Bidding in the form of a public offer. How to buy property from public offer auctions and where to get lots

• What kind of property can be bought from the auction on the public offer
• Procedure for conducting a public offer
• How to find and buy gold objects using the Sherlock Holmes method
• Where can you buy lots from the public

So, let's figure out how to buy property from a public auction, step by step.

Of course, for people with an economic or legal education, this issue will not be particularly interesting. But here is for those who are just starting to master subtleties of earning on such auctions the material will undoubtedly come in handy.

What kind of property can be bought from the auction on the public offer

A public offer usually sells:

• property in state or municipal ownership, put up for sale at a classic auction, but the auction for which was unsuccessful;
• confiscated assets of a person who owes money credit institution, or a company officially declared bankrupt.

Note that the implementation of the second option can be carried out only under the condition that the first and second auctions at the standard auction were unsuccessful or were declared invalid. This requirement is regulated by the legislation of the Russian Federation.

From the point of view of buying things at such auctions, they are very profitable, because the price moves in the opposite direction here. And buy, for example nice apartment at prices that are much lower than market prices, you can easily.

In order to properly conduct business at such events, it is important to know the order of their holding. The structure must be understood primarily in order to avoid mistakes in trading.

Procedure for conducting a public offer

1. Modern public offering auctions are conducted over the Internet. It is convenient and saves a lot of time.
2. The agency involved in the auction must inform about the auction through the media. The publication is carried out in the form of a notice, which indicates the most important information about the upcoming auction: the form of holding, a description of the property to be sold, information about the organizer, bankrupt, bankruptcy administrator, the starting price, the amount of the deposit, the main stages of the auction, the period of the auction.
3. The highest (starting) price for a lot must be lower than at the previous auction. The reduction is set in the range of 10-20%.
4. The deposit is transferred to the organizer of the auction in advance set time... The amount of the deposit can be influenced by the starting price, as well as the value of the goods.
5. Acceptance of applications for participation in the auction are accepted in a certain period. It usually lasts up to two weeks.
6. The question of the number of stages and their time interval is being resolved. For example, three periods of four days.
7. The most important setting is the so-called price reduction step. For example, at the end of each subsequent period, the price is reduced by 10%.
8. Each period can be used by a trader once to set his own price.
9. The winner of the auction is determined as follows. Within a specific stage, the winner is the one who proposes the highest price (I agree latest amendments in the legislation).
10. At the discretion of the organizers, the auction may end at the first stage, provided there is at least one application. Sometimes auctions are held in full and the winner is named at the end.

How to find and buy gold objects using the Sherlock Holmes method

More detailed review method, read this article: Sherlock Holmes Insolvency Bidding - Divorce or Working Auction Model?

Where can you buy lots from the public

If such auctions are constantly organized, then where you can see lots and form applications? Everything is simple enough. It was already mentioned above that bidding on a public offer is conducted in an electronic format.

There are special resources that collect announcements of such auctions from all over the country. Such sites are called aggregators. On them, the user can easily find a lot that he likes using a convenient filtering system.

In addition, you can always find offers on the sites trading platforms, at which the bankruptcy procedure is organized. For example, Sberbank-AST, Fabrikant, Lot-Online.

In addition, by law, all information about the auction published on Fedresurse and in the Saturday edition of the Kommersant newspaper.

This is the basic basic information about what is public offering... As for the intricacies of trading, they need to be studied in practice. You need to understand that experience comes with the number of transactions, so if you want to find a good offer and buy property at a bargain price, then start by choosing an aggregator and analyzing the market.

Prior to the entry into force of the amendments provided for by Law No. 432-FZ to Federal Law No. 127-FZ dated 26.10.2002 "On Insolvency (Bankruptcy)" (hereinafter referred to as the Bankruptcy Law), which amended paragraph 4, Art. 139 of the said law, the sale of the debtor's property through a public offer provided for the recognition as the winner of the auction - the participant in the auction, which was the first to submit within the specified time an application for participation in the auction containing a proposal for the price of the debtor's property, which is not lower than the initial sale price of the debtor's property established for a certain period of holding bidding.

In fact, the nature of the public offer was analogous to the acceptance of the offer, by analogy with Art. 438 of the Civil Code of the Russian Federation. The debtor, represented by the organizer of the auction, offered an unlimited number of persons to acquire the property at a price valid for a certain period of the public offer. If in a certain period no one “accepted the offer” at the agreed price, then the price was consistently reduced either until at least one person expressed a desire to acquire the property, or when the price dropped to the so-called “cut-off price”. At the same time, from the date of the determination of the winner of the auction for the sale of the debtor's property through a public offer, the acceptance of applications was terminated.

Despite the fact that the Law on Bankruptcy operates with the concept of "auction" in relation to a public offer, nevertheless, within its meaning, the public offer was not an auction. The concept of "bidding", as a way to conclude a contract, is not clearly defined in Art. 447 of the Civil Code of the Russian Federation. Nevertheless, it is possible to single out the main features of such a form of sale of the debtor's property as "auction". When conducting open bidding two basic features are: attraction maximum number participants and competition of price proposals, which allows the sale of property with maximum benefit. As for the public offer, before the relevant amendments entered into force, the public offer did not satisfy either the first or the second criterion. The maximum number of participants did not make sense, since the contract was concluded with the participant who first submitted the application. For the same reason, it was meaningless to talk about competition in price offers, since the contract was concluded at the price of the offer of the property, determined in advance by the organizer of the auction.

This opinion was confirmed jurisprudence , according to which the absence of the need to apply paragraph 9 of Article 110 of the Bankruptcy Law in order to attract as many buyers as possible in order to obtain the maximum result, since in this case total applications does not matter... At the same time, the provision was also confirmed that sale of property through a public offering is not a sale at auction within the meaning of Article 447 of the Civil Code of the Russian Federation and paragraph 5 of Article 110 of the Bankruptcy Law.

Prior to the amendments to the Bankruptcy Law, there was a practice according to which a number of requirements for the procedure for holding tenders by means of a public offer, provided for by the Bankruptcy Law, were not applied, which led to a violation of the rights of tenderers and placed them in an unequal playing field. In particular, the courts did not apply the provisions of par. 11, p. 8, art. 110 and the provisions of clause 9, art. 110 of the Bankruptcy Law, according to which the deadline for submission of applications for participation in the auction must be at least 25 working days from the date of publication and posting of the notice of the auction, as well as the obligation of the organizer of the auction to publish the message no later than 30 days before the date of the auction on the sale of property. This state of affairs led to the fact that the organizer of the auction could start accepting applications in the public offer the next day after the publication of the announcement of the auction, receive the first application on the very first day, stop accepting applications and conclude a property sale and purchase agreement. Complaints about such actions by the organizers of the auctions were repeatedly considered both by the courts and by the bodies of the Federal Antimonopoly Service. However, often, the courts did not find violations in the actions of the organizer of the auction. In particular, the courts indicated, what in the sale by means of a public offering, the validity period of the offer is decisive. Otherwise, the publication of the notice of the public offer no later than thirty days before the date of its placement will lead to an unreasonable delay in the bankruptcy proceedings and an increase in the corresponding costs. Federal Law of October 26, 2002 N 127-FZ "On Insolvency (Bankruptcy)" in the winding up procedure does not establish a 30-day period for posting a notice on the sale of the debtor's property through a public offer.

It was also impossible to define the concept of "bidding" in a public offer. And as a result, apply the provisions of paragraph 9, Art. 110 of the Bankruptcy Law, on not less than 30 days of publication before the date of the auction and to determine the deadline for accepting applications of at least 25 working days from the date of publication of the announcement of the auction, since the acceptance of applications could be completed at any time.

In fact, the situation was radically changed by the adoption of Law No. 432-FZ which amended paragraph 4, Art. 139 of the Bankruptcy Law, according to which in the event that several bidders for the sale of the debtor's property through a public offer submitted within the specified time period bids containing various proposals for the price of the debtor's property, but not lower than the initial sale price of the debtor's property established for a certain period of the bidding, the right to acquire the debtor's property belongs to the participant bidding the highest bidder for this property. We can say that this state of affairs has changed the nature of the public offer, equating it with bidding, since in this interpretation of determining the winner, the basic signs of bidding are laid: attracting the maximum number of participants in order to obtain the maximum price offer and competition of price offers.

In connection with the change in this procedure, it is necessary to take into account that all the above practice is likely to be revised in the opposite direction. Thus, the observance of a deadline of at least 25 working days for the possibility of filing an application for participation in the auction (paragraph 11, paragraph 8, article 110 of the Bankruptcy Law) already has a completely understandable meaning: ensuring the possibility of filing an application for participation in the auction as many interested parties. As well as the period of 30 days from the date of publication of the announcement of the auction, provided for in clause 9, art. 110 of the Bankruptcy Law. The specified terms, as in the case of bidding in the form of an auction, are primarily aimed at the applicant's ability to carry out the necessary registration procedures on the electronic platform, get acquainted with the property and submit an application. A formal approach to meeting the deadline of 25 working days for filing an application may be that in the first period of the public offering, the deadline for accepting applications can be defined as a period of at least 25 working days.

The question of the understanding of the term "bidding" in a public offer in accordance with the new procedure remains unclear. Understanding this term is important when determining the time period for publishing a notice of an auction at least 30 days before the date of the auction. However, here you can turn to analogies. According to par. 5, p. 13, art. 110 of the Bankruptcy Law, when conducting auctions with a closed form for submitting price proposals, the organizer of the auction publicly on the day, at the time and place specified in the notice of the auction, announces the price proposals submitted by the bidders. The organizer of the auction considers the proposals of the bidders on the price and determines the winner of the auction. It is often believed that “bidding” is an ongoing process. However, if you determine the moment in time when it is possible to "hold" the auction, then we can assume that "holding the auction" has a certain time frame. Both in an auction with a closed form for submitting price offers, and in a public offer. Until the moment when the bidders have not been determined, it is impossible to conduct a bidding. As well as it is impossible to carry them out before the public announcement of price offers and their comparison. That is, in fact, "holding trades" can be considered the procedure for comparing the submitted price offers.

In accordance with the new procedure for conducting auctions by means of a public offer, set out in clause 5.2. Order No. 495, all registered applications for participation in the auction are sent by the operator electronic platform to the auction organizer no later than thirty minutes after the end of the auction period. Thus, the organizer of the auction can consider the received applications for participation in the auction through a public offer, determine the participants in the auction and compare the price offers not earlier than the end of the first period of the auction. Therefore, the trading date can be considered the next day after the end of the first trading period.

It should be noted that an applicant can submit an application for participation in the auction within the “specified time limit”, which effectively means any time interval within the “specified time period” when the admission of applications is announced. Consequently, a situation in which this period can be reduced, or the results of trades can be summed up before the end of the "established period" is unacceptable. In contrast to the previous procedure for summing up the results of a public offer, when the results of the auction could be summed up at any time.

In conclusion, it should be noted that the provisions of par. 5, p. 6.1.3. Order No. 495 put an end to the disputes regarding the issue of choosing the winner of the auction by means of a public offer based on the receipt of all applications during all periods of the public offer or based on applications received during a certain period of the public offer. Order No. 495 established that applications for participation in the auction, received during a certain period of the auction, are considered only after consideration of applications for participation in the auction, received during the previous period of the auction, if, based on the results of consideration of such applications, the winner of the auction has not been determined.

When the assets of bankrupt persons are sold, such a procedure is carried out as the sale of property through a public offer. As in tenders or auctions, participants in the process compete with each other by increasing the price for which they are willing to purchase a particular object. However, in this case, you can start the fight with a much smaller amount compared to the initial cost of the item being sold. Let's consider what public offers for the sale of debtors' property are and how the implementation is carried out.

When are the auctions held

A public offering is a way of selling the property of a person who owes creditors at a lower value. Such a procedure is initiated when the debtors' property remains unrealized after the initial and repeated auctions. Accordingly, if the previous two auctions are declared invalid, then the auctions carried out by means of a public offer are appointed. Their main distinctive feature is the reduction in the price of the object through installed by the system time intervals. This allows the participants in the process to acquire real estate, land plots and other property at the most reduced cost.

There are 2 forms for submitting proposals

According to the statistics of the Ministry of Economic Development and Trade, more than 90% of primary and repeated trades are canceled. For this reason, the most common format for selling property of indebted individuals and legal entities is a public offer. This procedure differs from standard auctions in that at certain intervals the price of the object being sold does not increase, but decreases. At the same time, the amounts are sometimes reduced even by tens of millions of rubles.

The winner of public auctions is the one who declares participation in the process in due time and offers a price higher than the original selling price of the lot. When several citizens submit applications, the right to acquire the property of the debtor passes to the participant who offered the maximum price for the item being sold. If two or more persons offer the same amount, the item will be transferred to the first person to apply for participation. When the winner is determined, the acceptance of applications ends.

As for the purpose of holding public auctions, they are organized to satisfy creditor claims. The proceeds from the sale of things are used to pay off the debt incurred by the former owner of the property to counterparties. At the stage of external management executive agency can fully sell the property and, at the expense of the money received, return the debts to creditors in order to restore the solvency of the debtor.

Olga Aleksandrovna Belyaeva - Leading Researcher of IZiSP, Candidate of Legal Sciences.

As you know, tenders (auctions, tenders) are an inevitable consequence of market relations, when there are no firmly fixed prices... According to S.E. Zhilinsky, the main purpose of any auction is to establish objective prices for goods (works, services)<1>... It would be more accurate to say that tenders are used in many respects in order to exclude the influence of sellers and buyers on the formation of the price of property, works or services. In determining the price lies the economic function of the auction, while from a legal point of view, they remain one of the ways to conclude a contract.

<1>See: Zhilinsky S.E. Business law (legal basis entrepreneurial activity): Textbook for universities. 5th ed., Rev. and add. M., 2004.S. 402.

The auction demonstrates the optimal combination of the economic and legal functions of the auction, because it is aimed not only at concluding an agreement with the winner of the auction (legal aspect), but also at determining the "best" price of such an agreement ( economic aspect) <2>... V Lately auctions are very idealized, they are presented as an advanced way of determining the market price of any property, while with low demand, auctions can turn into a formalized and inconvenient procedure. "Small demand" leads to the recognition of the auction invalid when it does not achieve its main goal - the conclusion of a sale and purchase agreement or other agreement. In paragraph 5 of Art. 448 of the Civil Code of the Russian Federation notes only one reason for declaring the auction invalid: the receipt of one bid by the auction organizer. How the organizer of the auction should act after that is not determined by the norms of the Civil Code of the Russian Federation. This issue is resolved in acts of special legislation in relation to that area. public relations where bidding was used. Moreover, a unified approach is not observed: in some cases, special acts determine the maximum number of possible trades (first, repeated, etc.), in others they provide for a transition to other procedures for concluding an agreement, like bidding based on the principles of competition.

<2>Russian legislation now definitely gravitates towards the widespread use of auction procedures. Traditionally, auctions are used in the course of enforcement proceedings, the sale of the subject of the mortgage, for the sale of the debtor's property in the course of bankruptcy. There are also atypical phenomena, such as: auctions for the transfer of rights to a unified technology (Articles 1547, 1548 of the Civil Code of the Russian Federation, Federal Law of December 25, 2008 N 284-FZ "On the transfer of rights to unified technologies").

In this regard, it is interesting to analyze such a method of concluding an agreement as "sale of property through a public offering", the grounds and scope of its application, and its distinctive features in comparison with an auction. Such an analysis is necessary in order to prevent confusion of similar procedures for concluding an agreement, incorrect application of legal norms in the event of a dispute resolution.

Through a public offer, the following can be sold: 1) state or municipal property after the auction for its sale has not taken place; ( bankruptcy) ") (hereinafter referred to as the Bankruptcy Law).

Note that the scope of the sale by means of a public offer is not limited to the named cases, and in practice this procedure for concluding an agreement is actively used by various business entities.

General rules for the sale of property through a public offering current legislature does not contain, the provisions of the Federal Law of December 21, 2001 N 178-FZ "On the privatization of state and municipal property" (hereinafter - the Law on Privatization) and the Law on Bankruptcy in terms of regulating this procedure are not identical.

Privatization tenders can be held only once, no repeated tenders should be held. Moreover, the Law on Privatization does not provide for any consequences of a failed privatization tender. If the privatization auction is declared invalid, then in the future the property must be sold through a public offer (Article 23 of the Privatization Law). Thus, the sale of property through a public offering follows the annulment of the first and only privatization auction.

This provision of the Privatization Law is not always correctly interpreted by the courts when resolving disputes related to the recognition of auctions as invalid. For example, the FAS of the Far Eastern District noted that the Law on Privatization does not prohibit the owner's re-putting up for auction during the failed first auction, therefore it is not necessary to sell the property through a public offer after the first failed auction trades <3>... This position of the court seems to be very controversial, since the absence in the Law on Privatization of permission to hold a repeated auction should be considered as a prohibition on such an action. This conclusion is due to a certain specificity of the legislation on privatization: although the privatization process is based on many principles of civil law, it still has an administrative and legal character.<4>.

<3>See: Resolution of the Federal Antimonopoly Service of the Far Eastern District of February 20, 2007 N F03-A51 / 06-1 / 5216 in case N A51-10740 / 2006-2-218 // SPS "ConsultantPlus".
<4>See: O. A. Belyaeva. Challenging the privatization auction // Civilist. 2008. N 1.S. 50.

The provisions of the Law on Privatization contain a wide range of tools for the sale of state and municipal property. The sale can be carried out in stages using established by law procedures: auction - sale of property through a public offering - sale of property without declaring the price. Each subsequent procedure is applied if the previous one was unsuccessful, i.e. the property was not sold (privatized). In particular, following a failed auction, it is illegal to sell state or municipal property without declaring the price, while skipping the sale procedure through a public offer.

Auction and sale by public offering are independent methods of privatization, although they have a number of common features. These procedures are carried out by the same seller in relation to the same property, and these procedures are carried out if the previous privatization method did not justify itself, i.e. property has not been removed from state (municipal) ownership<5>.

<5>On the relationship between the auction and the sale of state or municipal property by means of a public offer, see also: Commentary on judicial and arbitration practice. Issue 16 / Ed. V.F. Yakovleva. M., 2009.S. 177 - 189.

Sale by means of a public offer is a public offer (clause 1 of article 23 of the Privatization Law, clause 2 of article 437 of the Civil Code of the Russian Federation). In turn, the registered application is the acceptance of the public offer (acceptance) on the conclusion of the contract for the sale of state or municipal property<6>... Here there is a manifestation of the principle of "mirror correspondence" of the acceptance to the offer, which is adhered to by domestic law, requiring that the acceptance be complete and unconditional, and recognizing the acceptance on other conditions as a counter-offer (Articles 438, 443 of the Civil Code of the Russian Federation). "Mirror compliance" means that the contract can be concluded only with full coincidence of the will of the parties, ie. upon reaching full agreement on all the terms of the contract.

<6>In clause 6 of the Regulation on the organization of the sale of state or municipal property through a public offer, approved. Decree of the Government of the Russian Federation of July 22, 2002 N 549, specifies that the application must contain an indication that the applicant fully and unconditionally accepts the public offer for the sale of property, is familiar with the draft contract for the sale of property, published simultaneously with the information message, and undertakes to conclude an agreement at the offer price specified therein.

M.I. Braginsky accurately noted that "of the two constitutive signs of trading - publicity and competition - only one is preserved when selling property through a public offer - publicity. In this case, there is no sign of competition."<7>... V.V. Dolinskaya also emphasizes that it is precisely the presence of an adversarial element that the conclusion of an agreement at an auction differs from the usual way of arising contractual obligations by accepting an offer.<8>.

<7>Braginsky M.I. Competition. M., 2005.S. 44.
<8>See: V.V. Dolinskaya Bargaining: general characteristics and types // Law. 2004. N 5.S. 3.

Of course, these judgments are partly correct. But, in my opinion, a certain competitiveness of a public offer is still inherent, and therefore this procedure is in a sense similar to an auction. Competitiveness is expressed here not in the offer of the highest price, but in the speed of submission of the application, since the priority right to conclude a property sale and purchase agreement is given to the person who is the first to offer to pay the price of the initial offer for it.<9>... Competitiveness in the sale by means of a public offering potential buyers, of course, minimized, because this method of sale is used only when the auction did not take place, for this reason, the procedure for the sale of property is significantly simplified.

<9>The price of the initial offer is set not lower than the initial price specified in the information message on the sale of property at the auction, which was declared invalid (paragraph 2, clause 2, article 23 of the Privatization Law).

Nevertheless, there are situations that clearly demonstrate the adversarial nature of the sale of property through a public offering. Thus, it is not uncommon for no applications to be submitted for a privatization auction, and during the procedure for selling property through a public offer, a queue of applicants is lined up to the seller. It is interesting that competition between two or more potential buyers of state (municipal) property makes it impossible to objectively determine the application that should be registered, since the regulatory procedure for conducting a sale through a public offer in such a situation is not defined. By and large, in such a case, the first application should be accepted from the representative who actually managed to be the first to enter the premises (room) for accepting applications and be the first to put his application on the desk of the registrar (representative or employee of the seller).

It is clear that the use of one or another method of privatization should pursue the goal of selling property at the most favorable price for the seller and adequate to the state of the market. But in reality it turns out that the presence of several applicants for the acquisition of property in itself does not yet indicate the illegality of the sale of state or municipal property through a public offer, if initially there were conditions for choosing this method of privatization (recognition of the previously appointed auction invalid). Therefore, the statement about the need for a repeated auction due to the presence of several buyers of property will not be based on the norms of the Privatization Law.

At the same time, the fact that there are several potential buyers clearly indicates that such a privatization method as selling by public offer does not correspond to the level of commercial demand for property and inevitably leads to the alienation of property at a lower price.

Consequently, the presence of several applicants for the acquisition of state or municipal property subject to sale is a prerequisite for such a method of privatizing state property as an auction (competition). Therefore, as the judicial and arbitration practice in this category of disputes shows, the Privatization Law in this part needs to be improved.<10>.

<10>For disputes related to the determination of the first applicant for filing an application, see: Resolution of the Federal Antimonopoly Service of the North-West District of March 10, 2009 in case No. A26-1528 / 2008; Resolution of the Federal Antimonopoly Service of the Moscow District of December 21, 2006 N KG-A40 / 12078-06 in case N A40-4837 / 06-48-17, etc. // SPS "ConsultantPlus".

As for the use of a public offer in the course of bankruptcy, the sale of the debtor's property at the stage of external management is carried out through the first and repeated auctions (clause 18 of article 110 of the Bankruptcy Law). The bankruptcy law does not describe the possible actions of the external manager in the event that both the first and the repeated tenders do not take place due to the complete absence of applications from applicants. Therefore, it should be assumed that unsuccessful re-bidding during the period of external management should mean a fundamental refusal of the meeting (or committee) of creditors from the sale of the debtor's property as such.

At the same time, it is impossible to refuse to sell the debtor's property during the bankruptcy proceedings, since in any case the bankruptcy administrator needs to collect funds for settlements with creditors. Therefore, if the auction does not take place twice in the course of bankruptcy proceedings (neither the winner of the auction, nor the second participant, nor sole participant do not conclude a sale and purchase agreement, or not a single application will be submitted to the auction), the liquidator must sell the debtor's property through a public offer.

The bankruptcy administrator, publishing a notice of the sale of property through a public offer, is obliged to inform about the initial sale price, the amount and periods of its successive decline. If no applications for the purchase of property are received, the price is reduced in the manner prescribed in the message, and a new waiting period for applications from interested parties begins. The buyer is the one who is the first to submit an application for the purchase of property at a price that is not lower than the initial one in the given period. Unlike the privatization legislation, the Bankruptcy Law does not provide for the so-called cut-off price (the minimum price at which the privatized property can be sold). It can be concluded that the analogue of the "cut-off price" is the minimum sale price determined by the debtor's governing bodies. However, there is also the opposite position. Thus, the FAS of the North Caucasian District noted that the legislation does not provide for the coordination of the minimum sale price of property not sold at auction and subject to sale through a public offer with the debtor's management bodies.<11>.

<11>See: Resolution of the Federal Antimonopoly Service of the North Caucasian District of April 10, 2009 in case N A32-15196 / 2007-60 / 413-B.

The need for a clear distinction between auction and sale through a public offering is due to a number of reasons. Thus, in judicial and arbitration practice there is no uniform approach to the consideration of such disputes. In some cases, the courts reasonably refuse to qualify a sale through a public offering as an auction<12>; in others, they consider disputes related to this procedure, according to the rules established for challenging tenders<13>.

<12>See: Resolution of the Federal Antimonopoly Service of the Moscow District of August 25, 2009 N KG-A40 / 8030-09 in case N A40-79728 / 08-73-270.
<13>See: Resolution of the Federal Antimonopoly Service of the Volgo-Vyatka District of October 20, 2008 in case No. A82-11517 / 2007-56.

In addition, the literal wording of paragraph 4 of Art. 139 of the Bankruptcy Law sounds like "an auction for the sale of the debtor's property through a public offering." The regulation of this procedure in the Bankruptcy Law is a reference, almost all provisions of Art. 110 of the Law on Bankruptcy, which regulates precisely the procedure for holding auctions.

It seems that this is not an entirely correct approach, selling by means of a public offering is not a type of auction, if only because it does not correspond to many formal characteristics of the auction.<14>.

<14>It is interesting to note that the sale of property through a public offer is mentioned in the legislation of the Republic of Uzbekistan, in which there is also a widespread confusion of concepts. In particular, in the Resolution of the Cabinet of Ministers of the Republic of Uzbekistan dated April 18, 2003 N 188 "On measures to increase the efficiency of the ongoing restructuring and financial recovery of economically insolvent enterprises" (ISS "Legislation of the CIS countries"), the sale of property on the basis of a public offer is considered an excellent procedure from auction trading, in another called direct trading subject to a public offer or a direct agreement on the terms of a public offer. In the Republic of Moldova, sale by means of a public offer is a method of privatization, in which state shares are put up for sale to citizens of the Republic of Moldova for a specified period at a fixed price through financial institution having a network of branches on the territory of the Republic (clause 2 of the Decree of the Government of the Republic of Moldova of April 8, 1998 N 396 "On approval of the Regulation on the sale of shares through a public offer" // ISS "Legislation of the CIS countries").

First, the auction, both in the process of privatization and in the course of bankruptcy, is carried out with the obligatory payment of deposits by applicants for participation in it. The sale of property through a public offering does not provide for the collection of deposits. The reason for this is quite simple. Holding an auction is a rather lengthy process and consists of the following stages: notification of the auction - holding an auction and determining its winner - formalizing the results of the auction - concluding an agreement with the winner. The condition for the admission of the applicant to participate in the auction, among other things, is the timely payment of the deposit. When selling property through a public offer, the comparison of applications is not carried out, since the procedure is terminated at the moment of registration of the first application (acceptance of the public offer). The advance payment of the deposit money does not coincide with the price of the initial proposal, so it does not make sense.

Secondly, the auction is a "face-to-face" procedure. The auction, held with the submission of bids in an open form, assumes the joint presence of participants at the auction to verbally communicate their price bids to the auctioneer. If the price offers are submitted by the auction participants in a closed form (in sealed envelopes), then the auction is not "jointly present" by the participants themselves, but by their closed written offers. Simultaneous opening of envelopes on the day of the auction is aimed at comparing these offers and determining the best one.

When selling property through a public offering, bids do not compete with each other either orally or when they are simultaneously announced. Even if we assume that there will be two or more participants in this procedure, it will take place in "correspondence" form. The algorithm of its implementation will be as follows: message about the sale - application - registration of the application - conclusion of the contract; or: notification of sale - application - refusal to register the application - the next order in sequence - conclusion of an agreement. In any case, applications are not considered jointly, but only in order, i.e. the subsequent application is considered by the organizer of the procedure only on condition of refusal to register the previous application.

Thirdly, the auction is held in strict accordance with the conditions that were previously announced in the newsletter. The fundamental condition of the auction is the initial price of the property, which must be increased by the participants during the auction. If one application is submitted for participation in the auction, or no applications are submitted, the auction is declared invalid. In other words, the procedure ends before it starts, the auction is announced, but not held. The organizer does not have the right to change the conditions of the auction in order to stimulate potential bidders to submit bids.

In turn, the sale of property through a public offer due to the lack of applications does not end. It is divided into periods, after each of which the offer price is successively reduced by a predetermined amount<15>... Therefore, the acceptance of a public offer is an application for the acquisition of state or municipal property at the price established in the current period.

<15>In the course of privatization, the period of successive price reductions should be at least three days (subparagraph "a" of clause 3 of the Regulation on organizing the sale of state or municipal property through a public offer, approved by Decree of the Government of the Russian Federation of July 22, 2002 N 549), for practice, as a rule, the price is reduced weekly. At the stage of bankruptcy proceedings, this period is determined by the meeting (or committee) of creditors (clause 7 of article 110 of the Bankruptcy Law).

Fourth, when publicly offering state (municipal) property, the right to acquire it belongs to the first applicant, so the best price is always the price of the initial offer. In the course of the auction, on the contrary, the highest price is revealed, determined by the results of the competition (competition, competition) of auction bids. If the auction is held with the submission of quotations in an open form, first, the participants by raising their cards confirm the initial price. They then declare their own prices, increasing them in accordance with the auction step or by announcing the price in a multiple of the auction step. If the auction is conducted using sealed envelopes, then the price offer of any participant is equal to or higher than the initial sale price<16>.

<16>See: Regulation on the organization of the sale of state or municipal property at auction, approved. Decree of the Government of the Russian Federation of August 12, 2002 N 585 (paragraphs 15, 16).

However, in this part, the provisions of the Bankruptcy Law differ from the privatization legislation. The fact is that the application for the acquisition of the debtor's property through a public offer does not coincide with the price of the initial offer, it must be higher than it, although it has not been established how much higher. However, there is no price competition between the bidders, since the acceptance of the first application means the end of the sale of the property through a public offering. In other words, it is hardly possible to consider an application for the acquisition of property as an acceptance, since it does not coincide with the price stated in the offer (public offer). It should be noted that in legal science there has been a departure from the rigid formula of "mirror compliance of the acceptance with the offer", which is criticized as not meeting the interests of modern civil turnover and significantly burdening the procedure for concluding an agreement<17>.

<17>See: Kucher A.N. Theory and practice of the pre-contractual stage: the legal aspect. M., 2005.S. 159, 164; Puginsky B.I. Commercial law in Russia. M., 2000. S. 134. The Concept for the development of civil legislation (approved by the President of the Russian Federation on October 7, 2009 // Bulletin of the Supreme Arbitration Court of the Russian Federation. 2009. N 11) notes the need for more flexible and differentiated legal regulation of entrepreneurial relations in terms of allowing acceptance for other conditions.

Suppose, in the current period, the starting selling price is 1 million rubles. Today the bankruptcy commissioner received an application for the purchase of property in the amount of 1.1 million rubles. Therefore, the sale by public offering must be stopped. Where is the guarantee that the next day the manager will not receive an application in the amount of 1.5 million rubles. or more? In my opinion, the provisions of the Bankruptcy Law in this part are inconsistent. Differences in price offers are a prerequisite for the auction, especially since the Bankruptcy Law also mentions "the winner of the auction for the sale of the debtor's property through a public offer." Although there certainly cannot be a "winner" in this procedure for the simple reason that no comparison of price bids is made, the procedure is terminated with the acceptance of the first bid. Perhaps we can talk about a victory over some hypothetical rivals who simply did not have time to appear to the manager with their orders.

In this regard, the approach of the Privatization Law seems to be more successful: a public offer is a public offer, and an application for the acquisition of property is an acceptance of a sale and purchase agreement. In this case, the organizer of the procedure is not bound by doubts about the possible higher purchase price of the property.

By the way, the previous rules on the sale of the debtor's property in the course of external administration were more similar to an auction than the current provisions of the Bankruptcy Law<18>... So, if the auction did not take place three times, the meeting (or committee) of creditors could instruct an external manager to sell the debtor's property through a public offer. In this case, the manager published a message about the sale and within one month collected the received applications for the acquisition of property. Then, based on the results of comparing these orders, the manager determined best price, in accordance with which a sales contract was concluded with her applicant. Thus, as an element of comparing price offers, albeit without any formalities typical for an auction, the public offering of the debtor's property was in some way similar to an auction.<19>.

<18>We are talking about Art. 110 of the Bankruptcy Law before setting it up in new edition in accordance with Federal law dated December 30, 2008 N 296-FZ.
<19>See also: Belyaeva O.A. New rules for trading in the course of bankruptcy // Economy and Law. 2009. N 8.P. 101 - 108.

The methods of concluding a contract in modern civil circulation are distinguished by a significant variety; adversarial nature in its various manifestations may be inherent not only in bargaining, but also in other mechanisms for concluding an agreement. Comparison of the auction procedure with the sale of property through a public offer demonstrates not only the need for their consistent differentiation in law enforcement practice, but also the feasibility of modernizing the provisions of Art. 139 of the Bankruptcy Law. It seems unacceptable that the same procedure in the case of privatization and in the case of bankruptcy proceedings is currently carried out according to different rules. In my opinion, the optimal is legal regulation sale of property through a public offering, given in the Privatization Law.

Bibliographic list

Belyaeva O.A. New rules for trading in the course of bankruptcy // Economy and Law. 2009. N 8.

Belyaeva O.A. Challenging the privatization auction // Civilist. 2008. N 1.

Braginsky M.I. Competition. M., 2005.

Dolinskaya V.V. Trades: general characteristics and types // Law. 2004. N 5.

Zhilinsky S.E. Entrepreneurial law (legal basis for entrepreneurial activity): Textbook for universities. 5th ed. M., 2004.

Kucher A.N. Theory and practice of the pre-contractual stage: the legal aspect. M., 2005.

26. If the winner of the sale of property evades or refuses to conclude a contract for the sale of property within the specified period, he loses the right to conclude the said contract and the deposit is not returned to him.

In the event that an agent or legal entities specified in paragraph three of clause 2 of these Regulations are involved, the advance of the winner, who has lost the right to conclude a property sale and purchase agreement, must be transferred by the agent or the specified legal entities, respectively, in the prescribed manner to the budget of the corresponding level of the budget system Russian Federation within 5 calendar days from the date of expiry of the period established for the conclusion of the contract for the sale of property.

27. The responsibility of the buyer in the event of his refusal or evasion of payment for the property within the established time frame is provided for in accordance with the legislation of the Russian Federation in the contract for the sale of property.

28. An informational message on the results of the sale of property is posted on the official website on the Internet in accordance with the requirements established by the Federal Law "On the Privatization of State and Municipal Property", as well as not later than the working day following the day of summing up the results of the sale of property, is posted on the seller's website on the Internet.

Position
on the organization of the sale of state or municipal property without declaring the price
(approved by the decree of the Government of the Russian Federation of July 22, 2002 N 549)

With changes and additions from:

September 15, December 29, 2008, January 26, 2010, March 3, 2012, April 3, 2015, May 16, 2016, September 26, 2017

I. General Provisions

1. This Regulation determines the procedure for organizing the sale of property owned by the Russian Federation (hereinafter referred to as property) without declaring a price, summing up the sale of property without declaring a price (hereinafter referred to as sale) and concluding a property sale and purchase agreement.

With regard to the organization of the sale of property owned by the constituent entities of the Russian Federation and in municipal ownership, summing up the sale results and concluding contracts for the sale and purchase of the said property with buyers, this Regulation is approximate.

Organization of sale without price announcement land plots, objects of socio-cultural and communal services and the transfer of these objects to the ownership of buyers is carried out taking into account the specifics established by the legislation of the Russian Federation on privatization for these types of property.

2. The organization of the sale of property is carried out by the Federal Agency for State Property Management, the Ministry of Defense of the Russian Federation (in relation to the released military property of the Armed Forces of the Russian Federation) or federal bodies executive power, which provides for military service (in relation to the released movable military property) (hereinafter referred to as the seller).

By the decision of the Government of the Russian Federation, the organization of the sale of the privatized federal property and (or) the performance of the functions of the seller on behalf of the Russian Federation shall be performed in accordance with the established procedure legal entities acting in accordance with the agency agreement (hereinafter referred to as the agent).

3. The seller in the process of preparing and carrying out the sale of property:

a) sets the deadline for accepting applications for the acquisition of property (date and time of the beginning and end of accepting applications), as well as the date for summing up the results of the sale of property;

b) organizes the preparation and placement of information messages on the sale of property in the information and telecommunication network "Internet" (hereinafter - the "Internet" network) in accordance with the requirements established by the Federal Law

c) accepts applications from legal and individuals for the acquisition of property (hereinafter referred to as respectively - applications and applicants), as well as the attached proposals for the purchase price of property and other documents according to the inventory submitted by the applicant;

d) keep records of applications and proposals for the purchase price of property by registering them in the manner prescribed by the seller;

e) notifies the applicant of the refusal to consider the application filed by him and the proposal on the purchase price of the property or recognizing it as the buyer of the property;

f) enters into a property sale and purchase agreement with the buyer;

g) makes settlements with the buyer;

h) organizes the preparation and placement of information messages on the results of the sale of property on the Internet in accordance with the requirements established by the Federal Law "On the Privatization of State and Municipal Property" and this Regulation;

i) ensures the transfer of property to the buyer and takes the necessary actions related to the transfer of ownership of it;

j) performs other functions provided for by the Federal Law "On the Privatization of State and Municipal Property" and this Regulation.

4. The functions provided for in clause 3 of these Regulations are the exclusive functions of the seller and cannot be transferred to other persons, with the exception of cases provided for by the legislation of the Russian Federation.

II. The procedure for organizing the acceptance of applications and proposals for the purchase price of property

5. Applications with all the documents attached to them are sent to the seller at the address indicated in the information message, or submitted directly at the place of acceptance of applications.

The seller accepts applications within the period specified in the information message.

The deadline for accepting applications must be at least 25 calendar days. The date of summing up the sale of the property determined by the seller is indicated in the information message.

6. The application form is approved by the seller and is provided in the information message.

The application must contain the obligation of the applicant to conclude a sale and purchase agreement for the property at the price offered by him.

A proposal for the purchase price of the property is attached to the application in a sealed envelope. The purchase price of the property proposed by the applicant is indicated in figures and in words. If different prices are indicated in figures and in words, the price indicated in words is taken into account.

The applicant has the right to submit only one proposal for the purchase price of the property.

The application is also accompanied by documents according to the list specified in the information message, and a list of the attached documents in duplicate, one of which remains with the seller, the other, with the seller's mark on the acceptance of the application and the documents attached to it, with the applicant.

7. When accepting the application, the seller:

a) certifies the identity of the applicant or his authorized representative and verifies the proper execution of the document certifying the right of the authorized representative to act on behalf of the applicant;

b) examines applications with the documents attached to them for their compliance with the requirements of the legislation of the Russian Federation.

8. The seller refuses the applicant to accept the application if:

a) the application is submitted after the deadline for accepting applications specified in the information message;

b) the application is submitted by a person not authorized by the applicant to carry out such actions;

c) the application was executed in violation of the requirements established by the seller;

d) not all the documents provided for by the information message are presented, or they are not properly executed;

e) the submitted documents do not confirm the applicant's right to be the buyer of the property in accordance with the legislation of the Russian Federation.

The specified list of grounds for refusal to accept the application is exhaustive.

The seller's employee, who accepts the documents, makes on the copy of the list of documents remaining with the applicant, a mark on the refusal to accept the application, indicating the reason for the refusal and certifies it with his signature. An unaccepted application with the documents attached to it is returned on the day of its receipt by the seller to the applicant or his authorized representative against receipt or by mail ( by registered mail).

9. The seller registers the accepted bids and proposals for the purchase price of the property in the register of bids, assigning a number to each bid and indicating the date and time of its receipt.

The registered application is an offer (offer) received by the seller from the bidder, expressing his intention to consider himself to have entered into a contract for the sale and purchase of property with the seller at the purchase price offered by the bidder.

The applicant does not have the right to withdraw the registered application, unless otherwise provided by the legislation of the Russian Federation.

III. Procedure for summing up the results of the sale of federal property

10. Based on the results of consideration of the submitted documents, the seller makes a separate decision on the consideration of proposals for the purchase price of the property for each registered application. This decision is drawn up by a protocol on the results of the sale of property in the manner prescribed by these Regulations.

11. To determine the buyer of the property, the seller opens envelopes with offers on the purchase price of the property. When opening envelopes with proposals, the applicants who submitted them or their authorized representatives may be present.

d) information on the considered proposals on the purchase price of the property with an indication of the applicants who submitted them;

e) information about the buyer of the property;

f) the purchase price of the property offered by the buyer;

g) other necessary information.

14. Notices of refusal to consider the bid submitted by the bidder on the purchase price of the property and on the recognition of the bidder as the buyer of the property are issued, respectively, to the bidders and the buyer or their authorized representatives against receipt on the day of summing up the sale of the property or sent to their address by registered mail the next day after summing up the sale of the property day.

15. If, within the time period for accepting applications specified in the information message, no application has been registered or, based on the results of consideration of registered applications, not a single proposal for the purchase price of property has been accepted for consideration, the sale of property is declared invalid, which is recorded in the protocol on the results of the sale of property. ...

15.1. An information message on the results of the sale of property is posted in accordance with the requirements of the Federal Law "On the Privatization of State and Municipal Property" on the official website of the Russian Federation on the Internet for posting information on the auction, determined by the Government of the Russian Federation, as well as no later than a business day, following the day of summing up the sale of the property - on the seller's website on the Internet.

IV. The procedure for concluding a contract for the sale of property, payment for property and its transfer to the buyer

16. The contract of sale and purchase of property is concluded within 5 working days from the date of summing up the sale results.

17. The contract of sale and purchase of property must contain all the essential conditions provided for such contracts The Civil Code Of the Russian Federation, the Federal Law "On the Privatization of State and Municipal Property" and other regulatory legal acts Russian Federation.

Funds in payment for the privatized federal property in the amount of the purchase price proposed by the buyer are sent in the prescribed manner to federal budget to the account specified in the information message on the sale of property, within the time frame specified in the property sale and purchase agreement, but not later than 30 working days from the date of its conclusion.

If an agent is involved to perform the functions of a seller of privatized federal property, the Federal Agency for State Property Management shall send to the agent no later than 3 working days from the date of receipt Money to the account specified for payment of federal property, an extract from the specified account.

When selling property that is in the state ownership of the constituent entities of the Russian Federation or municipal property, the procedure and terms for transferring funds as payment for the privatized property to the budget of the constituent entity of the Russian Federation or to the local budget are determined in accordance with laws and other regulatory legal acts of constituent entities of the Russian Federation or legal acts of local self-government bodies.

In the case of the provision of an installment plan, payment for the property is carried out in accordance with the decision on the provision of an installment plan.

The contract of sale provides for the payment of a penalty by the buyer in case of his evasion or refusal to pay for the property.

18. If the buyer avoids concluding a contract for the sale and purchase of property within the specified time period, the buyer loses the right to conclude such a contract. In this case, the sale of the property is considered invalid.

19. The fact of payment for the property is confirmed by an account statement specified in the information message on the sale of property, confirming the receipt of funds in the amount and terms specified in the property purchase agreement or the decision on payment by installments for property.

20. The seller ensures that the buyer receives the documentation necessary for state registration property sale and purchase transactions and state registration of the transfer of ownership arising from such a transaction.