(Unofficial
translation)
CIVIL
CODE OF THE REPUBLIC OF BELARUS
December 7,
1998 No.218-Z
[Amended as of December 31, 2021]
Adopted by the Chamber of Representatives
(October 28, 1998)
Approved by the Council of Republic (November
19, 1998)
CONTENTS
SECTION I. GENERAL PROVISIONS
SUBSECTION 1. BASIC PROVISIONS
CHAPTER 1. Civil
Legislation
CHAPTER 2. Origin of
Civil Rights and Duties, and Exercise and Defense of Civil Rights
SUBSECTION 2. PERSONS
CHAPTER 3. Citizens
(Natural Persons)
CHAPTER 4. Legal
Persons
§ 1. Basic Provisions
§ 2. Economic Partnerships and Companies
1. General Provisions
2. General Partnership
3. Special Partnership
4. Limited Liability Company
5. Additional Liability Company
6. Joint-Stock Company
7. Subsidiary and Dependent Companies
§ 3. Production Cooperatives
§ 4. Unitary Enterprises
§ 5. Non-commercial Organizations
§ 5. State Associations
CHAPTER 5.
Participation of the Republic of Belarus and its Administrative Territorial
Units in Relations Regulated by Civil Legislation
SUBSECTION 3. OBJECTS OF CIVIL RIGHTS
CHAPTER 6. General
Provisions
CHAPTER 7. Securities
CHAPTER 8. Nonmaterial
Benefits and Defense Thereof
SUBSECTION 4. TRANSACTIONS AND REPRESENTATION
CHAPTER 9.
Transactions
§ 1. Concept, Types, and Forms of Transactions
§ 2. Invalidity of Transactions
CHAPTER 10.
Representation. Power of Attorney
SUBSECTION 5. TERMS. LIMITATION PERIOD
CHAPTER 11.
Calculation of Terms
CHAPTER 12.
Limitation Period
SECTION II. RIGHT OF OWNERSHIP AND OTHER REAL
RIGHTS
CHAPTER 13. General
Provisions
CHAPTER 14.
Acquisition of Right of Ownership
CHAPTER 15.
Termination of Right of Ownership
CHAPTER 16. Common
Ownership
CHAPTER 17. Real
Rights in Immovable Property
CHAPTER 18. Right of
Ownership and Other Real Rights in Dwelling Premises
CHAPTER 19. Right of
Economic Management, Right of Operative Administration
CHAPTER 20. Defense
of Right of Ownership and Other Real Rights
SECTION III. GENERAL PART OF THE LEGISLATION OF
OBLIGATIONS
SUBSECTION 1. GENERAL PROVISIONS ON OBLIGATIONS
CHAPTER 21. Concept
of and Parties to Obligation
CHAPTER 22.
Performance of Obligations
CHAPTER 23. Securing
Performance of Obligations
§ 1. General Provisions
§ 2. Penalty
§ 3. Pledge
§ 4. Retention
§ 5. Suretyship
§ 6. Guarantee
§ 7. Deposit
CHAPTER 24. Change of
Persons in Obligation
§ 1. Transfer of Rights of Creditor to Another
Person
§2. Transfer of Debt
CHAPTER 25. Liability
for Violation of Obligations
CHAPTER 26. Termination
of Obligations
SUBSECTION 2. GENERAL PROVISIONS ON CONTRACT
CHAPTER 27. Concept
and Conditions of Contract
CHAPTER 28.
Conclusion of Contract
CHAPTER 29. Change
and Dissolution of Contract
SECTION IV. INDIVIDUAL TYPES OF OBLIGATION
CHAPTER 30.
Purchase-Sale
§ 1. General Provisions on Purchase-Sale
§ 2. Retail Purchase-Sale
§ 3. Delivery of Goods
§ 4. Delivery of Goods for State Needs
§ 5. Agricultural Procurement Contract
§ 6. Electric Power Supply
§ 7. Sale of Immovable Property
§ 8. Sale of Enterprise
CHAPTER 31. Barter
CHAPTER 32. Gift
CHAPTER 33. Rent and
Maintenance of Dependent for Life
§ 1. General Provisions on Rent and Maintenance
of Dependent for Life
§ 2. Permanent Rent
§ 3. Rent for Life
§ 4. Maintenance of Dependent for Life
CHAPTER 34. Lease
§ 1. General Provisions on Lease
§ 2. Rental
§ 3. Lease of Means of Transport
1. Lease of Means of Transport, With Provision
of Services Relating to Driving and Technical Operation (Lease of Means of
Transport with Crew)
2. Lease of Means of Transport Without
Provision of Services Relating to Driving and Technical Operation (Lease of
Means of Transport Without Crew)
§ 4. Lease of Capital Constructions (Buildings,
Structures), Isolated Premises or Parking Lots
§ 5. Lease of Enterprise
CHAPTER 35. Rental of
Dwelling Premise
CHAPTER 36.
Uncompensated Use
CHAPTER 37.
Independent Work
§ 1. General Provisions on Independent Work
§ 2. Domestic Independent Work
§ 3. Construction Independent Work
§ 4. Independent Work Contract for Fulfillment
of Design and Survey Work
§ 5. [Excluded]
CHAPTER 38.
Fulfillment of Scientific Research, Experimental Design and Technological Work
CHAPTER 39.
Compensated Rendering of Services
CHAPTER 40. Carriage
CHAPTER 41.
Forwarding
CHAPTER 42. Loan and
Credit
CHAPTER 43. Financing
Under Cession of Monetary Demand (Factoring)
CHAPTER 44. Bank
Deposit
CHAPTER 45. Bank
Account
CHAPTER 46.
Settlement of Accounts
CHAPTER 47. Storage
§ 1. General Provisions on Storage
§ 2. Storage in Warehouse
§ 3. Special Types of Storage
CHAPTER 48. Insurance
CHAPTER 49.
Commission
CHAPTER 50. Actions
in Another's Interest Without Commission
CHAPTER 51.
Commission Body
CHAPTER 52. Trust
Management of Property
CHAPTER 53. Complex
Entrepreneurial License (franchise)
CHAPTER 54. Simple
Partnership
CHAPTER 55. Public
Promise of Reward
CHAPTER 56. Public
Competition
CHAPTER 57.
Conducting Games and Betting
CHAPTER 58.
Obligations as Consequence of Causing Harm
§ 1. General Provisions on Compensation of Harm
§ 2. Compensation of Harm Caused to Life and
Health of Citizen
§ 3. Compensation of Harm Caused as Consequence
of Defects of Good, Work, or Service
§ 4. Compensation of Moral Harm
CHAPTER 59.
Obligations as Consequence of Unfounded Enrichment
SECTION V. EXCLUSIVE RIGHTS FOR RESULTS OF
INTELLECTUAL ACTIVITY (INTELLECTUAL PROPERTY)
CHAPTER 60. General
Provisions
CHAPTER 61. Copyright
and Neighboring Rights
CHAPTER 62. General
Provisions on Right of Industrial Property
CHAPTER 63. Right to
Invention, Utility Model, Industrial Design
CHAPTER 64. Rights to
New Sorts of Plants and New Breeds of Animals
CHAPTER 65. Right to
Layout of Integrated Circuit
CHAPTER 66. Right to
Protection of Undisclosed Information from Illegal Use
CHAPTER 67. Means of
Individualization of Participants of Civil Turnover, Goods, Works or Services
§ 1. Firm Name
§ 2. Trademark and Service Mark
§ 3. Geographical Indication
CHAPTER 68. Unfair
Competition
SECTION VI. INHERITANCE LAW
CHAPTER 69. General
Provisions on Inheriting
CHAPTER 70.
Inheritance by Will
CHAPTER 71. Inheritance
by Operation of Law
CHAPTER 72.
Acquisition of Inheritance
CHAPTER 73.
Peculiarities of Inheriting of Individual Types of Property
SECTION VII. INTERNATIONAL PRIVATE LAW
CHAPTER 74. General
provisions
CHAPTER 75. Collision
Norms
§ 1. Persons
§ 2. Law Subject to Application to Personal
Non-property Rights
§ 3. Transactions, Representation, Limitation
Period
§ 4. Right of Ownership and Other Real Rights
§ 5. Contractual Obligations
§ 6. Noncontractual
Obligations
§ 7. Intellectual Property
§ 8. Inheritance Law
SECTION VIII. FINAL PROVISIONS
SECTION I
GENERAL PROVISIONS
SUBSECTION 1
BASIC PROVISIONS
CHAPTER 1
Civil Legislation
Article 1. Relations Regulated by Civil Legislation
1. The civil legislation determines the legal status of participants of
civil turnover, the grounds of arising and the procedure of the exercise of
right of ownership and other real rights, the rights to the results of
intellectual activity, regulates the relations between the persons carrying out
the entrepreneurial activity, or the activity with their participation,
contractual and other obligations, as well as other property relations and
personal non-property relations connected with them.
The entrepreneurial activity is an independent activity of legal and
natural persons, implemented by them in civil turnover under their personal
name, at their risk and under their property liability, directed at systematic
obtaining of profit from using of property, selling the things made, processed
or gained by the before-mentioned persons for selling, as well as from
performing of works or rendering the services, if these works or services are intended
for realization to other persons and are not applied for own consumption.
The handicraft activity is an activity of natural persons on fabrication
and realization of goods, performance of works, rendering of services, applying
manual work and tools, including electrical tools, carried out independently
without engaging other natural persons on labour
and/or civil-law contracts and aimed at satisfying everyday needs of citizens.
The entrepreneurial activity does not comprise:
handicraft activity;
service activities in the field of agroecotourism;
activities of citizens of the Republic of Belarus on maintaining of the
family farms, and the production, processing and marketing of agricultural
products produced by them;
advocacy activity;
notarial activity of notaries;
activity of arbitrators;
activity of mediators;
activity carried out within the time of research teams;
activity of natural persons on the use of its own securities and bank
accounts as means of payment or in order to preserve cash and income
generation;
activity performed by the natural persons independently without the
involvement of other individuals on the labor and/or civil contracts following
types of activities:
realization by foreign citizens and stateless persons, temporarily staying
or temporarily residing in the Republic of Belarus, on the trade spots in the
markets and/or other places established by local executive and administrative
bodies no longer than five days in a calendar month of works of painting,
graphic arts, sculptural arts, traditional artistic handicraft articles,
produce of crop husbandry and apiculture (hereinafter –one-time sale);
realization by natural persons, with the exception of persons specified
in indent twelve of this part, on the trade spots in the markets and/or other
places established by local executive and administrative bodies of bakery and
confectionery products, finished culinary products, made by those natural
persons, and also works of painting, graphic arts, sculptural arts, traditional
artistic handicraft articles, created by them; produce of floriculture,
ornamental plants, seeds and seedlings thereof, animals (with the exception of
kittens and cubs); medicinal plants, berries, mushrooms, nuts, other
wild-growing produce; produce specified in part one of clause 11 of
Article 294 of the Tax Code of the Republic of Belarus in the presence of
documents provided for by parts two and three of clause 11 of
Article 294 of the Tax Code of the Republic of Belarus;
performance of services on agricultural products growing;
rendering services for grain crushing;
grazing;
tutoring (advisory services on specific academic subjects (subjects),
academic disciplines (subjects), educational areas, topics, including
assistance in preparation for centralized testing);
cleaning and household cleaning;
care for adults and children;
washing and ironing of linen and other things, buying food, cooking, washing
dishes and cooking in households of citizens, making payments from the monetary
means of the person served for the use of premises and housing services, mowing
grass on lawns, cleaning green areas from leaves, mown grass and debris;
mining, acquisition, alienation of digital signs (tokens);
musical and entertaining services for weddings, anniversaries and other
special occasions;
activity of actors, dancers, musicians, entertainers, acting
individually;
services of a toastmaster;
photography, photoproduction; video filming of
events;
activities connected with birthday greetings, New Year and other
holidays, regardless of their performance location;
realization of kittens and cubs provided the maintenance of pets (cats,
dogs);
services related to the care and training of pets, other than farm
animals;
activity on copying, preparation of documents and other specialized
office-related activity;
activity on translation and interpretation;
provision of services performed with the help of machines to measure
weight, height;
repair of sewing and knitted articles and headwear, except for repair of
carpets and carpet articles;
providing dwelling premises, garden
lodges, summer cottages (except for providing dwelling premises, garden lodges,
summer cottages for short-term living in accordance with indent thirty-three of
this part);
providing by natural persons, with
the exception of foreign citizens and stateless persons temporarily staying and
temporarily residing in the Republic of Belarus, of dwelling premises, garden
lodges, summer cottages, belonging to them, to other natural persons for
short-term living;
being carried out by natural
persons, with the exception of foreign citizens and stateless persons
temporarily staying and temporarily residing in the Republic of Belarus, on
orders of citizens, acquiring or using goods (works, services) exclusively for
personal, household, family and other needs, not related to carrying out
entrepreneurial activity:
carrying out works, rendering
services on interior design, graphic design, dressing (decoration) of cars,
interior space of capital constructions (buildings, structures), premises,
other places, as well as modeling interior decoration items, textiles,
furniture, clothing and footwear, personal items and household items;
repairing clocks and watches,
footwear;
repair and restoration, including reupholstery, of home furniture from customer’s materials;
furniture
assembly;
tuning musical instruments;
sawing and chopping firewood, loading and unloading cargo;
production
of clothes (including headwear) and footwear from consumer's materials;
plastering, painting, glass works,
flooring and wall covering works, wallpapering, laying (repair) of stoves and
fireplaces;
providing services for development
of websites, installation (configuration) of computers and software,
restoration of computers after a failure, repair, maintenance of computers and
peripheral equipment, training to work on a personal computer;
hairdressing and beauty services, as
well as manicure and pedicure services;
services of a teacher-defectologist;
landscape design;
courier activities (activities for the delivery of goods, parcels,
packages);
cleaning of vehicle interiors;
maintenance of graves and care of them;
lease, rental of entertainment and sports equipment (bicycles, skates,
camping equipment, etc.).
Housing, family, labor, land relations,
relations on using other natural resources and preservation of the environment,
conforming the provisions specified in the first and the second parts of this
Clause, are regulated by the civil legislation, unless otherwise is provided by
the housing legislation, legislation on marriage and family, on labor and
employment of the population, on protection and use of lands, and other special
legislation.
2. The relations connected with exercise and defense of non-alienable
rights and freedoms of the person and other intangible benefits (personal
non-property relations, not connected with the property relations), are
regulated by civil legislation, as far as otherwise does not follow from the
essence of these relations.
3. The participants of relations, regulated by the civil legislation,
are the citizens of the Republic of Belarus (hereinafter referred to as the
citizens), legal persons of the Republic of Belarus (hereinafter referred to as
the legal persons), the Republic of Belarus, administrative territorial units
of the Republic of Belarus (hereinafter referred to as the administrative
territorial units).
The rules, established by the civil legislation, are applied to the
relations with participation of the foreign citizens, stateless persons,
foreign and international legal persons (the organizations not being legal
persons), foreign states, their administrative and territorial
(state-territorial) units, being participants of civil relations in accordance
with the legislation of these states , unless otherwise is determined by the Constitution
of the Republic of Belarus, other legislative acts, and the treaties of the
Republic of Belarus.
4. The civil legislation is not applied to the property relations based
on administrative subordination, established by the legislation, of one party
to another, including budget and tax relations, unless otherwise is provided by
the legislation.
Article 2. Main Principles of Civil Legislation.
The main principles of civil legislation include the system of
principles, defining and regulating the civil relations.
The civil legislation is founded on the following principles:
all participants of the civil relations, including the state, its bodies
and officials, act within the Constitution of the Republic of Belarus and acts
of legislation enacted in conformity with it (the principle of supremacy of
law);
the direction and co-ordination of state and private economic activity
are provided by the state in social purposes (the principle of social
orientation of regulation of economic activity);
the implementation of the civil rights shall not contradict the public
benefit and safety, cause damage to the environment, historical and cultural
values, infringe rights and interests of other persons protected by the law
(the principle of priority of the public interests);
the subjects of the civil law participate in civil relations as equals,
are equal before the law, cannot enjoy any advantages and privileges
contradicting the law, and have the right, without any discrimination, to equal
protection of the rights and legal interest (the principle of equality of
participants of the civil relations);
the right of ownership, gained by legal way, is protected by the law and
is preserved by the state, its inviolability is guaranteed, condemnation is
allowed only on motives of the public necessity, subject to conditions and
procedures determined by the law, with timely and full indemnification of cost
of alienated property, or in accordance with the decision of the court (the
principle of inviolability of the property);
the citizens and legal persons are free in conclusion of the contract.
Compulsion to conclusion of the contract is not allowed, with the exception of
cases when the liability to conclude the contract is provided by the
legislation or by voluntary obligation (the principle of freedom of the
contract);
honesty and reasonableness of participant of civil legal relations is
expected, as far as other is not revealed (the principle of honesty and
reasonableness of participant of civil legal relations);
interference in private affairs is prohibited, with the exception of the
cases when such interference is implemented on the grounds of legal norms in
the interest of national security, public order, protection of moralities,
health of the population, rights and freedoms of the other persons (the
principle to inadmissibility of arbitrary interference in private affairs);
the citizens and legal persons have the right to implement protection of
the civil rights in the court and by other ways provided by the legislation, as
well as self-defense of the civil rights, subject to the limits determined in
accordance with civil legal norms (the principle of free implementation of the
civil rights, ensuring the recovering of the violated rights, judicial
protection of rights);
other principle specified in the Constitution of the Republic of
Belarus, other acts of legislation, as well as the principles following from
the contents and sense of civil legal norms.
The participants of civil legal relations obtain and implement their own
civil rights by their own will and in their own interests. They are free in
establishing their rights and duties on the basis of the contract, and in
determination of any terms and conditions of the contract not contradicting the
legislation.
Article 3. Civil Legislation
1.The civil legislation is a system of the normative legal acts
containing civil law norms, including:
the legislative acts (the Constitution of the Republic of Belarus, this
Code and laws of the Republic of Belarus, decrees and edicts of the President
of the Republic of Belarus);
the orders of the President of the Republic of Belarus;
the resolutions of the Government of the Republics of Belarus, enacted
in accordance with the legislative acts;
the acts of the Constitutional Court of the Republic of Belarus, Supreme
Court of the Republic of Belarus and National Bank of the Republic of Belarus,
enacted within competence of these bodies for regulation of the civil relations
established by the Constitution of the Republic of Belarus and other
legislative acts enacted in accordance with it;
the acts of ministries, other Republic's bodies of state administration,
local bodies of government and self-government, enacted in cases and within the
limits provided by the legislative acts, orders of the President of the
Republic of Belarus and resolutions of the Government the Republic of Belarus.
2. In case of discrepancy of the legislative act with the Constitution
of the Republic of Belarus, the Constitution prevails.
In case of discrepancy of the decree or edict of the President of the
Republic of Belarus with this Code or another law, this Code or another law
prevails only in cases when the authorities for enacting the decree or edict
were provided by the law.
The norms of the civil law, contained in other laws, should conform to
this Code. In case of discrepancy of those acts with this Code, the latter
prevails.
In case of collision (discrepancy) of other acts of civil legislation,
the rules established by the legislation of the Republic of Belarus on
normative legal acts are applied.
Article 4. Operation of Civil Legislation in Time
Unless otherwise is provided by the Constitution and other legislative
acts enacted in conformity with it, the acts of the civil legislation do not
retroact and are applied to the relations which arose:
after putting into force of these acts;
before putting into force of these acts, in relation to the rights and
duties which arose after putting into force of these acts.
The relations of the parties of a contract, concluded before putting
into force of the act the civil legislation, are regulated in accordance with
Article 392 of this Code.
Article 5. Application of Civil Legislation by Analogy
1. In cases when the relations provided by Article 1 of this Code are
not regulated directly by acts of legislation or by agreement of the parties,
the norm of the civil legislation regulating the similar relations (analogia legis) is
applied to such relations, as far as such application does not contradict the
essence of these relations.
2. In case of impossibility of application of analogia
legis in the specified cases, the rights and
duties of the parties are to be determined on the basis of main principles and
the sense of the civil legislation (analogia
juris).
3. It is not allowed to apply by analogy the norms limiting civil rights
and establishing the liability.
Article 6. Civil Legislation and Norms of International Law
The Republic of Belarus recognizes the supremacy of generally recognized
principles of international law and provides conformity of the civil
legislations of the Republic of Belarus to these principles.
Provisions of the civil law, contained in the treaties of the Republic
of Belarus, which have came into force, are the part
of the civil legislation, which is valid on the territory of the Republic of
Belarus, and subject to direct application, except for cases when it follows
from the treaty that the enactment of the national legal act is required for
application of these provisions. These provisions have the force of the legal
act expressing the consent of the Republic of Belarus for the obligatoriness of the appropriate treaty for the Republic
of Belarus.
Provisions of the civil law, contained in the treaties of the Republic
of Belarus, which have not come into force, may be applied by the Republic of
Belarus temporarily in accordance with the procedure established by the
legislation on the treaties of the Republic of Belarus.
CHAPTER 2
Origin of Civil Rights and Duties, and Exercise and Defense of Civil Rights
Article 7. Grounds for Civil Rights and Duties to Arise
1. Civil rights and duties shall arise from the grounds provided for by
the legislation, and also from the actions of citizens and legal persons, which
although not provided for by a law or such acts but by virtue of the basic
principles and sense of civil legislation give rise to civil rights and duties.
In accordance therewith civil rights and duties shall arise:
1) from contracts and other transactions provided for by the legislation,
and also from contracts and other transactions which although not provided for
by the legislation, are not contrary thereto;
2) from acts of state bodies and bodies of local administration and
self-government which have been provided for by the legislation as a ground for
civil rights and duties to arise;
3) from a judicial decision which has established civil rights and
duties;
4) as a result of creation and acquisition of property on the grounds
not prohibited by the legislation;
5) as a result of creation of works of science, literature, art,
inventions, and other results of intellectual activity;
6) as a consequence of causing of harm to another person;
7) as a consequence of unfounded enrichment;
8) as a consequence of other actions of citizens and legal persons;
9) as a consequence of events with which the legislation connects the
ensuing of civil-law consequences.
2. The rights to property subject to state registration shall arise from
the time of registration of the respective rights thereto, unless otherwise
established by the legislation.
Article 8. Exercise of Civil Rights
1. Citizens and legal persons shall exercise the civil rights belonging
to them at their discretion.
2. The refusal of citizens and legal persons to exercise rights belonging
to them shall not entail the termination of those rights except for instances
provided for by the legislation.
Article 9. Limits of Exercise of Civil Rights
1. The actions of citizens and legal persons effectuated exclusively
with the intention to cause harm to another person, and also abuse of right in
other forms, shall not be permitted.
The use of civil rights for the purposes of limiting competition, and
also abuse of a dominant position in the market, shall not be permitted.
2. In the event of the failure to comply with the requirements provided
for by Clause 1 of this Article, the court of general jurisdiction or
arbitration court may refuse to defend the right belonging to the person.
3. The person abusing the right must restore the position of the person,
suffered as a result of abuse, and compensate damage caused.
4. In instances when a law makes the defense of civil rights dependent
upon whether these rights have been exercised reasonably and in good faith, the
reasonableness of the actions and the good faith of the participants of civil
legal relations shall be presupposed.
Article 10. Judicial Defense of Civil Rights
1. Protection
of violated or contested civil rights is effectuated by the court of general
jurisdiction, the arbitration court (hereinafter referred to as the court) in
accordance with the jurisdiction established by the procedural legislation, or
in cases provided by the legislation, in accordance with the contract.
2. The
legislation or the contract (unless it contradicts the legislation) may provide
for settlement of the dispute between parties before reference to the court.
Before
reference to the court with a complaint concerning disputes arising between
legal persons and/or individual entrepreneurs, it is obligatory to present
pre-trial complaint (a written proposal on voluntary settlement of the dispute)
or using the mediation, unless otherwise established by this Code, other
legislative acts or a contract. The procedure for presenting the pre-trial
complaint and also of using and conducting the mediation shall be established
by the legislation and/or contract.
3. Protection
of the civil rights in administrative procedure is effectuated only in cases
provided by the legislation. A decision
adopted in the administrative procedure may be appealed in the court.
Article 11. Means of Defense of Civil Rights
The defense of civil rights shall be exercised by means of:
1) recognition of the right;
2) restoration of the situation which existed before the violation of
the right
3) suppression of actions violating a right or creating a threat to
violate it;
4) recognition of a contested transaction to be invalid and the
application of the consequences of the invalidity thereof; determination of the
fact of nullity of the transaction and the application of the consequences of
the invalidity thereof;
5) recognition of an act of a state body or body of local administration
or self-government to be invalid;
6) self-defense of right;
7) awarding performance of a duty in kind;
8) compensation of losses;
9) recovery of a penalty;
10) compensation for moral harm;
11) termination or change of legal relation;
12) non-application by court of act of a state body or body of local administration
or self-government which is contrary to the legislation;
13) other means provided for by the legislation.
Article
12. Recognizing the Act of State Body or Body of Local Administration or
Self-government to be Invalid
A non-normative act of a state body or body of local administration or
self-government, and in instances provided for by the legislation, also a
normative act, not corresponding to the legislations and violating civil rights
and interests of a citizen or legal person, protected by the legislative acts,
may be recognized by a court to be invalid, subject to the claim of the person,
whose rights were violated, or, in cases provided by the legislation, subject
to the claim of other persons. In the event that an act is recognized by a
court to be invalid, the violated right shall be subject to restoration or to
defense by other means provided for by Article 11 of this Code.
Article 13. Self-Defense of Civil Rights
Defense of the civil rights by direct actions of the person, whose rights
are violated, is permissible, if such actions are not connected with breach of
the legislation.
Self-defense of the civil rights, effectuated with causing damage in the
situation of absolute necessity or necessary defense, is not considered as
breach of the legislation, if the actions of the person carrying out the
defense were proportional to the character and danger of the violation and did
not exceed beyond the limits of prevention or suppression of the violation.
Article 14. Compensation of Losses
1. A person whose right has been violated may demand full compensation
of losses caused to him unless compensation of losses in a lesser amount has
been provided for by the legislation or contract.
2. By losses are understood the expenses which the person whose right
has been violated made or must make in order lo
restore the violated right, loss or damage of his property (real damage), and
also revenues not received which this person would have received under ordinary
conditions of civil turnover if his right had not been violated (lost
advantage).
If the person who has violated a right has received revenues as a
consequence thereof, the person whose right was violated shall have the right
to demand compensation, together with the other losses, for lost advantage in
an amount of not less than such revenues.
Article
15. Compensation of Losses Caused by State Bodies and Bodies of Local
Administration or Self-government
Losses caused to a citizen or legal person as a result of the illegal
actions (failure to act) of state bodies, bodies of local administration or
self-government, or officials of these bodies, including the issuance of the
act of a state body or body of local administration or self-government which
does not correspond to the legislation, shall be subject to compensation by the
Republic of Belarus or by respective administrative territorial unit in
accordance with the procedure provided by the legislation.
SUBSECTION 2
PERSONS
CHAPTER 3
Citizens (Natural Persons)
Article 16. Legal Capacity of Citizens
1. The capacity to have civil rights and to bear duties (civil legal
capacity) shall be recognized in equal measure for all citizens.
2. The legal capacity of a citizen shall arise at the time of his birth
and be terminated by death.
Article 17. Content of Legal Capacity of Citizens
Citizens may, in accordance with the legislation, have property by right
of ownership; inherit and bequeath property; to be engaged in entrepreneurial and
any other activity not prohibited by the legislation; create legal persons
autonomously or jointly with other citizens and legal persons; conclude any
transactions which are not contrary to a legislation, and participate in
obligations; select the place of residence; have the rights of authors to works
of science, literature and art, inventions and other results of intellectual
activity protected by the legislation; and have other property rights and
personal non-property rights.
Article 18. Name of Citizen
1.A citizen shall acquire and exercise rights and duties under his own
name, including surname and own forename, and also patronymic (if any), unless
it arises otherwise from the legislation.
A citizen may use a pseudonym (fictitious name) in the instances and in
accordance with the procedure provided for by the legislation.
2.A citizen shall have the right to change his name in accordance with
the procedure established by the legislation. The change of name by a citizen
shall not be the ground for the termination or change of his rights and duties
acquired under the previous name.
A citizen shall be obliged to take necessary measures in order to inform
his debtors and creditors about the change of his name and shall bear the risk
of the consequences caused by these persons lacking information about the
change of his name.
A citizen who has changed name shall have the right to demand the
making, at his expense, of respective changes in documents formalized in his
previous name.
3. The name received by a citizen at birth, and also a change of name,
shall be subject to registration in accordance with the procedure established
for the registration of acts of civil status.
4. The acquisition of rights and duties under the name of another person
shall not be permitted.
5. Harm caused to a citizen as a result of the incorrect use of his name
shall be subject to compensation in accordance with this Code.
In the event of the distortion or of the use of the name of a citizen by
means or in a form affecting his honour, dignity, or
business reputation, the rules provided for by Article 152 of this Code shall
apply.
Article 19. Place of Residence of Citizen
1.The place of residence of a citizen shall be deemed the location
(address) of dwelling, the rights of possession, disposal and/or using of which
have been accrued by a citizen on the grounds established by the legislative
acts, or a populated locality where a citizen permanently or primarily resides,
and if such locality is not established - the place of residence (in the
absence thereof - the place of staying) specified in the identification
document, or in another document on registration, or the place of location of
the property of this person.
The place of residence of minors who have not attained fourteen years of
age or citizens under trusteeship shall be deemed to be the place of residence
of their legal representatives — parents, adoptive parents, or trustees.
Article 20. Active Legal Capacity of Citizens
1. The capacity of a citizen by his own actions to acquire and exercise
civil rights, to create civil duties for himself, and to perform them (civil
active legal capacity) shall arise in full with the ensuing of majority, that
is, upon attaining eighteen years of age.
2. When by the legislation the emancipation (Article 26 of this Code) or
entry into marriage is permitted before attaining eighteen years of age, a
citizen who has not attained eighteen years of age shall acquire civil active
legal capacity in full from the time of adoption of the decision on
emancipation or entering into marriage.
Active legal capacity acquired as a result of concluding a marriage
shall be retained in full also in the event of dissolution of the marriage.
When deeming a marriage to be invalid a court may adopt a decision concerning
the loss by the minor spouse of full active legal capacity from the time
determined by the court.
3. All citizens shall have equal active legal capacity, unless otherwise
established by the legislation.
Article
21. Inadmissibility of Deprivation and Limitation of Legal Capacity and Active
Legal Capacity of Citizens
1. No one may be limited in legal capacity and active legal capacity
other than in the instances and in accordance with the procedure established by
the legislation.
2. The full or partial renunciation, by a citizen, of legal capacity or
active legal capacity, and other transactions, directed towards a limitation of
legal capacity or active legal capacity, shall be void, except for instances
when such transactions are permitted by the legislation.
Article 22. Entrepreneurial Activity of Citizen
1. A citizen shall have the right to engage in entrepreneurial activity
without the formation of a legal person from the time of state registration as
an individual entrepreneur. The number of natural persons being engaged by the
individual entrepreneur on the basis of civil-law and/or labour
contracts for carrying out entrepreneurial activity and the amount of property,
used for those purposes, as well may be restricted by legislative acts.
2. The rules of this Code which regulate the activity of legal persons
that are commercial organizations shall apply respectively to the
entrepreneurial activity of citizens effectuated without the formation of a
legal person unless it arises otherwise from the legislation, or the essence of
a legal relation.
3. A citizen carrying out entrepreneurial activity without the formation
of a legal person in violation of the requirements of Clause 1 of this Article
shall not have the right to refer with respect to transactions concluded by him
to the fact that he is not an individual entrepreneur. A court may apply to
such transactions the rules of this Code on obligations connected with the
effectuation of entrepreneurial activity.
Article 23. Property Liability of Citizen
A citizen shall be liable for his obligations with all of the property
belonging to him except for property against which execution may not be levied
in accordance with the legislation.
A list of the property of citizens against which execution may not be
levied shall be established by the civil procedure legislation.
Article
24. Economic Insolvency (Bankruptcy) of Individual Entrepreneur
1. An individual entrepreneur who cannot satisfy the demands of
creditors connected with the effectuation by him of entrepreneurial activity
may be deemed to be insolvent (bankrupt) by decision of a court.
2. When effectuating the procedure for deeming an individual
entrepreneur to be bankrupt his creditors with regard to obligations not
connected with the effectuation of entrepreneurial activity by him also shall
have the right to present their demands. The demands of the said creditors not
declared by them in this procedure shall retain force after the completion of
the bankruptcy proceeding of an individual entrepreneur.
3. The demands of creditors of an individual entrepreneur in the event
of him being deemed bankrupt shall be satisfied at the expense of the property
belonging to him against which execution may be levied.
4. After completing the settlement of accounts with creditors, the
individual entrepreneur deemed to be bankrupt shall be relieved from the
performance of residual obligations connected with his entrepreneurial activity
and other demands presented for performance and taken into account when deeming
the entrepreneur to be bankrupt.
The demands of citizens to whom the citizen declared to be bankrupt
bears liability for causing harm to life or health, and also other demands of a
personal character, shall retain force.
5. The grounds and procedure for a court to deem an individual
entrepreneur to be bankrupt or the declaration by him of his own bankruptcy,
and priority of satisfaction of the creditor’s demands shall be established by
the legislation on economic insolvency (bankruptcy).
Article
25. Active Legal Capacity of Minors from Fourteen to Eighteen Years of Age
1. Minors in age from fourteen to eighteen years shall conclude
transactions, except those named in Clause 2 of this Article, with the written
consent of their legal representatives—parents, adoptive parents, or guardian.
A transaction concluded by such a minor shall be valid also in the event
of the subsequent written approval thereof by his parents, adoptive parents, or
guardian.
2. Minors in age from fourteen to eighteen years shall have the right
autonomously, without the consent of the parents, adoptive parents, and
guardian, to:
1) dispose of their earnings, scholarships, and other revenues;
2) exercise the rights of an author of a work of science, literature or
art, invention, or other result of his intellectual activity protected by the
legislation;
3) make deposits in banks and non-bank credit and financial institutions
and dispose of them in accordance with the legislation;
4) conclude petty domestic transactions and other transactions provided
for by Article 27(2) of this Code.
Upon attaining sixteen years of age minors also shall have the right to
be members of cooperatives in accordance with the acts of legislation on cooperatives.
3. Minors in age from fourteen to eighteen years shall bear property
liability for transactions concluded by them in accordance with Clause 1 of
this Article; subsidiary liability is imposed on the citizen who has given a
written consent on execution of the before-mentioned transaction.
Minors in age from fourteen to eighteen years shall independently bear
property liability for transactions concluded by them in accordance with Clause
1 of this Article.
For the harm caused by them such minors shall bear liability in
accordance with Chapter 58 of this Code.
4. When there are sufficient grounds a court may, upon the petition of
parents, adoptive parents, or guardian or the body of trusteeship and
guardianship, limit or deprive a minor from fourteen to eighteen years of age
of the right to autonomously dispose of his earnings, scholarship, or other
revenues, except for instances when this minor acquired active legal capacity
in full in accordance with Article 20(2) of this Code.
Article 26. Emancipation
1.A minor who has attained sixteen years of age may be declared to have
full active legal capacity if he works under a labor contract or, with the
consent of parents, adoptive parents, or guardian, engages in entrepreneurial
activity.
A minor shall be declared to have full active legal capacity
(emancipation) by decision of an body of trusteeship and guardianship with the
consent of both parents, adoptive parents, or the guardian, or in the absence
of such consent, by decision of a court.
2.Parents, adoptive parents, and a guardian shall not bear liability for
obligations of an emancipated minor, in particular, for obligations which arose
as a consequence of causing of harm by him.
Article 27. Active Legal Capacity of Minors at Age Below Fourteen Years
(Juveniles)
1. Transactions, except for those specified in Clause 2 of this Article,
may be concluded for minors who have not attained fourteen years of age
(juveniles) only in their names by the parents, adoptive parents, or trustees.
The rules provided for by Article 35 (2) and (3) of this Code shall
apply to transactions of the legal representatives of a minor with his
property.
2. Juveniles in age from six to fourteen years shall have the right to
conclude autonomously:
1) petty domestic transactions;
2) transactions directed towards receiving advantages without
compensation which do not require notarial certification or state registration;
3) transactions relating to the disposition of assets granted by a legal
representative or with the consent of the last by a third person for a
specified purpose or for free disposition.
3. Property liability on the transactions carried out by the minor at
the age below fourteen years, including the liability on the transactions made
by these non-adults autonomously, is imposed on parents, adoptive parents or
the trustee of the minor. Liability for the harm caused by the minor at the age
below fourteen years, is determined in accordance with the rules of Chapter 58
of this Code.
Article 28. Right for Disposal of Bank Deposits on the Name of Juvenile
The bank deposits made by anyone on the name of the juveniles, are in
the disposal of their parents, adoptive parents or guardians, subject to the
rules stipulated in Article 35 of this Code, and also of a depositor (in cases
provided for in the legislation or in a contract).
Article 29. Recognizing Citizen as Not Having
Active Legal Capacity
1. A citizen who as a consequence of mental
disorder (disease) cannot understand the meaning of his actions or direct them,
may be recognized by a court to as not having active legal capacity in the
order established by the civil procedure legislation. A trusteeship shall be
established over him.
A citizen who in connection with a disease is in a
unconscious state that excludes a possibility to understand the meaning of his
actions or direct them, may be recognized by a court to as not having active
legal capacity in the order established by the civil procedure legislation. A
trusteeship shall be established over him.
2. Transactions in the name of a citizen
recognized as not having active legal capacity shall be concluded by his
trustee.
3. If the mental state of a citizen who was
recognized as not having active legal as a consequence of a mental disorder
(disease) has improved, the court shall recognize that citizen as having
limited active legal capacity in accordance with clause 2 of Article 30 of this
Code or as having active legal capacity.
The trusteeship established over a citizen shall be cancelled on the
basis of the decision of a court to recognize the citizen as having active
legal capacity.
If the ground by virtue of which a citizen was
recognized as not having active legal capacity has disappeared, the court shall
recognize this citizen as having active legal capacity. The trusteeship established over a citizen
shall be cancelled on the basis of the decision of a court to recognize the
citizen as having active legal capacity.
Article 30. Limitation of Active Legal
Capacity of Citizens
1. A citizen who as a consequence of abusing
alcoholic beverages, narcotics, psychotropic substances, analogues thereof
places his family in a difficult material position may be limited in active
legal capacity by a court in the order established by the civil procedure
legislation. A guardianship shall be
established over him.
A citizen whose active legal capacity has been
limited as a consequence of abusing alcoholic beverages, narcotics,
psychotropic substances, analogues thereof
is entitled to conclude small household transactions.
Such citizen may conclude other transactions, and
also receive earnings, pension, and other incomes and dispose of them only with
the consent of the guardian.
A citizen whose active legal capacity has been
limited as a consequence of abusing alcoholic beverages, narcotics,
psychotropic substances, analogues thereof shall autonomously bear property
liability for transactions concluded by him and for harm caused by him.
2. A citizen whose ability to understand the
meaning of his actions or direct them has been limited as a consequence of
mental disorder (disease), may be limited by a court in active legal capacity
in the order established by the civil procedure legislation. A guardianship
shall be established over him.
A citizen
whose active legal capacity has been limited as a consequence of a mental
disorder (disease) is entitled to:
1)
conclude small household transactions;
2)
conclude transactions directed at gratuitous receipt of benefits, not requiring
notarial certification or state registration;
3) conclude
transactions on disposal of means provided by the guardian or by a third person
with consent of the former for a certain goal or free disposal;
4) receive earnings, pension, and other incomes and
dispose of them.
Such citizen may conclude other transactions with
consent of the guardian.
Upon availability of sufficient grounds, the court,
at the request of the trustee or the guardianship and trusteeship body, may
limit or deprive such a citizen of the right to independently dispose of his
earnings, pension, and other incomes.
A citizen whose active legal capacity has been
limited as a consequence of a mental disorder (disease) shall autonomously bear
property liability for transactions concluded by him and for harm caused by
him.
3. If the grounds by virtue of which a citizen
was limited in active legal capacity in accordance with clause 1 of this
Article have disappeared, a court shall cancel the limitation of active legal
capacity of this citizen. The
guardianship established over a citizen shall be cancelled on the basis of the
decision of a court to cancel the limitation of active legal capacity.
4. If
the mental state of a citizen whose active legal capacity has been limited as a
consequence of a mental disorder (disease) has deteriorated or improved, the
court shall accordingly recognize this citizen as not having active legal
capacity in accordance with Article 29 of this Code or cancel the limitation of
his active legal capacity. The guardianship established over a citizen shall be
cancelled on the basis of the decision of a court to cancel the limitation of
active legal capacity.
Article 31. Limitation of Entrepreneurial Activity of Citizen
In the cases provided by the legislative acts, entrepreneurial activity of
the citizen (the individual entrepreneur, founder, participant, owner of the
property, manager of the legal person etc.) can be judicially limited for the
period up to three years.
The citizen, whose entrepreneurial activity is limited, during the full term
of the limitation, can not:
implement entrepreneurial activity without establishing the legal
person;
by the actions thereof, acquire and implement the rights, establish and
fulfill the duties of the owner of the property (the founder, participant) of
the legal person;
hold the positions in the executive bodies of the legal persons;
act as the manager of the enterprise and other property used for
entrepreneurial activity.
The enterprise and other property, being in the ownership of
before-mentioned citizen, can be used by such citizen during the period of
limitation for the purposes of entrepreneurial activity solely by transferring
this property under the trust.
Article 32. Trusteeship
Trusteeship shall be established over juveniles, and also over citizens
recognized by a court as lacking active legal capacity.
Trustees shall be representatives of the wards by virtue of a law (legal
representatives) and conclude all necessary transactions in their name and in
their interests.
Article 33. Guardianship
Guardianship shall be established over minors from fourteen to eighteen
years of age, and also over citizens limited in active legal capacity by a
court.
Guardians shall give consent to the conclusion of those transactions
which citizens under guardianship do not have the right to conclude
autonomously.
Guardians shall render assistance to wards in the exercise by them of
their rights and the performance of duties, and also protect them against
abuses on the part of third persons.
Article 34. Guardians and Trustees as Representatives of Wards
1. The
guardians and trustees shall be appointed in the order established by the
legislation, and act as protectors of the rights and interests of their wards
in relations with any persons and organizations, including in the court,
without special authorization.
2. If a
person in need of trusteeship or guardianship, within a month from the day when
the trusteeship and guardianship body became aware of the need to establish
trusteeship or guardianship, has not been appointed a trustee or guardian, the fulfillment of duties of a trustee or guardian temporarily
(until the appointment of the guardian or trustee) is assigned to the head of
the trusteeship and guardianship body.
Article 35. Disposition of Property of Ward
1. Revenues of a citizen under wardship,
including revenues due to the ward from the management of his property, except
for revenues which the ward has the right to dispose of autonomously, shall be
expended exclusively by the trustee or guardian in the interests of the ward
and with the prior authorization of the body of trusteeship and guardianship.
Without the prior authorization of the body of trusteeship and
guardianship the trustee or guardian shall have the right to make expenses
necessary to maintain the ward at the expense of amounts which are due to the
ward as his revenue.
2. A trustee shall not have the right without the prior authorization of
bodies of trusteeship and guardianship to conclude, and a guardian - to give
consent to the conclusion of transactions relating to the alienation, including
exchange or gift, of the property of the ward, hire (lease) thereof, use free
of charge, or pledge, or transactions entailing a waiver of rights which belong
to the ward, the separation of his property or an apportionment of a
participatory share from it, and also any other transactions entailing a
reduction of the property of the ward.
The procedure for the management by a trustee or guardian of the
property of a ward shall be determined by the legislation.
3. A trustee and guardian, their spouses and close relatives shall not
have the right to conclude transactions with a ward except for the transfer of
property to the ward as a gift or for use free of charge, and also to represent
the ward when concluding transactions or conducting judicial cases between the
ward and a spouse of the trustee or guardian and their close relatives.
Article 36. Trust Management of Property of Ward
1. When the permanent management of immovable and valuable movable
property of a ward is necessary, the body of trusteeship and guardianship shall
conclude with the manager determined by this body a contract concerning trust
management of such property (Chapter 52 of this Code). In this event the
trustee or guardian shall retain his powers with respect to that property of
the ward which is not transferred to trust management.
In the event of the effectuation by the manager of powers relating to
the management of the property of the ward the operation of the rules provided
for by Articles 35(2) and (3) of this Code shall extend to the manager.
2. The trust management of the property of a ward shall be terminated in
connection with termination of the property trust management contract on the
grounds provided by clause 1 of Article 907 of this Code.
Article
37. Patronage of Citizens Who Has Active Legal Capacity
1. At the request of a citizen who has reached majority and has active
legal capacity and who by reason of state of health cannot autonomously
effectuate and defend his rights and perform duties, a guardianship in the form
of patronage may be established over him.
Establishment of patronage does not involve restrictions of the rights
of a citizen being under patronage.
2. The assistant (the person carrying out a patronage) of a citizen who
has reached majority and who has active legal capacity may be appointed by an
body of trusteeship and guardianship only with the consent of this citizen.
3. The disposition of property belonging to a citizen being under
patronage shall be carried out by the assistant on the grounds of a contract of
agency or trust management, concluded with this citizen. The conclusion of
domestic transactions and other transactions directed at maintenance and
satisfaction of domestic requirements of a citizen being under patronage shall
be effectuated by his assistant with the consent of this citizen.
4. Patronage established in accordance with Clause 1 of this Article
shall be terminated at the demand of a citizen being under patronage.
Article 38. Deeming of Citizen to be Missing
A citizen may, upon the application of interested persons, be deemed by
a court to be missing if within one year there is no information at his place
of residence concerning his whereabouts. When it is impossible to determine the
date of receipt of the last information concerning the absent person, the
commencement of calculation of the Term for deeming a person to be missing
shall be considered to be the first date of the month following that in which
the last information was received concerning the missing person, and when it is
impossible to establish this month, the first of January of the following year.
Article 39. Consequences of Deeming Citizen to be Missing
1. The property of a citizen deemed to be missing shall, when permanent
management is necessary, on the basis of the decision of a court be transferred
to the person who is determined by the body of trusteeship and guardianship and
shall operate on the basis of a contract on trust management concluded with
this body.
2. The trustee of the property belonging to the citizen deemed to be
missing undertakes performance of this citizen’s obligations, repays the debts
of the citizen deemed to be missing at the expense of the property belonging to
this citizen, manages this property on behalf of this citizen. Subject to the
application of the interested persons, the allowance is paid for the citizens,
which are subject to maintenance by the citizen deemed to be missing.
3. An body of trusteeship and guardianship may also before the expiry of
a year from the date of receiving information about the whereabouts of the
missing citizen appoint a manager of his property.
4. The consequences of deeming a person to be missing which are not
provided for by this Article shall be determined by the legislation.
Article 40. Vacating the Decision on Deeming Citizen to be Missing
1. In the event of the appearance or discovery of the whereabouts of a
citizen deemed to be missing a court shall vacate the decision deeming him to
be missing. The trust management of the property of this citizen shall be
vacated on the basis of the decision of the court.
2. If, after three years after the day of appointment of the trustee,
the decision on deeming the citizen to be missing was not vacated, and there was
no application to the court for declaring the citizen to be deceased, the body
of guardianship and trusteeship must apply to the court with the application
for declaring the citizen to be deceased.
Article 41. Declaration of Citizen to be Deceased
1. A citizen may be declared by a court to be deceased if there is no
information at his place of residence concerning his whereabouts in the course
of five years, and if he was missing under circumstances threatening death or
giving grounds to suppose he perished from a specific accident, within six
months.
2. A military serviceman or other citizen who is missing in connection
with military actions may be declared by a court to be deceased not earlier
than upon the expiry of two years from the date the military actions end.
3. The date of death of a citizen declared to be deceased shall be
considered to be the date of entry into legal force of the decision of the
court declaring him to be deceased. In the event a citizen is declared to be
deceased who is missing under circumstances threatening death or giving grounds
to suppose he perished in a specific accident, the court may deem the date of
death of this citizen to be the date of the presupposed perishing.
4. Declaring the citizen to be deceased implies the same consequences in
relation to the rights and duties of such citizen, as death of the citizen.
Article
42. Consequences of Appearance of Citizen Declared to be Deceased
1. In the event of the appearance or discovery of the whereabouts of a
citizen declared to be deceased, the court shall vacate the decision declaring
him to be deceased.
2. Irrespective of the time of his appearance, a citizen may demand from
any person the return of property preserved which passed to this person without
compensation after the declaration of the citizen to be deceased, except for
instances provided for by Article 283(3) of this Code.
Persons to whom property of a citizen declared to be deceased has passed
according to transactions for compensation shall be obliged to return this
property to him if it is proved that, in acquiring the property, they knew that
the citizen declared to be deceased is alive. If it is impossible to return
such property in kind, the value thereof shall be compensated. If the property
of the citizen, declared to be deceased, has been transferred to the state as
escheat and was sold by the state with observance of conditions provided by
this Article, then, after vacating of the decision on declaring the citizen to
be deceased, the money sum earned as a result of selling of the property, shall
be returned to the citizen.
Article 43. Registration of Acts of Civil Status
l. The following acts of civil status shall be subject to registration:
1) birth;
2) conclusion of marriage;
3) establishment of maternity and/or paternity;
4) adoption;
5) death;
6) change of surname, proper name, patronymic;
7) dissolution of marriage in cases provided by the legislation on
marriage and family.
2. Bodies registering acts of civil
status and the order of registration of acts of civil status shall be
determined by the legislation.
CHAPTER 4
Legal Persons
§ 1. Basic Provisions
Article 44. Concept of Legal Person
1. A legal person shall be deemed to
be an organization which has solitary property in ownership, economic
management, or operative administration and is liable for its obligations with
such property and may, in its own name, acquire and exercise property rights
and personal non-property rights, bear duties, and be a plaintiff or defendant
in court, registered in the established order as a legal person or recognized
as such by the legislative act.
2. In connection with participation
in the formation of the property of a legal person its founders (participants)
may have rights of obligations with respect to this legal person or rights to a
thing with respect to its property.
То legal persons with respect to which the participants thereof have
rights of obligations shall be relegated: economic partnerships and companies;
production and consumer cooperatives. The participants of such legal persons
can have rights to a thing only for the property, which they have transferred
to the legal persons for using as contribution to the charter capital.
To legal persons with respect to whose property the founders thereof
have the right of ownership or other right to in rem shall be relegated unitary
enterprises, including subsidiary enterprises, and also state associations and
institutions financed by the owner.
3. To legal persons with respect to which the founders (participants)
thereof do not have property rights belong: social and religious organizations
(associations); charitable and other funds; associations of legal persons
and/or of individual entrepreneurs (associations and unions), and other
non-commercial organizations unless otherwise established by this Code, other
laws or acts of President of the Republic of Belarus.
In the instances stipulated by the laws or acts of the President of the
Republic of Belarus, the administrative and territorial units may have property
rights in relation to commercial organization, including when they are not
their founders (participants).
4. Peculiarities of formation (creation), reorganization and termination
(liquidation) of state bodies, as well as state legal persons, regulations on
which are established by the acts of legislation, may be established by other
acts of legislation, determining peculiarities of a legal status of such bodies
and legal persons.
Article 45. Legal Capacity of Legal Person
l. A legal person may have civil rights corresponding to the purposes of
the activity provided for in its constituent documents and subject of activity
specified in the constituent documents, and shall bear the duties connected
with such activity. A legal person may engage in individual types of activity,
a list of which is determined by the legislative acts, only on the basis of a
special authorization (license).
2. A legal person may be limited in rights only in the instances and in
the procedure provided for by the legislation. A decision concerning limitation
of rights may be appealed by a legal person to a court.
3. The legal capacity of a legal person shall arise at the time of its
creation (Article 47(2)) and shall terminate at the time of the completion of
its liquidation (Article 59(8)).
The right of a legal person to carry out activity the engagement in
which requires a special permit (license) shall arise from the moment of
receipt of such special permit (license) or within the period specified therein
and shall terminate upon termination of the effect, annulment (revocation) of
that special authorization (license) in the cases provided by legislative acts.
The legal capacity of the state body and the state legal person the
regulations on which is approved by an act of legislation arises from the entry
into force of the act of legislation providing for formation (creation) of such
a body or legal person, unless otherwise provided by this act, and shall terminate
upon the entry into force of the act of legislation providing for the abolition
(liquidation) of such a body or legal person, unless otherwise provided by this
act.
State bodies and state legal persons the regulations on which are
approved by acts of legislation are subject to be included in the Unified State
Register of Legal Persons and Individual Entrepreneurs. The procedure for
inclusion of such bodies and legal persons in the Unified State Register of
Legal Entities and Individual Entrepreneurs having regard to peculiarities of
their formation (creation) shall be determined by the Government of the
Republic of Belarus.
Article 46. Commercial and Non-commercial Organizations
1. Organizations pursuing the deriving of profit as the principal
purpose of their activity (commercial organizations) or not having the deriving
of profit as such purpose and not distributing profit received among the
participants (non-commercial organizations) may be legal persons.
2. Legal persons which are commercial organizations may be created in
the form of economic partnerships and companies, production cooperatives,
unitary enterprises, and peasant (farming) households and in other forms
stipulated by this Code.
3. Legal persons which are
non-commercial organizations may be created in the form of consumer
cooperatives, social or religious organizations (associations), institutions
financed by the owner, charitable and other funds, and also in other forms
provided for by the acts of legislation.
The non-commercial organizations can be formed for achievement of
social, nature-protective, charitable, cultural, educational, scientific and
managing purposes, health care, development of physical culture and sport,
satisfaction of spiritual and other non-material needs of the citizens,
protection of the rights and legal interests of the citizens and legal persons,
solving of disputes and conflicts, rendering legal assistance in accordance
with the legislation, and for other purposes, aimed on achievement of the
public wealth.
The nonprofit organizations can be formed for satisfaction of material
(property) needs of the citizens, or citizens and legal persons, in cases
provided by this Code and other legislative acts.
The nonprofit organizations may effectuate entrepreneurial activity only
insofar as this is necessary for their charter purposes for which these
organizations were formed, correspond with these purposes and meet the subject
of activity of the non-commercial organization, or insofar such activity is
necessary for the accomplishment of missions meaningful for the state,
stipulated in their constituent documents, corresponds with these missions and
meets the subject of activity of these organizations. For some specific forms
of non-commercial organizations, the requirements can be stipulated by the
legislative acts, providing for the right for engaging in entrepreneurial
activity only by means of forming of commercial organization and/or
participation in such organization.
4. It is permitted the creation of associations of commercial
organizations and/or of individual entrepreneurs, as well as associations of
commercial and/or non-commercial organizations in the form of associations and
unions and associations of commercial organizations and/or of individual
entrepreneurs in the form of state association.
In accordance with the legislative acts, the legal persons may form the
associations, including those with participation of the foreign legal persons, in
the form of economic groups, in accordance with the procedure and subject to
conditions determined by the legislation on such groups.
In the instances provided for by the legislative acts, the associations
of commercial and non-commercial organizations and/or natural persons may be
created in other forms.
Article 47. State Registration of Legal Persons
1. A legal person shall be subject to state registration in accordance
with the procedure determined by the legislative acts with the exception of
state bodies and state legal persons the regulation about which are approved by
acts of the legislation.. The data of state registration shall be included in
the Unified State Register of Legal Persons and Individual Entrepreneurs,
unless otherwise established by the legislative acts.
Non-performance or refusal of state registration of a legal person,
changes and (or) additions being introduced in the constituent documents of
legal persons in any form for reasons not provided by the legislative acts of
unpracticality is not allowed.
Performance or non-performance of state registration of a legal person
by the registering body or refusal of state registration of a legal person,
changes and (or) additions being introduced in the constituent documents of
legal persons may be appealed against through court proceedings.
2. A
legal person is deemed to be created from the moment of its state registration,
unless otherwise established by the President of the Republic of Belarus.
A state body,
and also a state legal person the regulations on which is approved by an act of
legislation, is deemed to be established (created) from the moment of entry
into force of the act of legislation providing for the establishment (creation)
of such a body or legal person, unless otherwise established by that act.
3. The legal person shall be subject to re-registration in cases
provided by the legislative acts.
4. The natural person or the legal person shall be entitled to obtain
the information, being kept in the Unified State Register of Legal Persons and
Individual Entrepreneurs, in accordance with the procedure defined by the
legislation.
Article 471. Charter Capital of Commercial Organization
1. At the formation of the commercial organization, the charter capital
of this organization shall be formed in accordance with the procedure
established by the legislation. The commercial organization determines
independently the amount of the charter capital with the exception of
commercial organizations for which minimal amounts of the charter capital are
established by the legislation.
2. The contribution in the charter capital of the commercial
organization may include things, including money and securities, other
property, including the property rights, or other alienable rights, having the
evaluation of their value.
The evaluation of the non-monetary contribution in the charter capital
of the commercial organization is subject to the expert verification of
reliability of such evaluation in cases and in accordance with the procedure
provided by the legislation.
The property cannot be contributed in the charter capital of the
commercial organization, if the right for alienation of this property is
limited by the owner, by the legislation or by the contract.
The legislative acts may establish other restrictions concerning the
property contributed in the charter capital of the commercial organization.
3. If, after expiration of the second and of each following fiscal year,
the cost of net assets of the commercial organization is less than the charter
capital, such organization shall be obliged, not later than within six months
after the end of the respective financial year, to decrease its charter capital
to the amount not exceeding the cost of its net assets. In the case of
decreasing the cost of net assets of the commercial organization for which a
minimum amount of the charter capital is established by the legislation after
expiration of the second and every following financial year below the minimum
amount of the charter capital, such organization is subject to liquidation in
the established order. A decision on the liquidation of the organization must
be adopted in the established order not later than within six months after the
end of the respective financial year.
Article 48. Constituent Documents of Legal Person
1. A legal person shall operate on the basis of the charter or the
constituent contract. The constituent contract of a legal person shall be
concluded, and the charter shall be confirmed, by the owner of the property
(founders, participants).This Code and other legislative acts may establish
other procedure for confirming charters of legal persons. Acts of the President
of the Republic of Belarus may provide for the approval of regulations on the
basis of which respective legal persons shall operate.
2. The name of the legal person, its location, the purposes of activity,
the procedure for the management of the activity of the legal person must be
determined in the constituent documents of the legal person, and also they
shall contain other information provided for by the law for legal persons of
the respective type.
In the constituent contract the founders (participants) shall undertake
to create a legal person and determine the procedure for joint activity
relating to its creation and the conditions for the transfer of their property
to it and participation in its activity. Beside the information specified in
part one of this clause, the conditions and procedure for distribution among
the participants of profit and losses, withdrawal of participants from the
composition thereof and other information provided for by the legislation on
legal persons of the respective type shall also be determined by the
constituent contract. Other terms and conditions can be included in the
constituent contract, subject to the consent of the founders (participants).
The object of activity of the legal person must be determined in the
constituent documents of non-commercial organizations, and in the instances
provided for by the legislation, also in the constituent documents of other
commercial organizations. The object of the activity of a commercial
organization may be determined by the constituent documents of other commercial
organizations also in the instances when according to the legislation this is
not obligatory.
3. Changes of constituent documents shall acquire force for third
persons from the time of state registration, and in the instances established
by the legislation, from the time of informing the body carrying out state
registration of such changes. However, legal persons and their founders
(participants) shall not have the right to refer to the lack of registration of
such changes in relations with third persons who have acted taking these
changes into consideration.
Changes of constituent documents of Republic's state-social associations
shall acquire force for third persons from the time of the entry into force of
legal acts which approve such changes.
Article 49. Bodies of Legal Person
1. A legal person shall acquire civil rights and assume civil duties
through its bodies operating in accordance with the legislation and the
constituent documents. The procedure for the appointment or election of the
bodies of a legal person shall be determined by the legislative acts and the
constituent documents.
2. In the instances provided for by
the legislative acts a legal person may acquire civil rights and assume civil
duties through the owner of property (founders, participants).
3. A person who by virtue of a law
or constituent documents of a legal person acts in its name must operate in the
interests of the legal person represented by him in good faith and reasonably.
He shall be obliged at the demand of the owner of property (founders,
participants) of the legal person, unless otherwise provided by the legislative
acts or contract, to compensate losses caused by him to the legal person.
Article 50. Name and Location of Legal Person
1. A legal person shall have its own
name containing an indication of its organizational legal form. The names of
non-commercial organizations and unitary enterprises, and in the instances
provided for by the legislative acts, of other commercial organizations, must
contain an indication of the character of activity of the legal person.
Inclusion of the references to the official full or shortened name of
the Republic of Belarus, words "national" and "Belarusian"
in the name of the legal person, inclusion of such name or the elements of the
national symbols in the requisites of the documents or in the advertising
materials of the legal person is allowed in accordance with the procedure
determined by the President of the Republic of Belarus.
2. The location of a legal person
shall be determined by the location of its permanently acting executive body
(an administrative and territorial unit, populated locality, and also a house,
an apartment or another dwelling, if any), and in the case of absence of the
permanently acting executive body - another body or a person entitled to act on
behalf of a legal person without authorization.
3. The name and location of a legal person shall be specified in its
constituent documents.
In the case of change of the location of a legal person, such legal
person is obliged, in the order established by the legislative acts, to send to
the registering body a respective notification, unless otherwise provided by
the legislative acts.
Article 51. Representative Offices and Branches
1. A solitary subdivision of a legal person situated outside the
location thereof which represents the interests of the legal person and
effectuates the defense thereof shall be a representative office.
2. A solitary subdivision of a legal person situated outside the
location thereof and carrying out all or part of its functions, including the
function of representative office, shall be a branch.
3. Representative offices and branches shall not be legal persons. They
shall be endowed with property by the legal person which created them and shall
operate on the basis of Regulations confirmed by it.
The property of the representative offices or branch of the legal person
is considered separately on the balance sheet of the legal person, which has
created them (separately in the inventory book of income and expenditure of
organizations and individual entrepreneurs, applying the simplified taxation
system).
The heads of representative offices and branches shall be appointed by
the legal person and operate on the basis of the power of attorney thereof.
Representative offices and branches must be specified in the constituent
documents of the legal person which has created them.
4.The legal status of representative offices and branches of the banks
and non-bank credit and financial organizations, organizational structures of
public organizations (associations) and republican state and social
associations is determined with regard to particularities established by the
legislation.
Article 511. Representative Offices of Foreign Organization
The representative office of the foreign organization is the solitary
subdivision of this organization, located on the territory of the Republic of
Belarus, carrying out the defense and representation of interests of the
foreign organization and other functions not contradicting the legislation.
Forming of the representative offices of the foreign organization, the
activity of which is aimed on overthrowing or forcible change of the
constitutional system, breach of integrity and safety of the state, propaganda
of war or violence, promotion of national, religious and racial hostility, and
of the foreign organizations, the activity of which can cause damage for the
rights and legal interests of the citizens, is prohibited.
2. The representative office of the foreign organization is considered
formed on the territory of the Republic of Belarus since the date of obtaining
the permission for its formation in accordance with the procedure established
by the legislation.
In the legislation, the restrictions on entrepreneurial and other
activities of the representative offices of the foreign organizations can be
stipulated.
3. The representative office of the foreign organization shall have the
name, containing the indication of the foreign organization, which has formed
this representative office.
Article 52. Liability of Legal Person
1. Legal persons, except for those
being financed by the owner of institutions, shall be liable for their
obligations with all of the property belonging to them.
2. A fiscal enterprise and an
institution being financed by the owner shall be liable for its obligations in
accordance with the procedure and on the conditions established by Article
113(8) and Articles 115 and 120 of this Code.
3. The founder (participant) of a
legal person or the owner of its property shall not be liable for obligations
of the legal person, and the legal person shall not be liable for the
obligations of the founder (participant) or owner, except for the instances
provided for by legislative acts or by the constituent documents of the legal
person.
If the economic insolvency (bankruptcy) of a legal person has been
caused by the owner of the property of the legal person, by the founders
(participants) or or by other persons, including the
head of the legal person, who have the right to give instructions which are
binding upon this legal person or have the possibility to determine otherwise
its actions, subsidiary liability for its obligations may be placed upon such
persons in the event of insufficiency of the property of the legal person.
Article 53. Reorganization of Legal Person
1. The reorganization of a legal
person (merging, affiliation, splitting-up, splitting-off, transformation) may
be effectuated by decision of the owner of its property (founders,
participants) or the body of the legal person authorized therefor by the
constituent documents, and in the cases provided for in the legislative acts -
by the decision of the authorized state bodies, including courts.
2. If the he owner of property
(founders, participants) of a legal person, body authorized by them, or body of
the legal person authorized to reorganize it by its constituent documents does
not effectuate the reorganization of the legal person within the period
specified in the decision of the authorized state body, the court upon the suit
of the said state body shall appoint an external administrator of the legal
person and charge him with carrying out the reorganization of this legal
person. From the time of appointment of the external administrator to him shall
pass the powers relating to managing the affairs of the legal person. The
external administrator shall act in the name of the legal person in court, draw
up the splitting balance sheet or the transfer act and transfer it for
consideration of the court together with the constituent documents of the legal
persons arising as a result of the reorganization. The confirmation by the
court of the said documents shall be the grounds for state registration of the
newly arisen legal persons.
3. In the instances established by the legislative acts the
reorganization of legal persons may be effectuated only with the consent of
authorized state bodies.
4. The legal person shall be considered to be reorganized, except for
instances of reorganization in the form of affiliation, from the time of state
registration of the legal persons which have arisen anew.
In the event of the reorganization of a legal person in the form of
affiliation thereto of another legal person, the first of them shall be
considered to be reorganized from the time of making an entry in the Unified
State Register of Legal Persons and Individual Entrepreneurs concerning the
termination of the activity of the affiliated legal person.
Article 54. Legal Succession in Event of Reorganization of Legal Persons
1. In the event of merging of legal
persons the rights and duties of each of them shall pass to the legal person
which newly arises in accordance with the act of transfer.
2. In the event of affiliation of a
legal person to another legal person, to the latter shall pass the rights and
duties of the affiliated legal person in accordance with the act of transfer.
3. In the event of splitting-up of a
legal person its rights and duties shall pass to the legal persons which newly
arise in accordance with the splitting balance sheet.
4. In the event of splitting-off
from a legal person of one or several legal persons, to each of them shall pass
the rights and duties of the reorganized legal person in accordance with the
splitting balance sheet.
5. In the event of transformation of a legal person of one
organizational and legal form into a legal person of another organizational and
legal, to the legal person which arises anew shall pass the rights and duties
of the reorganized legal person in accordance with the act of transfer.
Article 55. Act of Transfer and Splitting Balance Sheet
1. The act of transfer and splitting
balance sheet must contain provisions concerning legal succession regarding all
obligations of the reorganized legal person with respect to all creditors and debtors
thereof, including obligations being contested by the parties.
2. The act of transfer and splitting
balance sheet shall be confirmed by the owner of property (founders,
participants) of the legal person or by the body which adopted the decision concerning
reorganization of the legal persons, unless otherwise established by the
President of the Republic of Belarus.
The failure to submit with the constituent documents the act of transfer
or splitting balance sheet respectively, and also the absence therein of
provisions concerning legal succession with regard to the obligations of the
reorganized legal person, shall entail a refusal of state registration of the
legal persons which newly arose.
Article
56. Guarantees of Rights of Creditors of Legal Person in the Event of its
Reorganization
1. A legal person under
reorganization or the body that adopted the decision concerning the
reorganization of a legal person is obliged to inform in writing the creditors
of the legal person being reorganized thereof.
The creditor of the legal person being reorganized shall have the right
to demand for the termination or the performаnсе of the obligation before due time, the debtor with regard to which this
legal person is, and for compensation of losses.
3. If the splitting balance sheet does not make it possible to determine
the legal successor of the reorganized legal person, the legal persons which
newly arose shall bear joint and several liability for the obligations of the
reorganized legal person to its creditors.
Article 57. Liquidation of Legal Person
1. The liquidation of a legal person shall entail the termination
thereof without the transfer of rights and duties by way of legal succession to
other persons.
2. A legal person may be liquidated according to the decision of:
1) the owner of property (founders,
participants) or the body of the legal person authorized thereto by the
constituent documents, including in connection with the expiration of the time
period for which that legal person has been created, achievement of the
objective for which it has been created, violation by the commercial
organization of the order for forming the charter capital established by the
legislation, recognition of the state registration of the given legal person
invalid by the court;
2) the court in the event of:
failure to take decision on
liquidation in accordance with sub-clause 1 of this clause in connection with
the expiration of the time period for which that legal person has been created,
achievement of the objective for which it is created, violation by the
commercial organization of the order for forming the charter capital
established by the legislation, recognition of the state registration of the
given legal person invalid by the court;
carrying out an activity without a
proper special permit (license) or which is prohibited by legislative acts, or
with repeated or serious violations of legislative acts;
decreasing the cost of net assets of
commercial organizations for which minimum amounts of the charter capital is established
by the legislation at the end of the second and every following financial year
below the minimum amount of the charter capital established by the legislation:
violation of terms and order of the
liquidation established by the legislation;
in other cases provided for by this
Code and other legislative acts.
Upon detecting grounds for
liquidation of a legal person specified in indents two, three, five and six of
part one of this sub-clause, the authorized state bodies, within the limits of
their competence, shall apply to the court with a claim on liquidating such
legal person, unless otherwise established by the legislative acts.
Upon detecting grounds for
liquidation of a legal person specified in indent six of part one of this
sub-clause, the creditors of the legal person being liquidated are entitled to
apply to the court with a claim on liquidating such legal person;
3) other bodies in the cases
provided by legislative acts.
3. The decision of the court on liquidation of the legal person may impose
duties on carrying out the liquidation of the legal person on the owners of its
property (founders, participants) or a body authorized to liquidate the legal
person by its constituent documents.
4. A legal person which is a commercial organization or operating in the
form of a consumer cooperative, charitable or other fund shall be liquidated in
accordance with Article 61 of this Code as a consequence of its being deemed to
be insolvent (bankrupt).
If the value of the property of such a legal person is insufficient to
satisfy the demands of creditors, it may be liquidated only in accordance with
the procedure provided for by Article 61 of this Code.
The provisions on the liquidation of legal persons as a consequence of economic
insolvency (bankruptcy) shall not extend to fiscal enterprises.
5. In the instances established by the legislation the liquidation of
legal persons may be carried out only with consent of authorized state bodies.
Article
58. Duties of Person Which Adopted Decision on Liquidation of the Legal Person
1. The owner of property (founders, participants) of a legal person or
the body authorized by the constituent documents which adopted the decision
about liquidation of the legal person shall appoint the liquidation commission
(liquidator), distribute duties between the chairperson and members of the
liquidation commission (in the even of appointment of
the liquidation commission), establish the order and time limits of the
liquidation, unless otherwise established by legislative acts. Legislative acts
may establish maximum (maximum permissible) time limits for the liquidation of
a legal person.
2. When the legal person being
liquidated has indebtedness before the creditors, the chairperson of the
liquidation commission (liquidator) shall be a person that complies with
requirements established by the legislation and not being the owner of property
(founders, participants), head of this legal person.
3. From the day of the appointment
of the liquidation commission (liquidator) the powers relating to the
management of the affairs of the legal person shall pass to it. The liquidation
commission (liquidator) shall act in the court in the name of the legal person
being liquidated.
Article 59. Procedure for Liquidation of Legal Person
l. The chairperson of the liquidation commission (liquidator) is obliged
to notify within ten working days after the date of adopting the decision about
the liquidation of the legal person, in writing, the registering body for inclusion
in the Unified State Register of Legal persons and Individual Entrepreneurs of
the data about the fact that the legal person is in the process of being
liquidated.
In the cases and order established by the legislation, the data about
the fact that the legal person is in the process of being liquidated, about the
order and time limits for presenting demands by its creditors shall placed in the global computer network Internet with
subsequent publication in printed mass media. In this instance the period
presenting demands by the creditors of the legal person may not be less than
two months from the date of placement of the data about the fact that the legal
person is in the process of being liquidated in the global computer network
Internet, unless another moment for beginning of the running of this period is
established by legislative acts.
The liquidation commission (liquidator) shall take all possible measures
to elicit creditors and obtain accounts receivable, and also inform creditors
in writing about the liquidation of the legal person.
Performance of operations on accounts of the legal person, its executing
transactions not connected with the liquidation are prohibited.
2. After expiration of the term for submission of demands by creditors,
the liquidation commission (liquidator) shall draw up the intermediate
liquidation balance sheet, which shall contain information concerning the
composition of the property of the legal person being liquidated, a list of
demands submitted by creditors, and also the results of consideration of these
demands.
The intermediate liquidation balance sheet shall be confirmed by the
owner of property (founders, participants) of the legal person or body which
adopted the decision concerning the liquidation of the legal person, unless
otherwise provided by the legislative acts.
3. If the monetary means of legal
person being liquidated (except for institutions) are insufficient to satisfy
the demands of creditors, the liquidation commission (liquidator) shall
effectuate the sale of the property of the legal person at public sales in
accordance with the procedure established by the acts of legislation.
4. The payment of monetary amounts
to creditors of a legal person being liquidated shall be by the liquidation
commission (liquidator) in the order of priority established by Article 60 of
this Code and in accordance with the intermediate liquidation balance sheet,
starting from the date of its confirmation, except for creditors of the fourth
priority, payment to whom shall be made upon the expiry of a month from the
date of confirmation of the intermediate liquidation balance sheet.
5. After completion of the
settlement of accounts with creditors, the liquidation commission (liquidator)
shall draw up the liquidation balance sheet, which shall be confirmed by the
owner of property (founders, participants) of the legal person or by the body
which adopted the decision concerning the liquidation of the legal person,
unless otherwise provided by the legislative acts.
6. In the event that the property of a fiscal enterprise being
liquidated, or the monetary means of the institution being liquidated are
insufficient for satisfaction of the demands of creditors, the latter shall
have the right to bring suit in a court to satisfy the remaining part of the
demands at the expense of the owner of the property of this enterprise or
institution.
7. The property of legal person,
remaining after the satisfaction of the demands of creditors, shall be
transferred to the owner of property (founders, participants) thereof, having
rights to a thing in this property or rights of obligations with respect to
this legal person, unless otherwise provided by the legislative acts or the
constituent documents of the legal person.
8. The liquidation of a legal person
shall be considered to be completed and the legal person to be liquidated from
the date of adopting the decision about the entry into the Unified State
Register of Legal Persons and Individual Entrepreneurs by the registering body
of the record about the exclusion thereof from that register.
Article 60. Satisfaction of Demands of Creditors
l. When liquidating a legal person the demands of its creditors shall be
satisfied in accordance with the following priority:
1) first, the demands of citizens to whom the legal person being
liquidated bears liability for the causing of harm to life or health by means
of capitalizing the respective time payments shall be satisfied;
2) second, accounts shall be settled with regard to the payment of severance
benefits, the payment of remuneration under authors' contracts, and the payment
for labor with persons who work under labor contracts and/or civil-law
contracts;
3) third, the indebtedness on payments to the budget and state
off-budget funds shall be paid, as well as demands of creditors on obligations
secured by the pledge of property of the legal person being liquidated shall be
satisfied at the expense and within the limits of funds received from the
realization of pledged property;
4) fourth, payments to other creditors of a legal person being
liquidated shall be carried out.
The priority of satisfaction of demands of creditors in the course of
liquidation of banks and non-bank credit and financial institutions and
insurance organizations is determined taking in account specific features
stipulated by the legislation.
Priority of the satisfaction of demands of creditors at liquidation of a
legal person due to its economic insolvency (bankruptcy) is determined in the
order established by the legislation on economic insolvency (bankruptcy).
2. The demands of each priority shall be satisfied after the full
satisfaction of demands of the preceding priority.
3. In the event the property of a legal person being liquidated is
insufficient, it shall be distributed among the creditors of the respective
priority in proportion to the amounts of demands subject to satisfaction,
unless otherwise established by the legislative acts.
4. In the event of the refusal of the liquidation commission
(liquidator) to satisfy the demands of a creditor or the evasion of the
consideration thereof, a creditor shall have the right before confirmation of
the liquidation balance sheet of the legal person to bring suit against the
legal person being liquidated in court. By decision of the court the demands of
the creditor may be satisfied at the expense of the residual property of the
legal person being liquidated.
5. Demands of a creditor submitted after the expiry of the term
established by the liquidation commission (liquidator) for the submission
thereof shall be satisfied from the property of the legal person being
liquidated remaining after the satisfaction of the demands of creditors
submitted within the specified term.
6. Demands of creditors not satisfied because of the insufficiency of
the property of the legal person being liquidated shall be considered to be
paid, except for the case provided for in the Article 62 of this Code. Demands
of creditors not recognized by the liquidation commission (liquidator), if the
creditor has not brought suit in court, and also demands, the satisfaction of
which has been refused to a creditor by decision of a court, also shall be
considered to be paid.
Article 61. Economic Insolvency (Bankruptcy) of Legal Person
1. A legal person which is a commercial organization, except for a
fiscal enterprise, and also a legal person operating in the form of a consumer
cooperative or charitable or other fund, may, by decision of a court, be deemed
to be insolvent (bankrupt) if it cannot satisfy the demands of creditors.
The deeming of a legal person to be bankrupt by a court shall entail its
sanation, or, in case of impossibility or absence of
grounds for continuation of its activity, liquidation.
In case of declaring the legal person to be economically insolvent (the
bankrupt), the legal person is subject to the sanation,
or, in case of impossibility or absence of grounds for continuation of the
activity, the legal person is subject to the liquidation.
2. The grounds for deeming a legal
person to be bankrupt by a court, or declaring its own bankruptcy, and also the
procedure for its sanation or liquidation shall be
established by the legislation on economic insolvency (bankruptcy).
Article 62. Levying the Execution upon the Property Belonging to the
Legal Person after the Liquidation of this Person
If, after liquidation of the legal person, it would be proved that this
legal person, with the purposes of avoidance of the liability to the creditors,
has transmitted to other person or otherwise has intentionally hidden at least
part of the property, the creditors, which have not obtained complete
satisfaction of the claims within the limits of liquidation proceedings, have
the right to levy execution upon this property for the non-paid part of the
debt. In this case, the provisions of Article 284 of this Code are accordingly
applied. The person, to which the property was transferred, is considered to be
unfair, if this person was informed or should have been informed on the
intention of the legal person to hide the property from the creditors.
§ 2. Economic Partnerships and Companies
1. General Provisions
Article 63. Basic Provisions on Economic Partnerships and Companies
1. Commercial organizations with a charter capital divided into participatory
shares (stocks) of the founders (participants) shall be deemed to be economic
partnerships and companies. The property created at the expense of
contributions of the founders (participants), and also produced and acquired by
the economic partnership or company in the process of its activity, shall
belong to it by right of ownership.
Economic company may be founded by one person or may consist of one
participant. Specific features of legal status, creation, activity,
reorganization and liquidation of the economic company consisting of one
participant shall be determined by the legislation on economic companies.
2. Economic partnerships may be
created in the form of a general partnership and special partnership.
3. Economic companies may be created
in the form of a joint-stock company, limited liability company, or additional
liability company.
4. Individual entrepreneurs and/or
commercial organizations may be participants of general partnerships and may be
general partners in special partnerships.
Citizens and/or legal persons may be participants of economic companies
and contributors to special partnerships.
State bodies and bodies of local administration or self-government shall
not have the right to act as participants of economic companies and
contributors to special partnerships unless otherwise established by the
legislation.
Unitary enterprises, state associations and institutions financed by
owners may be participants of economic companies and contributors to special
partnerships with the authorization of the owner (body authorized by the owner)
unless otherwise established by the legislative acts.
The participation of individual categories of citizens in economic
partnerships and companies may be prohibited or limited by the legislation.
5. Economic partnerships and
companies may be the founders (participants) of other economic partnerships and
companies except for instances provided for by this Code and other acts of
legislation.
6. Evaluation of the non-monetary
contribution of a participant of an economic company shall be made by agreement
between the founders (participants) of the company and in the cases provided
for in the legislation shall be subject to expert verification of reliability
of such evaluation.
7. [Excluded]
Article 64. Rights and Duties of Participants of Economic Partnership or
Company
1. The participants of an economic partnership or company shall have the
right to:
1) participate in the management of the affairs of the partnership or
company, except for instances provided for by Article 83(2) of this Code and by
the legislative acts;
2) receive information concerning the activity of the partnership or
company and familiarize themselves with its documentation in accordance with
the procedure established by the constituent documents;
3) take part in the distribution of profit;
4) receive in the event of the liquidation of the partnership or company
the part of the property remaining after the settlement of accounts with
creditors or the value thereof.
The participants of an economic partnership or company also may have
other rights provided for by the legislation on economic partnerships and
companies, or constituent documents of a partnership or company.
2. In case of withdrawal (expulsion) of the participant from the economic
partnership or company (with the exception of the participant of the join-stock
company), the cost of the part of net assets of the company, corresponding to
the share of this participant in the charter capital (unless otherwise is
provided by the constituent contract of the economic partnership) and the part
of profit received by the economic partnership or company from the moment of
withdrawal of that participant to the moment of settlement, corresponding to
the share of the participant, shall be paid to the participant. Subject to the
agreement of the withdrawing participant (being expulsed) with the remained
participants of the economic partnership or company, instead of payment of the
value of net assets, the property in kind can be delivered for the participant.
The part of property of the economic partnership or company, which is
due to the withdrawing participant (being expulsed), or the cost of this part
is determined on the basis of the balance sheet (inventory book of income and
expenditure of organizations and individual entrepreneurs, applying the
simplified taxation system) drawn up at the date of withdrawal (expulsion); the
part of profit due to withdrawing (expulsed) participant is determined at the
date of settlement.
Payment of the cost of property or delivering the property in kind to
the withdrawing (expulsed) participant of the limited liability company is
carried out after the expiration of the fiscal year and after the approval of
the annual report for the year of withdrawal (expulsion) from the company,
within twelve months from the date of submitting the application for withdrawal
or making the decision on expulsion, unless otherwise is provided by the
constituent documents.
3. The participants of an economic partnership or company shall be
obliged to:
1) make contributions in accordance with the procedure and amounts, by
the means, and within the periods provided for by the legislative acts and
constituent documents;
2) not divulge confidential information concerning the activity of the
partnership or company;
3) perform another duties provided by the legislative acts.
The participants of an economic partnership or company may also bear
other duties provided for by its constituent documents.
Article 65. Transformation of Economic Partnerships and Companies
1. The economic company of one
form may be transformed in the economic company of another form, to the
economic partnership or to the production co-operative in cases and in the
order established by legislative acts, and also in the unitary enterprise in
the event when one participant has remained in the company being transformed.
2. In the event of the transformation of a partnership into a
company, each full partner who has become a participant (stockholder) of the
company shall for two years bear subsidiary liability with all of its property
for obligations which passed to the company from the partnership. The
alienation by a former partner of participatory shares (stocks) belonging to it
shall not relieve it from such liability. The rules set out in this clause
shall apply respectively when transforming a partnership into a production
cooperative or into unitary enterprise.
2. General Partnership
Article 66. Basic Provisions on General Partnership
1. A partnership whose participants (general partners) in accordance
with a contract concluded between them engage in entrepreneurial activity in
the name of the partnership and, jointly and severally with each other, bear
subsidiary liability for its obligations with all of the property belonging to
them, shall be deemed to be a general partnership.
2. A person may be a participant of
only one general partnership.
3. The firm name of a general
partnership must contain either the names of all its participants, and the
words "general partnership", or the name of one or several
participants with the addition of the words "and company," and the
words "general partnership".
Article 67. constituent contract of General Partnership
l. A general partnership shall be created and operate on the basis of
the constituent contract. The constituent contract shall be signed by all of
its participants.
2. The constituent contract of a general partnership must contain, in addition
to the information specified in Article 48(2) of this Code, the conditions
concerning the amount and composition of the charter capital of the
partnership; the amount and procedure for changing the participatory shares of
each of the participants in the charter capital; the amount, composition,
periods, and procedure for making contributions by them; the liability of the
participants for a violation of the duties relating to making contributions.
Article 68. Management in General Partnership
1. The management of the activity of
a general partnership shall be effectuated by the common consent of all the
participants. Instances when a decision is adopted by a majority vote of the
participants may be provided for by the constituent contract of the partnership.
2. Each participant of a general
partnership shall have one vote unless another procedure for determining the
number of votes of its participants has been provided for by the constituent
contract.
3. Each participant of a
partnership, irrespective of whether he is authorized to conduct the affairs of
the partnership, shall have the right to familiarize himself with all of the
documentation relating to conducting the affairs. A waiver of this right or
limitation thereof, including those by agreement of the participants of the
partnership, shall be void.
Article 69. Conducting the Affairs of General Partnership
1. Each participant of a general partnership shall have the right to
operate in the name of the partnership unless it has been established by the
constituent contract that all of its participants conduct the affairs jointly,
or the conducting of affairs has been entrusted by them to individual
participants.
In the event of the joint conducting of the affairs of the partnership
by its participants, the consent of all participants of the partnership shall
be required in order to conclude each transaction.
If the conduct of the affairs of the partnership is entrusted by its
participants to one or several of them, the remaining participants must, in
order to conclude transactions in the name of the partnership, have a power of
attorney from the participant(s) to whom the conducting of the affairs of the
partnership has been entrusted.
In relations with third persons the partnership shall not have the right
to refer to provisions of the constituent contract limiting the powers of the
participants of the partnership, except for instances when the partnership
proves that the third person at the time of concluding the transaction knew or
knowingly should have known about the lack of the participant of the
partnership's right to operate in the name of the partnership.
2. The powers to conduct the affairs of the partnership granted to one
or several participants may be terminated by a court upon the demand of one or
several other participants of the partnership when there are serious grounds,
in particular, as a consequence of a flagrant violation by an authorized
person(s) of his duties or of discovering that he is not capable of reasonably
conducting affairs. Necessary changes shall be made in the constituent contract
of the partnership on the basis of a judicial decision.
Article 70. Duties of Participant of General Partnership
l. The participant of a general partnership shall be obliged to
participate in its activity in accordance with the conditions of the
constituent contract.
2. [Excluded]
3. The participant of a general partnership shall not have the right
without the consent of the remaining participants to conclude in his name and
in his interests or in the interests of third persons a transaction of the same
nature as that which comprises the subject of activity of the partnership.
In the event of a violation of this rule, the partnership shall have the
right at its discretion to demand from such participant either compensation for
losses caused to the partnership, or the transfer to the partnership of all
advantage acquired under such transactions.
Article 71. Distribution of Profit and Losses of General Partnership
1. Profit and losses of a general
partnership shall be distributed between the participants thereof in proportion
to their participatory shares in the charter capital unless otherwise provided
by the constituent contract or other agreement of the participants. An
agreement concerning the exclusion of any of the participants of the
partnership from participation in the profits or in the losses shall not be
permitted.
2. If as a consequence of losses
incurred by the partnership, the value of its net assets becomes less than the
amount of its charter capital, the profit received by the partnership shall not
be distributed among the participants so long as the value of the net assets
does not exceed the amount of charter capital.
Article 72. Liability of Participants of General Partnership for its
Obligations
1. The participants of a partnership shall jointly and severally bear
subsidiary liability with all of their property for the obligations of the
partnership.
2. The participant of a general partnership who is not a founder thereof
shall be liable equally with the other participants also for obligations which
arose before his joining the partnership.
A participant who has withdrawn from the partnership shall be liable for
the obligations of the partnership which arose before the time of his
withdrawal equally with the remaining participants for two years from the date
of confirmation of the report on the activity of the partnership for the year
in which he withdrew from the partnership.
3. An agreement of the participants of the partnership concerning the
limitation or elimination of the liability provided for in this Article shall
be void.
Article 73. Change of Composition of Participants of General Partnership
1. Changing the composition of participants of the general partnership
does not mean liquidation of the general partnership, unless otherwise is
stipulated in the constituent contract of the general partnership.
2. Changing the composition of participants of the general partnership
can happen as a result of:
1) withdrawal of the participant;
2) expulsion of the participant;
3) concession of the participant’s share to another person;
4) joining a new participant;
5) deeming the participant to be a bankrupt;
6) death of the participant, declaring the participant deceased, deeming
the participant to be missing, deeming lack of active legal capacity or
limitation of active legal capacity, or liquidation of the participant being a
legal person.
3. In case of leaving of one of the participants from the general
partnership, the shares of the remained participants in the charter capital of
the general partnership are changed proportionally to the amount of
contributions of these participants to the charter capital, unless otherwise is
provided by the constituent contract or another agreement of the participants.
Article 74. Withdrawal of Participant from General Partnership
1. The participant of a general partnership, founded without
specification of the term of operation, shall have the right to withdraw
therefrom, having declared his refusal to participate in the partnership not
less than six months before the actual withdrawal from the partnership.
The pre-term refusal to participate in the general partnership, founded
for a specific term, is allowed in cases specified in the constituent contract,
or, if there are no such provisions in the constituent contract, only subject
to justifiable reasons. In case of dispute, the matter on withdrawal is
resolved judicially.
2. Any agreement between the participants of a partnership to waive the
right to withdraw from the partnership shall be void.
Article 75. Expulsion of Participant from the General Partnership
1. In case of non-fulfilling or improper fulfilling the duties by the
participant of the general partnership, the participants of the general
partnership have the right to appeal to the court for expulsion of such
participant from the general partnership.
2. The expulsion of the participant from the general partnership takes
place also in case of levying the execution upon the whole share of the
participant in the general partnership. In such a case, the judicial decision
on expulsion is not required.
Article 76. Concession of Participatory Share in General Partnership to
Another Person
1. The participant of the general partnership has the right, subject to
consent of all other participants, to transfer his share in the charter capital
or part thereof to another participant of the general partnership participant
or to the third party.
In such a case, other participants of the general partnership have the
right of priority purchase of this share (part thereof) over other persons in
accordance with the procedure determined by the constituent contract.
2. In case of transfer of the participatory share (part thereof) to
another person, the liabilities of the participant transferring the
participatory share (part thereof) are transferred, in full or in appropriate
part, to the before-mentioned another person.
Transferring the participatory share in full by the participant of the
partnership to another person means termination of participation in the
partnership.
Article 77. Joining New Participant to General Partnership
The person has the right to become the participant of the general
partnership, subject to consent of other participants of the general
partnership, and subject to making a contribution to the charter capital of the
general partnership in accordance with the constituent contract of the general
partnership.
Article 78. Changing the Composition of Participants of the General
Partnership in Consequence of the Participant’s Death, Declaring the
Participant to be Deceased, Deeming the Participant to be Missing, Lack of
Active Legal Capacity or Limitation of Active Legal Capacity, or Liquidation of
the Participant Being a Legal Person
1. In case of the participant’s death or declaring the participant to be
deceased, the heir of the participant has the right (but not obliged) to join
the general partnership, subject to consent of other participants.
Settlements with the heir, not joined the general partnership, are
carried out in accordance with Article 64(2) of this Code.
2. In case of liquidation of the legal person, being the participant of
the general partnership, or deeming the participant to be missing or deeming
lack of active legal capacity, or limitation of active legal capacity of the
participant, the participatory share of such participant in the general
partnership is separated in accordance with Article 64(2) of this Code.
Article 79. Levying Execution on Participatory Share of Participant in
Charter Capital of General Partnership
Levying execution on the participatory share of a participant in the
charter capital of a general partnership regarding the own debts of the
participant shall be permitted only when his other property is insufficient to
cover the debts. Creditors of such a participant shall have the right to demand
of the general partnership the apportionment of the part of the property of the
partnership corresponding to the participatory share of the debtor in the
charter capital for the purpose of levying execution on this property.
The part of the property of the partnership subject to apportionment or the
value thereof shall be determined according to the accounting balance sheet
(the inventory book of income and expenditure of organizations and individual
entrepreneurs, applying the simplified taxation system) drawn up at the time of
the creditors submitting the demand concerning the apportionment.
Article 80. Liquidation of General Partnership
A general partnership shall be liquidated on the grounds specified in
Article 57 of this Code, and also when a sole participant remains in the
partnership. Such participant shall have the right within three months from the
time when he became the sole participant of the partnership to transform such
partnership into a unitary enterprise in accordance with the procedure
established by this Code.
3. Special Partnership
Article 81. Basic Provisions on Special Partnership
1. A special partnership shall be deemed to be a partnership in which
together with participants carrying out entrepreneurial activity in the name of
the partnership and liable for the obligations of the partnership with their
property (general partners) there are one or several participants
(contributors, special partners) who shall bear the risk of losses connected
with the activity of the partnership within the limits of the amounts of the contributions
made by them and shall not take part in the effectuation by the partnership of
entrepreneurial activity.
2. The status of general partners
participating in a special partnership and their liability for the obligations
of the partnership shall be determined by the legislation on the participants
of a general partnership.
3. A person may be a full partner
only in one special partnership.
A participant of a general partnership may not be a full partner in a
special partnership.
A full partner in a special partnership may not be a participant of a
general partnership.
4. The firm name of a special partnership must contain either the
name(s) of all of the general partners and the words "special
partnership", or the name of at least one full partner with the addition
of the words "and company" and the words "special
partnership". If the name of a contributor is included in the firm name of
a special partnership, subject to the consent of this contributor, such
contributor becomes a full partner.
5. The rules of this Code on the general partnership shall apply to a
special partnership insofar as this is not contrary to the rules of this Code
on the special partnership.
Article 82. The constituent contract of Special Partnership
1. A special partnership shall be
created and shall operate on the basis of the constituent contract. The
constituent contract shall be signed by all of the general partners.
The constituent contract of a special partnership must contain, besides
the information specified in Article 48(2) of this Code, the conditions
concerning the amount and composition of the charter capital of the
partnership; the amount and procedure for changing the participatory shares of
each of the general partners in the charter capital; the amount, composition,
periods, and procedure for the making of contributions by them, their liability
for a violation of the duties relating to the making of contributions; the
aggregate amount of the contributions to be made by the contributors.
Article
83. Management in Special Partnership and Conducting its Affairs
1. The management of the activity of a special partnership shall be
effectuated by the general partners. The procedure for the management and
conducting of the affairs of such partnership by its general partners shall be
established by them according to the legislation on the general partnership.
2. The contributors shall not have the right to participate in the
management and conducting of the affairs of a special partnership, nor to act
in its name, other than under a power of attorney. They shall not have the
right to contest the actions of the general partners relating to the management
and the conducting of the affairs of the partnership.
Article 84. Rights and Duties of Contributor to Special Partnership
1. The contributor to a special partnership shall be obliged to make a
contribution to the charter capital. Making of a contribution shall be
certified by a certificate of participation issued to the contributor by the
partnership.
2. The contributor to a special partnership shall have the right to:
1) receive part of the profit of the partnership due for his
participatory share in the charter capital in accordance with the procedure
provided for by the constituent contract;
2) familiarize himself with the annual reports and annual accounting
(financial) statements (the inventory book of income and expenditure of
organizations and individual entrepreneurs, applying the simplified taxation
system) of the partnership;
3) at the end of the financial year withdraw from the partnership and
receive his contribution in accordance with the procedure provided for by the
constituent contract;
4) transfer his participatory share in the charter capital or part
thereof to another contributor or to a third person. The contributors shall
enjoy a preferential right of purchase against third persons of the
participatory share (part thereof) according to the conditions and procedure
provided for by Article 92(2) of this Code. The transfer by the contributor of
his entire participatory share to another person shall terminate his
participation in the partnership.
Other rights of a contributor also may be provided for by the
constituent contract of a special partnership.
Article 85. Liquidation of Special Partnership
1. A special partnership shall be liquidated in the event of the
withdrawal of all the contributors who participated therein. However, the
general partners shall have the right instead of liquidation to transform the
special partnership into a general partnership, or into the unitary enterprise,
when only one participant remains in the partnership.
A special partnership shall be liquidated also on the grounds of
liquidation of a general partnership (Article 80). However, a special
partnership shall be preserved if at least one full partner and one contributor
remain therein.
2. In the event of the liquidation of a special partnership, including
in the event of economic insolvency (bankruptcy), contributors shall have the
preferential right before the general partners to receive contributions from
the property of the partnership remaining after the satisfaction of the demands
of its creditors.
The property of the partnership remaining thereafter shall be
distributed between the general partners and the contributors in proportion to
their participatory shares in the charter capital of the partnership unless
another procedure has been established by the constituent contract or by
agreement of the general partners and the contributors.
4. Limited Liability Company
Article 86. Basic Provisions on Limited Liability Company
1. A limited liability company shall be deemed to be a company, the
charter capital of which is divided into participatory shares of amounts
determined by the charter. The participants of a limited liability company
shall not be liable for its obligations and shall bear the risk of losses
connected with the activity of the company within the limits of the value of
the contributions made by them.
The participants of a company who have not made contributions in full
shall bear joint and several liability for its obligations within the limits of
the value of the unpaid portion of the contribution of each of the
participants.
2. The firm name of a limited liability company must contain the name of
the company, and also the words "limited liability company".
3. The legal status of a limited liability company and the rights and
duties of its participants shall be determined by the legislation on limited
liability companies.
Article 87. Participants of Limited Liability Company
1. The number of participants of a limited liability company must not
exceed the limit established by the legislative acts. Otherwise it shall be
subject to reorganization within a year, and upon the expiry of this period, it
shall be subject to liquidation in a judicial proceeding if the number of its
participants is not reduced to up to the limit established by the legislative
acts.
2. A limited liability company may be founded by one person or may
consist of one participant, including in case of creation as a result of
reorganization of a legal person.
Article 88. Constituent Documents of Limited Liability Company
1. The constituent documents of a limited liability company shall be the
charter confirmed by its founders.
2. The charter of a limited liability company must contain, in addition
to the information specified in Article 48(2) of this Code, conditions
concerning the amount of the charter capital of the company; concerning the amount
of the participatory shares of each participant; the amount, composition of
contributions of the participants; the composition and competence of the
management bodies of the company, and the procedure for the adoption of
decisions by them, including on questions with regard to which decisions shall
be adopted unanimously or by a qualified majority of votes, and also other
information provided for by the legislation on limited liability companies.
Article 89. Charter Capital of Limited Liability Company
1. The charter capital of a limited liability company shall be comprised
of the value of the contributions of its participants.
The charter capital shall determine the minimum amount of the property
of the company guaranteeing the interests of its creditors.
2 It is not allowed to exempt the founder (participant) of the limited
liability company from the duty to make a contribution to the charter capital
of the company. By a decision of the general meeting of participants of the
limited liability company, adopted by all participants unanimously,
participants and/or creditors of that company, on account of their making
additional contributions, are entitled to set off their monetary claims toward
that company.
3. [Excluded]
4. [Excluded]
5. Reduction of the charter capital of a limited liability company shall
be permitted after informing all of its creditors. The latter shall have the
right in this event to demand the termination or performance, before due time,
of the respective obligations of the company and the compensation of losses to
them.
6. [Excluded]
Article 90. Management in Limited Liability Company
1. The supreme body of the management of a limited liability company
shall be the general meeting of its participants.
An executive body (collegial and/or one-man) carrying out the current
direction of its activity and accountable to the general meeting of its
participants shall be created in a limited liability company. A one-man
management body of the company also may be elected not from among its participants.
In the limited liability company may be created, by the decision of its
founders (participants) in accordance with the charter, board of directors
(supervisory board).
2. The competence of the management bodies of the company, and also the
procedure for the adoption of decisions by them and acting in the name of the
company, shall be determined in accordance with the legislation on limited
liability companies and by the charter of the company.
3. There shall be relegated to the exclusive competence of the general
meeting of participants of a limited liability company:
1) change of the charter of the company, change of the amount of its
charter capital;
2) formation of executive bodies of the company and termination of their
powers before time;
3) confirmation of the annual reports and annual accounting (financial)
statements (data of the inventory book of income and expenditure of
organizations and individual entrepreneurs, applying the simplified taxation
system) of the company and distribution of its profits and losses, upon
availability of and with regard to the opinion of the inspecting commission
(inspector), and in the instances established by the legislation – the auditing
report ;
4) decision concerning the reorganization or liquidation of the company;
5) election of the audit commission (the auditor) of the company.
Deciding of other questions may be relegated also by the legislation on
limited liability companies and the statute of the limited liability company to
the exclusive competence of the general meeting.
Questions relegated to the exclusive competence of the general meeting
of participants of the company may not be transferred by it for decision of the
executive body of the company.
4. In order to hold audit of the accounting (financial) reports (data of
the inventory book of income and expenditure of organizations and individual
entrepreneurs, applying the simplified taxation system) of the limited
liability company, to render other auditing services, including in relation to
affiliates and representative offices of the limited liability company, it is
entitled, in in the instances and in the order established by the legislative
act is obliged) to engage an audit organization, auditor carrying out activity
as an individual (hereinafter – auditor – individual entrepreneur). The audit
of the accounting (financial) statements of the company (data of the inventory
book of income and expenditure of organizations and individual entrepreneurs,
applying the simplified taxation system) of the company may also be carried out
upon a demand of any of its participants.
The procedure for conducting the audit of the activity of the company
shall be determined by the legislation and by the charter of the company.
5. Publication by the company of annual accounting (financial)
statements shall be carried out in the instances provided for by the
legislation.
Article
91. Reorganization and Liquidation of Limited Liability Company
1. A limited liability company may be voluntarily reorganized or
liquidated by the unanimous decision of its participants.
Other grounds for the reorganization and liquidation of the company, and
also the procedure for its reorganization and liquidation, shall be determined
by the legislative acts.
2. A limited liability company may transform itself into a joint-stock
company, additional liability company, economic partnership, production
cooperative or unitary enterprise.
Article 92
Transfer of Participatory Share in Charter Capital of Limited Liability Company
to Another Person
1. The participant of the limited liability company is entitled to sell
or otherwise alienate the stake (part of the stake) in the statutory fund of
the company to one or several participants of that company. The statute of the
limited liability company may provide for a necessity of obtaining the consent
of other participants of that company for such alienation and also for the
order of obtaining such a consent. A participant of the limited liability company
is entitled to sell or otherwise alienate the stake (part of the stake) in the
statutory fund of the company to the company itself. Alienation by the sole
participant of a limited liability company of his stake in the statutory fund
of the company to the company itself is not allowed.
2. The alienation by the participant of a company of his participatory
share (part of the share) to third persons shall be permitted unless otherwise
provided by the legislative acts or the charter of the company.
The participants of the company shall enjoy a preferential right to
purchase the participatory share of the participant (part of the share) in
proportion to the amounts of their participatory shares unless the charter of
the company has provided a different procedure for exercising this right, or
unless otherwise provided for in laws and in the acts of the President of the
Republic of Belarus. If the participants of the company refuse their
preferential right or do not take advantage of their preferential right within
a time limit determined by the charter of the company, but not more than thirty
days from the day of sending by the participant the notification about its
sale, the participatory share (part of the share) of the participant may be
alienated to the company itself. If the participants of the company do not take
advantage of their preferential right or the company itself does not take
advantage of the right to buy the participatory share (part of the share) of
the participant, the participatory share (part of the share) of the participant
may be alienated to a third person.
3. If in accordance with the charter
of a limited liability company the alienation of the participatory share of a
participant (part of the share) to third persons is impossible, and the other
participants of the company refuse to purchase it, the company shall be obliged
to pay the participant its actual value or to issue the property in kind to him
which corresponds to such value.
4. The participatory share of the
participant of a limited liability company may be alienated until the payment
thereof in full only in that part which has been already paid up.
5. In the event of the acquisition
of the participatory share of a participant (part of the share) by the limited
liability company itself, it shall be obliged either to distribute the
participatory share which it bought out for it own
funds among other participants in proportion to their shares or to realize it
to the other participants or to third persons within periods and in accordance
with the procedure provided for by the legislation on limited liability
companies and by the charter of the company, or to reduce its charter capital
in accordance with Article 89 (5) of this Code.
6. The participatory shares in the charter capital of a limited
liability company shall pass to the heirs of citizens and to the legal
successors of legal persons who are participants of the company unless the
constituent documents of the company have provided that such transfer shall be
permitted only with the consent of the other participants of the company. A
refusal to consent to the transfer of a participator share shall entail the
duty of the company to pay to the heirs (legal successors) of that participant
its real value or to issue property in kind to them for such value in
accordance with the procedure and on the conditions provided for by the
legislation on limited liability companies and the constituent documents of the
company.
Article
93. Withdrawal of Participant of Limited Liability Company from the Company
A participant of a limited liability company shall have the right at any
time to withdraw from the company irrespective of the consent of its other
participants.
Withdrawal of participants of the limited liability company from the
company as a result of which no participant remains in the company, including
withdrawal of the sole participant of the limited liability company from the
company, is not allowed.
5. Additional Liability Company
Article 94. Basic Provisions on Additional Liability Company
1. An additional liability company
shall be deemed to be a company, whose charter capital has been divided into
participatory shares of the amounts determined by the charter. The participants
of such a company shall bear subsidiary liability jointly and severally for its
obligations with their property within the limits, defined by the constituent
documents of the company, but not less than within the amount, established by
the legislative acts. In the event of the economic insolvency (bankruptcy) of
one of the participants, his liability for the obligations of the company shall
be distributed among the remaining participants in proportion to their
contributions unless another procedure for the distribution of liability has
been provided for by the constituent documents of the company.
2. The firm name of an additional liability company must contain the
name of the company and the words "additional liability company".
3. The rules of this Code on the limited liability company shall apply
to the additional liability company insofar the legislative acts do not provide
otherwise.
Article 95. Change of Amount of Additional Liability
The additional liability company has the right, subject to the notification
of creditors, to reduce the amount of additional liability of the participants
of the company (however, as a result of such reduction, the amount of
additional liability of the participants should not become less than the amount
established by the legislative acts), or to increase the amount of additional
liability of the company participants.
The creditors of the additional liability company have the right, in
case of reduction of the size of additional liability of participants of the
company, to demand for the termination or the performаnсе of the respective obligations of the company before due time, and for
the compensation of losses.
6. Joint-Stock Company
Article 96. Basic Provisions on Joint-Stock Company
1. A joint-stock company shall be deemed to be a company whose charter
capital has been divided into a determined number of stocks having equal par
value. The participants of a joint-stock company (stockholders) shall not be
liable for its obligations and shall bear the risk of losses connected with the
activity of the company within the limits of the value of the stocks belonging
to them.
Stockholders who have not fully paid up stocks shall bear joint and
several liability for the obligations of the joint-stock company within the
limits of the unpaid portion of the value of the stocks belonging to them.
2. The firm name of a joint-stock
company must contain its name and an indication that the company is a
joint-stock company.
3. The legal status of a joint-stock
company and the rights and duties of the stockholders shall be determined in
accordance with the legislation on joint-stock companies.
Article 97. Open and Closed Joint-Stock Companies
1. A joint-stock company the stocks of which may be placed and
circulated among a non-limited set of persons is an open joint-stock company.
Such a joint-stock company is entitled to conduct an open subscription for
stocks issued by it and a free sale of stocks of an additional issue on the
conditions established by the legislation on securities, and in cases of
placing of stocks of an additional issue at the expense of own capital of that
company and/or means of its stockholders, and also in other cases specified in
the legislative acts - closed placement of stocks of an additional issue.
An open joint-stock company is obliged to disclose information about the
joint-stock company in the volume and the order determined by the legislation
on securities.
2. The joint-stock company the stocks of which are placed only among
stockholders and/or a limited set of persons determined in accordance with the
legislation on joint-stock companies is a closed joint- stock company. Closed
joint-stock company has the right to carry out only closed (among limited
number of persons) placing of stocks of an additional issue.
3. The statute of a closed joint-stock company may provide for the
establishment of a limit on the number of shareholders. In case of exceeding
the number of shareholders of a closed joint-stock company provided for by the
statute of that company, the closed joint-stock company is subject to
reorganization or the type of joint-stock company is subject to change within
one year, and after expiration of that period, the closed joint-stock company
is subject to liquidation in court, if the number of participants does not
decrease to the limit established by the statute of the closed joint-stock
company.
4. A closed joint-stock company may, and in the instances provided for
by the legislation is obliged to, disclose information about the joint-stock
company in the volume and the order determined by the legislation on
securities.
5. The statute of the closed joint-stock company may be provide that
shareholders of the closed joint-stock company have pre-emptive right on
purchasing shares being sold by other shareholders of the company. The statute
also may provide that the company itself is entitled to purchase the shares
unclaimed by shareholders at the price agreed with their holder and/or to
propose to a third person to purchase those shares at the price not lower than
the price offered to the shareholders of the closed joint-stock company, if, as
a result of the exercise by the shareholders of the pre-emptive right to
purchase shares, the shares cannot be acquired in the proposed number.
If the shares offered for the
realization cannot be purchased in accordance with part one of this clause in
full, an agreement may be reached on the partial sale of the shares offered for
the realization to the shareholders and/or to the company, and/or to a third
person determined in accordance with part one of this clause. In this instance
the shareholder may realize his right to the partial sale of the shares subject
to selling the shares offered for the realization to all shareholders and/or
the company and/or to a third person determined in accordance with part one of
this clause, which expressed the wish of partial purchase of those shares. The
shares remaining after the partial sale may be sold to any third person at the
price not lower than their selling to the shareholder of the closed joint-stock
company.
In the event when the agreement on
partial sale of the shares offered for the realization to the shareholders
and/or the company and/or a third person determined in accordance with part one
of this clause has not been reached, those shares may be sold to any third
person at the price not lower than the price offered to the closed joint-stock
company shareholders.
The procedure of sale, exchange by stockholder of the closed joint-stock
company the charter of which provide for a pre-emptive right to purchase shares
of their stocks is determined by the legislation on joint-stock companies.
The charter of the closed joint-stock company or a decision of the
general meeting of stockholder adopted by a majority of not less than three
quarters of votes of the persons that took part in that general meeting may
limit the set of third persons to whom the stockholders of that company may
sell or alienate otherwise the stocks of that company.
If the charter of a closed joint-stock company does not provide for the
pre-emptive right to purchase shares, the shareholders of that company are
entitled to sell or otherwise alienate their shares to another shareholder
(shareholders) or third persons without observing the procedure established by
parts one – four of this Article.
6. If the charter of a closed joint stock company provides for a
pre-emptive right to purchase shares, pledge of shares of that company and
subsequent levy of execution on those shares by the pledgee shall be carried
out in accordance with the rules established by clause 5 of this Article.
However, the pledgee is entitled to retain the shares, instead of alienation of
the shares to a third person.
Article 98. Formation of Joint-Stock Company
1. The founders of a joint-stock company shall conclude between
themselves a contract determining the procedure for the effectuation by them of
joint activity relating to the creation of the company; the amount of the
charter capital of the company; the categories of stocks to be issued and the
procedure for placing them, and also other conditions provided for by the
legislation on joint-stock companies.
The contract concerning the creation of a joint-stock company shall be
concluded in writing.
2. The founders of a joint-stock company shall bear joint and several
liability for the obligations which arose before the registration of the
company.
The company shall undertake liability for the obligations of the
founders connected with its creation only in the event of subsequent approval
of their actions by the general meeting of stockholders.
3. The constituent document of a joint-stock company shall be its
charter, confirmed by the founders.
The charter of a joint-stock company must, in addition to the
information specified in Article 48(2) of this Code, contain conditions
concerning the categories of stocks to be issued by the company, their par
value and quantity; the amount of the charter capital of the company; the
rights of stockholders; the composition and competence of the management bodies
of the company and the procedure for the adoption of decisions by them,
including questions, the decisions regarding which shall be adopted unanimously
or by a qualified majority of votes. The charter of the joint-stock company
also must contain other data provided for by the legislation on joint-stock
companies.
4. The procedure for the performance
of other actions relating to the creation of a joint-stock company, including
the competence of the constituent meeting, shall be determined by the
legislation on joint-stock companies.
5. The peculiarities of creating
joint-stock companies in the event of privatization of state property shall be
determined by the legislation on privatization.
6. A joint-stock company may be
created by one person or may consist of one person, including as a result of
reorganization of a legal person.
Article 99. Charter Capital of Joint-Stock Company
l. The charter capital of a joint-stock company shall comprise the par
value of the stocks of the company. The charter capital of the company shall
determine the minimum amount of the property of the company, guaranteeing the
interests of its creditors.
2 It is not allowed to exempt the shareholder from the duty to make
payment of the shares of the company. Payment for shares of an additional issue
by means of a setoff of monetary claims toward the joint-stock company is
allowed in the event of a closed placement thereof among shareholders and/or
creditors of that company.
3. An open subscription for the stocks of a joint-stock company shall
not be permitted until the charter capital is fully paid up. When a joint-stock
company is founded, all of its stocks must be distributed among the founders.
4. [Excluded]
5. The legislative acts or the charter of the company may establish
limitations on total par value and the number of common (ordinary) and/or
privileged stocks belonging to one stockholder or on the share of stocks
belonging to one stockholder in the total amount of the charter capital of the
joint-stock company.
Article 100. Increase of Charter Capital of Joint-Stock Company
1. A joint-stock company shall have the right by decision of the general
meeting of stockholders to increase the charter capital by means of increasing
the par value of the stocks or the issuance of stocks of an additional issue.
2. An increase of the charter capital of a joint-stock company shall be
permitted after it is paid up in full.
3. In the instances, provided for by the legislative acts, a preferential
right of stockholders, who possess common (ordinary) or other voting stocks, to
acquire stocks of an additional issue of that company, may be established by
the charter of the company.
Article 101. Reduction of Charter Capital of Joint-Stock Company
1. A joint-stock company shall have the right by decision of the general
meeting of stockholders to reduce the charter capital by means of reducing the
par value of the stocks, or by means of purchasing a part of the stocks for the
purposes of reducing the total number thereof.
A reduction of charter capital of a company shall be permitted after
informing all of its creditors in accordance with the procedure determined by
the legislation on joint-stock companies. In this connection the creditors of
the company shall have the right to demand the termination and the performance,
before the due time, of the respective obligations of the company and
compensation of losses to them.
2. A reduction of the charter capital of a joint-stock company by means
of purchasing a part of stocks by this company for the purposes or reducing
their total number is permissible if such possibility has been provided for in
the charter of the company.
Article
102. Limitations on Issue of Securities and Payment of Dividends of Joint-Stock
Company
1. The share of preferred stocks in the overall amount of the charter
capital of a joint-stock company must not exceed 25 percent.
2. Limitations for a joint-stock company to issue bonds may be
established by the legislative acts.
3. A joint-stock company has no right to adopt decision on declaring and
paying dividends, as well as to pay dividends:
1) until all of the charter capital is paid up in full;
2) if the value of net assets of the joint-stock company is less than
its charter capital and reserve fund or becomes less than the amount thereof as
a result of the payment of dividends;
3) in other instances provided for by the legislative acts.
Article 103. Management in Joint-Stock Company
1. The supreme management body of a joint-stock company shall be the
general meeting of its stockholders.
There shall be relegated to the exclusive competence of the general
meeting of stockholders:
1) change of the charter of the company, including change of the amount
of its charter capital;
2) election of members of the board of directors (supervisory board) and
inspection commission (inspector) of the company, and termination of their
powers before the appointed time;
3) [excluded]
4) confirmation of the annual reports; annual accounting (financial)
statements, profits and losses accounts of the company (data of the inventory
book of income and expenditure of organizations and individual entrepreneurs,
applying the simplified taxation system), and distribution of its profits and
losses upon availability of and with regard to the opinion of the inspecting
commission (inspector), and in the instances established by the legislation –
the auditing report;
5) decision concerning reorganization or liquidation of the company.
The deciding of other questions also may be relegated to the exclusive
competence of the general meeting of stockholders by the legislative acts and
the charter of the joint-stock company.
Questions relegated by the legislative acts and the charter of the
joint-stock company to the exclusive competence of the general meeting of
stockholders may not be transferred by them for decision of the executive
bodies of the company.
2. In a company with more than 50 stockholders a board of directors
(supervisory board) shall be created.
In the event a board of directors (supervisory board) is created, its
exclusive competence must be determined by the charter of the company in
accordance with the legislation on joint-stock companies. Questions relegated
by the charter to the exclusive competence of the board of directors
(supervisory board) may not be transferred by them for decision of executive
bodies of the company.
3. The executive body of a company may be collegial (board, directorate)
and/or one-man (director, director general). It shall effectuate current
direction over the activity of the company and be accountable to the board of
directors (supervisory board) and general meeting of stockholders.
To the competence of the executive body of the company shall be
relegated the deciding of all questions which do not constitute the exclusive
competence of other management bodies of the company specified by the
legislative acts or by the charter of the company.
By decision of the general meeting of stockholders the powers of an
executive body of the company may be transferred under a contract to another
commercial organization or individual entrepreneur (manager).
4. The competence of the management bodies of a joint-stock company, and
also the procedure for the adoption of decisions by them and of acting in the
name of the company, shall be determined in accordance with the legislation on
joint-stock companies and by the charter of the company.
5. A joint-stock company obliged in accordance with the legislation on
securities to disclose information about the joint-stock company must annually
conduct an audit of the annual accounting (financial) reports.
The audit of the accounting (financial) statements (data of the
inventory book of income and expenditure of organizations and individual entrepreneurs,
applying the simplified taxation system) of a joint-stock company, including
that not obliged to disclose information about the joint-stock company in
accordance with the legislation on securities, must be conducted at any time at
the demand of the stockholders which possess in the aggregate ten percent or
more of the stocks of this company.
The procedure for conducting the audit of the activity of a joint-stock
company shall be determined by the legislation and by the charter of the
company.
Article 104. Reorganization and Liquidation of Joint-Stock Company
1. A joint-stock company may be voluntarily reorganized or liquidated by
decision of the general meeting of stockholders.
Other grounds and the procedure for reorganization and liquidation of
the joint-stock company shall be determined by the acts of legislation.
2. The joint-stock company has the right to be transformed to the
limited liability company, additional liability company, business partnership
or production cooperative, or to the unitary enterprise, if only one
participant remains in the structure of the transformed company.
7. Subsidiary And Dependent Companies
Article 105. Subsidiary Economic Company
1. An economic company shall be
deemed to be a subsidiary if another (principal) economic company or
partnership by virtue of predominant participation in its charter capital, or
in accordance with a contract concluded between them, or otherwise has the
possibility to determine the decisions adopted by that company.
2. A subsidiary company shall not be liable for the debts of its
principal company (partnership).
The principal company (partnership) which has the right to give to the
subsidiary company instructions binding upon it, including those under a
contract with it, shall be liable jointly and severally with the subsidiary
company with regard to transactions concluded by the latter in performance of
such instructions.
In the event of the economic insolvency (bankruptcy) of the subsidiary
company through the fault of the principal company (partnership) the latter
shall bear subsidiary liability for its debts.
3. The participants (stockholders) of a subsidiary company shall have
the right to demand compensation by the principal company (partnership) for
losses caused through its fault to the subsidiary company unless otherwise
established by the legislation on economic companies.
Article 106. Dependent Economic Company
l. An economic company is deemed to be dependent if another economic company
has the share in the charter capital (stocks) of this company corresponding
twenty or more percent of votes of the total number of votes which it can use
at the general meeting of the participants of such company.
2.The limits of mutual participation of economic companies in the
charter capital of one another and the number of votes which one of such
companies may use at the general meeting of participants or stockholders of the
other company shall be determined by the legislative acts.
§ 3. Production Cooperatives
Article 107. Concept of Production Cooperative
1. A production cooperative (artel) shall be
deemed to be a commercial organization, the participants of which should make
the property share contributions, take personal labor participation in its
activity and bear subsidiary liability on the obligations of the production
cooperative in equal portions, unless otherwise is determined in the charter,
within the limits, determined by the charter, but not less than the value of
the annual income gained in the production cooperative.
2. The firm name of a cooperative must contain its name and the words
"production cooperative" or "artel".
3. The legal status of production cooperatives and the rights and duties
of their members shall be determined in accordance with the legislation on the
production cooperatives.
Article 108. Formation of Production Cooperatives
1. The constituent document of a cooperative shall be its charter,
confirmed by the general meeting of its members.
2. The charter of a cooperative must contain, in addition to the
information specified in Article 48(2) of this Code, the conditions concerning
the amount of the charter capital, the amount of the share contributions of the
members of the cooperative; the composition and procedure for the making of
share contributions by members of the cooperative and their liability for a
violation of the obligation to make share contributions; the character and
procedure of labor participation of its members in the activity of the cooperative
and their liability for a violation of the obligation relating to personal
labor participation; the procedure for the distribution of profits and losses
of the cooperative; the amount and conditions of subsidiary liability of its
members for the debts of the cooperative, the composition and competence of the
management bodies of the cooperative and the procedure for the adoption of
decisions by them, including on questions the decisions regarding which shall
be adopted unanimously or by a qualified majority of votes.
3. The number of members of a cooperative must be not less than three.
Article 109. Property of Production Cooperative
1. Property in the ownership of a production cooperative shall be
divided into shares of its members in accordance with the charter of the
cooperative.
It may be established by the charter of the cooperative that a
determined part of the property belonging to the cooperative shall comprise the
indivisible funds to be used for the purposes determined by the charter.
A decision concerning the formation of the indivisible funds shall be
adopted by the members of the cooperative unanimously unless otherwise provided
by the charter of the cooperative.
2. [Excluded]
3. The profit of a cooperative shall
be distributed among its members in accordance with their labor participation
unless a different procedure has been provided by the legislation and by the
charter of the cooperative.
The property remaining after the liquidation of the cooperative and the
satisfaction of the demands of its creditors shall be distributed in accordance
with the same procedure.
Article 110. Management in Production Cooperative
1. The supreme management body of a cooperative shall be the general
meeting of its members.
The executive bodies of a cooperative shall be the board and/or its
chairman. They shall effectuate current direction over the activity of the
cooperative and shall be accountable to the supervisory board and the general
meeting of the members of the cooperative.
Only members of the cooperative may be members of the supervisory board
and board of the cooperative, and also the chairman of the cooperative. A
member of the cooperative may not simultaneously be a member of the supervisory
board and a member of the board or the chairman of the cooperative.
2. The competence of the management
bodies of a cooperative and the procedure for the adoption of decisions by them
shall be determined by the legislation and by the charter of the cooperative.
3. There shall be relegated to the
exclusive competence of the general meeting of members of the cooperative:
1) change of the charter of the cooperative;
2) formation of the supervisory board and termination of the powers of
its members, and also the formation and termination of powers of the executive
bodies of the cooperative unless this right according to the charter of the
cooperative has been transferred to the supervisory board;
3) admission and expulsion of members of the cooperative;
4) confirmation of the annual reports and annual accounting (financial)
statements of the cooperative (data of the inventory book of income and
expenditure of organizations and individual entrepreneurs, applying the
simplified taxation system), distribution of its profits and losses;
5) decision concerning reorganization and liquidation of the
cooperative;
The deciding of other questions also may be relegated to the exclusive
competence of the general meeting by the legislation on production cooperatives
and by the charter of the cooperative.
Questions relegated to the exclusive competence of the general meeting
or supervisory board of a cooperative may not be transferred by them for
decision of the executive bodies of the cooperative.
4. A member of a cooperative shall have one vote when decisions are
adopted by the general meeting.
Article
111. Termination of Membership in Production Cooperative and Transfer of Share
l. The member of a cooperative shall have the right at his discretion to
withdraw from the cooperative. In this event the value of the share must be
paid or the property corresponding to his share issued to him, and also other
payments provided for by the charter of the cooperative effectuated.
The payment of the value of the share or the issuance of other property
to a withdrawing member of a cooperative shall be done at the end of the
financial year and after confirmation of the annual accounting (financial)
statements of the cooperative unless otherwise provided by the charter of the
cooperative. The payment of the value of the share or the issuance of other
property to a withdrawing member of a production cooperative, who applies the
simplified tax system without bookkeeping, shall be done at the end of the
financial year without confirmation of the cooperative's bookkeeping balance
sheet.
2. A member of a cooperative may be expelled from the cooperative upon
the decision of the general meeting in the event of the failure to perform or
the improper performance of the duties placed on him by the charter of the
cooperative, and also in other instances provided for by the legislation on
production cooperatives and by the charter of the cooperative.
A member of the supervisory board or executive body may be expelled from
the cooperative by the decision of the general meeting in connection with his
membership in the similar cooperative.
A member of a cooperative expelled therefrom shall have the right to
receive the share and other payments provided for by the charter of the
cooperative in accordance with Clause 1 of this Article.
3. The member of a cooperative shall have the right to transfer his
share or part thereof to another member of the cooperative unless otherwise
provided by the legislation and by the charter of the cooperative.
The transfer of a share (part thereof) to a citizen, who is not a member
of the cooperative, shall be permitted only with the consent of the
cooperative. In this event the other members of the cooperative shall enjoy the
preferential right to purchase such share (part thereof).
4. In the event of the death of a
member of a production cooperative his heirs may be admitted as members of the
cooperative unless otherwise provided by the charter of the cooperative.
Otherwise the cooperative shall pay to the heirs the value of the share of the
deceased member of the cooperative.
5. The levying of execution on the
share of a member of a production cooperative shall be permitted with regard to
the own debts of a member of the cooperative, in accordance with the procedure
provided for by the legislation and by the charter of the cooperative, only if
his other property is insufficient to cover such debts. Execution may not be
levied for debts of a member of a cooperative on the indivisible funds of the
cooperative.
Article 112. Reorganization and Liquidation of Production Cooperatives
1. A production cooperative may be voluntarily reorganized or liquidated
by decision of the general meeting of its members.
Other grounds and the procedure for the reorganization and liquidation
of a cooperative shall be determined by the legislation.
2. A production cooperative may, by unanimous decision of its members,
be transformed into an economic partnership or company if less than three
members remain in the cooperative, or into the unitary enterprise if only one
member remains in the cooperative.
§ 4. Unitary Enterprises
Article 113. Unitary Enterprise
1. A commercial organization not
endowed with the right of ownership to property consolidated to it by the owner
shall be deemed to be a unitary enterprise. The property of a unitary
enterprise shall be indivisible and may not be distributed according to
contributions (participatory shares, shares), including distribution among the
employees of the enterprise.
A unitary enterprise shall be
created in accordance with this Code and other acts of legislation via its
establishment or a reorganization of legal persons.
2. The constituent document of a
unitary enterprise shall be the charter.
The charter of a unitary enterprise
must contain, in addition to the information specified in Article 48(2) of this
Code, the information concerning the amount of the charter fund of the
enterprise and the procedure and sources for forming it.
The state (Republic's or communal)
unitary enterprises or private unitary enterprises may be created in the form
of unitary enterprises.
The property of the Republic's
unitary enterprise shall be in the ownership of the Republic of Belarus and
shall belong to such enterprise by right of economic management or operative
administration.
The property of the communal unitary
enterprise shall be in the ownership of the administrative and territorial unit
and shall belong to such enterprise by right of economic management.
The property of the private unitary
enterprise shall be in the private ownership of a natural person (joint
ownership of the spouses) or of a legal person and shall belong to such
enterprise by right of economic management.
The property of the affiliated
unitary enterprise shall be in the ownership of the owner of property of the
founding enterprise and shall belong to the affiliated enterprise by right of
economic management.
3. The firm name of a unitary
enterprise must contain an indication of the form of ownership, unless
otherwise established by the legislative acts. The firm name of an affiliated
unitary enterprise must also contain the word ‘affiliated’.
4. The body of a unitary enterprise
shall be the head who shall be appointed by the owner of the property and
accountable to it. The owner of the property of a unitary enterprise, a natural
person, is entitled to exercise directly the functions of the head.
The powers of the head of a unitary
enterprise may be transferred, by decision of the owner of the property, under
a contract to another commercial organization (managing organization) or to an
individual entrepreneur (manager).
The charters of legal persons that
have founded unitary enterprises may establish the procedure for appointing
heads of such enterprises.
5. The rights of the owner of the
property of a Republic’s unitary enterprise shall be exercised in the name of
the Republic of Belarus, unless otherwise specified by the President of the
Republic of Belarus, by:
the Government of the Republic of
Belarus and also, within the limits established by legislation, republican
bodies of state administration, other state bodies and organizations,
authorized to manage the property being in the ownership of the Republic of
Belarus – with respect to a republican unitary enterprise based on right of
economic management;
the Government of the Republic of
Belarus and also, within the limits established by legislation, republican
bodies of state administration, other state bodies – with respect to a fiscal
enterprise.
The rights of the owner of the property
of a communal unitary enterprise based on right of economic management shall be
exercised in the name of the administrative and territorial unit by respective
bodies of local administration and self-government and also, within the limits
established by the legislation, by state organizations authorized by them.
The owner of the property of a
private unitary enterprise shall exercise his powers directly and/or through
persons authorized by him.
6. The owner of the property of a
unitary enterprise, unless otherwise specified by the President of the Republic
of Belarus, this Code or a decision of the owner taken with respect to the
affiliated enterprise:
takes decision about creation of the
unitary enterprise;
determines objectives of the
activity of the unitary enterprise, gives a written consent to the
participation of the unitary enterprise in commercial and non-commercial
organizations, including in state associations;
approves the charter of the unitary
enterprise and changes and/or additions introduced therein;
forms the charter fund of the
unitary enterprise, takes decision about its change;
appoints to the office of the head
of the unitary enterprise, concludes, modifies, and terminates a labour contract or a civil-law contract with him in accordance
with the legislation, unless otherwise provided for the this Code;
takes decision about withdrawal of
the property from the unitary enterprise under the procedure and in the
instances provided for by the legislation or the charter;
exercises control over activity of
the unitary enterprise, intended use and preservation of the property belonging
to the unitary enterprise;
gives a written consent to the
creation, reorganization, and liquidation of affiliated enterprises, creation
and liquidation of representations and affiliates;
takes decision about reorganization
or liquidation of the unitary enterprise in accordance with the legislation;
has other rights and bears other
duties in accordance with this Code, other legislative acts and the charter.
7. At the moment of state
registration of the unitary enterprise its charter fund must be formed in full
by the owner of the enterprise property, unless otherwise provided for by
legislative acts.
In the event of taking decision
about decreasing the charter fund by the founder of the unitary enterprise, the
unitary enterprise is obliged to notify its creditors about it in writing. A
creditor of the unitary enterprise is entitled to demand termination or
premature performance of the obligation under which the enterprise is the
debtor and compensation of losses.
8. A unitary enterprise shall be
liable for its obligations with all of the property belonging to it.
A unitary enterprise shall not bear
liability for the obligations of the owner of its property, except for the
cases provided for by this Code.
9. Shared ownership of the property
of a unitary enterprise shall not be permitted.
In the event of division of the
property being in joint ownership of spouses and also of a transfer of the
ownership to the property of the unitary enterprise by way of inheriting, of
legal succession or by other ways, not contradictory to the legislation, to two
and more persons:
the unitary enterprise may be
reorganized by splitting-up (splitting-off) or transformation into the economic
partnership or company in accordance with the procedure established by the
legislation and by the agreement of the parties;
the enterprise in whole as a
property complex may be sold to a person not being participant in the share
ownership to the property of the unitary enterprise;
the property of the unitary
enterprise shall be transferred into the ownership of one legal person or
natural person with payment of compensation to other persons in proportion to
their share in the common property, determined in accordance with the rules
established for property for which the shared ownership is permitted;
the unitary enterprise is subject to liquidation in accordance with the
procedure established by the legislation, if reorganization or transferring the
property into the ownership of one person is contradictory with the legislation
or impossible because of other reasons.
10. At the reorganization of state unitary enterprises, provisions on
reorganization of legal persons provided by this Code shall apply unless
otherwise provided by the legislation on privatization.
Article
114. Unitary Enterprise Based on the Right of Economic Management
1. The unitary enterprise based on
the right of economic management shall be founded by the decision of the owner of
its property, or of the unitary enterprise based on the right of economic
management, or other subjects of the civil law.
2. The charter of the unitary
enterprise based on the right of economic management shall be approved by the
founder of the unitary enterprise.
3. The unitary enterprise based on
the right of economic management may form as a legal person, subject to consent
of the owner of its property, another unitary enterprise by transferring to it
a part of its property for economic management (the affiliated enterprise) in
accordance with existing procedure. An affiliated enterprise is not entitled to
create unitary enterprises. Another procedure for creation of an affiliated
enterprise may be specified by the President of the Republic of Belarus.
The founder shall approve the
charter of the affiliated enterprise, appoint its head, exercise other powers
in accordance with the owner of the property.
4. The owner of property of a unitary enterprise based on the right of
economic management is not liable for the obligations of the enterprise, with
the exception of the cases provided by Article 52(3) of this Code.
Article
115. Unitary Enterprise , Based on Right of Operative Administration (Fiscal
Enterprise)
1. A unitary enterprise based on the
right of operative administration (fiscal enterprise) may be founded, unless
otherwise determined by the President of the Republic of Belarus, upon a
decision of the Government of the Republic of Belarus on the base of property
being in the ownership of the Republic of Belarus.
2. The charter of a fiscal
enterprise shall be approved by the Government of the Republic of Belarus.
3. The firm name of the enterprise
based on the right of operative administration must contain an indication that
the enterprise is a fiscal enterprise.
4. The rights of a fiscal enterprise
to the property consolidated to it shall be determined in accordance with
Articles 277 and 278 of this Code.
5. The Republic of Belarus shall bear subsidiary liability for the
obligations of a fiscal enterprise if its property is insufficient.
§ 5. Non-commercial Organizations
Article 116. Consumer Cooperative
1. A voluntary association of
citizens and legal persons on the basis of membership for the purpose of
satisfying material (property) and other requirements of participants to be
effectuated by means of combining the property share contributions of the
members thereof shall be deemed to be a consumer cooperative.
2. The charter of a consumer
cooperative must contain, in addition to the information specified in Article
48(2) of this Code, the conditions and the procedure of admission of members to
the cooperative and of termination of membership in the cooperative; the rights
and duties of the members of the cooperative; the conditions concerning the
amount of share contributions of the members of the cooperative; the
composition and procedure for making of share contributions by members of the
cooperative and their liability for a violation of the obligation relating to
making of the share contributions; the composition and competence of the
management bodies of the cooperative and the procedure for the adoption of
decisions by them, including on questions, the decisions regarding which are
adopted unanimously or by a qualified majority of votes; and the procedure for
the covering by members of the cooperative of losses incurred by it.
3. The name of the consumer
cooperative must contain an indication of the principal purpose of its
activity, and also either the word "cooperative" or the words
"consumer union" or "consumer company".
4. The members of the consumer
cooperative shall be obliged within three months after confirmation of the
annual accounting (financial) statements (upon making accounting in the
inventory book of income and expenditure of organizations and individual
entrepreneurs, applying the simplified taxation system – within three months
from the day of termination of the financial year) to cover losses, which have
formed, by means of additional contributions. In the event of the failure to
fulfill this duty, the cooperative may be liquidated in a judicial proceeding
at the demand of the creditors.
The members of a consumer cooperative shall bear jointly and severally
subsidiary liability for its obligations within the limits of the uncontributed portion of the additional contribution of
each member of the cooperative.
5. The revenues and income received
by the consumer cooperative may not be distributed among its members.
6. The legal status of consumer
cooperatives (the consumer companies, or unions of such companies), shall be
determined by this Code and other legislation on consumer cooperation.
The legal status of other consumer cooperatives (housing cooperatives,
housing construction cooperatives, garage cooperatives, etc.) shall be determined
by this Code and other legislation.
Article 117. Public and Religious Organizations (Associations)
1. Public and religious organizations (associations) shall be deemed to be
voluntary associations of citizens who have combined in accordance with the
procedure established by legislation on the basis of their common interests in
order to satisfy spiritual and other nonmaterial requirements.
Public and religious organizations shall be non-commercial
organizations. They shall have the right to effectuate entrepreneurial activity
only for the achievement of the purposes for which they were created; the
entrepreneurial activity of such organizations shall comply with these purposes.
2. The participants (members) of public and religious organizations
shall not retain rights to property transferred in ownership by them to such
organizations, including membership dues. They shall not be liable for the
obligations of public and religious organizations in which they participate as
members, and the said organizations shall not be liable for the obligations of
their members.
3. The peculiarities of the legal status of public and religious
organizations as participants of civil relations shall be determined by the
legislation.
Article 1171. Republic's State-Social Associations
1. Republic's state-social
associations shall be deemed non-commercial organization based on the
membership the purposes of which are the accomplishment of missions meaningful
for the state.
2. Founders of a Republic's
state-social association and its members may be natural and legal persons, as
well as the Republic of Belarus in the person of authorized state bodies and
legal persons acting on its behalf.
3. The charter of a Republic's
state-social association is adopted by its founders or the highest body of this
association and to be approved by the President of the Republic of Belarus or,
under his instructions, by the Government of the Republic of Belarus.
4. The creation of the Republic's
state-social association is carried out by the decision of the founders or as
the result of the reorganization of a existing
non-commercial organization in the form of the public association on the
conditions determined by the President of the Republic of Belarus or, under his
instructions, by the Government of the Republic of Belarus.
5. The Republic's state-social
association may create, in the established order, its organizational divisions,
including in the form of legal persons, and create other legal persons or to
participate in legal persons in accordance with the charter of the Republic's
state-social association or other legislation.
6. The legal status of Republic's
state-social associations is determined by this Code and other legislation on
Republic's state-social associations.
Article 118. Funds
1. For the purposes of this Code, a fund shall be deemed to be a
non-commercial organization not having membership, founded by citizens (a
citizen) and/or legal persons (a legal person) on the basis of voluntary
property contributions, and pursuing social, charitable, cultural, educational,
sport-promoting, scientific and other publicly useful purposes specified in the
charter of the fund.
The name of a fund shall contain the word “fund” and indication to the
nature of activities and type of the fund.
The property transferred to the fund by its founder(s) shall belong to
the founder(s) on the right of the ownership (right of economic management,
operative administration), be necessary and appropriate for the use in the
activities of the fund.
The sources of the formation of property of a fund are the property
being transferred to the fund by its founder(s), proceedings from events held
in accordance with the charter of the fund, incomes derived from
entrepreneurial activity carried out in accordance with the charter and other
proceeding not prohibited by legislation.
The property transferred to a fund by its founder(s) is the ownership of
the fund. The founder(s) are not liable for the obligations of the fund
created, and the fund is not liable for the obligations of its founder(s).
The rules effective in relation to creation, activity, reorganization
and liquidation of funds, established by this Code, do not cover the funds created
or being created according to a decision of the President of the Republic of
Belarus, Parliament of the Republic of Belarus, Council of Ministers of the
Republic of Belarus unless otherwise stipulated in acts of legislation on
creation of such funds.
2. The fund shall use property for the purposes determined in its
charter.
For carrying out entrepreneurial activity, funds are entitled to create
unitary enterprises, economic companies or to participate in them, except for
limited liability companies.
A fund is obliged to publish annually reports on the use of its
property. The procedure for publication and the content of data are established
by legislation.
3. The bodies of a fund are the board (council), directorate (director)
and trustee council.
The charter of the fund may envisage other bodies necessary for carrying
out it activity.
The board (council) of the fund is a highest collegiate body of the fund
formed by its founder(s). The main function of the board (council) is to ensure
observance by the fund of purposes for attainment of which it is created.
The exclusive competence of the board (council) includes:
making changes and/or additions to the charter of the fund;
formation (nomination) of an
executive body of the fund – directorate (director) and premature termination
of its powers;
creation and liquidation of
representations, affiliates of the fund, determination of their terms of
reference;
approval of the annual report and
the annual accounting (financial) statements of the fund (data of the
inventory book of income and expenditure of organizations and individual
entrepreneurs, applying the simplified taxation system);
reorganization of the fund if the
possibility of a reorganization is stipulated by its charter.
The directorate (director) of the
fund is an executive body of the fund carrying out current management of its
activity. The directorate (director) of the fund is accountable in its activity
to the board (council) of the fund.
The trustee council of the fund is a
body effectuating control over activity of the fund, which is formed by its
founder(s) at the moment of establishing the fund, and subsequently, if it is
stipulated by the charter of the fund, by the board (council) of the fund.
The exclusive competence of the
trustee council of the fund includes:
control over compliance of the
activity of fund with legislation and the charter of the fund;
control over fulfillment of
resolutions of the highest collegiate body of the fund, the executive body of
the fund;
control over the use of monetary
funds and other property of the fund in accordance with its charter objectives;
preliminary discussion of and
consent to the annual report of the fund.
4. A fund acts on the basis of the
charter approved by the founder(s) of the fund.
The charter of the fund must, in
addition to the information specified in Article 48(2) of this Code, contain:
data about founder(s) of the fund;
tasks and methods of activity of the
fund;
composition and procedure for
formation of the bodies of the fund;
procedure for the formation, terms
of reference and term of powers of the trustee council of the fund;
procedure for the appointment and
dismissal of officials of the fund;
procedure for introduction of
changes and/or additions to the charter of the fund;
sources and procedure for the
formation of fund property;
time period for which the fund is
created or the indication to its activity unlimited in time;
data on representations and/or
affiliates created by the fund, including the name of representations,
affiliated and their location (governing bodies of representations,
affiliates);
data on intended use of the property
of the fund in the event of its liquidation. At that such property shall be
intended for the purposes for the attainment of which the fund was created;
other provisions stipulated by
legislation and not contradicting this Code.
5. Other provisions connected with
creation, activity, reorganization and liquidation of a fund not stipulated by
this Article and Article 119 of this Code are determined by legislative acts.
Article 119. Change of Charter and Liquidation of Fund
1. The charter of a fund may be changed by the board of the fund in the
order stipulated by the charter.
Respective changes and/or additions to the charter of the fund shall be
introduced and presented in the established order for the state registration
within a month period in the case of:
change of purposes of the fund;
change of the name of the fund;
change of the type of the fund;
change of location of the fund (governing body of the fund);
creation or liquidation of representations and/or affiliates of the
fund;
change of data about bodies of the fund, including the trustee council,
procedure for appointment and dismissal of officials of the fund, procedure for
formation of the fund property, as well as about other factual circumstances
the reference to which shall be contained in the charter of the fund in
accordance with legislation;
change of legislation in accordance with which the introduction of
changes and/or additions to the charter of the fund is required unless other
periods are established by that legislation.
2. The reorganization of a fund if its possibility is envisaged by the
charter of the fund may be carried out in the form of:
merger with another fund;
affiliation to another fund;
affiliation of another fund;
splitting-off from the fund of a legal person of any organizational and
legal form;
splitting-up in two or more funds.
A fund may not be reorganized in the form of transformation.
The cost of the remaining property of the fund reorganized in the form
of splitting-off may not be less than the minimum amount necessary of the
creation and activity of the fund.
3. A fund may be liquidated upon the application of the interested
persons by a court decision:
in the case of non-presentation to the registering body of documents on
the transfer by its founder(s) in the ownership of the fund of the property in
the form of non-monetary contributions at the formation of the fund property in
the amount not less then the minimum amount required
for the creation and activity of the fund in full amount or in part in the form
of non-monetary contributions within three months after the state registration
of the fund;
in the case of non-fulfillment of the obligation on creation, in the
established period after the state registration of the fund, of representations
and/or affiliates and non-presentation for the state registration of changes
and/or additions being introduced to the charter of the fund in connection with
the change of its type;
if, at the end of a calendar year, the value of the fund property is
less than the minimum amount required for the creation and activity of the
fund, and that value has not been increase till the minimum amount required for
its creation and activity;
if the purposes of the fund cannot be attained, and necessary changes of
those purposes cannot be made;
in the case the fund evades in its activity from the purposes stipulated
by the charter;
in the case of carrying out activity prohibited by legislation or
activity with repeated or serious violations of legislation and the charter of
the fund;
n other cases stipulated by the legislation.
4. The property remaining after the liquidation of a fund, including
after the satisfaction of claims of creditors is to be used for the purposes
for the attainment of which the fund was created. In the case when such use of
the property is impossible it shall be transferred in equal parts to funds
created for the attainment of similar purposes provided that the funds
submitted written applications to the court which has taken the decision to
liquidate the fund.
In the absence of such applications, the property remaining after the liquidation
of the fund is to be transferred in the ownership of the Republic of Belarus
and used for the purposes for the attainment of which the fund was created.
Article 120. Institutions
1. An institution shall be deemed to be an organization created by the
owner in order to effectuate management, social and cultural, or other
functions of a non-commercial character, and financed by the owner wholly or
partially.
The rights of an institution to property consolidated to it shall be
determined in accordance with Article 279 of this Code.
2. An institution shall be liable for its obligations with the monetary
means being at its disposal. The owner of the respective property shall bear
subsidiary liability for obligations of the institution in the event of
insufficiency of such monetary means.
3. The peculiarities of the legal status of individual types of state
and other institutions shall be determined by the legislation.
Article
121. Amalgamations of Legal Persons and/or Individual Entrepreneurs (Associations
and Unions)
1. Commercial organizations and/or individual entrepreneurs, as well as
commercial and/or non-commercial organizations for the purpose of co-ordination
of their activity, representation and protection of their common interests,
may, establish the amalgamations in the form of associations or unions, being
non-commercial organizations.
2. If by decision of the participants, the conducting of entrepreneurial
activity is imposed on an association (union), such association (union) shall
be transformed into an economic company or partnership in accordance with the
procedure provided for by the legislation, or may carry out entrepreneurial
activity only by means of creation of a commercial organization and/or
participation in them, unless otherwise established by the legislative acts .
3. Association (union) shall be a legal person.
Members of an association (union) retain their autonomy and rights of a
legal person or individual entrepreneur.
4. An association (union) shall not be liable for the obligations of its
members. Members of an association (union) shall bear subsidiary liability for
its obligations in the amount and in accordance with the procedure provided for
by the charter of the association (union).
Article 122. Constituent Document of Association (Union)
1. The constituent document of an
association (union) shall be the charter approved by its members.
2. The constituent document of an association (union) must contain, in
addition to the information specified in Article 48(2) of this Code, the
procedure of forming the property of the association (union), the procedure of
making changes and/or additions in the charter of the association (union), the
conditions concerning the composition and competence of managing bodies of the
association (union) and the procedure of adoption of decisions by them,
including questions decisions with regard to which shall be adopted unanimously
or by a qualified majority of votes of members of the association (union), and
also the procedure for the distribution of property remaining after liquidation
of the association (union).
Article 123. Rights and Duties of Members of Associations and Unions
l. The members of an association (union) shall have the right to use its
services free of charge.
2. The member of an association (union) shall have the right at its
discretion to withdraw from the association (union) anytime. In this event it
shall bear subsidiary liability for obligations of the association (union) in
proportion to its contribution for two years from the time of withdrawal, if
these obligations arose during its membership in the association..
The member of an association (union) may be expelled therefrom by
decision of the remaining participants in the instances and in accordance with
the procedure established by the charter of the association (union). Rules
relating to withdrawal from an association (union) shall apply with respect to
the liability of the expelled member of the association (union).
3. With the consent of the members of the association (union), a new
participant may join. The joining of an association (union) by a new member may
be conditioned by its subsidiary liability for obligations of the association
(union) which arose before its joining.
§ 5. State Associations
Article
1231. Basic Provisions on State Association
1. A state association (concern; industrial, scientific and industrial
or other association) shall be deemed an association of state legal
persons, state and other legal persons, as well as state and other legal
persons and individual entrepreneurs created on the decision of the President
of the Republic of Belarus, Government of the Republic of Belarus, and , under
their instruction (authorization), by other Republic bodies of state governance
or by decisions of bodies of local administration and self-government.
2. A state association shall be created, as a rule, on an industry
branch principle for the purposes of carrying out general direction, general
management of activities, coordination of activities and representation of
interests of legal persons and individual entrepreneurs being part of the
association.
3. A state association is subordinated to the Government of the Republic
of Belarus, Republic body of state governance, body of local administration and
self-government or a state organization which executes certain functions of a
Republic body of state governance.
4. State associations are non-commercial organization, except for the
cases of adopting, in accordance with the legislation, decision on recognizing
them commercial organizations.
5. The owner of the property of a state association is not liable for
the obligations of the state association except for cases stipulated by
legislative acts.
6. The legal status of state associations, rights and duties of legal
persons and individual entrepreneurs being their part shall be determined by
this Code and other acts of legislation on such associations, and by their
charters.
Article
1232. Participants of a State Association
1. A state association may be joined by state unitary enterprises and/or
state institutions, on the decision of the body (official) which took the
decision on the creation of the state association or of the body authorized by
it, as well as by other organizations, individual entrepreneurs, voluntarily,
on the conditions and according to the order determined by the charter of the
state association. Legal persons may join the state association in accordance
with the legislation.
The decision on the possibility of joining a state association by
individual entrepreneurs and non-state legal persons is to be taken by the
state body (official) which took decision on the creation of the state
association or by a body authorized by it.
2. The participants of state associations retain rights of legal persons
and individual entrepreneurs, which may be limited or otherwise changed in
accordance with the legislation.
3. State unitary enterprises and state institutions being part of a
state association on the decision of a state body (official) which took
decision on the creation of the state association or by a body authorized by it
may be excluded from it on the decision of this body (official).
4. Decisions of state associations on matters provided by charters of
state associations and by acts of legislation on such associations are
obligatory for their participants.
5. State association are not liable for obligations of their
participants, and participants of a state association are not liable for
obligations of this state association except for the cases stipulated by the
legislation.
Article
1233. Property of State Association
1. The property of a state association in in the state ownership and
belongs to it on the right of economic management or on the right of operative
administration. The state body (official), which took the decision on the
creation of the state association, or the body authorized by it, as well as the
charter of the state association, shall determine the right on which the
property belongs to the state association.
2. The property of the participants of a state association does not make
part of the property of the state association.
Article
1234. Charter of State Association
1. The
charter of a state association shall be approved by the state body (official)
which took decision on its creation or by a body authorized by it and is a
constituent document of this association.
2. The
charter of a state association shall determine the order and sources of the
generation of the property of the state association.
3. The charter
of the state association, which is a commercial organization, along with data
specified in Article 48 (2) of this Code shall contain the data on the subject
of activities of the state association.
CHAPTER 5
Participation of the Republic of Belarus and its Administrative Territorial
Units in Relations Regulated by Civil Legislation
Article
124. The Republic of Belarus, its Administrative Territorial Units as the
Subjects of Civil Legislation
l. The Republic of Belarus, its administrative territorial units shall
participate in relations regulated by civil legislation on equal principles
with other participants of these relations—citizens and legal persons.
2. Unless it arises otherwise from a legislation or the peculiarities of
the particular subjects, the norms determining the participation of legal
persons in relations regulated by civil legislation shall apply to the subjects
of civil legislation specified in Clause 1 of this Article.
Article
125. Procedure of Participation of the Republic of Belarus and its
Administrative Territorial Units in Relations Regulated by Civil Legislation
1. The state bodies within the frameworks of their competence
established by acts determining the status of these bodies may by their actions
acquire and exercise property rights and duties and personal non-property
rights and duties and act in court in the name of the Republic of Belarus.
2. Bodies of local administration or
self-government within the frameworks of their competence established by acts
determining the status of these bodies may by their actions acquire and
exercise the rights and duties specified in Clause 1 of this Article in the
name of the administrative territorial units.
3. In the instances and in
accordance with the procedure provided for by legislation of the Republic of
Belarus, other state bodies (not mentioned in this Article), legal persons and
citizens may act in the name of the Republic of Belarus and its administrative
territorial units, subject to special order of the Republic of Belarus and its
administrative territorial units.
Article
126. Liability for Obligations of the Republic of Belarus and its
Administrative Territorial Units
1. The Republic of Belarus and its
administrative territorial units shall be liable for its obligations with the
property belonging to it by right of ownership, except for property which may
be only in state or communal ownership.
2. The Republic of Belarus and its
administrative territorial units shall not be liable for obligations of legal
persons created by them except for instances provided for by the legislation.
3. The Republic of Belarus shall not
be liable for obligations of administrative territorial units.
4. Administrative territorial units
shall not be liable for obligations of one another, nor for obligations of the
Republic of Belarus.
5. The rules of Clauses 2-5 of this
Article shall not extend to instances when the Republic of Belarus has assumed
a guarantee (suretyship) for the obligations of the administrative territorial
unit or legal person, or the said subjects have assumed a guarantee
(suretyship) with regard to the obligations of the Republic of Belarus.
Article
127. Peculiarities of the Republic of Belarus and Administrative Territorial
Units in Relations Being Regulated by Civil Legislation with Participation of
Foreign Legal Persons, Citizens, and States
The peculiarities of the liability of the Republic of Belarus and the
administrative territorial units in relations regulated by civil legislation
with the participation of foreign legal persons, citizens, and states shall be
determined by the legislative acts.
SUBSECTION 3
OBJECTS OF CIVIL RIGHTS
CHAPTER 6
General Provisions
Article 128. Types of Objects of Civil Rights
To objects of civil rights shall be relegated
things, including money and securities, other property, including
property rights;
work and services;
undisclosed information;
exclusive rights to intellectual activity results and means of
individualization of participants of civil turnover, goods, works or services;
non-material benefits.
Article 129. Turnability of Objects of Civil
Rights
1. Objects of civil rights may be
freely alienated or be transferred from one person to another by way of universal
legal succession (inheritance, reorganization of legal person) or by other
means unless they have been withdrawn from turnover or are limited in turnover.
2. Types of objects of civil rights
whose being in turnover is not permitted (objects withdrawn from turnover) must
be expressly specified in a law.
Types of objects of civil rights which may belong only to determined
participants of turnover or being of which in turnover is permitted by a
special authorization (objects of limited turnability)
shall be determined in accordance with the procedure established by the
legislation.
3. Land and other natural resources may be alienated or pass from one
person to another by other means to the extent that their turnover is permitted
by legislation on protection and use of lands and other legislation on
protection of the environment and rational use of natural resources.
Article 130. Immovable and Movable Things
l. To immovable things (immovable property, immovable) shall be
relegated land plots, subsoil plots, surface water objects, and all that is
firmly connected with the land, that is, objects whose movement without
incommensurate damage to the purpose thereof is impossible, including forests,
perennial plantings, permanent constructions (buildings, structures),
unfinished permanent constructions prepared for preservation, isolated
premises, car parking lots.
To immovable things also shall be relegated the enterprise as a whole
(as the property complex), the aircrafts and sea vessels subject to the state
registration, inland vessels, river-marine vessels, and space objects. Other
property also may be relegated by the legislation to immovable things.
2. Things which are not relegated to immovable, including money and
securities, shall be deemed to be movable property. The registration of rights
to movable things shall not be required except for instances specified in a
law.
Article
131. State Registration of Immovable Property, Rights to It and Transactions
with It
l. The immovable property, rights to it and transactions with it are
subject to the state registration in cases, provided by the legislative acts.
2. In the instances provided for by the legislation a special
registration or recording of individual types of immovable property may be
effectuated together with the state registration.
3. The body carrying out state registration of the immovable property,
rights to it and transactions with it shall be obliged to certify the
registration made by means of the issuance, for the applicant, of the
certificate (certification card) on the state registration, or by execution of
the registration record on the original of the document, expressing the content
of the registered transaction.
4. The state registration of the immovable property, rights to it and
transactions with it shall be public. The bodies, carrying out the state
registration of the immovable property, rights to it and transactions with it,
shall be obliged to provide necessary information for any person only about the
rights and restrictions (burdening) of the rights on the specific object of the
immovable property, existing at the date of providing the information. Summary
information on the rights on objects of the immovable property is delivered
only in cases, provided by the legislative acts.
5. A refusal of state registration of the immovable property, rights to
it or transaction with it or the evading of registration by the respective body
may be appealed to a court.
6. The procedure for state registration and the grounds for refusal of
registration shall be established by the legislation on registration of the
rights to immovable property and transactions with it.
Article 132. Enterprise
1. An enterprise as an object of rights shall be deemed to be a property
complex used to effectuate entrepreneurial activity.
Within an enterprise as a property complex shall be all types of
property intended for its activity, including land plots, permanent
constructions (buildings, structures), unfinished permanent constructions
prepared for preservation, isolated premises, car parking lots, equipment,
tools, raw material, products, rights of demand, debts, and also rights to
designation which individualize the enterprise, its products, works and
services (firm name, trademarks, service marks), and other exclusive rights,
unless otherwise provided by the legislation or contract.
2. An enterprise as a whole or part thereof may be the object of a
purchase-sale, pledge, lease, and other transactions connected with the establishment,
change, and termination of rights to a thing.
Article 133. Indivisible Things
A thing, the division of which in kind is impossible without changing
the purpose thereof, shall be deemed to be indivisible.
The peculiarities of the partition of a share in the right of ownership
to an indivisible thing shall be determined by Articles 255 and 261 of this
Code.
Article 134. Complex Things
If various thing form a single whole presupposing the use thereof for a
common purpose, they shall be considered to be one thing (complex thing).
The operation of a transaction concluded with regard to a complex thing
shall extend to all of its parts unless otherwise provided by a contract.
Article 135. Principal Thing and Appurtenance
A thing intended to serve another, principal thing and connected
therewith by a common purpose (appurtenance) shall follow the fate of the
principal thing unless otherwise provided by contract.
Article 136. Yield, Products, and Revenues
Proceeds received as a result of the use of property (yield, product,
revenues) shall belong to the person using this property on legal grounds
unless otherwise provided by the legislation, or by the contract concerning the
use of this property.
Article 137. Animals
To animals shall apply the general rules on property insofar as not
otherwise established by the legislation.
When exercising rights the cruel treatment of animals contrary to the
principles of humaneness shall not be permitted.
Article
138. Individually-Determined Things and Things, Defined by Generic Attributes
1. An individually-determined thing shall be deemed to be a thing,
distinguished from the other things on the grounds of the attributes, peculiar
to this thing only. Individually-determined things are irreplaceable.
2. Things defined by generic attributes shall be deemed to be the
things, having the attributes, peculiar to all thing of the same kind, and
defined by the number, weight or measure. The things defined by generic
attributes are replaceable.
Article 139. Protected Results of Intellectual Activity
In the instances and in accordance with the procedure established by
this Code and other legislation an exclusive right (intellectual property) of a
citizen or legal person shall be recognized to the protected results of
intellectual activity and the means of individualization of the legal person
equated to them or the means of individualization of a product or the work
fulfilled or services (firm name, trademark, service mark, and others).
The use of the results of intellectual activity and means of
individualization which are the object of exclusive rights may be exercised by
third persons only with the consent of the possessor of the right.
Article 140. Undisclosed Information
1. Information (data about persons, matters,
facts, events, occurrences and processes) is protected as undisclosed
information if it constitutes official secret or commercial secret.
2. In relation to information the commercial
secret regime may be established provided that its data are not well-known or
easily available for third persons in those circles that usually deal with this
kind of data, have commercial value for their holder be virtue of being unknown
for third persons, are not objects of intellectual activity results and are not
classified in a prescribed manner as state secrets. The commercial secret
regime is deemed to be established after determination of the composition of
the data subject to be protected under the commercial secret regime and after
the person that legitimately holds such data takes a set of measures necessary
for ensuring their confidentiality.
Data in relation to which the commercial secret
regime may not be established are determined by the legislative acts.
3. Terms and procedure for classifying
information as official secret are determined by the legislation.
4. Information constituting official
secret or commercial secret is protected by means provided for by the
legislation.
In case of illegally obtaining knowledge or illegal use of, and also of
disclosing, the information that constitutes official secret or commercial
secret, natural and legal persons, state bodies and their officials are obliged
to compensate damages to its holder. The same duty is imposed on employees that
have disclosed official secret or commercial secret despite an obligation about
non-disclosure of commercial secret, a labour
contract and on counterparties that committed this despite a civil-law
contract.
Article 141. Money (Currency)
1. The Belarusian Ruble shall be the legal means of payment obligatory
for acceptance at nominal value throughout the entire territory of the Republic
of Belarus.
Payments on the territory of the Republic of Belarus shall be
effectuated in the form of cash and cashless settlements.
2. The instances, procedure, and conditions for the use of foreign
currency on the territory of the Republic of Belarus shall be determined by the
legislation.
Article 142. Currency Valuables
The types of property deemed to be currency valuables and the procedure
for concluding transactions with them shall be determined by the legislation.
The right of ownership in currency valuables shall be defended in the
Republic of Belarus on the common grounds.
CHAPTER 7
Securities
Article 143. Security
1. A security shall be a document or a set of certain records,
certifying, in compliance with the established form and/or obligatory
requisites, property and non-property rights. With the transfer of the security
all rights in aggregate which are certified by it are being transferred.
2. In the instances provided for by the legislation or in accordance
with the procedure established by it, in order to exercise and transfer the
rights certified by a security evidence of its being registered in a special
register (ordinary or computerized) shall be sufficient.
Article 144. Types and Forms of Securities
There shall be relegated to securities: state bond, bond, bill of
exchange, cheque, deposit certificate and savings
certificate, bank savings book to the bearer, bill of lading, stock,
privatization securities, and other documents which have been relegated to
securities by the legislation on securities or in accordance with the procedure
established by this legislation.
The securities may be issuing and non-issuing.
The issuing securities include bonds, stocks and other securities,
relegated to such by the legislation.
Securities may be issued (handed out) in a documentary and
non-documentary forms. Legislative acts may exclude a possibility of the
issuance (handing-out) of securities of a certain type in a documentary or
non-documentary form.
This Code is applied to the relations connected with promissory notes
and bills of exchange to the extent not regulated by norms of the legislative
acts on promissory notes and bills of exchange.
Article 145. Requirements for Security
l. The types of rights which shall be certified by securities, the
obligatory requisites of securities, the requirements for the form of a
security, and other necessary requirements shall be determined by the
legislation or in accordance with the procedure established by it.
2. The absence of obligatory requisites of a security or the failure of
the security to conform to the form established for it shall entail the nullity
thereof.
Subjects of Rights Certified by Security
1. Rights certified by a security may belong to:
the bearer of the security (bearer security), or
the person named on the security (inscribed security), or
the person named on the security, who may himself exercise these rights or
appoint by his instruction (order) another authorized person (order security).
2. The possibility of the issue (handing-out) of securities of a
specified type as inscribed, or (and) as order, or (and) as bearer securities
may be excluded by the legislation.
Article 1461. Confirmation of Rights to Security
1. The confirmation of the right to a documentary security shall be the
security itself. In the instance of transfer of a documentary security for
storage to a professional participant of the securities market which is
entitled to carry out such storage in accordance with a special permit
(license) granted to it or with legislative acts, the confirmation of rights to
that security shall be a statement of account opened by that professional
participant of the securities market for record-keeping of that security. In
case of discrepancies between the documentary security and the statement of the
mentioned account, the statement shall have the priority.
2. The confirmation of the right to a non-documentary security shall be
a statement of account opened by that professional participant of the
securities market for record-keeping of that security.
3. The order of opening and operation of accounts for record-keeping of
securities and also requirements to the content and formalization of statements
of such accounts are determined by the legislation.
4. Specific features of confirmation of rights to an equity security are
determined by the legislative acts on securities.
Article 1462. Exercising Rights on Security
Exercising rights certified by a security is possible upon presentation
of the security, and in the instances provided for by the legislation upon
presentation of the statement of account opened for record-keeping of that
security, unless otherwise established by the legislation.
Article 147. Transfer of Rights Certified by Security
1. In order to transfer to another
person the rights certified by a bearer security it shall be sufficient to hand
over the security to this person.
2. The rights certified by an
inscribed security shall be transferred in the procedure established for the
assignment of demands (cession). In accordance with Article 361 of this Code a
person who has transferred the rights certified by a security shall bear
liability only for the invalidity of the respective demand, but not for the
failure to perform it.
3. The rights certified by an order
security shall be transferred by means of making an inscription of transfer on
this security—an endorsement. The endorser shall bear liability not only for
the existence of the right, but also for the effectuation thereof.
An endorsement made on a security shall pass all the rights certified by
the security to the person to whom or to the order of whom the rights certified
by the security are transferred—the endorsee. An endorsement may be in blank
(without specifying the person to whom performance must be made) or to order
(specifying the person to whom or to the order of whom performance must be
made).
An endorsement may be limited only to a commission to exercise the
rights certified by the security without the transfer of these rights to the
endorsee (endorsement of entrustment). In this event the endorsee shall act as
a representative.
4. Specific features of transfer of rights on equity securities are
determined by the legislative acts on securities.
Article 148. Performance Relating to Security
1. The person who has issued a
security and all the persons who have endorsed it shall be liable to the legal
possessor thereof jointly and severally. In the event of the satisfaction of
the demand of the legal possessor of the security concerning the performance of
the obligation certified by it by one or several persons from among those who
are obliged before him according to the security, they shall acquire the right
of a demand for indemnification (regression) against the other persons who are
obliged with regard to the security.
2. A refusal to perform an
obligation certified by a security by referring to the absence of grounds of
the obligation or to its invalidity shall not be permitted. The possessor of a
security who has discovered a forgery or a counterfeit security shall have the
right to submit to the person who transferred the security to him a demand for
proper performance of the obligation certified by the security and for
compensation of losses.
Article 149. Reinstatement of Rights to Security
The rights relating to lost bearer securities and order securities shall
be reinstated by a court in accordance with the procedure provided for by
procedural legislation.
Article 150. Non-Documentary Securities
1. Rights to non-documentary securities shall arise from the moment of
entry of records of those securities to the account of acquirer, opened for
record-keeping of securities.
In the instances determined by the legislative acts or in accordance
with the procedure established by them, the account opened for record-keeping
of non-documentary securities shall reflect (fix) arising, transfer
(assignment), change and termination of rights to non-documentary securities,
and also encumbrances of those rights.
CHAPTER 8
Nonmaterial Benefits and Defense Thereof
Article 151. Nonmaterial Benefits
1. Life and health, the dignity of
the person, personal inviolability, honour and good
name, business reputation, inviolability of private life, personal and family
secrecy, the right of free movement, and choice of place of sojourn and
residence, the right to name, copyright, other personal non-property rights and
other nonmaterial benefits which belong to a citizen from birth or by virtue of
the act of legislation shall be inalienable and not transferable by other
means. In the instances and in accordance with the procedure provided for by
the legislation, personal non-property rights and other nonmaterial benefits
which belonged to a deceased person may be effectuated and defended by other
persons, including heirs of the possessor of the right.
2. Nonmaterial benefits shall be
defended in accordance with the civil legislation in the instances and
procedure provided for by this legislation, and also in those instances and
within those limits in which the use of the means of the defense of civil
rights (Article 11) arises from the essence of the violated nonmaterial right
and the character of the consequences of this violation.
Article 152. Compensation of Moral Harm
If moral harm has been caused to a citizen (physical or moral suffering)
by actions violating his personal non-property rights or infringing on other
nonmaterial benefits belonging to a citizen, and also in other instances
provided for by the legislation, the citizen has the right to demand monetary
compensation of the said harm from the offender.
When determining the amounts of contributory compensation of moral harm
the court shall take into account the degree of fault of the offender and other
circumstances deserving of attention. The court must also take into account the
extent of physical and moral suffering connected with the individual
peculiarities of the person to whom harm was caused.
Article 153. Defense of Honour, Dignity, and
Business Reputation
1. A citizen shall have the right to demand through a court the
refutation of information defaming his honour, dignity,
or business reputation, unless the spreader of such information proves that it
corresponds to reality.
Upon the demand of interested persons the defense of the honour and dignity of a citizen shall also be permitted
after his death.
2. If information defaming the honour,
dignity, or business reputation of the citizen has been spread in the mass
media, it must be refuted in the same mass media.
If the said information is contained in a document issued by an
organization, the document shall be subject to replacement or recall.
The procedure for refutation in other instances shall be established by
a court.
3. A citizen with respect to whom
the mass media have published information impinging upon his rights or interests
protected by the legislation shall have the right to publication of his reply
in the same mass media.
If the decision of a court has not been fulfilled, the court shall have
the right to impose a fine on the offender to be recovered in the amount and in
accordance with the procedure provided for by procedural legislation to the
revenue of the Republic of Belarus. The payment of the fine shall not relieve
the offender from the duty to fulfill the action provided for by the court
decision.
5. A citizen with respect to whom
information has been spread which defames his honour,
dignity or business reputation shall have the right, together with the
refutation of such information, to demand compensation of losses and moral harm
caused by the spreading thereof.
6. If it is impossible to establish
the person who has spread information defaming the honour,
dignity, or business reputation of a citizen, the person with respect to whom
such information has been spread shall have the right to apply to a court with
a statement concerning recognition that the information being spread does not
correspond to reality.
7. The rules of this Article
concerning the defense of business reputation of a citizen respectively shall
apply to the defense of the business reputation of a legal person, except for
compensation of moral harm.
SUBSECTION 4
TRANSACTIONS AND REPRESENTATION
CHAPTER 9
Transactions
§ 1. Concept, Types, and Forms of Transactions
Article 154. Concept of Transaction
The actions of citizens and legal persons directed towards the
establishment, change, or termination of civil rights and duties shall be
deemed to be transactions.
Article 155. Contracts and Unilateral Transactions
1. Transactions may be bilateral or multilateral (contracts), and
unilateral.
2. A transaction, for the conclusion of which in accordance with the
legislation or by agreement of the parties the expression of the will of one
party is necessary and sufficient shall be considered to be unilateral.
3. The expression of the concordant will (actions) of two parties
(bilateral transaction), or of three or more parties (multilateral transaction)
shall be necessary for the conclusion of a contract.
Article 156. Duties Regarding Unilateral Transaction
A unilateral transaction shall create duties for the person who has
concluded the transaction. It may create duties for other persons only in the
instances established by the legislative acts or by agreement with those
persons.
Article 157. Legal Regulation of Unilateral Transactions
The general provisions on obligations and on contracts shall apply to
unilateral transactions respectively insofar as this is not contrary to a
legislation or to the unilateral character and essence of the transaction.
Article 158. Transactions Concluded Under a Condition
1. A transaction shall be considered
to be concluded under a condition suspensive if the parties have made the
arising of rights and duties dependent upon a circumstance relative to which it
is unknown as to whether this will ensue or not.
2. A transaction shall be considered
to be concluded under a condition resolutive if the
parties have made the termination of rights and duties dependent upon a
circumstance relative to which it is unknown whether this will ensue or not.
3. If the ensuing of the condition
is obstructed by a party not in good faith for whom the ensuing of the
condition is disadvantageous, the condition shall be deemed to have ensued.
If the ensuing of the condition is facilitated by a party not in good
faith for whom the ensuing of the condition is advantageous, the condition
shall be deemed not to have ensued.
Article 159. Form of Transactions
1. Transactions shall be concluded
orally or in written form (simple or notarial).
2. A transaction which may be
concluded orally shall be considered to be concluded also when from the behaviour of the person his will to conclude the
transaction is obvious.
3. Silence shall be deemed to be an expression of will to conclude a
transaction in the instances provided for by the legislation or by agreement of
the parties.
Article 160. Oral Transactions
1. A transaction for which the
written (simple or notarial) form has not been established by the legislation
or by agreement of the parties may be concluded orally.
2. Unless otherwise established by
agreement of the parties, all transactions to be performed by those who
concluded them themselves may be concluded orally, except for transactions for
which the notarial form has been established and transactions the failure to
comply with the simple written form of which entails their invalidity.
3. Transactions in performance of a
contract concluded in written form may, by agreement of the parties, be
concluded orally unless this is contrary to the legislation and a contract.
Article 161. Written Form of Transaction
I. 1. A
transaction in written form must be concluded by means of drawing up a text
document, including a document in electronic form (electronic document)
expressing the content thereof which is signed by the person or persons concluding
the transaction, or by persons duly authorized by them in own hand or using
means of communication and other technical means, computer programs,
information systems or information networks, if such a method of signing allows
to reliably establish that the corresponding text is signed by the person or
persons concluding the transaction, or by persons duly authorized by them
(facsimile reproduction of a handwritten signature using mechanical or other
copying, electronic digital signature or other analogue of the handwritten
signature ensuring identification of the person or persons concerned), and does
not contradict the law and agreement of the parties.
In the cases
provided for by the legislative acts, only the methods of making transactions
in a simple written form, determined by them, are allowed.
Bilateral (multilateral) transactions may be concluded by the means
established by Article 404(2) and (3) of this Code.
Additional requirements to which the form of the transaction must conform
may be established by the legislation, and by agreement of the parties
(conclusion on a letterhead of a specified form, etc.), and consequences
provided for the failure to comply with these requirements. If such
consequences have not been provided, the consequences of the failure to comply
with the simple written form of a transaction shall apply (Article 163(1)).
2. [Excluded]
3. If a citizen as a consequence of
physical defect, illness, or illiteracy cannot sign in his own hand, then at
his request another citizen may sign a document expressing the content of a
transaction.
The signature of the citizen who
signs a document expressing the content of a transaction must be certified by a
notary or by another official having the right to perform such a notarial
action, specifying the reasons by virtue of which the person concluding the
transaction could not sign a document expressing the content of a transaction
in his own hand.
The signature of the individual who
signs a document expressing the content of a transaction that need not to be
certified by a notary, or of the individual who signs a power of attorney for
its conclusion may be certified also by the organization in which the citizen
who cannot sign in his own hand works or studies, by the organization which
carries out the operation and maintenance of housing facilities and (or)
providing housing and utility services in the place of residence or by a
healthcare organization that carries out medical assistance in hospitals in
which the citizen undergoes treatment. Mentioned organization are not entitled
to deny a citizen who cannot sign in his own hand, in his request to certify a
signature of the individual who signs the document expressing the content of a
transaction that need not to be certified by a notary, or the individual who
signs a power of attorney for its conclusion.
Article 162. Transactions Concluded in Simple Written Form
There must be concluded in simple written form, except for transactions
requiring notarial certification:
1) transactions of legal persons between themselves and with citizens;
2) transactions of citizens between themselves for an amount exceeding
not less than ten times the basic value, established by the legislation, unless
otherwise provided by the legislation.
Compliance with the simple written form shall not be required for
transactions which in accordance with Article 160 of this Code may be concluded
orally.
Article
163. Consequences of Failure to Comply with Simple Written Form of Transaction
1. The failure to comply with the simple written form of a transaction
shall deprive the parties of the right in the event of a dispute to refer in
confirmation of the transaction and its conditions to witness testimony, but
shall not deprive them of the right also to cite written and other evidence,
not being the witness testimony.
2. In the instances expressly specified in a legislation or in the
agreement of the parties the failure to comply with the simple written form of
a transaction shall entail its invalidity.
3. The failure to comply with the simple written form of a foreign
economic transaction shall entail the invalidity of the transaction
Article 164. Notarially Certified Transactions
1. The notarial certification of a transaction shall be effectuated by
means of the performing on the document of an endorsement of certification
corresponding to the requirements of Article 161 of this Code by a notary or
other official having the right to perform such a notarial action.
2. Notarial certification of transactions shall be obligatory:
1) in the instances specified in a legislation;
2) in the instances provided for by agreement of the parties, although
according to a legislation for transactions of the particular type this form is
not required.
Article 165. State Registration of Transactions
1. Transactions with immovable property shall be subject to state
registration in accordance with the procedure provided for by this Code and the
legislation on the registration of immovable property, rights to it and
transactions with it, unless otherwise established by legislative acts..
2. State registration of transactions with movable property of
determined types may be established by the legislation.
Article
166. Consequences of Failure to Comply with Notarial Form of Transaction and
Requirements for Registration Thereof
The failure to comply with the notarial form or the requirements concerning
state registration of a transaction shall entail its invalidity. Such a
transaction shall be considered to be void.
If one of the parties wholly or partially has performed a transaction
requiring notarial certification, and the other party has evaded such
certification of the transaction, the court shall have the right at the demand
of the party who performed the transaction to deem the transaction to be valid.
In this event subsequent notarial certification of the transaction shall not be
required.
If a transaction requiring state registration has been concluded in the
proper form but one of the parties evades the registration thereof, a court
shall have the right at the demand of the other party to render a decision
concerning registration of the transaction. In this event the transaction shall
be registered in accordance with the decision of the court.
In the instances provided for by Clauses 2 and 3 of this Article the
party who unjustifiably evades notarial certification or state registration of
a transaction must compensate the other party for losses caused by the delay in
concluding or registering the transaction.
§ 2. Invalidity of Transactions
Article 167. Contested and Void Transactions
1. A transaction shall be invalid on the grounds established by this
Code or other legislative acts by virtue of being deemed such by a court
(contested transaction) or irrespective of such deeming (void transaction).
2. A demand to establish the fact of voidness
of the transaction and to apply the consequences of the invalidity may be
submitted by any interested persons. The court has the right to establish the
fact of voidness of the transaction at its own
initiative. In this case the court applies the consequences of the invalidity
of the void transaction.
3. A demand to invalidate a contested transaction may be brought by the
persons specified in this Code or in other legislative act, establishing the
contestability of the transaction.
Article
168. General Provisions on Consequences of Invalidity of Transaction
1. An invalid transaction shall not
entail legal consequences, except for those which are connected with its
invalidity, and shall be invalid from the time of its conclusion. However, If
it follows from the content of the transaction that it may be only terminated
for a future time, the court deeming the transaction to be invalid shall
terminate its operation for a future time.
2. In the event of the invalidity of
a transaction, each of the parties shall be obliged to return to the other
everything received according to the transaction, and if it is impossible to
return that received in kind (including when that received is ex pressed in the
use of property, work fulfilled, or service rendered), to compensate its value
in money, unless other consequences of the invalidity of the transaction have
been provided for by this Code or other legislative acts.
Article 169. Invalidity of Transaction Not Conforming to the Legislation
A transaction not corresponding to the requirements of the legislation shall
be void unless the legislation establishes that such a transaction is
contestable or provides other consequences for the violation.
Article
170. Invalidity of Transaction, Conclusion of Which is Prohibited by the
Legislation
A transaction conclusion of which is prohibited by the legislation,
shall be void.
When both parties to such a transaction have intent, in the event of
performance of the transaction by both parties, everything received by them
under the transaction shall be recovered to the revenue of the Republic of
Belarus, and in the event of the performance of the transaction by one party,
from the other party, everything received and everything due from it to the
first party (in compensation of that received) shall be recovered for the revenue
of the Republic of Belarus.
When only one party of such a transaction has intent, everything
received by it under the transaction must be returned to the other party, and
everything received by the latter or due to it in compensation of that
performed shall be recovered to the revenue of the Republic of Belarus.
Article 171. Invalidity of Fictitious and Sham Transactions
l. A fictitious transaction, that is, a transaction concluded only for form,
without the intention to create legal consequences corresponding to it, shall
be void.
2. A sham transaction, that is, a transaction which is concluded for the
purpose of concealing another transaction, shall be void. To the transaction
which the parties actually had in view, taking into account the essence of the
transaction, shall apply the rules relevant thereto.
Article
172. Invalidity of Transaction Concluded by Citizen Deemed to Lack Active Legal
Capacity
1. A transaction concluded by a citizen deemed to lack active legal
capacity as a consequence of mental disorder (disease) shall be void.
Each of the parties to such a transaction shall be obliged to return to
the other everything received in kind, and if it is impossible to return that
received in kind, to compensate its value in money.
The party having active legal capacity shall be obliged, in addition, to
compensate to the other party the real damage incurred by it if the party
having active legal capacity knew or should have known about the lack of active
legal capacity of the other party.
2. In the interests of a citizen deemed to lack active legal capacity as
a consequence of mental disorder (disease), the transaction concluded by him
may, at the demand of his trustee, be deemed by a court to be valid if it was
concluded to the advantage of this citizen.
Article
173. Invalidity of Transaction Concluded by Minor Who Has Not Attained Fourteen
Years of Age
1. A transaction concluded by a minor who has not attained fourteen
years of age (juvenile) shall be void. To such transaction shall apply the
rules provided for by Article 172(1), parts two and three, of this Code.
2. In the interests of the juvenile, a transaction concluded by him may
at the demand of his parents, adoptive parents, or trustee be deemed by a court
to be valid if it was concluded to the advantage of the juvenile.
3. The rules of this Article shall not extend to petty domestic and
other transactions of juveniles which they have the right to conclude
autonomously in accordance with Article 27 of this Code.
Article
174. Invalidity of Transaction of Legal Person Exceeding the Limits of Its
Legal Capacity
A transaction concluded by a legal person which is contrary to the
purposes of its activity, or by a legal person not having a special permit
(license) to engage in the respective activity, may be deemed by a court to be
invalid upon the suit of the owner of property (founder, participant) of this
legal person, or the state body carrying out control or supervision over the activity
of the legal person, if the other party to the transaction knew or was obliged
to know, by virtue of the act of legislation, about the illegality of
transaction, but has concluded the deal intentionally or by negligence.
Article
175. Consequences of Limitation of Powers to Conclude Transaction
If the powers of a person to conclude a transaction have been limited by
a contract, or the powers of the body of a legal person have been limited by
its constituent documents, in comparison with those as determined in a power of
attorney or in a legislation, or which may be considered to be obvious from the
situation in which the transaction was concluded, and when concluding it such
person or body exceeded these limitations, the transaction may be deemed by a court
to be invalid upon the suit of the person in whose interests the limitations
were established.
Article
176. Invalidity of Transaction Concluded by Minor from Fourteen to Eighteen
Years of Age
A transaction concluded by a minor from fourteen to eighteen years of
age without the consent of his parents, adoptive parents, or guardian, in the
instances when such consent is required in accordance with Article 25 of this
Code, may be deemed by a court to be invalid upon the suit of the parents,
adoptive parents, or guardian. If such transaction is deemed to be invalid, the
rules provided for by Article 172(1), paragraphs two and three, of this Code
shall apply respectively.
Article
177. Invalidity of Transaction Concluded by Citizen Not Capable to Understand
the Meaning of His Actions or Guide These Actions
1. A transaction concluded by a citizen, although having active legal
capacity but being, at the time of concluding, in such a state that this
citizen was not capable to understand the meaning of his actions or to guide
these actions, may be deemed by a court to be invalid upon the suit of this
citizen or other persons whose rights or interests protected by legislation
have been violated as a result of the conclusion thereof.
2. A transaction concluded by a
citizen who is subsequently deemed to lack active legal capacity may be deemed
by a court to be invalid upon the suit of his trustee if it is proved that at
the time of concluding the transaction the citizen was not capable to
understand the meaning of his actions or guide these actions.
3. If a transaction is deemed to be
invalid on the grounds of this Article, the rules provided for by Article
172(1), paragraphs two and three, of this Code shall apply respectively.
Article
178. Invalidity of Transaction Concluded by Citizen Limited by Court in Active
Legal Capacity
1. A transaction relating to the disposition of property concluded
without the consent of the guardian by a citizen limited by a court in active
legal capacity may be deemed by a court to be invalid upon the suit of the
guardian. If such transaction has been deemed to be invalid, the rules provided
for by Article 172(1), paragraphs two and three, of this Code shall apply
respectively.
2. The rules of this Article shall not extend to transactions which a
citizen limited in active legal capacity has the right to conclude autonomously
in accordance with Article 30 of this Code.
Article
179. Invalidity of Transaction Concluded Under Influence of Delusion
l. A transaction concluded under the influence of delusion having
material significance may be deemed to be invalid by a court upon the suit of
the party who acted under the influence of delusion.
Delusion relative to the essence of the transaction, the identity or such
qualities of its subject which significantly reduce the possibility of using it
for its purpose shall have material significance. Delusion relative to the
motives for the transaction shall not have material significance.
2. If the transaction is deemed to be invalid as concluded under the
influence of delusion, the rules provided for by Article 168(2) of this Code
shall apply respectively.
In addition, the party at whose suit the transaction was deemed to be
invalid shall have the right to demand from the other party compensation for
real damage caused to it, if it would prove that the delusion arose through the
fault of the other party. If this would not be proved, the party at whose suit
the transaction was deemed to be invalid shall be obliged to compensate the
other party at its demand for real damage caused to it, even if the delusion
arose through circumstances not dependent upon the deluded party.
Article
180. Invalidity of Transaction Concluded Under Influence of Fraud, Coercion,
Threat, or Ill-intentioned Agreement of Representative of One Party with Other
Party or Confluence of Grave Circumstances
1. A transaction concluded under the
influence of fraud, coercion, threat, or ill- intentioned agreement of a
representative of one party with the other party, and also a transaction which
a person was forced to conclude as a consequence of the confluence of grave
circumstances on conditions extremely disadvantageous for himself which the
other party took advantage of (bondage transaction) may be deemed by a court to
be invalid upon the suit of any interested person.
2. If the transaction was deemed
invalid on one of the grounds specified in Clause 1 of this Article, then the
other party shall return to the victim everything received by it under the transaction,
and if it is impossible to return everything received in kind, the value
thereof shall be compensated in money. Property received under a transaction by
the victim from the other party, and also that due to it in compensation of
that transferred to the other party, shall be recovered to the revenue of the
Republic of Belarus. If it is impossible to transfer the property to the
revenue of the state in kind, the value thereof in money shall be recovered. In
addition, the victim shall be compensated by the other party for real damage
caused to it.
Article 181. Consequences of Invalidity of Part of Transaction
The invalidity of part of the transaction shall not entail the
invalidity of its other parts if it is possible to suppose that the transaction
would have been concluded also without including the invalid part thereof.
Article 182. Periods of Limitations Regarding Invalid Transactions
1. A lawsuit concerning recognizing
the fact that the transaction is void and the application of the consequences
of the invalidity of a void transaction may be brought within ten years from
the date when the performance thereof commenced.
Legislative acts may establish other
time limits to present lawsuits to establish a fact of voidance of certain
types of transactions and on application of consequences of the invalidity of
such transactions.
2. A suit to deem a contested
transaction to be invalid or concerning the application of the consequences of
its invalidity may be brought within three years from the date of the
termination of the coercion or threat, under influence of which the transaction
was concluded (Article 180(1)), or from the date when the plaintiff knew or
should have known about other circumstances which are the grounds for deeming
the transaction to be invalid.
CHAPTER 10
Representation. Power of Attorney
Article 183. Representation
1. A transaction concluded by one person (representative) in the name of
another person (person represented) by virtue of a power based on a power of attorney,
legislation, or act of an authorized state body or body of local administration
or self- government shall directly create, change, and terminate civil rights
and duties of the person represented.
A power also may be obvious from the situation in which the
representative acts (seller in retail trade, cashier, and others).
2. Persons acting, although in the interests of another but in their own
name (executors in the event of inheritance, and so on), and also persons
authorized to enter into negotiations relative to possible future transactions
and temporal (anti-crisis) managers within the procedure of bankruptcy are not
considered representatives.
3. A representative may not conclude
transactions in the name of the person represented with respect to the
representative himself personally. He also may not conclude such transactions
with respect to another person whose representative he is simultaneously,
except for instances of commercial representation.
4. The conclusion through a
representative of a transaction which by its character may be concluded only
personally, and likewise other transactions specified in a law, shall not be
permitted.
Article 184. Conclusion of Transaction by Unauthorized Person
1. In the absence of powers to act in the name of another person or in
the event of exceeding such powers, the transaction shall be considered to be
concluded in the name of and in the interests of the person who concluded it
unless the other person (person represented) subsequently approves expressly
the particular transaction.
2. Subsequent approval of a transaction by the person represented shall
create, change, and terminate civil rights and duties for him with regard to
the particular transaction from the time of its conclusion.
Article 185. Commercial Representation
1. A person who permanently and
autonomously is representing in the name of entrepreneurs when they conclude
contracts in the sphere of entrepreneurial activity shall be a commercial
representative.
2. The simultaneous commercial representation
of various parties in a transaction shall be permitted with the consent of
these parties and in other instances provided for by the legislation. In so
doing, the commercial representative shall be obliged to perform the
commissions given to him with the care of an ordinary entrepreneur.
A commercial representative shall have the right to demand the payment
of stipulated remuneration and compensation for costs incurred by him when
performing the commission from the parties to the contract in equal shares
unless otherwise provided by agreement between them.
3. A commercial representation shall be effectuated on the basis of a
contract concluded in written form and containing an indication of the powers
of the representative, and in the absence of such indications, also a power of
attorney.
A commercial representative shall be obliged to preserve the confidence
of the information which became known to him concerning trade transactions also
after the performance of the commission given to him.
4. The peculiarities of commercial representation in individual spheres
of entrepreneurial activity shall be established by the legislation.
Article 186. Power of Attorney
1. A power of attorney is recognized a written
power being issued having regard to requirements of this Article by one person
to another person for representation to third persons. A written power to conclude a
transaction by a representative may be presented by the person represented
directly to the respective third person.
2. A power of attorney to conclude
transactions requiring the notarial form must be certified notarially
or in accordance with clause 3 of this Article, except for instances provided for by the
legislative acts.
3. There shall be equated to notarially certified
powers of attorney:
1) powers of attorney of military servicemen and other persons being
treated in military hospitals, sanatoriums, and other military medical
institutions certified by the head of such institution, his deputy for medical
affairs, the senior doctor or doctor on duty;
2) powers of attorney of military servicemen, and, in places of location
of military units, formations, institutions, and education institutions
performing training of personnel on specializations (areas of specializations,
specializations) for Armed Forces of the Republic of Belarus, other troops and
military formations of the Republic of Belarus, where there are no notarial
offices, notarial bureaus or other bodies which perform notarial actions, also
the powers of attorney of civil workers and employees, working in these
military units, formations, institutions, members of their families and members
of the families of military servicemen, certified by the commander (head) of
these units, formations or institutions;
3) powers of attorney of persons held in institutions for the service of
punishment in the form of arrest, restriction of freedom, deprivation of
freedom, or places of detention, certified by heads of the respective
institutions for the service of punishment or chiefs of administrations of the
places of detention;
4) [excluded]
5) powers of attorney of citizens being treated in hospitals and other
healthcare organizations that provide medical care in hospital, or living in
social care institutions providing in-patient social services, certified by
chief doctors, their deputies on medicine or on-duty doctors of these clinics,
hospitals and other healthcare organizations providing medical care in
in-patient premises, as well as heads of hospitals, heads (their deputies) of
social care institutions providing in-patient social services, heads (their
deputies) of respective bodies on labour, employment
and social protection.
4. A power of attorney to receive by citizens earnings and other payment
connected with labor relations, to receive the remuneration of authors and
inventors, pensions, benefits, and scholarships, deposits of citizens in banks
and non-bank credit and financial institutions and to receive mail (including
money, send by mail, and parcels), may be certified certified notarially
or in accordance with clause 3 of this Article or by the organization in which the principal
works or studies, the organization which carries out the operation and
maintenance of housing facilities and (or) providing housing and utility
services in his place of residence.
Powers of attorney for receiving by the citizens pensions and benefits
may also be certified by the rural (settlement) executive committee at the
place of residence of the citizen.
Powers of attorney for receiving by the citizens payments in banks or
non-bank credit and financial organizations, as well as to order monetary funds
of citizens, placed on their bank accounts or placed in their bank deposits,
may be certified also by the bank or non-bank credit and financial organization
in which the bank account is open or the bank deposit is placed.
In case if a citizen applies for a certification of the power of
attorney referred to in parts one – three of this clause, the organization in
which the principal works or studies, organization, carrying out the
exploitation of the housing stock and (or) providing housing and utility
services, or the rural (settlement) executive committee at his place of
residence, bank or non-bank credit and financial organization, in which its
bank account is opened or his bank deposit is placed are obliged to certify
such power of attorney if its content does not contradict the requirements of
this Code and other legislative acts.
5. A power of attorney in the name of a legal person shall be issued
over the signature of its head or other person authorized by the constituent
document of this organization. The head of a legal person operates, within the
scope of its competent authority, on behalf thereof without a power of
attorney.
A power of attorney in the name of a legal person based on the ownership
of the Republic of Belarus or its administrative territorial units for the
receipt or issuance of money and other property valuables must be signed also
by the chief accountant of this organization, head of an organization or
individual entrepreneur, providing services on maintaining accounting and
drawing up financial statements.
6. The power of attorney enters into force from the day of its execution
in a necessary form when the certification of this power of attorney is not
needed, or from the day of its certification when it is needed, unless a later
time limit for its entry into force provided by the power of attorney.
Article 187. Term of Validity of Power of Attorney
1. The term of validity of a power of attorney may not exceed three
years. If the term has not been specified in the power of attorney, it shall
retain force for a year from the date of the conclusion thereof. A power of
attorney in which the date of its conclusion has not been specified shall be
void.
2. A power of attorney certified by a notary and intended for the
performance of actions abroad and not containing an indication of the term of
its operation shall retain force until the revocation thereof by the person who
has issued the power of attorney.
Article 188. Transfer of Power of Attorney
1. A person to whom the power of
attorney was issued must personally perform those actions for which he is
authorized. This person may transfer the performing of these actions to another
person if authorized to do so by the power of attorney or forced to do it by
virtue of circumstances in order to protect the interests of the person who
issued the power of attorney.
2. A power of attorney issued by way
of transfer must be notarially certified, except for
instances provided for by Article 186(4) of this Code.
3. A term of validity of a power of
attorney issued by way of transfer may not exceed the term of validity of the
power of attorney on the basis of which it was issued.
4. The person who transferred the
power of attorney to another person must notify the person who issued the power
of attorney thereof and communicate to him necessary information about the
person to whom the powers have been transferred. The failure to perform this
duty shall place on the person who transferred the power liability for the
actions of the person to whom he transferred the power as they were his own.
Article 189. Termination of Power of Attorney
1. The operation of a power of attorney shall terminate as a consequence
of:
1) expiry of the term of validity of the power of attorney;
2) revocation of the power of attorney by the person who issued it;
3) renunciation by the person to whom the power of attorney was issued;
4) termination of the legal person in whose name the power of attorney
was issued;
5) termination of the legal person to whom the power of attorney was
issued;
6) death of the citizen who issued the power of attorney, deeming him to
lack active legal capacity, limited active legal capacity, or to be missing;
7) death of the citizen to whom the power of attorney was issued,
deeming him to lack active legal capacity, limited active legal capacity, or to
be missing.
2. A person who issued the power of
attorney may at any time revoke the power of attorney or the transfer of the
power of attorney, and the person to whom the power of attorney was issued, may
renounce it. An agreement concerning the waiver of these rights shall be void.
3. The transfer of a power of
attorney shall lose force with the termination of the power of attorney.
Article 190. Consequences of Termination of Power of Attorney
1. A person who has issued a power
of attorney and subsequently revoked it shall be obliged to notify the person
to whom the power of attorney was issued about the revocation thereof, as well
as third persons known to him with respect to whom the power of attorney was
issued for representation. The same duty shall be placed on the legal
successors of the person who issued a power of attorney in instances of the
termination thereof on the grounds provided for in Article 189(1), sub-clauses
(4) and (6), of this Code.
2. The rights and duties which arose
as a result of the actions of the person to whom a power of attorney is issued
before this person knew or should have known about its termination shall retain
force for the person who issued the power of attorney and his legal successors
with respect to third persons. This rule shall not apply if the third person
knew or should have known that the operation of the power of attorney had
terminated.
3. With regard to the termination of a power of attorney the person to
whom it was issued or his legal successors shall be obliged immediately to
return the power of attorney.
SUBSECTION 5
TERMS. LIMITATION PERIOD
CHAPTER 11
Calculation of Terms
Article 191. Determination of Term
A term established by the legislation, a transaction, or designated by a
court shall be determined by a calendar date or by the expiry of a period of time
which shall be calculated by years, months, weeks, days, or hours.
A term may also be determined by specifying an event which must
inevitably ensue.
Article 192. Commencement of Term Determined by Period of Time
The running of a term determined by a period of time shall commence on
the following day after the calendar date or ensuing of the event by which its
commencement is determined.
Article 193. Ending of Term Determined by Period of Time
1. A term calculated by years shall expire in the corresponding month
and date of the last year of the term.
The rules for terms calculated by months shall apply to a term
calculated by a half-year. For these purposes, a half-year is considered as
equal to six months.
2. To a term calculated by quarters
of a year shall apply the rules for terms calculated by months. The quarter
shall be considered to be equal to three months, and the quarters shall be
calculated from the beginning of the year.
3. A term calculated by months shall
expire on the corresponding date of the last month of the term.
A term determined as a half-month shall be considered as a term
calculated by days and shall be considered to be equal to fifteen days.
If the ending of a term calculated by months comes in such month in
which there is no corresponding date, the term shall expire on the last day of
that month.
4. A term calculated by weeks shall expire on the corresponding day of
the last week of the term.
Article 194. Ending of Term on Non-Working Day
If the last day of a term comes on a non-working day, the next working
day following shall be considered to be the day of ending of the term.
Article 195. Procedure for Performing Actions on Last Day of Term
1. If a term has been established for performing any action whatever, it
may be fulfilled up to 24:00 of the last day of the term.
However, if this action had to be performed in an organization, the term
shall expire at that hour when in this organization the respective operations
terminate according to the established rules.
2. Written applications and notifications handed in to the post office,
telegraph or other communication institution before 24:00 of the last day of
the term shall be considered to be made within the term.
CHAPTER 12
Limitation Period
Article 196. Concept of Limitation Period
The term for the defense of a right upon the suit of a person whose
right has been violated shall be deemed to be a Limitation Period.
Article 197. General Limitation Period
The general limitation period shall be three years.
Article 198. Special Limitation Periods
1. Special limitation periods may be
established for individual types of requirements by this Code and other
legislative acts which are reduced or extended in comparison with the general
period.
2. The rules of Articles 199-208 of
this Code also cover special limitation period unless otherwise established by
this Code and other legislative acts.
Article
199. Invalidity of Agreement to Change of Limitation Period
Limitation periods and the procedure for their calculation may not be
changed by agreement of the parties.
The grounds for the suspension and interruption of the running of
limitation periods shall be established by the legislative acts.
Article 200. Application of Limitation Period
1. A demand concerning the defense
of a violated right shall be accepted for consideration by a court irrespective
of the expiry of the limitation period.
2. Limitation period shall be
applied by a court only upon the declaration of the party to the dispute to be
made before the court renders the decision.
The expiry of the limitation period, about the application of which the
party to the dispute has made the declaration, shall be the ground for the
court to render a decision to reject the suit.
Article
201. Commencement of Limitation Period
1. The limitation period shall commence on the day when the person knew
or should have known about the violation of its right. Exceptions from this
rule shall be established by the legislative acts.
2. With regard to obligations with a specified period of performance,
the limitation period shall commence upon the end of the period of performance.
With regard to obligations the term for the performance of which has not
been determined or has been determined by the time of demand, the limitation
period shall commence when the right arises for the creditor to submit a demand
concerning the performance of the obligation, and if the debtor is granted an
exemption term for performance of such demand, the calculation of limitation
period shall commence upon the ending of the said term.
3. With regard to regressive obligations the limitation period shall
commence on the moment of performance of the principal obligation.
Article
202. Limitation Period in Event of Change of Persons in Obligation
The change of persons in an obligation shall not entail a change of the
limitation period and the procedure for its calculation.
Article 203. Suspension of Limitation Period
1. The limitation period shall be suspended;
1) if the bringing of suit has been hindered by an extraordinary and
unavoidable circumstance under the particular conditions (force majeure);
2) if the plaintiff or defendant is in the Armed Forces of the Republic
of Belarus, being under the martial law;
3) by virtue of a deferral for the performance of obligations
established on the basis of a legislative act by the Government of the Republic
of Belarus (moratorium);
4) by virtue of the suspension of the operation of the act of
legislation regulating the respective relation;
5) if a pre trial complaint has been
presented;
6) if the agreement on the implementation of mediation is
concluded.
2. The limitation period shall be
suspended on condition that the circumstances specified in this Article arose
or have continued to exist during the last six months of the limitation period,
and if this period is equal to six months or less than six months, within the
limitation period.
3. The running of the period shall
continue from the date of termination of the circumstances being the grounds
for suspension of the limitation. The remaining part of the period shall be
extended up to six months, and if the limitation period is equal to six months
or less than six months, up to the limitation period.
In case of conclusion of the
agreement on the implementation of the mediation the limitation period shall be
postponed from the day of the conclusion of such an agreement till the day of
the termination of the mediation.
When a pre-trial complaint has been
presented, the running of the limitation period is suspended from the day of
sending of the pre-trial complaint till the receipt of the response to the
pre-trial complaint or expiration of the time limit for response established by
the legislation or the contract.
Article
204. Interruption of Running of Limitation Period
The running of the limitation period shall be interrupted by bringing
suit in the established procedure, and also by the performance of actions by
the obliged person which testify to recognition of the debt.
After the interruption, the running of the limitation period shall
commence anew. The time which elapsed before interruption shall not be taken
into consideration in the new period.
Article
205. Running of Limitation Period in Event of Leaving Suit Without
Consideration
If a suit has been left without consideration by a court, then the
running of the limitation period which commenced before bringing suit shall
continue in the general procedure.
If a suit brought in a criminal case has been left by a court without
consideration then the running of the limitation period which commenced before
bringing suit shall be suspended until the entry into legal force of the
judgment by which the suit was left without consideration. The time during
which the limitation period was suspended shall not be included in the
limitation period. In so doing, if the remaining part of the period is less
than six months, it shall be extended up to six months.
Article 206. Restoration of Limitation Period
In exceptional instances, when the court deems the reason for the
lapsing of the limitation period to be justifiable with regard to circumstances
connected with the person of the plaintiff (grave illness, helpless state,
illiteracy, and the like), the violated right of the citizen shall be subject
to defense. The reasons for the lapse of a limitation period may be deemed to
be justifiable if they occurred in the last six months of the limitation
period, and if this period is equal to six months or less than six months,
during the limitation period.
Article
207. Performance of Duty Upon Expiry of Limitation period
A debtor or other obliged person who has performed a duty upon the
expiry of the limitation period shall not have the right to demand back that
which has been performed, even though at the time of performance the said
person did not know about the expiry of the limitation period.
Article 208. Application of Limitation Period to Additional Demands
The limitation period regarding additional demands (penalty, pledge,
suretyship, and the like) shall expire with the expiry of the limitation period
regarding the principal demand.
Article 209. Demands to Which Limitation Period Do Not Extend
Limitation period shall hot extend to:
1) demands concerning the defense of personal non-property rights and
other nonmaterial benefits, except for instances provided for by the
legislation;
2) demands of depositors against a bank or a non-bank credit and
financial organization concerning the issuance of deposits;
3) demands concerning compensation of harm caused to the life or health
of a citizen. However, demands brought upon the expiry of three years from the
time of the arising of the right to compensation for such harm shall be
satisfied for not more than three years preceding the bringing of suit;
4) demands of the owner or other possessor concerning the elimination of
any violations of his right, even though these violations were not connected
with a deprivation of possession (Article 285);
5) other demands in the instances established by the legislative acts.
SECTION II
RIGHT OF OWNERSHIP AND OTHER REAL RIGHTS
CHAPTER 13
General Provisions
Article 210. Content of Right of Ownership
l. The rights of possession, use, and disposition of his property shall
belong to the owner.
2. The owner shall have the right at his discretion to perform with
respect to property belonging to him any actions which are not contrary to a
legislation, public benefit and security, not causing harm for the environment,
historical and cultural valuables, not infringing the rights and the interests,
protected by the legislation, of other persons, including the right to alienate
his property in ownership to other persons, to transfer to other persons while
remaining the owner the rights of possession, use, and disposition of the
property, to pledge out property and to encumber it by other means, and to
otherwise dispose of it.
The right of ownership of the property acquired by a unitary enterprise,
state association or institution on contracts or other grounds is acquired by
the owner of the property of this unitary enterprise, state association or
institution.
3. The possession, use, and
disposition of land and other natural resources to the extent that their
turnover is permitted by the legislation shall be effectuated by the owner
thereof freely unless this causes damage to the environment and violates the
rights and legal interests of other persons.
4. The owner may transfer his property
in trust management to another person (trustee manager). The transfer of
property to trust management shall not entail the transfer of the right of
ownership to the trust manager, who shall be obliged to effectuate the
management of the property in the interests of the owner or a third person
specified by the owner.
5. The right of ownership shall not be limited in time.
Article 211. Burden of Maintenance of Property
The owner shall bear the burden of maintenance of the property belonging
to him unless otherwise provided by legislation or contract.
Article 212. Risk of Accidental Perishing of Property
The risk of accidental perishing or accidental damaging of property
shall be borne by the owner thereof unless otherwise provided by legislation or
by contract.
Article 213. Forms and Subjects of Right of Ownership
1. The property may be the state property or the private property.
2. The subjects of the right of the
state property are the Republic of Belarus and administrative territorial units.
3. The subjects of the right of the
private property are the natural persons and non-state legal persons.
The peculiarities of the acquisition and termination of the right of
ownership to property and the possession, use, and disposition of it depending
upon whether the property is in the ownership of a citizen or legal person or
in the ownership of the Republic of Belarus or administrative territorial
units, may be established by the legislation, or, in cases provided for by the
Constitution of the Republic of Belarus, only by the law.
4. The rights of all owners shall be protected equally.
Article 214. Right of Ownership of Citizens and Legal Persons
1. Any property may be in the
ownership of citizens and legal persons, except for individual types of
property which in accordance with the legislation may not belong to citizens or
legal persons.
2. The quantity and value of
property in the ownership of citizens and legal persons shall not be limited,
except for instances when such limitations have been established by the law for
the purposes of national security, public order, protection of moralities,
health of the population, rights and freedoms of the other persons. For the
legal persons, such limitations can be established by the legislative acts.
3. The property, transferred as
contributions (dues) by the founders (the participants, the members) to the
commercial and non-commercial organizations (with the exception of the property
transferred to the unitary enterprises, state associations or to the
institutions, financed by the owner), as well as property, acquired by these
legal persons, is in the ownership of these legal persons.
4. The founders (the participants,
the members) of the commercial organization, in relation to the property, being
in the ownership of this organization, have rights of obligation, defined in
the constituent documents of this organization.
5. Public and religious
organizations, charitable and other funds shall be the owners of property
acquired by them and may use it only in order to achieve the purposes provided
for by the constituent documents thereof.
The founders (participants, members) of these organizations shall lose
the right for property transferred by them to the ownership of the respective
organization. In the event of the liquidation of such organization the property
thereof remaining after satisfaction of the demands of creditors shall be used
for the purposes specified in its constituent documents.
Article 215. Right of State Ownership
1. The state property appears as the Republic's property (the property
of the Republic of Belarus) and communal property (the property of
administrative territorial units).
2. The Republic's property consists of the treasury of the Republic of
Belarus and the property, consolidated to the Republic's legal persons in
accordance with the acts of legislation.
The funds of the Republic's budget, gold and currency holdings, the
other objects, being only in the ownership of the state, and other state
property, not consolidated to the Republic's legal persons, form the treasury
of the Republic of Belarus.
3. The communal property consists of the treasury of the administrative
territorial unit and the property, consolidated to the communal legal persons
in accordance with acts of legislation. The funds of the local budget and other
communal property, not consolidated to the communal legal persons, form the
treasury of the respective administrative territorial unit.
Article 216. The Property of the State Legal Persons
The property, being in the state ownership, may be consolidated to the
state legal persons by the right of economic management or operative
administration.
Article 217. Real Rights of Persons Who Are Not Owners
1. The rights to a thing, in addition to the right of ownership, are, in
particular
1) the right of economic management and the right of operative
administration (Articles 276 and 277);
2) the right of inheritable possession for life of a land plot;
3) the right of permanent use of a land plot and the right of temporary
use of a land plot;
4) servitudes (Article 268).
2. The transfer of the right of ownership in property to another person
shall not be grounds for the termination of other rights to a thing in this
property.
3. The rights to a thing of a person who is not an owner shall be
protected against the violation thereof in accordance with the procedure
provided for by Article 286 of this Code.
Article 218. Privatization of State Property
Privatization of the property, being in the state ownership, is
effectuated in accordance with the procedure, provided by the legislation on
privatization.
For privatization of the property, being in the Republic's and communal
ownership, the provisions, provided for by this Code, regulating the procedure
of the acquisition and termination of the right of ownership, shall apply
unless the legislation on privatization provide otherwise.
CHAPTER 14
Acquisition of Right of Ownership
Article 219. Grounds for Acquisition of Right of Ownership
1. The right of ownership to a new thing manufactured or created by a
person for himself in compliance with the legislation shall be acquired by this
person.
The right of ownership to yield, products, and revenues received as a
result of the use of property shall be acquired on the grounds provided for by
Article 136 of this Code.
2. The right of ownership to property having an owner may be acquired by
another person on the basis of a contract of purchase-sale, barter, gift, or
other transaction concerning the alienation of this property.
In the event of the death of a citizen the right of ownership to the
property belonging to him shall pass by inheritance to other persons in
accordance with the will or a law.
In the event of the reorganization of a legal person the right of
ownership to the property belonging to it shall pass to the legal persons -
legal successors of the reorganized legal person (Article 54).
Alienation of property to other person against the will of the owner is not
permitted, with the exception of cases, provided by the legislation.
3. In the instances and in accordance with the procedure provided for by
the legislation, a person may acquire the right of ownership in property which
has no owner, in property whose owner is unknown, or in property which the
owner has renounced or to which the owner has lost the right of ownership on
other grounds provided for by the legislation.
4. The member of a housing
cooperative, housing construction cooperative, country cottage (dacha)
cooperative, garage cooperative or other consumer cooperative, other persons
having the right to accumulation of share, who have fully made their share
contribution to an apartment, country cottage (dacha), garage, or other
premise, parking lot, granted to these persons by the cooperative shall acquire
the right of ownership to the said property since the time of registration of
this right in accordance with existing procedure.
Article
220. Arising of Right of Ownership in Newly Created Immovable Property
1. The right of ownership to a capital construction (building,
structure) being constructed and other newly created immovable property shall
arise from the time of the end of creation, unless otherwise established by the
legislation.
2. In the instances when newly created immovable property is subject to
the state registration, the right of ownership shall arise from the time of
such registration, unless otherwise established by the legislation.
3. Before the end of creation of the immovable property, or, in the
respective cases, before its state registration, the rules on the right of
ownership in the materials and other property, of which the immovable property
is created, are applied to the property, unless otherwise established by the
legislation.
Article 221. Converting
1. Unless otherwise provided by a contract, the right of ownership to a
new movable thing manufactured by the person by means of converting materials
which do not belong to him shall be acquired by the owner of the materials.
However, if the value of the converting significantly exceeds the value of the
materials, the right of ownership to a new thing shall be acquired by the
person who, acting in good faith, has effectuated the converting for himself.
2. Unless otherwise provided by a contract, the owner of materials who
has acquired the right of ownership in a thing, manufactured from these
materials, shall be obliged to compensate the value of the converting to the
person who has effectuated it, and in the event of the acquisition of the right
of ownership to the new thing by this person, the latter shall be obliged to
compensate the owner of the materials for the value thereof.
3. The owner of the materials who has lost them as a result of the
actions not in good faith of the person who effectuated the converting shall
have the right to demand the transfer of the new thing to his ownership and
compensation of losses caused to him.
Article
222. Transferring to Ownership of Things Generally Accessible for Gathering
In the instances when in accordance with the legislation, general
authorization by a particular owner, or in accordance with local custom the
gathering of berries, fishing, and gathering or extraction of other generally
accessible things and fauna is permitted in forests, waters, or on other
territories, the right of ownership in the respective things shall be acquired
by the person carrying out the gathering or extraction thereof.
Article 223. Unauthorized Construction and Its Consequences
1. Unauthorized construction is an
activity of a person on creation or change of immovable property via
construction, reconstruction (building extension, building addition, and
rebuilding) of a capital construction (building, structure) if it is carried
out:
1) on a willfully occupied land
plot;
2) on a land plot used not for its
purpose or allotted by a state body which has no power to take a respective
decision, and/or without holding an auction, when the allotment of the land
plot is possible only on results of an auction, and/or allotted in violation of
the established priority of allotting of land plots, and/or without a prior
agreeing of the location of the land plot if it is required in accordance with
legislative acts;
3) without obtaining necessary
permits for construction, reconstruction or without project
documentation where the necessity of its developing is provided by legislation,
or with considerable violations of town-planning and building regulations*,
unless otherwise provided by the President of the Republic of Belarus.
Immovable property created as a
result of unauthorized construction is an unauthorized structure.
Unauthorized construction must be
immediately suspended.
_______________________
* Considerable violations of town-planning and building
regulations mean violations which can create a potential threat of violation of
rights and legitimate interests of other persons, to life or health of
citizens, to property of citizens and legal persons, violate rules for using
territories established by approved town planning documentation, and also to
cause harm to the environment, decrease service ability of the object.
2. The person who carried out unauthorized construction does not acquire
the ownership of the unauthorized structure in accordance with clauses one and
2 of Article 220 of this Code and are not entitled to enjoy and dispose of the
unauthorized structure: to sell, donate, lease, and conclude other
transactions.
3. In the event of unauthorized construction provided by sub-clause 1 of
part one of this Article, the local executive and administrative body shall
take, unless otherwise established by the President of the Republic of Belarus,
a decision about the return of the wilfully occupied land plot, demolition of
the unauthorized structure and bringing the land plot to a condition making it
possible to be used according to the purpose, in the order provided by the
legislation on protection and use of lands.
4. In the event of
unauthorized construction, including when the person acquired a land plot with
an unauthorized structure located on it (later on in this Article – the lawful
acquirer), in cases provided by sub-clause 2 of part one of clause one of this
Article, the regional (Minsk City) executive committee shall take a decision in
relation to the land plot in the order provided by the legislation on
protection and use of lands, and also, unless otherwise established by the
President of the Republic of Belarus, one of the following decisions:
1) on demolition of the unauthorized
structure and bringing the land plot to a condition making it possible to be
used according to its purpose, along with determining in such a decision of
terms for making those actions;
2) on bringing the unauthorized
structure into the previous condition, existing prior to the
unauthorized construction, along with determining in such a decision of terms
for making those actions.
The person who carried out
unauthorized construction on the land plot allotted into the private ownership
or lifelong inheritable possession (including the legal acquirer) may be
recognized, in the cases provided by sub-clause 2 of part one of clause one of
this Article, on a court decision, as having the ownership of the unauthorized
structure, unless the preservation of the unauthorized structure entails
considerable violations of town-planning and building regulations.
The recognition by the court of the
ownership of the unauthorized structure constitutes a ground for taking the
decision on continuing the construction (on accepting the unauthorized
structure into operation and its state registration in the established order)
and on allotting the land plot in the order provided by the legislation on
protection and use of lands.
Submission of an application on
recognizing the ownership of the unauthorized structure to the court within the
terms indicated in the decision of a regional (Minsk City) executive committee,
or its appealing of such a decision in the established order suspends its
implementation.
5. In the event of unauthorized construction,
including in relation to a legal acquirer, when the legislation has been
violated on the grounds specified in sub-clause 3 of part one of this Article,
the local executive and administrative body shall take, unless otherwise
established by the President of the Republic of Belarus, one of the following
decisions:
1) on continuing the
construction (on accepting the unauthorized structure into operation and its
state registration in the established order), unless the preservation of the
unauthorized structure entails considerable violations of town-planning and
building regulations;
2) on demolition of the unauthorized
structure and bringing the land plot to a condition making it possible
to be used according to its purpose, along with determining in such a decision
of terms for making those actions, if the preservation of the unauthorized
structure entails considerable violations of town-planning and building
regulations;
3) on bringing the unauthorized
structure into the previous condition, preceding the unauthorized construction,
along with determining in such a decision of terms for making those actions, if
the preservation of the unauthorized structure entails considerable violations
of town-planning and building regulations;
Appealing, in the established order,
of the decision of the local executive and administrative body specified in
sub-clauses 2 and 3 of part one of this clause suspends its implementation.
6. Demolition of the
unauthorized structure and bringing the land plot to a condition making it
possible to be used according to the purpose or bringing the unauthorized
structure into the previous condition, preceding the unauthorized construction,
on the basis of a decision of the local executive and administrative body,
taken in accordance with part one of clause 4, and with sub-clauses 2 or 3 of
part one of clause 5 of this Article, is performed by the person who carried
out the unauthorized construction, or by the legal acquirer, or at the cost of
such persons.
In the events of violation of the
legislation on the grounds specified in sub-clauses 2 and 3 of part one of this
Article, the legal acquirer which met the requirements provided by part one of
this clause is entitled to lay a recourse claim for reimbursement of incurred
expenses to the person who carried out the alienation of such land plot.
7. In the event of refusal of the
person who carried out unauthorized construction or the legal acquirer to
execute a decision of the local executive and administrative body, which
entered into force, adopted in accordance with part one of clause 4 and with
sub-clauses 2 or 3 of part one of clause 5 of this Article, or of the failure
to execute that decision within the established term or in the event when the
court has not recognized the ownership of the unauthorized structure in
accordance with part 2 of clause 4 of this Article, the local executive and
administrative body performs the demolition of the unauthorized structure and
bringing the land plot to a condition making it possible to be used according
to the purpose or bringing the unauthorized structure into the previous
condition, preceding the unauthorized construction, with the exception of the
instances specified in clause 8 of this Article.
8. Refusal of the person who carried
out unauthorized construction on a land plot being in the state ownership (with
the exception of a land plot allotted into an lifelong inheritable possession)
to execute a decision of the regional (Minsk City) executive committee, which
entered into force, adopted in accordance with part one of clause 4 of this
Article, or the failure to execute that decision within the established term is
recognized as the refusal of the ownership of materials from which the
unauthorized structure has been erected.
In this case the local executive and
administrative body (an organization authorized by it) performs one of the
following actions:
performs demolition of the
unauthorized structure or brings the unauthorized structure into the previous
condition, preceding the unauthorized construction (if the preservation of the
unauthorized structure entails considerable violations of town-planning and
building regulations), and also brings the land plot to a condition making it
possible to be used according to the purpose;
lodges an application to the court
for recognizing the materials from which the unauthorized structure has been
built as ownerless and recognizing the communal ownership of them (unless the
preservation of the unauthorized structure entails considerable violations of
town-planning and building regulations). After the entry of the court decision
into force, the local executive and administrative body adapts a decision on
subsequent use of the material from which the unauthorized structure has been
built, including on continuing the construction (on accepting the unauthorized
structure into operation and its state registration in the established order)
and on allotting the land plot in the order provided by the legislation on
protection and use of lands.
9. Recovery of expenses on
performance of the demolition of the unauthorized structure or bringing the
unauthorized structure into the previous condition, preceding the unauthorized
construction, and bringing the land plot to a condition making it
possible to be used according to the purpose, in accordance with clause 7 and
indent 2 of part 2 of clause 8 of this Article is made in the court procedure.
10) In the event if the unauthorized
construction has been carried out on a land plot allotted by a state body which
has no powers to adapt a respective decision, and/or without holding an
auction, when the allotment of the land plot is possible only as a result of an
auction, and/or allotted with violation of the established priority for
allotment of land plots, and/or without prior agreeing of the location of the
land plot if it is required in accordance with legislative acts, the harm cause
to the person as a result of illegal actions (omission) of state bodies or
their officials is recovered in accordance with Article 938 of this Code.
Article
224. Time of Origin of Right of Ownership for Acquirer under Contract
l. The right of ownership for the acquirer of a thing under a contract
shall arise from the time of the transfer thereof unless otherwise provided by the
legislation or by a contract.
2. In instances when the contract on alienation of property is subject
to state registration, the right of ownership for the acquirer shall arise from
the time of such registration, unless otherwise established by the legislation.
Article 225. Transfer of Thing
1. The handing over of a thing to the acquirer shall be deemed to be the
transfer, and likewise the handing over to a carrier for dispatch to the
acquirer, or to the handing over a communications office for sending to the
acquirer of a thing alienated without the obligation of delivery.
A thing shall be considered to be handed over to the acquirer from the
time of its actual receipt in the possession of the acquirer or person
specified by him.
2. If at the time of concluding a contract on the alienation of a thing
it is already in the possession of the acquirer, the thing shall be deemed to
be transferred to him from this time.
3. The transfer of a bill of lading or other document of goods
disposition therefor shall be equated to the transfer of a thing.
Article 226. Ownerless Things
1. A thing which has no owner, or a thing the owner of which is unknown,
or a thing, the right of ownership of which has been renounced by the owner,
shall be ownerless.
2. Unless that is excluded by the rules of this Code on the acquisition
of the right of ownership to a thing which the owner has renounced (Article
227), on find (Articles 228, 229), on neglected animals (Articles 231, 232),
and treasure (Article 234), on antique and historic weapons and ammunition,
other weapons or military equipment (Article 2341), on
archaeological artefacts (Article 2342), on the right of ownership
in ownerless movable things may be acquired by virtue of acquisitive
prescription (Article 235).
3. Ownerless immovable things shall be accepted for recording by the
bodies carrying out state registration of the immovable property, right to it
and transactions with it upon the application of the respective state body,
unless otherwise established by the legislative acts.
The communal right of ownership on the ownerless immovable property may
be recognized by a court.
A ownerless immovable property not deemed by decision of a court to have
entered into communal ownership may be accepted anew into the possession, use,
and disposition of the owner who left it, or acquired in ownership by virtue of
acquisitive prescription (Article 235).
4. The materials from which the unauthorized structure has been
built are recognized as ownerless on grounds provided by Article 233 of this
Code in the order established by the civil procedural legislation.
Article 227. Movable Things Which Owner Has Renounced
1. Movable things abandoned by the
owner or otherwise left by him (abandoned things) with a view to renouncing the
right of ownership may be transferred by other persons into their ownership in
accordance with the procedure provided for by Clause 2 of this Article.
2. The person in whose ownership, possession, or use а land plot, water, or other object
is, where the abandoned thing is situated, the value of which is obviously
lower than an amount corresponding to five times the basic value, or abandoned
scrap metal, defective products, the rejected products, the sunk logs (of wood
floating), the dumps and the drains of mining, the production wastes and other
kinds of wastes are located, has the right to transfer these things into the
ownership thereof by starting to use them, or by performing the other actions,
being the evidence of transferring the thing into ownership.
Other abandoned things shall enter into the ownership of the person who
has entered into possession of them if they have been deemed to be ownerless by
a court upon the application of this person.
Article 228. Find
l. The finder of a lost thing shall be obliged immediately to inform the
person who lost it thereof or the owner of the thing or some other person known
to him as having the right to receive it and shall return the found thing to
this person.
If a thing has been found in a premise or on transport it shall be
subject to being handed over to a person representing the possessor of this
premise or means of transport. In this event the person to whom the find has
been handed over shall acquire the rights and bear the duties of the person who
found the thing.
2. If the person having the right to
demand the return of a found thing or his whereabouts are unknown, the finder
of the thing shall be obliged to declare the find to the body of internal affairs
or the body of local administration or self-government.
3. The finder of a thing shall have
the right to keep it or to hand it over for storage to the body of internal
affairs or the body of local administration or self-government or to a person
specified by them.
A perishable thing or a thing, the costs for storage of which are
incommensurately great in comparison with its value may be realized by the
finder of the thing, with receiving written evidence certifying the amount of
the receipts. The money obtained from the sale of a found thing shall be
subject to return to the person authorized to receive it.
4. The finder of a thing shall be liable for its loss or damage only in
the event of intent or gross negligence and within the limits of the value of
the thing.
Article 229. Acquisition of Right of Ownership in Find
1. If during six months from the time of declaring the find in the body
of internal affairs or the body of local administration or self-government
(Article 227(2)) the person authorized to receive the found thing has not been
determined or does not himself declare his right to the thing to the person who
found it, or to the militia or body of local administration or self-government,
the finder of the thing shall acquire the right of ownership in it.
2. If the finder of a thing refuses to acquire the found thing in
ownership, it shall enter communal ownership.
Article 230. Compensation for Expenses, Connected with Find, and
Remuneration to Finder of Thing
1. The finder and returner of a thing to the person authorized to
receive it shall have the right to receive from this person, and in instances
of the thing passing into communal ownership, from the respective body of local
administration or self-government, compensation of necessary expenses connected
with storage, handing over, or realization of the thing, and also expenditures
for revealing of the person authorized to receive the thing.
2. The finder of a thing shall have the right to demand, from the person
authorized to receive the thing, remuneration for the find in the amount of up
to 20 percent of the value of the thing. If a found thing is of value only for
the person authorized to receive it, the amount of remuneration shall be
determined by agreement with this person, or, if the agreement cannot be
reached, by the court.
The right to remuneration shall not arise if the finder of the thing has
not declared the find or has attempted to conceal it.
Article 231. Neglected Animals
1. A person who has detained
neglected or stray livestock or other neglected domestic animals shall be
obliged to return them to their owner, and if the owner of the animals or his
whereabouts is unknown, not later than within three days from the time of
detention to declare the animals found to the body of internal affairs or the
body of local administration or self-government, which shall take measures to
seek the owner.
2. During the search for the owner
of the animals they may be left by the person who detained them with himself
for maintenance and for use, or handed over for maintenance and use to another
person having the necessary conditions for this. At the request of the person
who detained neglected animals, the seeking of a person who has the necessary
conditions for their maintenance and use and the transfer of the animals
thereto shall be effectuated by the body of internal affairs or the body of
local administration or self-government.
The person who has detained neglected animals and the person to whom
they have been transferred for maintenance and use shall be obliged to maintain
the animals properly and, if there is fault, shall be liable for the perishing
and harm caused for the animals, within the limits of the value thereof.
Article 232. Acquisition of Right of Ownership to Neglected Animals
1. If within six months from the time of declaring the detention of
neglected domestic animals the owner of these animals is not discovered or he
himself does not declare his right to the animals, the right of ownership to
the animals shall be acquired by the person by whom these animals are kept for
maintenance and use.
If this person refuses to acquire in ownership the animals maintained by
him, these animals shall enter into communal ownership and be used in
accordance with the procedure determined by the body of local administration or
self-government.
2. In the event of the appearance of the former owner of the animals
after transferring these animals into the ownership of another person, the
owner shall have the right, when there are circumstances demonstrating that the
animals have preserved the affection for the former owner, or the
circumstances, indicating that the new owner treats the animals cruelly or
otherwise improperly, to demand their return on the conditions determined by an
agreement with the new owner, and in the event of the failure to reach
agreement, by a court.
Article 233. Compensation of Expenses for Maintenance of Neglected
Animals and Remuneration for These Animals
1. The person who detained animals and the person by whom these animals
were kept for maintenance and use, shall, in the event of the return of
neglected domestic animals to the owner, have the right to compensation by
their owner of necessary expenses connected with the maintenance of the
animals, with setting off the advantages derived from the use thereof.
2. The person who has detained neglected domestic animals shall have the
right to demand remuneration from the owner in accordance with Article 230(2)
of this Code.
Article 234. Treasure
1. Treasure, that is, money or valuable objects buried in the earth or
concealed by other means, the owner of which cannot be established or by virtue
of a legislation has lost the right to these objects, shall enter into the
ownership of the person to whom the property belongs (land plot, building etc.)
where the treasure was concealed, and the person who discovered the treasure,
in equal shares, unless otherwise established by an agreement between them.
When a treasure is discovered by a person who has made diggings or
searches for the valuables without the consent of the owner of the land plot or
other property where the treasure was concealed, the treasure shall be subject
to transfer to the owner of the land plot or other property where the treasure
was discovered.
Rules of parts one and two of this clause do not apply in relation to
treasures consisting of archaeological artefacts.
2. In the event of the discovery of a treasure consisting of material
cultural valuables having distinctive spiritual, artistic and/or documentary
values and corresponding to one of the criteria for granting them the status of
historic and cultural valuable, such material cultural valuables are to be
transferred into the state ownership.. In so doing, the owner of the land plot
or other property where the treasure was concealed and the person who
discovered the treasure shall have the right to receive remuneration in the
amount of 50 percent of the value of the treasure. The remuneration shall be
distributed between these persons in equal shares unless otherwise established
by an agreement between them.
In the event of the discovery of such treasure by a person who has made
diggings or searches for valuables without the consent of the owner of the
property where the treasure was concealed, the remuneration shall not be paid
to this person and shall be paid to the owner in full.
3. The rules of this Article shall not apply to persons within whose
labor or employment duties are the conducting of diggings and searches directed
towards the discovery of treasure.
Article 2341. Acquisition of the Right of Ownership of
Ownerless Antique and Historic Weapons and Ammunition, Other Weapons or
Military Equipment
Unless otherwise is established by
the President of the Republic of Belarus, in the event of discovery of
ownerless antique and historic weapons and ammunition, other weapons or
military equipment while performing searching works, excavation or otherwise,
the said things are subject to be transferred into the state ownership in accordance
with the procedure established by the legislation.
Article 2342. Acquisition
of the Right of Ownership to Archaeological Artefacts
Unless otherwise established by the
legislative acts, archaeological artefacts discovered when holding
archaeological research or otherwise are subject to be transferred into the
state ownership in the order established by the legislation.
In the event of discovery of
archaeological artefacts being a treasure having distinctive spiritual,
artistic and/or documentary values and corresponding to one of the criteria for
granting them the status of historic and cultural valuable, the rules provided
by clauses 2 and 3 of Article 234 of this Code shall be applied.
Article 235. Acquisitive Prescription
1. A person, citizen or legal person, who is not the owner of property
but in good faith, openly, and uninterruptedly possesses as his own immovable
property for fifteen years or, for other property, for five years, shall
acquire the right of ownership in such property (acquisitive prescription).
The right of ownership in immovable property and other property subject
to state registration shall arise for the person who acquired this property by
virtue of acquisitive prescription from the time of such registration.
2. Until the acquisition of the right of ownership in property by virtue
of acquisitive prescription, the person possessing the property as his own
shall have the right to defend his possession against third persons who are not
the owners of the property, and also who do not have the rights to possession
thereof by virtue of another ground provided for by the legislation or
contract.
3. A person referring to the
prescription of possession may join to the time of his possession all of the
time during which this property was possessed by that whom this person is the
legal successor.
4.The running of the period of acquisitive prescription with respect to
things kept by a person from whose possession they may be claimed in accordance
with Articles 282-284 and 286 of this Code shall commence from the next day
after expiry of the limitation period for the corresponding demands.
CHAPTER 15
Termination of Right of Ownership
Article 236. Grounds for Termination of Right of Ownership
1. The right of ownership shall terminate
in the event of the alienation by the owner of his property to other persons,
renunciation of the right of ownership by the owner, perishing or destruction
of the property, and the loss of the right of ownership to property in other
instances provided for by the legislation.
2. The compulsory withdrawal from
the owner of property shall not be permitted except for instances when on the
grounds provided for by the legislation, or in accordance with the court
decision, it shall be carried out by:
1) levying execution on property for obligations (Article 238);
2) alienation of property which by
virtue of the act of legislation cannot belong to the particular person
(Article 239);
3) alienation of immovable property in connection with the withdrawal of
a land plot (Article 240);
4) purchase of carelessly maintained cultural valuables (Article 241)
and of domestic animals (Article 242);
5) requisition (Article 243);
6) confiscation (Article 244);
7) alienation of the property in the instances provided by clause 4 of
Article 255 and Article 2751;
8) privatization (Article 218);
9) nationalization (Article 245);
10) gratuitous seizure of property in the instances provided for by the
legislative acts in the sphere of fight against corruption.
Article 237. Renunciation of Ownership
1. A citizen or a legal person may
renounce the ownership of the property belonging to him by announcing it or
making other actions which expressly evidence his abandonment of possession,
enjoyment, and disposal of the property without intention to keep any rights to
that property.
Refusal of the person who carried
out unauthorized construction on a land plot being in the state ownership (with
the exception of a land plot allotted into an lifelong inheritable possession)
to execute a decision of the regional (Minsk City) executive committee, which
entered into force, adopted in accordance with part one of clause 4 of this
Article, or the failure to execute that decision within the established term is
recognized as the renunciation of the ownership of materials from which the
unauthorized structure has been erected.
2. Renunciation of the ownership,
with the exception of the renunciation of the ownership of the materials from
which an unauthorized structure has been erected, provided by part 2 of clause
one of this Article, does not entail the termination of rights and duties of
the owner in relation to the respective property till the moment of acquisition
of the ownership of that property by another person, with the exception of the
instances when the property has been subjected to utilization and destruction
in accordance with legislation.
Article 238. Levy of Execution on Property for Obligations of Owner
1. The withdrawal of property by means of levying execution on it with
regard to obligations of the owner shall be done on the basis of the decision
of a court, unless another procedure for levy of execution has been provided
for by the legislation or by contract.
2. The right of ownership in property on which execution is levied shall
terminate for the owner from the time of arising the right of ownership in the
withdrawn property for the person to whom this property is transferred.
Article
239. Termination of Right of Ownership for Person in Property Which Cannot
Belong to Him
1. If on the grounds, permitted by a law, the property which by virtue
of legislation cannot belong to person, turns out to be in the ownership of a
person, this property must be alienated by the owner within a year from the
time of arising the right of ownership in the property, unless another term has
been established by the legislation.
2. In instances when the property
has not been alienated by the owner within the periods specified in Clause 1 of
this Article, such property, taking into consideration its character and
purpose, shall, by decision of a court rendered upon the application of a state
body or body of local administration or self-government, be subject to
compulsory sale, with transfer to the former owner of the amounts received, or
the transfer to state or communal ownership, with compensation of the value of
the property to the former owner, determined by a court. In so doing, the
expenditures for alienation (safe custody) of the property shall be deducted.
3. If in the ownership of a citizen
or legal person on the grounds permitted by the legislation there turns out to
be a thing for acquisition of which a special authorization is necessary, the
issuance of which has been refused for the owner, this thing shall be subject
to alienation in accordance with the procedure established for property which
cannot belong to the particular owner.
In such case, alienation of the thing is permitted subject to observance
of the procedure for turnover of the corresponding property, established by the
legislation; the thing can be alienated only to the person, having the
specified permission, or to the state.
Article
240. Alienation of Immovable Property in Connection with Withdrawal of Land
Plot on Which It Is Situated
1. When the withdrawal of a land plot for state or communal needs or in
view of the improper use of land is impossible without the termination of the
right of ownership to a capital construction (building, structure), or other
immovable property situated on the land plot, this property may be withdrawn
from the owner by means of the purchase by the state or sale at public sales in
accordance with the procedure provided for by the legislation.
The demand to withdraw immovable property shall not be subject to
satisfaction if the state body or body of local administration or
self-government which has applied to a court with this demand does not prove
that the use of the land plot for the purposes for which it is being withdrawn
is impossible without terminating the right of ownership to the particular
immovable property.
2. The rules of this Article respectively shall apply in the event of
termination of the right of ownership to immovable property in connection with
the withdrawal of mining allotments and other plots on which property is
situated.
Article 241. Purchase of Carelessly Maintained Cultural Valuables
In instances when the owner of cultural valuables relegated in
accordance with the legislation to the category of specially valuable and
protected by the state carelessly maintains these valuables, which threatens
them with their losing their significance, such valuables may by decision of a
court be withdrawn from the owner through purchase by the state or sale at
public sales.
In the event of the purchase of cultural valuables, their value shall be
compensated for the owner in the amount established by agreement of the
parties, and in the event of a dispute, by a court. In the event of the sale at
public sales the amount obtained from the sale shall be transferred to the
owner, less the expenses for holding the public sales.
Article
242. Purchase of Domestic Animals in Event of Improper Treatment Thereof
When the owner of domestic animals treats them in clear contravention of
the requirements of the rules established on the basis of a legislation and the
norms accepted in society for the humane attitude towards animals, these
animals may be withdrawn from the owner by means of the purchase thereof by the
person who has brought the respective demand in court. The price of the
purchase shall be determined by agreement of the parties, and in the event of a
dispute, by a court.
Article 243. Requisition
1. In instances of natural
disasters, accidents, epidemics, epizootics, and other extraordinary
circumstances, the property may, in the interests of society by decision of
state bodies, be withdrawn from the owner in accordance with the procedure and
on the conditions established by the legislation with payment of the value of
the property to him (requisition).
2. The valuation according to which
the value of the requisitioned property is compensated to the owner may be
contested by the owner in a court.
3. The person whose property was
requisitioned shall have the right, when the existence of the circumstances, in
connection with which the requisition was made, has terminated, to demand in
court for the return to him of the property which has been preserved.
Article 244. Confiscation
In the instances provided for by the legislation property may be
withdrawn without compensation from the owner by decision of a court in the
form of a sanction for committing a crime or other violation of legislation
(confiscation). However, confiscation of property in the administrative
procedure is permitted only subject to observance of the conditions and the
procedure, provided by the law. The decision on the confiscation, adopted in
the administrative procedure, may be appealed to the court.
Article 245. Nationalization
Transferring the property, being in the ownership of the citizens and
the legal persons, into the state property by means of its nationalization is
permitted only on the grounds of the law on the procedure and conditions of
nationalization of this property, and with timely and full compensation of the
cost of property and of other losses, caused by the withdrawal, to the person,
the property of which was nationalized.
CHAPTER 16
Common Ownership
Article 246. Concept and Grounds of Origin of Common Ownership
1. Property in the ownership of two
or several persons shall belong to them by the right of common ownership.
2. Property may be in common
ownership with the determination of the share of each of the owners in the
right of ownership (share ownership) or without the determination of such
shares (joint ownership).
3. Common ownership to property
shall be share ownership, except for instances when the formation of joint
ownership to this property has been permitted by the legislative acts.
4. Common ownership shall arise when
two or several persons enter into the ownership of property which cannot be
divided without changing its purpose (indivisible things), or is not subject to
division by virtue of a legislation.
Common ownership in divisible property shall arise in the instances
provided for by the legislation or contract.
5. By agreement of the participants of joint ownership, and, in the
event of not achieving consent, by decision of a court, the share ownership of
these persons may be established for common property.
6. Excluded.
Article 247. Determination of Shares in Right of Share Ownership
1. If the shares of the participants of share ownership cannot be
determined on the basis of the act of legislation and was not established by
agreement of all of its participants, the shares shall be considered to be
equal.
2. The procedure for the
determination and change of their shares may be established by agreement of all
the participants of share ownership depending upon the contribution of each of
them in the formation and growth of the common property.
3. A participant of share ownership
who has effectuated at his own expense while complying with the established
procedure for the use of common property indivisible improvements of this
property shall have the right to a corresponding increase of his share in the
right to common property.
Divisible improvements of common property, unless otherwise provided by
agreement of the participants of the share ownership, shall enter into the
ownership of those participants who produced them.
Article
248. Consequences of rising, extension or reconstruction of the dwelling house
or other structure, being in common share ownership
If the owner, with observance of the established rules, at own expense,
has enlarged the area of the house or other structure, being in the share
ownership, by means of extension, rising or reconstruction, then, upon the
demand of this owner, the shares in the common ownership in the house or
construction and the procedure of using the premises in it are subjects to
appropriate changes.
Article 249. Disposition of Property in Share Ownership
1. The disposition of property in
share ownership shall be effectuated by agreement of all of its participants.
2. A participant of share ownership shall
have the right at his discretion to sell, gift, bequeath, or pledge his share
or to otherwise dispose of it while complying, in the event of alienation for
payment, with the rules provided for by Article 253 of this Code.
Article 250. Possession and Use of Property in Share Ownership
1. The possession and use of property in share ownership shall be
effectuated by the agreement of all its participants, and if consent is not
achieved, in accordance with the procedure established by a court.
2. The participant of share ownership shall have the right for providing
to him, in possession and using, of the part of the common property,
proportional to the share of this participant, or, if this is impossible, has
the right to claim for the appropriate compensation from the other
participants, possessing and using the property which comprise the share of
this participant.
Article 251. Yield, Products, and Revenues from Use of Property in Share
Ownership
The yield, products, and revenues from the use of property in share
ownership shall become part of the common property and be distributed among the
participants of participatory ownership commensurately with their shares unless
otherwise provided by the agreement between them.
Article 252. Expenses for Maintenance of Property in Share Ownership
1. Each participant of share ownership shall be obliged, in proportion
to their shares to participate in the payment of taxes, charges, and other
payments relating to the common property, and also the costs for its maintenance
and preservation, unless otherwise provided by the legislation or by the
agreement.
2. The expenses, which are not necessary and are made by one of the
owners without the consent of the others, shall fall on this owner only. Any
disputes arising in this respect are subject to the settlement in the judicial
procedure.
Article 253. Preferential Right of Purchase of the Share in the Right of
Common Ownership
1. In the event of the sale of a share in the right of common ownership
to the third person the remaining participants of share ownership shall have
the preferential right of purchase of the share being sold at the price for
which it is being sold and on other equal conditions, except for sales at a
public sale.
The public sale for the sale of the share in the right of common
ownership may, in the absence of consent thereto of all the participants of
share ownership, be held in the instances provided for by Article 258 of this
Code, and in the other instances provided for by the legislation.
2. The seller of
a share is obliged to notify in written form the remaining participants of
share ownership of the intention to sell his share to a third person,
specifying the price and other conditions on which he is selling it. The mode of such notification may be
established by a written agreement of the participants of shared ownership,
adopted with observance of requirements of Article 249 (1) of this Code.
Refusal of participants of share ownership to receive a written notification of
the seller about the intention to sell his share, stated in the order
established by the legislation, is deemed to be a duly notification of those
participants of share ownership.
If other participants of share
ownership refuse to purchase or do not acquire the share in the right of ownership in immovable
property being sold within a month, and in the right of ownership in other
property, within ten days from the date of notification, the seller shall be
entitled to sell his share to any person.
3. In the event of the sale of a
share in violation of the preferential right of purchase, any other participant
of share ownership shall have the right within three months to demand in a
judicial proceeding the transfer to him of the rights and duties of the buyer.
4. The assignment of a preferential
right of purchase of the share shall not be permitted.
5. The rules of this Article shall
apply also when alienating a share under a contract of barter.
6. The rules of this Article do not
apply when buying a share in the right of common ownership of property
constituting a mutual investment fund, certified by an investment share, by
other participants in share ownership.
Article 254. Time of Transfer of Share in Right of Common Ownership to
Acquirer Under Contract
The share in the right of common ownership shall pass to the acquirer
under a contract from the time of conclusion of the contract unless otherwise
provided by an agreement of the parties.
The time of transfer of a share in the right of common ownership under a
contract subject to state registration shall be determined in accordance with
Article 224(2) of this Code.
Article 255. Division of Property in Share Ownership and Partition of
Share Therefrom
1. Property in common share ownership,
property constituting a mutual investment fund, may be divided between its
participants by an agreement between them.
2. A participant of common share
ownership shall have the right to demand the partition of his share from the
common property, property constituting a mutual investment fund.
3. If the participants of share ownership do not reach agreement
concerning the ways and conditions for the division of common property or
partition of the share of one of them, the participant of share ownership shall
have the right in a judicial proceeding to demand the partition of his share in
kind from the common property.
If the partition of a share in kind is not permitted by the legislation
or is impossible without incommensurate damage to property in common ownership,
the partitioning owner shall have the right to payment to him of the value of
his share by the other participants of share ownership.
4. The incommensurateness of property partitionable
in kind to a participant of share ownership on the basis of this Article to his
share in the right of ownership shall be eliminated by the payment of a
corresponding monetary amount or other compensation.
The payment to a participant of share ownership by the remaining owners
of compensation in place of the partition of his share in kind shall be
permitted with his consent. In instances when the share of the respective owner
is insignificant and cannot be truly partitioned and he does not have a
material interest in the use of the common property, a court may also, in the
absence of the consent of this owner, oblige this owner to transfer his share,
to the other participants, with payment of the compensation to this owner.
5. With the receipt of the compensation in accordance with this Article
the owner shall lose the right to the share in the common property.
Article 256. Possession, Use, and Disposition of Property in Joint
Ownership
l. The participants of joint ownership, unless otherwise provided by
agreement between them, shall possess and use common property in common.
2. The disposition of property in
joint ownership shall be effectuated by the consent of all the participants,
which shall be presupposed irrespective as to which of the participants has
concluded the transaction with regard to disposition of the property. This rule
does not cover immovable property for the disposition of which a written
consent of all participants of joint ownership is required.
3. Each of the participants of joint
ownership shall have the right to conclude transactions relating to the
disposition of common property unless it arises otherwise from the agreement of
all the participants. A transaction concluded by one of the participants of
joint ownership which is connected with the disposition of common property may
be deemed to be invalid at the demand of the remaining participants for reasons
that the participant who concluded the transaction lacked the necessary powers
only if it is proved that the other party to the transaction knew or knowingly
should have known about this (Article 175).
4. The rules of this Article shall apply insofar as not otherwise
established for individual types of joint ownership by the legislation.
Article 257. Division of Property in Joint Ownership and Partition of
Share Therefrom
1. The separation of common property
between participants of joint ownership, and also the partition of the share of
one of them, may be effectuated after the preliminary determination of the
share of each of the participants in the right to common property.
2. In the event of the separation of
common property and the partition of a share therefrom, unless otherwise
provided by legislation or by agreement of the participants, their shares shall
be deemed to be equal.
3. The grounds and procedure for the
separation of common property and the partition of the share therefrom shall be
determined according to the rules of Article 255 of this Code insofar as
otherwise has not been established for individual types of joint ownership by
the legislation and does not arise from the essence of the relations of the
participants of joint ownership.
Article 258. Levying Execution on Share in Common Property
The creditor of a participant of share or joint ownership shall, in the
event that the owner's other property is insufficient, have the right to submit
a demand concerning partition of the share of the debtor in the common property
in order to levy execution on it.
If in such instances the apportionment of the share in kind is
impossible or the other participants of share or joint ownership raise
objections to this, the creditor shall have the right to demand the sale by the
debtor of his share to the other participants of common ownership at a price
commensurate with the market value of this share, with the assets received from
the sale being applied to repayment of the debt.
In the event of the refusal of the remaining participants of common
ownership to acquire the share of the debtor, the creditor shall have the right
to demand in court the levy of execution on the share of the debtor in the
right of common ownership by means of the sale of this share at a public sale.
Article 259. Common Ownership of Spouses
1. Property acquired by spouses
during marriage shall be in their joint ownership unless another regime for this
property has been established by a contract between them.
2. The property which belonged to
each of the spouses before marriage, and also received by one of the spouses
during marriage as a gift or by way of inheriting, shall be in his ownership.
Things of individual use (clothing, footwear, and others), except for jewellery and other articles of embellishment, although
acquired during the marriage at the expense of the common assets of the
spouses, shall be deemed to be the ownership of that spouse who used them.
The property of each spouse may be deemed to be their joint ownership if
it is established that during the marriage investments were made at the expense
of the common property of the spouses or the personal property of the other
spouse which significantly increased the value of this property (capital
repair, reconstruction, re-equipping, and others). This rule shall not apply if
a contract between the spouses has provided otherwise.
3. Execution may be levied with
regard to the obligations of one spouse on property in his ownership, and also
on his share in the common property of the spouses which would have been due to
him in the event of separation of this property. Levying the execution on the
property of the unitary enterprise, belonging to the spouses by the right of
joint ownership, shall not be permitted.
31. At the separation of
property which is in common ownership of spouses, the spouse of a participant
of an economic partnership, limited liability company or additional liability
company has the right to demand, in court order, the recognition of his right
to the due part of the share of the other spouse in the charter capital of the
respective partnership or company.
In the case of recognition by the
court of the right of the spouse of a participant of an economic partnership,
limited liability company or additional liability company to the part of the
share of the latter in the charter capital of the respective partnership or
company which due to him, the former has the right, with consent of other
participants of this partnership or company, to become its participant or to
demand the payment of the value of the part of the share of his spouse in the
charter capital or the delivery of the property of such value in kind. At that,
the refusal to admit to participants of the respective partnership or company
entails the obligation of this partnership or company to pay to the spouse the
value of the part of the share of his spouse which is due to him or to deliver
the property of such value in kind.
The determination of the value of
the part of the share in the charter capital of the partnership or company and
its payment or delivery of the property in kind of such value is performed in
accordance with Article 64 (2) of this Code in the period stipulated by the
constituent documents of this partnership or company, but not later than twelve
months from the date of the presentation by the spouse of the corresponding
demand.
The rules of parts one and two of
this clause extend to the cases of separation of the property which is in joint
ownership of spouses one of which is a participant of a productive cooperative.
At that the determination of the value of the part of the share of the spouse
in the property of the productive cooperative and its payment or delivery of
the property of such value in kind are performed in accordance with Article 111
(1) of this Code in the period stipulated by the charter of the productive
cooperative, but not later than twelve months from the day of the presentation by
the spouse of the corresponding demand.
4. The rules for determining the
shares of spouses in common property in the event of the separation thereof and
the procedure for such separation shall be established by legislation on
marriage and the family.
Article 260. [Excluded]
Article 261. [Excluded]
CHAPTER 17
Real Rights in Immovable Property
Article 262. Real Rights to Land Plots
1. Land plots may be held by land
users based on real rights in accordance with legislative acts on protection
and use of lands and this Code.
2. The rights to land plots, and
also restrictions (encumbrances) of rights to them arise, pass, and terminated
in the order established by legislation on protection and using lands and civil
legislation.
Article 263. Land Plots of Common Use. Access to Land Plot
1. Citizens shall have the right freely, without any authorizations
whatever, to be on land plots not closed off for general access which are in
the ownership of the Republic of Belarus, and to use natural objects on these plots
within the limits permitted by the legislation.
2. If a land plot is not fenced off or the land user thereof has not
clearly designated by other means that entry to the plot is not permitted
without his authorization, any person may walk across this plot on condition
that this does not cause damage or disturbance to the land user.
Article 264. [Excluded]
Article 265. [Excluded]
Article 266. [Excluded]
Article 267. Transfer of Right to Land Plot in Event of Alienation of Capital
Constructions (Buildings, Structures) Located on It
1. In the event of transfer of
rights to capital constructions (buildings, structures), unfinished capital
constructions prepared for preservation, the acquirers of those constructions
receive rights, restrictions (encumbrances) of rights to land plots in the
order established by legislation on protection and use of lands.
2. In the event of transfer of
rights to capital constructions (buildings, structures), unfinished capital
constructions prepared for preservation, located on leased land plots, the
acquirers of those constructions receive rights under respective contracts of
lease of the land plot for the remaining term of the lease of the respective
land in the order established by legislation on protection and use of lands.
Article 268. Right of Limited Use of Another's Immovable Property
(Servitude)
1. The owner of immovable property
is entitled to require the owner of neighbouring
immovable property, and in necessary instances, the owner of another immovable
property, to grant a right of limited use of immovable property (servitude).
2. Encumbrance of immovable property
with a servitude does not divest the owner of the immovable property of rights
to posses, enjoy, and dispose of that immovable
property.
3. Servitude is established on an
agreement between the person requiring the establishment of the servitude and
the owner of the immovable property and is subject to the state registration in
the order established by legislation on state registration of immovable
property, rights thereto and transactions therewith. In the event of failure to
reach an agreement on establishing or on conditions of a servitude, the dispute
is to be settled by the court on the claim of the person requiring to establish
the servitude.
4. The owner of immovable property
encumbered with a servitude is entitled, unless otherwise provided by
legislation, to require other persons in the interests of whom the servitude is
established to demand an adequate charge for using the immovable property.
5. Relations connected with the
right of limited use of another’s land plot (land servitude) is regulated by
legislation on protection and use of lands. The right of limited use of
another’s land plot (land servitude) is established and terminated in
accordance with legislation on protection and use of lands.
Article 269. Preservation of Servitude in Event of Transfer of Rights to
Land Plot
A servitude shall be preserved in the event of the transfer of the
rights to a land plot, which is encumbered by this servitude, to another
person.
A servitude may not be an autonomous subject of purchase-sale or pledge
and may not be transferred by any means whatever to persons who are not the
owners of the immovable property, to ensure the use of which the servitude was
established.
Article 270. Termination of Servitude
Upon the demand of the owner of a land plot encumbered by a servitude,
the servitude may be terminated in view of the grounds for which the servitude
was established having disappeared.
In instances when a land plot, belonging to a citizen or legal person,
cannot be used in accordance with its intended purpose as a result of being
encumbered with a servitude, the owner shall have the right to demand in court
the termination of the servitude.
Article 271. [Excluded]
CHAPTER 18
Right of Ownership and Other Real Rights in Dwelling Premises
Article 272. Ownership in Dwelling House and Apartment
1. The owner shall exercise the rights of possession, use, and disposition
of a dwelling premise belonging to him in accordance with its intended purpose.
2. Dwelling premises are intended for the residence of citizens.
A citizen, being the owner of a dwelling premise, may use it for
personal residence and the residence of members of his family.
Dwelling premises may be provided by their owners on the basis of a
contract.
3. The placing of industrial entities in dwelling houses shall not be
permitted.
The placing of the organizations and their divisions by the owner in a
dwelling premise, belonging to him, shall be permitted only after the transfer
of such premise to non-residential. The transfer of premises from dwelling to
non-residential shall be effectuated in accordance with the procedure
determined by housing legislation unless otherwise provided by legislative
acts.
Article 273. Apartment as Object of Right of Ownership
A share in the right of ownership to the common property of a house
(Article 274) also shall belong to the owner of an apartment in an apartment
house together with the premises, which belongs to him, occupied by the
apartment.
Article 274. Common Property of Owners of Apartments in Apartment House
1. The common premises of the house,
constructions of the house, mechanical, electrical, plumbing, and other
equipment outside or inside the apartment, servicing more than one apartment,
and other property in cases specified in the legislation or in a contract,
shall belong by right of common share ownership to the owners of the apartments
in the apartment house.
2. The owner of an apartment shall
not have the right to alienate his share in the right of ownership to common
property of a dwelling house, nor to perform other actions which entail the
transfer of this share separately from the right of ownership to the apartment.
Alienation of a part of common property being in common ownership shall be
carried out by a decision of the general meeting of owners of dwelling and/or
non-dwelling premises with consent of two-thirds of the total number of owners of
dwelling and/or non-dwelling premises.
3. The owners of apartments have the
right, and in cases, specified in the legislation, are obliged, in order to
ensure the operation of the apartment house and the use of the apartments and
the common property thereof, to form partnerships of the owners. The
partnership of owners shall be a non-commercial organization, formed
exclusively for the purposes provided for by this Clause and operating in
accordance with the legislation on such partnerships.
Article 275. Rights of Members of Family of Owner of Dwelling Premise
l. The members of the family of the owner residing in a dwelling premise
belonging to him shall have the right to use this premise on the conditions
provided for by housing legislation.
2. The transfer of the right of ownership to a dwelling house or
apartment to another person shall not be a ground for termination of the right
of use of the dwelling premise by members of the family of the former owner,
unless otherwise established by the legislation.
3. The members of the family of the owner of the dwelling premise may
demand the elimination of the violations of their rights to a dwelling premise
from any persons, including the owner of the premise.
4. [Excluded]
Article 2751. Seizure of Dwelling Premise from Owner
A dwelling premise may be seized from the owner in the instances and
under the procedure provided by the legislative acts.
CHAPTER 19
Right of Economic Management, Right of Operative Administration
Article 276. Right of Economic Management
1. A unitary enterprise or a state association, and in cases specified
by the President of the Republic of Belarus, another legal person to which
property belongs by right of economic management, shall possess, use, and
dispose of this property within the limits determined in accordance with the
legislation.
2. The owner of property shall, in accordance with the legislation,
decide questions of the creation of the unitary enterprise and determination of
the subject and purposes of its activity, its reorganization and liquidation,
appoint the head of the unitary enterprise, and shall effectuate control over
its use in accordance with the intended purpose and control over preservation
of property belonging to the unitary enterprise.
The owner of property in economic management effectuates control over
its use in accordance with the intended purpose and over preservation of the
property, and also has the right to receive a part of income from the use
thereof.
3. The legal persons shall not have the right to sell immovable property
belonging to them on right of economic management, lease it out, pledge it,
contribute it as a contribution to the charter capital of economic companies
and partnerships or by other means dispose of this property without the consent
of the owner.
The legal persons on the right of economic management shall autonomously
dispose of the remaining property belonging to them, except for the instances
established by the legislation and by the owner of property.
Article 277. Right of Operative Administration
1. A fiscal enterprise, an institution or state association on which the
property is settled on the right of operative administration shall effectuate
with respect to property, settled on them, the rights of possession, use, and
disposition thereof, within the limits, established by the legislation, and in
accordance with the purposes of its activity, orders of the owner, and the
intended purpose of the property.
2. The owner of the property settled on a fiscal enterprise, institution
or state association on the right of operative administration shall have the
right to withdraw superfluous or unused property or property used not in
accordance with its intended purpose, and to dispose of it according to own
discretion.
3. The property of a Republic's state-social association vested on its
organizational divisions in the form of legal persons belongs to them on the
right of operative administration unless otherwise is stipulated by the charter
of the Republic's state-social association.
The organizational divisions of a Republic's state-social association in
the form of a legal person are covered by the rules stipulated by this Article,
Articles 279, 280, 281(2) of this Code.
Article 278. Disposition of Property of fiscal enterprise and State
Association on Which the Property Settled on the Right of Operative
Administration
1. A fiscal enterprise shall have the right to alienate or by other
means to dispose of property settled on it only with the consent of the owner
of this property. A fiscal enterprise is entitled to pledge the property being
in state ownership in the order established by the legislative acts on the
disposal of state property unless otherwise provided by the President of the
Republic of Belarus.
A fiscal enterprise shall autonomously realize the product produced by
it unless otherwise established by the legislation.
2. The procedure for the distribution of revenues of the fiscal
enterprise shall be determined by the owner of its property.
3. The rules provided by clauses 1 and 2 of this Article are to be
applied to a state association on which the property is settled on the right of
operative administration unless otherwise specified by acts of the President of
the Republic of Belarus.
Article 279. Disposition of Property of Institution
1. An institution is non entitled to alienate
or by other means to dispose of property consolidated to it or acquired at the
expense of means allotted to it, unless otherwise specified by this Code or other
legislative acts. An institution is entitled to transfer the property being in
state ownership into pledge in the order established by legislative acts on
disposal of state property, unless otherwise provided by the President of the
Republic of Belarus, and the property being in private property – with the
consent of the owner of this property or his authorized representative.
2. If in accordance with the constituent documents the right to
effectuate activity which brings revenues has been granted to the institution,
the revenues received from such activity and the property acquired at the
expense of such revenues shall be at the autonomous disposition of the
institution and shall be taken into account on a separate balance sheet
(separately in the inventory book of income and expenditure of organizations
and individual entrepreneurs, applying the simplified taxation system).
Article 280. Acquisition and Termination of Right of Economic Management
and Right of Operative Administration
1. The right of economic management or the right of operative
administration of property, with respect to which a decision has been adopted
by the owner concerning the consolidation of this property to a unitary
enterprise, institution or state association, shall arise for this enterprise,
institution or state association from the time of the transfer of the property,
unless otherwise established by the legislation.
2. The yield, products, and revenues from the use of the property in economic
management or operative administration, and also the property acquired by a
unitary enterprise, institution or state association under contract or other
grounds, shall come in the economic management or the operative administration
of the enterprise, institution or state association in accordance with the
procedure established by the legislation for acquisition of the right of
ownership. The right of ownership to those yield, products, revenues and
property shall acquire the owner of property of the mentioned legal persons.
3. The right of economic management and the right of operative
administration of property shall terminate upon the grounds and in accordance
with the procedure provided for by legislative acts for the termination of the
right of ownership, and also in instances of the lawful withdrawal of the
property from the enterprise, institution or state association by decision of
the owner.
Article 281. Retention of Rights to Property in Event of Transfer of
Enterprise or Property of Institution to Another Owner
1. In the event of the transfer of the right of ownership in a state or
communal enterprise as a property complex to another owner of state or communal
property, the legal person to which the enterprise belongs by the right of
economic management, unless otherwise established by the President of the
Republic of Belarus or the contract, shall retain the right of economic
management in the enterprise belonging to it.
2. In the event of the transfer of the right of ownership in the property
of an institution to another person, this institution shall retain the right of
operative administration to the property belonging to it.
CHAPTER 20
Defense of Right of Ownership and Other Real Rights
Article 282. Demanding and Obtaining Property from Another's Illegal
Possession
The owner shall have the right to demand and obtain his property from
another's illegal possession.
Article 283. Demanding and Obtaining Property from a Good-Faith Acquirer
1. If property has been acquired for compensation from a person who did
not have the right to alienate it, of which the acquirer did not know and could
not have known (good-faith acquirer), then the owner shall have the right to
demand and obtain this property from the acquirer when the property has been
lost by the owner or person to whom the property was transferred by the owner
in possession, or stolen from one or the other, or left the possession thereof
by means other than the will thereof.
2. If property was acquired without compensation from a person who did
not have the right to alienate it, the owner shall have the right to demand and
obtain the property in all instances.
3. Money, and also bearer securities, may not be demanded and obtained
from a good-faith acquirer.
Article 284. Settlement of Accounts in Event of Return of Property from
Illegal Possession
When demanding and obtaining property from another's illegal possession,
the owner also shall have the right to demand and obtain from a person, who
knew or should have known that his possession is illegal (possessor not in good
faith), the return or compensation of all revenues which this person derived or
should have been derived throughout the entire period of possession, and from a
good-faith possessor, the return or compensation of all revenues which he
derived or should have derived from the time when he knew or should have known
about the unlawfulness of the possession or received a writ relating to the
suit of the owner for the return of the property.
A possessor (both good-faith possessor and possessor not in good faith),
in turn, shall have the right to demand from the owner compensation for
necessary expenditures, made by him on the property, for that time from which
revenues from the property are due to the owner.
A possessor in good faith shall have the right to retain for himself the
improvements made by him, if they can be separated without damaging the
property. If such a separation of the improvements is impossible, a good-faith
possessor shall have the right to demand compensation for expenditures made for
the improvement, but not more than the amount of the increase of the value of
the property.
Article 285. Defense of Rights of Owner Against Violations Not Connected
with Deprivation of Possession
The owner may demand the elimination of any violations of his right,
even though these violations are not combined with deprivation of possession.
Article 286. Defense of Rights of Possessor Who is Not the Owner
The rights provided for by Articles 282-285 of this Code shall belong
also to a person who, although not the owner, is the possessor of the property
by right of inheritable possession for life, economic management or operative
administration or on another grounds provided for by the legislation or
contract. This person shall have the right to the defense of his possession
against the owner as well.
Article 287. Consequences of Termination of Right of Ownership by Virtue
of Act of Legislation
In the event of the adoption of the act of legislation, terminating the
right of ownership, the losses caused to the owner as a result of the adoption
of this act, including the value of the property, shall be compensated by the
state. Disputes concerning compensation of losses shall be settled by a court.
SECTION III
GENERAL PART OF THE LEGISLATION OF OBLIGATIONS
SUBSECTION 1
GENERAL PROVISIONS ON OBLIGATIONS
CHAPTER 21
Concept of and Parties to Obligation
Article 288. Concept of Obligation and Grounds of its Origin
1. By virtue of an obligation one person (the debtor) shall be obliged
to perform to the benefit of another person (the creditor) a determined action,
that is, to transfer property, fulfill work, pay money, and the like or to
refrain from a determined action, and the creditor shall have the right to
demand from the debtor the performance of his duty.
2. Obligations shall arise from a contract, as a consequence of causing
of harm, unfounded enrichment, and from other grounds specified in this Code
and other acts of legislation.
Article 289. Parties to Obligation
1. One or simultaneously several persons may participate in an
obligation as each of its parties, creditor or debtor.
The invalidity of the demands of the creditor with respect to one of the
persons participating in the obligation as a debtor, and likewise the expiry of
the limitation period with regard to the demand against such person, shall not
in itself affect the creditor’s demands against the other such persons.
2. If each of the parties to a contract bears a duty to the benefit of
the other party, it shall be considered to be the debtor of the other party in
that which the former is obliged to do to the benefit of the latter, and simultaneously
the creditor thereof in that which the former has the right to demand from the
latter.
3. The obligation shall not create duties for the persons, not
participating in it as the parties (for the third persons).
In the instances provided for by the legislation or by agreement of the
parties, an obligation may create rights for third persons with respect to one
or both parties to the obligation.
CHAPTER 22
Performance of Obligations
Article 290. General Provisions
Obligations must be performed duly in accordance with the conditions of
the obligation and the requirements of the legislation, and in the absence of
such conditions and requirements, in accordance with the requirements usually
presented.
Article 291. Inadmissibility of Unilateral Refusal to Perform Obligation
A unilateral refusal to perform an obligation and a unilateral change of
its conditions shall not be permitted unless it follows otherwise from a
legislation or from the obligation.
Article 292. Performance of Obligation in Parts
A creditor shall have the right not to accept the performance of an
obligation in parts unless otherwise provided by the legislation, or by the
conditions of the obligation and does not arise from the essence of the
obligation.
Article 293. Performance of Obligation to Proper Person
Unless otherwise provided by agreement of the parties and does not arise
from the essence of the obligation, the debtor shall have the right, when
performing the obligation, to demand evidence that performance is accepted by
the creditor himself or by a person authorized by the creditor, and shall bear
the risk of the consequences of the failure to submit such demand.
Article 294. Performance of Obligation by Third Person
1. Unless the duty of the debtor to perform an obligation personally
arises from the legislation, the conditions of the obligation, or the essence
thereof, the performance of the obligation may be placed by the debtor on a
third person. In this event the creditor shall be obliged to accept the
performance offered by a third person for the debtor.
2. A third person, who is subject to the danger of losing his right to
the property of the debtor (right of lease, pledge, or others) as a consequence
of execution being levied by the creditor on this property, may at his own
expense satisfy the demand of the creditor without the consent of the debtor.
In such a case the rights of the creditor regarding the obligation shall pass
to the third person in accordance with Articles 353-358 of this Code.
Article 295. Period for Performance of Obligation
1. If an obligation provides for or enables to determine the date of its
performance or the period of time during which it must be performed, the
obligation shall be subject to performance on that day or, respectively, at any
time within the limits of that period.
2. When an obligation does not provide for a period for its performance
and does not contain conditions enabling to determine this period, it must be
performed within a reasonable period after the origin of the obligation.
An obligation not performed within a reasonable period, and likewise an
obligation, the period of performance of which has been determined by the time
of demand, the debtor shall be obliged to perform within a seven-day period
from the day of receipt of the written demand of the creditor concerning the
performance thereof, unless the duty to perform within another period arises
from the act of legislation, the conditions of the obligation or the essence of
the obligation.
Article 296. Performance of Obligation Before Time
The debtor shall have the right to perform an obligation before time
unless otherwise provided by the legislation, or the conditions of the
obligation, or does not arise from the essence thereof. However, the
performance of an obligation before time connected with the effectuation of
entrepreneurial activity by the parties thereof shall be permitted only in
instances when the possibility to perform an obligation before time is provided
for by the legislation, or by the conditions of the obligation, or arises from
the essence of the obligation.
Article 297. Place of Performance of Obligation
If the place of performance has not been determined by the legislation,
or by contract and is not obvious from the essence of the obligation,
performance must be made:
1) with regard to an obligation to transfer a land plot, a capital
constructions (building, structure), or other immovable property: at the
location of the property;
2) with regard to an obligation to transfer a good or other property
providing for the carriage thereof: at the place of handing over the property
to the first carrier for delivery to the creditor;
3) with regard to other obligations of the debtor to transfer a good or
other property: at the place of manufacture or storage of the property, if this
place was known to the creditor at the time of origin of the obligation;
4) with regard to a monetary obligation: at the place of residence of
the creditor at the time of origin of the obligation, and, if the creditor is a
legal person, at its location at the time of origin of the obligation. If the
creditor at the time of performance of the obligation has changed place of
residence or location and notified the debtor thereof: at the new place of
residence or location of the creditor, with charging the expenses, connected
with the change of place of performance, to the account of the creditor;
5) with regard to all other obligations: at the place of residence of
the debtor, and, if the debtor is a legal person, at its location.
Article 298. Currency of Monetary Obligations
1. Monetary obligations must be expressed in Belarusian Rubles (Article
141).
It may be provided in a monetary obligation that it shall be subject to payment
in Belarusian Rubles in an amount equivalent to a determined amount in foreign
currency or in conventional monetary units (Special Drawing Rights, and
others). In this event the amount subject to payment in Rubles shall be
determined according to the official exchange rate of the respective currency
or conventional monetary units on the day of payment, unless other exchange
rate or another date for determining it has been established by the legislation
or by agreement of the parties.
2. The use of foreign currency and of payment documents in foreign
currency shall be permitted when carrying out the settlement of accounts on the
territory of the Republic of Belarus with regard to obligations in the
instances, in accordance with the procedure and on the conditions determined by
the legislation.
Article 299. Increase of Amounts Payable for Maintenance of Citizen
An amount payable with regard to a monetary obligation directly for the
maintenance of a citizen in compensation of harm caused to life or health,
under a contract of maintenance for life, and in other instances, shall be
increased in proportion with an increase of the basic value established by the
legislation.
Article
300. Priority of Payment of Demands Relating to Monetary Obligation
The amount of payment made, which is insufficient for the performance of
a monetary obligation in full, shall be used, unless otherwise provided by the
President of the Republic of Belarus, for payment of:
first, the expenses of the creditor with regard to the receipt of
performance;
second, the principal amount of the debt and interests for using the
monetary means, which are subject to payment upon the monetary obligation (the
loan, credit, advance etc.);
third, the interests, provided by Article 366 of this Code for
non-performance or delayed performance of the monetary obligation, and the
penalty.
Article 301. Performance of Alternative Obligation
The right of choice, unless it arises otherwise from the legislation or
the conditions of the obligation, shall belong to the debtor who is obliged to
transfer to the creditor one or another property or to perform for the creditor
one of two or several actions.
Article
302. Performance of Obligation in Which Several Creditors or Several Debtors
Participate
If several creditors or several debtors participate in an obligation,
each of the creditors shall have the right to demand performance, and each of
the debtors shall be obliged to perform the obligation in equal share with the
others insofar as it does not arise otherwise from the legislation or the
conditions of the obligation.
Article 303. Joint and Several Obligations
A joint and several duty (liability) or a joint and several demand shall
arise if the joint-and-several nature of the duty or demand has been provided
for by a contract or established by the legislation, in particular, when the
subject of the obligation is indivisible.
The duties of several debtors relating to an obligation connected with
entrepreneurial activity, and likewise the demands of several creditors in such
obligation, shall be joint and several unless otherwise provided by the
legislation or by the conditions of the obligation.
Article 304. Rights of Creditor in Event of Joint and Several Duty
1. In the event of joint and several duty of debtors, the creditor shall
have the right to demand performance both from all of the debtors jointly or
from any of them individually, either for the whole debt or for part of the
debt.
2. A creditor who has not received full satisfaction from one of the
joint and several debtors shall have the right to demand that which has not
been received from the other joint and several debtors.
Joint and several debtors shall remain obliged as long as the obligation
is not performed in full.
Article
305. Objections Against Demands of Creditor in Event of Joint and Several Duty
In the event of the joint and several duty a debtor shall not have the
right to raise objections against the demand of a creditor based on those
relations of other debtors with the creditor in which the said debtor does not
participate.
Article 306. Performance of Joint and Several Duty by One of Debtors
The performance of a joint and several duty in full by one of the
debtors shall relieve the other debtors from performance to the creditor.
Unless it arises otherwise from relations between the joint and several
debtors:
1) the debtor who has performed the joint and several duty shall have
the right of a regressive demand against the other debtors in equal shares,
with the deduction of the share falling on this debtor himself;
2) that unpaid by one of the joint and several debtors to the debtor who
has performed the joint and several duty shall fall in equal shares on this
debtor and on the remaining debtors.
The rules of this Article shall apply respectively when terminating the
joint and several obligation by setting-off the counter-demand of one of the
debtors.
Article 307. Joint and Several Demands
In the event of the joint and several nature of a demand, any of the
joint and several creditors shall have the right to submit the demand to the
debtor in full.
Until the demand is submitted by one of the joint and several creditors,
the debtor shall have the right to perform the obligation to any of them at his
discretion.
The debtor shall not have the right to raise objections against the
demand of one of the joint and several creditors, based on those relations of
the debtor with another joint and several creditor in which the particular
creditor did not participate.
The performance of the obligation in full to one of the joint and
several creditors shall relieve the debtor from performance to the other
creditors.
A joint and several creditor who has received performance from the
debtor shall be obliged to compensate that which is due to the other creditors
in the equal shares, unless it arises otherwise from the relations between the
creditors.
Article 308. Performance of Obligation by Placing Debt on Deposit
1. A debtor shall have the right to place money or securities, due from
him, on the deposit of a notary, a diplomatic agent of the diplomatic
representation of the Republic of Belarus or a consular official of the
consular office of the Republic of Belarus, and in the instances established by
the legislation, on the deposit of a court, if the obligation cannot be
performed by the debtor as a consequence of:
1) the absence of the creditor or person authorized by him to accept
performance at the place where the obligation must be performed;
2) the lack of active legal capacity of the creditor and absence of his
representative;
3) the evident lack of certainty as to who is the creditor with regard
to the obligation, in particular, in connection with a dispute in this regard
between the creditor and other persons;
4) evading by the creditor of accepting performance or other delay on
the part of the creditor.
2. The placing of a monetary amount or securities on deposit of a
notary, a diplomatic agent of the diplomatic representation of the Republic of
Belarus, a consular official of the consular office of the Republic of Belarus
or of a court shall be considered to be performance of the obligation.
The notary, a diplomatic agent of the diplomatic representation of the
Republic of Belarus, a consular official of the consular office of the Republic
of Belarus, or the court to the deposit of which the money or securities have
been placed, shall notify the creditor thereof.
Article 309. Counter Performance of Obligations
The performance of an obligation by one of the parties which in
accordance with a contract is conditioned by the performance by the other party
of its obligations shall be deemed to be counter performance.
In the event of the failure of an obliged party to provide the
performance of an obligation stipulated by the contract or of the existence of
circumstances obviously testifying that such performance will not be made
within the established period, the party on whom counter performance lies shall
have the right to suspend the performance of its obligation or to waive the
performance of this obligation and demand compensation of losses.
If the performance of an obligation stipulated by a contract was not
made in full, the party on whom the counter performance lies shall have the
right to suspend the performance of his obligation or to waive performance in
that part corresponding to the performance not provided.
If counter performance of an obligation has been made regardless of the
failure of the other party to provide performance of its obligation stipulated
by the contract, this party shall be obliged to provide such performance.
The rules provided for by Clauses 2 and 3 of this Article shall apply
unless otherwise provided by the contract or by the legislation.
CHAPTER 23
Securing Performance of Obligations
§ 1. General Provisions
Article 310. Means of Securing the Performance of Obligations
The performance of obligations may be secured by a penalty, pledge,
retention of property from the debtor, suretyship, bank guarantee, deposit, and
other means provided for by the legislation or by a contract.
The invalidity of an agreement to secure the performance of an
obligation shall not entail the invalidity of this obligation (principal
obligation).
The invalidity of the principal obligation shall entail the invalidity
of the obligation securing it unless otherwise established by the legislation.
Rules of this Chapter shall apply to the relationships on securing the
fulfillment of obligations on securities having regard to peculiarities
established by the legislation on securities.
§ 2. Penalty
Article 311. Concept of Penalty
1. A penalty (fine, forfeit) shall be deemed to be a monetary amount
determined by the legislation or by the contract, which the debtor shall be
obliged to pay to the creditor, unless otherwise is provided by the legislative
acts, in the event of the failure to perform or the improper performance of an
obligation, in particular in the event of the delay of performance. With regard
to a demand concerning payment of a penalty the creditor shall not be obliged
to prove causing of losses to him.
2. A creditor shall not have the right to demand payment of a penalty
unless the debtor bears liability for the failure to perform or the improper
performance of the obligation.
3. Legislative acts may provide for the particularities of payment
(collection) of a penalty (fine, forfeit).
Article 312. Form of Agreement on Penalty
An agreement concerning a penalty must be concluded in written form irrespective
of the form of the principal obligation.
The failure to comply with the written form shall entail the invalidity
of the agreement concerning the penalty.
Article 313. Legal Penalty
1. The creditor shall have the right to demand the payment of a penalty
specified by the legislation (legal penalty) irrespective of whether the duty
to pay it has been provided for by agreement of the parties.
2. The amount of a legal penalty may be increased by agreement of the
parties, if the legislation does not prohibit so.
Article 314. Reduction of Penalty
If a penalty subject to payment is obviously incommensurate to the
consequences of the violation of the obligation, a court shall have the right
to reduce the penalty.
When considering the issue on reduction of penalty, the court may take
into consideration actins of the parties aimed at
voluntary pre-trial settlement of the dispute.
Reduction of penalty after its payment is not allowed. Legislative acts
may provide cases when the penalty may not be reduced.
The rules of this Article shall not affect the rights of the debtor to
the reduction of the amount of his liability on the grounds of Article 375 of
this Code and the rights of the creditor to compensation of losses in the
instances provided for by Article 365 of this Code.
§ 3. Pledge
Article 315. Concept and Grounds for Arising of Pledge
1. By virtue of a pledge the creditor with regard to an obligation
secured by a pledge (pledgeholder) shall have the right, in the event of the
failure or improper execution of the debtor to perform this obligation, to
receive satisfaction from the value of the pledged property preferentially
before other creditors of the person (pledger) to whom this property belongs,
with the exception of cases provided for by the legislation.
2. A pledge of land plots, enterprises, capital constructions
(buildings, structures), apartments, and other immovable property (mortgage)
shall be regulated by the legislation on mortgage. The general rules on pledge
contained in this Code shall apply to mortgage in the instances when other
rules have not been established by the legislative acts on mortgage.
The rules of this section apply to the pledge of securities, unless
otherwise provided by the legislation on securities.
3. A pledge shall arise by virtue of a contract. Pledge also shall arise
on the ground of the act of legislation when the circumstances specified
therein ensue, if it is provided in the legislation, which property and for
securing the performance of which obligation there is deemed to be a pledge.
The rules of this Code on pledge arising by virtue of contract shall
respectively apply to a pledge arising on the ground of the act of legislation
unless otherwise established by the legislation.
Article 316. Pledger
1. Either the debtor himself or a third person may be a pledger.
2. The pledger of a thing may be the owner thereof or a person having
the right of economic management or operative administration over it, having
regard to provided by parts two and three of this Clause.
The person to whom a thing belongs by right of economic management is
entitled to pledge it without the consent of the owner only at disposal of
property in accordance with Clause 3 of Article 276 of this Code. .
Organizations for which the property is fixed on the right of operative
administration, are entitled to pledge the property being in state ownership,
in accordance with the legislative acts on the disposal of state property,
unless otherwise provided by the President of the Republic of Belarus, and the
property being in private ownership – with the consent of the owner of the
property or his authorized representative.
3. The pledger of a right may be the person to whom the pledged right
belongs
The pledge of the right of lease or other right to another's thing shall
not be permitted without the consent of its owner or the person having the
right of economic management or operative administration over it, if the
alienation of this right without the consent of the said persons has been
prohibited by the legislation or by the contract.
Article 317. Subject of Pledge
l. Any property, including things and property rights (demands), may be
the subject of a pledge except for property withdrawn from turnover, demands
inseparably connected with the person of the creditor, in particular, demands
concerning alimony, compensation for harm caused to life or health, and other
rights, assignment of which to another person has been prohibited by the
legislation.
Property acquired at the expense of the external state loan (credit) may
not be subject of pledge including mortgage till the complete discharge of
obligations on such a loan (credit) is carried out.
Legislative acts may establish other restrictions for transfer of the
property in pledge.
2. The pledge of individual types of property, in particular the
property of citizens against which levy of execution is not permitted, may be
prohibited or limited by the legislation.
Article 318. Demand Secured by Pledge
Unless otherwise provided by a contract, a pledge shall secure a demand
in that amount which it has at the time of satisfaction, in particular,
interest, penalty, compensation of losses caused by failure or improper
performance, and also compensation of necessary expenses of the pledgeholder
for maintenance of the pledged thing and expenses relating to recovery.
Article
319. Pledge With and Without Transfer of Pledged Property to Pledgeholder
1. Pledged property shall remain in the disposal of the pledger unless
the contract stipulates the transfer of the pledged property into disposal of a
pledgee (pawn).
Property on which a mortgage is established, pledged shares, and also
pledged goods in turnover may not become an object of pawn.
2. By agreement of parties, the subject of pledge may be left with
pledger under the lock with a seal of a pledgee or with imposition of signs
indicating the pledge (firm pledge)
Rules regulating a pledge shall apply to a firm pledge to the extent
that their application does not contradict the essence of the relationship of
the pledger with pledgee in such kind of a pledge.
3. The subject of a pledge, transferred by the pledger for a time in
possession and use to the third person, shall be considered to be left in the
disposal of the pledger.
4. In the event of the pledge of a property right certified by a
security, with the exception of an equity security, it shall be transferred to
the pledgeholder or to the deposit of a notary, unless otherwise provided by
the contract.
Article 320. Contract on Pledge, Its Form and Registration
1. In the contract on pledge, the subject of pledge and its value, the
essence, amount, and period for performance of the obligation secured by the
pledge, as well as other conditions if the necessity of their inclusion into
the contract is provided by this Chapter must be specified. The contract on
pledge must also contain an indication of the party in the disposal of which
the pledged property is placed.
2. A contract on pledge must be concluded in written form.
A contract on the pledge of property and/or property rights (claims) to
secure obligations under a contract, which must be notarially
certified, is subject to notarial certification.
3. A contract on mortgage must be registered in accordance with the
procedure established for the registration of transactions with the respective
property. A contract on mortgage, providing for the pledge of the immovable
property, which shall be transferred to the pledger in the future and which, at
the time of conclusion of the contract, does not considered to be created in
accordance with the legislation, shall not be subject to the state registration
and shall be considered to be concluded since the time of its drawing-up in
written form.
4. The failure to comply with the rules contained in Clauses 2 and 3 of
this Article shall entail the invalidity of the contract on pledge.
Article 321. Property to Which Right of Pledgeholder Extends
1. The right of the pledgeholder (right of pledge) to a thing which is
the subject of pledge shall extend to its appurtenances unless otherwise
provided by contract.
The right of pledge shall extend to yield, products, and revenues
received as a result of the use of the pledged property in the instances provided
for by contract.
2. In the event of the mortgage of an enterprise or other property
complex as a whole the right of pledge shall extend to all of its property,
movable and immovable, including the rights of demand and exclusive rights,
including those acquired during the period of the mortgage, unless otherwise
provided by the legislative acts or contract.
3. [Excluded]
4. [Excluded]
5. [Excluded]
6. The pledge of things and property rights, which the pledger will
acquire in the future, may be provided for by the contract on pledge, and, with
respect to a pledge arising on the ground of the act of legislation, by the
legislation.
Article 322. Origin of Right of Pledge
1. The right of pledge shall arise from the time of conclusion of the
contract on pledge, and with respect to the pledge of property which is subject
to transfer to the pledgeholder, from the time of transfer of this property,
unless otherwise provided by the contract on pledge, or, in cases when
registration of the contract is required, from the time of registration of the
contract.
If the subject of pledge is property that will be created or acquired by
the pledger in the future, the right of pledge arises for the pledgeholder from
the moment the pledger creates or acquires this property, unless the law or the
contract on pledge stipulates that it will arise within another time limit.
2. The right of pledge to goods in turnover shall arise in accordance
with the rules of Article 338(2) of this Code.
Article 323. Subsequent
Pledge. Priority Order of Satisfaction of Demands of Pledgeholders
1. If property under pledge becomes the subject of yet another pledge to
secure other demands (subsequent pledge), the demands of the pledgeholders
shall be satisfied from the value of this property with observance of the
priority order provided by clause 2 of this Article, unless otherwise
established by Article 3231 of this Code.
Subsequent pledge shall not be allowed:
if it is prohibited by preceding contracts on pledge;
in other instances provided for by the legislative acts.
The pledger shall be obliged to inform each subsequent pledgeholder
about all of the existing pledges of the particular property provided for by
Article 320 (1) of this Code and shall be liable for losses caused to pledgeholders
by the failure to fulfill this duty.
2. The rights of the pledgeholder to receive satisfaction from the value
of the pledged property mainly over other pledgeholders who have the right to
receive satisfaction from the value of this property (priority of the
pledgeholder) shall be determined depending on the moment the pledge right
arises, unless otherwise provided by part two of this clause and other
legislative acts.
In the case if information on the rights of pledgeholders to movable
property belonging to the pledger, encumbered by the pledge, is to be entered
into the register of movable property encumbered by the pledge in accordance
with the legislative acts, the priority of the pledgeholder shall be determined
according to the order of entering the information on the pledge in the
register of movable property encumbered by the pledge. Pledgeholders that have
entered complete and accurate information about the relevant rights in the
register of movable property encumbered by the pledge in cases where, in
accordance with legislative acts, such information is to be entered in the said
register, shall have the priority of the pledgeholder over pledgeholders that
did not enter such information in this register or entered thereinto
information that does not meet the requirements of the legislative acts (with
the exception of technical errors), and (or) inaccurate information.
The priority of pledgeholders that have not entered information on the
rights of pledgeholders to movable property belonging to the pledger,
encumbered by the pledge, in the register of movable property encumbered by the
pledge, or entered thereinto information that does
not meet the requirements of legislative acts (with the exception of technical
errors), and (or) inaccurate information shall be determined depending on the
moment of arising of the right of pledge.
Demands of the pledgeholder that does not have the priority of
pledgeholder (subsequent pledgeholder) are satisfied from the value of the
pledged property after satisfaction of the demands of the pledgeholder that has
the priority of the pledgeholder (preceding pledgeholder).
3. In case of levying execution on the pledged property by the preceding
pledgeholder, the subsequent pledgeholder is entitled to demand from the debtor
early fulfillment of the obligation secured by the subsequent pledge, with the
exception of the obligations secured by guarantees of the Government of the
Republic of Belarus, guarantees of local executive and administrative bodies.
In case of non-fulfillment of such an obligation, the subsequent pledgeholder
is entitled to levy execution on the pledged property simultaneously with the
preceding pledgeholder with observance of the priority provided for by clause 2
of this Article.
The contract between the pledger and the subsequent pledgeholder may
limit the right of such pledgeholder to demand from the debtor an early
fulfillment of the obligation secured by the subsequent pledge.
4. If in case of levying execution on the pledged property by the
preceding pledgeholder, the subsequent pledgeholder did not use the right to
demand early execution of the obligation from the debtor in accordance with
clause 3 of this Article, or such right was limited by the contract or the
subsequent pledge secured the obligations also secured by guarantees of the
Government of the Republic of Belarus, guarantees of local executive and
administrative bodies, the subsequent pledge is terminated in the case where
the execution was levied on all the pledged property for satisfaction of
demands of the preceding pledgeholder. Otherwise the subsequent pledge remains
effective in accordance with clause1 of Article 334 of this Code.
If the preceding pledgeholder used the right provided by part two of
clause 4 of Article 331 of this Code, the subsequent pledge shall be
terminated.
If the preceding pledgeholder did not use the right provided for by part
two of clause 4 of Article 331 of this Code, this right may be used by the
subsequent pledgeholder that demanded early execution of the obligation from
the debtor, unless such right is limited by the contract.
5. In case of levying execution on the pledged property by the
subsequent pledgeholder, the preceding pledgeholder is entitled to demand from the debtor early fulfillment
of the obligation secured by the subsequent pledge, with the exception of the
obligations secured by guarantees of the Government of the Republic of Belarus,
guarantees of local executive and administrative bodies. In case of
non-fulfillment of such an obligation, the preceding pledgeholder is entitled
to levy execution on the pledged property simultaneously with the subsequent
pledgeholder with observance of the priority provided for by clause 2 of this
Article. If the preceding pledgeholder did not use this right, the right of
pledge shall remain effective in accordance with clause 1 of Article 334 of
this Code.
6. The pledger to which one of the pledgeholders has presented a demand
to levy execution on the pledged property, is obliged, not later than within
seven working days from the date of receipt of the said demand, to send a
written notice of its presentation to all other pledgeholders of this property
and shall be liable for damages caused to such pledgeholders by the failure to
fulfill that duty
If the pledgeholder that received a written notice on presentation of a
demand to levy execution on the pledged property, are entitled in accordance
with clauses 3 and 5 of this Article to present a demand to the debtor for the
early fulfillment of the obligation secured by the pledge, such a demand my be presented within one month from the date of receipt
of such notice.
7. The rules established by this Article shall not be applied if the
pledgeholder on the preceding and the subsequent pledges is the same person. In
that case, demands secured by each of the pledges shall be satisfied according
to the priority order corresponding to the time limits of the fulfillment of
obligations secured by the pledge, unless otherwise provided by legislative acts
or by the contract.
Article 3231.
Co-pledgeholders
1. In the cases provided for by the legislation or contract, the subject
of pledge may be in pledge of several persons who have with equal priority of
pledgeholder (co-pledgeholders) to secure the fulfillment of various
obligations for which co-pledgeholders are independent creditors, with the
exception of property, information on the rights of pledgeholders to which is
subject to entering in accordance with legislative acts into the register of
movable property encumbered with pledge.
Each co-pledgeholder shall independently exercise rights and duties of
the pledgeholder, unless otherwise provided by the legislation or an agreement
between co-pledgeholders.
In case of levying execution on the pledged property by one of the
co-pledgeholders, other co-pledgeholders is entitled to demand from the debtor
early fulfillment of the obligation secured by the pledge and, in the case of
non-fulfillment of such obligation, to levy execution on the pledged property simultaneously
with that co-pledgeholder, with the exception of cases when the contract
between the pledger and the pledgeholder limits the right of that
co-pledgeholder to demand from the debtor early fullfilment
of the obligation secured by the pledge. In case of insufficiency of monetary
means received from the realization of the pledged property, such monetary
means shall be distributed between co-pledgeholders proportionally to the
amounts of their demands, unless otherwise provided by the legislative acts or
an agreement between the co-pledgeholders.
If in case of levying execution on the pledged property by one of the
co-pledgeholders, other pledgeholders did not use the right to demand early
execution of the obligation from the debtor in accordance with part three of
this clause or such right was limited by the contract, the right of pledge of
those co-pledgeholders shall remain effective in accordance with clause 1 of
Article 334 of this Code.
The pledger to which one of the co-pledgeholders has presented a demand
to levy execution on the pledged property, is obliged, not later than within
seven working days from the date of receipt of the said demand, to send a
written notice of its presentation to all other co-pledgeholders of this
property, unless another procedure of notification is provided by the
legislation or the contract, and shall be liable for damages caused to such
co-pledgeholders by the failure to fulfill that duty Co-pledgeholders that
received a written notice on presentation of a demand to levy execution on the
pledged property, are entitled to present a demand to the debtor for the early
fulfillment of the obligation secured by the pledge, such a demand my be presented within one month from the date of receipt
of such notice.
2. Creditors that have the right to present a demand to the debtor on
the principal obligation secured by the pledge in full (joint-and-several
creditors) and creditors that have the right to present to the debtor a part of
the demand on such an obligation (sharing creditors) are co-pledgeholders on
that pledge, unless otherwise provided by the legislation or the contract.
Satisfaction of demands of joint-and-several creditors on the principal
obligation secured by the pledge shall be carried out in the order established
by Article 307 (4) of this Code.
Satisfaction of demands of sharing creditors on the principal obligation
secured by the pledge shall be carried out proportionally to the amounts of
their demands secured by the pledge, unless otherwise provided by the contract
between them.
Article 324. Maintenance and Preservation of Pledged Property
l. The pledger or pledgeholder, depending upon in which disposal is the
pledged property (Article 338), shall be obliged, unless otherwise provided by
legislation or contract, to:
1) insure pledged property at its full value at the expense of the
pledger against risks of loss and damage, or, if the full value of the property
exceeds the amount of the demand secured by the pledge, for an amount not lower
than the amount of the demand;
2) take measures necessary in order to ensure the preservation of the
pledged property, including those for defense of property against infringements
and demands on the part of third persons;
3) inform immediately the other party concerning the arising of the
threat of loss or damage to the pledged property.
The pledgeholder and the pledger shall have the right to verify, by
documents and actually, the existence, quantity, state, and conditions of
storage the pledged property, which is in disposal of the other party.
In the event of gross violation by the pledgeholder of the duties
specified in Clause 1 of this Article, creating a threat of loss or damage of
the pledged property, the pledger shall have the right to demand the
termination of the pledge before time.
Article 325. Consequences of Loss of or Damage to Pledged Property
1. The pledger shall bear the risk of accidental perishing or accidental
damage to pledged property unless otherwise provided by the contract on pledge.
2. The pledgeholder shall be liable for the full or partial loss of or
damage to the subject of pledge transferred to him unless he would prove that
he may be relieved of liability in accordance with Article 372 of this Code.
The pledgeholder shall be liable for the loss of the subject of pledge
in the amount of its value, taking into account the inflation, and for the
damaging thereof, in the amount by which the value was reduced irrespective of
its value specified in the contract.
If as a result of damage to the subject of pledge it has so changed that
it cannot be used for its intended purpose, the pledger shall have the right to
reject it and to demand compensation for the loss thereof.
The duty of the pledgeholder to compensate the pledger for other losses
caused by the loss of or damage to the subject of pledge may be provided for by
a contract.
The pledger who is a debtor with regard to the obligation secured by a
pledge shall have the right to set off the demand against the pledgeholder
concerning compensation of losses caused by the loss of or damage to the
subject of pledge in repaying the obligation secured by the pledge.
Article 326. Substitution and Restoration of Subject of Pledge
l. The replacement of the subject of pledge shall be permitted with the
consent of the pledgeholder unless otherwise provided by legislation or by
contract.
If there is a real threat of total or partial loss or damage to the
subject of a mortgage not on the fault of the mortgagee, he is entitled to
demand replacement of the subject of a mortgage, and in case if the mortgagor
denies to fulfill this demand – to demand premature performance of obligations
secured by this mortgage.
2. If the subject of pledge is lost or damaged or the right of ownership
therein or the right of economic management or operative administration has
been terminated on the grounds established by the legislation, the pledger
shall have the right within a reasonable period to restore the subject of
pledge or substitute other property of equal value unless otherwise provided by
the contract.
Article 327. Use and Disposition of Subject of Pledge
1. The pledger shall have the right, unless otherwise provided by
contract and unless follows otherwise from the essence of the pledge, to use
the subject of pledge in accordance with its intended purpose, including to
derive yield and incomes from it.
2. Unless otherwise provided by the legislation or contract and unless
follows otherwise from the essence of the pledge, the pledger shall have the
right to alienate the subject of pledge, to transfer it on lease or for use
without compensation to another person, or otherwise to dispose of it only with
the consent of the pledgeholder.
An agreement limiting the right of the pledger to bequeath pledged
property shall be void.
3. The pledgeholder shall have the right to use the subject of pawn
transferred lo him only in the instances provided for by contract, regularly
submitting a report on use to the pledger. The duty may be placed under a
contract on the pledgeholder to derive yield and incomes from the subject of
pledge for the purposes of repaying the principal obligation or in the
interests of the pledger.
Article 328. Defense by Pledgeholder of His Rights to Subject of Pledge
l. The pledgeholder, in whose disposal the pledged property is or should
be, shall have the right to demand and obtain it from another's illegal
possession, including from the possession of the pledger (Articles 282, 283 and
286).
2. In instances when, in accordance with the conditions of the contract,
the right to use a subject of pledge, transferred to the pledgeholder, has been
granted to him, he may demand from other persons, including from the pledger,
the elimination of any violations of his right, even though these violations
were not connected with deprivation of possession (Articles 285, 286).
Article 329. Grounds for Levying Execution on Pledged Property
1. Execution may be levied on pledged property in order to satisfy the
demands of the pledgeholder (creditor) in the event of the failure to perform
or the improper performance by the debtor of an obligation, secured by the
pledge, for the reasons for which the debtor is liable.
2. Levying execution on pledged property may be refused, if the
violation of the obligation, secured by the pledge, which was committed by the
debtor, is extremely insignificant, and the amount of the demands of the
pledgeholder as a consequence thereof is clearly incommensurate with the value
of the pledged property.
Article 330. Procedure for Levying Execution on Pledged Property
1. The demands of the pledgeholder (creditor) shall be satisfied from
the value of pledged property by the decision of a court, unless otherwise
provided by parts two and three of this clause and part one of Article 339 (5)
of this Code.
The satisfaction of a demand of the pledgeholder at the expense of
pledged property without recourse to a court is permitted on the basis of a notarially certified agreement of the pledgeholder with the
pledger concluded before or after the grounds established by the legislation to
levy execution on pledged property arise except for the cases provided by
clause 3 of this Article. In this instance, such an agreement shall contain a
condition on granting the right to the pledger or the pledgeholder, or another
person chosen by the parties to perform on behalf of the pledger the sale of
pledged property in case of levying execution on the pledged property to
satisfy demands of the pledgeholder and may not stipulate the transfer of the
ownership to the pledged property to the pledgeholder. Such an agreement may be
considered by the court to be invalid upon the lawsuit of the person whose
rights were violated by this agreement.
The satisfaction of a demand of the pledgeholder at the expense of the pledged
property right (demand) to receive monetary means without recourse to a court
is permitted on the basis of a contract on pledge (another agreement concluded
between the pledgeholder and pledger), with the exception of cases provided for
by clause 3 of this Article. In this instance, such a contract (agreement) must
stipulate a possibility for the pledgeholder to retain the pledged property
right (demand) to receive monetary means on the conditions determined therein,
but not less than the value of such right (demand) specified in the contract on
pledge.
2. In cases when for the pledge, in accordance with the legislative
acts, it is necessary to receive the consent (decision) of a person or a state
body, another state organization, conclusion of the agreement, provided in part
two of Clause 1 of this Article, is possible only after the receipt, under the
established procedure, of such consent (decision) of this person or a state
body, another state organization.
3. Execution may be levied on the subject of pledge only by a decision
of the court in case if :
1) the pledger is absent, and it is impossible to establish his
location;
2) the subject of pledge is property being historical and cultural
value;
3) the subject of pledge is property with limited turnability;
4) the subject of pledge is an enterprise as property complex;
5) the subject of pledge is property being in common ownership and
somebody of its owners gives no consent in a written form to satisfy claims of
the pledgeholder out of court;
6) for the mortgage of property the consent (decision) of another person
or state body, another state organization is needed.
4. The satisfaction of demands of the pledgeholder (creditor) on the
repayment of a bank credit at the expense of the pledged property is performed,
without recourse to a court and holding a public competition, on the basis of notarially certified contract of the pledgeholder with the
pledger concluded after the grounds established by the legislation for the levy
of execution upon the subject of pledge. At that, the contract may not
stipulate the transfer of the ownership of the pledged property to the
pledgeholder.
The pledged property recoverable by the decision of a court and related
to fixed assets of the pledgeholder may not be subject to the levy of execution
in the order established by part one of this clause.
Article 331. Realization of Pledged Property
1. Realization of the pledged property, on which execution is levied in
accordance with part one of Article 330 (1) of this Code, shall be effectuated
by means of sale at public sale in accordance with the procedure established by
procedural legislation unless a different procedure has been established by
this Code and other acts of legislation.
2. At the request of the pledger, the court shall have the right, in
decision to levy execution on pledged property, to defer the sale thereof at
public sale for period of up to one year.
The deferral shall not affect the rights and duties of the parties with
regard to an obligation secured by the pledge of this property and shall not
relieve the debtor from compensating the losses of the creditor and the penalty
that accrued during the period of deferral.
21. Pledged property on which the execution has been levied
without application to the court in accordance with part two of Article 330 (1)
and Article 330 (2) of this Code, shall be realized:
1) at public trading under the procedure established by acts of
legislation:
by the pledgeholder, pledger or another person authorized by a notarially certified agreement of the pledgeholder with
pledger, with the exception of the case provided in indent three of this
sub-clause;
by the pledgeholder if the pledge subject is a land plot being in
private ownership or the right to lease a land, plot, including with capital
constructions (buildings, structures) the located or erected on them, or
capital constructions (buildings, structures) with simultaneous pledge of the
land plot being in private ownership (the right to lease the land plot), on
which these capital constructions (buildings, structures) are located, as well
as other property being part of fixes assets of the pledger;
2) according to a contract of sale without holding the public trading,
by a bank, pledgeholder, pledger, or another person authorized by a notarized
agreement of the bank pledgeholder with the pledger in case of satisfactions of
claims for repayment of a bank credit at the expense of pledged property, with
the exception of the property specified in indent three of sub-clause 1 of this
clause.
3. The initial sale price at which the public sale begins shall be
determined by decision of a court in accordance with the procedural
legislation, when levying execution on property in a judicial proceeding, or by
agreement of the pledgeholder with the pledger, when levying execution on that
property without going to court, unless otherwise provided by legislative acts.
The pledged property shall be sold to the person who offered the highest
price at the public sale.
When a public sale, including a repeat one, is declared to be not
effectuated due to the fact that the request (application) for participation
therein is submitted only by one participant or for participation therein only
one participant turned up, in the instances provided by legislative acts, the
sale object is to be sold to that participant, upon his consent, at the initial
price increased by five percent.
4. When a public sale is declared to be not effectuated and the sole
participant that submitted a request (application) for participation in the
sale or turned up to participate therein has refused to purchase the pledged
property at the initial sale price increased by five percent, if a possibility
of such purchase is provided by legislative acts, the pledgeholder shall have
the right by agreement with the pledger to acquire the pledged property and to
set off against the purchase price his demands secured by the pledge. The rules
concerning the contract of purchase-sale shall apply to such an agreement.
When a repeat public sale is declared to be not effectuated and the sole
participant that submitted a request (application) for participation in the
sale or turned up to participate therein has refused to purchase the pledged
property at the initial sale price increased by five percent, if a possibility
of such purchase is provided by legislative acts, the pledgeholder shall have
the right to retain the subject of pledge, valuing it in an amount of not more
than 10 percent less that the initial sale price at the repeat public sale.
If the pledgeholder does not take advantage of the right to retain the
subject of pledge within a month from the date of announcement of the repeat
public sale to be not effectuated and the sole participant that submitted a
request (application) for participation in the sale or turned up to participate
therein has refused to purchase the pledged property at the initial sale price
increased by five percent, if a possibility of such purchase is provided by
legislative acts, the contract on pledge shall terminate.
5. If the amount received when realizing the pledged property is
insufficient to cover the demand of the pledgeholder, he shall have the right,
in the absence of any other indication in the legislation or in the contract,
to receive the amount in arrears from other property of the debtor, not taking
advantage of preference based on pledge.
6. If the amount received at realization of the pledged property exceeds
the amount of the demand of the pledgeholder secured by the pledge, the
difference shall be returned to the pledger, with the exception of the case
provided for by part five of Article 339 (5) of this Code.
7. A debtor and pledger, being a third person, shall have the right at
any time before the sale of the subject of pledge to terminate the levying of
execution on it and the realization thereof, by performing the obligation
secured by the pledge or that part thereof, the performance of which has been
delayed. An agreement limiting this right shall be void.
Article
332. Performance of Obligation Secured by Pledge Before Time and Levying
Execution on Pledged Property
1. A pledgeholder shall have the right to demand the performance before
time of an obligation, secured by pledge, in the following instances:
1) the subject of pledge departed from the possession of the pledger, in
which disposal it was left, not in accordance with the conditions of the
contract on pledge;
2) a violation, by the pledger, of the rules concerning substitution of
the subject of pledge (Article 326);
3) loss of the subject of pledge under circumstances for which the
pledgeholder is not liable, if the pledger has not taken advantage of the right
provided for by Article 326(2) of this Code.
2. The pledgeholder shall have the right to demand the performance
before time of the obligation secured by pledge and, if this demand is not
satisfied, to levy execution on the subject of pledge in the following
instances:
1) violation by the pledger of the rules on the subsequent pledge or
levying the execution on the pledged property by the preceding or subsequent
pledgeholder or by one of the co-pledgeholders (Articles 323 and 3231);
2) the failure of the pledger to fulfill the duties provided for by
Article 324(1), sub-clauses (1) and (2), and Article 324(2) of this Code;
3) a violation by the pledger of the rules concerning the disposition of
pledged property (Article 327(2)).
Article 333. Termination of Pledge
1. A pledge shall terminate:
1) with the termination of the obligation secured by the pledge;
2) upon the demand of the pledger
when there are the grounds provided for by Article 324(3) of this Code;
3) in the event of perishing of the
pledged thing or termination of the right of pledge, unless the pledger has
taken advantage of the right provided for by Article 326(2) of this Code;
4) in the event of the sale of
pledged property at public sale, and also when the realization thereof has
proved to be impossible (Article 331(4));
5) with transfer of the debt under
the obligation secured by the pledge to another person, if the pledger has not
given the consent to the creditor to respond for a new debtor (Article 337);
6) upon levying the execution on the
pledged property by the preceding pledgeholder unless the subsequent
pledgeholder have not used the right to demand from the debtor or such right
was limited by the contract, or the subsequent pledge secured the obligations
also secured by guarantees of the Government of the Republic of Belarus,
guarantees of local executive and administrative bodies, and for satisfaction of
demands of the preceding pledgeholder the execution is levied on all pledged
property or if the preceding pledgeholder used the right provided for by part
two of Article 331 (4) of this Code.
2. Termination of mortgage shall be registered in accordance with the
legislation.
3. In the event of termination of
pawn as a consequence of the performance of the obligation secured by the pawn
or at the demand of the pledger (Article 324(3)), the pledgeholder, in whose
disposal is the pledged property is obliged to return it immediately to the
pledger.
Article
334. Preservation of Pledge in Event of Transfer of Right to Pledged Property
to Another Person
l. In the event of the transfer of the right of ownership to pledged property
or the right of economic management from the pledger to another person as a
result of the alienation of this property, with or without compensation, or by
way of universal legal succession, the right of pledge shall retain force.
The legal successor of the pledger shall take the place of the pledger
and shall bear all the duties of the pledger, unless otherwise established by
an agreement with the pledgeholder.
2. If the property of the pledger, which is the subject of pledge, has
passed by way of legal succession to several persons, each of the legal
successors (acquirers of the property) shall bear the consequences, arising
from the pledge, for the failure to perform the obligation secured by the
pledge, commensurate with the part of the said property which has passed to
this legal successor (acquirer). However, if the subject of the pledge is
indivisible, or it remains in the common joint ownership of the legal
successors on other grounds, they shall become joint and several pledgers.
Article 335.
Consequences of Compulsory Withdrawal of Pledged Property
1. If the right of ownership of a pledger to property which is the
subject of pledge terminates on the grounds and in accordance with the
procedure established by the legislation as a consequence of the withdrawal
(purchase) for state needs, requisition or nationalization, and other property
or respective compensation is granted to the pledger, the right of pledge shall
extend to the property granted instead or, respectively, the pledgeholder shall
acquire the right of preferential satisfaction of his demand from the amount of
compensation due to the pledger. The pledgeholder also shall have the right to
demand the performance before time of the obligation secured by the pledge.
2. In the instances when property which is the subject of pledge is
withdrawn from the pledger in accordance with the procedure established by the
legislation because the owner of this property is really another person
(Article 282), or in the form of a sanction for the commission of a crime or
another violation of legislation (Article 244), the pledge with respect to this
property shall terminate. In these instances the pledgeholder shall have the
right to demand performance before time of the obligation secured by the pledge.
Article 336. Cession of Rights Regarding Contract on Pledge
A pledgeholder shall have the right to transfer his rights under a
contract on pledge to another person while complying with the rules on the
transfer of the rights of a creditor by means of cession of a demand (Articles
353-361).
The cession by the pledgeholder of his rights under a contract on pledge
to another person shall be valid if the rights of demand against the debtor
regarding the principal obligation, secured by pledge, have been transferred to
the same person.
Unless proved otherwise, the cession of rights under a contract on
mortgage shall also mean the cession of rights relating to the obligation
secured by the mortgage.
Article 337. Transfer of Debt Regarding Obligation Secured by Pledge
With the transfer of a debt regarding an obligation secured by a pledge
to another person, the pledge shall terminate unless the pledger has given
consent to the creditor to be liable for the new debtor.
Article 338. Pledge of Goods in Turnover
l. A pledge of goods while leaving them in the disposal of the pledger
and granting to the pledger the right to change the composition and natural
form of the pledged property (goods inventories, raw material, substances,
semi-finished products, finished products, and the like) on condition that
their total value shall not become less than that specified in the contract on
pledge, shall be deemed to be a pledge of goods in turnover.
Transfer into pledge of any movable property defined by generic
characteristics may be carried out in the order established by this Code and
other legislative acts for the pledge of goods in circulation.
A contract on pledge of goods in circulation shall define generic
characteristics of pledged goods and the total value of pledged goods.
A reduction of the value of pledged goods in turnover shall be permitted
commensurately with the performed part of the obligation secured by pledge
unless otherwise provided by the contract.
2. Goods in turnover alienated by a
pledger shall cease to be the subject of pledge from the time of their transfer
into ownership, economic management or operative administration of the
acquirer, and goods acquired by the pledger which are specified in the contract
on pledge shall become the subject of pledge from the time the right of the
pledger arises to ownership, economic management or operative administration.
3. The pledger of goods in turnover
shall be obliged to keep a register book of pledges in which entries are made
concerning the conditions of the pledge of goods and all operations entailing
change of the composition or natural form of the pledged goods, including the
processing thereof, on the day of the last operation.
4. In the event of a violation by the pledger of the conditions of
pledge of goods in turnover, the pledgeholder shall have the right, by placing
his marks and seals on the pledged goods, to suspend operations with these
goods until the violation is eliminated or demand the transfer to him of
pledged goods or demand premature performance of the obligation secured by the
pledge.
Article 339. Pledge of Things in Pawnshop
l. The acceptance from citizens on pledge of movable property intended
for personal consumption to secure short-term microloans (loans in the amount not
exceeding 15 000 base units per one borrower on the day of the conclusion of
the contract) may be effectuated as entrepreneurial activity by specialized
organizations, pawnshops.
2. A contract on the pledge of things in a pawnshop shall be formalized
by the issuance of a pledge ticket by the pawnshop.
3. The pledged things shall be transferred to the pawnshop.
The pawnshop shall be obliged to insure, to the benefit of the pledger,
at the expense of the pawnshop, the things accepted on pledge for the value as
established in accordance with prices for things of this type and quality
commonly established in trade at the time of their acceptance on pledge.
The pawnshop shall not have the right to use and dispose of pledged
things.
4. The pawnshop shall bear liability
for loss of and damage to pledged things unless it would prove that the loss or
damage occurred as a consequence of force majeure.
5. The pawnshop is entitled, in the event of the failure to return,
within the period established by the contract of microloan the fulfillment of
obligation under which is secured by the pledge of movable property intended
for personal, family or household use, the sum of valuation of which on the day
of concluding the contract of microloan does not exceed 100 base units, upon
the expiration of the one-month period after the day of return of the sum of
microloan established by the contract of microloan, to levy the execution on
such property without the recourse to the court and observance of other
requirements provided by part two of Article 330 (1) of this Code and to
realized it in accordance with the procedure determined by the rules for
granting microloans approved by the pawnshop in accordance with the
legislation, unless another procedure is established by the contract of
microloan (pawn ticket), with the exception of the case specified in part four
of this clause.
Independent levying of the execution on movable property intended for
personal, family or household use, which secures the fulfillment of obligations
under the contract of microloan the sum of valuation of which on the day of
concluding the contract of microloan does not exceed 100 base units, and
independent realization of such property shall be carried out by the pawnshop
in accordance with the rules determined by the Council of Ministers of the
Republic of Belarus and the National Bank of the Republic of Belarus.
In the case of failure to return the sum of microloan within the period
established by the contract of microloan the fulfillment of obligations under
which is secured by the pledge of movable property intended for personal,
family or household use, the sum of valuation of which on the day of concluding
the contract of microloan exceeds 100 base units, the levying of execution on
such property upon the expiration of the one-month period after the day of
return of the sum of microloan established by the contract of microloan, and
also realization of such property shall be carried out by the pawnshop in
accordance with Article 330 (1-4) and (7) and Article 331 of this Code, acts of
the President of the Republic of Belarus, with the exception of the case
specified in part four of this clause.
Peculiarities of the pawnshop operations with precious metals and
precious stones, including the peculiarities of the realization of precious
metals and precious stones not demanded from the pawnshop, are established by
the legislation in the sphere of activity with precious metals and precious
stones.
After realization of movable
property intended for personal, family or household use, transferred by the
borrower or another person being the pledger to the pawnshop as security for
the fulfillment of obligations of the borrower under the contract of microloan,
the demands of the pawnshop toward the borrower are extinguished even if the
sum received from the realization of the pledged movable property is
insufficient for their complete satisfaction. If the sum received upon
realization of that property exceeds the amount of the demand of the pawnshop
secured by the pledge, the difference between the sum received from the
realization and the amount of the demand without deduction of costs shall be
returned to the pledger. The difference not claimed by the pledger within three
years from the date of the realization of the pledged movable property is to be
included in the local budget income at the location of the pawnshop.
6. The rules for granting microloans
to citizens by pawnshops under pledge of things belonging to citizens shall be
established in accordance with the legislation.
7. The conditions of a contract on pledge of things in a pawnshop
limiting the rights of the pledger in comparison with the rights granted to him
by the legislation shall be void. In place of such conditions the respective
provisions of the legislation shall be applied.
Article 3391. Pledge of
Property Right (Claim)
1. At the pledge of a property right
(claim), its value shall be defined by the agreement between parties unless
otherwise provided by the nature of the right (claim) itself or established by
the legislative acts.
2. Term property right (claim) may
be the subject of the pledge only till the end of its validity term.
3. At the pledge of a property right
(claim), unless otherwise provided by the contract, the pledger is obliged to:
1) perform all actions necessary to
secure the validity of the pledged right (claim);
2) abstain from performance of
cession of the pledged right (claim);
3) abstain from actions that can
entail the termination of the pledged right (claim) or decrease of its value;
4) take measures necessary to
protect the pledged right (claim) from infringements of third parties;
5) inform the pledgeholder about the
data on changes occurred in the pledged right (claim); its violations by third
persons and about claims of third persons to this right (claim).
4. At the pledge of the property
right (claim) unless otherwise provided by a contract, the pledgeholder is
entitled regardless of the due date the obligation secured by pledge to require
through court to transfer the pledged right (claim) on him, if the pledger has
not fulfilled the obligations provided by sub-clauses 2 - 4 of clause 3 of this
Article, provided that the pledged right (claim) is not terminated.
5. Pledge of the property right
(claim) evidenced by a security paper shall be performed by means of pledging
this security paper.
§ 4. Retention
Article 340. Grounds of Retention
1. A creditor, in whose disposal is a thing, which is subject to transfer
to a debtor or to a person specified by the debtor, shall have the right in the
event of the failure of the debtor to perform the obligation relating to
payment for this thing within the specified period or to compensate the
creditor for expenses and other losses connected therewith, to retain it for so
long as the respective obligation is not performed.
2. The retention of a thing may also secure demands that, although not
connected with the payment for the thing or compensation of expenses therefor
and other losses, but arose from an obligation, the parties to which act as
entrepreneurs.
3. The creditor may retain a thing, being in his disposal, regardless of
the fact that after this thing came into the possession of the creditor, the
rights thereto have been acquired by a third person.
4. The rules of this Article shall apply unless otherwise provided by a
contract.
5. The demands of a creditor who is retaining a thing shall be satisfied
from the value thereof in the amount and in accordance with the procedure
provided for the satisfaction of demands secured by a pledge.
§ 5. Suretyship