RESOLUTION OF THE PLENUM OF THE SUPREME ARBITRATION COURT OF THE RUSSIAN FEDERATION

of February 17, 2011 No. 10

About some questions of application of the legislation on pledge

For the purpose of ensuring the correct and uniform application by Arbitration Courts of separate provisions of the legislation on pledge the Plenum of the Supreme Arbitration Court of the Russian Federation based on article 13 of the Federal constitutional Law "About Arbitration Courts in the Russian Federation" decides to make to Arbitration Courts the following explanations.

I. General provisions

1. According to the general rule, stipulated in Item 1 Article 349 of the Civil code of the Russian Federation (further - the Civil Code of the Russian Federation, the Code), requirements of the pawnbroker (creditor) are met from the cost of pledged property by a court decision. The satisfaction of the requirement of the pawnbroker due to pledged property without appeal to the court is allowed only based on the agreement of the pledger with the pawnbroker.

Estimating terms of agreement about extrajudicial procedure for the address of collection on pledged property, courts shall consider that the law provides cases when collection regarding pledge can be turned exclusively judicially. Relevant provisions contain, in particular, in Item 6 of article 349 Civil Code of the Russian Federation, Item 2 of article 55 of the Federal law "About Mortgage (Pledge of the Real Estate)" (далееЗакон about mortgage), Item 1 of article 18.1 of the Federal law "About Insolvency (Bankruptcy)", Item 1 of article 15 of the Federal law "About Mortgage Securities".

The agreement of the pledger with the pawnbroker on extrajudicial procedure for the address of collection on the pledged property breaking the prohibition of the extrajudicial address of collection operating at the time of its conclusion regarding pledge is the insignificant transaction based on article 168 Civil Code of the Russian Federation.

If the condition about extrajudicial procedure for the address of collection on the pledged property included in the text of the pledge agreement contradicts law provisions, the claim to property pledged under such agreement addresses judicially.

2. According to the subitem 1 of Item 6 of article 349 Civil Code of the Russian Federation and the subitem 1 of Item 2 of article 55 of the Law on mortgage collection on pledged property can be turned only by a court decision if the conclusion of the pledge agreement of property of physical person required consent or permission of other person or body. This restriction extends to the individual entrepreneurs including pledging the personal estate which is in common joint property (article 253 Civil Code of the Russian Federation, article 35 of the Family code of the Russian Federation).

The condition about extrajudicial procedure for the address of collection on pledged property also cannot contain in the agreement of pledge of share (part of share) in the authorized capital of limited liability company concluded by one of members of society - physical person (including the individual entrepreneur) with the pawnbroker who is not the member of society as such pledge is possible only with the consent of general meeting of members of society (Item 1 of article 22 of the Federal law "About Limited Liability Companies").

Because Item 2 of article 615 Civil Code of the Russian Federation provides need of receipt of the lessor by the lessee of consent to pledge of the right of lease of the parcel of land, the condition about extrajudicial procedure for the address of collection on pledged property cannot contain in the pledge agreement of the right of lease of the parcel of land. This restriction extends only to pledge of the right of lease of the parcel of land which is not occupied with buildings, structures or constructions. At the same time cases when for transfer by the lessee of the rights and obligations according to the lease agreement of the parcel of land there is enough notification on it of the lessor (for example, in the cases specified in Items 5, of the 9th Article 22 of the Land code of the Russian Federation (further - ZK Russian Federation)), in the pledge agreement of the right of lease of the parcel of land can contain condition about extrajudicial procedure for the address of collection regarding pledge.

3. According to the subitem 3 of Item 6 of article 349 Civil Code of the Russian Federation collection regarding pledge can be turned only by a court decision if the pledger is absent and it is impossible to establish its location.

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