctions).
- committing other actions that infringe on the legitimate interests of the counterparty and directly affect his business activity, i.e. have a direct relationship with the production or sale by the counterparty of goods, performance of work, provision of services and not provided for by the provisions of regulatory legal acts. In this case, conditions not related to the subject of the contract must have the following properties:
- economically or technologically unjustified;
- not provided for by the legislation of the Russian Federation;
- do not correspond to the entrepreneurial goals of the counterparty.
Let us note that in cases of proving the imposition of unfavorable conditions, the courts also came to the conclusion that such conditions were obviously illegal, which had no economic or technological justification and were not provided for by the provisions of regulatory legal acts.
Public contract
The law usually speaks of such obligations in relation to public contracts (for example, retail purchase and sale or a compulsory motor liability insurance agreement), that is, contracts that a person is obliged to conclude with anyone who approaches him with such an offer.
However, the obligations to conclude an agreement may arise not only from public agreements, but also from other agreements, for example, from a lease agreement (tenancy of residential premises) when the tenant (tenant) exercises the pre-emptive right to conclude a lease agreement for a new term. As a rule, the law establishes the terms of such an agreement (including essential ones), since they must be agreed upon in any case. Conditions may be specified in law and regulations.
How is the dominant position of a subject established?
The dominant position of an entity is established by the antimonopoly authority based on the results of an analysis of the state of competition in a particular market and on the basis of qualitative and quantitative criteria established in the Law on Protection of Competition.
The dominant position of an organization in itself is not the object of a legal prohibition if its actions do not show signs of an independent violation of antimonopoly legislation.
A qualitative criterion is the ability of an entity to influence the general conditions of circulation of goods in the relevant market. Quantitative criteria reflect a certain share of its participation in this market. As a general rule, the position of an economic entity whose market share of a particular product exceeds 50% is recognized as dominant. But there are also special rules for determining the dominant position of an economic entity, depending on the specifics of the market.
For example, the position of the management organization may be recognized as dominant in relation to the residents (owners) with whom a management agreement for an apartment (non-residential) building has been concluded under the following conditions.
If the management organization is truly the only one on the product market for managing an apartment building (non-residential), i.e. residents (owners) have no one else to turn to for concluding a management agreement and another form of management is not suitable for them, then in an exceptional case the position of the management organization can be recognized as dominant (Review of judicial practice of the Armed Forces of the Russian Federation dated March 16, 2016).
A claim forcing the conclusion of a contract.
In pre-trial procedure, the participant must write a letter to the party evading the execution of the contract. After such an appeal remains unattended and ignored, you can contact the judicial authorities.
Both individuals and legal entities can file a claim. To organize, a letter on company letterhead must contain the following items:
1. Sender details;
2. The subject of the unconcluded transaction;
3. Reasons obliging to conclude an agreement;
4. Links to the regulatory framework and evidence;
5. Specific requirement;
6. Date of signature of the authorized person.
The application must be submitted in person (with a signature confirming delivery), sent by email, registered mail or courier service.
Individuals draw up a letter in any form, but the main content is a description of the reasons for the appeal and the requirement to conclude an agreement. You can send it by mail or visit the organization in person.
Appeal to the territorial antimonopoly authority
If the listed signs of illegal behavior of the party are present, the counterparty has the right to resort to an administrative method of protection by contacting the territorial antimonopoly authority.
When applying, the application should indicate the actions of the party to the contract that involve the imposition of unfavorable conditions or are not related to the subject of the contract, and that lead or may lead to the infringement of the interests of the counterparty in the field of business activity.
In the absence of a dominant position, the method of protection used by the counterparty becomes impossible or economically impractical.
When the antimonopoly authority establishes a dominant position and the offense of Part 1 of Article 10 of the Law on Protection of Competition, the latter:
- will issue an order to stop the party to the contract from abusing its dominant position;
- in which he will oblige to take actions aimed at ensuring competition (forcing him to conclude an agreement if he unreasonably avoids concluding an agreement, accepting a protocol of disagreements of the counterparty, etc.);
- may also establish administrative liability measures against the violator (Article 14.31 of the Code of Administrative Offenses of the Russian Federation).
Pre-trial settlement
In all cases, without exception, the parties should try to reach an agreement without going to court. This requires the person initiating coercion to contact the potential counterparty with a claim, which will set out all the circumstances of the case and express the requirement to conclude an agreement. This requirement must be presented officially, with the receipt of evidence of pre-trial settlement of the dispute. The pre-trial regulation procedure is based on clause 5 of Art. 4 APC, Art. 132 Code of Civil Procedure, Art.
The algorithm for this procedure depends on the status of the person against whom the claim is made. If this is an individual, then it is best to immediately send a registered letter with notification of receipt. To do this you need:
- Draw up a claim notice in two copies.
- Prepare an inventory of the attachment, certify the second copy with a note from the operator about the identity of the text in the attachment.
- Send a registered letter with notification.
5 working days after the sender receives the notification, if the addressee does not respond or gives a negative answer, you can file a claim.
Oral claims, messages sent via cellular or electronic communications have no legal force.
In the case of a legal entity, you can also send a letter by mail. Or use the following algorithm:
- Draw up a claim notice in two copies.
- Personally go to the potential defendant’s office, hand over one copy to the office, and make a note on the second copy that the letter has been accepted.
- Check that the employee has entered information about the received document in the incoming documentation log.
5 working days after this, you should call the office and find out about the availability of an officially prepared response. If it is not there, or it is negative, go to court.
Who is eligible
There are several categories of persons who have the right to insist through the court on the execution of an agreement in relation to social housing. Here is the main list, which is based on an analysis of legislation and judicial precedents.
Who can obtain a court decision:
- Citizens who are close relatives of the employer.
- Persons who lived in service housing, which was then transferred to the balance of the city or other locality.
- Families living in emergency housing subject to demolition.
- Certain categories of people to whom the law grants the right to priority housing. An example is orphans.
There are often cases when individuals file claims both on their own behalf and at the same time in the interests of minor children. Then the courts make a decision regarding all members of one family.
Expert commentary
Roslyakov Oleg Vladimirovich
Lawyer, specialization civil law. More than 19 years of experience.
A valid reason for filing an application with the court is the refusal of the local administration or other authorized body to draw up a social tenancy agreement. In many cases, it is motivated by the lack of suitable apartments in the housing stock. However, this does not relieve one from the obligation to formalize the relationship properly.
When necessary
In many situations, local authorities responsible for resolving the housing issue refuse to conclude a social tenancy agreement. There are a variety of reasons for such a step, sometimes contradicting the Housing Code and the Constitution of the Russian Federation.
We recommend! Claim for moving in as a family member of the tenant
You need to understand that without a formalized agreement, you cannot begin the housing privatization procedure. As a result, citizens are deprived of the opportunity to become full owners of real estate.
Here are the most common grounds used by officials to refuse to issue a contract.
Lost order
They were issued before they were replaced by social rent agreements. Due to various circumstances, most citizens did not have such documents. The solution will be to obtain archival information.
The request must indicate approximately when the residence took place. Then the necessary information will be found much faster.
Proof of the legality of living in an apartment can be an extract from the personal account. Judges pay attention to who made utility payments.
Death of the employer
In fact, it is not a reason for refusing to sign an agreement. The interested party must prove that he is part of the tenant's circle of relatives. In addition, it is necessary to confirm the legality of residence in the disputed area.
Various pieces of evidence can help with this. It happens that medical documents linked to a specific place of residence are also important for the court.
To simplify the solution of the issue will be to establish the fact of registration at a specific address. In a word, the more evidence, the stronger the position.
Recognition of the right to use residential premises
Confirmation of the legality of living in an apartment is required, in particular, when it initially had the status of official housing, and then transferred to the balance of the locality. The above also applies to cases where there are no documents confirming the move-in.
Before filing a claim, you need to collect as much evidence as possible. Witness testimony will also help.
Punishment and liability for coercion to complete a transaction
An alternative sanction is provided for the commission of these illegal acts. The punishment imposed will depend on the specific details of the case. The court may assign to the culprit:
- The minimum punishment is fines or the amount of earnings for 2 years.
- Restriction of freedom up to 2 years.
- Involvement in forced labor for the same period.
- Arrest for up to six months.
- The most severe punishment is imprisonment for up to 2 years, with or without the simultaneous application of fines.
