State guarantee of liability for debts. State guarantees

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In the interaction of suppliers and consumers, especially those located in different countries, the state often acts as a guarantor of payments by the buyer of goods. If he is insolvent at the time of payment, the state settles his debts. Accordingly, it must plan warranty obligations and document them in agreements with the recipient of the goods and with the supplier.

When considering the draft law on the budget for the next year, along with the programs of state internal and external borrowings, providing loans foreign countries The issue of providing state and municipal guarantees is discussed in detail. Legal basis the use of state and municipal guarantees is the Civil Code of the Russian Federation and Art. 115-117 BC RF.

As noted above, debentures of the Russian Federation may exist in the form of agreements on the provision of state guarantees by the Russian Federation and be presented in the form of a certain volume of obligations under state guarantees.

State guarantees, as a rule, are provided for loans and credits attracted by authorities of constituent entities of the Russian Federation, local governments, and business entities. The state guarantees not only the unconditional repayment of loans and credits, but also the payment of interest on them to creditors. In this case we are talking about guaranteed loans and loans. For guaranteed borrowings, the state bears full financial responsibility only in the event of the borrower's insolvency. Article 115 of the BC RF defines a state guarantee as a method of ensuring civil legal obligations, by virtue of which the guarantor state undertakes in writing to be responsible for the fulfillment by the person to whom the guarantee is given of obligations to third parties (in whole or in part). The guarantor state is obliged to known circumstances fulfill the obligation of the actual borrower to the lender. Consequently, the guarantor is liable for the debts of the borrower if a situation arises in which the borrower becomes insolvent. However, in any case, the borrower himself is responsible for his obligations, including liability to the guarantor in the form of interest.

The provision of state or municipal guarantees is carried out in accordance with the powers of government bodies at the relevant levels - with analysis financial condition principal or without such analysis.

Based on the experience of recent years, at the beginning of 2008, the Accounts Chamber of the Russian Federation prepared analytical materials indicating a possible increase in the burden on the federal budget for guarantees when an analysis of the financial condition of the principal is not carried out. The risk of the state when using budget funds increases.

Federal law, the law of a constituent entity of the Russian Federation, the decision of the representative body of a municipality on the budget for the next fiscal year(next financial year and planning period) must be provided budget allocations for the possible execution of issued state guarantees of the Russian Federation, state guarantees of a constituent entity of the Russian Federation, municipal guarantees, respectively.

The BC RF regulates the procedure for the development and approval of programs of state guarantees of the Russian Federation, state guarantees of constituent entities of the Russian Federation, municipal guarantees in the currency of the Russian Federation and in foreign currency.

The program of state guarantees of the Russian Federation, state guarantees of a constituent entity of the Russian Federation, municipal guarantees in the currency of the Russian Federation is a list of relevant state guarantees subject to provision and execution for the next financial year and planning period.

Each guarantee must be separately provided (indicating the principal for each guarantee), the amount of which exceeds:
1 billion rub. - for state guarantees of the Russian Federation;
10 million rub. - for state guarantees of a constituent entity of the Russian Federation;
100 thousand rubles. - for municipal guarantees.

The provided guarantees are subject to implementation only if they are approved as part of the corresponding program of state guarantees of the Russian Federation, state guarantees of a constituent entity of the Russian Federation, municipal guarantees in the currency of the Russian Federation.

The program of state guarantees of the Russian Federation in foreign currency must separately provide for each guarantee. the value of which exceeds the equivalent of $50 million. The specified guarantees are subject to implementation only if they are approved as part of the program of state guarantees of the Russian Federation in foreign currency.

The program of state guarantees of the Russian Federation in foreign currency is an annex to the federal law on federal budget for the next financial year and planning period. The program notes that state guarantees of the Russian Federation are provided to support exports industrial products(goods, works, services). The following is given exhaustive list subject to provision of state guarantees of the Russian Federation in given year in million dollars

State guarantees of the Russian Federation for projects implemented with the participation of international financial organizations, are also provided for by the law on the federal budget for the next year in accordance with the Budget Code of the Russian Federation. As a rule, guarantees are provided for on a competitive basis, and the responsibility of the guarantor and the borrower is subsidiary.

In world practice, government guarantees are a powerful factor in supporting exports and strengthening competitive positions in world markets. China annually spends about 7% of budget funds to support its exports, the Czech Republic - about 2.5, Slovakia - 2.3, and Russia - only 0.6%. Germany provides guarantees of up to 2.9% of exports, the USA - up to 2, Poland - up to 3.8%.

In Russia, there is an increasing practice of providing guarantees for loans related to the export of high-tech, knowledge-intensive products of the military-industrial complex, which could not but contribute to the growth of exports of military equipment and weapons. The order portfolio is about $35 billion. As a result of the destruction of the USSR, annual supplies of military equipment were reduced from $22 to $1.7 billion. However, now the process is underway restoring the volume of exports of military equipment and weapons. It is appropriate to note that external loans are also provided by Russia to a number of countries for the purchase of Russian military equipment. For example, Indonesia was provided with a large loan for the purchase of Russian military equipment.

Federal Law No. 198-FZ dated July 24, 2007 “On the federal budget for 2008 and for the planning period of 2009 and 2010” established the upper limit of the state external debt of the Russian Federation under state guarantees of the Russian Federation in foreign currency as of January 1, 2009. in the amount of $3.5 billion, as of January 1, 2010 - in the amount of $6.8 billion, as of January 1, 2011 - in the amount of $10.4 billion. The crisis dictated a revision of the three-year budget plan and a change in budget parameters for 2009. In the federal budget for 2009, after its revision, the program of state guarantees in foreign currency is limited to $2.0 billion, including: $1.0 billion - guarantees to support exports; $0.4 billion - guarantees for borrowings from Roseximbank CJSC; $0.6 billion - guarantees for the obligations of Russian exporters to the specified bank. In the future, there was a process of increasing the volume of state guarantees in line with solving the problems of developing foreign trade relations of Russian enterprises.

In Russian currency, government guarantees increase for borrowings from the Agency for Mortgage and Housing Lending (AHML) in order to create land plots engineering infrastructure for housing construction, for loans received by strategic enterprises defense complex, as well as loans for investment purposes for legal entities located on the territory of the Chechen Republic.

The guarantee policy requires appropriate scientific and analytical support. In world practice, the institute of specialized agencies providing related services business, including state-owned companies associated with government support for business.

Besides include state guarantees

State guarantees

Guarantee period

Available in national currency , And foreign currency.

state guarantees of the Russian Federation

Separately approved state guarantees of the Russian Federation

State guarantees of the Russian Federation

Budget Law guarantees

Guarantees

investment projects

Moreover projects

Besides direct debts of the government of the Russian Federation as part of internal public debt turn on state guarantees, under which the Government of the Russian Federation guarantees payment for certain investment prospectuses or the issue of securities local authorities authorities or business entities.

State guarantees are included in the current government debt, but in practice they represent not current, but potential government debt, since these debts become real only when the borrower, represented by a local government authority or business entity, is unable to repay its debt obligations.

State guarantees represent a form of internal or external public debt, since they represent a guaranteed repayment of investment capital not aimed at financing budget deficit, but having a targeted nature and a specific target project (program).

State and municipal guarantee is one of the ways to ensure legal obligations, by virtue of which the state, its subject or municipal entity as a guarantor gives a written obligation to be responsible in whole or in part for the fulfillment by the person to whom the guarantee is given of obligations to third parties. Guarantee period determined by the deadline for fulfilling obligations.

The guarantor, who has fulfilled the obligation of the recipient of the guarantee, has the right to demand from the latter compensation in full the amounts paid to the third party under the guarantee.

In accordance with the federal law on the federal budget, it is established upper limit of the total amount of state guarantees of the Russian Federation provided in national currency, And upper limit of state guarantees of the Russian Federation provided to secure obligations in foreign currency.

The Federal Law on the Federal Budget approves state guarantees of the Russian Federation, issued to an individual subject of the Russian Federation, a municipal entity or a legal entity in an amount exceeding one million times minimum size wages.

State guarantee

Separately approved state guarantees of the Russian Federation for an amount exceeding US$10 million.

State guarantees of the Russian Federation are provided by the Government of the Russian Federation, the authority of a constituent entity of the Russian Federation or a municipal entity to ensure the fulfillment of their obligations to third parties.

Budget Law for the next financial year, a list of services provided to individual subjects of the Russian Federation, municipalities and legal entities is established guarantees for an amount exceeding 0.01% of the expenditures of the corresponding budget.

Total amount of provided state guarantees of the Russian Federation to secure obligations is included in composition of the government debt of the Russian Federation as a type of debt.

State and municipal guarantees are provided, as a rule, on a competitive basis at the expense of the development budget of the Russian Federation and are a guarantee of the Government of the Russian Federation. Guarantees are provided to Russian investors under borrowed funds for implementation investment projects.

The main purpose of such guarantees is to stimulate investment assets and attract investor funds in the interests of economic development in key areas or in the development of social sector projects. Accepted for consideration investment projects applicants who have a stable financial position and able to repay the loan with interest accrued on it on time and in full.

Moreover projects must have a positive net present value in the calculation period.

Criteria for selecting investment projects for government support is the amount of income that the state received as a result of the project.

State guarantees represent a form of internal or external public debt, since they represent a guaranteed repayment of investment capital, aimed not at financing the budget deficit, but having a targeted nature and a specific target project (program).

The Federal Law on the Federal Budget approves state guarantees of the Russian Federation, issued to an individual subject of the Russian Federation, a municipality or a legal entity in an amount exceeding a million times the minimum wage. Separately approved state guarantees of the Russian Federation for an amount exceeding $10 million.

§ 4. State guarantees

Total amount of provided state guarantees of the Russian Federation to secure obligations is included in composition of the government debt of the Russian Federation as a type of debt.

State and municipal guarantees are provided, as a rule, on a competitive basis at the expense of the development budget of the Russian Federation and are a guarantee of the Government of the Russian Federation. Guarantees are provided to Russian investors with borrowed funds for the implementation of investment projects.

The main purpose of such guarantees is to stimulate investment assets and attract investor funds in the interests of economic development in key areas or in the development of social sector projects. Accepted for consideration investment projects applicants who have a stable financial position and are able to repay the loan with accrued interest on time and in full.

Moreover projects must have a positive net present value in the calculation period.

Criteria for selecting investment projects for government support is the amount of income that the state received as a result of the project.

Legal protection of man and citizen. Concept and types of state guarantees. The President of the Russian Federation is the guarantor of human and civil rights and freedoms in Russian legislation. Prohibition of retroactive effect of the law. Institute of legal responsibility of the state.

Students, graduate students, young scientists who use the knowledge base in their studies and work will be very grateful to you.

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guarantor right legislation

1. Legal protection of a person and a citizen. Concept and types of state guarantees

The protection of human and civil rights and freedoms means the presence of legal acts, institutions and effective mechanisms for the observance and protection of individual rights guaranteed by the Constitution and Legislation of the Russian Federation, international documents, etc.

The state plays a very important role in ensuring the legal protection of individuals and citizens. It is the guarantor of the rights and freedoms of man and citizen. The Constitution of the Russian Federation clearly states state guarantees. They can be of the following types:

Domestic guarantees:

Enshrined in constitutions and other normative legal acts states are provided with appropriate material and organizational means. In the Russian Federation, the guarantee with the highest legal force, is the Constitution. They are divided into:

General guarantees:

1. Protection of rights and freedoms is the responsibility of the state. This provision is enshrined in Art. 45 part 1 of the Constitution of the Russian Federation. The entire mechanism of the state is involved in the implementation of this guarantee.

2. Self-defense of rights and freedoms.

3. Everyone has the right to defend their rights and freedoms by all means not prohibited by law.

4. Judicial protection. This form of protection of rights and freedoms is the most effective, since any decisions can be appealed to the court.

5. Compensation for harm. In accordance with Article 53 of the Constitution, everyone has the right to compensation for damage caused illegal actions(or inaction) of public authorities or their officials. The amount of compensation for damage is determined by the court.

6. Irrevocability of rights and freedoms. Any person can be sure that as long as the Constitution of the Russian Federation exists, the rights and freedoms enshrined in it are directly valid.

7. Age. The Constitution says that a citizen of Russia can independently exercise and fully exercise his rights and responsibilities from the age of 18. A limitation may be the recognition of a citizen as incompetent or limited in legal capacity, but only by court decision. Persons under this age also have the rights listed in the Civil Code.

Justice guarantees:

Guarantees of justice are guarantees of individual freedom, hence their constitutional level of enshrinement.

1. Guarantees of jurisdiction. It is necessary for a person to have his case heard in the court and by the judge provided for by law.

2. Right to legal assistance. This means that anyone who needs qualified legal assistance has the right to receive it. In cases provided for by law, legal assistance is provided free of charge.

3. Presumption of innocence. It is enshrined in Art. 49. The essence of the presumption is that any person is considered innocent until his guilt is proven.

4. Prohibition of re-conviction. This guarantee states that no one can be convicted of the same crime more than once (Article 50 of the Constitution of the Russian Federation).

5. Invalidity of illegally obtained evidence. A person is guaranteed against such “methods” of the work of the court and investigation at all stages of the criminal process (Article 50, Part 2 of the Constitution).

6. The right to review the sentence. Any convicted person has the right to have his sentence reviewed by a higher court, as well as to ask for a pardon or commutation of his sentence.

7. Guarantee against self-incrimination. It is expressed in the fact that a person cannot be forced to testify against himself, as well as against his close relatives, whose circle is determined by federal law.

8. Rights of victims of crimes and abuse of power. Article 52 of the Constitution of the Russian Federation:

The rights of victims of crimes and abuses of power are protected by law. The state provides victims with access to justice and compensation for damage caused.

9. Prohibition of retroactive effect of the law. The law establishing or aggravating liability does not have retroactive effect. But if it cancels or mitigates liability, then its retroactive effect is provided (Article 54 of the Constitution).

International legal guarantees.

These guarantees are enshrined in international legal documents, such as Universal Declaration human rights, adopted at the third session of the UN General Assembly on December 10, 1948, international covenants and other documents. The Constitution provides the right to appeal to interstate bodies for the protection of human rights and freedoms, if all courts of the Russian Federation refuse. The complaint is submitted to the Human Rights Committee established in accordance with the International Covenant on Civil and Civil Rights political rights. The Committee accepts a complaint if it is not anonymous and does not constitute an abuse of the right to complain. Another form international protection rights and freedoms is advocated by the European Court of Human Rights, established in 1959. An appeal to the Court can be made by either a state or an individual, but first this appeal must go through the European Commission of Human Rights. After consideration, if this appeal is considered acceptable, it goes to the Court.

Besides specified documents, establishing human rights and freedoms, there are also the following:

— European Convention for the Protection of Rights and Fundamental Freedoms of 1950 and additional protocols To her;

— Convention on legal assistance And legal relations on civil, family and criminal cases of January 22, 1993 and the declaration of international obligations in the field of human rights and fundamental freedoms of September 24, 1993, adopted by members of the CIS, etc.

To ensure guarantees of human and civil rights and freedoms in the domestic legislation of Russia, it is necessary that the provision of guarantees be based on the following principles:

1. The priority of human rights in the “individual-state” relationship and the obligations of the state to recognize, respect and protect them;

2. The rule of law in ensuring law and order;

3. The principle of mutual responsibility of the individual and the state.

The most important place in the system of guarantees of rights and freedoms is occupied by the institution legal liability state and its bodies. Must exist efficient system legal means to force government bodies and officials to respect human rights, ensuring the restoration of the interests of citizens violated by these bodies.

2. The President of the Russian Federation is the guarantor of human and civil rights and freedoms

In accordance with the Constitution, the rights and freedoms of man and citizen determine the meaning, content and application of laws, the activities of all government bodies and local self-government. Respect for rights and freedoms is ensured by justice. The Constitution assigns a special role to the President in this area. The words about the obligation to defend the Constitution, respect and protect the rights and freedoms of man and citizen, it is true, to serve the people are in the text of the President’s oath, which he takes to the people upon taking office.

A necessary condition for respecting the rights and freedoms of man and citizen is a situation in which all government bodies fulfill their constitutional duties within the limits of their competence. The President must ensure such a situation in the state. To this end, the Constitution grants him special powers to ensure the coordinated functioning and interaction of government bodies.

In protecting the rights and freedoms of man and citizen, the President relies on the entire system of government bodies. The functions of the guarantor of the rights and freedoms of man and citizen require the President to constantly care about the effectiveness of the executive, legislative and judicial authorities, of course, without intruding into their sphere of competence.

Being legally distanced from all branches of government, the President sets rules, governs, resolves disputes, and carries out the functions of constitutional control. Exercising powers to protect rights and freedoms, the head of state interacts with the Government, federal courts, prosecutor's office, law enforcement agencies, public associations.

The President is obliged to ensure that the Constitution and regulations of the constituent entities of the federation are fully consistent with the Constitution of the country, federal legislation, the tasks of ensuring and protecting the rights and freedoms of man and citizen. IN otherwise The President has the right to demand from any federal government body or the government body of a subject of the federation to respect the rights and freedoms of man and citizen, and if they are violated, to demand the restoration of the violated rights in full. At the same time, the President can take the most drastic measures, including forced ones.

The President exercises the constitutional powers of the guarantor of human and civil rights and freedoms using his right legislative initiative. He also issues decrees to protect the legal status of the individual in general and separate groups population, as well as to ensure that citizens have full personal, political and socio-economic rights.

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STATE GUARANTEE OF THE RUSSIAN FEDERATION No. ____

Moscow from "__"__________ 200_

The Ministry of Finance of the Russian Federation, hereinafter referred to as the "Guarantor", represented by the Minister of Finance of the Russian Federation Alexey Leonidovich Kudrin, acting on the basis of the Regulations on the Ministry of Finance of the Russian Federation, and acting on behalf of the Government of the Russian Federation, in accordance with paragraph 4 of Article 116 of the Budget Code of the Russian Federation Federation, Federal Law "On the Federal Budget for 200_", Resolution (Order) of the Government of the Russian Federation dated "__"_________ 200_ No. ___ (-р), gives a written obligation to be responsible for the execution of _______________, hereinafter referred to as the “Principal”, to whom the this Guarantee, the following obligations to __________________, hereinafter referred to as the “Beneficiary”, on the following conditions:

1. Subject of the Guarantee

1.1. This State Guarantee of the Russian Federation (hereinafter referred to as the Guarantee) is issued by the Guarantor to the Principal in favor of the Beneficiary in accordance with the Agreement on the provision of the State Guarantee of the Russian Federation dated "__"__________ 200_ No. ____, concluded between the Guarantor, the Principal and the Beneficiary (hereinafter referred to as the Agreement), as security proper execution The principal of obligations under the loan agreement dated "__"__________ 200_ No. __ concluded between the Beneficiary and the Principal (hereinafter referred to as the Loan Agreement).

1.2. Under the Guarantee, the Guarantor undertakes to pay upon the written request of the Beneficiary in the manner and amount established by the Guarantee and the Agreement, a sum of money in the currency of the Russian Federation in the event of failure by the Principal to fulfill obligations to repay the loan (principal debt) in the amount of ______ (_____) rubles within the period of "__"__________ 20__ and payment of interest at the rate of _______ percent per annum in the amount of _______ (____ ) rubles.

2. Warranty terms

2.1. The Guarantor guarantees the Principal’s obligations to repay the debt on the loan (principal debt) and pay the amount of interest on Loan agreement.

Limit general responsibility The Guarantor to the Beneficiary is limited to an amount of no more than _____ (_____) rubles, including the amount of the principal debt in the amount of _____ (_____) rubles and accrued interest in the amount of _____ (_____) rubles.

2.2. The Guarantor's obligations under the Guarantee will decrease as the Principal fulfills its monetary obligations secured by the Guarantee in relation to the Beneficiary in accordance with the terms of the Loan Agreement in the proportions established in this paragraph. As the Principal fulfills the obligations secured by the Guarantee, the Guarantor's obligation under the Guarantee is reduced by an amount equal to the product of the amount of repayment of obligations and the share that constitutes the total volume of obligations under the Guarantee to return the amount established in accordance with the terms of clause 2.1 of the Guarantee to the entire loan amount under Loan agreement.

2.3. The Guarantee comes into force from the moment the Guarantee and the Agreement are signed.

2.4. The Guarantor does not guarantee the fulfillment of the Principal's obligations to pay interest, fines, commissions, penalties for late repayment of debt on the loan (principal debt) and for late payment of interest, other payments and other obligations of the Principal under the Loan Agreement, in addition to those specified in clauses 1.2 and 2.1 of the Guarantee.

2.5. The warranty period ends on "__"__________ 200_.

2.6. The Guarantee terminates and must be returned to him by the Beneficiary without additional requests from the Guarantor within __ days from the occurrence of any of the following events:

— upon expiration of the Guarantee period specified in clause 2.5 of the Guarantee and clause 5.2 of the Agreement;

- after full execution Guarantor of obligations under the Guarantee;

— after the Principal or third parties fulfill their obligations to the Beneficiary under the Loan Agreement secured by the Guarantee;

— after revocation of the Guarantee;

— due to the Beneficiary’s refusal of its rights under the Guarantee by returning it to the Guarantor;

- as a result of the Beneficiary’s waiver of its rights under the Guarantee by means of a written application for the release of the Guarantor from its obligations.

2.7. The right of claim against the Guarantor belonging to the Beneficiary under the Guarantee cannot be transferred to another person.

2.8. The guarantor bears subsidiary liability in addition to the Principal's liability for the obligation guaranteed by him within the limits of the funds specified in clause 2.1 of the Guarantee.

2.9. All issues of interaction between the Guarantor, Principal and Beneficiary are specified in the Agreement.

3. Warranty revocation conditions

3.1. The guarantee may be revoked by the Guarantor in the following cases:

a) if the Guarantee is not transferred by the Principal to the Beneficiary in accordance with the terms of clause 5.1 of the Guarantee and clause 3.6 of the Agreement;

b) introducing into the Loan Agreement conditions not agreed upon with the Guarantor, entailing an increase in liability or other adverse consequences for the Guarantor;

c) - if the Principal - a subject of the Russian Federation, within 10 days after the adoption of the law on the budget of a subject of the Russian Federation, did not provide the Guarantor with a certified in the prescribed manner an extract from the law on the budget of a constituent entity of the Russian Federation, confirming the provision of funds for the fulfillment of obligations under the Loan Agreement in the law on the budget of a constituent entity of the Russian Federation for the corresponding year;

- if the Principal - organization canceled the security agreement, or another event occurred, as a result of which there was a loss of security or a decrease in the price of security.

3.2. Notice of revocation of the Guarantee is sent to the Principal at the address specified in the Agreement.

4. Fulfillment of obligations under the Guarantee

4.1. Fulfillment by the Guarantor of its obligations under the Guarantee leads to the emergence recourse claims from the Guarantor to the Principal.

4.2. Fulfillment of obligations under the Guarantee is carried out at the expense of federal budget funds provided for the specified purposes in the federal law on the federal budget for the corresponding year, and is subject to reflection in federal budget expenses as provision budget loan To the principal.

4.3. After fulfilling the obligations under the Guarantee, the Guarantor sends to the Principal, on the basis of clause 4.1 of the Guarantee and clause 1.4 of the Agreement, establishing the right of recourse of the Guarantor to the Principal, a written demand for compensation by the Principal to the Guarantor within ________ days after the execution of the Guarantee for the amounts paid by the Guarantor to the Beneficiary under the Guarantee. Failure of the Guarantor to receive amounts from the Principal at the Guarantor's request to the Principal within the time limits provided for in this paragraph means a violation by the Principal of its obligations to the Guarantor under the Guarantee and the Agreement, and the specified amount of the claim is automatically considered an overdue debt of the Principal to the Guarantor. The Guarantor will charge penalties on the amount of overdue debt at the rate of one three hundredth of the current refinancing rate Central Bank of the Russian Federation, effective on the first day of non-fulfillment of the requirement, for each calendar day of delay.

If the Principal, a subject of the Russian Federation, fails to fulfill the Guarantor's recourse claim within the period specified in this paragraph, repayment of the Principal's debt under the Guarantor's recourse claim, taking into account accrued penalties, will be made by foreclosure on mutual settlements of the federal budget with the Principal's budget, in terms of funds, provided for transfer to the Principal's budget under section " Financial aid budgets of other levels" of the functional classification of expenses of the budgets of the Russian Federation, with the exception of funds provided for the implementation of targeted expenses, as well as from income from the payment of federal taxes and fees, subject, in accordance with the federal law on the federal budget for the corresponding year, to be credited to the Principal's budget.

4.4. Fulfillment of the Guarantor's recourse claims against the Principal is carried out:

- in the case of the Principal - a subject of the Russian Federation at the expense of the Principal’s budget funds provided for the specified purposes in the law on the Principal’s budget for the corresponding year, and is subject to reflection in the Principal’s budget as repayment of the budget loan to the Guarantor;

- in the case of the Principal - the organization at the expense of the provided security for the fulfillment of its obligation.

4.5. To fulfill the Guarantor's obligations under the Guarantee, the Beneficiary is obliged to submit a written demand to the Guarantor and documents confirming the validity of this demand.

IN written request must be indicated:

a) the amount of overdue unfulfilled guaranteed obligations (principal and (or) interest);

b) the basis for the Beneficiary’s claim and the Guarantor’s payment in the form of references to the Guarantee, Agreement and Loan Agreement;

c) compliance with the subsidiarity of the requirement in the form of a reference to the appeal submitted by the Beneficiary to the Principal demanding repayment of the debt;

d) payment details of the Beneficiary.

Documents attached to the request:

a) statements of loan accounts and interest accounts of the Principal as of the day following the settlement day;

b) calculations confirming the amount of overdue outstanding principal debt and the amount of unpaid overdue interest;

c) a copy certified by the Beneficiary of the application received by the Principal demanding repayment of the debt;

d) the Principal’s response to the specified request (if any).

All listed documents must be signed authorized persons Beneficiary and certified by the seal of the Beneficiary.

4.6. The date of presentation of the claim to the Guarantor is the date of its receipt by the Ministry of Finance of the Russian Federation.

4.7. The Guarantor considers the Beneficiary's claim within __ days from the date of its presentation for validity and execution in accordance with Section 8 of the Agreement. In this case, the Guarantor has the right to raise objections against the Beneficiary’s demand that the Principal could present, even if the Principal refused to present them or admitted his debt.

4.8. If the Beneficiary's claim is recognized as justified, the Guarantor, within ___ days from the date of its presentation, is obliged to fulfill the obligations under the Guarantee by transferring funds in the amount recognized for execution in accordance with Section 8 of the Agreement to the Beneficiary's account No. ____________ in _______________, by __________ (indicators are indicated budget classification Russian Federation).

4.9. The Guarantor has the right to refuse the Beneficiary to fulfill obligations under the Guarantee, in following cases:

— recognition by the Guarantor of the Beneficiary’s claim as unfounded in accordance with the identified conditions of clause 8.6 (except for subclause “d”) of the Agreement;

— The guarantee has terminated in accordance with clause 2.6 of the Guarantee and clause 6.1 of the Agreement.

5. Final provisions

5.1. The guarantee must be drawn up in one copy.

The guarantee is transferred according to the acceptance certificate to the Principal for further transfer to the Beneficiary, which the Principal is obliged to carry out no later than the working day following the day of signing the said act acceptance and transfer, according to the act of acceptance and transfer between the Principal and the Beneficiary.

5.2. The terms of the Guarantee are valid only to the extent that does not contradict the Agreement.

6. Legal addresses and details of the parties Guarantor: Ministry of Finance of the Russian Federation st. Ilyinka, 9, Moscow, 109097 account of the Main Directorate Federal Treasury Ministry of Finance of Russia 40105810200000010900 in OPERU-1 at the Bank of Russia, Moscow, BIC 044501002, INN “no”. _______________ A.L.KUDRIN M.P.

A state guarantee is an obligation of the state to its citizens or legal entities, which involves the provision of material, and, in addition, material goods according to standards and generally accepted norms international law. Later in the article we will look at many aspects related to this concept.

State guarantees

The guarantee obligations under consideration are variations of government services. According to Article of the Budget Code No. 115, a state guarantee can be provided to ensure obligations that have already arisen. Or those that may appear in the future.

The key conditions for the provision of state guarantees are the following principles:

Free issue.
Providing guarantees in foreign currency.
Free implementation of all procedures related to registration necessary documentation to receive them.
As a rule, they can cover from 85 to 95 percent of the transaction amount.
They provide guarantees for up to twenty years.
Products must comply with the list, which was approved by order of the Russian Government in 2004.

The state guarantee, among other things, is a constitutional measure.

Who is preferred?

As a rule, government guarantees are provided in favor of:

Domestic as well as foreign banking institutions-creditors.
Russian exporters.

State guarantees are intended to cover payment obligations:

Foreign countries for attracted loans that were issued on the basis of sovereign guarantees. In addition, on the basis of direct contracts as part of the procurement of domestic industrial products.
Foreign enterprises that are importers of Russian industrial products on the basis of contracts. Liabilities are covered by loans raised for these purposes.
Banking institutions of countries that are importers of loans attracted by them. Guarantees provided for transactions with domestic exporters are also taken into account.
Domestic exporters on loans that were attracted for the procedure of financing export contracts.

Constitutional obligations

These guarantees imply the implementation of the rights and freedoms of man and citizen. Everything related to constitutional rights and freedoms is the direct responsibility of the state. Constitutional guarantees by their essence are a duty.

Quite often in society the expression “material guarantees” is used. It is understood as the totality of political as well as economic conditions that make rights real. As for the science of constitutional law, it studies mainly legal obligations, that is, those that require laws on state guarantees and others normative sources. In any case, the constitution is the basis of many systems of the state.

Protection of freedoms as a direct responsibility of the state

The Constitution guarantees the rights and freedoms of man and citizen. This general rule presupposes the obligation of the state, through various legal means, to ensure the protection of rights by regulating them. The President of Russia is the guarantor of freedoms. The state's obligations to citizens to implement measures and ensure rights are included in the list of powers of the country's government. This function represents main task judicial system. Thus, the entire state mechanism and authorities take part in guaranteeing freedoms and rights.

Social guarantees

This type of guaranteed obligations is a set of socio-economic, political and other constitutional rights of every citizen. This includes the right to rest, state guarantees for education, medical care, employment with a special protection mechanism, etc. The process of implementing programs of this kind is caring for citizens who find themselves in certain circumstances.

But where do the funds come from? Sources of funding social guarantees the state budget, as well as the budgets of local authorities.

Self-defense of freedoms and rights of citizens as one of the constitutional guarantees

Along with programs of state guarantees related to ensuring freedoms, a citizen has the opportunity to independently protect his interests by any means that are not prohibited by law. Self-defense means are very diverse and involve taking the following measures:

The procedure for appealing the actions of officials.
Opportunity to contact the media.
Contact human rights organizations, and, in addition, in public associations, for example, to trade unions and others.
Citizens have the right to defend their rights with the help of weapons.

Federal Law “On Weapons”

According to Federal Law dated December 13, 1996 N 150-FZ (as amended on July 29, 2017), citizens have the opportunity to obtain certain types of firearms, for example, hunting rifles, gas pistols, and so on. The law gives the right to receive, as well as to use firearms in order to protect health and life or property within the limits of reasonable and necessary defense.

It's important to note that this right subject to many restrictions. For example, weapons cannot be used against women or disabled people and minors with the exception of cases of committing a group or armed attack. All situations involving the use of weapons that resulted in bodily injury must be reported to the Internal Affairs Service. Besides, certain conditions accompanied by the right to purchase weapons.

Judicial protection of citizens

The Russian Constitution guarantees judicial protection of the rights and freedoms of citizens. This type of protection is the most effective and accessible to absolutely every person, since any decisions can be appealed in court, and, in addition, the actions of authorities and officials. The objects of appeal may be laws and decrees of the resident, along with government regulations, and so on. Thus, the court supervises the legality within the country. It also ensures the priority of citizens' rights over various actions by the state.

Providing international protection for citizens

The country's Constitution provides every citizen with the right to file a complaint with interstate bodies. This right is secured by the existence of international treaties of the country and is used if all existing methods legal protection. Thus, a complaint can be filed after a refusal to a citizen in all judicial authorities of Russia.

A complaint can be submitted to the Human Rights Committee, which was established under the international covenants on civil rights. The fact of Russia’s accession to the protocol of this pact provides conditions for the realization by each person of his constitutional rights to appeal to this body. The Committee accepts complaints if they are not anonymous and do not represent an abuse of the right to file a complaint. The committee is reviewing whether the matter is being considered under another process international proceedings and, in addition, it is established whether the person has exhausted all available legal remedies in his country.

The procedure for protecting violated rights is that the complaint is brought to the attention of the relevant state, which in turn undertakes to submit it to the Committee within six months written explanation or a statement that will clarify the issue of interest, and also notify measures taken in the event that such took place. Thus, the Committee does not have the power to make binding decisions, but publishes annual reports on the fact of considering complaints. It should be said that this carries with it negative moral and political consequences for the country in which the rights of the citizen were violated.

Another form of international protection is European Court for Citizens' Rights, which was established back in 1959. This court consists of a number of judges equal to the number of members of the Council of Europe. This body sets its own regulations. Its jurisdiction, as a rule, covers cases that are related to the interpretation and application of the Convention, but only in relation to those states that have recognized it as binding for themselves. This court includes representatives from the Russian Federation.

Both the state and an ordinary individual have the right to file an appeal to this authority. It must be emphasized that an appeal is submitted only when absolutely all internal means to resolve the dispute have been exhausted. The court, whose composition is approved for each such appeal separately, is final, and states are obliged to fully obey it. Fair compensation may be awarded to the victim of rights violations.

Compensation for harm

Violation of citizens' rights can often result in harm. Constitutional guarantees in such situations consist not only of restoring the right, ensuring its implementation, but also of compensation for moral as well as material harm caused to a person. According to Article No. 53 of the Constitution, every citizen has the right to compensation for damage from the state that was caused by illegal measures of authorities or their officials.

Refund harm caused regulates civil law. Compensation is required for damage caused to a citizen in the following situations:

Illegal bringing of a person to criminal liability.
Unlawful conviction.
Illegal detention or taking a written undertaking not to leave.
Illegal imposition of an administrative penalty in the form of arrest or assignment of correctional labor.

In such cases, financial responsibility should be borne not by the persons directly guilty of the crime, but by the relevant authorities. Further, damages are then compensated in their favor by the same officials. The amount of compensation is established by the court, which also has the right to determine compensation for moral damage that was caused to a person.

The irrevocability of freedoms and rights of citizens

A citizen can be completely confident in the sustainability of his rights only when the authorities are deprived of the opportunity to pass laws that could abolish or diminish the freedoms of people. In this regard, the Constitution states that laws that may abolish or diminish the rights and freedoms of Russian citizens should under no circumstances be issued. This existing norm guarantees the inviolability of rights and serves as a constant reminder for authorities legislative branch that any abolition or revision of freedoms requires the convening of a constitutional council.

Along with this, the Constitution allows for the possibility of restricting the rights and freedoms of people. It is important to understand that any restrictions do not mean the abolition or derogation of rights and are carried out solely to the extent required in accordance with the purposes strictly established by the Constitution.

Age restrictions

The Constitution of Russia establishes that citizens can fully exercise their rights and obligations, starting from the age of eighteen, independently. Keyword In this regard, the word appears independently and the phrase fully. We should not forget that citizens have their constitutional rights at an earlier age. However, the implementation of state guarantees in this case occurs through legal representatives.

What does a child have a right to? This question interests many.

The International Covenant on Civil Liberties gives every child the right to protection measures, state guarantees of medical care, education, and, in addition, to instant registration after birth and in a personal name. Every child has the right to acquire citizenship. These norms are not reflected in the Constitution of our country, but, in essence, they can be equated to the corresponding norms.

A state guarantee is a method of ensuring civil obligations, in which the guarantor state undertakes to be fully or partially responsible for the fulfillment by the person to whom the guarantee is provided of obligations to third parties.

The guarantee must be in writing, otherwise it is void. The state bears subsidiary liability in addition to the liability of the debtor for the obligation guaranteed by it. His obligation to the third party is limited to payment of the amount for which the guarantee is issued. In this case, the state has the right to demand from the recipient a guarantee of full reimbursement of the amount that was paid to a third party.

Guarantees are provided, as a rule, on a competitive basis. Wherein prerequisite is to check the financial condition of the recipient.

Examples from economic history Russia and other countries (including Latin America) show that excessive volumes of issued guarantees pose a serious threat to budget system. Therefore, with the adoption of the Russian Budget Code, the procedure for their provision and accounting was significantly streamlined. The total amount of guarantees is taken into account as part of the public debt as a separate type of liability. These obligations are taken into account in a special manner and are not considered as a source of financing the budget deficit. The maximum volumes of state guarantees (separately in national and foreign currency) are approved as part of the budget law.

The law requires keeping detailed records of guarantees issued, their purposes, amounts and timing. In Russia, this function is performed by the Ministry of Finance. Based on such accounting, the State Duma is presented with a detailed report on the guarantees issued for all recipients, the fulfillment by recipients of their obligations and payments by the state under the guarantees. Guarantees provided in national currency are taken into account as part of the domestic borrowing program. The provision of guarantees to secure obligations in foreign currency is approved in the external borrowing program.

Guarantees can be provided not only by the federal government, but also by lower levels of government. The upper limit of guarantees issued by a subject of the federation and a municipal entity must be approved in the relevant law (or decision) on the budget. The total amount of guarantees issued is taken into account as part of the debt of the constituent entities of the federation and municipal debt

The state or municipal guarantee must indicate: the name of the guarantor (Russian Federation, subject of the Russian Federation, municipal entity) and the name of the body that issued the guarantee on behalf of the guarantor; the obligation to secure which the guarantee is issued; volume of obligations and amount of guarantee; determination of the warranty case; name of the principal; irrevocability of the guarantee or conditions for its revocation; grounds for issuing a guarantee; entry into force (date of issue) of the guarantee; warranty period; the procedure for the guarantor to fulfill obligations under the guarantee; procedure and conditions for reducing the maximum guarantee amount; the presence or absence of the right of claim of the guarantor to the principal for reimbursement of amounts paid by the guarantor to the beneficiary under a state or municipal guarantee (recourse claim of the guarantor to the principal, recourse). The entry into force of a state or municipal guarantee can be determined calendar date or the occurrence of an event (condition) that may occur in the future. The validity period of a state or municipal guarantee is determined by the terms of the guarantee.

The beneficiary's request for payment of a sum of money under a state or municipal guarantee must be submitted to the guarantor in writing, accompanied by the documents specified in the guarantee.

More on the topic State guarantees. State guarantee program:

The program of state guarantees of free medical care to citizens as a legal basis for drug provision at the expense of funds from compulsory health insurance and budgets of various levels
State guarantees of a constituent entity of the Russian Federation
4.2. State guarantees as the basis for ensuring investment activity
A few words about state guarantees of bank deposits
§ 3. The procedure for performing public service and legal guarantees of a career
STATE GUARANTEES OF THE RIGHTS OF SUBJECTS OF INVESTMENT ACTIVITIES AND PROTECTION OF CAPITAL INVESTMENTS
§ 2.2. Legal guarantees of the right of citizens to equal access to public service in internal affairs bodies
Credit and guarantees for repayment of loaned funds. Essence of the guarantee
3.2 Problems of establishing additional guarantees of citizens’ electoral rights in the legislation on elections to government bodies of the constituent entities of the Russian Federation and local government bodies
Ticket No. 2 1. The principle of legality in civil proceedings, its guarantees. The principle of independence of judges and subordination only to the law, its guarantees.
Financial and legal features of state programs and federal target programs aimed at the economic and social development of indigenous peoples of the North, Siberia and the Far East
39. Legal status of the State Duma and the State Council on the Code of Basic State Laws as amended on April 23, 1906

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Gracheva I.V., head of the claims department legal department Central Black Earth Bank of Sberbank of Russia.

After the entry into force of the Budget Code of the Russian Federation, the question arises about the legal nature of the state guarantee. Does it have a private or public law nature? The further development of legal regulation of state guarantees largely depends on the answer to this question.

In the legal literature one can find different positions of authors on this issue. All of them can ultimately be reduced to two main ones.

According to the first point of view, the state guarantee has a public legal nature<1>. So, S.O. Shokhin points out that a state guarantee as a way of ensuring the fulfillment of obligations of third parties to a creditor is distinguished from civil law methods of ensuring that the Russian Federation acts as a guarantor, that is, the state, which unilaterally must determine the conditions and procedure for providing a guarantee in accordance with the provisions of Art. . 115 and 116 of the Budget Code of the Russian Federation, as well as a special procedure for providing state guarantees, their accounting and reflection in the structure and volume of public debt<2>.

<1>See: Tuktarov Yu.E. Concept and features of civil guarantees // Journal of Russian Law. 1999. N 10; Shokhin S.O. Legal regulation state and municipal credit // Financial right: Textbook / Answer. ed. M.V. Karaseva. 2nd ed., revised. and additional M.: Yurist, 2006. P. 487 - 489; Maksimovich N.A. Surety as a way to ensure the fulfillment of an obligation: Dis. ...cand. legal Sci. St. Petersburg, 2003. 167 p.
<2>See: Report on the results of an audit of the mechanism for providing state guarantees included in the state domestic debt, in the Ministry of Finance of the Russian Federation and from recipients of funds under guarantee obligations (upon request) // Bulletin Accounts Chamber. 2004. N 8(80). pp. 161 - 162.

Yu.E. Tuktarov identifies civil guarantees and their characteristics. This allows, in our opinion, to conclude that, in the opinion of this author, there are other, in particular public law, guarantees. Under civil guarantees Yu.E. Tuktarov understands proactive behavior or its result, depending on the discretion of property-independent, equal participants in civil transactions, taking place directly or indirectly regarding material benefits, being the realization of civil rights and obligations<3>.

<3>Tuktarov Yu.E. Concept and features of civil guarantees // Journal of Russian Law. 1999. N 10.

From the point of view of the second group of scientists and law enforcers, the state guarantee has a private law nature, since in its legal essence it is close to such methods of ensuring the fulfillment of obligations as a bank guarantee and surety. This position is today shared by the Supreme Arbitration Court of the Russian Federation, which considers a state guarantee as a type of surety agreement<1>.

<1>Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation dated August 18, 2005 N 6582/05; Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of March 20, 2002 N 7986/01; Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of May 23, 2006 N 975/06.

E. Andreeva motivates the attribution of a state guarantee to civil law methods of securing obligations by the fact that it “corresponds to the subject and methods civil law. Relations regarding the provision and use of state guarantees are related to property relations."<2>. However, one can hardly agree with the arguments expressed in favor of the private law nature of the state guarantee. Modern views on the subject of financial law and its relationship with the subject of civil law indicate the opposite. Today, the subject of financial law is defined as property and related Not property relations arising in the process of financial activities of the state and municipalities<3>. In other words, the subject of financial law, like the subject of civil law, is property relations. However, it is necessary to take into account that the relations of ownership of the state and municipalities for property constituting the treasury of the Russian Federation, constituent entities of the Russian Federation and municipalities are the subject of financial, not civil law<4>.

<2>See: Andreeva E. Analysis of budgetary and civil legislation on the state guarantee as a way to ensure obligations // Economy and Law. 2004. N 6. S. 26 - 33.
<3>Financial law: Textbook / Answer. ed. M.V. Karaseva. 2nd ed., revised. and additional M.: Yurist, 2006. P. 31.
<4>Right there.

Another supporter of this point of view, V.V. Paplinsky defines a state guarantee as a way of ensuring business and legal obligations, combining the features of a surety and a bank guarantee, while classifying it as a type of guarantee<5>. The author argues that in terms of its content, the state guarantee is a type of surety with the recognition that legal composition The occurrence of a guarantee obligation under a state guarantee is similar to a bank guarantee. At the same time, in our opinion, V.V. Paplinsky contradicts himself, saying that, on the one hand, the legal nature of the state guarantee is a guarantee, and on the other hand, the legal facts underlying it are a bank guarantee.

<5>Paplinsky V.V. Guarantees and sureties as legal methods intensification of investment activity. Doctor of Law M., 2005. 199 p. P. 12.

Based on the civil law nature of the state guarantee, V.V. Paplinsky believes that the main elements essential conditions guarantee obligations should be enshrined not in the Budget Code of the Russian Federation, but in the Civil Code of the Russian Federation. Moreover, according to the scientist, both the general provisions of the Civil Code of the Russian Federation on obligations and, by analogy with the law (clause 1 of Article 6 of the Civil Code), those provisions of paragraph 5 of Chapter. 23 “Guarantee”, which regulate issues not regulated by the norms of the Budget Code of the Russian Federation on state guarantees.

However, we cannot agree with the opinion of V.V. Paplinsky about the private law nature of state guarantees, which he argues by the similarity of this institution with a bank guarantee and a surety agreement. A detailed analysis of outwardly similar methods of ensuring the fulfillment of obligations (guarantees, bank guarantees and state guarantees) clearly reveals their differences, indicating the different legal nature of these interim measures.

In our opinion, a guarantee obligation is an intersectoral concept that represents a social relationship (obligation), by virtue of which one person is obliged to fulfill an obligation for another person by virtue of a concluded contract, law or unilateral assumption of such an obligation. Variety warranty obligations There are bank guarantees, guarantees and state guarantees, which have different legal natures. Thus, the distinctive features of a state guarantee (public law) are the following: 1) it is regulated primarily by the norms of public law, and by the norms of private law only in the case expressly provided for in the law (Article 124 of the Civil Code of the Russian Federation)<1>; 2) the guarantor is the state, which independently determines the procedure for providing the guarantee, due to which the parties specified legal relationship not equal; 3) although it is carried out regarding material goods, its main goal is to stimulate the state of investment activity.

<1>This follows, among other things, from the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 22, 2006 No. 23 “On some issues of application arbitration courts norms of the Budget Code of the Russian Federation".

Legal relations under a state guarantee are primarily of a financial and legal nature. The financial and legal nature of the state guarantee, as rightly pointed out by S.O. Shokhin, is due to the following reasons:

special subject composition, since the guarantor is the state, which unilaterally determines the conditions and procedure for providing the state guarantee;
special procedure for accounting for the provision of guarantees, provided for in Art. 116 - 117 BC RF;
financial control by the state over the provision of guarantees;
fulfillment of obligations under the issued state guarantee is ensured state treasury <2>.

<2>Financial law: Textbook / Answer. ed. M.V. Karaseva. 2nd ed., revised. and additional M.: Yurist, 2006. P. 487.

In our opinion, there are all the prerequisites to determine legal nature the state guarantee as a public guarantee on the following grounds: this is evidenced by the nature of the legal regulation of the state guarantee; the indicated position is confirmed by the folding arbitrage practice; this is evidenced by the procedure for providing state guarantees; the state guarantee is part of the state loan, which, according to many scientists, and this opinion is shared by us, should be considered as a public legal category; the public law nature of the state guarantee follows from the mechanism for fulfilling the obligation by the guarantor (the Russian Federation, a constituent entity of the Russian Federation or a municipal entity); The public law nature of the state guarantee is also confirmed by the procedure for the execution of a judicial act on foreclosure on budget funds.

Let us dwell separately on the analysis of each of these arguments.

The legal basis for the regulation of state guarantees provided by the Russian Federation is the Budget Code of the Russian Federation and the laws on the budget of the Russian Federation. State guarantees issued by constituent entities of the Russian Federation are regulated at the level of constituent entities of the Russian Federation in the relevant laws adopted representative bodies authorities, or acts executive bodies authorities of the constituent entities of the Russian Federation<3>.

<3>See: Decree of the Government of the Stavropol Territory of June 25, 2003 N 113-p “On approval of the Procedure for providing state guarantees”; Law Yaroslavl region“On state legal guarantees of the Yaroslavl region”, adopted by the State Duma of the Yaroslavl region on January 30, 2001 (as amended by the Law of October 17, 2005 N 54-z); Regulations on the provision of state guarantees Rostov region on credit borrowings of enterprises and organizations // Appendix No. 3 to the Resolution of the Regional Administration of January 13, 2003 No. 17; Law Krasnoyarsk Territory dated June 24, 2004 N 11-2051 "On state guarantees of the Krasnoyarsk Territory."

The specified regulatory legal acts refer to financial legislation, and therefore the state guarantee is a financial and legal category. This approach does not contradict the model usually used Supreme Court of the Russian Federation, according to which “legal relations regulated by the relevant branch of legislation have this branch affiliation”<4>.

<4>See: Plakhina T.A. Financial and legal elements of legal relations emerging in the process of restructuring the obligations of a credit organization // Financial Law. 2003. N 1. P. 12; Samsonova A.E. Calculations in tax and budgetary spheres: Theory and practice. M., 2006. pp. 62 - 63.

At the same time, the nature of the legal relationship under the state guarantee is such that it also includes relations for concluding an agreement<5>, and therefore, we are talking about an obligation that is subject to regulation by the norms of the Civil Code of the Russian Federation on obligations; also includes issues related to the guarantor’s liability to a third party and the possibility of future recourse claims against the beneficiary, and these are the provisions of the Civil Code on liability for obligations.

<5>We will particularly focus on the analysis of the legal nature and nature of this agreement in Chapter. 2 of this study.

However, here, in our opinion, it is necessary to proceed from the fact that the presence in legal regulation state guarantee separate norms civil legislation, which are derivative in nature, does not change the legal nature of the state guarantee.

At one time M.M. Agarkov drew attention to the fact that “there are mixed institutions in which property legal relations are closely intertwined with other legal relations. Such institutions should be classified as civil law or another branch of law, depending on which relations are most characteristic of a given institution. The classification of such an institution not to civil law, but to another branch of law does not exclude the corresponding application of civil law norms to it"<1>.

<1>Agarkov M.M. Subject and system of Soviet civil law // Soviet state and right. 1940. N 8-9. P. 65.

The different nature of the connection between public and private legal relations was also noted by D.M. Genkin. " Administrative legal relationship in some cases, is the legal fact by virtue of which directly or in conjunction with others legal facts legal relations of other branches of law arise... But the connection of administrative-legal relations with legal relations of other branches of law may have a different character, when the same legal relationship contains elements of both administrative-legal regulation and elements of regulation by other branches of law, and these elements are organically connected between themselves"<2>. An example of such a relationship is a relationship under a state guarantee.

<2>Genkin D.M. On the issue of the system of Soviet socialist law // Soviet State and Law. 1956. N 9. P. 89.

The financial and legal nature of the state guarantee is confirmed by emerging judicial practice.

Thus, in the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 22, 2006 No. 23 “On some issues of application by arbitration courts of the norms of the Budget Code of the Russian Federation”<3>it was stated that “a state (municipal) guarantee is a method of ensuring the fulfillment of civil law obligations, not named in Chapter 23 “Ensuring the fulfillment of obligations” of the Civil Code of the Russian Federation, in which a public legal entity gives a written obligation to be responsible for the fulfillment by the person to whom the guarantee is given, obligations to third parties in whole or in part."

<3>Information and legal system "ConsultantPlus".

Article 329 of the Civil Code of the Russian Federation provides following methods to ensure the fulfillment of obligations: penalty, pledge, retention of the debtor's property, surety, bank guarantee, deposit, as well as other methods provided for by law or contract. At the same time, as can be seen from this article, the Civil Code of the Russian Federation does not limit the circle the said laws private law acts<4>.

ConsultantPlus: note.

Commentary on the Civil Code of the Russian Federation, part one (edited by T.E. Abova, A.Yu. Kabalkin) is included in information bank according to the publication - Yurayt, 2004.

ConsultantPlus: note.

Monograph by M.I. Braginsky, V.V. Vitryansky "Contract Law. General provisions"(Book 1) is included in the information bank according to the publication - Statute, 2001 (3rd edition, stereotypical).

<4>At the same time, an opposite point of view is expressed in the legal literature, with which one can hardly agree due to its lack of reasoning. So, A.A. Rubanov points out that “methods introduced by law, but not included in the list of Article 329 of the Civil Code, are enshrined in the Civil Code itself” // Civil Code of the Russian Federation. Part one. Scientific and practical commentary / Rep. ed. THOSE. Abova, A.Yu. Kabalkin, V.P. Mozolin. M., 1996. P. 523; a similar point of view was expressed by V.V. Vitryansky. See: Braginsky M.I., Vitryansky V.V. Contract Law: General Provisions. M., 1998. S. 385 - 386.

A state guarantee is a method of securing obligations provided for by public law - the Budget Code of the Russian Federation. Based on this, the Supreme Arbitration Court of the Russian Federation once again emphasized that legal relations involving public legal entities by virtue of clause 2 of Art. 124 of the Civil Code of the Russian Federation are subject to the application of the norms of the Civil Code of the Russian Federation defining the participation of legal entities in relations regulated by civil law, unless otherwise follows from the law or the characteristics of these entities<5>. This feature lies precisely in the public legal nature of relations under the state guarantee.

<5>Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 22, 2006 N 23 “On some issues of application by arbitration courts of the norms of budgetary legislation of the Russian Federation” // Information and legal system “ConsultantPlus”.

At the same time, as was shown earlier, the subsidiary application of the rules on a bank guarantee and surety to relations under a state guarantee is impossible due to the fact that these institutions have fundamental differences.

The public legal nature of the state guarantee is also confirmed by the fact that the state guarantee is part of the state loan, which, according to many scientists, and this opinion is shared by us, should be considered as a public legal category.

The conclusion that the state guarantee is part of the state loan follows from paragraph 7 of Art. 115 of the Budget Code of the Russian Federation. According to this article of the Code, the execution of state and municipal guarantees is subject to reflection in budget expenditures as the provision of loans. In our opinion, this is not just a question of form state accounting state guarantees. This is a question of whether a government guarantee falls under the legal nature of a government loan.

Most financial law scholars share the view that a state guarantee is integral part government loan. So, in particular, in the textbook “Financial Law” edited by M.V. Karaseva points out that state credit is a set of legal norms regulating public relations, emerging in the process, including the provision of government guarantees<1>.

<1>Financial law: Textbook / Answer. ed. M.V. Karaseva. 2nd ed. M., 2006. P. 487.

At the same time, it is necessary to take into account the fact that the state guarantee by virtue of Art. 98 - 100 of the Budget Code of the Russian Federation is an integral part of the public debt. Thus, a government guarantee is a form of debt obligation. As a form of debt obligations, it is a public legal category.

The problem of the relationship between the concepts of “public debt” and “state credit” is quite relevant and debatable in the theory of financial law<2>. According to one group of scholars, public credit is the management of public debt<3>. Thus, a supporter of this position E.V. Pokachalova points out that state credit and state debt should first of all be considered through the prism of the philosophical categories “cause” and “effect”, since the formation of state internal debt is a kind of economic and legal consequence of state credit relations, or rather, a consequence of the functioning of state credit<4>.

<2>
<3>Babich A.M., Pavlova L.N. State and municipal finance: Textbook for universities. M.: Finance; UNITY, 2000; Big economic dictionary/ Ed. A.N. Azriliyana. M.: Legal Culture Foundation, 1994; Vavilov Yu.Ya. State debt. M.: Fin. Academy under the Government of the Russian Federation, 1999; Myslyaeva I.N. State and municipal finance: Textbook. M.: INFRA-M, 2003; Somoev R.G. Budget deficit: causes, dynamics, regulation. St. Petersburg: Publishing house SPbGUEiF, 1999; Zhigaev A.Yu. The role of public debt in a market economy // Money and Credit. 2004. N 5; Smirnov O.V. State external debt of Russia: problems and prospects // Money and credit. 2002. N 8.
<4>See: Pokachalova E.V. State and municipal debt: problems of legal regulation.

According to another group of scientists, state credit and public debt must be classified as various industries <5>. So, M.M. Proshunin believes that the financial and legal institution of state credit should be divided into two independent financial and legal institutions of state debt and its own “state credit”. At the same time, according to the scientist, it is advisable to define public debt as a financial and legal institution as a system legal norms regulating social relations in which the state acts as a borrower or guarantor for the purpose of financing a deficit state budget, despite the presence of civil and administrative legal norms that also regulate relations in the area of public debt<6>. It seems that the author contradicts himself, since, defining the public debt in the manner indicated, he must recognize the nature of the state loan behind it.

<5>Braicheva T.V. Public finances. St. Petersburg: Peter, 2001; Vavilov A.P. Public debt: lessons from the crisis and principles of management. M.: LLC "Gorodets-izdat", 2003; Golovachev D.L. State debt. Theory, Russian and world practice. M.: CheRO, 1998; Trofimov G.Yu. External debt and monetary policy. M.: IEPG, 2001; Fedyakina L.N. Global external debt: theory and practice of settlement. M.: Economics, 1998; Shokhin A.N. Russia's external debt. M.: IPO "Poligran", 1996.
<6>Proshunin M.M. Financial and legal issues of managing the public debt of the Russian Federation. dis. ...cand. legal Sci. M., 2003. P. 9.

We see the most correct position according to which public debt is the result of the functioning of public credit. This point of view, on the one hand, corresponds to the concept of public debt developed by most economists. On the other hand, it finds its support in Art. 97 of the Budget Code of the Russian Federation. According to paragraph 1 of this article, the state debt of the Russian Federation is the debt obligations of the Russian Federation to individuals and legal entities, foreign states, international organizations and other subjects of international law, including obligations under state guarantees provided by the Russian Federation.

Moreover, from a legal doctrinal point of view, state credit is expressed in the form of: a) government loans; b) loans received by the Russian Federation from credit organizations, foreign states and international financial organizations; c) budget loans received by the Russian Federation; d) prolonged and restructured debt obligations of the Russian Federation of previous years; e) state guarantees<1>. This understanding of state credit corresponds to Art. 98 of the Budget Code of the Russian Federation<2>.

<1>Financial law: Textbook / Answer. ed. M.V. Karaseva. M., 2006. pp. 25 - 26.
<2>At the same time, this view of the legal nature of public debt is not shared by all scientists. For the most part, civil science denies the public legal nature of relations regarding public debt. Thus, a supporter of the private law nature of public debt V.G. Zalewski proposes to resolve the current issue by changing the terminology. Thus, in particular, he proposes to understand by a state loan the obligation to provide the Russian Federation with funds or other property to individuals and legal entities, constituent entities of the Russian Federation, municipalities, foreign states on return, fixed-term and on a paid basis. Whereas the relationship of provision of funds to the Russian Federation by citizens and legal entities with the obligation to return the stipulated amount to the lender and pay interest to V.G. Zalewski proposes to call it a state (federal) loan. See: Zalevsky V.G. Legal regulation of state (federal) loans in the Russian Federation. dis. ...cand. legal Sci. M., 2002. P. 24. 208 p. However, in our opinion, the use of the term “state loan” does not mean the automatic and unconditional classification of state credit as a private law category.

As S.O. rightly points out. Shokhin, state credit plays a dual role. “Firstly, in relations with public debt, it is aimed at generating additional funds in order to finance the main functions of the state. Secondly, in relations with public lending, it is aimed at distributing available funds to finance certain areas of government activity.”<3>. While generally agreeing with this position of the scientist, we would like to note the following. The provision of state guarantees is used in relations with public debt, because this form is used to generate additional funds for the state. At the same time, the state guarantee actually plays a supporting function, since the guarantee itself does not directly act as a source of financing government activities. The state guarantee only guarantees the return of incoming funds. Thus, in relations with public debt, the state guarantee has a secondary, providing function.

<3>Right there.

The public legal nature of the state guarantee follows from the mechanism for fulfilling the obligation by the guarantor (the Russian Federation, a constituent entity of the Russian Federation or a municipal entity).

In accordance with Art. 97, 99 of the Budget Code of the Russian Federation, obligations under issued state guarantees of the Russian Federation and constituent entities of the Russian Federation are included in the composition of the public debt of the Russian Federation and constituent entities of the Russian Federation, respectively. If warranty case has arrived, then the beneficiary applies to the Russian Ministry of Finance with a demand to fulfill the state guarantee. The Ministry of Finance checks the validity of the beneficiary's requirements and fulfills its obligations by transferring budget funds to the beneficiary's account. At the same time, when fulfilling an obligation by the guarantor, in particular, when collecting funds from the latter under the provided guarantee, the provisions of Art. 225 “Acceptance of monetary obligations”, Art. 227 “Expenditure of budget funds” and Art. 239 of the Budget Code of the Russian Federation "Immunity of budgets". According to specified articles payment of budget funds is carried out in a special manner, subject to the rules and principles of financial (budget) legislation.

The public legal nature of the state guarantee is also confirmed by the procedure for the execution of a judicial act on levying execution on budget funds in the event of failure by the guarantor - the state in voluntarily their obligations under the agreement on the provision of a state guarantee.

The current Budget Code of the Russian Federation in Ch. 24.1 provided for a special procedure for the execution of judicial acts to foreclose on funds from the budgets of the budgetary system of the Russian Federation. If the debtor state fails to fulfill its obligations under the concluded agreement for the provision of a state guarantee, collection may be carried out on the basis of a court decision. At the same time, the specified judgment cannot be executed in the same manner as it is executed in relation to other debtors - individuals and legal entities. Moreover, in this case the court will not apply Art. 395 of the Civil Code of the Russian Federation, which provides for the accrual of interest at the bank refinancing rate for the unlawful use of someone else’s in cash. This suggests only one conclusion: these relations are not private law, but have a public law nature.

Thus, if we recognize the private law nature of a state guarantee, then we will also have to recognize that responsibility for state guarantees and its implementation by the state must be subject to the norms of civil law or private law norms. But the state “responsible” for the state guarantee according to other, not private law, but public “rules”. That is, the nature of the execution of the state guarantee indicates its public legal nature.

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