Bail is a preventive measure provided for in Art. 106 of the Criminal Procedure Code of Russia. It is applied to suspects or accused of committing a criminal offense in order to ensure their appearance before the investigator, interrogating officer or in court, as well as to prevent them from committing new crimes or actions that impede the proceedings of the case.
Question and answer What is house arrest and how does it differ from other preventive measures?
Bail in the form of a preventive measure is set by the court. The suspect or accused himself, as well as another person or legal entity, can apply for bail. When setting bail, the court can also impose a number of prohibitions on a person involved in a criminal case: leaving home at a certain time, visiting specific places, communicating with certain people, sending and receiving mail, using a mobile phone and the Internet, driving a car. If the assigned bail has not been posted, the court will choose another preventive measure against the suspect or accused.
Is the deposit refunded?
The suspect or accused person pays bail for themselves, or other people or a legal entity can do it for them. If the bail was paid at the stage of preliminary investigation, it goes to the deposit account of the body in charge of the criminal case, if at the stage of legal proceedings, it goes to the account of the relevant court. When depositing a deposit, a separate protocol is drawn up.
If the suspect or accused has violated the obligation associated with the bail, it is not returned to the bailor. In this case, the pledge turns into state income. In other cases, it is returned: by the court - when rendering a verdict or issuing a ruling or order to terminate a criminal case, by an investigator or investigator - when terminating a criminal case.
Question answer
On what basis can police officers detain?
Can the court collect funds from the bail amount?
And the last thing I would like to draw your attention to. If the verdict indicates compensation or recovery of any funds at the expense of the defendant in favor of the victims, I want to reassure you: this does not apply to funds posted as bail. The deposit amount will be returned to the pledger in full.
That's probably all I wanted to tell you about bail and bail. If you did not find the answer to your question in this article, you can always call me, I will try to help you. Good luck!
They are delaying the auction
Debtors can take a long time to sell property; to do this, they delay the auction. Such actions entail significant losses for the creditor. In this case, he has the right to demand compensation for losses caused, even if outwardly the actions of the mortgagor appear lawful.
Pledgors often go to court with an unfounded application for interim measures. For this reason, the court may temporarily block the opportunity to hold an auction for the sale of pledged property.
Example: the debtor managed to delay the auction for nine months with the help of interim measures. The bank filed a claim in court to recover compensation.
Three authorities refused the applicant. They decided that filing applications for interim measures could not be considered unlawful conduct. The fact that the courts subsequently refused to satisfy the debtor’s demands, to secure which they imposed restrictions, does not indicate his bad faith.
The Supreme Court overturned the judicial acts of the lower courts. In a dispute over the recovery of damages or payment of compensation in connection with securing a claim, it is not necessary to prove the guilt of the person who requested the imposition of interim measures.
What argument will protect the mortgagee
The right to compensate for losses from interim measures or to receive compensation is based on the provisions of paragraph 3 of Article 1064 of the Civil Code and arises by virtue of the direct instructions of the law - Article 98 of the Arbitration Procedure Code. Therefore, the losses of the creditor - pledgee in similar cases can be assigned to the debtor - mortgagor, even if there were no direct culpable actions.
The article was prepared using materials from the magazine “Corporate Lawyer”
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conclusions
Before lending money, you need to select a suitable document to protect your rights as a lender. If the amount is small, then you can limit yourself to a receipt. In all other cases, an agreement should be drawn up. This could be a loan agreement. It must indicate the details of each party. This is your full name, registration address, passport details and place of birth. It is also necessary to agree on the amount of debt and the timing of its repayment. If there is an interest rate, then it is indicated in the contract. You can also prescribe the conditions for reducing it in case of early repayment of the debt.
The agreement must be drawn up in writing, and in case of significant amounts, it must be certified by a notary. Concluding a transaction with a notary protects both parties from groundless claims in the future.
Important! The fact of transfer of money is recorded using a receipt.
After affixing your signature, you should write a full transcript of your full name on each document.
If the collateral amount exceeds one million, then a loan agreement must be drawn up. After signing, the documents are submitted to Rosreestr for registration and an encumbrance is placed on the pledged property. Accordingly, until the date of full repayment, the borrower cannot sell or give away property without the consent of the lender.
If the debtor fulfills the terms of the transaction in bad faith and allows delays, the lender has the right to apply to a notary for a writ of execution. After putting down the appropriate mark, you can contact the bailiffs, bypassing the court.
As for the pledge agreement, if the terms are violated, the creditor can file a claim in court. By decision of the court, the property will be put up for auction, and the funds received will be transferred to the lender to pay off the debt.
According to the recommendation of many notaries, any debt should be formalized in the form of an agreement and preferably notarized. The receipt also has legal force, but it will be quite difficult to get your money back, having only this in hand.
Pledge agreement
The loan agreement can be supported by the presence of collateral, which will guarantee the lender the receipt of the disbursed funds in any case. The collateral depends on the loan amount. It can be a garage, a car, a country house or an apartment. But it is worth noting that the value of the collateral does not have to correspond to the amount of the loan issued. But it cannot be less than the debt. That is, it must cover the amount of money borrowed.
The need for collateral is due to the fact that many people take out varying amounts of loans and then do not pay them back. And in order to get his money back, the lender will have to spend a lot of time in court. If the debtor does not have a stable income, then repayment of the debt may take a long period of time.
Important! The presence of collateral significantly protects the lender from non-repayment of money.
Both movable property and real estate can be used as loan collateral. Experts recommend using real estate, because an unscrupulous borrower can hide movable property.
According to the law, a pledge agreement does not require notarization. But if the object of the pledge is real estate, its registration with the Rosreestr authorities is mandatory. The fact of transfer of money is documented in the form of a receipt. If the return is made in cash, it is also necessary to prepare it.
What should the bank do when the collateral is missing or damaged?
When a bank issues a secured loan, it is important to monitor the collateral that has not been transferred to the bank and take timely measures if it is determined that the collateral is missing or damaged. Let's consider what the bank can do in this case.
Replacing the collateral or changing the method of securing loan repayment
During monitoring of the collateral, the bank also checks the presence and condition of the collateral <*>. In this case, the absence or damage of the collateral may be revealed
— loss;
— damage;
— termination of the mortgagor’s ownership of the pledged item or the right of economic management or operational management on the grounds provided for by law (for example, the pledged item can be sold, seized by the owner, etc.).
In each of these cases, the pledgor is given the right to restore the pledged item within a reasonable time equivalent property, unless otherwise provided by the agreement <*>.
If the pledgor does not exercise this right when the pledged thing is destroyed or the pledged right has ceased, then the pledge is terminated <*>.
Note: As a general rule, the pledgor must obtain the consent of the bank to replace the collateral. The legislation or the pledge agreement may provide otherwise <*>.
If you discover the destruction of the pledged item or the termination of the pledged right, we recommend that you do not wait for the pledgor’s initiative, but initiate a replacement of the pledged item or a method of ensuring the repayment of the loan, since time may be lost and the pledge will cease.
Although the right of pledge remains valid when, with the consent of the bank, the ownership of the pledged property or the right of economic management by it is transferred from the pledgor to another person as a result of compensated or gratuitous alienation, it is in the interests of the bank in such cases to initiate the replacement of the subject of pledge <*>. We recommend doing this, since the bank often does not have a contractual relationship regarding the subject of pledge with the new owner of the pledged property. And in this case, as a rule, difficulties arise with monitoring the presence and condition of the collateral. In addition, difficulties may arise with levying a penalty on him and subsequent satisfaction of his claims at the expense of his value.
Note: Since the pledge holder bank is primarily interested in preserving the collateral for the repayment of the loan, we recommend that the pledge agreement provide for the procedure for replacing the pledged item (replacement period, procedure for obtaining the bank’s consent for replacement, etc.) in the event of its alienation by the mortgagor, destruction, damage, arrest, termination of the pledged right, other cases of disposal of the subject of pledge from the possession of the pledgor <*>.
Regarding the pledge of goods in circulation, the following rule applies: they cease to be the subject of pledge from the moment they pass into the ownership, economic management or operational management of the acquirer, and goods purchased by the pledgor, specified in the pledge agreement, become the subject of pledge from the moment the pledgor acquires the right to them ownership, economic management or operational management <*>. In this regard, when accepting goods in circulation as collateral, we recommend monitoring the actual receipt and shipment of goods. If the pledgor has no or insufficient goods or turnover, it is possible to initiate a replacement of the subject of pledge or a method of ensuring repayment of the loan.
Note: Based on the actual situation with the presence and condition of the collateral, the bank and the pledgor can terminate the pledge agreement and choose a different method of ensuring the repayment of the loan <*>. Cases when the parties to a loan agreement change the method of ensuring loan repayment can be provided for in the loan agreement.
Early repayment of a loan or foreclosure of pledged property
In some cases, if the pledgor does not have the collateral, the bank may not initiate a replacement of the collateral, but demand early repayment of the loan , in particular:
- if the pledgor violates the terms of pledge of goods in circulation <*>. For example, when the pledgor allows a decrease in the quantity, and, consequently, the value of the pledged goods, disproportionate to the fulfilled part of the loan obligation <*>;
- when the subject of the pledge has left the possession of the pledgor not in accordance with the pledge agreement <*>. For example, if the collateral is sold without the consent of the pledgee, when consent was required in accordance with the contract;
- if the pledgor violates the rules on replacing the subject of pledge <*>. For example, in the case of replacing the pledged item without the consent of the pledgee <*>, in case of violation of the terms of the pledge agreement on replacing the pledged item in the event of its loss or damage;
- when the pledged item is lost due to circumstances for which the pledgor is not responsible, and he did not restore the pledged item within a reasonable time or replace it with an equivalent one with the consent of the pledgee <*>. For example, in case of theft, destruction by natural disaster;
- when the mortgagor’s ownership of the pledged property has ceased due to seizure (redemption) for state needs, requisition or nationalization <*>;
- when the pledged property is seized from the pledgor in the manner prescribed by legislative acts on the grounds that the pledgor illegally possesses the property and is not its owner; the pledged property was seized as a sanction for a crime or other offense (confiscation) <*>.
Note: Circumstances under which the bank has the right to demand early repayment of the loan, the conditions for early repayment can be provided for in the loan agreement <*>.
If the bank's request for early repayment of the loan is not fulfilled, the bank has the right to foreclose on the pledged property in the following cases:
- the pledgor violated the rules on subsequent pledge <*>. For example, a pledge agreement between the pledgor and the bank prohibits subsequent pledge of the property pledged, but the pledgor violated this prohibition <*>;
- the pledgor does not take measures to insure and preserve the pledged property <*>;
- the actual presence, quantity, condition and storage conditions of the pledged property do not comply with the terms of the pledge agreement <*>;
- the pledgor violates the rules for disposing of the pledged property <*>. For example, without the consent of the mortgagee, he leased the pledged property.
Loan agreement
The second document that ensures the return of money on a debt is a loan agreement. It, too, as in the receipt, indicates the full name, passport details and registration addresses at the place of residence of the parties. The amount and term of the contract must be written down in numbers and deciphered in words. The conditions for full and partial early repayment are prescribed, as well as the interest rate on the loan. In the interest clause, it is recommended to indicate the conditions for a possible rate reduction if the money is returned before the due date.
Specialists in loan agreements recommend indicating the judicial authority to which the lender will contact if necessary.
One of the necessary items is the method of repaying the loan. Repayments can be made either in cash or by transfer to a card or current account. If the payment is non-cash, then the details for performing transactions are indicated.
The document must also record the fact of transfer of funds when this occurs in cash.
The loan agreement must have a section on penalties. It is necessary to indicate what penalties the debtor will be required to pay if the deadlines are violated.
For an agreement to have legal force, it must be signed in the appropriate form. If the loan amount exceeds 10 thousand rubles, then only written form is allowed.
Attention! When the interest rate is specified in the agreement, the lender will have to pay 13% income tax.
When signing a document, two witnesses may be present to confirm the transaction.
Notarization is also recommended. The presence of a notary at the transaction guarantees that the parties to the agreement performed their actions voluntarily and in a capable state. Accordingly, in the future the borrower will no longer be able to refer to the fact that he was forced to receive a debt or that he did not understand what he was doing.
In addition, the notarial form of concluding relations allows you to collect funds without involving the judiciary. If the lender does not receive the money within the specified period, he can contact the notary for a writ of execution. After putting down the appropriate mark, you can immediately contact the bailiffs.
Interest on debt
Most often, borrowing money between friends or close relatives does not include interest payments. But this loan option is also possible and this issue is regulated by the norms of the Civil Code of the Russian Federation. The interest rate, according to the law, is established by decision of the parties and is specified in the security document.
If the amount of interest is not specified, then the creditor has the right to receive an amount that is calculated at the refinancing rate at the time of full repayment of the debt or part of it. The calculation is carried out taking into account the lender’s place of residence or address if the lender is a legal entity.
It is also recommended at the time of registration of documents to discuss the issue of reducing interest in case of early repayment of money.
It’s also not worth setting an unreasonably high interest rate, because in this case the contract can easily be declared invalid due to onerous conditions.
