Bank guarantees: what they are, how they work, why they are needed and what they provide

Note 1

The process, which is aimed at realizing the freedoms and rights of citizens in the legal and administrative spheres, depends entirely on certain guarantees, that is, established at the legislative level. Among such guarantees are the following:

• Economic guarantees . Such guarantees presuppose, first of all, effective and stable work in the state economy. In other words, we are talking about a stable monetary and financial system, a high standard of living for the entire population of the country.
• Political guarantees . Such guarantees provide for the priority aspects of the individual and each citizen in the state structure and in society as a whole. It is necessary for normal and high-quality life to create a stable and extremely stable state power, which will be created in a system of democracy.
• Organizational guarantees . Such guarantees are endowed with the necessary non-judicial and judicial authorities; they can provide important and strategic protection of administrative, legal, constitutional and other freedoms and rights of every citizen.
• Legal guarantees . Such guarantees affect the rights that are secured by the freedoms and rights of citizens of the country in the administrative law system.

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What is a bank guarantee

From a legal point of view, this is a type of officially formalized obligation, on the basis of which, if a third party fails to fulfill the terms of the agreement regarding payment, the credit institution actually acts as a joint and several debtor, obliging to compensate an amount of money equal to the value of the transaction when submitting a corresponding claim.

This practice is very common, being used in both Russian and foreign commercial environments. Within the framework of the Uniform Rules approved by the International Chamber of Commerce, a number of provisions have been adopted on this issue - in particular, declaring that the content of agreements of the category under consideration must have clear and precise wording to exclude the emergence of controversial issues.

An example of how a bank guarantee works is ensuring the participation of entrepreneurs in contractual relations, where one of the counterparties is the state that has placed a procurement tender or contract for the performance of certain works. The mechanism is often used as an opportunity to simplify the return of value added tax, as well as to obtain a deferment in the payment of customs duties. A mandatory requirement is registration in writing, and only the signature of a representative of the credit institution is necessary, while certification by the principal and beneficiary is voluntary.

Participants in the process

Within the framework of the procedure under consideration, the participation of 3 entities is provided:

• Principal is a person who contacts the bank to receive, on a reimbursable basis, a guarantee of solvency to a potential counterparty. As a rule, private entrepreneurs or enterprises planning to enter into a commercial transaction or participate in a public procurement tender.
• The beneficiary is the direct recipient of funds paid in a situation where the initially agreed terms of the contract were not fulfilled.
• A bank guarantor is a credit institution that provides a written obligation to cover penalties or compensation, the need for which is determined by non-fulfillment of contractual agreements.

It is worth noting that, starting in 2015, the range of institutions entitled to provide services of this kind was expanded to include all commercial enterprises. At the same time, only banking organizations can be involved to carry out operations in which customs and tax services, as well as other government departments, are participants.

In what cases does the bank act as a guarantor of the transaction?

Based on the specifics of the agreement, within the framework of which one of the parties is provided with protection from potential losses and non-compliance with agreements, four types of guarantees are distinguished.

Tender

Security provided for the implementation of government procurement in accordance with the provisions of 44-FZ and 223-FZ. In this case, the obligation is qualified as irrevocable, which makes it impossible to change the conditions or make a refusal decision. It is used when submitting an application for participation in tenders, for the purpose of executing received contracts, as well as as confirmation of the quality of goods or work performed. The beneficiary is the customer, and the obligatory criterion is the guarantor's compliance with the requirements of the governing law and government regulations.

So, by contacting the SEA BANK, you can receive a favorable offer for issuing bank guarantees under 44-FZ and 223-FZ.

Negotiated

They are used in situations where the state is not involved in the transaction, and are divided into three categories:

• Advance payments are relevant for circumstances when the contractor receives an advance payment, which will need to be reimbursed in the event of failure to fulfill obligations.
• Warranty - confirms the fulfillment of the terms of the contract determined by the parties, and in case of violation allows compensation for the penalty.
• Payment - eliminate the possibility of refusal to pay for work performed or products supplied.

A bank guarantee scheme of this type can be implemented by any commercial organization.

Tax

A financial instrument that allows you to obtain a deferment for paying excise duties and taxes, as well as speed up the VAT refund procedure. Thanks to this method, additional savings are possible, which is important for small companies. Only banks that have received the approval of the Ministry of Finance can be involved in the status of guarantors, while the parties to the agreement are taxpayers and the Federal Tax Service (as a beneficiary).

Customs

An option for enterprises and private entrepreneurs conducting foreign economic activities that involve transporting products across borders. Commercial transactions with foreign partners are formalized in a special manner, requiring consideration of legal nuances. The guarantee is used to confirm the timely payment of duty tariffs, provided that the credit institution is included in the list approved by the Federal Customs Service.

8.2.1. Concept and system of legal guarantees

Let us recall that legal guarantees in the legal literature are usually understood as various legal means, methods and mechanisms by which the implementation of the rights, legitimate interests and obligations of subjects of law, the maintenance of a certain legal state, the order of social relations is ensured31. Already from this definition it is clear that there are many such means, methods and mechanisms, closely interconnected, which determines, firstly, the need for their certain systematization and, secondly, the consideration of all these legal guarantees as a system.

Analysis of this entire system of legal guarantees and, above all, the rights and legitimate interests of subjects of educational relations in general and teaching staff in particular, does not lead to the objectives of this manual. We will limit ourselves to just a few general comments and highlighting the most important groups of such guarantees.

First of all, we note that all guarantees are, in essence, legal regulations (general obligations and/or general prohibitions) addressed to the state, its authorized bodies, municipal bodies, educational institutions and their governing bodies. In other words, guarantees of the rights and legitimate interests of teaching staff are implemented through the fulfillment of relevant regulatory obligations (compliance with prohibitions) of these subjects of educational relations. These obligations and prohibitions may be formulated in different ways, but their essence as guarantees remains unchanged.

Depending on various criteria, the following groups of legal guarantees can be distinguished.

1. Depending on whether the legal norms in which such guarantees are enshrined belong to international or domestic (national) law

There are two main groups of guarantees:
international legal guarantees
and
guarantees enshrined in Russian national legislation.
The material in the subsequent paragraphs of this chapter is devoted to their characteristics.

2. In accordance with branches of legislation

It is possible to highlight
constitutional, administrative-legal, civil-legal, criminal-legal guarantees
, guarantees provided for by
the norms of labor, arbitration, educational, financial, arbitration law
and other industries.
In addition, the identification of material
and
procedural
guarantees is of great importance, which is especially important for judicial practice.

3. Depending on the legal nature

legal guarantees, the following stand out:

a) regulatory guarantees,

those. enshrined in regulations of varying legal force (laws and by-laws, local regulations);

b) enforcement guarantees

, i.e. guarantees contained in decisions of law enforcement agencies when they carry out various types of law enforcement and justice activities (judicial, investigative, administrative, arbitration).

4. Depending on the specifics of the bodies that manage education at various levels and various elements of the educational system, and acting on the basis of legislation and in accordance with it, we can highlight the guarantees provided by:

a) legislative bodies

(federal and constituent entities of the Russian Federation) and local government bodies engaged in educational rule-making;

b) executive authorities

(federal, constituent entities of the Russian Federation, municipal);

c) educational authorities

(federal, constituent entities of the Russian Federation, municipal);

d) educational institutions

and its governing bodies (boards of trustees, scientists and pedagogical councils);

d) professional

and
human rights organizations
of educators;

f) public organizations,

created and operating in the field of education (associations of teachers and university professors, parent councils (committees), etc.).

5. Based on exactly what rights, freedoms and legitimate interests are subject to legal guarantee

, the following guarantees are highlighted for education workers, such as their guarantees:

—constitutional rights

(right to honor and dignity, freedom of speech, etc.;

—social rights

(pension provision, right to benefits, etc.)

— labor rights

(right to rest, right to part-time work, etc.);

—educational (professional) rights and freedoms

(teacher freedom in choosing and using teaching and educational methods, textbooks, teaching aids and materials, methods for assessing students’ knowledge, etc.).

6. Depending on the degree of coverage of various categories of teaching staff,

It is possible to distinguish
general guarantees
(applying both to all categories of teaching staff and other Indian types - subjects of educational relations), and
special guarantees
of their rights and legitimate interests, relating to individual categories (pedagogically, the teacher’s freedom to choose and use: teaching and upbringing methods ; textbooks, teaching aids and materials; methods for assessing students' knowledge. e6 employees of general education institutions, scientific and pedagogical workers (faculty and teaching staff of higher educational institutions, teaching staff of special types of educational institutions, etc.).

7. Depending on the nature of the regulatory framework, guarantees can be imperative (i.e., unconditionally mandatory for implementation) and advisory. Examples of the first are guarantees established in legislative acts and therefore are mandatory for all participants in educational relations - from the state to the head of educational institutions. Advisory guarantees, as a rule, are enshrined in international legal acts (for example, in the above “ILO/UNESCO Recommendations”).

8. Legal guarantees may have different effects. Depending on this, guarantees can be direct or indirect. An example of direct legal guarantees of the rights and legitimate interests of teaching staff is subclause 19 of clause 2 of Art. 32 of the Law of the Russian Federation “On Education”, which establishes the obligation of an educational institution to promote the activities of teacher (pedagogical) organizations (associations) and methodological associations. An example of an indirectly valid guarantee is clause 5 of Art. 15 of the same law, which states that “scientific and methodological support for final certifications and objective quality control of graduates’ training at the completion of each level of education are provided by the state certification service, independent of education authorities, in accordance with state educational standards.”

This manual does not purport to disclose all such warranties. To reveal the most significant features of the legal guarantee of the rights and legitimate interests of teaching staff, it will be sufficient to characterize the guarantees allocated according to the first of these criteria: international legal guarantees and guarantees provided for by the legislation of the Russian Federation. Thus, the analysis is limited primarily to normative guarantees, although in some cases emphasis will be placed on the law enforcement practice of guaranteeing the rights and legitimate interests of teaching staff.

What is included in the contract

The current legal provisions define a number of regulatory requirements that agreements in the category under consideration must comply with.

Mandatory part

In accordance with the provisions of the Civil Code, which determine how a bank guarantee operates and in what cases it can be cancelled, the integral contractual elements include:

• Date of issue and name of the entities involved, including the guarantor, beneficiary and principal.
• The content of the main obligation and the specific amount, or the algorithm according to which it is determined.
• The duration of the agreement and the list of factors considered as circumstances for its execution.

In the case of tender contracts, the conditions are regulated more strictly and are fixed within the framework of the provisions of the second part of Article 45 of the federal law on the contract system.

Documents when submitting a payment request

As part of generally accepted practice, the list of documentation attached to the application for the fulfillment of obligations is determined jointly by the parties. Typically, a sufficient set is considered to be the protocol for calculating the guarantee amount, as well as a copy of the power of attorney of the entity acting as a signatory on behalf of the beneficiary. Depending on the specifics of the concluded transaction and the circumstances considered as the basis for the execution of the guarantee, other supporting documents may also be required.

Additional part

In this case, we are talking about related regulatory aspects established by the participants at the stage of drawing up the agreement - for example, the conditions of the form for submitting a request for payment, or the list of appendices to the main section. When conducting public procurement, such nuances are indicated in the notice or project documentation. It is worth noting that compliance with the agreed provisions is as important a factor as the presence of mandatory elements, since violations may be considered as grounds for cancellation of the transaction.

Legal guarantees of constitutional rights and freedoms

The most important element of the legal status of an individual is legal guarantees - the conditions and means of ensuring and protecting the rights, freedoms and responsibilities of a person and a citizen. The provisions of almost one third of the articles of Ch.

2 of the Constitution of the Russian Federation establish legal guarantees, being at the same time, according to Art. 64, an integral part of the foundations of the legal status of the individual.

This provides additional arguments in favor of the expressed point of view about the role of guarantees as one of the elements of the legal status of an individual. The lack of guarantees turns formally proclaimed rights and freedoms into paper fiction.

Legal guarantees, on the one hand, formalize the socio-economic, political, cultural, organizational and technical conditions and means of ensuring and protecting individual rights and freedoms, and on the other hand, have independent significance in the form of general and special legal conditions and means of ensuring and protecting rights and personal freedoms. Conventionally, two groups of constitutional guarantees can be distinguished: general and special:

General constitutional guarantees

. A special place among constitutional guarantees is occupied by those that arise from the nature, legal properties and general provisions of the Constitution of the Russian Federation.

The general guarantee is the very consolidation of the rights and freedoms of man and citizen by the Constitution of the Russian Federation - an act of the highest legal force. The highest rank of norms of the Federal Constitution and the resulting requirements for strict compliance with the Constitution, the adoption of laws and by-laws, the actions of state authorities and local governments, citizens and their associations on the basis of the norms of the Constitution of the Russian Federation act as the most important condition for enforcing the high authority of constitutional rights and freedoms.

Another general guarantee is the inviolability of the foundations of the constitutional system. The foundations of the constitutional system proclaimed in the Constitution of the Russian Federation have special legal force.

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Expert opinion

Musikhin Viktor Stanislavovich

Lawyer with 10 years of experience. Specialization: civil law. Member of the Bar Association.

Moreover, each of the constitutional foundations has a certain doctrinal and normative content, developed directly or indirectly in the Constitution of the Russian Federation. This content, to a greater or lesser extent, may relate to the constitutional status of a person and a citizen.

The constitutional principle “man, his rights and freedoms are the highest value” (Article 2) is of fundamental importance for the individual. “Highest value” for other individuals, society and the state. Concretizing this principle, the Constitution of the Russian Federation prescribes to the individual that the exercise of his rights and freedoms should not violate the rights and freedoms of other persons (Part 3 of Article 17).

Being directly effective, rights and freedoms determine the meaning, content and application of laws, the activities of the legislative and executive authorities, local self-government and are ensured by justice (Article 18). This emphasizes that a person, his rights and freedoms are the highest value and goal for the state.

Enshrining as a fundamental constitutional principle the provision that the Russian Federation is a democratic state means recognizing and ensuring by the Basic Law individual freedom, democracy, ideological and political diversity, and other qualifying elements of democracy.

Some other constitutional provisions that play the role of general constitutional guarantees also have a certain legal significance. For example, according to Art.

2 of the Constitution of the Russian Federation, the duty of the state is to recognize, respect and protect the fundamental rights and freedoms of man and citizen, and in accordance with Part 2 of Art.

80 The President of the Russian Federation acts as a guarantor of the rights and freedoms of man and citizen.

Obviously, the mentioned constitutional guarantees of rights and freedoms are of a conceptual and declarative nature, emphasizing the state’s focus on ensuring the interests of the individual and the special position of the head of state in the system of government bodies. At the same time, they create constitutional conditions for the formation of a system of specific constitutional and legal guarantees of the rights and freedoms of man and citizen.

Special constitutional guarantees

. They can be divided into extrajudicial and judicial guarantees. These are the special extrajudicial guarantees contained in the Constitution of the Russian Federation.

1. Prohibition on the application of any normative legal acts affecting the rights, freedoms and duties of a person and a citizen, if they are not officially published for public information (Part 3 of Article 15).

2. Ensuring state protection of the rights and freedoms of man and citizen (Part 1 of Article 45), i.e. protection carried out by legal means by all public authorities of the country.

3. Granting the right to each person to defend their rights and freedoms (self-defense) by all means not prohibited by law.

4. Prohibition on the publication of laws repealing or. derogating the rights and freedoms of man and citizen (Part 2 of Article 55).

5. Establishing the possibility of limiting the rights and freedoms of man and citizen by federal law only in cases strictly stipulated by the Constitution of the Russian Federation: if this is necessary in order to protect the foundations of the constitutional system, morality, health, rights and legitimate interests of other persons, ensuring the defense of the country and the security of the state (ch 3 Article 55).

In furtherance of this guarantee, Art. 56 of the Constitution of the Russian Federation specifies: in a state of emergency, in order to ensure the safety of citizens and the foundations of the constitutional system, in accordance with the federal constitutional law, certain restrictions on rights and freedoms may be established, indicating the limits and duration of their validity; at the same time, the rights and freedoms provided for in Art.

20 (right to life), 21 (inviolability of personal dignity), 23 (part 1) and 24 (privacy), 28 (freedom of conscience), 34 (part.

1) (freedom of economic activity), 40 (part 1) (right to housing), 46-54 (judicial or procedural rights).

In contrast to previous Soviet constitutions, the 1993 Constitution of the Russian Federation assigns a special place to judicial guarantees of ensuring individual rights and freedoms (guarantees of justice).

As usual, the judicial procedure is recognized as the most effective legal means among other legal means of protecting individual rights and freedoms. This is facilitated by the universal accessibility of the courts, comprehensiveness and professionalism in assessing the situation, the state-authoritative (binding on behalf of the state) nature of court decisions, and the generally recognized democratic principles of the administration of justice.

By going to court, it is not only possible to protect individual rights and freedoms from attacks by other persons, but it is also possible to appeal decisions and actions (or inaction) of state authorities, local governments, public associations and officials (Part 2 of Article 46).

Expert opinion

Musikhin Viktor Stanislavovich

Lawyer with 10 years of experience. Specialization: civil law. Member of the Bar Association.

Justice in Russia is carried out only by the court, with the exception of the creation of emergency courts. Forms of legal proceedings - constitutional, civil, administrative and criminal (Art.

118). Constitutional guarantees of justice serve to increase the effectiveness of judicial protection of individual rights and freedoms.

They simultaneously act as the basic principles, principles of justice, defining the rights and freedoms of the individual. Among them:

1. Equality of all before the law and the court (Part 1 of Article 19 of the Constitution of the Russian Federation).

2. Compliance with jurisdiction, i.e. consideration of the case in that court and by the judge whose jurisdiction includes the consideration of this case by law (Part 1 of Article 47).

3. Guarantees of the right of an accused of committing a crime to have his case examined by a court with the participation of a jury in cases provided for by federal law (Part 2 of Article 47).

4. Guarantees of the right to receive qualified legal assistance, including the provision of free legal assistance in cases provided for by law (Article 48).

5. Ensuring the presumption of innocence, according to which everyone accused of committing a crime is considered innocent until his guilt is proven in the manner prescribed by federal law and established by a court verdict that has entered into legal force (Part.

1 tbsp. 49).

The accused is not obliged to prove his innocence, and irremovable doubts about the guilt of a person are interpreted in his favor (parts 2 and 3 of Art.

49).

6. Prohibition of repeated conviction for the same crime (Part 1 of Article 50)7

7. Inadmissibility of using evidence obtained in violation of federal law (Part 2 of Article 50).

8. A guarantee that everyone convicted of committing a crime will have the opportunity to review the sentence by a higher court, as well as submit a request to the President of the Russian Federation for pardon or commutation of punishment (Part 3 of Article 50).

9. The inadmissibility of forcing anyone to testify against oneself, one’s spouse and close relatives, the circle of whom is determined by the Criminal Procedure Code of the Russian Federation (Part 1 of Article 51).

10. State provision of the rights of victims of crimes and abuses, including ensuring free access to justice and compensation for damage caused (Article 52), including harm caused by illegal actions (or inaction) of government bodies or their officials (Article 53 ).

11. Guarantee of the inviolability of the person and his dignity, inviolability of private life and home (Articles 21-25). Concretizing the guarantee of freedom and inviolability of the individual, the Constitution of the Russian Federation very clearly establishes that arrest, detention

And detention is allowed only by court decision. Before a court decision, a person cannot be detained for more than 48 hours (Part 2 of Article 22).

12. Prohibition of the retroactive effect of a law establishing or aggravating liability (Article 54), i.e. no one can be held responsible for an act that was not recognized as an offense at the time it was committed.

Despite their significance, the requirements of legality are not implemented automatically and spontaneously. In this regard, appropriate conditions and a certain set of organizational, ideological, political, legal measures are required to ensure implementation, i.e.

e. guarantees of legality.

To guarantee legality means to make it unshakable. Guarantees of legality are objective conditions and subjective factors, as well as special means that ensure the regime of legality.

Among these guarantees, it is necessary to clearly distinguish between general conditions and special means.

Expert opinion

Musikhin Viktor Stanislavovich

Lawyer with 10 years of experience. Specialization: civil law. Member of the Bar Association.

General conditions are the objective (economic, political, etc.) conditions of social life in which legal regulation is carried out.

These conditions create a macro-environment for the implementation of law and its functioning, predetermining, to a certain extent, special means to strengthen the rule of law. Let's consider these general conditions that act as guarantees of legality:

Economic conditions . This is the state of economic development of society, the organization of the economic system, etc.

d. The point, therefore, is to isolate from the conditions of social life those that contribute to the strengthening of the rule of law, to create the prerequisites for their development and impact on people, and also through the use of organizational measures and special means to neutralize the effect of negative factors.

Political conditions. The main political condition for stable legality is strong state power. Strong state power is a stable, legitimate power that enjoys the support of society and is capable of ensuring the implementation of adopted legal regulations.

A strong state guarantees the stable development of society, the safety of people, and the effective fight against crime, corruption and other antisocial phenomena.

Ideological conditions . The state of legality is largely determined by the level of political, legal and general culture of the population.

Legality presupposes such a level of legal culture when respect for the law is the personal conviction of a person, not only an ordinary citizen, but primarily a civil servant, a legislator.

Social conditions. Law-abiding citizens, their respect for the law, its implementation, established in the social sphere.

Legal terms . The state of legality as a political and legal phenomenon is determined by the state of the law itself, the legislative system.

Among them we can note the state of legal science, the completeness and development in it of progressive humanistic ideas, provisions, scientific and theoretical structures. Dominant scientific and theoretical concepts have a direct impact on the level of legality

Special means of ensuring legality Ї are legal and organizational means intended exclusively to ensure legality. Among them are legal and organizational guarantees (means).

Legal guarantees are a set of means enshrined in legislation, as well as organizational and legal activities for their application, aimed at ensuring the rule of law, the unimpeded implementation and protection of rights and freedoms. Legal guarantees include the following:

• 1) Means of identifying (detecting) offenses (by preliminary investigation bodies, the Constitutional Court, etc.)
• 2 ) Means of crime prevention. These are means enshrined in law to prevent possible offenses.
• 3) Means of suppression of offenses. These include means aimed at suppressing and preventing offenses, violations of the rights and freedoms of citizens and organizations.
• 4) Measures to protect and restore violated rights, eliminate the consequences of offenses. These include forced collection of funds for child support (alimony), vindication (forced seizure of property from someone else’s illegal possession), etc.
• 5) Legal responsibility . It refers to the punishment of the person guilty of committing an offense. This means is the most important and necessary for strengthening the rule of law, and its effectiveness is determined not by cruelty, but by inevitability.

Among legal guarantees, a special role is given to procedural guarantees.

Expert opinion

Musikhin Viktor Stanislavovich

Lawyer with 10 years of experience. Specialization: civil law. Member of the Bar Association.

The most important guarantee of legality is justice - the activity of courts, carried out by considering and resolving civil and criminal cases with the aim of fully strengthening the rule of law.

Human and civil rights, according to many domestic and foreign legal scholars, often do not have the necessary protection mechanism. Many constitutional provisions objectively cannot be implemented in full, since they are not provided with legal guarantees.

At the same time, “legal protection is one of the main goals of the state, a condition for the exercise of freedom and human rights, a guarantor of its legal security, “forces” the government to give the legal status of a person legal significance” [1]. In this regard, the issue of legal guarantees to ensure the legal status of an individual acquires special significance.

Legal guarantees for ensuring the legal status of an individual are the conditions provided for by law, with the presence of which the legislator associates the real possibility and maximum efficiency of the implementation of rights, freedoms and obligations, in the complex that makes up the legal status [2].

The modern system of legal guarantees of the legal status of an individual can be divided into three levels: international, regional and national.

International level of guarantees of legal status. One of the characteristic features of a rule of law state is the priority of international law over domestic legislation.

The Constitution of the Russian Federation of 1993, which orients Russian society towards building a legal statehood, in particular, stipulates that “the generally recognized principles and norms of international law and international treaties of the Russian Federation are an integral part of its legal system. If an international treaty of the Russian Federation establishes rules other than those provided for by law, then the rules of the international treaty apply" (Part.

4 tbsp. 15).

Based on this constitutional provision, the territory of Russia is subject to international legal mechanisms and guarantees for the protection of human and civil rights. The formation of such mechanisms and guarantees is associated, first of all, with the United Nations, the UN Charter and the Universal Declaration of Human Rights.

The international protection of human rights is based on two international covenants on civil and political and social, economic and cultural rights. In addition, a fairly effective mechanism for the protection of human rights within the UN has been developed, which is a system of special bodies, which include the General Assembly, the Security Council, the Economic and Social Council, the Trusteeship Council, the International Court and the Secretariat.

In addition, there are many so-called non-governmental international organizations in the world created to protect human rights and freedoms (Amnesty International, Doctors Without Borders, International Red Cross, etc.).

At the regional level, we can distinguish, first of all, the American, African and European systems of guarantees of the legal status of an individual. At the same time, the system functioning in Europe can be considered a kind of standard.

It was formed within the framework of the Council of Europe, the oldest regional organization [3]. The two most important bodies of the Council of Europe are: the Committee of Ministers, comprising the foreign ministers of member states, and the Parliamentary Assembly, representing national parliaments.

The main form of rule-making activity of the Council of Europe is the creation of conventions and agreements, the most important of which are considered to be the European Convention of Human Rights and the European Social Charter. The first of them was adopted on November 4, 1950.

in Rome by 15 members of the Committee of Ministers of the Council of Europe and entered into force on September 3, 1953. This document was the first international treaty at the regional level to transform the principles proclaimed by the Universal Declaration of Human Rights of 1948 into specific legal obligations.

Based on this Convention, two bodies were established - the European Commission of Human Rights and the European Court of Human Rights, which are empowered to consider complaints from both states and individuals.

National (intrastate) level of guarantees of the legal status of an individual. Domestic legal guarantees of the legal status of an individual can be divided into two large groups:

• 1) guarantees for the implementation of the legal status of the individual,
  which include: - normative consolidation of fundamental rights, freedoms and responsibilities in the current legislation and, above all, in the constitution of the state;
• — providing a person with the opportunity to realize legitimate interests through his lawful actions;
• - stimulation (by the state) of certain types of activities and, thus, encouraging people to engage in these activities (lending for education, housing construction, establishing benefits for military personnel and law enforcement officers, etc.);
• — state care for socially vulnerable segments of the population (pensions, state programs to support motherhood and childhood, etc.);

Advantages

To formulate the answer to the question of why bank guarantees are needed, in simple terms - to ensure confidence that circumstances such as the counterparty’s dishonesty, financial problems, or the discrepancy between the declared quality of work and the actual results will not in any way affect the beneficiary’s receipt of the promised funds. All that is required to satisfy his interests is the submission of a request for payment, properly executed. At the same time, the credit institution does not delve into the details of the situation and does not understand whether the obligations were actually fulfilled within the agreed time frame and properly, or whether problems actually arose that did not allow fulfilling the terms of the agreement.

At the same time, for the principal, a bank guarantee is an opportunity to do without withdrawing money from circulation, and to obtain the desired result without resorting to providing collateral or surety.

The right to qualified legal assistance

In accordance with Art. 48 of the Constitution of the Russian Federation, everyone is guaranteed the right to receive qualified legal assistance, and in cases provided for by law, legal assistance is provided free of charge.

And this is not just a declarative norm, this provision means the constitutional obligation of the state to provide everyone with a sufficiently high level of any type of legal assistance provided.

Guaranteeing the right to receive qualified legal assistance, the state must:

• provide conditions conducive to the training of qualified lawyers to provide citizens with various types of legal assistance;
• establish for this purpose certain professional and other qualification requirements and criteria;
• to finance the activities of persons who, in cases provided for by the legislation of the Russian Federation, provide legal assistance to citizens of the Russian Federation free of charge.

Qualified legal assistance in this article of the Constitution of the Russian Federation means mainly legal assistance from lawyers. According to Part 1 of Art. 1 of the Federal Law of May 31, 2002 N 63-FZ “On advocacy and the legal profession in the Russian Federation”, advocacy is qualified legal assistance provided on a professional basis by persons who have received the status of lawyer, individuals and legal entities in order to protect their rights, freedoms and legitimate interests . The Bar is a professional community of lawyers, which, as an institution of civil society, is not part of the system of state authorities and local self-government, and operates on the basis of the principles of legality, independence and self-government. However, it must be admitted that for a significant part of the population of our country, the opportunity to use the services of a lawyer cannot always be realistically ensured, including for financial reasons. But at the same time, of course, the legal profession is far from the only element of the human rights system of society, which in addition to it includes state law enforcement agencies, the offices of the Commissioners for Human Rights, law firms, privately practicing lawyers, as well as numerous human rights public organizations. In addition, if a dispute arises, in order to resolve the conflict, you can turn to an independent intermediary (mediator) in accordance with Federal Law dated July 27, 2010 N 193-FZ “On an alternative procedure for resolving disputes with the participation of a mediator (mediation procedure).” Finally, in order to develop an optimal mechanism for implementing state policy in the field of providing citizens with qualified free legal assistance, state legal bureaus worked as an experiment in ten regions of our country. Their activities were considered successful and were taken into account in the development and adoption of the Federal Law of November 21, 2011 N 324-FZ “On free legal assistance in the Russian Federation.” The main idea of ​​the adopted law is to create legal conditions for the formation in the Russian Federation of an effective state system for providing free legal assistance to low-income citizens, as well as other certain categories of citizens. The law stipulates that free legal assistance should be provided both through existing legal entities and through the system of state legal bureaus, as well as by government bodies. At the same time, the circle of persons who can qualify for free legal assistance is wider than that provided for by the current Federal Law of May 31, 2002 N 63-FZ “On advocacy and the legal profession in the Russian Federation.” In addition, there is a non-state system of free legal assistance. Considering the very high level of professionalism of employees and the high quality of legal services provided by human rights public organizations, the existence of such an opportunity to solve the legal problems of citizens in our country seems absolutely necessary. Free legal assistance can also be provided to citizens in: – the Office of the Commissioner for Human Rights; – various public reception centers and centers, including those existing at the Russian Lawyers Association; – students of so-called legal clinics at universities under the guidance of teachers; – adopted political parties and individual deputies. Finally, prosecutors are given the right to go to court in defense of the rights, freedoms and legitimate interests of citizens in cases and on issues listed, for example, in Part 1 of Art. 45 of the Civil Procedure Code of the Russian Federation. Thus, it appears that citizens have a choice, and it is necessary to actively use their rights. Additional information on the topic can be found in the brochure “State hostels: problems of privatization.” Perm, 2012. Stanislav Shestakov , lawyer of the non-profit organization "Perm Foundation for the Promotion of Homeowners' Associations" Source: non-profit organization "Perm Foundation for the Promotion of Homeowners' Associations"

Principle of operation

It is obvious that a bank guarantee not only ensures the interests of transaction participants, but also carries certain risks for the credit institution. Violation by the principal of his own obligations is the basis for demanding payment, which is practically impossible to refuse without proper evidence. In such cases, the bank provides the beneficiary with the agreed compensation, after which it makes demands on the defaulter. At the same time, there always remains a hypothetical probability of bankruptcy of the latter, which results in the loss of money paid under the guarantee conditions.

Providing a bank guarantee

In order to reduce potential risks, not only a thorough analysis of the balance sheets of enterprises applying for the service is practiced. In some situations, a requirement may be put forward to provide a collateral that can cover losses in the event of refusal of compensation or guarantee by a third party.

Stages of registration

The algorithm for obtaining a bank guarantee is as follows.

Choice of guarantor

The principal has the right to determine the organization independently, but in some cases it is necessary to take into account the requirements put forward by the beneficiary or established by regulations. Commercial conditions also serve as criteria - for example, you can familiarize yourself with the offer of the SEA BANK, which allows you to reduce time costs.

Work with documents

Submitting an application involves collecting documents, thanks to which you can form a general vision of the financial condition and legal status of the applicant, and make an objective decision. The list is usually presented on the official website, or is clarified during communication with an authorized representative of the credit institution.

Consideration of the application

The waiting period depends on the internal regulations of the banking organization. The time frame varies from an hour to several days. Thus, the express guarantees of the Maritime Bank allow you to prepare all the necessary documents under 44-FZ and 223-FZ within one day - including online.

Conclusion of an agreement

The finished agreement provides for the presence of mandatory and additional elements, defines a list of warranty cases and commercial conditions for the provision of services.

Price

The procedure for paying an invoice allows for the advance provision of a document, but most often the release is made only after the funds have been transferred.

Issue

According to the accepted rules, the security acquires legal force starting from the calendar date on which it was issued. If necessary, a credit institution can provide confirmation both to the principal himself and directly to the beneficiary, including in the form of an electronic copy certified by a digital signature. When interacting with government services, online document management systems are used.

The RF Armed Forces explained the nuances of applying an independent guarantee

On June 5, the Presidium of the Supreme Court of the Russian Federation approved a review of judicial practice in resolving disputes related to the application of legislation on independent guarantee. The document consists of 17 points and was developed with the aim of unifying judicial practice on disputes arising in the above area.

According to Semyon Lopatin, a lawyer in the arbitration practice of the VEGAS LEX law firm, in the review the Supreme Court mainly considered fairly obvious issues that should not cause difficulties or have been repeatedly considered by the courts, but a number of issues were raised that are not so obvious at first glance.

“The latter include clauses on the obligation to pay under a contract concluded at auction, while the price was not initially set; on the possibility of establishing a dependence of the calculation of the term of the bank guarantee on the main obligation, in this case on the payment of the advance. In general, the review did not change the approach of the Supreme Court of the Russian Federation, developed on the basis of the provisions of the Civil Code of the Russian Federation, that payments under the guarantee may not be made only in cases where the actions of the beneficiary are clearly aimed at maliciously re-obtaining benefits already acquired under the main transaction. The Supreme Court of the Russian Federation also confirmed that the principal has the right to recover the costs of obtaining a guarantee in the event that it is impossible to implement the contract due to the fault of the customer, if the provision of a guarantee was a prerequisite,” the expert concluded.

Thus, from clause 1 of the document it follows that for an obligation to arise from an independent guarantee, a unilateral expression of the will of the guarantor is sufficient, unless otherwise expressly provided in the text of the guarantee itself. At the same time, Semyon Lopatin noted that this approach directly follows from the wording of civil legislation.

In paragraph 2 of the review, it is noted that an obligation from an independent guarantee cannot be considered absent due to the failure to indicate the name of the beneficiary in it, if the person in whose favor this guarantee was issued has been reliably identified.

In accordance with clause 3, the beginning of the validity period of an independent guarantee may be determined by the moment the beneficiary performs actions related to the execution of the main contract.

According to clause 4 of the document, a request for payment under an independent guarantee is considered submitted in a timely manner if it is sent to the guarantor within the validity period of the guarantee and the terms of the independent guarantee do not provide otherwise.

As stated in paragraph 5 of the review, the requirement to determine in an independent guarantee the amount of money paid to the beneficiary is considered met if its terms allow this amount to be established at the time the obligation is fulfilled by the guarantor.

In paragraph 6 it is noted that, as a general rule, when changes are made to the terms of the main agreement, to ensure the fulfillment of obligations under which a guarantee is issued, the scope of the guarantor’s obligations does not change.

It follows from paragraph 7 of the review that the invalidity or non-conclusion of an agreement on the issuance of an independent guarantee, signed by the principal and the guarantor, does not in itself indicate the absence of an obligation from the guarantee.

In paragraph 8 of the document it is noted that violations committed during the issuance of an independent guarantee can be opposed to the beneficiary’s demand for payment under the guarantee if he was a party to the agreement on the issuance of the guarantee and knew about these violations.

Paragraph 9 of the review explains that the guarantor does not have the right to refuse the beneficiary to satisfy his claim if the documents attached to this claim appear to comply with the conditions of an independent guarantee.

In accordance with clause 10 of the document, the condition of the bank guarantee ensuring the execution of the government contract that the original guarantee on paper be attached to the payment request is void.

The content of clause 11 explains that the guarantor’s obligation to the beneficiary does not depend on the main obligation to secure the fulfillment of which the guarantee was issued, even if the guarantee itself contains a reference to this obligation.

Based on clause 12, the amounts paid by the guarantor to the beneficiary under an independent guarantee are reimbursed by the principal in the manner prescribed by Art. 379 of the Civil Code of the Russian Federation. The corresponding compensation cannot be qualified as unjust enrichment of the guarantor if he made payment under the guarantee in accordance with its terms.

Clause 13 notes that the principal’s expenses for paying for a bank guarantee under state (municipal) contracts terminated due to circumstances for which the beneficiary is responsible are the principal’s losses subject to compensation by the beneficiary.

According to clause 14, the bankruptcy of the person who issued an independent guarantee, which occurred during the validity period of the guarantee, is not grounds for termination of obligations under the guarantee, but indicates a decrease in the security function of the guarantee and may be the basis for recalculating the previously agreed fee for issuing the guarantee.

According to Marat Khasanov, partner of the PARADIGMA legal group, this paragraph voices an unambiguous position that the subsequent bankruptcy of the person who issued the independent guarantee is not grounds for termination of obligations under it. “In judicial practice there have been different approaches to this issue. In a number of cases, the courts took the position that the bankruptcy of the guarantor could affect the scope of its obligations under the guarantees and even entail the termination of its guarantee obligations to the beneficiaries. The Supreme Court in its review emphasized that creditors can assert their claims under guarantees against the guarantor in bankruptcy proceedings in the manner prescribed by the Bankruptcy Law. According to the position of the Supreme Court, the subsequent bankruptcy of the guarantor can only influence the recalculation of the amount of the fee for issuing the guarantee downward, since the financial effectiveness of the guarantee after the bankruptcy of the guarantor actually decreases,” the expert noted.

Clause 15 explains that a claim by a beneficiary against a guarantor who has refused to satisfy a timely demand for payment under an independent guarantee may be filed within the general statute of limitations.

It follows from clause 16 of the document that the principal has the right to recover from the beneficiary the excess of the amount received by the beneficiary under an independent guarantee from the guarantor over the actual amount of the principal’s obligations to the beneficiary.

In paragraph 17 of the review it is noted that when the beneficiary sends to the guarantor a request for payment under Art. 374 of the Civil Code of the Russian Federation, the pre-trial procedure within the framework of the Arbitration Procedure Code of the Russian Federation is considered to be observed.

Commenting on the review, Marat Khasanov noted that detailed legal regulation of legal relations in the field of independent guarantees (in the form as it exists now) appeared in the Russian Civil Code of the Russian Federation relatively recently - since March 2015. In his opinion, the purpose of the review is to clarify many issues on guarantees for participants in civil transactions using this instrument in their business activities.

In turn, Semyon Lopatin added that an independent guarantee is one of the most popular security guarantees. “Despite the fact that the mechanism for issuing guarantees and paying guarantee amounts is quite transparent, the courts consider a large number of disputes based on an independent guarantee. At the same time, sometimes mutually exclusive judicial acts are adopted, including those that contradict judicial practice confirmed by the Armed Forces of the Russian Federation,” the expert noted.

Using a bank guarantee

In situations where contractual obligations have been violated, a basis arises for the implementation of the main function of the financial procedure in question.

Request for payment

Acting as a guarantor, the bank does not have the right to refuse to transfer funds even in cases where the very fact of non-compliance with the terms of the agreement is the subject of a dispute. The payment is made based on a review of the documents submitted by the beneficiary - the powers of the credit institution do not include certification of the circumstances of the situation that has arisen, since such issues are resolved within the legal framework. But if there are errors made during the process of drawing up and submitting a claim, the applicant’s claims may be denied.

Reimbursement of amounts paid under the guarantee

The principal’s responsibility is to replenish the funds spent by the bank on compensation - except for cases where the payment was made with violations, for example, if the documents presented were insufficient.

Beneficiary liability

If it turns out that the mutual settlements made between the parties turned out to be unfounded - due to the actual fulfillment of the basic obligations of the main agreement - a controversial situation arises that requires a separate resolution. It is allowed to claim the amount received from the banking organization in favor of the principal.

How long does the warranty last?

Upon receipt of a request, the credit institution immediately sends a corresponding notification and also evaluates the documents submitted for consideration. The terms are determined by the terms of the agreement - standard practice is five working days, the maximum allowable waiting period is a month.