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

The concept of representation in civil law

In legislation, the concept of “representation” is defined as a transaction made by a person (referred to as a representative) on behalf of or on behalf of another person (represented), based on a power of attorney or an act of a state body, local government body, which creates, changes, terminates civil rights and obligations. (according to Article 182 of the Civil Code of the Russian Federation)

The activities of the first person (representative) are determined, first of all, by the content of the legal relationship between the two participants in such a transaction. Since the first represents the interests of the second, his actions lead to the establishment of legal relations between the represented and 3 persons. Any transactions, as well as various legal actions of a representative in relations with third parties, lead to obligations and rights only for the represented person. The representative himself does not have any rights and obligations in transactions or other legal actions he carries out.

Citizens, as well as legal entities, have the opportunity to make transactions or other legal actions through a representative.

The services of a representative are used by:

1. In case of complete lack of legal capacity;

2. In specific life situations (illness, business trip, employment);

3. For the sake of using the special experience and knowledge of the representative;

4. To save time and money;

5. To exercise your subjective rights and strictly fulfill your duties;

6. Exercise of personal non-property rights (release of a work under a different name, shortening the manuscript, making changes).

A representative does not have the right to make transactions of any kind on behalf of the person represented in relation to himself personally, just as in relation to another person whose representative he is at the same time. The exception is cases of commercial representation. A deal that breaks this rule, according to Part 3 of Art. 182 of the Civil Code of the Russian Federation will be declared invalid. Simultaneous representation is allowed only in cases of consent of the parties involved.

Representation is not allowed only in cases where the nature of the transaction requires personal participation (Part 4 of Article 182 of the Civil Code of the Russian Federation). So, for example, Art. 27, 33 of the Federal Law “On Acts of Civil Status” does not allow representation at the conclusion or divorce of a marriage by the Civil Registry Office.

Types of representation. Concepts of voluntary and compulsory representation in civil law

There are two main types of representation:

1) Legal (mandatory)

2) Voluntary

The first type of representation arises in cases where a person is completely deprived of legal capacity, and representation is aimed at making up for this deficiency. Such representation protects, first of all, the interests of minors and people suffering from mental illnesses.

Such represented persons do not have the right to appoint or determine the powers of representatives, just as they do not have the right to revoke the powers of representatives in any actions.

The legal representatives are (Articles 14, 15, 62 of the Civil Code):

Parents

Adoptive parents

Guardians

As a rule, trustees are not legal representatives (Article 13 of the Civil Code). Unlike a guardian, a trustee can only represent his ward in court or other institutions in cases of illness that does not allow the represented person to make a transaction in person.

Voluntary representation is carried out at the will of the represented person. The main feature of such representation is that the identity and powers of the representatives are determined by the represented themselves. The standard way to establish authority is by issuing a power of attorney. Those represented have the right to influence the activities of their representative and can terminate it at any time by revoking the power of attorney.

The most common and most universal basis for voluntary representation remains the contract of agency. The main content of such an agreement is the representation agreement. A contract of agency will be the basis of representation only when the attorney is not in the service of the represented person. Relations with 3 persons to whom an attorney acts on behalf of the principal are not affected by the rules on the agency agreement.

The fact of membership in creative organizations is nothing more than the basis of voluntary representation. Any creative worker who joins a relevant organization is subject to obligations that characterize voluntary representation and protection of interests.

Voluntary representatives also include employees of socialist organizations who act on their behalf and are equipped with the appropriate power of attorney (legal consultants of various kinds, authorized in a certain type of activity: supply, sales, etc.) or acting without a power of attorney (sellers, cashiers and etc.); members of cooperative organizations authorized to enter into transactions on their behalf; attorneys who act in accordance with the terms of the agency agreement.

The following types of representation are distinguished:

1.) Representation based on an administrative act;

2.) Representation based on law;

3.) Representation based on a contract;

4.) Commercial representation.

The first type of representation is based on an administrative act

Representation based on an administrative act is a representation in which the first person (representative) is obliged to act on behalf of the second person (represented) by order of the latter’s administrative act.

An example of such a case is membership in a cooperative or public organization or a situation where a legal entity issues a decree appointing an employee to a certain position related to the performance of proper representative functions: concluding transactions, drawing up legal acts, representation in court. In this case, the powers of the representative are determined on the basis of an administrative act or the employee’s job description.

The second type is representation based on law

This type of representation arises when there is a direct indication of the law, without the participation of the will of the represented person, in the event that he is incapacitated. An example is the representation of minors by their parents. Their powers are based on the facts of paternity and maternity. Exactly the same role is played by trustees, adoptive parents and a number of similar legal facts with which the law connects the emergence of representation.

Features of this representation:

It arises regardless of the will of the person represented;

All powers of representation are determined directly by law;

The scope of possible powers is also determined by law.

Representation based on an agreement belongs to the third type. Such representation refers to the voluntary type of representation. It arises at the will of a second person - the represented. The person represented has the right to independently decide which person he wants to see as his representative, after which he enters into an agreement with him, which will define all the powers of the representative. This can be either an agency agreement or a power of attorney.

It should be correctly understood that voluntary representation arises not only at the will of the person represented, but also at the request of the representative. The emergence of voluntary representation without the consent of one of the 2 parties is not possible.

The fourth type is commercial representation

This type of representation is relatively new to civil law RF. The commercial type of representation is discussed in Art. 184 Civil Code of the Russian Federation. A commercial representative is considered to be an entrepreneur who independently makes transactions on behalf of entrepreneurs. Clause 1 Art. 2 of the Civil Code of the Russian Federation - “... Entrepreneurial is understood as an independent activity, carried out at one’s own peril and risk, aimed at making a profit from the use of property, the sale of goods, the performance of work or the provision of services...”. From this we can safely conclude that a commercial representative is none other than an entrepreneur. A commercial figure, as a rule, is necessary to carry out transactions with the obligatory need for specific knowledge, information, and business connections. Certain categories of transactions can generally be concluded exclusively by a person with a certain status or license (brokers, insurance agents).

This is a new type of representation for our civil law, which is mentioned in Art. 184 Civil Code of the Russian Federation. Commercial representative- always an entrepreneur who constantly and independently makes 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 improvement law enforcement 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 of entrepreneurial activity in Russia and the CIS. Collection of scientific articles. M., Moscow State University of 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 legal consequences These actions, if they are performed within the limits of the powers granted to the representative, arise directly for the represented and, if we are talking about a contract, the rights and obligations arising from the contract are directly transferred to the represented.

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. 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, the colloquial language has illegally assimilated economic representation, i.e. 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 a commercial representative office 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 on the market necessary for execution, or lack of the necessary funds from the debtor. 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 mandate 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 make "Intermediary business activity as an object of state regulation at the interregional level" // Coll. scientific articles Or.YuI 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

A commercial representative is a person who represents on behalf of entrepreneurs when they enter into contracts in the field of entrepreneurial activity (clause 1 of Article 185 of the Civil Code). But such representation will be of a commercial nature only if such a person is engaged in specified activities constantly and independently, that is, his activity is a form of entrepreneurship.

Commercial representation is a special type of voluntary representation. Its basis is an agreement concluded by the represented entrepreneur with a commercial representative. The contract is simple writing and it must contain clear indications of the powers of the commercial representative. If the agreement does not contain such instructions, then, in addition to the agreement, the basis for commercial representation is the power of attorney issued to the represented person. It is there that the scope of powers of the commercial representative is determined in this case.

A commercial representative has the right to simultaneously represent both parties to a concluded transaction, but only with their consent, as well as in cases provided for by law. In this case, the commercial representative is charged with the obligation to fulfill the instructions given to him by the parties with the diligence of an ordinary entrepreneur.

In the case of simultaneous representation of different parties to a transaction, the commercial representative has the right to demand payment of remuneration, the amount of which is determined by his agreement with the represented parties. In addition to paying remuneration, a commercial representative has the right to compensation for the costs incurred in executing the order. The Civil Code proceeds from the fact that those represented pay remuneration and reimburse expenses to the commercial representative in equal shares. A different procedure for payment of remuneration and reimbursement of expenses is also possible, but only by agreement between them.

A commercial representative is obliged to keep confidential information about trade transactions that has become known to him, and not only during their execution, but also after the execution of the order given to him.

The Civil Code provides that in certain areas of business activity, a commercial representative office may have features that are established by the relevant legislation (clause 4 of Article 185 of the Civil Code).

Power of attorney

1. A power of attorney is a written authority issued by one person to another for representation before third parties, certified in the manner prescribed by Art. 186 Civil Code. The representative provided can present written authority to carry out a transaction directly to a third party - a party to the future transaction.

A power of attorney is a unilateral transaction, that is, it expresses the will of only the person represented, in accordance with which the powers of the representative to carry out transactions and other legal actions with third parties are determined. For the relationship of the represented person with such persons, only those instructions that are enshrined in the power of attorney are significant. His other instructions not reflected in the power of attorney do not affect the validity of the transaction made by the representative with a third party. They affect only the relations of the represented person with the representative, based on a contract of agency or other agreement.

2. There are one-time, special and general (general) powers of attorney.

A one-time power of attorney is issued to carry out a transaction or other legal action that is of a specific one-time nature, for example, to receive money through a given postal order, to sell a residential building owned by the citizen indicated in it, etc.

A special power of attorney is issued to perform several similar legal actions within a certain period of time, for example, to receive a scholarship in January–March of a certain year.

A power of attorney to perform several different legal actions is called general. An example of such a power of attorney may be a power of attorney, the issuance of which is carried out in accordance with the rules of the Civil Code on a simple partnership agreement (agreement on joint activities). Article 914 of the Civil Code provides that in relations with third parties, the authority of a partner to make transactions on behalf of all partners is certified by a power of attorney issued to him by the other partners. As a rule, such a power of attorney is general (general).

3. The power of attorney must be made in writing: either simple or notarial. It cannot exist outside of written form.

Powers of attorney issued for transactions requiring a notarial form are subject to mandatory notarization, with the exception of cases provided for by legislative acts (clause 2 of Article 186 of the Civil Code); in the order of transfer of trust, except for the cases provided for in clause 4 of article 186 of the Civil Code (clause 2 of article 188 of the Civil Code); in cases directly provided for by the legislative acts of the Republic of Belarus. Thus, Decree of the President of the Republic of Belarus dated January 31, 2000 No. 30 “On notarization of a power of attorney for ownership, use and disposal of a vehicle” provides that a power of attorney issued by an individual– owner vehicle for possession, use and disposal by another person (Article 1).

Decree of the President of the Republic of Belarus dated June 12, 2006 No. 9 “On introducing amendments and additions to the Decree of the President of the Republic of Belarus dated March 20, 1998 No. 3 “On denationalization and privatization of state property in the Republic of Belarus” stipulates that the rights certified by shares acquired by citizens of the Republic of Belarus from the state for cash on preferential terms (at a price 20% lower than the nominal value) and in exchange for privatization checks “Property”, as well as those received in exchange for their shares in the property of rental and collective (people's) enterprises when they are transformed into joint-stock companies, can be transferred by proxy . Such powers of attorney are subject to registration with the republican body government controlled market valuable papers in the manner determined by the Council of Ministers of the Republic of Belarus in agreement with the President of the Republic of Belarus. Before this registration, the right of the person to whom the power of attorney has been issued to participate in the management of the joint-stock company cannot be exercised. In accordance with the Instructions on the procedure for registering powers of attorney providing for the transfer of rights certified by shares, approved by Resolution of the Council of Ministers of the Republic of Belarus dated August 30, 2006 No. 1093, such powers of attorney are registered by the territorial bodies of the Ministry of Finance for securities on the conditions specified in part 1 of subparagraph 1.12 clause 1 of the Decree of the President of the Republic of Belarus of March 20, 1998 No. 3 “On the denationalization and privatization of state property in the Republic of Belarus”

In accordance with paragraph 1 of Article 70 of the Law of the Republic of Belarus “On Notaries and Notarial Activities”, authorized officials, by whom the said Law understands authorized officials of local executive and administrative bodies and diplomatic agents of diplomatic missions of the Republic of Belarus and consular officials of consular offices of the Republic of Belarus.

Authorized officials of local executive and administrative bodies, who, by decision of these bodies, may be the head, his deputy, secretary or member of the local executive and administrative body, certify powers of attorney in those populated areas, in which there are no state notary offices and notary offices. Diplomatic agents of diplomatic missions of the Republic of Belarus, in the case of consular functions performed by diplomatic missions of the Republic of Belarus, and consular officials of consular offices of the Republic of Belarus, certify powers of attorney outside the Republic of Belarus.

The procedure for notarization of powers of attorney is established by the Instruction on the procedure for performing notarial actions approved by the Ministry of Justice of the Republic of Belarus dated October 23, 2006, No. 63, which, in particular, determines the conditions for certification of powers of attorney, the conditions for certification of a power of attorney issued in the order of subpoenaing, a power of attorney for transactions with certain types of property.

The Instructions on the procedure for performing notarial actions stipulate that a notary certifies powers of attorney according to the general rules for certifying transactions, which are set out in Chapter 3 of the Instructions; while observing the special rules set out in Chapter 12 of the same Instructions.

The power of attorney must indicate the place and date of its execution (signed), last names, proper names and patronymics (full name of the legal entity in accordance with the constituent documents) and the place of residence of the representative and the represented, the location and (or) legal address of the legal entity, and, in appropriate cases, the position held.

The notary certifies powers of attorney for transactions with certain types of property and other actions in accordance with the legislation regulating the relevant legal relations. In this regard, the Instruction on the procedure for performing notarial actions provides that a notary in a power of attorney for representation in relations regulated by the legislation of the Republic of Belarus on state registration real estate, rights to it and transactions with it, must indicate the relevant identification information about the represented, which can be both individuals and legal entities, and in the power of attorney for the sale of real estate, in addition to the identification information about the represented, must also indicate the location of the real estate, the price for which the representative has the right to sell it and other conditions for the sale of such property, or indicate in the power of attorney that the representative has the right to conclude an agreement for the sale of real estate at a price and on conditions at his discretion.

The Civil Code of the Republic of Belarus provides that, in addition to notaries, powers of attorney can be certified by the relevant officials specified in paragraph 3 of Art. 186 of the Civil Code, as well as the organization in which the principal works or studies, the organization that operates the housing stock at his place of residence and the administration of the inpatient medical institution in which he is being treated. At the same time, powers of attorney certified by the officials specified in clause 3 of Art. 186, the Civil Code equates to notarized powers of attorney.

The following powers of attorney are considered to be notarized:

1) military personnel and other persons undergoing treatment in hospitals, sanatoriums and other military medical institutions, certified by the heads of such institutions, their deputies for medical affairs, senior or duty doctors;

2) military personnel, and at deployment points military units, formations, institutions and educational institutions that train personnel in military specialties, in which there are no state notary offices and other bodies performing notarial acts, as well as powers of attorney for civilians, their families and members working in these units, formations, institutions families of military personnel, certified by the commanders (chiefs) of these units, formations or institutions;

3) persons in institutions executing punishment in the form of arrest, restriction of freedom, imprisonment, life imprisonment, or places of detention, certified by the heads of the relevant institutions executing punishment, or heads of administration of places of detention;

4) adult capable citizens in institutions social protection of the population, certified by the administrations of these institutions or the heads (their deputies) of the relevant social protection bodies (clause 3 of article 186 of the Civil Code, clause 4 of article 51 of the Law of the Republic of Belarus “On notaries and notarial activities”). The rules for certifying such powers of attorney are established by the Instruction on the procedure for certifying wills and powers of attorney equivalent to notarized ones, certifying the authenticity of signatures on documents, approved by Resolution of the Ministry of Justice of the Republic of Belarus dated February 19, 2002 No. 3.

Power of attorney to receive wages and other payments related to labor relations, to receive remuneration for authors and inventors, pensions, benefits and scholarships, payments to citizens in banks or non-bank financial institutions and to receive correspondence, including cash and mail, to perform other actions that do not require a notarized form of certification, can be certified also by the organization in which the principal works or studies, the organization that operates the housing stock at his place of residence and the administration of the inpatient medical institution in which he is being treated. Powers of attorney for citizens to receive payments from banks can also be certified by the bank in which the current (settlement) bank account is opened or a bank deposit is placed (clause 4 of Article 186 of the Civil Code).

A power of attorney on behalf of a legal entity is issued with the signature of its director, but instead of the director, another person has the right to sign it if he is authorized to do so by the constituent documents of the legal entity. Such a power of attorney must be sealed with the seal of this organization. A power of attorney on behalf of a legal entity based on state property or the property of an administrative-territorial unit, providing for the receipt or issuance of money and other property assets, in addition to the manager, is also signed by the chief (senior) accountant of this organization (clause 5 of Article 186 of the Civil Code).

4. The validity of the power of attorney, by virtue of the direct instructions of the Civil Code (clause 1 of Article 187), is limited to three years. This is the maximum period of its validity. The specific period is indicated in the power of attorney itself. If it is not indicated in it, the power of attorney remains valid for one year from the date of its execution. The power of attorney must necessarily contain an indication of the date of its execution, since it is from this date that its validity period is calculated. A power of attorney is void if it does not indicate the date of its execution, since the validity period of such a power of attorney cannot be determined.

A power of attorney certified by a notary, intended for performing actions abroad and not containing an indication of its validity period, remains valid until the person who issued it cancels it (clause 2 of Article 187 of the Civil Code).

5. Power of attorney – a personal document. It must contain the necessary details, including the last name, first name and patronymic (without abbreviations) and place of residence of the represented person and the representative.

A power of attorney to make a gift by a representative, in which the donee is not named and the subject of the gift is not indicated, is void (clause 3 of Article 547 of the Civil Code).

Acceptance of an inheritance through a representative is possible, but only if the power of attorney specifically provides for his authority to accept the inheritance (clause 1 of Article 1070 of the Civil Code).

A power of attorney can be issued on behalf of one or several persons, in the name of one person or several persons. A power of attorney on behalf of several persons can be issued only if the actions provided for by it concern the homogeneous interests of the persons who issued the power of attorney, and not each of them separately. Such, for example, is a power of attorney on behalf of several participants in common shared ownership for the sale of a residential building owned by them all.

6. The Civil Code provides that the person to whom the power of attorney has been issued must personally perform those actions that are provided for by his powers (clause 1 of Article 188). The establishment of this duty of the representative in the Civil Code is quite understandable if we keep in mind that representation is based on the personal trust relationship of the represented and the representative. However, for various reasons, personal performance of actions by a representative is not always possible, and a delay in the execution of an order may adversely affect the protection of the interests of the represented person. The Civil Code provides that a representative who finds himself in a difficult situation may entrust the performance of actions constituting his powers to another person. According to paragraph 1 of Art. 188 of the Civil Code, a representative has the right to resort to sub-power of attorney if such his right is directly provided for by the power of attorney or he is forced to do so by force of circumstances. In both cases, the representative must proceed from the fact that the sub-power of attorney is necessary to protect the interests of the person who issued the power of attorney.

A power of attorney issued by way of delegation must be notarized. An exception is made from this general rule for the cases provided for in paragraph 4 of Art. 186 Civil Code. A power of attorney issued by way of subrogation can be issued only for the remainder of the period specified in the main power of attorney and should not contain more rights than those granted under the main power of attorney.

A representative, having delegated powers to another person, must inform the represented person about this. The Civil Code did not establish a deadline for fulfilling this obligation. We believe that he should do this immediately, if there is a possibility for this, or within a period that allows the represented person to cancel the transfer of trust without prejudice to his interests. The representative who has resorted to sub-assignment is obliged not only to notify the represented person about it, but also to provide him with the necessary information about the person to whom the powers have been transferred. Failure to fulfill this obligation by a representative who has transferred powers to another person is the basis for holding him responsible for the actions of the person to whom he transferred powers as for his own (Clause 4 of Article 188 of the Civil Code).

In the event that a representative is forced to resort to devolution due to circumstances, he must provide the notary with evidence that such circumstances occurred, for example, a certificate of illness, about going on a business trip, etc.

7. The power of attorney is terminated on the grounds specified in paragraph 1 of Art. 189 Civil Code. Since the power of attorney is a fixed-term transaction, the expiration of the period terminates its validity. A one-time power of attorney is terminated by the completion of the action provided for by it.

Among the grounds for terminating a power of attorney are its cancellation by the person who issued the power of attorney and the refusal of it by the person to whom it was issued. The right of these persons to early termination of the power of attorney is due to the confidential nature of the relationship between them. They can exercise this right at any time and cannot waive this right, because the agreement to waive these rights is void. A person who issued a power of attorney and then canceled it is obliged to notify about the cancellation of the power of attorney not only to the person to whom it was issued, but also to third parties for whose representation the power of attorney was given, if they are known to him.

The next group of grounds for termination of a power of attorney consists of such legal facts as the termination of a legal entity and the death of a citizen acting as a principal and a representative. In addition to the death of a citizen, termination of a power of attorney entails declaring him dead, declaring him incompetent, partially capable or missing. In the event of a reorganization of a legal entity, its legal successors, and in the event of the death of a citizen, its heirs are obliged to notify of the cancellation of the power of attorney the persons to whom it was issued, as well as third parties known to them, for whose representation the power of attorney was given. Those rights and obligations in relation to third parties that arose as a result of the actions of the representative before he knew or should have known about the termination of the power of attorney remain in force for both the represented person and his legal successors. However, if the third party knew about the termination of the power of attorney or should have known about it, then the rule regarding the preservation of the rights and obligations mentioned above for the principal and his successors does not apply.

The representative and his deputy or their legal successors upon termination of the power of attorney are obliged to return the power of attorney and must do this immediately. Termination of a power of attorney also entails termination of sub-trust.

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 acts (the seller in retail trade, 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, as representatives legal entities Citizens who have reached working age can act in the sphere 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 from own name and itself acquires rights and obligations under them, which it subsequently transfers to its 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, 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 may 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 Russian Federation dated November 27, 1992 No. 4015-1 (Air Force, 1993, No. 2, Art. 56; NWRF, 1998, No. 1, Art. 4; 1999, No. 47, Art. 5622; 2002, No. 12, Art. 1093 ; No. 18, Article 1721; RG, December 17, 2003).

According to the general rule, paragraph 3 of 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 open joint-stock companies through a trade organizer 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. Various non-governmental international organizations and national public organizations Several standard agreements on this issue have been developed.

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

A commercial representative is one who independently and on an ongoing basis conducts representation on behalf of various types of entrepreneurs when they carry out transactions directly related to activities of a commercial and entrepreneurial nature.

The legislation gives a commercial representative the right to represent only one party in a transaction, or simultaneously both parties, if they have their consent. At the same time, he is obliged to act in the interests of each of the parties and strictly fulfill all instructions given by them.

Commercial representative is a multifaceted profession

Activities carried out by a commercial representative, i.e. Actually, commercial representation is characterized by such fundamental features as:

1. The activity is entrepreneurial in nature, because aimed at making a profit. Therefore, only commercial legal entities can engage in representation.
2. The specifics of representation in certain sectors of commercial activity are regulated by special acts of legislation.
3. Activities related to the conduct of commercial representation are carried out solely on the basis of a written agreement. special agreement. In most cases, these are contracts of commission or agency, modified in accordance with the specifics of the situation.

For the most part, commercial representation in various types of transactions is carried out in those areas where commercial representatives have the necessary specialized information, highly qualified knowledge and specific skills. In addition, the execution of certain types of transactions, as well as transactions with specific ones, is permitted only to entities with a special status.

These may be brokerage companies and independent brokers who have the appropriate status and carry out transactions (including in the interests of others) on commodity exchanges. Brokerage activities of entities that have the status of professional participants in the securities market can also be classified as commercial representation. In addition, insurance agents (individuals or legal entities) carrying out activities on behalf of and on behalf of the insurer can be considered commercial representatives.

In order to become a professional in trading and achieve excellent results, you need to acquire certain skills and develop a certain attitude towards the trading process. How to do this and what you need to become is explained in this video:

Commercial representation agreement

A written contract is required!

As mentioned above, activities related to commercial representation are carried out on the basis of a special agreement concluded in writing. In the vast majority of cases, the latter is used by orders or agency, as well as their various varieties, such as brokerage or service agreements.

The commercial representation agreement must establish the scope and essence of delegated powers, as well as the immediate procedure for their implementation. If the agreement does not specify powers, then the proper document on the basis of which the commercial representative receives his powers is an appropriately executed document.

A commercial representation agreement is of a reimbursable nature, since the principal is obligated to pay the representative an appropriate remuneration for the actions he performs. Exceptions are made in those cases when the contract contains a special indication that the agreement is free of charge.

If the mentioned indication is absent in the contract, but its provisions did not fix the amount of remuneration and did not determine its procedure, then the principal is obliged to pay for the completed orders an amount of money similar to that which is paid in similar circumstances for the same type of services.

The representative also has the right to receive compensation for all the costs that he incurred in the process of proper execution of the order. If the transaction was carried out simultaneously on behalf of several represented entities, then reimbursement of costs is distributed in equal shares, unless otherwise agreed by agreement between the mentioned entities.

Features of commercial representation

Commercial representative - legal activity

Commercial representation has a number of features characteristic of this particular legal institution. Such features include circumstances such as:

1. Commercial representation is precisely legal activities which is confirmed by such a circumstance as the execution of transactions by one entity in the interests of another.
2. The representative has the status of a counterparty in contracts, i.e. is an exponent of his own will, and not of the represented subject.
3. The activities of a commercial representative are professional character, i.e. it is carried out constantly and independently.
4. Legal relations arising between a commercial representative and the represented entity are based solely on a civil law agreement.

Since transactions take place exclusively in the field of entrepreneurial and commercial activity, a commercial representative is a person who has official status entrepreneur.
For transactions that were concluded by a commercial representative, rights and obligations arise in the person of the represented person immediately after the completion of this transaction.

Commercial representation is always a tripartite legal relationship, since it establishes a connection between three independent entities.

Responsibility of a commercial representative

Commercial representative - responsible activity

Since the activities carried out by a commercial representative are of an entrepreneurial nature and are carried out on the basis of a civil law type contract, it is subject to the rules of civil law that establish the rules applicable for violation of obligations.

In addition, the commercial representative is responsible for the actions performed by his employees and various third parties engaged by him to ensure the implementation of the activities stipulated by the contract.

Accordingly, when concluding an agreement on commercial representation, it is necessary to stipulate in as much detail as possible the rights and obligations of both the representative himself and the persons subordinate to him and establish their contractual liability. The law also allows for the possibility of concluding an agreement with a commercial representative.

The representative may be released from liability only in the event of force majeure circumstances. It should be noted that such circumstances cannot be considered, in particular, such as:

• Violation of the representative's partners of their duties.
• The debtor lacks the required financial resources.
• Non-presence on the market of goods required for proper execution stipulated by the contract of agency.

Benefits of using a sales representative

Commercial representative - an advantage for business activities

A legal instrument such as commercial representation has very obvious advantages, so the active use of this instrument makes it possible to ensure the efficiency of business activities and the achievement of economically beneficial results.

So, the advantages of commercial representation include, for example, the following:

• The use of a commercial representative in those circumstances when there is a need to open a branch in a certain territory allows you to avoid material and time costs associated with carrying out organizational and administrative measures to set up the latter and, accordingly, promptly begin commercial activities.
• Possibility of using financial self-sufficiency of a commercial representative, i.e. concluding with him an agreement under which the receipt of remuneration will directly depend on the results of his implementation of the activities stipulated by the agreement.
• The commercial representative is not bound by any legal relations of an employment nature with the represented one, due to the fact that his activities are carried out on the basis of a special civil law agreement. Thus, the resolution of all controversial relationships between the parties is regulated exclusively by the norms of civil law, and not labor law.
• Possibility of carrying out commercial representation of several parties simultaneously (if they have their consent) in the same .

So, as can be concluded from all of the above, the use of the services of a commercial representative is in an effective way ensure the most efficient commercial activities.

Expert lawyer's opinion:

Who a commercial representative is is explained quite clearly in the article. But, there is one big “but”! The article includes a video about a sales representative. Everything is stated correctly in it. And in the article too. We draw your attention to some subtleties and important details.

IN last years The profession of a sales representative has become widespread. What is the difference? Let's try to figure it out. A sales representative is an employee of a large trading enterprise, who performs certain functional duties in the territory assigned to him. Responsibilities may include any actions aimed at increasing the turnover of the parent company.

For example, in the region there are 37 retail outlets of the trading holding, which is located in Moscow. The responsibilities of a sales representative may include quality control and trade volume functions. We see that, in essence, the activities of a sales representative have nothing in common with a commercial representative. This is the regional manager of the company.

Also, the first is a full-time employee with an employment contract, the second is a business entity. He acts independently, in accordance with the terms of the commercial representation agreement. Our readers should not confuse these two people; they are completely different, although very similar.