Представительство без доверенности при осуществлении предпринимательских обязательств

Ivanona Polina Ruslanovna,
Student at the Russian State University of Justice

Scientific consultant Osadchaya Olga Nikolaevna,
Associate Professor at the Foreign Languages Department,
Russian State University of Justice, PhD in Philology
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Representation without a power of attorney in the implementation of entrepreneurial obligations

Abstract. The relevance of the topic under consideration is determined by the fact that in modern society there is an acute issue of regulating representative legal relations as one of the important components of civil law. The civil law community is focused on one of the forms of representation – representation without a power of attorney. The article analyzes the provisions of civil legislation on representation without a power of attorney and judicial practice. Judicial practice in resolving disputes related to representation without a power of attorney is varied. However, in general, the courts adhere to the principle that the subjective rights of a representative to exercise representation without a power of attorney cannot be limited. The author concludes that the institution of representation plays an important role in the life of society, providing more opportunities for the implementation of entrepreneurial obligations.

Keywords: representation, represented, representative, power of attorney, civil legislation.

Representation is a civil organizational legal relationship, by virtue of which the legal actions of one person (the representative) on behalf of another person (the represented) in relation to third parties entail the emergence, modification or termination of rights and obligations for the represented. Representative legal relations are one of the most important aspects of civil rights because they empower individuals to exercise their civil rights, ensure fairness and justice, provide access to legal processes, facilitate collective action and hold violators accountable. This article aims to investigate and discuss representative legal relations without a power of attorney. The analysis of judicial practice in resolving disputes related to presentation facilitates discussions surrounding this distinct area of law and contributes to a better understanding of the mechanism of legal regulation. It is expected that this article will stimulate additional research and knowledge development in this vital area of legal practice.

Representation relations are formed between two entities: the represented and the representative. The represented is the person in whose interests the representative acts. These can be any subjects of civil law, for example, citizens, legal entities, municipalities, etc. He (the represented) can empower the representative, i.e. determine what legal actions the representative has the right to perform. In other cases, the powers, content and their scope are determined by laws and legal acts. A representative is a person who acts on behalf of the represented within the limits of his authority and also defends his interests. The representative can be capable citizens and legal entities [2].

From paragraph 1 of Article 182 of the Civil Code of the Russian Federation it is understood that in order for the relationship of representation to arise, the subjects (the representative and the represented) must make a transaction based on a power of attorney, an indication of the law or an act of an authorized state body. According to the explanations given in paragraph 125 of the Resolution of the Plenum of the Supreme Court of the Russian Federation № 25 “On the application by courts of certain provisions of Section I of Part One of the Civil Code of the Russian Federation”, a power of attorney is a written authorization issued by one person to another person or other persons for representation before third parties. A written authorization, including to represent interests in court, may be contained both in a separate document (a power of attorney) and in a contract, a decision of the meeting, unless otherwise established by law and on the condition that it does not contradict the essence of the relationship (paragraphs 1, 4 of Article 185 of the Civil Code of the Russian Federation, Article 53 of the CPC of the Russian Federation, Article 61 of the APC of the Russian Federation) [4].

The legislator protected debtors from unscrupulous creditors by introducing Clause 2 of Article 312 of the Civil Code of the Russian Federation, which states that if the creditor's representative acts without a notarized power of attorney, the debtor has the right not to fulfill the obligation, except in a number of cases specified in the law. From paragraph 19 of the Resolution of the Plenum of the Supreme Court of the Russian Federation № 54 it follows that Article 312 must be applied, guided by other norms of the Civil Code of the Russian Federation, namely Articles 26, 28 of the Civil Code of the Russian Federation and paragraph 1 of Article 182 of the Civil Code of the Russian Federation [8].

The conditions of representation can be explained in the text of the contract between the represented and the representative, sometimes the grounds are set out in an administrative act (for example, an act of the guardianship and guardianship authority on the appointment of a guardian or trustee), and it can also be a court decision on adoption (i.e. the adoptive parent becomes the representative of the child adopted by him) or in the decision of the meeting [6].

There are also other situations when a power of attorney for a representative is not required, i.e. sometimes the very environment in which the representative acts indicates the existence of a representation relationship. For example, theatre visitors hand over their outerwear to the wardrobe, and an employee acting on behalf of the organization takes it for storage. In this case, the presence of representative relations is obvious to visitors, so the employee does not need to confirm his credentials with a power of attorney [1].

Due to the representation of legal entities, when making transactions, a representative of a legal entity must have a notarized power of attorney, but it is not required when the transfer of powers by legal entities, heads of branches and representative offices of legal entities is carried out by way of transfer of trust (Clause 3 of Article 187 of the Civil Code of the Russian Federation).

Also, the director (sole executive body) has the right to act on behalf of the company without a power of attorney, including to represent its interests, to make transactions on behalf of the company (paragraph 3, paragraph 2, Article 69 of the Law on JSC, sub-paragraph 1, paragraph 3, Article 40 of the Law on LLC) [7]. At the same time, in the course of the company’s activities, there may be situations when the decision to elect a sole executive body is invalidated.

An example from practice is the Decision of the Ninth Court of Appeal № 09AP-3603/2016 in case № A40-212866/15. According to it, the claim for debt collection for the delivered goods was legitimately denied, since the case materials do not provide evidence of the fact of delivery of the goods [5].

According to the court’s interpretation, it can be noted that the supplier-seller, when fulfilling an obligation, has the right to demand evidence that the performance is accepted by the creditor himself or by a person authorized by him to do so, and bears the risk of consequences of failure to declare such a claim (Articles 312, 506 of the Civil Code of the Russian Federation). And by virtue of clause 2 of Article 312 of the Civil Code of the Russian Federation if the representative acts on the basis of a power of attorney in a simple written form, the debtor has the right not to fulfill the obligation to this representative before receiving a notarized power of attorney, except for the cases specified in the law, or cases when the written authorization was submitted by the creditor directly to the debtor (clause 3 of Article 185 of the Civil Code of the Russian Federation) or when the powers of the creditor's representative are contained in the contract between the creditor and the debtor (clause 4 of Article 185 of the Civil Code of the Russian Federation).

If the representative has made a transaction without a power of attorney to the detriment of the interests of the represented, then it (the transaction) may be declared invalid by the court at the claim of the represented [3]. Consequently, the representative bears all the risks of this transaction on himself, while he must act in good faith.

In modern civil turnover, the role of a power of attorney in representation is very large. As a general rule, a power of attorney is the main document that records the powers of a representative to a third party. The power of attorney mediates the external relations of the representative office, without which the entire relationship of the representative office as a whole loses its meaning.

Литература

1. Gongalo B. M. Civil Law. V. 1. Moscow: Statute, 2017. P. 178-179.

2. Krasheninnikov P. V. Representation and a power of attorney. URL: https://znanium.com/read?id=14185 (дата обращения: 01.02.2024).

3. The Civil Code of the Russian Federation. URL: http://www.kremlin.ru/acts/bank/7279 (дата обращения: 02.02.2024).

4. The Code of Civil Procedure. URL: https://www.gpkod.ru/razdel-1/glava-5/st-53-gpk-rf (дата обращения: 03.02.2024).

5. The Decision of the Ninth Court of Appeal. URL: https://base.garant.ru/61242386 (дата обращения: 03.02.2024).

6. The Family Code of the Russian Federation. URL: https://www.consultant.ru/document/cons_doc_LAW_8982/261afcf4fcb6fbcd17626156b4916b1b0350222c/ (дата обращения: 07.03.2024).

7. The Federal Law № 14-FL “About Limited Liability Companies”. URL: http://www.kremlin.ru/acts/bank/11994 (дата обращения 05.02.2024).

8. The Resolution of the Plenum of the Supreme Court of the Russian Federation. URL: https://www.consultant.ru/document/cons_doc_LAW_181602 (дата обращения: 06.02.2024).