The current state of mediation agreements in the private law of Russia and China
Taking into account the qualitative updating of civil legislation in Russia and China, the author, having analyzed the sources of mediation agreements, identifies common and special features in the legal regulation of legal institutions and suggests possible ways to develop contractual relations in the field of international and domestic mediation.
Keywords: private law, comparative law, contract, legal regulation of mediation.
In modern society, most spheres of life are based on contractual relations and when international trade relations are disrupted due to sanctions or other circumstances, the activity of entrepreneurs (business structures) increases and the search for new foreign markets for the organization of export and import of goods is revived.
Mastering the market of a country presupposes knowledge of its legal doctrine, current legislation and law enforcement practice of the state.
Under these conditions, the renewal of private law institutions in both Russia and China, including contractual relations in the field of mediation, makes it possible to identify common and special features in the legal regulation of mediation agreements and propose a model for their implementation in the export-import of goods on the territory of states.
The application of the comparative legal method on the affected issues serves to harmonize domestic private law with the national traditions of Chinese law in the field of trade, when it was possible to overcome the lag <1> and build a coherent system of civil law and civil legislation.
--------------------------------
<1> Legal risks in the public administration system: Number of monographs / Edited by V.I. Avdiysky, M.A. Lapina. M.: FROM and TO, 2014. 248 p.
In the science of civil law in both Russia and China, there is no single approach defining the concept of mediation agreements, their place and role in the system of contract law, and the theory of contractual mediation has differences that must be taken into account and used in business activities.
In the theory of contractual mediation, the main normative legal acts regulating mediation relations in both Russia and China are the Civil Codes (hereinafter - the Civil Code of the Russian Federation, the Civil Code of the People's Republic of China) <2>, which classify the types of contracts, disclose their contents and enable entrepreneurs to apply contractual relations in business for the sale of goods, and also use it in organizing the export of goods from Russia to the Chinese market and, accordingly, the import of goods to the Russian market.
--------------------------------
<2> The Civil Code of the Russian Federation (part 1) of November 30, 1994 N 51-FZ (as amended on 02/25/2022) // SZ RF. 1994. N 32. St. 3301; The Civil Code of the Russian Federation (part 2) of January 26, 1996 N 14-FZ (as amended on 07/01/2021, with ed. from 07/08/2021) (with amendments and additions, introduction. effective from 01.01.2022); The Civil Code of the People's Republic of China dated May 28, 2020, adopted at the 3rd session of the National People's Congress of the Thirteenth convocation (entered into force on 01.01.2021) / Ed. P.V. Troshchinsky. M.: Sinosphere, 2020. 446 p.
In 1999, the Law of the People's Republic of China "On the Contract" of March 15, 1999 was adopted, and as a result, the Law of the People's Republic of China "On the Economic (Economic) Contract" of December 13, 1981 was terminated (as amended. dated 02.09.1993), the Law of the People's Republic of China "On Technical Agreement" dated June 23, 1987, the Law of the People's Republic of China "On Foreign Economic Agreement" dated March 21, 1985.
Yerbakhaev E.A. <3>, Wang Zhihua <4>, Troshchinsky P.V. <5> rightly noted that since January 1, 2021, civil law norms regulating contractual relations have entered into force in the Civil Code of the People's Republic of China (Sec. 3 "Contracts"), where intermediary agreements are also fixed: a guarantee agreement (Articles 681 - 702), a commission agreement (Articles 951 - 960), an agency agreement (art. 961 - 966).
--------------------------------
<3> Yerbakhaev E.A. New basic provisions of the civil law of the People's Republic of China // Bulletin of St. Petersburg State University. 2019. Vol. 10. N 2. pp. 390 - 403.
<4> Wang Zhihua. The way of codification of civil legislation in China // Lex russica. 2020. N 3(160). pp. 135 - 139.
<5> Troshchinsky P.V. The Civil Code of the People's Republic of China. Introductory article. Moscow: Sinosphere, 2020. pp. 37-41.
As in the Civil Code of the Russian Federation, other intermediary agreements are fixed in the Civil Code of the People's Republic of China: a financing agreement for the assignment of a monetary claim (Articles 761-769), a financial lease agreement (Articles 735-760).
It is appropriate to note that in the science of private law in both Russia <6> and the People's Republic of China <7> such concepts as "mediation activity" and "mediation contracts" are not fully disclosed, and there is no unified judgment on the criteria for classifying such contracts.
--------------------------------
<6> Braginsky M.I., Vitryansky V.V. Contractual law. Book 3. Contracts for the performance of works and the provision of services. M.: Statute, 2002. pp. 247, 403, 463, etc.; Belov V.A. Civil law: actual problems of theory and practice / Under the general editorship of V.A. Belov. M.: Yurayt, 2008. pp. 411-448; Commentary on the Civil Code of the Russian Federation / Edited by S.A. Stepanov. 4th ed. M.: Prospekt; Yekaterinburg: Institute of Private Law. pp. 902, 912, 922, etc.; Kharitonova Y.S. Mediation agreements in private law of Russia: on the issue of classification criteria // Bulletin of the Nizhny Novgorod University named after N.I. Lobachevsky. 2014. N 3(2). p. 258-260 , etc .
<7> Nyrova N.N. Comparative analysis of mediation agreements in the law of Russia and China and their application for the organization of the export of Russian goods to the PRC market: Abstract ... cand. Jurid. sciences'. Vladivostok, 2003. pp. 11-15; Varavenko V.E. Formation and development of contract law of the People's Republic of China // Journal of Foreign Legislation and Comparative Jurisprudence. 2012. N 2; Lu Jing. The law applicable to contractual obligations under Russian and international private law: Abstract ... cand. Jurid. M., 2010. pp. 7-9; Truntsevsky Yu.V. Intellectual piracy: civil and criminal law counteraction measures. Moscow: Yurist, 2002. 280 p.; Liu Jun Ping. Codification of civil legislation in the People's Republic of China: Abstract. dis. ... cand. Jurid. M., 2010. pp. 13-19; Wang Zhihua. Decree. op. pp. 135 - 139, etc.
At the same time, in the process of analyzing the civil legislation of Russia and the People's Republic of China, reviewing the scientific works of Abramova O.A. <8>, Savinova Yu.A., Rybets D.V., Li A. <9> and other researchers, the author's conclusion was made that "mediation activity" is the activity of one person (mediator) in the interests of another person (represented) by performing actual and legal actions on behalf of oneself or on behalf of a representative for remuneration.
--------------------------------
<8> Abramova O.A. Comparative analysis of contractual structures of the commission and instructions under the legislation of Russia and foreign countries // International Journal of Humanities and Natural Sciences. 2018. N 5-2. pp. 230-232.
<9> Savinov Yu.A., Rybets D.V. Intermediary activity in international trade // Russian Foreign Economic Bulletin. 2017. N 2. pp. 24 - 42; Li A. Differentiation of transactions of representation and mediation // Legislation and economics. 1995. N 11 - N 12.
These actions are performed by an intermediary on the basis of an assignment agreement (Article 971 of the Civil Code of the Russian Federation), an agency agreement (Article 1005 of the Civil Code of the Russian Federation) or a commission agreement (Article 990 of the Civil Code of the Russian Federation), a trust management agreement (paragraph 4 of Article 209 and paragraph 1 of Article 1012 of the Civil Code of the Russian Federation).
According to the general rules, legal actions include the conclusion of transactions, and actual ones include services for preparing and conducting negotiations, providing information collection services, advertising, etc.
The traditional scientific approach is that mediation contracts are contracts of assignment, where the intermediary acts on behalf and at the expense of the client, and commission contracts, where the intermediary acts on his own behalf, but at the expense of the client.
It should be noted that legal scholars, in particular Nyrova N.N. <10>, consider intermediary agreements regulated by civil law, both in Russia and in China, such as: an assignment agreement and a commission agreement, an agency agreement, and also highlight agreements regulated only by Russian law: the institute of commercial representation, a contract for the provision of paid services.
--------------------------------
<10> Nyrova N.N. Decree, Op. pp. 9-12, etc.
N.N. Nyrova identifies a simple ("pure") mediation agreement, which is fixed only in Chinese legislation, as well as contracts for trust management of property, commercial concession, leasing (financial lease) and factoring (financing for the assignment of a monetary claim) inherent in the civil legislation of Russia, into a separate group of contracts.
Intermediary agreements are a group of agreements provided for by the Civil Code of the Russian Federation, under the terms of which one party undertakes to perform any actions in the interests of the other party, as a rule, transactions.
Intermediary agreements are classified by type and form of content.
In accordance with Article 990 of the Civil Code of the Russian Federation, one party (commission agent) under the commission agreement on behalf of the other party (the committeeman), he always makes transactions on his own behalf for a fee, but at the expense of the committeeman. The rights and obligations under transactions carried out by the commission agent with third parties arise for the commission agent.
According to the contract of assignment, one party (attorney) always performs certain legal actions on behalf and at the expense of the other party (principal). The rights and obligations under the transaction performed by the attorney arise directly from the principal (Article 971 of the Civil Code of the Russian Federation).
In the agency agreement, according to Article 1005 of the Civil Code of the Russian Federation, one party (agent) performs legal or other actions on behalf of the other party (principal) and at his expense both on his own behalf and on behalf of the principal.
Within the framework of an agency agreement, the rights and obligations of the parties to transactions made by an agent with third parties depend on on whose behalf the agent acts. Despite the fact that all intermediary agreements have specific features that allow them to be considered as independent civil law transactions, they have common characteristics.
All of the above types of contracts are reimbursable.
The contract of assignment may be gratuitous, but only if it is fixed in the contract itself.
The intermediary always acts in the interests of the customer and at his expense. Ownership of the goods sold, however, as well as of all receipts, never passes to the intermediary. What he receives from third parties is the property of the customer and is subject to transfer to the latter. Settlements between the customer and third parties can be made either directly with the participation of an intermediary, or without it.
In order to ensure the unity of practice in the application by courts of legislation on the conclusion and interpretation of a contract, the Plenum of the Supreme Court of the Russian Federation (hereinafter referred to as the Supreme Court of the Russian Federation) adopted Resolution No. 49 dated December 25, 2018 "On certain issues of application of the General Provisions of the Civil Code of the Russian Federation on the conclusion and interpretation of a contract" <11> and provided clarifications on the conclusion and interpretation of contracts, the legal qualification of contracts, including intermediary contracts.
--------------------------------
<11> Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 25, 2018 N 49 "On some issues of application of the general provisions of the Civil Code of the Russian Federation on the conclusion and interpretation of the contract.
In some cases, the Supreme Court of the Russian Federation attaches particular importance to certain categories of mediation agreements in the framework of issues related to disputes about the legality of conclusion, execution, termination and interpretation, for example, sureties <12>.
--------------------------------
<12> Draft Resolution of the Plenum of the Supreme Court of the Russian Federation dated December 17, 2020 "On some issues of dispute resolution on surety".
Thus, the draft Resolution of the Plenum of the Supreme Court of the Russian Federation "On certain issues of dispute resolution on surety" dated December 17, 2020 included 56 legal positions combined into eight sections. By sending it for revision, the supreme judicial body recognized that it is impossible to violate the basic principle of freedom of contract, the purpose of which is to protect the weak side of the contract, protect the interests of creditors or public interests (state, society).
In the same way, the Supreme People's Court of the People's Republic of China provides clarifications within the framework of contract law <13>, and in our case on procedures related to the conclusion, execution, termination of intermediary agreements, their proper classification and interpretation.
--------------------------------
<13> Fokov A.P. Judicial explanations of the Supreme People's Court of the People's Republic of China, taking into account the provisions of the new Civil Code of the People's Republic of China // Problems of Economics and legal practice. 2020. N 5. pp. 191-196.
Thus, Chinese civil lawyer Wang Zhihua <14>, emphasizing the importance of judicial clarifications in the development of civil law of the People's Republic of China in general and contract law in particular, highlights the special role of the Supreme People's Court of the People's Republic of China in giving judicial clarifications in order to ensure uniformity of judicial practice in cases arising from contractual legal relations, including those regulating the provision of mediation services.
--------------------------------
<14> Wang Zhihua. On the role of judicial clarifications in the development of civil law in the People's Republic of China // Russian Judge. 2012. N 4. pp. 34-36.
In case of gaps in civil legislation, the Supreme People's Court of the People's Republic of China, within its competence, clarifies the provisions of contract law, clarifies issues related to the conclusion, execution and termination of contracts, changes in the amount of the penalty and the validity (invalidity) of contracts <15>.
--------------------------------
<15> The Supreme People's Court of the People's Republic of China "On some issues of the application of the Law "On Contracts". Explanation No. 5-2009.
It should be noted that the judicial explanation differs from the interpretation of the current provisions of the Civil Code of the People's Republic of China, which is given only by the legislative body - the Standing Committee of the National People's Congress (hereinafter - the PC of the National People's Congress), and its explanations have the force of law.
Thus, the PC of the National People's Congress has the authority of legal interpretation of contracts (intermediary agreements), and the Supreme People's Court of the People's Republic of China has the authority of judicial interpretation.
Almost all judicial clarifications on the relationship between the will and the will of the parties to contractual relations related to the conclusion of mediation agreements made it possible to eliminate ambiguities in the interpretation of civil law norms and eliminate their ambiguity in the Civil Code of the People's Republic of China.
Thus, an agency agreement is an agreement under which the intermediary (agent) informs the guarantor (principal) about favorable circumstances for concluding the contract or provides intermediary services for the purpose of concluding the contract, and the principal pays remuneration (Article 961 of the Civil Code of the People's Republic of China).
This type of contract was previously provided for in Chapter 23 of the Law of the People's Republic of China "On Contracts" dated March 15, 1999. <16>
--------------------------------
<16> The Civil Code of the People's Republic of China dated May 28, 2020, adopted at the 3rd session of the National People's Congress of the Thirteenth convocation (entered into force on 01.01.2021) / Ed. P.V. Troshchinsky. M.: Sinosphere, 2020. p. 38.
The Civil Code of the People's Republic of China supplemented the content of the agency agreement with the provision that if the client, bypassing the intermediary, directly enters into an agreement with another person using the services of an intermediary (or information provided by the intermediary), the client is obliged to pay the intermediary the remuneration provided by the mediation agreement for the services rendered (Article 965 of the Civil Code of the People's Republic of China).
Thus, the legislator protects the interests of intermediaries, since, as a general rule, remuneration is paid to the intermediary only if his actions contributed to the conclusion of the contract, and if the contract was not concluded, the intermediary cannot demand payment of remuneration.
A comparative legal study of the main mediation agreements in Russia and China allows business participants to creatively apply agreements in foreign trade, as well as in other areas of economic cooperation, can create new relationships and new opportunities for participants.
