Commercial representation: concept and legal forms. Commercial representative - it makes sense to know: legal characteristics and features of conducting business

Correlation between the categories of mediation and representation

Mediation as an economic phenomenon is reflected in many legal institutions, however, representation and mediation as legal categories arose in legislation only with the development of property turnover, its complexity and the increase in the diversity of economic relations. In a broad sense, the concept of representation either completely or partially absorbs the concept of mediation.

Representation and mediation have a number of common features:

1. The main unifying feature of the concepts of “mediation” and “representation” is the activity of a representative or intermediary in the interests of others, which allows us to draw a line between them and other subjects of law who also act on behalf of others. own name(for example, from dealers, distributors and other persons acting in their own interests and at their own expense);
2. representation and mediation are used not only in business, but also in the general civil sphere of relations.

However, mediation and representation differ significantly from each other according to the following criteria.

In accordance with paragraph 1 of Art. 182 of the Civil Code of the Russian Federation, the grounds for the emergence of relations of representation may be:

7) the activities of a commercial representative are always presumed to be compensated. Therefore, when he executes orders from different parties to a transaction, unless otherwise provided by agreement between these parties, the commercial representative has the right to demand payment of the stipulated remuneration and compensation for the costs incurred by him in executing the order from the parties to the agreement in equal shares;

8) a commercial representative always carries out his activities on the basis of an agreement, which is subject to increased requirements - it must be concluded in writing and contain instructions on the powers of the commercial representative. The provision on the authority of the representative is an essential condition of any commercial agreements in the field of representation. If there is no such condition in the contract, the powers of the commercial representative must be confirmed by a power of attorney (clause 3 of Article 184 of the Civil Code of the Russian Federation);

9) the duties of a commercial representative include maintaining confidentiality of information about trade transactions carried out by him even after the execution of the instructions given to him (trade secret);

10) the remuneration of the activities of a commercial guarantor presupposes the presence in its legal regime in accordance with Art. 359 of the Civil Code of the Russian Federation, the right to retain things in his possession that are subject to transfer to the principal, to secure his claims under the agency agreement;

11) a commercial representative as a professional entrepreneur, being aware of his field of activity much better than the principal, due to the constantly changing market situation, has the right, in the interests of the principal, to deviate from his instructions without prior request for this. In this case, the commercial representative must notify the principal of the deviations made within a reasonable time (clause 3 of Article 973 of the Civil Code of the Russian Federation);

12) non-profit representation allows for the fiduciary (trust) nature of the relationship between its parties. Commercial representation can never be of a personal fiduciary nature, since a commercial representative acts not only in the interests of the principal, but also in his own interests, counting on making a profit. Related to this is the establishment by the legislator of a rule, according to which the commercial representative in the agency agreement, unilaterally refusing to execute it, must notify the principal of the termination of the agreement no later than 30 days in advance, unless the agreement provides for more long term(Clause 3 of Article 977 of the Civil Code of the Russian Federation). In the regime of non-commercial representation, the principal has the right to cancel the assignment, and the attorney to refuse it at any time, and the agreement to waive this right is void (clause 2 of Article 977 of the Civil Code of the Russian Federation).

Features of intermediation in trade turnover and its types

Any trading activity as a business activity is aimed at making a profit. Intermediary activity in trade is one of the options for the provision of paid services to wholesalers and is aimed at increasing trade turnover, its profitability, accelerating the process of promoting goods, saving labor and material costs wholesalers.

Therefore, mediation has historically become most widespread in trade relations, contributing to the development of trade and economic ties, intensifying sales of goods, and improving the quality of trade transactions.

b) accepted guarantee for the execution of the transaction (delcredere - from delcredere (Italian) - on faith). Delcredere is a type of security for the fulfillment of an obligation to purchase goods by a third party (buyer). The commission agent acts as a guarantor and receives additional remuneration for this. However, there is a fundamental difference between an ordinary guarantee and a del credere, which does not allow some researchers to classify a del credere as a special type of guarantee, since with a guarantee there is a guarantee to the creditor of a third party for the actions of the latter, while in the case of a del credere the commission agent guarantees to his creditor (who is under the commission agreement in relation to the commission agent is the principal) for a third party, who, however, is not the debtor of the principal, but the debtor of the commission agent himself. Delcredere is an additional service that must, of course, additional payment(Article 991 of the Civil Code of the Russian Federation), therefore, by its legal nature, this is not a form of responsibility, but a type of obligation. Therefore, the Plenum of the Supreme Arbitration Court of the Russian Federation in this regard indicated that the guarantee of a commission agent for the execution of a transaction by a third party is not a type of guarantee; The terms established in clause 4 of Art. cannot be applied to the guarantee. 367

c) in case of non-fulfillment of the transaction by a third party, the commission agent is obliged to immediately notify the principal about this, collecting the necessary evidence (clause 2 of Article 993 of the Civil Code of the Russian Federation). This duty of the commission agent may be associated with the obligation to transfer to the principal, upon his request, the rights under the transaction. This provides the principal with the opportunity to use the methods provided for by law to directly influence a third party. In addition, from the meaning of this norm it follows that in this case the commission agent assumes the associated risk.

The commission agent is obliged to submit a report on the performance to the principal, transferring to him everything received under the commission agreement. Thus, the property received by the commission agent that was not directly provided for in the commission agreement itself is also subject to transfer.

The main responsibilities of the principal are acceptance of execution, payment of commission, as well as compensation to the commission agent for the amounts spent by him on the execution of the order. The existence and amount of such amounts in the event of a dispute must be proven by the commission agent. The commission agent is provided with certain guarantees designed to ensure that the principal fulfills his duties:

• the right to retain the principal’s property in his custody (paragraph 1, paragraph 2, article 996 of the Civil Code of the Russian Federation);
• the right to set off by retaining what was due to him under the commission agreement from all the amounts that came to him at the expense of the principal (Article 997 of the Civil Code of the Russian Federation).

Moreover, if the buyer pays for the goods in partial payments, then, in the absence of an agreement to the contrary, the commission agent has the right to withhold the commission in full from the first amount received to him.

Article 1002 of the Civil Code of the Russian Federation provides a special basis for termination of a commission agreement for commercial organizations acting as commission agents - insolvency (bankruptcy). In such cases, the rights and obligations of the commission agent (bankrupt) are transferred to the principal. Creditors of a commission agent declared insolvent cannot claim part of the property corresponding to the subject of the commission agreement.

Consignment. Consignment as such is a type of commission adapted to its use in foreign trade.

Under a consignment agreement, one party (the consignor) assumes the obligation for a fee for a certain time (the consignment period) to sell on its own behalf, but at the expense of the other party (the consignor), the goods transferred to him by the consignor.

The goods transferred to the consignee usually arrive at his consignment warehouse, where they are stored until the moment of sale. A consignment agreement often includes a condition according to which, if the consignor fails to sell the goods by the specified deadline, they become his property, but with mandatory payment.

The activities of consignees have certain features determined by the consignment agreement model:

1. consignees only sell goods supplied by exporters, they do not carry out operations for the purchase of goods for exporters;
2. a prerequisite for the consignor's activities is the presence in his possession (not necessarily in his ownership) of storage facilities (consignment warehouses);
3. the title to the goods stored in the consignee's warehouse remains with the consignor until it is sold;
4. the shelf life of goods in the consignor's warehouse (consignment warehouse), as a rule, is limited by the terms of the contract (for example, no more than five years);
5. upon expiration of the storage period, the unsold goods must be returned to the consignor or may become the property of the consignee on the terms agreed upon by the parties to the consignment agreement;
6. a consignment agreement is usually concluded upon the implementation of trading activities a foreign exporter within a certain country of sale of the goods.

Agency

2. Realtors are intermediaries between the seller and the buyer in real estate transactions.

Real estate activity, due to the nature of the subject of sale, is not a commercial activity.

3. Insurance broker - a legal entity or individual, an intermediary between the policyholder and the insurer. An insurance broker, acting as an intermediary, provides services to the policyholder in obtaining insurance compensation. At the same time, the insurance broker is in a relationship under a commission agreement with the insurer, receiving from him a commission for the payment of the insurance premium by the policyholder. In accordance with paragraph 2 of Art. 184 of the Civil Code of the Russian Federation, such simultaneous commercial representation of an insurance broker must be carried out with the simultaneous consent of both parties to the insurance legal relationship. The main difference between a broker and an insurance agent is the independence of his opinion from the interests of the insurance company. Insurance brokers can take part in commercial activities if the subject of insurance is a product.

Of all types of brokers, only stockbrokers can be considered full-fledged commercial entities. Strict requirements are imposed on a stockbroker: he must have a higher professional education and additional special training or secondary vocational education, additional special training and work experience in the specialty for at least two years. In addition, the broker must know the laws, regulations and teaching materials related to commercial activities, market methods management, patterns and features of economic development, rules for organizing and doing business, types of exchange transactions, skills business communication, methods for studying market conditions, its potential and development trends, organizing business contacts and stock exchange transactions, fundamentals of social psychology, methods for determining quality and the procedure for setting prices for raw materials, equipment, products, property, services, rules for determining the amount of commission payments under concluded contracts, the procedure for drawing up documentation when registering transactions, civil and labor legislation, rules and regulations of labor protection.

The direct responsibilities of a broker include: 1) providing intermediary services in concluding commercial transactions carried out on stock exchanges; 2) ensuring a reduction in the implementation period of the transaction and obtaining maximum income; 3) study of commercial information, quality characteristics of raw materials, equipment, products that are the subject of the transaction; 4) analysis of domestic and foreign market conditions, information about goods sold, customer requirements; 5) forecast of changes in prices and demand for goods; 6) carrying out negotiations with clients on concluding contracts, inspecting goods, assessing their value; 7) participation in the examination and verification of the quality of raw materials, materials, products, determining and agreeing on prices, terms of purchase and sale and its execution; 8) ensuring compliance of concluded contracts with legal norms, proper execution necessary documents according to the requirements established by law.

Features of the legal status of stockbrokers are as follows: 1) the broker is an official of the exchange; 2) the broker acts on behalf and at the expense of the exchange; 3) the broker can assist both counterparties; 4) the broker must carry out the order in good faith, impartially, respecting the interests of both parties equally.

Brokerage activities can be carried out not only on the exchange, but also outside it - on trading markets. Entities engaged in such activities are called commodity brokers.

In the laws of France, Germany, Switzerland, and Italy, intermediary relations between brokers are regulated by the rules on a brokerage agreement. Its features include: 1) one-time provision of services; 2) limiting the broker’s activities to the stages of preparation and conclusion of the contract; 3) lack of representative powers. In Germany, the activities of a broker are regulated

Section 8 of Book I of the GTU (German Trade Code), and according to the definition contained in § 93 of the GTU, he is “one who, for other persons, without being permanently authorized by them on the basis of contractual relations, professionally undertakes the mediation of purchase agreements or alienation of goods or securities, insurance, freight transportation, hiring of ships or other objects of trade, has the rights and obligations of a broker.”

The activities of a trade broker are superficially similar to the activities of a sales representative (agent), but have a number of significant differences: 1) a sales agent (representative) is permanently authorized to carry out sales representation, while a trade broker is not associated with his counterparty in a long-term relationship; 2) a trade broker, like a sales agent, works for results, but unlike the latter, the broker has the right to demand remuneration from both parties to the contract, unless otherwise follows from the agreement or local custom; 3) a trade broker, unlike a sales agent, does not enter into contracts when acting as an intermediary. He prepares the text of the agreement, coordinates it with the parties and presents it to the parties for signature in its final form. At the same time, the broker is liable to the parties for losses caused through his fault.

The Civil Code of the Russian Federation, as well as special acts of civil legislation, does not contain rules regulating the legal regulation of brokerage agreements, despite the fact that intermediary operations of this kind are widespread in domestic trade.

A common type of stock exchange intermediaries are brokers. They enter into contracts on behalf and at the expense of the principal. The Law of the Russian Federation “On Commodity Exchanges” (Article 9) defines brokerage activity as the activity of carrying out exchange transactions by an exchange intermediary on behalf of the client and at his expense, on behalf of the client and at his own expense, or on his own behalf and at the expense of the client. In accordance with Part 2 of Art. 16 Federal Law on OT as a broker, i.e. a bidder acting in the interests and at the expense of another person can be either an individual entrepreneur or a legal entity.

The main difference between a broker and a broker is the nature of his activity: if a broker is only a commercial intermediary, then a broker can perform the functions of both an intermediary and a representative, i.e. may be a party to trade transactions, performing both actual and legal actions. Actual actions are expressed, as a rule, in the search for a future counterparty, preliminary negotiations, and bringing the parties together. Legal actions (transactions, contracts) can be carried out by brokers on their own behalf, but in the interests and at the expense of the client.

On stock exchanges, goods are sold mainly through brokers. They operate as firms, often with their own branch network, or as independent brokers. The role of brokers in the market is determined by a thorough knowledge of supply and demand for certain goods and the ability to promptly carry out orders.

In accordance with Art. 10 of the Law “On Commodity Exchanges” there are three types of brokers operating on exchanges:

1) brokerage firms - organizations professionally, on an ongoing basis, engaged in exchange intermediation, i.e. commercial activities carried out on the basis of an appropriate license;

2) brokerage houses, which are, as a rule, branches of brokerage firms and can, within the powers granted to them, perform certain functions on behalf of the company. From the standpoint of the Civil Code of the Russian Federation, a brokerage office, as a branch of a legal entity, is not an independent participant in civil legal relations and cannot act as a party to transactions, or be a trustee carrying out instructions from its clients. Such a person can only be an organization that has created a branch or other separate division. Therefore, some authors do not classify brokerage houses as independent stock exchange intermediaries;

3) independent brokers registered as individual entrepreneurs who have acquired the right to participate in exchange trading as a member of the exchange or a regular visitor.

The activities of stock brokers are subject to mandatory licensing. Licensing of the activities of stock brokers is carried out on the basis of the Decree of the Government of the Russian Federation of October 9, 1995 N 981 “On approval of the Regulations on licensing the activities of stock exchange intermediaries and stock brokers performing commodity futures and options transactions in stock trading.” The issuance of licenses to participants in exchange activities requires that they have certificates of appropriate state registration as individual entrepreneurs (for example, for independent brokers - clause 4 of Article 10 of the Law of the Russian Federation "On Commodity Exchanges and Exchange Trading") or legal entities (for example, brokerage firms - clause 1 of Article 11 of the Law of the Russian Federation "On Commodity Exchanges and exchange trading"; cf. clause 1, article 8 and clauses 1 and 2, article 9 of the bill "On exchanges and exchange activities"). Therefore, without such preliminary state registration, the license is considered illegally issued, and exchange activities are considered illegally carried out.

Outside exchanges, intermediary services of brokers are also quite common. Brokers who operate outside commodity exchanges in commodity markets are called commodity brokers. Commodity brokers also do not have long-term contractual relationships with the buyers and sellers to whom they provide services. The advantages of commodity brokers include detailed knowledge of the market in which they specialize, extensive business connections, and the ability to quickly execute individual orders.

The amount of commission paid to brokers varies depending not only on the type of intermediary, but also on the type of products they sell. The lowest commissions go to brokers involved in the sale of technically simple, homogeneous products, primarily raw materials. In the market for machinery, equipment and components, the remuneration they receive is significantly higher, but this market also has higher operating costs.

Brokerage activities are carried out by a brokerage firm, a brokerage house or an independent broker through the execution of exchange transactions by an intermediary on behalf of the client and at his expense, on behalf of the client and at his own expense, as well as on his own behalf and at the expense of the client.

Brokerage activities are carried out by a brokerage firm, a brokerage house or an independent broker. Despite the fact that the Federal Law “On the Securities Market” establishes that brokerage activities are carried out on the basis of an agency or commission agreement, as well as a power of attorney for such transactions, the Law of the Russian Federation “On Commodity Exchanges and Exchange Trading” does not define specific types of agreements that formalize brokerage activities. Therefore, on commodity exchanges, unlike currency and stock exchanges, any of the contractual models of representation provided for in the Civil Code of the Russian Federation, including their mixed versions, as well as unnamed types of contractual structures, can be used in brokerage intermediation, for example special agreement for brokerage services.

Brokerage intermediation involves the provision of services on the terms developed by counterparties. The scope and nature of the broker's intermediation are determined by the contractual structure used by the parties to carry out intermediary activities:

1. if the relationship is based on a contract of agency, the attorney performs certain legal actions on behalf and at the expense of the principal (Article 971 of the Civil Code of the Russian Federation);
2. if a commission agreement is used, then the commission agent enters into transactions on his own behalf in the interests of the principal (Article 990 of the Civil Code of the Russian Federation);
3. when carrying out mediation by concluding an agency agreement, the agent performs legal and other actions: on his own behalf, but at the expense of the principal; on behalf and at the expense of the principal (Article 1005 of the Civil Code of the Russian Federation).

To the relations of the parties under the agency agreement arising in the sphere entrepreneurial activity The Civil Code establishes special legal regulation if the attorney under this agreement is a commercial representative. Clause 1 of Art. 184 of the Civil Code provides for a legislative definition of a commercial representative, according to which such a subject is a person who constantly and independently represents on behalf of entrepreneurs when they enter into contracts in the field of entrepreneurial activity. From this definition follow a special subject composition and a special subject of the agreement, on the basis of which commercial representation can be carried out.

The parties to such an agreement can only be commercial organizations and individual entrepreneurs. Moreover, on the side of the attorney is an entrepreneur for whom commercial representation is the main type of business activity. The subject of the agreement may be the commission by a commercial representative on behalf of the principal not of any specific legal actions or transactions, but the conclusion of only those agreements that relate to the field of entrepreneurial activity.

The peculiarities of the legal regulation of relations under an agency agreement concluded by the principal with a commercial representative are determined by the specifics of the latter’s entrepreneurial activity, which can only be carried out through the conclusion of such an agreement. In the relevant areas of business activity, commercial representatives have extensive knowledge, professional experience, business connections and commercial contacts, the use of which, in turn, is beneficial to the principal. In this case, the principal may not have an actual personal trust relationship with the commercial representative. In this regard, the peculiarities of regulation of the agency agreement concluded by these persons are characterized by a significant weakening of the fiduciary element inherent in a regular agency agreement with the participation of entrepreneurs.

For a commercial representative to have the appropriate powers to act on behalf of the principal before third parties, the mere fact of concluding an agreement in writing, which contains indications of these powers, is sufficient. In this case, no power of attorney is required. The ability to act on the basis of only an agency agreement ensures the interests of a commercial representative in the event of early termination of this agreement at the initiative of the principal.

Commercial representative cannot enter into contracts on behalf of the principal in relation to himself personally. However, unlike an ordinary representative, he has the right to conclude such agreements in relation to other persons whose representative he is also at the same time. Situations are possible when a commercial representative performs the functions of an attorney in contracts of agency with different principals interested in concluding a corresponding business agreement among themselves. In accordance with paragraph 2 of Art. 184 of the Civil Code, simultaneous commercial representation of different parties to a transaction is permitted with the consent of these parties, as well as in other cases provided for by law. In case of simultaneous commercial representation, the attorney has the right to demand payment of the stipulated remuneration and reimbursement of the costs incurred during the execution of the assignment from the parties to the concluded business agreement in equal shares, unless otherwise provided by the agreement between them. At the same time, the commercial representative is obliged to fulfill the contract instructions given to him with the diligence of an ordinary entrepreneur, i.e. When concluding an agreement, ensure that the interests of each party are respected.

A peculiarity of regulating the procedure for the execution by a commercial representative of the assignment given to him is that the law gives the principal the right to relieve the commercial representative from the obligation to first request the principal about permissible deviations from the latter’s instructions. Also, the commercial representative may be released by the principal from the obligation to subsequently notify the principal within a reasonable time of any deviations made.

Taking into account the specifics of commercial representation as a type of entrepreneurial activity, the law obliges a commercial representative to keep confidential information about trade transactions that has become known to him even after the execution of the order given to him. The legislative definition of a commercial representative emphasizes the independent nature of his activities. A commercial representative acting on the basis of an agreement does not have the right to entrust the assignment given to him to other persons, including commercial representatives. A commercial representative may have such authority only if it is directly provided for by certain laws, other legal acts, or if a power of attorney containing these authorities is issued to him.

A contract of agency concluded with a commercial representative is always compensated, except in cases where the parties in the agreement itself have not specifically established its gratuitous nature, which is extremely rare in practice. In addition to the rights to reimbursement of costs associated with the execution of an order and the right to remuneration, a commercial representative in certain cases has the right to demand compensation from the principal for losses caused to him. Unlike ordinary contract orders, these requirements of a commercial representative are legally ensured by his right to retain the things in his possession that are subject to transfer to the principal.

For an agency agreement concluded with a commercial representative, there is a special procedure for its early termination at the initiative of one of the parties and special legal consequences such termination. A principal or commercial representative who refuses to fulfill a contract must notify his counterparty of termination of the contract no later than 30 days in advance, unless the contract provides for a longer period. During this period, the commercial representative has the right and obligation to carry out the instructions of the principal. The principal has the right to cancel the order without such prior notice only in the event of reorganization of the legal entity that is the commercial representative. In any case, early termination of an agency agreement mediating commercial representation at the initiative of one party, as a rule, entails losses for the other party. These losses, including lost profits, are subject to compensation by the party that terminated the contract early.

In certain areas of business activity, laws and other legal acts may establish regulation of the activities of commercial representatives that is different from the Civil Code. This is due to the fact that commercial representation is the legal basis for the activities of intermediaries in those areas of business activity that themselves have a special legislative regulation. Often, the participation of entrepreneurs in these areas of activity without representation of their interests through such intermediaries is not allowed. In particular, special legislation provides for the specifics of commercial representation carried out by professional participants in the securities market, insurance brokers, customs brokers, individual participants in exchange trading, and maritime brokers. At the same time, the legislative regulation of the entrepreneurial activities of all subjects of commercial representation is based on the principle that these entities carry out this activity not on their own behalf and not at their own expense.

Civil rights can be exercised, and obligations corresponding to rights can be fulfilled by business entities both personally and through representatives (Articles 182-189 of the Civil Code). Most often, a representative carries out various transactions on behalf of the represented person. Depending on the grounds for the origin of the representative’s powers, a distinction is made between general civil representation based on a power of attorney, a law or an act of a state body or local government. The authority of the representative may also be evident from the environment in which he operates (retail salesperson, cashier, etc.).

According to Art. 182 of the Civil Code, a transaction made by a representative on the basis of his powers directly creates, changes and terminates the civil rights and obligations of the represented person. The need for representation arises not only when the person represented by force of law (due to lack of legal capacity) or specific life circumstances (due to illness, business trip, employment, etc.) cannot personally exercise his rights and obligations. In some cases, the services of representatives are resorted to in order to take advantage of the representative’s special knowledge and experience, and save time and money.

With the help of a representative office, not only property, but also some personal moral rights. For example, the author of an invention can, through a representative, formalize and submit an application for a patent. However, it is not allowed to carry out transactions through a representative, which by their nature can only be completed in person, as well as in cases provided for by law (Article 182 of the Civil Code). Thus, only in person can you draw up a will, issue a power of attorney and enter into a lifelong maintenance agreement with dependents.

In relations of representation, three types of subjects are involved - the represented, the representative and a third party with whom the represented has a legal connection thanks to the actions of the representative. The role of the represented can be any subject of civil law - a legal entity or a citizen, regardless of the state of legal capacity. The circle of people who can be representatives is narrower. They are citizens who, as a rule, have full legal capacity. In exceptional cases, citizens who have reached working age may act as representatives of legal entities in the field of trade and services, i.e. 16 years.

Legal entities may assume the functions of representatives in accordance with the goals and objectives specified in their constituent documents.

The law prohibits certain persons from performing representative functions. In particular, persons expelled from the bar, investigators, judges, and prosecutors do not have the right to be representatives in court, except in cases where they act as representatives of the relevant court, prosecutor's office or as legal representatives. Chief accountants cannot receive, by proxy, funds from checks and other documents in banks, as well as inventory for the organizations in which they work.

Any subject of civil law can also act as a third party with whom the represented person, with the help of a representative, enters into a civil law transaction or performs another legal action.

Representation is formed by the relationship between the represented and the representative, the representative and a third party. Legal relations between the represented and a third party are the result of representation.

Representation is different from the similar actions of a messenger, a messenger, or an intermediary. Unlike a representative, a messenger only conveys the will of one person to another.

In terms of volition, a representative also differs from a signatory who signs a transaction at the request of another person who, due to a physical disability, illness or for some other reason, cannot sign with his own hand (Part 3 of Article 160 of the Civil Code). The handicapper does not express his own will and does not convey the will of such a citizen, but only confirms the fact that the citizen has expressed his will for the transaction.

The mediator, like the representative, performs active volitional legal actions148. He can find potential partners and negotiate a deal with each of them, but the will to complete the deal is expressed by the future participants themselves. Unlike a representative, an intermediary, for example a commission agent, makes transactions with third parties on his own behalf and himself acquires rights and obligations under them, which he subsequently transfers to his clients. Similar differences exist between a representative and other persons acting in the interests of others, but on their own behalf (trustees in bankruptcy, executors in inheritance, insurance brokers and etc.).

Business entities can participate in relations of general civil representation. However, the use of commercial representation is more important to them. By virtue of paragraph 1 of Art. 184 of the Civil Code, a commercial representative is a person who constantly and independently represents on behalf of entrepreneurs when they enter into contracts in the field of entrepreneurial activity. Such representatives can be commercial organizations created in accordance with the established procedure, as well as individual entrepreneurs.

As a rule, commercial representatives make transactions on behalf of entrepreneurs in the area where they have more qualified knowledge and skills, special information, business connections, etc. In addition, the conclusion of transactions of certain categories or in relation to certain property is possible only by persons with a special status .

For example, commercial representatives may include brokerage firms and independent brokers who have the status of exchange trading participants and have the right to make transactions on commodity exchanges, incl. in the interests of others (Article 10 of the Law on Commodity Exchanges and Exchange Trading). Brokerage activities of professional participants in the securities market are also recognized as commercial representation (Article 3/Law on the Securities Market of April 22, 1996 No. 39-FZ as amended by the Law of December 28, 2002 No. 185-FZ-RG, January 4, 2003 G.). Commercial representatives and intermediaries can be patent attorneys (Article 15 of the Patent Law of September 23, 1992, as amended by the Law of February 7, 2003 - RG, February 11, 2003), insurance agents and brokers (Article 8 of the Law on Organization insurance business in the Russian Federation dated November 27, 1992 No. 4015-1 (VVS, 1993, No. 2, Art. 56; NWRF, 1998, No. 1, Art. 4; 1999, No. 47, Art. 5622; 2002, No. 12, Article 1093; No. 18, Article 1721; RG, December 17, 2003).

By general rule clause 3 art. 182 of the Civil Code, a general civil representative cannot make transactions on behalf of the person represented in relation to either himself personally or another person whose representative he is at the same time. In contrast, a commercial representative, according to paragraph 2 of Art. 184 of the Civil Code has the right to simultaneously represent different parties to a transaction if they have their consent or such a possibility is provided for by law.

A commercial representative is obliged to carry out the instructions given to him with the diligence of an ordinary entrepreneur.

Commercial representation is carried out on the basis of an agreement concluded in writing. As a rule, these are contracts of commission, agency and their modifications - an agreement for the provision of brokerage services, an agreement for brokerage services, etc. It must contain an indication of the essence of the authority granted and the procedure for its implementation. If there is no indication of authority in the contract, a power of attorney must be issued to the commercial representative.

The contract for commercial representation is assumed to be paid (Articles 972, 1005 of the Civil Code). The principal is obliged to pay the representative remuneration for the actions performed, except in cases where the contract itself contains an indication of its gratuitous nature. If there is no such indication, but at the same time the contract does not establish the amount of remuneration and the procedure for its payment, the principal pays for the executed order the amount that, under comparable circumstances, is usually charged for services of a similar nature (clause 3 of Article 424 of the Civil Code) within the time limits stipulated clause 2 art. 314 Civil Code. In addition, the representative has the right to reimbursement of costs incurred in executing the order. When a transaction is made on behalf of several represented simultaneously, the costs are distributed in equal shares, unless otherwise established by agreement between them.

Taking into account the specifics of business turnover, the commercial representative is obliged to keep secret information about completed trade transactions even after the order has been executed. The problems of commercial representation are the subject of S. A. Kuznetsov’s Ph.D. thesis (see: S. A. Kuznetsov. Commercial representation. Abstract of Ph.D. thesis. M., 2004).

The regulatory framework for both commercial representation and mediation is constantly expanding. A number of rules on brokerage activities are additionally included in the Law “On the Securities Market” by Law No. 185-FZ of December 28, 2002. In particular, in accordance with paragraph 2 of Art. 3 of this law, “a broker must carry out clients’ orders in good faith and in the order in which they are received.” "Tender participants for stock exchange There can only be brokers, dealers and managers. Other persons may carry out transactions on the stock exchange exclusively through the mediation of brokers who are participants in the funds” (Part 1 of Article 12).

Important rules on securities market participants are established by: Regulations on securities market specialists, approved. by resolution of the Federal Committee of the Central Bank of December 24, 2003 No. 03-47/PS, reg. 5525 of February 4, 2004 (RG, February 12, 2004), Resolution of the Federal Commission for the Securities Market of April 23, 2003 No. 03-22 // PS “On the standards for the adequacy of own funds of professional participants in the securities market”, reg. No. 4638 dated June 4, 2003) and the Regulations on the requirements for organizers of trading on the securities market, approved by Resolution of the Federal Commission of the Central Bank of January 4, 2002 No. 1-ps, REG. No. 3319 of March 21, 2002 (RG, March 27, 2002). In turn, the Decree of the Government of the Russian Federation dated November 28, 2002 No. 845 approved the Rules for attracting brokers for the sale of state and municipally owned shares of public joint stock companies through the organizer of trading on the securities market. The rules establish the attraction of brokers on a competitive basis.

Earlier (March 23, 2001) by resolution of the Central Bank FC No. 6, REG. No. 2720 of May 22, 2001, the Rules for the implementation of brokerage activities when making certain transactions on the securities market were approved (RG, May 29, 2001). Another resolution of the FC Central Bank (dated December 11, 2001 No. 32/108 n) approved the Procedure for maintaining internal accounting of transactions, including forward transactions, and operations with securities by professional participants in the securities market engaged in brokerage, dealer activities and securities management activities securities (registration No. 3124 dated December 25, 2001 - RG, December 30, 2001).

Commercial representation in international property turnover is important. Issues of legal regulation of the activities of commercial representatives (sales agents) due to the particular prevalence of such relations in international trade have attracted the attention of international organizations since the first half of the 20th century. Since 1935, in parallel with the development of a universal convention on international sales International Institute For the unification of private law (UNIDROIT), work began on the preparation of substantive rules governing the relations of representation in international trade. In the 40s, under the auspices of the Association international law and the Institute of International Law began the process of unifying conflict issues in these relations. The International Chamber of Commerce has sought the development of guidelines for drafting an international trade agency agreement and a proforma for such an agreement. Various non-governmental international organizations and national public organizations have developed several standard agreements on this issue.

The relevance of this problem and the desire for harmonization of national legislation forced various regional international organizations. The work begun by the Commission for the Study of the Unification of Law in 1958 culminated in 1973 with the signing of the Benelux Convention regarding the agency agreement. Within the EU, in 1986, the EU Council Directive was adopted on the harmonization of the legislation of member states on issues of independent trading agencies (hereinafter referred to as the EU Directive), the development of which has been carried out since the 60s.

The last decade has been marked by the adoption of new national legislation on commercial agents in all European countries.

Despite its origins in civil representation in Western doctrine and practice, in contrast to domestic ones, commercial representation has three fundamental differences:

the subject of civil representation is to perform only legal actions, while a trade representative in world practice performs either legal and factual actions, or only factual ones;

the activity of a civil representative is random and isolated, while a commercial representative enters into a long-term relationship with the person represented, his activity consists of repeating an indefinite number of operations of the same nature;

A contract of agency in civil law is theoretically assumed to be gratuitous; a contract of commercial representation, as carried out in the sphere of business relations, is always compensated.

(See: Babkina E.V. International treaty commercial representation (agency agreement) // Abstract of Ph.D. diss. Minsk, 2003, pp. 1, 6, 7).

additional literature

Bykov A.G., Vitryansky V.V. Entrepreneur and arbitration court. M., 1992

Varlamova A.N. Legal regulation competitive relations on the commodity markets of the Russian Federation. Abstract of Ph.D. diss. M., 1998

This is a new type of representation for our civil law, which is mentioned in Art. 184 Civil Code of the Russian Federation. A commercial representative is always an entrepreneur who constantly and independently carries out transactions on behalf of entrepreneurs. As a rule, a commercial representative is needed where special knowledge, information, and business connections are needed to complete transactions. Certain categories of transactions and in relation to certain property can generally only be concluded by a person with a certain status or license (brokers, insurance agents).

The design of a commercial representative office differs significantly from the traditional one. One of the features legal regime established for this type of representation is that a commercial representative has the right to conclude, in addition to the usual ones, transactions that no one else but him can make.

It's about that Article 184 of the Civil Code allows the conclusion of an agreement by a commercial representative, who at the same time is a representative of both parties (seller and buyer, lender and borrower, contractor and tenant, etc.). This is possible if the parties have expressed their agreement on this issue, and if this does not contradict the law “Responsibility of a commercial representative for actions that violate the economic interests of those represented” in the collection scientific articles adjuncts and applicants // Issues of improving law enforcement activities of internal affairs bodies. Interuniversity Sat. scientific works adjuncts and applicants. M., MJI Ministry of Internal Affairs of the Russian Federation, 1999. . A commercial representative must carry out transactions of this kind with the care of an ordinary entrepreneur. He cannot make transactions on behalf of the person he represents for himself personally. Even a dealer who makes purchase and sale transactions of property on his own behalf must adhere to the rule about the priority of the interests of the person represented.

The form of the contract on which commercial representation is based must be in writing. As a rule, this is a contract of agency. It must indicate the powers of the representative and the procedure for their implementation. If the powers are not specified in the agreement, then the representative is issued a power of attorney from Kruglov N.Yu. Commercial law. - M.: Publishing house "RDL", 2001- p.32..

As a rule, a contract for commercial representation is compensated, that is, remuneration is assumed for completed transactions. In this case, the representative acquires the right to demand, along with remuneration, also compensation for the costs incurred by him. If a representative represents different parties, then in order to protect the interests of both parties, it is established that, unless otherwise stated in the agreements concluded between them and the commercial representative, remuneration and reimbursement of costs must be paid by the parties in equal shares. The contract may also indicate that it is free of charge. If the contract does not say at all about its compensation or gratuitousness, then the rule from Article 424, paragraph 3 of the Civil Code of the Russian Federation applies: the amount of remuneration should be the same as what is usually paid for similar services under comparable circumstances.

A commercial representative is obliged to keep confidential information about his trade transactions. This obligation continues after the commercial representative has fulfilled the instructions of B.D. Zavidov. Contract law Russia. - M.: IPK “League of Reason”, 1998- p.94..

Currently, the concept of commercial representation has different content depending on who uses this term: a practicing businessman and economist, or a lawyer. “For the first category, it is often much broader, which is achieved by including in this concept activities that, strictly legally, according to the law of the vast majority of countries, are not representation.”

From an economic point of view, it does not matter whether the representative is empowered to enter into transactions or not, whether he acts on behalf of the represented person or on his own behalf. A lawyer, on the contrary, considers as a representative only a person authorized by the performance of legal actions to create rights and obligations for the represented “Global trends in the unification of legislation on commercial representation” // Legal support for entrepreneurial activity in Russia and the CIS. Sat. scientific articles. M., Moscow State University Commerce, 2000. - p. 133.

Legally, we can define representation as a relationship by virtue of which one person (representative) performs legal actions on behalf of another person (represented), and the legal consequences of these actions, if they are performed within the powers granted to the representative, arise directly for the represented and, if speech is about a contract, the rights and obligations arising from the contract are directly transferred to the represented person.

Representation called commercial is not identical to civil representation, despite its origin.

The French researcher on issues of representation M. Bouteloup rightly notes: “The concept of commercial representation, certainly derived from the classical concept of civil representation, but actually borrowed from the colloquial language, has its own characteristics that make it an autonomous concept” L. Julliot de la Morandière. French civil law. T. 3. M., 1961- p.23..

There are three fundamental differences between commercial representation and civil representation, representation sensu stricto. The main institutions of civil law of foreign countries. Comparative legal research. - M., 1999. - p.2..

The subject of civil representation is one or more legal actions performed by a representative. A commercial representative carries out either legal and physical actions, or only physical ones.

Even if it includes committing physical actions representation sensu stricto implies the implementation of only legal actions, the purpose of which is the creation, modification or termination of legal relations. According to Article 3 of the Rome UNIDROIT Project, “a representative is a person who performs legal acts for and on behalf of another; to act means: to enter into an agreement, to acknowledge a statement capable of creating a legal relationship, to accept payment or delivery of goods, i.e. take part in legal relations" Pokrovsky I.A. History of Roman law. Pg., 1918. - p.433..

Similar actions are performed by le représentant de commerce contractant L. Julliot de la Morandière. French civil law. T. 3. M., 1961- p. 34., authorized to conclude contracts on behalf of the represented person. By his actions he changes the legal position of the latter.

Participation in the affairs of another is often of a mixed nature in terms of the nature of the actions performed: physical and intellectual, legal and non-legal, which is fully consistent with legal status Italian rappresentante di commercio "Specifics of liability of a commercial representative under modern legislation (civil and criminal aspects)" // Collection. scientific articles. Orel, Or.YuI Ministry of Internal Affairs of the Russian Federation, 2000. p.35.. However, the two components of the activities of a civil representative and a commercial representative play an opposite role.

The legal activity of a civil representative prevails over the physical activity associated with it. On the contrary, the power by which a commercial representative of a contractant can conclude transactions that he has prepared does not change the legal nature of his contract, which mainly depends on the actual activities (searching for a contractor and negotiations).

A commercial representative negociateur (not authorized to conclude transactions) also assists in the affairs of another. He negotiates based on the interests of the person represented. But his role is limited to this activity. Moreover, negotiations involve activities of a purely factual nature. As Catoni notes, “an assignment to negotiate cannot be called an assignment in the strict sense of the word, since negotiations are not a legal action: It would be necessary to give a commercial assignment a definition that would be broader than the concept of a civil assignment and would not necessarily include the power of representation "Improving law enforcement activities related to the protection of the interests of persons when using commercial representation" // Science and practice. Magazine No. 4. Or.JuI of the Ministry of Internal Affairs of the Russian Federation. Orel, 2001 - p. 11."

Thus, we can argue that activity carried out in the interests of another is not necessarily representative. Speaking about representation in relation to the search for a counterparty or negotiations by a commercial representative negociateur, colloquial illegally assimilated economic representation, that is, a broad concept devoid of legal force, and representation taken in its technical meaning of the word. A representative in a commercial sense is not always a representative in the correct legal terminology. In other words, economic representation, to which the activity of the sales representative negociateur belongs, is in reality a representation “latu sensu, incorrect, imperfect, incomplete, intermediary or sui generis” by L. Julliot de la Morandière. French civil law. T. 3. M., 1961- p. 35.. These epithets demonstrate the absence of a real phenomenon of representation.

The second difference between commercial representation is that the activity of a civil representative is random and isolated “Prerequisites for the emergence of the institution of commercial representation and the features of its regulation under Russian legislation” // State regulation of regional market relations. 1999. p. 12. It applies to one or more isolated cases. Commercial representation is a profession. The one who deals with it enters into a long-term relationship with the principal or employer. This activity consists of repeating an indefinite number of operations of the same nature. Finding clients is a normal activity of a sales representative. Maintaining continuous relations with his principal, he negotiates or concludes for him a maximum of transactions of the same nature.

The professional nature of commercial representation explains the third difference between it and sensu stricto representation - remuneration: remuneration is one of the essential terms of the contract. A commercial representation agreement, as carried out in the sphere of entrepreneurial relations, is always compensated, which leads to the presentation of increased demands to the authorized person Ryasentsev V. A. The origin of representation and its essence in bourgeois law // Scientific notes VYUZI s. 44-54. Thus, having revealed the main differences between commercial representation and civil representation, we can argue that it represents a special phenomenon in commercial law, since it includes two types of relations - mediation and representation - in a narrow legal sense.

A commercial representative is subject to the provisions of the Civil Code of the Russian Federation establishing liability for violation of obligations. A commercial representative, like any entrepreneur, is released from liability only in one case - in the event of force majeure. It must be emphasized that such circumstances do not include: violation of obligations on the part of the commercial representative’s partners, lack of goods necessary for execution on the market, lack of necessary goods from the debtor Money. In addition, a commercial representative is responsible for the actions of his employees and third parties “Civil and criminal qualification of illegal actions of commercial representatives” // Current problems of the activities of regional authorities in the development of fair competition and implementation of antitrust policy. Or.JUI Ministry of Internal Affairs of the Russian Federation. Sat. scientific articles. Orel, 2002 - p. 23.

When opening a commercial representative office and drawing up the text of the agreement, it is necessary to define in more detail the range of rights and responsibilities of the commercial representative and his subordinates, as well as to provide for his contractual liability. The law allows the conclusion of an agreement on full financial liability with a commercial representative.

The contracts that give rise to the relationship of representation are contracts of commission (Chapter 49 of the Civil Code of the Russian Federation) and agency contracts (Chapter 52 of the Civil Code), under which one party (an attorney in a commission agreement or an agent in an agency agreement) undertakes to perform on behalf and at the expense of the other party ( principal in an agency agreement or principal in an agency agreement) certain legal actions.

A commercial representative is always an entrepreneur who constantly independently carries out transactions related to entrepreneurial activities on behalf of entrepreneurs.

One of the features of the legal regime is that a commercial representative has the right to conclude, in addition to the usual ones, transactions that no one else but him can carry out "Intermediary business activity as an object government regulation at the interregional level" // Collection of scientific articles of the Or.JUI of the Ministry of Internal Affairs of the Russian Federation. Accepted for publication in December 2001. .

The point is that Art. 184 allows for the conclusion of an agreement that at the same time represents both parties (seller and buyer, lender and borrower, contractor and customer, lessor and lessee).

The Civil Code of the Russian Federation establishes a number mandatory conditions using this kind of model. The absence of at least one of them is a sufficient basis for recognizing a transaction made by a commercial representative as not concluded, i.e. not capable of giving rise to any consequences for the represented Kruglova N.Yu. Economic law. Tutorial. - M.: Russian Business Literature, 1997, p. 65-67.

Commercial representation is a legal relationship involving the representation of another person on his behalf in the field of entrepreneurial activity.

A commercial representative is a person who constantly and independently represents on behalf of entrepreneurs when they enter into contracts in the field of entrepreneurial activity (Clause 1 of Article 184 of the Civil Code of the Russian Federation).

Features of commercial representation:

1. Commercial representation, in contrast to the rule of paragraph 3 of Art. 182 of the Civil Code of the Russian Federation, allows a commercial representative to act on behalf of both parties in the concluded agreement. At first glance, this may seem to contradict the legal nature of the contract as a bilateral transaction. But the difference is that the commercial representative makes a transaction not in his own interest, but in someone else’s interest; the parties to the contract become not the commercial representative, but the represented ones.

2. Simultaneous representation of different parties to a transaction is permitted with the consent of these parties and in other cases provided for by law (clause 2 of article 184 of the Civil Code of the Russian Federation).

3. Special subject composition: a commercial representative can only be a person engaged in entrepreneurial activity(i.e. either individual entrepreneur, or a commercial organization).

4. Commercial representative is obliged to carry out the instructions given to him with the diligence of an ordinary entrepreneur.

5. A presumption of equality of remuneration and reimbursement of costs incurred during the execution of the order from the parties is established, unless otherwise provided by agreement between them. Thus, they achieve equal treatment between the commercial representative and those represented.

6. Commercial representation is carried out on the basis of an agreement (agreement and power of attorney), concluded in writing and containing instructions on the powers of the representative. It is advisable to also provide in the contract the range of rights and obligations of the commercial representative, and liability for improper fulfillment of obligations.

The law establishes special consequences for concluding a transaction without authority, or in excess of authority. In this case, the transaction is considered concluded on behalf and in the interests of the person who completed it, unless the person being represented subsequently directly approves this transaction (Article 183 of the Civil Code of the Russian Federation).

§2. Power of attorney: concept, types, form.

A power of attorney is a written authority issued by one person to another person for representation before third parties. Written authority to carry out a transaction by a representative can be presented by the represented directly to the relevant third party (Clause 1 of Article 185 of the Civil Code of the Russian Federation).

From a legal point of view, the issuance of a power of attorney is a unilateral transaction that fixes the content and limits of the powers of the representative (attorney), whose actions on the basis of the power of attorney create rights and obligations directly for the represented (principal). Therefore, all requirements for transactions apply to the power of attorney.

Maximum term The power of attorney is valid for three years. If the deadline actions not specified in the power of attorney itself, she remains valid for one year from the date of its commission. A power of attorney that does not indicate the date of its execution is void (Clause 1 of Article 186 of the Civil Code of the Russian Federation).

A power of attorney is a transaction that must be made in writing..

Power of attorney on behalf of legal entity issued under the signature of its manager with an attachment print this organization. A power of attorney on behalf of a legal entity based on state or municipal property to receive or issue money and other property assets must be signed also chief (senior) accountant this organization.

Power of attorney to receive wages and other payments related to labor relations, to receive remuneration for authors and inventors, pensions, benefits and scholarships, citizen deposits in banks and to receive correspondence, including cash and mail, can also be certified by the organization in which the principal works or studies, the housing maintenance organization at his place residence and the administration of the inpatient medical institution in which he is being treated, as well as the bank and post office (clause 4 of Article 185 of the Civil Code of the Russian Federation).