Complex Theoretical and Legal Analysis of the Signs of a void Transaction

Kuznetsova Almira Raisovna Lawyer, St. Petersburg Bar Association "Triumph" 191186, Russia, Saint Petersburg, Malaya Morskaya str., 11 premises. 188-1, of. 331 advokat.kuznetsowa@gmail.com Other publications by this author

The year 2013 was marked by another reform of the institute of invalid transactions, and some of its basic provisions were still preserved. Thus, in the Civil Code of the Russian Federation ^[2], the approach of the dual nature of invalid transactions remained unchanged, namely: insignificant and disputed, despite the fact that such a division has been causing a lot of controversy for a long period of time, not only in civil doctrine, but also in practical application ^{[10, pp. 33-36]}.

Technical and legal analysis indicates that the law (Civil Code of the Russian Federation - 166) says - a disputed transaction – a transaction invalidated by a court decision – a void transaction – is invalid regardless of such a decision.

At the same time, today the phenomenon of the "insignificance" of a transaction as a "capacious" and "multifaceted" legal category remains controversial.

G.F. Shershenevich also singled out the "nullity" of the transaction, i.e. he spoke about its absolute invalidity in view of the absence of legal consequences generated by the transaction, having a legal (legitimate) character. G.F. Shershenevich also in this context defended the "relative" invalidity of the transaction, calling it "refutability", i.e. the transaction is not devoid of itself the consequences of the nature of the legal, but only on the claim or objection of the person interested in it ^{[16, p. 134 - 136]}.

Support for such a position can be seen from another author. Thus, I.B. Novitsky believed that "insignificance" implies the absence of full consequences of the legal nature of the transaction, i.e. legal inefficiency – "legal zero" ^{[8, p. 124]}.

The views of F.S. Heifetz boil down to the following - an insignificant transaction in itself can be equated to "zero", having the consequences of a negative property ^{[12, p. 73]}.

No less authoritative researcher D.M. Genkin adhered to such judgments that there is no need for a special court decision when it is necessary to recognize an insignificant transaction as completely invalid ^{[5, pp. 49-50]}. This point of view was also supported by O.S. Ioffe ^{[7, p. 173]}.

V.P. Shakhmatov takes a slightly different position, arguing that invalidity in the form of nullity of civil law transactions is predetermined by law, therefore, a court decision on their nullity is necessary, but it (the decision) has a practical character in terms of the legal consequences of such nullity ^{[15, p. 112]}.

N.V. Rabinovich's point of view is interesting and correct. The author explains that the nullity of a particular transaction should be established in court, since only a court or arbitration, the author believes, can reliably establish this fact (the conditions for such recognition).

Moreover, N.V. Rabinovich continues his chain of reasoning further, such a special court decision serves in the future all the legal consequences of such a transaction, as well as the fundamental inadmissibility of its execution ^{[9, pp. 16-17]}.

It is impossible not to agree with D.O. Tuzov, who says that the very denial of judicial recognition of the fact of the nullity of the transaction can contribute to even greater violations of the law ^{[11, pp. 23-26]}.

More modern authors such as D.A. Davudov, O.V. Lavrov consider void transactions to be invalid to an absolute degree, i.e. from the moment of such a transaction, regardless of the judicial recognition of this fact.

The authors also believe that the legal consequences of such a transaction should not be taken into account by anyone, including law enforcement agencies ^{[6, pp. 718-728]}.

Summarizing all of the above, we see that scientists of different years interpret the very concept of the insignificance of the transaction very contradictory.

The most correct, in our [AK1] opinion, is to define the invalidity of a transaction in the form of its nullity as a form of deprivation of such a transaction of legal force in order to protect or protect the violated rights and interests of any subjects of economic (civil) turnover.

At the same time, the very needs of such a turnover of the modern stage (proper protection of the rights and legitimate interests of its participants) require, in our opinion, a judicial statement of the very fact of the nullity of the transaction.

This is confirmed by the numerous recognition of the nullity of the transaction on the claims of interested parties in various subjects of the Russian Federation. For example:

- The decision of the Yartsevsky city court No . 2-935/2021 2-935/2021 ~M-956/2021 M-956/2021 dated November 22, 2021 in case No. 2-935/2021;

- The decision of the Shabalinsky district Court No . 2-146/2021 2-146/2021 ~M-132/2021 M-132/2021 dated November 22, 2021 in case No. 2-146/2021 and others.

In each of the cases, the court recognized the previously concluded transaction as void, namely, a loan agreement (non–compliance with a simple written form), a contract for the purchase and sale of a vehicle (in view of the defendant's illegal acquisition of a disputed vehicle, he did not have the right to dispose of a car provided for in Article 209 of the Civil Code of the Russian Federation), respectively.

A possible way out of this situation may be a legally established list of such transactions, which is not an absolute novelty in doctrinal terms. These views were reflected and developed in the works of A.F. Abdirimov, Y.Z. Ozmanyan ^{[4, pp. 166-171]}, M.S. Shaibekyan ^{[14, pp. 62-66]}, etc.

Agreeing with which, we believe that such a list will be aimed at ensuring the stability of civil turnover, the reliability of protecting the rights and interests of its bona fide subjects.

In this connection, we consider it expedient [AK3] to provide a list of void transactions in the Civil Code of the Russian Federation in the form of a separate article, having formulated it in this way:

- a transaction concluded contrary to and in non-compliance with legally established norms and rules;

- immoral transactions;

- transactions contrary to the fundamentals of law and order;

 - imaginary transactions;

- fake deals;

- transactions made with defects in the subject composition (minors, incapacitated persons);

- deals with vices of form and will.

In addition, the law (the Civil Code of the Russian Federation) also includes violation of the interests of public and the interests of third parties, the concepts of which are not legally disclosed, to the criteria of nullity of the transaction.

Having accumulated the points of view of scientists from different years on the problem of conceptual load, it can be concluded that in the legal doctrine public interests are defined as the interests of a certain social community or group. It would be advisable to fix this definition in the Civil Code of the Russian Federation, in order to ensure uniformity of judicial enforcement.

The Supreme Court of the Russian Federation in paragraph 75 of its resolution No. 25 formulated a list of such interests:

"the interests of an indefinite circle of persons, ensuring the safety of life and health of citizens, as well as the defense and security of the state, environmental protection" ^[3].

The concept of "interests of third parties" means: "criminally punishable acts under the guise of transactions (commercial bribery, giving and receiving bribes and other cases of receiving illegal remuneration), a fictitious marriage, an agreement to restrict the right of divorce, etc.".

A characteristic feature of void transactions is their inherent term for appeal and invalidation – three years, as well as the subject composition of persons for appeal – any person whose interests have been violated by such a transaction ^{[13, pp. 74-78]}.

As a result of the conducted research, material was obtained that allows us to conclude that a change in the concept of "void transaction" legally enshrined in the Civil Code of the Russian Federation is required.

We propose [AK4] to formulate the following definition:

"Such transactions should be recognized as void, which are directly specified in the law as such, or those transactions where a direct legislative ban is established or their purpose is to deprive the legal consequences of any legally significant actions committed by subjects of civil law that violate the interests of public or the interests of third parties."

This definition can claim to enter into scientific circulation, since it most fully reflects all the characteristic features of an insignificant transaction.

Among the characteristic features of insignificant transactions, we have isolated:

- legally established grounds for the nullity of transactions;

- violation of the public interests as a whole, as well as the interests of third parties;

- invalidity regardless of a special court decision;

- a special deadline for appeal;

- a certain subject composition of persons for appeal – any person whose interests have been violated by such a transaction.

Taking into account all of the above, we come to the conclusion that promising areas of reforming the institution of void transactions should be fixed in the Civil Code of the Russian Federation updated definition (formulated by the author); establish a single list of them in the form of a separate article; point to the judicial statement of the fact of the nullity of the transaction.