OLGA PLESHANOVA'S COMMENTARY IN THE "ADVOKATSKAYA GAZETA"
JULY 9, the Arbitration Court of the Central District issued a ruling on case No. A54-7989/2023, in which the court explained: the powers in the power of attorney to perform registration actions on behalf of the company are not identical to the powers to perform disposal transactions on behalf of the principal, including the cancellation of the registration record of the mortgage.
The head of the analytical service of Infralex Olga Pleshanova, commenting on the approach of the cassation court, noted that the courts of first and appellate instances answered negatively to the questions:
- whether actions aimed at removing the encumbrance on property (pledge) are disposal transactions;
- whether it is possible to invalidate this transaction and apply the consequences in the form of invalidating the entry in the Unified State Register on the termination of the right of pledge.
The Arbitration Court of the Central District considered these findings to be erroneous, recognizing both the existence of the transaction and the possibility of challenging it, and referred the following questions to the court of first instance for consideration:
- how should the powers of the representative be formulated in the power of attorney, allowing the representative to perform administrative actions to remove the encumbrance in the form of a pledge on the property?
- what is the standard for proving the existence of collusion between the representative of a legal entity and the counterparty with whom the transaction was concluded, in the event of challenging this transaction under paragraph 2 of Article 174 of the Civil Code of the Russian Federation?
The expert explained that until recently an approach, in which a general formulation about the right to perform actions of a certain kind was equated with the presence of powers for administrative transactions, prevailed.
Today the practice is facing certain problems when an excessively broad scope of powers specified in the power of attorney in general terms allows the representative to commit actions detrimenting the interests of the represented.
For example, the case of Antik LLC (case No. A56-41853/2021), in which a representative of a citizen empowered to conclude settlement agreements in any of his principal's affairs concluded a settlement agreement in a bankruptcy case that the citizen did not even know about. The cancellation of the settlement agreement by the Supreme Court of the Russian Federation became the reason for discussions about the limits of the representative's powers, the rules for drawing up powers of attorney, and ways to protect principals from possible abuse.