The Problem of Attribution of Rights and Obligations Arising in the Process of Trust Management

Ibragimov Konstantin Yrievich ORCID: 0009-0003-7909-5734 Postgraduate student; Faculty of Law; St. Petersburg State University 199106, Russia, Saint Petersburg, Bolshoy Vasilyevsky Island ave., 71 ibragimovkj@gmail.com Other publications by this author

Introduction

Despite a number of works on the topic of trust management of property in Russian law, including monographs by O. R. Zaitsev ^[1], Z. E. Benevolenskaya ^[2], A. A. Ilyushenko ^[3], as well as a number of dissertation studies ^[4-8], the study of this institute, especially in the aspect of property isolation, is insufficient. In particular, the need for an independent study of the problem of ownership of rights and obligations in trust management "within the framework of one or even several independent studies" was pointed out by A.V. Egorov in 2002 ^{[9, p. 128]}, however, since then only one small article by O. R. Zaitsev has been published on this issue ^[10].

The relevance of the study is due to the fact that this problem has direct practical significance, and at the level of positive law and judicial practice, legal uncertainty on this issue still persists.

The research used general scientific methods of cognition: analysis, synthesis, comparison, modeling. In addition, private scientific methods were used: the normative and the method of economic analysis of law.

1. Property isolation and the problem of legal personality

Trust management is of the greatest interest for the purposes of studying the problem of detached property, since the property under trust management, and especially the property constituting a mutual investment fund, not only has signs of property isolation characteristic of a legal entity, but also actively participates in property turnover, without being formally a legal entity.

In the framework of the previous study, we proved that for the recognition of property with significant signs of property isolation, there are no theoretical obstacles to the recognition of its legal personality, and, from the point of view of practical use, the recognition of such property as a legal entity is desirable ^[11]. Within the framework of this study, it is proposed to consider the problem of ownership of rights and obligations arising in the process of trust management, which arises in connection with the non-subjective separation of property, which currently exists at the level of positive law.

Usually, the ownership of rights and obligations to a particular person determines which property creditors are entitled to claim under the relevant obligation. At the same time, in the case of trust management, the property masses that the creditor is entitled to claim are established by direct prescription of the law and therefore they are not directly related to the issue of ownership of obligations to a specific person: first, foreclosure occurs on the property held in trust, then on the property of the manager, and then on the personal property of the founder of the management (paragraph 3 Article 1022 of the Civil Code of the Russian Federation). Article 16 of Federal Law No. 156-FZ dated 11/29/2001 "On Investment Funds" (hereinafter referred to as the "Law on Investment Funds"), in relation to the trust management of mutual investment funds, establishes an additional limitation of liability — the impossibility of foreclosing on the personal property of shareholders.

This procedure of liability leads to the fact that such property is separate in the understanding of the theory of separate property by G. Hansman and R. Kraakman ^[12]. The analysis of the isolation of property under trust management in the context of the above theory has already been carried out by V. V. Podsosonnaya ^[13], therefore we will not dwell on this aspect in detail.

This state of affairs, of course, raises questions related to the theoretical justification of the established procedure of responsibility, which could be eliminated by recognizing the legal personality of such an entity, however, in our opinion, the isolation of such property also leads to problems of direct practical importance, the solution of which must be found within the framework of the current positive law.

2. The problem of ownership of rights and obligations

2.1. Regulatory regulation

In the absence of recognition of legal personality for separate property held in trust, the rights and obligations that arise under contracts concluded by the trustee may be attached either to the founder of the management or to the trustee, however, the law does not give a direct answer to this question, offering instead contradictory provisions: paragraph 3 of Article 1012 of the Civil Code The Russian Federation, which states that the trustee enters into an agreement "on his own behalf", and paragraph 2 of Article 1020 of the Civil Code of the Russian Federation, which says that the rights acquired as a result of trust management are included in the property transferred to trust management.

A number of researchers have drawn attention to this problem. (1) A.V. Egorov: "the answer to the question is ambiguous, whether, in fact, the trustee is a party to the transaction, as the bearer of subjective rights and obligations from it" ^{[9, p. 128]}, (2) O. R. Zaitsev also devoted one small work to describing part of the contradictions related to the ownership of rights and obligations ^[10] and later came to the following conclusion: "the current general model of the DO is actually trying to connect two incompatible structures — the DO based on the transfer of rights and the DO based on representation" ^{[1, p. 101]}.

In the doctrine, one can find the position that the bearer of rights and obligations is the trustee ^{[2, p. 112]}. This is probably due to the fact that decisive importance is attached to the wording used in paragraph 3 of Article 1012 of the Civil Code of the Russian Federation "on its own behalf". The use of the wording "on one's own behalf" / "on behalf of another" is characteristic of the problem of distinguishing relations under the contract of assignment and commission, where it depends on who acquires the rights and obligations under the concluded contract.

The disadvantage of such a decision is due to the complete disregard of paragraph 2 of Article 1020 of the Civil Code of the Russian Federation, which says that property acquired as a result of trust management is included in the property transferred to trust management, and since it is indisputable that the owner of such things is the founder of the management (paragraph 1 of Article 1012 of the Civil Code of the Russian Federation), then and a similar property regime should be applied to the rights of obligations — belonging to the founder of the management.

The phrase "on his own behalf" should be understood in a different way than in the commission's contract, as suggested by V. A. Dozortsev: "the rule on the manager's speaking on his own behalf serves his interests, expressing his independence in decision-making, freedom from interference by the owner, the inadmissibility of revoking the powers of the manager. At the same time, the manager must indicate that he is not acting in a personal capacity, but represents the property under management" ^[14].

At the same time, theoretically, an interpretation option is possible that is able to harmonize the provisions of Articles 1012 and 1020 of the Civil Code of the Russian Federation, in which "property" in Article 1020 of the Civil Code of the Russian Federation means only assets that belong to the founder of the management, and paragraph 3 of Article 1012 of the Civil Code of the Russian Federation indicates that the trustee is obligated under contracts. In other words, there is a division of rights and obligations under such agreements between the founder of the management and the trustee. O. R. Zaitsev, for example, considers such a division strange ^{[10, p. 41]}.

It should be noted that such a division does not seem so strange to us, since it looks like a different regime of rights and obligations peculiar to a classic trust. The classic English trust consists only of assets, and all duties assumed in connection with the management of the trust's assets are the personal duties of the manager himself ^[15]. At the same time, we agree that Russian law does not have prerequisites for a different regime of rights and obligations, since in accordance with paragraph 3 of Article 1022 of the Civil Code of the Russian Federation, debts related to trust management are primarily repaid at the expense of property held in trust, which is a significant difference from a classic trust, where such The separation is justified.

With such a division, increased interest arises in relation to property obligations, i.e. such obligations in which the owner of the object is obligated. In judicial practice, there is an example of a situation where a dispute arose about who is obligated to pay for utilities: shareholders or a trustee. In this case, the court rightly pointed out that "In accordance with paragraph 2 of paragraph 1 of Article 10 of Federal Law No. 156-FZ dated 11/29/2001 "On Investment Funds", it directly establishes that the mutual fund is not a legal entity, from which it can be concluded that it is not a subject of civil law at all, and as a result, he lacks the ability to acquire and exercise property and personal non-property rights on his own behalf, bear obligations, be a plaintiff and a defendant in court (paragraph 1 of Article 48 of the Civil Code of the Russian Federation)," however, he further made an indisputable conclusion that it is the trustee who has "legal personality in relation to a separate property complex of a unit investment fund", from which, in turn, he has already drawn a conclusion directly contrary to the law, indicating that the manager is the owner of the detached property (Resolution of the Arbitration Court of the Moscow District dated 09/29/2022 No. F05-18102/2022 in case No. A40-1322/2022). There is a similar practice regarding the ownership of utility payment obligations to the management company (Resolution of the Federal Antimonopoly Service of the Far Eastern District dated 01/21/2003 No. F03-A73/02-1/2903).

Thus, at the level of judicial practice, the idea of dividing rights and obligations between the founder of the management and the manager is also not supported. Moreover, the court is even inclined to go into direct contradiction with the law, but not to recognize the separation of rights and obligations.

It should also be noted that in the legislation there is still a direct answer to the question of ownership of rights and obligations, but the location of such an answer does not allow us to give it decisive importance: paragraph 12 of Article 3 of Federal Law No. 335-FZ dated 11/28/2011 "On Investment Partnership", in relation to the situation of entering into an investment partnership property located in in trust management, it directly indicates that all rights and obligations related to such property belong to the founder of the management, but are carried out and executed by the manager.

Despite the fact that within the framework of the current regulation, which does not recognize the legal personality of the detached property itself, such an option (ownership of rights and obligations to the founder of the management / shareholders) seems to us the most correct (O. R. Zaitsev inclines to the same conclusion ^{[10, p. 42]}), it is not fully optimal, which will be further It is demonstrated by the example of judicial practice, in which this issue is resolved differently each time.

2.2. Ownership of rights and obligations during the lease

The founder of the management transfers real estate to the trust management, and the trustee has a desire to rent this property — can he do this? The law does not contain a direct prohibition on making such a transaction, any political and legal obstacles are also not obvious (provided that the trustee makes this transaction on market terms), but a theoretical obstacle may arise due to the fact that if, on the basis of paragraph 3 of Article 1012 of the Civil Code of the Russian Federation, we recognize that the bearer of rights If the trustee is responsible, it turns out that he becomes both a debtor and a creditor in the same obligation.

This issue was the subject of judicial review, and in the framework of this case, the courts actually concluded that the rights and obligations under such a transaction arise from the founder of the management. The reasoning on the part of the courts cannot be called exhaustive, since the courts referred to Article 1020 of the Civil Code of the Russian Federation and completely ignored the provisions of paragraph 3 of Article 1012 of the Civil Code of the Russian Federation, in fact avoiding resolving the conflict between the two norms described above (Resolution of the Ninth Arbitration Court of Appeal dated December 13, 2011 No. 09AP-31511/2011-AK in case No. A40-76017/11-75-313).

It can be assumed that such a decision was dictated by the desire to preserve the concluded agreement in the absence of an outright ban and avoid solving a general theoretical problem. However, in situations where a lease agreement is concluded with a third party, judicial practice tends to the opposite conclusion that it is the manager who is obligated under the lease agreement (Ruling of the Supreme Court of the Russian Federation dated 02/21/2022 No. 305-ES21-28867 in case No. A40-181026/2020; Ruling of the Arbitration Court of the Central District dated 02/16/2023 No. F10-5775/2022 on case no. A36-4354/2021).

In this regard, another thing is interesting: would the approach of the court change if the lessee were not the trustee, but the founder of the management? In this case, the situation would be even more complicated, in addition to the possible coincidence of the debtor and the creditor in one person, there may also be a problem of the right to lease your thing. This situation can be criticized due to the lack of economic sense, however, it should be noted that in practice it is quite common in relation to mutual funds when the latter are used to regulate the tax burden.

Since there are formally no grounds to recognize the property in trust as an independent entity, it will inevitably be necessary to recognize that either in the first or in the second case there is a situation of coincidence of the debtor and the creditor in one person, which normally should lead to the termination of the obligation (Article 413 of the Civil Code of the Russian Federation). At the same time, in our opinion, the establishment of such a coincidence does not mean the impossibility of the existence of such a construction, since Article 413 of the Civil Code of the Russian Federation explicitly states that the termination of the obligation by the coincidence of the debtor and the creditor does not occur in cases where the essence of the obligation implies otherwise. It seems that it is precisely the different legal regime of rights and obligations that coincide in one person, caused by their property isolation, that may not allow them to cease. Thus, in our opinion, the coincidence of the debtor and the creditor in one person should not be an obstacle to the possibility of concluding such agreements, regardless of who is considered a party to the obligation.

2.3. Ownership of rights and obligations in connection with the change of the manager

The issue of ownership of rights and obligations under concluded contracts also becomes crucial in a situation where there is potentially a situation of a change of person in the obligation. Such situations may include, in particular, the following: (1) termination of the trust management relationship; (2) a change in the figure of the trustee, which may occur either by the decision of the founder of the management (shareholders), or by the decision of the manager himself.

The change of the manager is on his initiative. In accordance with paragraph 5 of Article 11 of the Law "On Investment Funds", the management company, if provided for by the rules of trust management, has the right, in accordance with the procedure established by the Bank of Russia, to transfer its rights and obligations under the trust management agreement to another management company. Despite the fact that in this paragraph, strictly speaking, we are talking about the rights under the trust management agreement, and not about the rights associated with it, the Bank of Russia indicates that the condition for the transfer of rights and obligations to another management company is the consent of creditors: "The management company is obliged to take measures to obtain from all persons who are creditors for obligations related to the implementation of trust management of a mutual investment fund, written consent to transfer the debt under such obligations to a legal entity to which the rights and obligations of the management company are transferred under the trust management agreement of the mutual investment fund" (Resolution of the Federal Securities Commission of the Russian Federation dated 11.09.2002 No. 37/ps).

The wording used "is obliged to take measures to obtain consent", rather than "is obliged to obtain consent", raises questions, but, as we understand, judicial practice perceives this rule as an obligation to obtain appropriate consent, without which it is impossible to change the management company (Resolution of the Arbitration Court of the Central District dated 12/18/2018 No. F10-5335/2018 in case No. A23-3420/2014). Thus, in this situation, the Bank of Russia and judicial practice proceed from the fact that the rights and obligations under contracts concluded in the process of trust management belong to the management company.

It remains unclear whether such a transfer of responsibilities is considered as a transfer of debt on the basis of an agreement, which, as a general rule, requires the consent of the creditor and the instruction of the Central Bank simply states such a need, or is considered as an exception to the general rule that the transfer of debt by virtue of the law does not require the consent of the creditor — in this case, it does not matterthat is of practical importance, but will be of fundamental importance for the following.

Change of the management company by the decision of the shareholders. The change of the management company may also take place in accordance with clause 2, clause 9, Article 18 of the Law "On Investment Funds" on the basis of a decision of the general meeting of shareholders. The difference in this situation lies in the fact that in this case it is not explicitly provided anywhere that the consent of creditors to transfer the debt is required.

It seems logical that the ownership of rights and obligations should not change depending on the reason for the change of the management company, but no, in this situation we find the exact opposite practice: "the right to lease land belonging to the owners of investment units of the Fund has not ceased due to the transfer of rights and obligations under the trust management of the Fund to another the management company. Thus, when transferring rights and obligations under the trust management agreement of the Fund, there was no change in the owner of the Building, the ownership of the Building and the right to lease the land remain with the owners of the investment units of the Fund" (Resolution of the Ninth Arbitration Court of Appeal dated 01.11.2022 No. 09AP-64515/2022 in case No. A40-116787/2022). In other words, the court recognized that the rights and obligations under the lease agreement belong to the shareholders themselves, and not to the management company.

It should be noted that in the above court decision there is an indication that the original management company notified the lessor of the shareholders' decision and asked for consent to transfer the debt, i.e. they assumed that the rights and obligations belong to the manager.

At the same time, there is a directly opposite practice with regard to the rights to use a water body (Decision of the Tenth Arbitration Court of Appeal dated 09/14/2023 No. 10AP-15915/2023 in case No. A41-5516/2023). In this case, the new management company applied for the renewal of the right to use the water body, but was refused, since the court indicated that the permit was issued to the management company, and not to each of the individual members of the mutual investment fund, therefore, when changing the management company, a new permit is required, and not the renewal of the old one. Thus, the court proceeded from the ownership of the right to use the water body by the management company, and not by the shareholders.

Assuming that the judicial practice in this case also consistently proceeded from the fact that the rights and obligations belong to the manager, then the decision on the need for consent depended on the problem described above: should such a transfer of rights and obligations be considered as a transition into force of law, which, as a general rule, does not require the consent of the creditor? In our opinion, the answer should be in the affirmative, since by the decision of the shareholders there is a change of the management company and the very fact of such a change leads to the transfer of rights and obligations, moreover, it seems extremely unreasonable to make the possibility of shareholders to change the manager dependent on the will of creditors.

At the same time, it is necessary to note the downside of such a decision: the change of the management company directly affects the interests of creditors, since the solvency of the manager determines the amount of property available to creditors from which they can satisfy their claims. However, it seems that this circumstance should not be perceived as a significant obstacle, since the fund's counterparties should primarily rely on the property that makes up the fund, which does not change in composition when the manager changes. Moreover, the financial position of the management company itself is difficult to determine, since it bears subsidiary responsibility for the "debts" of other funds.

Conclusion

According to the results of the conducted research, it can be concluded that the lack of independent legal personality of the property in trust management forces to recognize the rights and obligations arising from contracts concluded by the manager in the process of trust management, belonging either to the manager or the founder of the management. The current regulatory regulation by itself does not allow us to draw an unambiguous conclusion about who is a party to such obligations.

If we strictly raise the question of the ownership of the rights and obligations that arise in trust management within the framework of current regulatory regulation, then a more reasonable, although not ideal, solution would be to recognize them as belonging to the founder of the management.

Judicial practice resolves the issue of the side of such an obligation, indicating in some cases that the rights and obligations belong to the founder of the management, and in others that they belong to the trustee. This state of affairs, of course, cannot be called satisfactory, since, from the point of view of the theory of civil law, the situational definition of the party to the obligation is a clear defect in regulation, and from a practical point of view, this does not allow achieving the necessary certainty and predictability of regulation.

At the same time, in each of these cases, the decision in itself looks quite reasonable in the sense that it is more consistent with the essence of the emerging relationship than it proves the limitations of any attempts to unambiguously attach them to one or another person and justifies the need to recognize the independent legal personality of such property.