Chapter 1. General provisions

Article 1. Subject of regulation of this Federal Law

This Federal Law establishes the legal basis for the implementation of microfinance activities, determines the procedure for state regulation of the activities of microfinance organizations, establishes the size, procedure and conditions for providing microloans, the procedure for acquiring the status and carrying out the activities of microfinance organizations, as well as the rights and obligations of the authorized body in the field of microfinance activities.

Article 2. Basic concepts used in this Federal Law

1. For the purposes of this Federal Law, the following basic concepts are used:

1) microfinance activity - the activity of legal entities having the status of a microfinance organization, as well as other legal entities entitled to carry out microfinance activities in accordance with Article 3 of this Federal Law, to provide microloans (microfinance);

2) microfinance organization - a legal entity registered in the form of a foundation, autonomous non-profit organization, institution (except for a budgetary institution), non-profit partnership, business entity or partnership, carrying out microfinance activities and entered into the state register of microfinance organizations in the manner prescribed by this Federal Law ;

3) microloan - a loan provided by the lender to the borrower on the terms provided for in the loan agreement, in an amount not exceeding one million rubles;

4) microloan agreement - a loan agreement, the amount of which does not exceed the amount established by paragraph 3 of this part;

5) authorized body - a federal executive body exercising the functions of developing state policy, legal regulation in the field of banking, control and supervision in the field of credit cooperation, development of state policy, control and supervision in the field of microfinance activities, determined by the Government of the Russian Federation .

2. The concepts and terms used in this Federal Law of civil and other branches of legislation of the Russian Federation are used in the meaning in which they are used in these branches of legislation of the Russian Federation.

Article 3. Legal basis of microfinance activities

1. The legal basis for microfinance activities is determined by the Constitution of the Russian Federation, the Civil Code of the Russian Federation, this Federal Law, other federal laws, as well as other regulatory legal acts adopted in accordance with them.

2. Microfinance organizations carry out microfinance activities in the manner established by this Federal Law.

3. Credit organizations, credit cooperatives, pawnshops, housing savings cooperatives and other legal entities carry out microfinance activities in accordance with the legislation of the Russian Federation regulating the activities of such legal entities.

Chapter 2. Conditions for the implementation of activities by microfinance organizations

Article 4. Maintaining the state register of microfinance organizations

1. The entry of information about a legal entity into the state register of microfinance organizations, the refusal to enter information about a legal entity into the specified register and the exclusion of information about a legal entity from the state register of microfinance organizations are carried out by the authorized body in accordance with this Federal Law.

2. The authorized body establishes the procedure for maintaining the state register of microfinance organizations.

3. The state register of microfinance organizations is maintained on paper and electronic media. If there is a discrepancy between records on paper and electronic media, records on paper take precedence.

4. Maintaining the state register of microfinance organizations on electronic media is carried out in accordance with unified organizational, methodological, software and technical principles that ensure compatibility and interaction of this register with other federal information systems and networks.

5. Information contained in the state register of microfinance organizations is open and publicly available.

6. For entering information into the state register of microfinance organizations, a state fee is charged in accordance with the legislation of the Russian Federation on taxes and fees.

Article 5. Acquiring the status of a microfinance organization

1. A legal entity registered in the form of a foundation, autonomous non-profit organization, institution (except for a budgetary institution), non-profit partnership, business entity or partnership, acquires the status of a microfinance organization from the date information about it is entered into the state register of microfinance organizations and loses the status of a microfinance organization from the date of exclusion of the specified information from this register.

2. A legal entity acquires the rights and obligations provided for by this Federal Law for microfinance organizations from the day it acquires the status of a microfinance organization.

3. Entering information about a legal entity into the state register of microfinance organizations is carried out after its state registration as a legal entity.

4. Information about a legal entity that meets the requirements established by this Federal Law is entered into the state register of microfinance organizations within fourteen working days from the date the legal entity submits the following documents and information to the authorized body:

1) an application for entering information about a legal entity into the state register of microfinance organizations, signed by the head of the legal entity or a person authorized by him (hereinafter referred to as the applicant), indicating the last name, first name, patronymic, place of residence and contact telephone numbers of the applicant;

2) copies of the certificate of state registration of a legal entity;

3) copies of the constituent documents of the legal entity;

4) copies of the decision on the creation of a legal entity and on the approval of its constituent documents;

5) copies of the decision on the election (appointment) of the management bodies of a legal entity, indicating their composition on the day of submission of documents to the authorized body;

6) information about the founders of a legal entity in the form approved by the authorized body;

7) information about the address (location) of the permanent executive body of the legal entity through which communication with the legal entity is carried out;

8) extracts from the register of foreign legal entities of the relevant country of origin or another document of equal legal force confirming the legal status of the founder - a foreign legal entity (for legal entities with foreign founders).

5. Constituent documents of non-profit organizations submitted to the authorized body in accordance with this article must contain a provision that microfinance activities are one of the types of activities carried out by a non-profit organization, as well as information that income received from microfinance activities must be directed by a non-profit organization to carry out microfinance activities and support them, including repayment of loans and (or) loans received by the microfinance organization and interest on them, for other social purposes or charitable, cultural, educational or scientific purposes.

6. Documents of foreign legal entities submitted in accordance with this article must be presented in the state (official) language of the corresponding foreign state with a translation into Russian and certified in the prescribed manner.

7. The authorized body, in the absence of grounds established by this Federal Law for refusing to enter information about a legal entity into the state register of microfinance organizations, no later than fourteen working days from the date of receipt of the documents specified in part 4 of this article, enters information about the legal entity into the state register register of microfinance organizations and issues the applicant a certificate of entry of information about the legal entity into the state register of microfinance organizations.

8. The form of the certificate on entering information about a legal entity into the state register of microfinance organizations is established by the authorized body.

9. No legal entity in the Russian Federation, with the exception of legal entities included in the state register of microfinance organizations, may use the phrase “microfinance organization” in its name.

10. A legal entity included in the state register of microfinance organizations is obliged to inform the authorized body about changes made to its constituent documents within thirty days from the date of state registration of these changes in the prescribed manner.

Article 6. Refusal to enter information about a legal entity into the state register of microfinance organizations

1. Entry of information about a legal entity into the state register of microfinance organizations may be refused on the following grounds:

1) non-compliance of documents submitted to the authorized body for inclusion in the state register of microfinance organizations with the requirements of this Federal Law and regulatory legal acts adopted in accordance with it;

2) submission of an incomplete set of documents provided for by this Federal Law, required for inclusion in the state register of microfinance organizations, or documents containing unreliable information;

3) exclusion of information about this legal entity from the state register of microfinance organizations on the basis provided for in paragraph 2 of part 1 of Article 7 of this Federal Law, during the year preceding the date of filing an application to enter information about the legal entity in the state register of microfinance organizations.

2. The decision to refuse to enter information about a legal entity into the state register of microfinance organizations must contain a reasoned justification for this refusal, indicating all the reasons that served as the basis for this refusal. The decision to refuse to enter information about a legal entity into the state register of microfinance organizations is communicated to the applicant in writing no later than fourteen working days from the date the authorized body receives the documents specified in Part 4 of Article 5 of this Federal Law.

3. Refusal to enter information about a legal entity into the state register of microfinance organizations, as well as the failure of the authorized body to make an appropriate decision within the prescribed period, may be appealed in court.

4. Refusal to enter information about a legal entity into the state register of microfinance organizations is not an obstacle to re-submitting an application to enter information about a legal entity into the state register of microfinance organizations. Repeated submission of such an application and adoption of a decision on it are carried out in the manner prescribed by this Federal Law.

Article 7. Exclusion of information about a legal entity from the state register of microfinance organizations

1. The exclusion of information about a legal entity from the state register of microfinance organizations is carried out by the authorized body on the following grounds:

1) submitting a corresponding application to a microfinance organization accompanied by a certificate of entering information about a legal entity into the state register of microfinance organizations;

2) making a decision of the authorized body in the event of repeated violations by a microfinance organization of this Federal Law and (or) the rules for providing microloans approved by the microfinance organization during a calendar year;

3) liquidation of a microfinance organization as a legal entity.

2. Exclusion of information about a legal entity from the state register of microfinance organizations on other grounds, except for the grounds specified in Part 1 of this article, is not allowed.

3. The exclusion of information about a legal entity from the state register of microfinance organizations can be appealed in court.

4. A legal entity is considered excluded from the state register of microfinance organizations from the date of submission to the authorized body of an application to exclude information about a legal entity from the state register of microfinance organizations, or from the date the authorized body makes a decision to exclude information about a legal entity from the state register of microfinance organizations, or from the date of liquidation of the microfinance organization as a legal entity.

5. If information about a legal entity is excluded from the state register of microfinance organizations on the grounds specified in paragraphs 1 and 2 of part 1 of this article, all microloan agreements previously concluded by such a legal entity remain in force.

Chapter 3. Procedure for carrying out the activities of microfinance organizations

Article 8. Basic conditions for the provision of microloans by microfinance organizations

1. Microloans are provided by microfinance organizations in the currency of the Russian Federation in accordance with the legislation of the Russian Federation on the basis of a microloan agreement.

2. The procedure and conditions for providing microloans are established by the microfinance organization in the rules for providing microloans, approved by the management body of the microfinance organization.

3. The rules for providing microloans must be available to all persons for review and contain the basic conditions for providing microloans, including the following information:

1) the procedure for filing an application for a microloan and the procedure for its consideration;

2) the procedure for concluding a microloan agreement and the procedure for providing the borrower with a payment schedule;

3) other conditions established by the internal documents of the microfinance organization and not being the terms of the microloan agreement.

4. A microloan agreement may provide for the possibility of a microfinance organization providing a targeted microloan while simultaneously granting the microfinance organization the right to exercise control over the intended use of the microloan and imposing on the borrower the obligation to ensure the possibility of exercising such control.

5. The rules for the provision of microloans cannot establish conditions defining the rights and obligations of the parties under the microloan agreement. If the rules for providing microloans establish conditions that contradict the terms of the microloan agreement concluded with the borrower, the provisions of the microloan agreement are applied.

Article 9. Rights and obligations of a microfinance organization

1. A microfinance organization has the right:

1) request from the person who submitted the application for a microloan the documents and information necessary to resolve the issue of providing a microloan and fulfillment of obligations under the microloan agreement, in the manner and under the conditions established by the rules for the provision of microloans;

2) motivated to refuse to enter into a microloan agreement;

3) carry out, along with microfinance activities, other activities, taking into account the restrictions established by this Federal Law, other federal laws and constituent documents, including issuing other loans and providing other services in the manner established by federal laws and constituent documents;

4) attract funds in the form of loans and (or) credits, voluntary (charitable) contributions and donations, as well as in other forms not prohibited by federal laws, taking into account the restrictions established by paragraph 1 of Article 12 of this Federal Law;

5) have other rights in accordance with federal laws, other regulatory legal acts, constituent documents and the terms of concluded microloan agreements.

2. A microfinance organization is obliged:

1) provide the person who applied for a microloan with complete and reliable information about the procedure and conditions for providing a microloan, about his rights and obligations related to receiving a microloan;

2) place a copy of the rules for providing microloans in a place accessible for viewing and familiarization with them by any interested person, and on the Internet;

3) inform the person who submitted the application for a microloan, before receiving the microloan, about the terms of the microloan agreement, about the possibility and procedure for changing its terms at the initiative of the microfinance organization and the borrower, about the list and amount of all payments related to the receipt, servicing and repayment of the microloan, as well as in violation of the terms of the microloan agreement;

4) guarantee the confidentiality of the transactions of their borrowers. All employees of a microfinance organization are required to maintain secrecy about the transactions of borrowers of the microfinance organization, as well as other information established by the microfinance organization, except for cases established by federal laws;

5) disclose to an unlimited number of persons information about persons who have a significant (direct or indirect) influence on decisions made by the management bodies of a microfinance organization, in the manner established by the constituent documents;

6) bear other responsibilities in accordance with federal laws, other regulatory legal acts, constituent documents and terms of concluded microloan agreements.

Article 10. Rights and obligations of a person who has submitted an application for a microloan to a microfinance organization

1. A person who has submitted an application for a microloan to a microfinance organization has the right to:

1) get acquainted with the rules for providing microloans approved by the microfinance organization;

2) receive complete and reliable information about the procedure and conditions for providing a microloan, including information about all payments related to receiving, servicing and repaying the microloan.

2. A person who has submitted an application for a microloan to a microfinance organization is obliged to provide documents and information requested by the microfinance organization in accordance with paragraph 1 of part 1 of Article 9 of this Federal Law, other federal laws and rules for providing microloans, including those necessary for the execution of the microfinance organization of requirements established by federal laws.

3. A person who has submitted an application for a microloan to a microfinance organization has other rights and may bear other responsibilities in accordance with federal laws.

Article 11. Rights and obligations of the borrower

1. The borrower has the right to dispose of funds received under a microloan agreement in the manner and on the terms established by the microloan agreement.

2. The borrower is obliged to provide documents and information requested by the microfinance organization in accordance with Part 2 of Article 10 of this Federal Law.

3. The borrower has other rights and may bear other obligations in accordance with federal laws and the terms of the concluded microloan agreement.

Article 12. Restrictions on the activities of a microfinance organization

A microfinance organization does not have the right to:

1) attract funds from individuals. This restriction does not apply to raising funds from individuals:

a) who are founders (members, participants, shareholders) of a microfinance organization;

b) providing funds to a microfinance organization on the basis of a loan agreement in the amount of one million five hundred thousand rubles or more under one loan agreement with one lender;

2) act as a guarantor for the obligations of its founders (members, participants, shareholders), as well as otherwise ensure the fulfillment of obligations by these persons;

3) without a preliminary decision of the highest management body of the microfinance organization on approval of the relevant transactions, enter into transactions related to the alienation or the possibility of alienation of property owned by the microfinance organization or otherwise entailing a decrease in the book value of the microfinance organization’s property by ten or more percent of the book value of the assets of the microfinance organization, determined according to the financial (accounting) statements of the microfinance organization for the last reporting period. A transaction of a microfinance organization made in violation of this requirement may be declared invalid at the claim of the microfinance organization or at the claim of at least a third of its founders (members, participants, shareholders);

4) issue loans in foreign currency;

5) unilaterally change interest rates and (or) the procedure for determining them under microloan agreements, commission fees and validity periods of these agreements;

6) apply penalties for early repayment of the microloan to a borrower who is an individual, including an individual entrepreneur, who has fully or partially repaid the microloan amount to a microfinance organization and has previously notified the microfinance organization in writing of such intention at least ten calendar days in advance;

7) carry out any types of professional activities in the securities market;

8) issue a microloan (microloans) to the borrower if the amount of the borrower’s obligations to the microfinance organization under microloan agreements in the event of such a microloan (microloans) exceeds one million rubles.

Article 13. Insurance of risks of a microfinance organization and formation of target funds

1. A microfinance organization has the right to insure risks arising in its activities, including the risk of liability for violation of a contract, in mutual insurance companies and insurance organizations, with the exception of insurance organizations in which the microfinance organization is a founder (participant, shareholder). The choice of a mutual insurance company and (or) an insurance organization is carried out by decision of the management body of the microfinance organization.

2. A microfinance organization may form target funds, the procedure for the formation and use of which is determined by the internal regulatory documents of the microfinance organization.

Chapter 4. Regulation and control of the activities of microfinance organizations

Article 14. Regulation and control of the activities of microfinance organizations

1. State authorities and local governments do not have the right to interfere in the activities of microfinance organizations, except in cases provided for by federal laws.

2. State regulation of the activities of microfinance organizations is carried out by the authorized body.

3. The authorized body performs the following functions:

1) maintains the state register of microfinance organizations and self-regulatory organizations of microfinance organizations in the manner prescribed by this Federal Law, other federal laws and other regulatory legal acts;

2) receives from microfinance organizations the necessary information about their activities, as well as financial statements in the manner and with frequency established by federal laws, monitors the fulfillment by microfinance organizations of the requirements established by this Federal Law;

3) interacts with self-regulatory organizations of microfinance organizations.

4. In relation to a microfinance organization, the authorized body:

1) requests and receives information on the financial and economic activities of microfinance organizations from state statistics bodies, the federal executive body carrying out state registration of legal entities, and from other state control and supervision bodies;

2) requests and receives information about the microfinance organization from the unified state register of legal entities;

3) ensures compliance of information about the microfinance organization in the state register of microfinance organizations with information about the specified organization in the unified state register of legal entities, including information about the liquidation of the organization;

4) carries out, in accordance with the procedure established by the legislation of the Russian Federation, verification of compliance of the activities of microfinance organizations with the requirements of this Federal Law and other federal laws;

5) establishes and controls compliance by microfinance organizations that attract funds from individuals and legal entities in the form of loans, economic standards for the adequacy of their own funds and liquidity;

6) requires the management bodies of the microfinance organization to eliminate identified violations;

7) gives the microfinance organization binding instructions to eliminate identified violations;

8) excludes information about a microfinance organization from the state register of microfinance organizations in the event of repeated violations by the microfinance organization of the requirements of this Federal Law and (or) the rules for providing microloans approved by the microfinance organization during a calendar year;

9) exercises other rights in accordance with this Federal Law.

5. A microfinance organization has the right to appeal the actions (inaction) of the authorized body to the arbitration court at the location of the microfinance organization.

Article 15. Reporting of microfinance organizations

Microfinance organizations are required to submit quarterly documents to the authorized body containing a report on microfinance activities and the personnel of their governing bodies. The forms and deadlines for submitting these documents are determined by the authorized body.

Article 16. Relations between microfinance organizations and credit history bureaus

Microfinance organizations have the right, in the manner and under the conditions established by Federal Law of December 30, 2004 N 218-FZ "On Credit Histories", to provide the information they have necessary for the formation of credit histories in relation to their borrowers to the credit history bureau included in the state register of credit history bureaus.

Chapter 5. Final provisions

Article 17. Entry into force of this Federal Law

This Federal Law comes into force one hundred and eighty days after the day of its official publication.

President of the Russian Federation D. Medvedev

This publication provides the full text and article-by-article commentary to the Federal Law of July 2, 2010 No. 151-FZ “On microfinance activities and microfinance organizations” - a special legislative act regulating microcredit and the activities of microfinance organizations on the basis of the Civil Code of the Russian Federation. The legal foundations of microcredit, the features of obtaining the status of a microfinance organization, the rights and responsibilities of such organizations and their clients are discussed in detail. At the same time, the authors sought to show what the meaning of this or that norm is, how to understand the meaning of the concepts used in the norm, what regulations should be applied in the process of implementing the commented legislative act. The norms of the Federal Law “On Microfinance Organizations and Microfinance Activities” are analyzed in their relationship with the norms of the Civil Code of the Russian Federation, the Law of the Russian Federation “On the Organization of Insurance Business in the Russian Federation”, the Federal Law “On Non-Profit Organizations”, etc. The publication is addressed to the managers and employees of microfinance organizations , managers of small and micro-enterprises, individuals, including entrepreneurs without a legal entity, teachers, students and graduate students of legal and economic higher educational institutions, etc.

* * *

The given introductory fragment of the book Commentary on the Federal Law of July 2, 2010 No. 151-FZ “On microfinance activities and microfinance organizations” (item-by-item) (D. A. Vavulin, 2013) was provided by our book partner - the company liters.

A comment

to Federal Law No. 151-FZ “On microfinance activities and microfinance organizations”

Adopted by the State Duma on June 18, 2010 Approved by the Federation Council on June 23, 2010

General provisions

Article 1. Subject of regulation of this Federal Law

This Federal Law establishes the legal basis for the implementation of microfinance activities, determines the procedure for state regulation of the activities of microfinance organizations, establishes the size, procedure and conditions for providing microloans, the procedure for acquiring the status and carrying out the activities of microfinance organizations, as well as the rights and obligations of the authorized body in the field of microfinance activities.

1. The commented article defines the subject of regulation of Law No. 151-FZ, i.e. the most general groups of issues that are included in its scope.

2. Before considering the subject of application of Law No. 151-FZ, we note that the text of the commented legislative act does not indicate its purpose.

At the same time, in fairness, we point out that from the point of view of the rules of legal technology, a description of the purpose of the federal law in its text is not strictly mandatory. Nevertheless, indicating the specific purpose of a federal law in its text is quite widespread in domestic legislation. Among Russian laws that have a specific stated purpose are:

Law “On Combating the Misuse of Insider Information and Market Manipulation”;

Law “On insurance of deposits of individuals in banks of the Russian Federation”;

Law “On payments by the Bank of Russia on deposits of individuals in banks declared bankrupt that do not participate in the system of compulsory insurance of deposits of individuals in banks of the Russian Federation”;

Law “On the Protection of the Rights and Legitimate Interests of Investors in the Securities Market”;

Law “On the use of government securities of the Russian Federation to increase the capitalization of banks”;

Law “On Credit Histories”, etc. As an opposite example, when the federal law does not specify its purpose, we can cite the Law “On the Securities Market”, which is the main legal act regulating the domestic stock market. There is no indication of the purpose in the Law “On the Peculiarities of the Issue and Circulation of State and Municipal Securities,” as well as in a number of other federal laws.

At the same time, formulating the purpose of the law is absolutely necessary at the stage of developing the concept of the bill, as this helps the drafters of the law avoid false goals. It is indisputable that the purpose of any law can only be to resolve the corresponding socially significant problem.

In relation to Law No. 151-FZ, such a problem is the lack of basic federal legislation regulating microfinance activities, which hindered the development of the microfinance market, and in some cases called into question the legitimacy of the activities of a number of its institutions, primarily non-credit organizations. Often such organizations and their leaders were accused of carrying out illegal banking activities, since they carried out lending, which is one of the activities of credit institutions (banking and non-banking).

Thus, in our opinion, the main purpose of the adoption of Law No. 151-FZ is to legitimize microfinance activities and the functioning of microfinance organizations.

3. Returning to the consideration of the subject of regulation of Law No. 151-FZ, we note that in general the subject of regulation of any legislative act is the most general groups of issues that are included in the scope of its action.

As follows from Article 1 of Law No. 151-FZ, there are a total of six groups of issues that make up its subject, including:

1) legal basis for the implementation of microfinance activities. Article 3 of Chapter 1 of Law No. 151-FZ is fully devoted to this issue (see commentary to Article 3 of Law No. 151-FZ);

2) the procedure for state regulation of the activities of microfinance organizations. This issue is regulated by the norms of Chapter 4 of Law No. 151-FZ, namely Articles 14 - 16 (see commentary on Articles 14 - 16 of Law No. 151-FZ);

3) the procedure and conditions for providing microloans, as well as their size. These issues are regulated by a number of articles of Chapter 3 of Law No. 151-FZ (see commentary to the relevant articles of Law No. 151-FZ);

4) the procedure for acquiring the status of a microfinance organization. This issue is regulated by the provisions of Article 5 of Chapter 2 of Law No. 151-FZ (see commentary to Article 5 of Law No. 151-FZ);

5) the procedure for carrying out the activities of microfinance organizations. Chapter 3 of Law No. 151-FZ is devoted to this issue (see commentary to Articles 8 - 13 of Law No. 151-FZ);

6) rights and obligations of the authorized body in the field of microfinance activities. The main rights and responsibilities of the authorized body are defined in Articles 4, 5, 6, 14 and other articles of Law No. 151-FZ (see commentary to the relevant articles of Law No. 151-FZ).

4. Considering the subject of regulation of Law No. 151, it should be noted that its provisions ensure:

1) protection of the rights and legitimate interests of bona fide participants in the microfinance market and recipients of microfinance services (consumers);

2) determination of the principles, forms, methods and limitations of state participation in regulating relations that develop between market entities, as well as market entities and the state;

3) promoting increased transparency and investment attractiveness of microfinance organizations and the development of market infrastructure.

Also, Law No. 151-FZ, creating the conditions for protecting the legal rights and interests of microfinance organizations, consumers of their services and investors, establishes restrictions for the activities of microfinance organizations.

5. It should be noted that microfinance activities of legal entities that are:

1) credit institutions. In accordance with Article 1 of the Law “On Banks and Banking Activities,” a credit organization is a legal entity that, in order to make a profit as the main goal of its activities, on the basis of a special permit (license) of the Bank of Russia, has the right to carry out banking operations provided for by the specified legislative act.

As follows from the meaning of Article 1 of the Law “On Banks and Banking Activities”, credit organizations can be of two types - a bank and a non-bank credit organization.

Bank is a credit organization that has the exclusive right to carry out the following banking operations in aggregate: attracting funds from individuals and legal entities on deposit, placing these funds on its own behalf and at its own expense on the terms of repayment, payment, urgency, opening and maintaining bank accounts of individuals and legal entities.

Non-bank credit organization is a credit organization that has the right to carry out certain banking operations provided for by the Law “On Banks and Banking Activities”;

2) credit cooperatives. According to Article 1 of the Law “On Credit Cooperation”, a credit cooperative is a voluntary association of individuals and (or) legal entities on the basis of membership and according to territorial, professional and (or) other principles in order to meet the financial needs of the members of the credit cooperative (shareholders);

3) pawnshops. As follows from Article 2 of the Law “On Pawnshops”, a pawnshop is a specialized commercial organization whose main activities are providing short-term loans to citizens and storing things;

4) housing savings cooperatives. As established in Article 2 of the Law “On Housing Savings Cooperatives”, a housing savings cooperative is a consumer cooperative created as a voluntary association of citizens on the basis of membership in order to meet the needs of the cooperative members in residential premises by combining members of the cooperative with shares.

The organizations listed above also have the right to carry out microfinance activities. However, this aspect of their activities is regulated not by Law No. 151-FZ, but by the legislation of the Russian Federation regulating their activities, that is, the Federal laws listed above (Part 3 of Article 3 of Law No. 151-FZ).

At the same time, it should be noted that microfinance structures, whose activities are regulated by Law No. 151-FZ, and other structures engaged in microfinance activities (banks, pawnshops, credit cooperatives, etc.) in the field of microfinance are not competitors, but rather partners. In the microfinance services market, they are designed to organically complement each other. The stable coexistence of various forms of financial intermediaries in the market for repayable financing of small businesses is also evidenced by the experience of other European countries and the United States.

6. Noteworthy is the fact that Law No. 151-FZ, unlike a number of other legislative acts, for example the Law “On Credit Histories,” does not include a separate article devoted to establishing the scope of its regulation, limiting itself only to defining its subject.

In this regard, we point out that usually the scope of a legislative act consists of social relations arising between subjects in connection with and regarding the subject of regulation, regulated by the relevant legislative act.

In the article defining the scope of regulation of a legislative act, the legislator needs to clearly define the range of social relations that are regulated by law, since if the scope of legal regulation is too narrowed, then law enforcers will not have the opportunity to use the available legal means to streamline the emerging social relations in this area. If the legislator unjustifiably expands the scope of legal regulation, especially by establishing centralized state management of this sector of the financial market, then conditions will be created for the infringement of free competition and the reduction of the rights of business entities.

Therefore, and also in connection with the rapid development of public relations in the field of microfinance, the legislator did not normatively limit the scope of legal regulation of the commented legislative act, but indicated only the main groups of social relations that constitute the subject of its legal regulation.

In addition, as a rule, an article of this kind does not have any practical nature, and its significance consists only in listing the relations that may arise between subjects in the process of applying a legislative act.

It seems to us that it is precisely in connection with the above that the legislator did not consider it necessary to include an article defining the scope of regulation of the commented Law in its text.

Article 2. Basic concepts used in this Federal Law

1. For the purposes of this Federal Law, the following basic concepts are used:

1) microfinance activity - the activity of legal entities having the status of a microfinance organization, as well as other legal entities entitled to carry out microfinance activities in accordance with Article 3 of this Federal Law, to provide microloans (microfinance);

2) microfinance organization - a legal entity registered in the form of a foundation, autonomous non-profit organization, institution (except for a budgetary institution), non-profit partnership, business entity or partnership, carrying out microfinance activities and entered into the state register of microfinance organizations in the manner prescribed by this Federal Law ;

3) microloan - a loan provided by the lender to the borrower on the terms stipulated by the loan agreement, in an amount not exceeding one million rubles;

4) microloan agreement – ​​a loan agreement, the amount of which does not exceed the amount established by paragraph 3 of this part;

5) authorized body - a federal executive body determined by the Government of the Russian Federation.

(Clause 5 as amended by Federal Law dated November 30, 2011 No. 362-FZ)

2. The concepts and terms used in this Federal Law of civil and other branches of legislation of the Russian Federation are used in the meaning in which they are used in these branches of legislation of the Russian Federation.

1. As follows from the title of Article 2 of Law No. 151-FZ, it defines the conceptual apparatus that is used for the purposes of the commented legislative act.

2. Before considering the conceptual apparatus that is used in Law No. 151-FZ, we note that according to the general rule of legal technology, definitions of concepts (instructions-definitions) are included in legislative acts in the following two cases:

1) when a legal (legal) term is formed using special words - rare or little-used foreign words, as well as re-interpreted common words;

2) when a legal concept is formed from words that allow its meaning to be interpreted ambiguously, giving rise to various semantic associations.

Part 2 of Article 2 of Law No. 151-FZ establishes a rule according to which all concepts and terms from civil legislation and other branches of legislation of the Russian Federation applied in Law No. 151-FZ are not of a special nature and, accordingly, do not have priority in their interpretation.

Thus, in Law No. 151-FZ they are used exactly in the meaning in which they are used in other branches of legislation of the Russian Federation.

However, it should be noted that Article 2 of Law No. 151-FZ uses concepts that are not defined in other legislative acts of civil legislation and other branches of legislation of the Russian Federation.

3. One of these concepts is the concept of microfinance activity, presented in paragraph 1 of part 1 of article 2 of Law No. 151-FZ.

In this regard, first of all, we note that in world practice there are several approaches to defining the concept of “microfinance activity” or “microfinance”.

Initially, microfinance was understood as services for issuing small-scale loans (microloans) to persons who, for one reason or another, have limited access to a traditional bank loan (due to the remoteness of the locality, small volumes of the requested loan, lack of credit history, small enterprise size, etc.).

Now microfinance refers not only to the issuance of microloans, but also to money saving programs, insurance, leasing, money transfers and payments, etc. (according to the UN classification - up to 300% of GDP/per capita).

Microfinance serves several important socio-economic functions.

Firstly, it provides an opportunity for broad sections of the population to implement entrepreneurial initiatives, helping citizens first open their own business, becoming entrepreneurs, and then develop it into micro and small businesses, etc.

Secondly, by providing consumer loans, microfinance increases the purchasing power and standard of living of the population, and the most socially unprotected part of it (pensioners, students, cadets, etc.). Unlike microcredit, traditional bank lending technologies, as a rule, do not allow large-scale work with these categories of clients.

Thirdly, the spread of microfinance also makes it possible to reduce the shadow component in the economy. This is due to the fact that all institutions operating in this niche conduct fairly transparent activities themselves and require the same from their clients.

Also, with the development of microfinance, the basis for “shadow usury” is gradually narrowing. It is more profitable for entrepreneurs to contact financial institutions that carry out microfinance activities on a legal basis, where fees for using funds are lower, loans are processed quickly and, most importantly, the transaction is completed legally.

And finally, microfinance institutions, by stimulating the development of micro and small businesses through the issuance of microloans, grow future banking clientele.

In world practice, microfinance has existed and developed for more than forty years and is gradually becoming a more and more serious factor in the economy and social life of both developing and developed countries.

The first project in the field of microfinance is considered to be a project to finance low-income groups of the population, developed in the 70s of the last century by Professor Muhammad Yunus from Bangladesh. He gave the residents of this country small amounts of his own money as loans, on the condition that they would not be spent on consumer needs, but invested in a small business of their own. Over time, this initiative grew into the creation of a public organization - Grameen Bank of Bangladesh - the first microfinance bank in the world, which to this day is the standard of “classical” effective microfinance (today its clients are millions of people).

At the same time, similar projects were implemented in Latin America and Africa. Many national leaders in the field of microfinance have become widely known outside their countries, including Banco Solidario (Bolivia), Compartamos (Mexico), and Enterprise Development Group (USA).

In recent years, many countries, thanks to the development of microfinance, have made significant progress in providing broad sections of the population with financial services, and therefore the global deficit is gradually decreasing. Between 2004 and 2006 alone, the volume of assets in the global microfinance sector doubled, exceeding $100 billion, and the number of clients served grew by 50%, exceeding 80 million people in more than one hundred countries. If as of January 1, 2004, the 135 leading MFOs had a total loan portfolio of about $3 billion and served more than 9.5 million clients, then as of January 1, 2006, the 150 leading MFOs had a total loan portfolio of about $5 billion and served more than 20 million clients.

In poor countries such as Bangladesh, microfinance institutions play a very important role, disbursing hundreds of thousands of loans (sometimes as small as a few dollars) and creating opportunities for recipients to literally earn a living.

In more developed countries, microfinance activities are structured somewhat differently; we are talking about larger loans provided to support certain vulnerable social groups or certain types of activities. Therefore, it is no coincidence that the UN declared 2005 the year of microfinance, and in 2007 the Nobel Peace Prize was awarded to the founder of the microfinance movement, Muhammad Yunus.

In Russia, microfinance began to actively develop much later than in other countries, approximately from the mid-90s of the 20th century, and the boom in its development occurred already in the first decade of the 21st century. At the same time, for a long time there was no legitimate definition of the concept of “microfinance activity” in the legislation of the Russian Federation. It first appeared only in Law No. 151-FZ. According to it, microfinance activities can be classified as activities that simultaneously meet a combination of two criteria – subjective and quantitative.

The subjective criterion means that two groups of legal entities can carry out microfinance activities.

The first group is legal entities that have received the status of a microfinance organization (see commentary to Article 5).

The second group is other legal entities that do not have the status of a microfinance organization, but have the right to carry out microfinance on the basis of Article 3 of Law No. 151-FZ. These include credit organizations (banks and non-bank credit organizations), credit cooperatives, housing savings cooperatives, etc. These legal entities carry out microfinance activities on the basis of legislation regulating their activities. For example, banks carry out such activities on the basis of the Law “On Banks and Banking Activities”.

The quantitative criterion is that microfinance activity can only be considered as such when an amount defined by the legislator as a microloan is provided as borrowed funds (see commentary to subparagraph 3 of this article).

Based on the fact that a microfinance organization can be created in the organizational and legal form of both a commercial and non-profit legal entity, we can conclude that microfinance activities may not be considered as a type of entrepreneurial activity. However, the provision of borrowed funds for a fee is, in its economic essence, a banking operation and, in principle, should be carried out within the framework of the business activities of credit institutions.

At the same time, Law No. 151-FZ does not allow us to draw an unambiguous conclusion about the entrepreneurial nature of microfinance activities.

Let us note that in paragraph 11 of Appendix No. 1 to the order of the Ministry of Economic Development of Russia dated February 16, 2010 No. 59 “On measures for the implementation in 2010 of measures for state support of small and medium-sized businesses”, microfinance activity is defined as the activity of non-profit organizations (funds, consumer cooperatives etc.) created for the purpose of providing access to small and medium-sized enterprises and small and medium-sized enterprise support infrastructure organizations to financial resources by providing loans (credits) to small and medium-sized businesses.

It is obvious that this definition significantly narrows the concept of microfinance activities enshrined in Law No. 151-FZ.

4. Another important concept, the definition of which is given in paragraph 2 of part 1 of article 2 of Law No. 151-FZ, is the concept of a microfinance organization.

As in the case of microfinance activities, as mentioned above, initially microfinance institutions (MFI) were understood as financial market institutions that provide services for issuing microloans to persons who, for one reason or another, have limited access to traditional banking credit. Currently, microfinance organizations mean not only financial institutions of this kind, but also organizations that, along with issuing microloans, carry out money saving programs, insurance, leasing, money transfers and payments, etc.

If in world practice microfinance organizations have been an important factor in the economy and social life of both developing and developed countries for more than forty years, then in Russia the boom in the development of microfinance institutions, in one form or another carrying out microfinance activities, occurred in the first decade of the 21st century. Thus, if in 2003 there were only 150 microfinance organizations, then at the beginning of 2009 there were already 2,750, and at the beginning of 2012 - about 9,000. By this time, their loan portfolio had grown more than 18 times, amounting to about 39 - 41 billion rub. (as of January 1, 2010 – 22.7 billion rubles), and the average loan size was 4.5 thousand dollars.

The geography of distribution of microfinance organizations across the territory of Russia was at one time characterized by unevenness. The leading regions were the Central, Volga and Siberian Federal Districts, and the outsider was the Ural Federal District. It seems that this nature of the territorial distribution of microfinance organizations throughout the country was due to several factors.

Firstly, the geography of the implementation of the first pilot Russian and international microfinance programs in Russia, which gave rise to the development of this mechanism of financial support for business. The main regions for the deployment of microfinance programs financed by international donors are Central Russia, the Volga region and the Far East.

Secondly, the territorial distribution of microfinance organizations is determined by the level of development of regional legislation. For example, in the Volgograd region a legislative framework was created that established and regulated the boundaries of the activities of consumer cooperation.

Thirdly, the position of regional and local authorities. Where the regional leadership sought to develop small businesses, the market for microfinance organizations was more developed. In addition, due to the imperfection and vagueness of the legislative field regulating the activities of microfinance organizations at the federal level, the position of regional and local authorities in relation to such organizations was of particular importance.

Of course, the spread of microfinance organizations throughout the country is also associated with the general level of economic development of the region, as well as the financial market on its territory and the presence of a client base.

Initially, in Russia microfinance could be carried out by legal entities in various organizational and legal forms. These are credit organizations (banking and non-banking) implementing microfinance programs, and credit cooperatives (citizens' credit consumer cooperatives (CPC) and agricultural credit consumer cooperatives (ACCC)), and housing savings cooperatives (HCS), and non-profit organizations in the form of funds and associations, and pawn shops. Such diversity ensured the effectiveness of the development of microfinance services in Russia.

The fastest growing and largest group of organizations providing microfinance services and actively developing lending programs for entrepreneurs were credit cooperatives of all types. As of mid-2005, there were at least 1,500 of them in Russia. At the same time, as a direction of credit cooperation, the system of agricultural and consumer cooperation of citizens was developing quite dynamically. For example, in the period from 1998 to 2005, the number of credit cooperatives increased more than 25 times and by the beginning of 2005 there were 500 credit cooperatives operating in Russia, operating in 55 regions of the country and uniting about 32 thousand members, as well as about 600 PDA. Credit cooperation developed especially intensively in the southern regions of the country. Thus, the Southern Federal District at that time accounted for 36.4% of the total number of SPCs in Russia, the Volga Federal District - 16.5%, the Siberian Federal District - 21.2%, the Central Federal District - 7.3%, the Northwestern Federal District - 5.8%, Ural - 8.3%, Far Eastern - 10.7%. Then there was a gradual equalization of the levels of development of credit cooperation in the regions of the country. Also in Russia, microfinance programs implemented by regional and municipal funds to support small businesses have developed quite dynamically. Such microfinance organizations worked most actively in the Sverdlovsk, Voronezh, Belgorod, Irkutsk, Novgorod, Ivanovo, Murmansk regions, as well as a number of other regions of the country. In total, more than 25 regional funds to support small businesses were registered, each of which had a portfolio of microloans in the amount of 7 million to 20 million rubles. and issued from 100 to 300 microloans monthly. 100 municipal funds to support small businesses were also registered. Banks have also shown interest in microfinance. A number of banks with Russian capital have successfully implemented microcredit programs. According to the results of expert assessments of banking market participants, the total size of the banks' portfolio issued in microloans in the amount of up to 10 thousand dollars was 0.7 - 1 billion dollars. Microcredit was also carried out by non-governmental microfinance organizations created within the framework of international projects. This group consisted of large institutions with a clearly defined microfinance specialization, created with the participation of international organizations, as well as their representative offices and branches operating in Russia. The share of such microfinance organizations accounted for about 3% of the total volume of microfinance services provided. Nevertheless, they formed a significant share of supply in the microfinance market.

Despite the fact that, as shown above, the institution of microfinance organizations providing microcredit has been known in Russia for quite a long time, before the adoption of Law No. 151-FZ, its legitimate definition was not presented in Russian legislation. This hampered the development of the institution of microfinance organizations, and in some cases called into question the legitimacy of their activities, since they, in fact, carried out operations typical of credit organizations without proper permission. Having established the concept of a microfinance organization, Law No. 151-FZ actually legalized the presence in the Russian financial system of the non-banking financial sector - “informal” credit organizations.

In this regard, we note that the idea of ​​​​institutionalizing microfinance organizations as a full participant in the Russian financial market was aimed primarily at creating greater opportunities for the development of financial infrastructure in small towns and settlements of the country, which would ultimately improve the quality of the business environment and standard of living population. And as for improving the quality of the business environment, to a certain extent this goal has already been achieved, but in the area of ​​improving the standard of living of the population the situation is not so clear.

In many regions of the country there are microfinance organizations that, in partnership with the state and authorized financial development institutions (banks with state participation), are really focused on supporting start-up and existing entrepreneurs, as well as lending to micro and small businesses. As a rule, loans are provided for purposes corresponding in content to the following main areas: acquisition, repair, modernization of fixed assets, introduction of new technologies, development of scientific, technical and innovative activities, acquisition of inventory, expansion of activities and (or) development of existing business . Loans are issued for periods from 3 months to 1 – 3 years. The interest rate on loans is set depending on the intended use of borrowed funds and areas of activity: for capital investments and the acquisition of fixed assets (regardless of business areas) - 12%; to replenish working capital at the rate of 13 - 16% per annum (production, including agriculture - 3%; production services - 14%; construction - 15%; trade and services - 16%). Such loans are usually secured by property and guarantees, which helps keep interest rates at an acceptable level. In general, as noted above, at the beginning of 2012 the average rate on loans in Russian microfinance organizations was 27% (excluding payday loans). However, it should be noted that this is rather a lower limit. In most microfinance organizations, the effective interest rate ranges from 30 to 70%. And these are loans for the most profitable category of borrowers - representatives of small businesses, whose number makes up 60% of the entire microfinance market.

At the same time, along with the microfinance organizations discussed above, microfinance organizations are quite widely represented in the microcredit market segment, the target group of which is exclusively the population, and above all its low-income segments. Such microfinance organizations quickly issue small loans in the amount of 1 thousand to 40 thousand rubles. for a period from several days to 1 year or a little more, without collateral, without guarantors, upon presentation of an identification document (passport, etc.), while offering various refund alternatives. This is undoubtedly convenient for borrowers, especially for those who cannot get a loan from a bank due to a negative credit history, insufficient income, etc. (according to some estimates, 80% of Russian citizens do not have access to a bank loan). In addition, some microfinance organizations deliver money to the client’s home, and the loan is repaid in the same way. One of the distinctive features of the activities of such microfinance organizations is quite aggressive advertising of their services, where they usually indicate their website and telephone number, but do not disclose the most important thing - the effective interest rate on the loan. Instead, the advertisement may indicate a loan repayment schedule, and a calculator may be posted on the websites of microfinance organizations, with the help of which the client is asked to calculate how much he will pay for using the money. And only in some cases in advertising can you find an indication of the daily interest rate, and even less often - of the annualized interest rate, and usually such data is printed in small print. The situation is no better with microloan agreements. Information about the full cost of the loan is often presented in small print, in the middle of the agreement and, as a rule, may be invisible to the consumer without a detailed study of the document.

The real cost of loans intended for the population is amazing. For example, with a loan of 20 thousand rubles. for 26 weeks (six months) the weekly payment will be 1189 rubles. It turns out that the rate for six months is 54%, or 108% per annum. However, this is not the limit. The cost of loans for individuals in many microfinance organizations ranges from 0.5% per day (180% per annum) to 7.4% per day (2700% per annum). Microfinance organizations explain such high rates on loans for the population by saying that this is a kind of payment for risk - one bona fide borrower pays for a dozen unscrupulous ones. Experts add to this the lack of access of microfinance organizations to cheap sources of funding, such as interbank loans, resources of the Bank of Russia and the Ministry of Finance, to bond issues (the securities of such organizations are not interesting to investors), as well as the impossibility of implementing a savings program on adequate terms, as they do banks.

In Russian conditions, when many citizens really urgently need money, but at the same time have a rather poor understanding of the nuances of the functioning of the financial market and the specifics of its instruments, that is, they are financially illiterate, this situation poses a rather serious danger. Moreover, this statement is equally true both in relation to borrowers and in relation to the microfinance organizations themselves engaged in this type of lending. The former, without correctly calculating the debt burden, may well end up in credit bondage with all the ensuing consequences, such as, for example, a penalty for late repayment (2% of the debt amount for each day of delay), a fine for delay of more than 7 days (500 rub.), etc. Then problems with collection agencies and law enforcement may arise. In general, the volume of overdue debt in the microfinance market is estimated at 1.8–2 billion rubles, of which 1 billion rubles were outsourced. In 2011, the volume of debts transferred to microfinance organizations by collectors increased by 7.8 times compared to 2010. If we compare the first half of 2011 with the second half of the year, then the growth in the second half of 2011 was 170%. The average amount of debt in the MFO segment in the first half of 2011 was 15,094 rubles; in the second half of 2011 it increased 1.5 times and reached 23,613 rubles. At the same time, the debt structure is dominated by interest, penalties and fines. In a number of regions of the country, there are already dozens of cases of internal affairs bodies initiating criminal cases under the article “Fraud” against citizens who have not paid microloans for years. For microfinance organizations, failure to repay microloans by a large number of borrowers is fraught with undermining the foundations of financial stability, up to and including complete bankruptcy.

Let us note that the development of lending in Russia in general, and especially the rapid development of microcredit by microfinance organizations, which we have seen recently, has once again highlighted the age-old problem of “usurious interest.” This concept comes from the Latin word "usura", which means interest on use, that is, money paid for the use of money. Although the term originally meant “interest,” modern usage has translated its meaning into “excessive interest,” specifically interest that exceeds the maximum rate established by law. In many countries of the world at all times, including in pre-revolutionary Russia, the collection of money (interest) for the use of money was recognized as a usurious activity, or usury (the early Russian term was “extortion”). In the modern understanding, this means issuing loans at an extremely high interest rate, that is, a percentage significantly different from the average market interest rate (usurious interest). Accordingly, persons carrying out this activity were always called moneylenders.

A number of developed countries around the world have taken measures aimed at limiting usurious activities and usurious interest rates. Thus, in Germany it is prohibited to lend to the population at rates above a certain value. In Italy, the restriction is softer: there, the average rate for 20 standard bank loans plus a certain percentage is used to calculate the usurious interest. Banks can issue usurious loans, but are required to warn borrowers about such rates. In the United States, the maximum permitted interest rates are set by various federal laws, which also prescribe maximum contract rates. In turn, each US state has a legally established official or negotiated interest rate. In addition to these general usury interest laws, individual statutes set special limits for certain types of creditors. For example, various states' small loan laws set the maximum rate that lenders licensed to make small loans on unpaid debt can charge. There are penalties for violating usury laws.

Due to the fact that today in Russia the process of legalization of the most real moneylenders under the guise of microfinance organizations is actually gaining momentum (primarily we are talking about microfinance organizations involved in issuing loans to the population at fabulous interest rates), according to the authors, there is an urgent need to legislate The concept of “usurious interest” is also used in our country. In essence, this should be a limitation on interest on loans and borrowings, that is, the establishment of a maximum allowable rate, exceeding which should be fraught with tax payments or a ban on lending at rates that exceed the maximum established amount. In this case, as an option, the maximum allowable rate can be tied to the refinancing rate of the Bank of Russia, for example, the refinancing rate + 10 percentage points (today – 18%). This kind of limitation on loan interest will make credit and loans more accessible and less burdensome for various social groups of the country’s population, thereby spurring consumer demand, which ultimately can have a positive impact on the well-being of the country’s citizens and the prospects for the development of its economy.

Let us note that attempts to limit the size of the full cost of a credit (loan) in credit transactions, including those concluded by microfinance organizations, have been made in Russia. A corresponding bill establishing a ban on usurious transactions was even submitted to the State Duma of the Russian Federation, but did not find support among deputies.

Nevertheless, today there is no doubt that microfinance organizations have already become an important financial institution that promotes the development of entrepreneurship, small and micro businesses in the regions of the country. At the same time, the market for microfinance organizations is one of the most dynamically developing sectors of the Russian financial market, including at the regional level, where both local microfinance organizations and branches and representative offices of leaders in the microfinance sector registered in Moscow operate. And according to some estimates, in the next few years the number of microfinance organizations may increase to 4–5 thousand, which will lead to an increase in the number of microfinance organizations in the world by at least 30–40%. It is also predicted that by 2016 the microfinance market will grow 4–5 times to 110–130 billion rubles, including in 2012 by at least 50%–90%. And this is not the limit, since in general the volume of the microfinance market today is estimated at 300 billion rubles, while the available supply from microfinance organizations satisfies only about 10% of demand. Such rapid growth can be achieved primarily due to a “low base”, since the market for microfinance organizations is young and has great development potential. At the same time, it is expected that the loan portfolio will grow in all three main categories - microloans for business, consumer loans and payday loans (the weight of the latter in the total volume will not exceed 10%). The prospects for the development of microfinance organizations are also determined by the potential for growth in the share of small businesses and Russia’s GDP, which today is only about 10% compared to 50% in Western European countries and about 60–70% in the USA.

As follows from the definition of the concept “microfinance organization”, the distinctive features of such institutions that characterize their legal status include:

1) a microfinance organization is a legal entity, that is, an organization that owns separate property and is liable for its obligations with this property, can, on its own behalf, acquire and exercise property and personal non-property rights, bear obligations, be a plaintiff and defendant in court (clause 1 Article 48 of the Civil Code of the Russian Federation);

2) microfinance organizations can be both commercial and non-profit.

Let us note that the legislative division of organizations into commercial and non-profit is enshrined in Article 50 of Part 1 of the Civil Code of the Russian Federation.

Thus, commercial organizations are legal entities that pursue profit-making as the main goal of their activities.

Part one of the Civil Code of the Russian Federation establishes an exhaustive list of organizational and legal forms of creating commercial organizations, including: business partnerships and companies (full partnership, limited partnership, limited liability company, additional liability company, joint-stock company (open and closed)) ;

production cooperatives; state and municipal unitary enterprises. In turn, non-profit organizations are legal entities that do not have profit-making as the main goal of their activities and do not distribute the profits between participants.

Paragraph 3 of Article 50 of the Civil Code of the Russian Federation provides that non-profit organizations can be created in the form of consumer cooperatives, public or religious organizations (associations), institutions, charitable and other funds, as well as in other forms provided by law.

However, the list of non-profit organizations indicated in the Civil Code is not exhaustive (an open list), which implies the possibility of establishing other organizational and legal forms of non-profit organizations in other federal laws.

As a result of this approach, Russian legislation presents a range of organizational and legal forms of non-profit organizations, both new in relation to the first part of the Civil Code of the Russian Federation, and duplicating each other or having only minor differences.

The problem of establishing an exhaustive list of forms of non-profit organizations was not solved by the adoption of the Law “On Non-Profit Organizations”.

This legislative act supplemented the list of forms of non-profit organizations provided for in Part One of the Civil Code of the Russian Federation, such as non-profit partnerships and autonomous non-profit organizations (and later - a state corporation, state company, etc.), but also left this list open.

As a result, today, in addition to those listed above, federal laws additionally provide for, in particular, the following forms of non-profit organizations: horticultural, gardening or dacha non-profit partnership (Law “On horticultural, gardening and dacha non-profit associations of citizens”);

homeowners association (Housing Code of the Russian Federation); association of employers (Labor Code of the Russian Federation); notary chamber (Fundamentals of the legislation of the Russian Federation on notaries);

Chamber of Commerce and Industry (Law “On Chambers of Commerce and Industry in the Russian Federation”);

4) organizations applying for MFO status can be created in one of the following organizational and legal forms of a legal entity:

fund. In accordance with paragraph 1 of Article 118 of the Civil Code of the Russian Federation, a fund is recognized as a non-profit organization that does not have a membership, established by citizens and (or) legal entities on the basis of voluntary property contributions, pursuing social, charitable, cultural, educational or other publicly beneficial goals. The same definition of a fund is contained in paragraph 1 of Article 7 of the Law “On Non-Profit Organizations”.

Please note that State, municipal and private funds to support small businesses fall under Law No. 151-FZ. Thus, at the beginning of 2008, there were more than 300 state and municipal funds operating in Russia, managing a loan portfolio in the amount of at least 2.7 billion rubles. and serving about 30 thousand small businesses. The next largest market segment is private funds to support entrepreneurship and non-profit partnerships;

autonomous non-profit organization. According to paragraph 1 of Article 10 of the Law “On Non-Profit Organizations”, an autonomous non-profit organization is a non-profit organization that does not have membership, established by citizens and (or) legal entities on the basis of voluntary property contributions for the purpose of providing services in the field of education, healthcare, culture, science, law, physical culture and sports and other services;

institution. Paragraph 1 of Article 120 of the Civil Code of the Russian Federation establishes that an institution is an organization created by the owner to carry out managerial, socio-cultural or other functions of a non-profit nature and financed by him in whole or in part. An institution can be state, municipal, or private.

From the meaning of paragraph 2 of part 1 of Article 2 of Law No. 151-FZ, it follows that a microfinance organization cannot be created as a budgetary institution, that is, it cannot be either state or municipal. In other words, a microfinance organization can only be a private institution.

Paragraph 1 of Article 9 of the Law “On Non-Profit Organizations” defines a private institution as a non-profit organization created by the owner (citizen or legal entity) for

carrying out managerial, socio-cultural or other functions of a non-commercial nature;

non-commercial partnership. As follows from paragraph 1 of Article 8 of the Law “On Non-Profit Organizations”, a non-profit partnership is a membership-based non-profit organization established by citizens and (or) legal entities to assist its members in carrying out activities aimed at achieving social, charitable, cultural, educational, scientific and management purposes, in order to protect the health of citizens, develop physical culture and sports, satisfy the spiritual and other non-material needs of citizens, protect the rights and legitimate interests of citizens and organizations, resolve disputes and conflicts, provide legal assistance, as well as for other purposes aimed at achieving public goods;

business partnership and business company. In accordance with paragraph 1 of Article 66 of the Civil Code of the Russian Federation, business partnerships and business societies are commercial organizations whose authorized (share) capital is divided into shares (contributions) of founders (participants).

According to paragraph 2 of Article 66 of the Civil Code of the Russian Federation, business partnerships can be created in two forms: in the form of a full partnership. Paragraph 1 of Article 69 of the Civil Code of the Russian Federation defines such a partnership as a partnership whose participants (general partners), in accordance with the agreement concluded between them, engage in entrepreneurial activities on behalf of the partnership and are liable for its obligations with the property belonging to them;

in the form of a limited partnership. Paragraph 1 of Article 82 establishes that a limited partnership is a partnership in which, along with the participants who carry out entrepreneurial activities on behalf of the partnership and are liable for the obligations of the partnership with their property (general partners), there is one or more participant-investors (limited partners) who bear the risk of losses associated with the activities of the partnership, within the limits of the amounts made by them in contributions, and do not take part in the partnership’s business activities.

From paragraph 3 of Article 66 of the Civil Code of the Russian Federation it follows that business companies can also be created in three forms: in the form of a joint-stock company. In paragraph 1 of Article 96 of the Civil Code of the Russian Federation, a joint-stock company is recognized as a company whose authorized capital is divided into a certain number of shares. At the same time, it is established that participants (shareholders) of a joint-stock company are not liable for its obligations and bear the risks of losses associated with the activities of the company, within the limits of the value of the shares they own. The same provisions on joint stock companies are contained in the Law “On Joint Stock Companies”;

in the form of a limited liability company. Paragraph 1 of Article 87 of the Civil Code of the Russian Federation establishes that a limited liability company is a company established by one or several persons, the authorized capital of which is divided into shares of sizes determined by the constituent documents. At the same time, it has been established that participants in a limited liability company are not liable for its obligations and bear the risk of losses associated with the activities of the company, within the limits of the value of the contributions made by them. The same provisions in relation to limited liability companies are enshrined in the Law “On Limited Liability Companies”;

in the form of a company with additional liability. Paragraph 1 of Article 95 of the Civil Code of the Russian Federation establishes that a company with additional liability is a company established by one or several persons, the authorized capital of which is divided into shares of sizes determined by the constituent documents. At the same time, it is established that the participants of such a company jointly and severally bear subsidiary liability for its obligations with their property in the same multiple of the value of their contributions, determined by the constituent documents of the company.

Thus, the legislator, on the one hand, imperatively limits the possible organizational and legal forms in which MFOs can be created. However, on the other hand, it provided an opportunity for organizations providing microfinance services to operate legitimately in various organizational and legal forms. It is this diversity that should ensure the effective development of the microfinance services market.

5) a legal entity acquires the status of an MFO only after information about it is entered into the state register of MFOs (see commentary to Article 5 of Law No. 151-FZ);

6) a microfinance organization carries out microfinance activities, that is, activities to provide microloans (microfinance);

It should be noted that such activities for microfinance organizations are not an exclusive type of business activity. Thus, a microfinance organization has the right to carry out other types of activities, taking into account the restrictions established by Law No. 151-FZ.

In particular, paragraph 7 of Article 12 of Law No. 151-FZ establishes a direct ban on a microfinance organization combining microfinance activities with all types of professional activities in the securities market (see commentary to Article 12 of Law No. 151-FZ).

It should be noted that an important aspect that distinguishes microfinance organizations whose activities fall under Law No. 151-FZ from other organizations providing similar services is their social orientation.

Microfinance organizations provide an opportunity for citizens (including the unemployed) to receive a loan to develop their own business, purchase equipment, improve the skills of workers, expand the range and improve the quality of goods and services provided to consumers.

In support of this provision, specialists from Consultant-Plus JSC cite the following provisions of Law No. 151-FZ: the obligation of a microfinance organization to provide quarterly reports on microfinance activities (Article 15 of Law No. 151-FZ);

control by the authorized body over the attraction of funds from individuals and legal entities in the form of loans (clause 5 of part 4 of article 14 of Law No. 151-FZ);

the right of a microfinance organization to provide information regarding its borrowers to a credit history bureau (Article 16 of Law No. 151-FZ).

However, according to specialists from ConsultantPlus JSC, the statement of social orientation is to some extent contradicted by the following: a microloan agreement is not a public contract (Article 426 of the Civil Code of the Russian Federation). This is indicated by paragraph 2 of part 1 of Article 9 of Law No. 151-FZ, according to which a microfinance organization has the right to refuse to enter into a microloan agreement with reason;

there are no guarantees of the return of funds raised by a microfinance organization by analogy with the system of compulsory insurance of deposits of individuals in banks of the Russian Federation, provided for by the Law “On insurance of deposits of individuals in banks of the Russian Federation”;

There is no obligation for a microfinance organization to insure risks arising in its activities, including the risk of liability for breach of contract, in mutual insurance societies and insurance organizations. Article 13 of Law No. 151-FZ deals only with the right of a microfinance organization to insure such risks.

Let us note that, according to Part 2 of Article 15 of the Law “On the Development of Small and Medium-Sized Enterprises in the Russian Federation,” microfinance organizations are included in the infrastructure of small and medium-sized enterprises.

As follows from Part 1 of Article 15 of the Law “On the Development of Small and Medium-Sized Businesses in the Russian Federation”, the infrastructure for supporting small and medium-sized businesses is a system of commercial and non-profit organizations that are created, operate or are engaged as suppliers (performers, contractors) in for the purpose of placing orders for the supply of goods, performance of work, provision of services for state or municipal needs in the implementation of federal programs for the development of small and medium-sized businesses, regional programs for the development of small and medium-sized businesses, municipal programs for the development of small and medium-sized businesses, providing conditions for the creation small and medium-sized businesses and providing them with support.

Part 2 of Article 15 of the Law “On the Development of Small and Medium-Sized Businesses in the Russian Federation”, in addition to microfinance organizations, also includes the following infrastructure for supporting small and medium-sized businesses: centers and agencies for the development of entrepreneurship; state and municipal funds for supporting entrepreneurship;

credit assistance funds (guarantee funds, surety funds);

joint-stock investment funds and closed-end mutual investment funds that attract investments for small and medium-sized businesses;

technology parks;

science parks;

innovation and technology centers;

business incubators;

chambers and craft centers;

subcontracting support centers;

marketing, training and business centers;

goods export support agencies;

leasing companies;

consultation centers.

Classifying microfinance organizations as part of the infrastructure for supporting small and medium-sized businesses allows them to receive government support themselves, including:

financial;

property;

informational;

consulting, etc.

5. Perhaps one of the central concepts enshrined in paragraph 3 of part 1 of article 2 of Law No. 151-FZ is the concept of a microloan.

In its legal essence, a microloan is the same loan, that is, a transaction between the lender and the borrower, within the framework of which the lender transfers money or other things determined by generic characteristics into the ownership of the borrower. In turn, the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal amount of other items received of the same kind and quality.

However, a microloan has two characteristics that distinguish it from other types of loans:

1) the subject of a microloan can only be money that is the currency of the Russian Federation, that is, rubles. Accordingly, other things, including foreign currency, cannot act as the subject of such a transaction;

2) the loan amount, which cannot be more than 1 million rubles. By today's standards, this is not such a significant amount (hence the prefix micro is added to the name of the instrument). At the same time, according to the legislator, this is the optimal figure for starting micro and small businesses in Russia.

6. The key concept, which is enshrined in paragraph 4 of part 1 of article 2 of Law No. 151-FZ, is the concept of a microloan agreement.

Considering the definition of a microloan agreement, first of all, it should be noted that in essence this agreement is nothing more than a loan agreement, which is regulated by the norms of § 1 “Loan” of Chapter 42 of the Civil Code of the Russian Federation “Loan and Credit”.

By virtue of Article 421 of the Civil Code of the Russian Federation, citizens and legal entities are free to enter into an agreement. Compulsion to enter into an agreement is not permitted, except in cases where the obligation to enter into an agreement is provided for by this Code, the law or a voluntarily accepted obligation. The parties may enter into an agreement, either provided for or not provided for by law or other legal acts. The terms of the agreement are determined at the discretion of the parties, except in cases where the content of the relevant term is prescribed by law or other legal acts.

According to Articles 309, 310 of the Civil Code of the Russian Federation, obligations must be fulfilled properly in accordance with the terms of the obligation and the requirements of the law, other legal acts, and in the absence of such conditions and requirements - in accordance with business customs or other usually imposed requirements.

Unilateral refusal to fulfill an obligation and unilateral change of its terms are not allowed, except in cases provided for by law.

Under a loan agreement, one party (the lender) transfers into the ownership of the other party (borrower) money or other things determined by generic characteristics, and the borrower undertakes to return to the lender the same amount of money (loan amount) or an equal number of other things received by him of the same kind and quality . The loan agreement is considered concluded from the moment of transfer of money or other things (Article 807 of the Civil Code of the Russian Federation).

In accordance with Article 808 of the Civil Code of the Russian Federation, a loan agreement between citizens must be concluded in writing if its amount exceeds at least 10 times the minimum wage established by law, and in the case where the lender is a legal entity, regardless of the amount.

By virtue of paragraph 1 of Article 809 of the Civil Code of the Russian Federation, unless otherwise provided by law or the loan agreement, the lender has the right to receive interest from the borrower on the loan amount in the amount and in the manner specified in the agreement.

The borrower is obliged to return the received loan amount to the lender on time and in the manner provided for in the loan agreement (clause 1 of Article 810 of the Civil Code of the Russian Federation). Unless otherwise provided by law or the loan agreement, in cases where the borrower does not repay the loan amount on time, interest is payable on this amount in the amount provided for in paragraph 1 of Article 395 of the Civil Code of the Russian Federation, from the day when it should have been repaid until the day its return to the lender regardless of the payment of interest provided for in clause 1 of Article 809 of the Civil Code of the Russian Federation (clause 1 of Article 811 of the Civil Code of the Russian Federation).

The legal nature of a microloan agreement is generally similar to the nature of a loan agreement.

The microloan agreement is real, since it is considered concluded from the moment the money is transferred (clause 1 of Article 807 of the Civil Code of the Russian Federation). This provision corresponds with paragraph 2 of Article 433 of the Civil Code of the Russian Federation, which provides that if, in accordance with the law, the transfer of property is also necessary for the conclusion of an agreement, the agreement is considered concluded from the moment of transfer of the relevant property. Due to the real nature of the loan agreement, the presence of a written agreement between the parties, according to which the lender promised to lend property, does not give rise to a corresponding right of claim on the borrower’s side.

A microloan agreement is unilaterally binding, since the obligations under the agreement are assigned to the borrower, and the lender acquires only rights under the agreement. The parties to the microloan agreement are the lender, which is a microfinance organization, and the borrower (debtor), which can be an individual, including an individual entrepreneur, or a legal entity.

The microloan agreement is concluded in writing. Failure to comply does not entail the invalidity of such an agreement. However, violation of the written form of the contract gives rise to the consequences specified in paragraph 1 of Article 162 of the Civil Code of the Russian Federation, namely: it deprives the parties of the right in the event of a dispute to refer to witness testimony to confirm the transaction and its terms, but does not deprive them of the right to provide written and other evidence.

At the same time, the legal nature of the contract is characterized by some specific features established in Law No. 151-FZ:

1) the subject of a microloan agreement can only be funds expressed in the currency of the Russian Federation, that is, Russian rubles;

2) the loan amount under a microloan agreement cannot be more than 1 million rubles.

Example. Yu.S. filed a statement of claim against K. to collect the amount of the principal debt in the amount of 5,000 rubles, a fine in the amount of 3,000 rubles, and penalties in the amount of 106,240 rubles. 00 kopecks, interest for using the loan amount in the amount of 35,600 rubles. In support of the claim, he indicated that on September 2, 2011, between LLC Microfinance Organization “Money? Here!" and K. a loan agreement was concluded, on the same day the defendant received from the Company the amount of money specified in the agreement in the amount of 5,000 rubles, which the defendant undertook to return no later than September 16, 2011. However, the defendant did not repay the loan amount within the period established by the agreement. The defendant refused the plaintiff’s oral proposal, citing a difficult financial situation. The plaintiff also indicated that the contract for the paid assignment of rights dated July 10, 2012, Microfinance Organization Dengi? Here!" conceded, and Z.Yu.A. accepted the right to demand payment of the debt in full under the agreement; further by the agreement of paid assignment dated 01.08.2012 Z.Yu.A. ceded the rights of claim to Yu.S.

By a court decision dated November 29, 2012, satisfying the claims of Yu.S. denied.

In the appeal, the plaintiff asks to overturn the court's decision, citing that the court incorrectly determined the circumstances relevant to the case and incorrectly applied the rules of substantive and procedural law.

Having checked the case materials and assessed the arguments of the appeal, the judicial panel considers the court decision subject to cancellation, and the claims of Yu.S. subject to partial satisfaction based on the following.

The norms of the specified Federal Law of July 2, 2010 No. 151-FZ “On microfinance activities and microfinance organizations” do not require licensing of the activities of microfinance organizations for issuing loans, by the Ministry of Finance of the Russian Federation LLC “Money? Here!" a certificate was issued to enter information about a legal entity into the state register of microfinance organizations, in connection with which, the legal relations that arose between Dengi? Here!" and K. are subject to the rules of civil law governing legal relations under loan agreements, therefore, the court’s conclusions on the need to provide the constituent documents of Dengi? Here! Here!”, confirming the issuance of a loan by the specified company (by crediting funds to the account of an individual) and the calculation of interest in accordance with the requirements of the Bank of Russia Regulation “On the procedure for calculating interest on transactions related to the attraction and placement of funds by banks, and the reflection of these transactions on accounting accounts" dated June 26, 1998 No. 39-P are based on an incorrect interpretation of the law.

From the case materials it is clear that from 09/02/2011 between LLC “Money? Here!" and K. a loan agreement was concluded.

According to clause 1.1 of the agreement dated September 2, 2011, the lender provides the borrower with a loan in the amount of 5,000 rubles. with interest accrued at the rate of 2% for each day the borrower uses funds.

The borrower received funds under the loan agreement, which is confirmed by K.’s receipt dated 09/02/2011.

In accordance with clause 3.1 of the agreement dated 09/02/2011, the borrower is obliged to return the loan received to the lender and pay interest on the loan no later than 09/16/2011.

Clause 6.1 of the agreement dated 09/02/2011 provides that in case of non-fulfillment or improper fulfillment (partial fulfillment) by the borrower of the obligation to repay the loan and (or) pay interest for the use of the loan within the time limits specified in clause 3.1 of this agreement, the borrower pays the lender a one-time fine in the amount 3000 rub.

07/10/2012 between LLC “Money? Here!" and Z.Yu.A. an agreement for a paid assignment of rights was concluded, according to which the assignor (LLC “Money? Here!”) assigns, and the assignee (Z.Yu.A.) accepts the rights to demand payment of the debt in full under the loan agreements according to the list of agreements given in Appendix No. 1 to this agreement, which also indicates the loan agreement concluded with K.

08/01/2012 between Z.Yu.A. and Yu.S. an agreement for a paid assignment of rights was concluded, according to which the assignor (Z.Yu.A.) assigns, and the assignee (Y.S.) accepts the rights to demand payment of the debt in full under the loan agreements according to the list of agreements given in Appendix No. 1 hereto agreement, which also specifies the loan agreement concluded with K.

Having assessed these circumstances, taking into account that the case materials confirm the fact of the conclusion of the agreement, the fact of the transfer of funds, and also taking into account that the defendant did not state any arguments to challenge the loan agreement, did not provide evidence of the return of funds, having checked the calculation of interest presented by the plaintiff, the judicial panel believes subject to satisfaction of the plaintiff's demands to collect from the defendant the amount of the principal debt in the amount of 5,000 rubles, to collect a fine in the amount of 3,000 rubles, as well as to collect from the defendant in favor of the plaintiff interest for the use of funds in the amount of 35,600 rubles.

In accordance with clause 6.2 of the agreement dated 09/02/2011, in the event of non-fulfillment or improper fulfillment (partial fulfillment) by the borrower of the obligation to repay the loan and (or) pay interest for the use of the loan within 10 days from the date specified in clause 3.1 of the agreement, the borrower undertakes pay a penalty in the amount of 5% of the amount owed to the lender for each day of delay.

According to paragraph 1 of Art. 330 of the Civil Code of the Russian Federation, a penalty (fine, penalty) is a sum of money determined by law or contract, which the debtor is obliged to pay to the creditor in the event of non-fulfillment or improper fulfillment of an obligation, in particular in the case of delay in fulfillment.

Taking into account the size of the loan amount, the length of the defendant’s delay in violating the obligation, the consequences of violating the obligation, the panel of judges comes to the conclusion that the amount of penalties claimed by the plaintiff for collection in the amount of 106,240 rubles. 00 kopecks, is clearly disproportionate to the consequences of violation of the obligation and, guided by Art. 333 of the Civil Code of the Russian Federation, believes it is possible to reduce the amount of penalties to 10,000 rubles.

Guided by Art. 328 of the Code of Civil Procedure of the Russian Federation, the judicial panel overturned the decision of the Smolninsky District Court of St. Petersburg dated November 29, 2012.

Collect from K. in favor of Y.S. under the loan agreement dated September 2, 2011, the principal debt is in the amount of 5,000 (five thousand) rubles, a fine in the amount of 3,000 (three thousand) rubles, penalties in the amount of 10,000 (ten thousand) rubles, interest in the amount of 35,600 ( thirty-five thousand six hundred) rub.

The rest of the demands are denied. To collect from K. a state duty in the amount of 1808 (one thousand eight hundred eight) rubles to the appropriate budget.

Example. OOOOZP, in the interests of F., filed a lawsuit against LLC “...” to invalidate clauses 1.1. and 7.1. loan agreement No. ... dated May 12, 2011, concluded between LLC "..." and F. in terms of accrual of interest, as well as clause 4.4 in terms of repayment, first of all, of the fine for late interest, collection of compensation for moral damage in the amount of ... rub., legal expenses in the amount of ... rubles, a fine for failure to voluntarily meet consumer requirements.

In support of the stated claims, the plaintiff indicated that on May 12, 2011, a loan agreement No. ... was concluded between F. and LLC “...”, under the terms of which the defendant provided the plaintiff with funds in the amount of ... rubles. for consumer purposes for a period until May 29, 2011 with interest accrued at the rate of 2% for each day of use. The loan agreement is paid, in addition to the accrual of 2% for each day of use of funds in accordance with clause 7.1. of the agreement, in the event of the borrower’s failure to fulfill obligations to repay the loan on time, interest is payable for each day of delay. The essential terms of the agreement, including the terms on the amount of interest for the use of funds, the amount of the fine for late repayment of the loan, were determined by the defendant independently, and in fact the plaintiff was deprived of the opportunity to offer his own terms. The plaintiff believes that his rights are infringed by the dishonest and illegal actions of the defendant, namely, in accruing interest that does not correspond to the rate of inflation, significantly exceeding the refinancing rate, and also in terms of repaying the fine first, the specified terms of the loan agreement are enslaving (ld. 4 – 11).

By the decision of the Kominternovsky District Court of Voronezh dated 07/09/2012, the claims of VOOOZP, acting in the interests of F., were denied (case files 82, 83 – 87).

In the appeal, F. and VOOOZP, in the interests of F., raise the issue of canceling the court decision as illegal and unfounded, decided in violation of the norms of substantive and procedural law (case sheets 91 - 93).

Having checked the case materials, listened to the explanations of the representative of VOOOZP N., discussed the arguments of the appeal and objections to it, the judicial panel does not find any grounds for satisfying the appeal.

As established by the court and seen from the case materials, on May 12, 2011, a loan agreement No. ... was concluded between LLC "..." and F., under the terms of which the lender provided the borrower with a loan in the amount of ... rubles. for a period until May 29, 2011 with interest accrued at the rate of 2% for each day the borrower uses funds (732% per annum).

By the decision of the magistrate of the judicial district No. 2 of the Gribanovsky district of the Voronezh region dated 02.21.2012, left unchanged by the appeal ruling of the Gribanovsky district court of the Voronezh region dated 06.05.2012, from F. in favor of LLC “...”, the principal debt under the loan agreement was recovered in the amount of ... rub., a fine in the amount of ... rub., interest in the amount of ... rub., expenses for drawing up a statement of claim in the amount of ... rub., expenses for paying the state duty in the amount of ... rub., and in total ... rub. (ld. 75 – 77, 52 – 53).

In support of his claims, F. referred to the invalidity of the terms of the loan agreement provided for in clause 1.1 of the agreement on the calculation of interest for the use of borrowed funds in the amount of 2% per day, in clause 7.1 regarding the payment of interest at the rate of 2% of the loan amount for every day the loan is overdue, clause 4.4 on the priority of sending funds to repay the borrower’s obligation in accordance with Art. 179 of the Civil Code of the Russian Federation (enslaving transaction).

Based on the circumstances established in the case in relation to the requirements of the legislation regulating the disputed legal relations of the parties, the district court came to the correct conclusion that there were no legal grounds for satisfying the claims, since the plaintiff did not provide reliable evidence to support the grounds for declaring the transaction invalid on the basis specified by him.

In particular, the plaintiff did not provide indisputable evidence of the presence in the aggregate of such signs of a transaction as a confluence of difficult circumstances for F., clearly unfavorable conditions for the transaction; a causal connection between his difficult circumstances and his conclusion of a transaction on extremely unfavorable terms for him; the lender's awareness of the listed circumstances and use of them to his advantage.

At the same time, the district court correctly took into account that by the above-mentioned decision of the magistrate of judicial district No. 2 of the Gribanovsky district of the Voronezh region dated 02/21/2012 on a dispute between the same persons, having the force of Part 2 of Art. 61 of the Code of Civil Procedure of the Russian Federation has prejudicial significance; the compliance of the disputed clauses of the contract with the requirements of the current legislation has been established.

Therefore, there are no grounds for recognizing clauses of the loan agreement as invalid on the grounds of their non-compliance with the law.

The arguments of the complaint that this decision does not have prejudicial significance in resolving the present dispute, filed on other grounds, are untenable, based on an erroneous interpretation of the rules of procedural law.

The panel of judges finds the conclusions of the trial court correct, motivated, and consistent with the requirements of the current legislation governing the legal relations of the parties.

Reference in the additional appeal to the fact that the court did not apply the Federal Law “On Microfinance Activities and Microfinance Organizations” and did not take into account that the loan agreement was concluded between the parties on May 12, 2011, while LLC “...” was included in the register of microfinance organizations 07/08/2011 cannot lead to the cancellation of the decision, since the very fact of entering or not entering information about a legal entity into the state register of microfinance organizations does not in any way affect the existence of this legal entity itself. LLC "..." the terms of the loan agreement for the provision of funds to the plaintiff were duly fulfilled.

In the court of appeal, the representative of VO-OOZP N. explained that F.’s information about the non-inclusion of the company in the register of microfinance organizations in any case would not have affected his will to conclude a loan agreement.

The panel of judges also notes that the plaintiff did not refer to this circumstance in the court of first instance and did not challenge the transaction on this basis.

The court's decision is essentially correct, made with the correct application of substantive law.

The judicial panel does not see any violations of the norms of procedural law that are grounds for reversing the court decision, including those indicated in the complaint.

When considering the case, the district court took all necessary measures to comprehensively, completely and objectively clarify the actual circumstances of the case.

The conclusions of the court of first instance are based on evidence examined during the trial, which was given a proper legal assessment in compliance with the provisions of Articles 56, 61, 67 of the Code of Civil Procedure of the Russian Federation, with which the judicial panel has no reason to disagree.

End of introductory fragment.

In Art. 151 of the Federal Law on microfinance activities talks about the legal regulation of the use of microloans in the Russian Federation. Microloans are one of the most popular services in the Russian financial market. Microfinance organizations (MFOs) in Russia have the status of a legal entity, but the specifics of their activities differ significantly from those inherent in large financial organizations, including banks.

In Art. 151 of the Federal Law, microfinance activities have acquired a special legal status. In 2010, the procedure for its regulation was determined at the state level. The activities of all microfinance organizations in Russia are subject to this legislative document, which clearly outlines the size, conditions and procedure for providing microloans.

In Russia, a procedural algorithm has been established at the legislative level, in accordance with which a legal entity planning to carry out activities in the field of microfinance receives permission or a refusal to operate in this segment of the financial market.

What is the difference between macro and micro participants?

The law on microfinance organizations defines a list of legal entities whose activities are considered microfinance. Among them are not only purely credit organizations that provide loans to citizens, but also pawnshops, housing and savings cooperatives.

Other legal entities also have the right to engage in microfinance activities, since the law does not strictly limit the list of organizations that have the right to work in this segment. But budgetary organizations, according to Russian legislation, do not have the right to take on the functions of microfinance and carry out activities in this area.

Most individuals who are consumers of credit products do not particularly distinguish banks from legal entities providing loans. But there is a difference between the two categories of financial market participants, and a very significant one.

Both banks and microfinance organizations must undergo the state registration procedure and be included in the Unified State Register of Legal Entities. This legal norm is legislatively enshrined in Art. 51 of the Civil Code of the Russian Federation.

Banks and other credit institutions are required to be registered with the Central Bank of the Russian Federation, which is not only a purely financial state institution, but also an instrument for regulating processes occurring in the banking sector and related industries. An MFO must be registered with the State. There is Order of the Ministry of Finance of Russia dated March 3, 2011 N 26n, which clearly defines the procedure for maintaining such a register.

Microfinance organizations can be:

• commercial;
• non-profit.

What is the difference between the status of an MFO and the status of a bank?

The bank, in turn, cannot receive non-profit status, even if it participates in government projects, pension co-financing programs, non-profit partnerships and associations. The question of the possibility of creating non-profit banks in Russia has repeatedly been raised at the federal level since 2008. But at the moment it remains at the level of a public initiative that has not been implemented in legislative and financial practice.

Commercial microfinance organizations have the right to exist in the form of limited liability companies and joint stock companies. Among the non-profit forms of MFOs in Russia, the most widespread are foundations, autonomous organizations, and partnerships.

In order for a legal entity to have the right to conduct its activities in the field of microcredit, it is necessary that its charter stipulates the corresponding type of activity. If a non-profit partnership issues, for example, microloans to the population, but there is no corresponding clause in the charter of the legal entity, such activity is illegal.

Where is the best place to take out a loan and place deposits?

The law limits the amount of loans that microfinance organizations have the right to issue to borrowers: no more than one million rubles per individual. But this does not mean that the borrower who takes out the largest loan will receive the entire amount. One million rubles is the total amount of the loan and interest for using it.

Even if the borrower plans to repay the microloan early, the amount cannot be increased beyond one million rubles. When calculating the total maximum loan amount, interest is taken into account for the entire period during which the individual, according to the concluded agreement, must repay the microloan.

At the same time, the state does not make a significant distinction between microloans and microcredits, setting a common upper limit between them - one million rubles. The state gave MFOs equal rights with banks and allowed the former to raise funds from individuals in various financial forms:

• loans;
• voluntary contributions;
• donations;
• other income.

But the circle of citizens who, according to Russian law, can transfer loans to microfinance organizations is limited. If an individual becomes a depositor of an MFO, then a loan agreement is concluded between him and the microcredit organization. The founders of a microfinance organization, which also include shareholders, if the organization is a joint-stock company, have the right to act as borrowers.

Microfinance organizations, according to the law, differ from banks not only in terms of the organizational and legal form of ownership.

The rights of microfinance organizations are limited in terms of their provision of borrowing and credit services to citizens. If a person took out an amount from an MFO, he does not have to worry that during the time during which he must repay the loan, the interest rate on the amount issued to him will increase and he will have to pay significantly more than was envisaged at the time of concluding the agreement with the financial organization.

Banks, on the contrary, have the right, according to Russian law, to unilaterally change their interest rates without coordinating these issues with their depositors and consumers of credit products. Repaying an early loan from an MFO is a fairly common practice among borrowers, while repaying loans early to banks turns out to be unprofitable.

Are they focused on different segments of the financial market?

In Russia, microfinance organizations do not have the right to collect fines from individual entrepreneurs and individuals, which is legally allowed for banks. As numerous sociological surveys show, consumers of borrowed and credit products believe that microfinance organizations have a more democratic procedure for obtaining credit and borrowed funds.

This is due to the fact that legal entities conducting microfinance activities are focused on a consumer segment of the market that is different from banks. Most microfinance organizations offer their services to residents of small towns where the banking infrastructure is not yet sufficiently developed.

Microfinance organizations are aimed at providing services to start-up entrepreneurs who find it difficult to obtain credits and loans to develop their own business, since many small business support programs in Russia are declarative in nature, far from economic and financial realities.

But on the other hand, individuals who borrow funds from microfinance organizations are in a less advantageous position compared to bank depositors. Russian legislation obliges banks to insure deposits of individuals. For the activities of microfinance organizations, such a rule is not provided for by law, which significantly increases the risk of non-repayment of funds to individuals by unscrupulous borrowers.

In 2014, federal legislation on microfinance activities underwent significant changes. The state has used legal leverage against violators of the law. Legislators have specified the legal grounds according to which an organization providing microfinance services may be excluded from the state register of microfinance organizations. As soon as an organization is excluded from it, the legal entity loses its status and the right to conduct activities in the field of microfinance.

In Russia, a mechanism has been regulated for informing clients of microfinance organizations about the exclusion of legal entities from the relevant register. In 2014, the legislative provisions on the basis of which microfinance organizations provide information about their borrowers to credit history bureaus were finally clarified.

The advent of the 21st century was marked in Russia by an increase in consumer supply against the background of a sharp decline in the solvency of the population. Unable to purchase the desired goods with their own funds, citizens actively began to turn to microfinance structures. New MFOs and MFCs began to open, which necessitated the need to bring their activities into line with legislative regulation. In 2010, the government adopted Law 151 Federal Law “On microfinance activities and microfinance organizations.” It becomes the main document for regulating the activities of these companies.

According to the law, a microfinance organization is a legal entity created with the participation of Russian or foreign capital. MFOs do not require a license to issue loans. Companies providing microloans do not have the status of a credit organization; the legal regulation of their activities is different from the requirements for banks. Therefore, any person who uses the services of financial institutions needs to know and understand the legislative aspects of the activities of MFOs.

Object of regulation

The law on microloans consists of 5 chapters and 17 articles. It determines the legal basis for activities, the possibilities and limitations of the functioning of the microfinance system as a whole, the subordination and responsibility of the IFC.

The law defines microfinance activities as the provision of services for issuing money on credit under certain conditions. Services can be provided by specialized organizations, microfinance companies (MFCs), microcredit companies (MCCs), microfinance organizations (MFOs).

Other services have been added to the modern capabilities of these structures. For example, they can attract funds from legal entities and individuals, leasing services, insurance, carry out money transfers, payments, etc. A transaction under certain conditions that is concluded between a lender and a borrower is called a microloan. It is concluded in writing, however, failure to comply with this requirement will not entail the invalidity of the contract. These provisions are regulated by the Civil Code of the Russian Federation. The terms of the transaction are specified in the loan agreement.

The main requirement for carrying out legal activities is the inclusion of the company in the state register of microfinance organizations. The procedure for its maintenance is established by the Central Bank of the Russian Federation. This information is open; it should be available on the websites of all existing microfinance organizations, sales offices, and representative offices. Any person wishing to receive up-to-date information about microfinance organizations must obtain it in full.

The main internal document of the IFC is the rules for issuing microloans. They are accepted and approved by the authorized governing body of the organization (board of directors, general meeting of shareholders, etc.). The document is posted on the websites of companies, in their representative offices, so that any interested person can freely familiarize themselves with it.

1. Basic information that the document should contain:
2. Instructions and recommendations for drawing up and submitting a questionnaire and application for a loan.
3. How the application is considered.
4. Information about requesting additional documents from clients who have submitted an application.
5. Other conditions.

The charter of the MFO defines the direction of its activities - the provision of microloans. The minimum amount of equity capital is 70 million rubles.

Microfinance performs a number of functions. Let's list them:

1. Financing of start-ups and small businesses, when bank lending is impossible for some reason.
2. Open lending conditions reduce shadow economic transactions.
3. Providing the opportunity to receive funds to vulnerable segments of the population who are refused by banking structures (students, pensioners, temporarily unemployed, etc.).
4. Providing an opportunity for clients to improve their own credit history in order to apply to the bank for loans with good interest rates in the future.

The social orientation of the IFC's activities is refuted by the conditions, in particular, the interest rate at which money is lent. 7 years after the adoption of the law, many borrowers found themselves caught up in credit networks, and cases of debt sales to collection companies and appeals to the courts increased.

Rights, obligations, restrictions on the work of MFOs

The Law on Microfinance Organizations stipulates that microloans are provided only in rubles. They can be targeted or non-targeted. If a loan is provided for a specific purpose, the lender has the right to check the direction in which the loan funds are spent. In cases of misuse of funds or the impossibility of verification, the organization may submit the loan for early collection. This condition is similar to the banking procedure for monitoring the intended use of funds.

Let's take a closer look at the rights of MFOs:

1. Provide loans in an amount not exceeding 1 million rubles. total debt for one borrower and one IFC.
2. Request and receive necessary information from the client to determine the possibility of lending money.
3. Refuse to issue money if the borrower does not meet the requirements set by the company. The refusal must be motivated.
4. Attract funds from investors for further placement. Founders' funds are raised without restrictions. For other individuals, the minimum deposit amount cannot be less than 1.5 million rubles. under one contract. There are no deposit insurance requirements for MFOs, which increases the risk of this operation compared to investing in banking structures.
5. Insure risks with insurance companies. However, insurance is only a right, but not an obligation of the company.
6. Create funds to cover losses associated with microfinance activities. The procedure and principles of their work are determined by the internal documents of the MFO.

These financial structures have the right to microfinance while simultaneously carrying out other types of activities provided for by the charter: production, trade, provision of other services, etc. The exception is the inability of microfinance organizations to be a participant in the securities market, i.e. they are prohibited from brokerage, dealer activities, management securities, etc.

Central Bank memo

Along with the rights granted, the company is subject to certain responsibilities and restrictions. Let's look at them in more detail:

1. Provide the client with the opportunity to obtain information about the presence of the multifunctional complex in the state register.
2. Data on lending conditions, the possibility of changing them at the initiative of the lender or borrower, the full cost of the loan, and additional costs must be publicly available to clients.
3. Maintaining the confidentiality of clients' personal information.
4. MFOs do not have the right to include in the loan agreement conditions on a possible unilateral increase in the interest rate on the loan (unlike banks).
5. It is prohibited to charge a fee for early repayment of debt by the client. This condition applies if the borrower notifies the lender in writing of his intention to terminate the contract early no earlier than 10 days in advance. This provision applies only to individuals. Early repayment of debt by legal entities is stipulated in the terms of the loan agreement.
6. The maximum amount provided to a legal entity and individual entrepreneur is 3 million rubles, to an individual 1 million rubles.
7. The maximum possible amount of accrued interest on a loan cannot exceed three times the amount of the microloan itself (for loans with a repayment period of less than a year). Thus, if the borrower received 10 thousand rubles. in debt, he must return no more than 30 thousand rubles.

If the loan becomes overdue, the company has the right to charge the debtor fines and penalties. Interest is charged on the balance of the debt, but not more than twice the amount of the overdue debt (for short-term loans). Further interest accrual is possible only in case of partial repayment of the overdue debt. For example, the maximum amount of debt repayment when the loan balance becomes overdue is 10 thousand rubles. will be 20 thousand rubles. (not counting possible penalties, penalties, etc., which can be challenged in court).

It is the responsibility of the IFC to reflect all the terms of the loan, along with restrictions, on the first page of the loan agreement.

An additional restriction on the activities of organizations is the prohibition on providing guarantees for their founders or securing their obligations in other ways (for example, providing collateral). Major transactions that may entail the alienation of property worth more than 10% of the value of the organization’s assets must be approved by the highest governing body of the company, otherwise it will be declared invalid.

Rights and obligations of applicants and borrowers

The applicant is also endowed with rights and responsibilities at the legislative level. Rights:

1. Receive complete information about the lender, which is established by law.
2. Study the terms of the loan agreement before issuing it.
3. Other rights provided for by law.

Responsibilities:

1. Provide the lender with all the necessary information, which is defined in the rules for issuing microloans of the IFC.
2. Be responsible for the accuracy of the data provided.

After receiving a loan, the borrower acquires the right to use funds at his own discretion, with the exception of targeted loans, in accordance with the terms of the agreement.

Supervisory authorities of microfinance organizations

The Bank of Russia controls the activities of microfinance organizations; however, it does not have the right to interfere in the activities of the company, except in certain cases specified by law. MFOs provide the Bank of Russia with information about their activities, changes, and financial statements to form a reserve for possible loan losses.

In cases where an MFO attracts funds from clients to control its activities, certain standards are established: adequacy of own funds, liquidity, maximum risk, etc. If the MFO does not comply with the established standards, the Central Bank has the right to exclude the company from the state register and thus thereby depriving her of the opportunity to provide and accept funds.

Statistics. Profit of microfinance organizations

The law does not regulate the activities of credit organizations, credit cooperatives, pawnshops, and housing savings cooperatives. These organizations have the right to provide microloans, but the rules of their work are determined by other laws.

How do microfinance organizations interact with credit bureaus?

The law provides for the right of MFOs to provide information about borrowers and people who submitted an application form for a microloan to the BKI. The bureau is selected at the discretion of the company, but it must be in the state register of credit history bureaus.

Concluding an agreement with BKI is not the responsibility of the company. The law does not oblige the lender to take into account the quality of service of the previous debt by the borrower when deciding whether to issue a loan. Therefore, companies provide microloans with any credit history. Restrictions are introduced at the discretion of the company's governing bodies and internal instructions.

Changes to Law 151 Federal Law “On microfinance activities and microfinance organizations”

Since its adoption, the law has been amended and supplemented more than 10 times, the latest changes were made in May 2017. They touched upon the status of the IFC. They mainly concern compliance with established standards.

The spread of microfinance companies, their popularization and demand have entailed the need to legitimize their activities. The MFO Law defines the basis for regulating microfinance activities and the principles of MFO activity. It sets out the principles and conditions for the activities of companies, their clients, borrowers and investors, and defines restrictions on activities.

Microfinance organizations are mainly engaged in transactions involving the provision of financial services to individuals with small businesses or individual entrepreneurs. For such institutions there are certain conditions and requirements for conducting activities. To regulate the economy in small businesses, an appropriate

General provisions of the law on the activities of microfinance organizations

The Federal Law on microfinance organizations was adopted by the State Duma on June 18, 2010, and approved by the Federation Council on June 23, 2010. The last changes to it were made on May 1, 2017. Federal Law 151 contains 5 chapters and 17 articles. This law controls and regulates the processes and nuances of microfinance activities, such as the provision of microfinance. loans, determination of the status of the organization, rights, powers and obligations of the Central Bank of Russia. The law also regulates the processes of microfinance institutions and their supervision.

Summary of Federal Law No. 151 on microfinance activities and organizations:

• The first chapter describes the general provisions of the law. The goals, objectives and scope of regulation of the law are given. A list of terms and concepts used in the law and their definitions is given. Other laws, acts and regulations governing the described area are listed;
• The second chapter outlines the conditions and requirements under which microfinance operates and develops its activities. organizations. The register, accounting and registration of this type of institutions are described. The requirements for supervisory authorities and requirements for founders of this type of company are listed. The methods and procedure by which companies and institutions acquire microfinance status are described. The reasons why legal entities may be refused to be included in the register have been formalized. The process and methods for implementing the exclusion of legal entities are described. persons from the microfinance register. organizations;
• Chapter number three describes the order in which the described institutions carry out their activities. A list of conditions and requirements under which the organization has the right to issue a loan to a person has been drawn up. A list of powers, rights and responsibilities of microfinance institutions is given. A list is also given of the rights and obligations of persons who decide to receive a loan from such an organization and submit an application. And a list of the rights and obligations of the borrower itself is given. Restrictions and prohibitions in the activities of microfinance institutions are listed. The features and nuances of calculating interest on loans in case of overdue payments are outlined. Mandatory insurance, identification of risks and trust fund are described;
• In city four, information on control over this type of organization is provided. Ways to regulate the activities of microfinance institutions. Mandatory provision of information, reporting, methods of providing information on government activities. organs. Legal relations between microfinance firms and credit bureaus;
• In the fifth year, final and additional provisions, conditions and requirements of the law were formalized.

This area is regulated by the described Federal Law, the Constitution of Russia, the Civil Code of the Russian Federation, Federal Law No. 353 on consumer credits and loans, Russian legislation and other regulations and acts.

Read also about the main provisions of Federal Law 86

Latest changes made to the law

The latest changes to the Federal Law on microfinance organizations were made on May 1, 2017, with the adoption of Federal Law No. 92.

According to the adopted changes there was seventh article added . In the first part of this article, the first paragraph has been changed.

According to the changes, the Central Bank of Russia may exclude information about microfinance from the register. organizations only in cases where:

• This type of institution, such as a legal entity, is being liquidated;
• The institution has received the official status of a bank or the status of a credit organization;
• The organization independently provided an application form for exclusion from the register. The form must comply with the provisions of this article.

With the new version of the law, Article seven was supplemented clause 1.10 . According to this addition, during the period when a microfinance institution has submitted documents to the Central Bank of Russia to obtain a certain status (status of a bank or credit organization), but before the Bank makes a decision, the company does not have the right to accept any funds from individuals or individual entrepreneurs. Funds can only be accepted from the founders or shareholders of the institution.

Was also added point number 1.11 . This paragraph states that the Bank of Russia can allow an organization that has received the status of a bank with a basic license to carry out transactions with funds of individuals only after two years have passed from the date of making changes to the state register.

According to the adopted changes, the seventh article was added clause 1.12 . This paragraph states that if an agreement on certain financial transactions was concluded before the institution received a different status, transactions can be carried out regardless of their type and category. This means that if an agreement was accepted between a microfinance organization and an individual, and then the organization changed its status, operations according to the agreement can continue, despite the prohibition formalized in clause 1.11.

The last change, adopted on May 1, 2017, was to add clause 1.13 in article seven. According to this paragraph, microfin. the organization has the right to continue transactions and operations under agreements accepted before the change in status until the expiration of the period initially established in the agreements. Changes under this type of agreement cannot be made to the initially established price and validity period of the document.

Article 12 of the law on microfinance activities states that this type of organization has certain restrictions on its activities. Among these restrictions are:

• Guarantee for transactions of own founders, or any other way of fulfilling the obligations of the founders;
• It is prohibited to use in any documents the abbreviated or full name of an organization that is similar or completely identical to the name of another financial company;
• Conducting transactions on the alienation of one’s own property without the permission of higher authorities;
• It is prohibited to accrue interest to individual borrowers under loan agreements if the loan repayment period documented in the documents does not exceed a year;
• Issuing any type of loan in foreign currency;
• Issuing a loan to an individual entrepreneur or legal entity. a person if the amount of all debts of this person to the organization exceeds three million rubles;
• Changing the terms of contracts with legal entities. persons or individual entrepreneurs about the interest rate, commissions or validity periods of contracts unilaterally;
• Carrying out any category of activity in the securities market;
• Application of penalties to an individual or individual entrepreneur if the person notified the organization in advance (10 days in advance) about the early repayment of the loan.

Interest rate conditions and other nuances of microfinance activities. organizations are supplemented in clause 12.1.

Text of the latest edition of 151 Federal Law

Federal Law 151 was adopted to establish the operating procedures of microfinance institutions. If a person plans to open his own organization, it is recommended to study the described law. It defines the opening methods, process, conditions and requirements for the activities of such organizations and restrictions.