Organization of a public competition

1. A person who has publicly announced the payment of a monetary reward or the issuance of another award (about the payment of an award) for the best performance of work or the achievement of other results (public competition) must pay (give out) a conditional award to the one who, in accordance with the conditions of the competition, is recognized as his winner.

2. A public competition must be aimed at achieving some publicly beneficial goals.

3. A public competition may be open, when the offer of the organizer of the competition to take part in it is addressed to everyone by an announcement in the press or other mass media, or closed, when the offer to take part in the competition is sent to a certain circle of persons at the choice of the organizer of the competition.

An open competition may be conditioned by the preliminary qualification of its participants, when the organizer of the competition conducts a preliminary selection of persons who wish to take part in it.

4. The announcement of a public competition must contain at least conditions that provide for the essence of the task, the criteria and procedure for evaluating the results of work or other achievements, the place, term and procedure for their presentation, the amount and form of the award, as well as the procedure and terms for announcing the results of the competition.

5. To a public tender containing an obligation to conclude an agreement with the winner of the tender, the rules provided for by this chapter shall apply insofar as this Code does not provide otherwise.

Article . Change of conditions and cancellation of the public competition

1. The person who announced a public competition has the right to change its conditions or cancel the competition only during the first half of the period established for the submission of works.

2. Notification of a change in the conditions or cancellation of the competition must be made in the same way in which the competition was announced.

3. In the event of a change in the conditions of the competition or its cancellation, the person who announced the competition must reimburse the costs incurred by any person who performed the work specified in the announcement before he became or should have become aware of the change in the conditions of the competition and its cancellation.

The person who has announced the competition shall be released from the obligation to reimburse expenses if he proves that said work was performed not in connection with the competition, in particular before the announcement of the competition, or knowingly did not comply with the conditions of the competition.

4. If the requirements specified in paragraphs 1 or 2 of this article were violated when changing the conditions of the competition or canceling it, the person who announced the competition must pay a reward to those who performed work that satisfies the conditions specified in the announcement.

Article . Award decision

1. The decision on the payment of an award must be made and communicated to the participants of the public competition in the manner and within the time limits established in the announcement of the competition.

2. If the results indicated in the announcement are achieved in the work performed jointly by two or more persons, the award is distributed in accordance with the agreement reached between them. If such an agreement is not reached, the procedure for distributing the award is determined by the court.

Article . Use of award-winning works of science, literature and art

If the subject of a public competition is the creation of a work of science, literature or art and the conditions of the competition do not provide otherwise, the person who announced the public competition shall acquire preemptive right to conclude an agreement with the author of a work awarded a conditional award on the use of the work with the payment of an appropriate remuneration to him for this.

Article . Return of the submitted works to the participants of the public competition

The person who announced a public competition is obliged to return to the participants of the competition the works that were not awarded, unless otherwise provided by the announcement of the competition and does not follow from the nature of the work performed.

Civil Code, N 14-FZ | Art. 1057 of the Civil Code of the Russian Federation

Article 1057 of the Civil Code of the Russian Federation. Organization of a public competition (current version)

1. A person who has publicly announced the payment of a monetary reward or the issuance of another award (about the payment of an award) for the best performance of work or the achievement of other results (public competition) must pay (give out) a conditional award to the one who, in accordance with the conditions of the competition, is recognized as his winner.

2. A public competition must be aimed at achieving some socially useful goals.

3. A public competition may be open when the proposal of the organizer of the competition to take part in it is addressed to everyone by means of an announcement in print or other means. mass media, or closed, when an offer to take part in the competition is sent to a certain circle of persons at the choice of the organizer of the competition.

An open competition may be conditioned by the preliminary qualification of its participants, when the organizer of the competition conducts a preliminary selection of persons who wish to take part in it.

4. The announcement of a public competition must contain at least conditions that provide for the essence of the task, the criteria and procedure for evaluating the results of work or other achievements, the place, term and procedure for their presentation, the amount and form of the award, as well as the procedure and terms for announcing the results of the competition.

5. To a public tender containing an obligation to conclude an agreement with the winner of the tender, the rules provided for by this Chapter shall apply insofar as Articles 447-449 of this Code do not provide otherwise.

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Commentary on Art. 1057 of the Civil Code of the Russian Federation

1. The commented article is devoted to the organization of a public competition. A public competition is a type of public promise of an award. When it is announced, a person who has publicly announced the payment of a monetary reward or the issuance of another award (the payment of an award) for the best performance of work or the achievement of other results must pay (give) a conditional award to the one who, in accordance with the competition, is recognized as the best performer of the work or has achieved best results.

2. Unlike a public promise of an award, a public competition is aimed at achieving some socially useful goals and can be addressed to everyone (open competition) and to a certain circle of people at the choice of the organizer of the competition (closed competition).

So, for example, the purpose of holding an open public competition for the best lesson in history on the topic: "The first World War on the map of the Union State" there was a need to find new formats for conducting history lessons in order to form and nurture military-patriotic feelings among the younger generation, to identify common historical roots Russian and Belarusian peoples.

The purpose of the public competition "BAM in the history of my family" is to popularize the history of Russia, promote patriotism and the achievements of domestic railway construction.

Purpose of the All-Russian competition for the best scientific work among students, graduate students and young scientists of higher educational institutions Ministry of Agriculture of Russia - support for talented youth, promotion of scientific knowledge and creative achievements, identification and development of creative abilities among Russian youth, interest in scientific activities (see Order of the Ministry Agriculture RF dated July 17, 2014 N 283).

3. The announcement of the competition may take place in print or other media. This announcement, like the promise of a reward, is a one-sided deal or a public offer. In favor of the latter speaks paragraph 4 of Art. 1057 of the Civil Code of the Russian Federation, namely the fact that the announcement of a public competition must contain conditions that provide for the essence of the task, the criteria and procedure for evaluating the results of work and other achievements, the place, deadline and procedure for their presentation, the amount and form of the award, the procedure and deadlines for achieving the results competition.

So, for example, the announcement of an open public competition of works for the awards of the Government of the Russian Federation in the field of education in 2014 was published on January 15, 2014 in " Russian newspaper"(Federal issue N 6278), as well as on the website of the Ministry of Education and Science of Russia.

Announcements about the competition "BAM in the history of my family" and for the best history lesson on the topic: "The First World War on the map of the Union State", as well as the relevant provisions for holding these competitions, were published on the website of CJSC " Publishing House"Komsomolskaya Pravda" on the Internet at: www.kp.ru.

4. Since the competition is a competition that determines the best of its participants, it assumes the presence of several participants who take into account the announced conditions and submit works to the competition - the results of author's, performing skills, sports achievements, scientific works, etc.

Submission of works, achievements to the competition is an acceptance and the moment of conclusion of the contract (Article 433 of the Civil Code of the Russian Federation). This is a conditional transaction with a suspensive condition, since the obligation to pay the award occurs only for the winner. The form of the contract can be any. Most often, the proof of his conclusion is the written presentation of the results of work or other achievements. The essential condition of such an agreement is its subject: the above-mentioned works or achievements, the criteria and procedure for their evaluation, the amount and form of the award, the procedure and terms for announcing the results of the competition.

The reward can be paid not only in cash. Commemorative badges are given as an award. The issuance of an award may be accompanied by the awarding of various kinds of certificates, the awarding of honorary titles of a laureate or diploma winner of the competition. However, these are only measures of moral encouragement, which in themselves are not a competitive award.

The subjects of the contract can be any natural and legal entities. Can act as the organizer of the competition government bodies and bodies local government.

5. For a public tender containing an obligation to conclude an agreement with the winner of the tender, the provisions on the public tender and, accordingly, the articles on the conclusion of the contract at the auction (Articles 447 - 449 of the Civil Code of the Russian Federation) apply.

6. Applicable law:

Decree of the Government of the Russian Federation of August 28, 2013 N 744;

Order of the Ministry of Transport of the Russian Federation dated 08.09.2014 N MS-127-r;

Order of the Ministry of Transport of the Russian Federation dated 08.09.2014 N MS-126-r;

Order of the Ministry of Labor and Social Protection of the Russian Federation of 08/04/2014 N 516;

Order of the Ministry of Agriculture of the Russian Federation of July 17, 2014 N 283;

Order Federal Service execution of sentences dated 13.05.2014 N 224;

Order of the Federal Agency for Youth Affairs dated March 17, 2014 N 60;

Order of the Federal Agency for Youth Affairs dated March 12, 2014 N 56;

Order of the Federal Agency for Youth Affairs dated March 12, 2014 N 50;

Order of the Federal Forestry Agency dated March 7, 2014 N 61;

Order of the Federal Bailiff Service dated January 15, 2014 N 3;

Order of the Federal Agency for Youth Affairs dated 13.01.2014 N 6;

Order of the Ministry of Internal Affairs of Russia dated 10.08.2013 N 612;

Regulations on the competition "For the production of high-quality food products" (approved by the Ministry of Agriculture of the Russian Federation on August 20, 2014);

Regulations on the All-Russian competition "For service to sports" (for contribution to the development physical education and sports) (approved by the Ministry of Sports of the Russian Federation on July 21, 2014);

Regulations on the All-Russian competition "Sports Solidarity" (for strengthening international sports relations) (approved by the Ministry of Sports of the Russian Federation on July 1, 2014);

Judicial practice under Article 1057 of the Civil Code of the Russian Federation:

• Decision of the Supreme Court: Ruling N 74-APG17-2, Judicial Collegium for Civil Cases, appeal

  At the same time, the Judicial Collegium considers the position of the court of first instance on the contradiction of the Regulations with Article 1057 to be erroneous. Civil Code Russian Federation and about the uncertainty of the contained legal regulation, entailing a breadth of discriminatory powers and indicating the presence of corruption factors in the regional regulatory legal act ...

• Decision of the Supreme Court: Determination N 74-G09-17, Judicial Collegium for Civil Cases, cassation

  At the same time, the mandatory condition of the competition is also the form and amount of the award to be paid to the winner. However, in violation of Part 4 of Art. 1057 of the Civil Code of the Russian Federation, the Regulations lack the criteria and procedure for evaluating the results of work or other achievements, the procedure for announcing the results of the competition, which are essential conditions ...

• Decision of the Supreme Court: Ruling N 305-ES17-3374, Judicial Collegium for Economic Disputes, cassation

  The courts, having examined the circumstances of the dispute and the evidence presented, came to the conclusion that the disputed collection by the defendant of proposals for the formation of a list of national projects was not a public competition in the sense of Article 1057 of the Civil Code of the Russian Federation a special public entity - the Ministry of Economic Development...

A public competition is a type of public promise of an award. A person who has publicly announced the payment of a monetary reward or the issuance of another award (about the payment of an award) for the best performance of work or the achievement of other results (the organizer), must pay (give out) a conditional award to the one who, in accordance with the terms of the competition, is recognized as its winner. A public competition must be aimed at achieving some socially useful goals.

Contest organizers can be any legal and (or) individuals, as well as state. bodies and bodies of local self-government. Circle of participants public competition is also not limited.

Types of public competition: open - when the proposal of the organizer of the competition to take part in it is addressed to everyone by an announcement in the press or other media; closed - when an offer to take part in the competition is sent to a certain circle of persons at the choice of the organizer of the competition.

The form announcement of a public competition can be any.

Conditions cat. must contain a competition announcement, divided into mandatory and optional.

Mandatory conditions include: information about the essence of the task (the subject of the competition); deadline for completing the task; the procedure for presenting works or other achievements; place of presentation of the work; criterion, procedure and deadline comparative assessment works; amount of remuneration (premiums); procedure and deadline for the announcement of the results of the competition.

Optional conditions are specified at the free discretion of the organizer of the competition, and their number and nature depend on the characteristics of the competition.

Change of conditions and cancellation of the public competition: the person who announced a public competition has the right to change its conditions or cancel the competition only during the first half of the period established for the submission of works; notification of changes in the conditions or cancellation of the competition must be made in the same way in which the competition was announced; the person who announced the competition must reimburse the costs incurred by any person who performed the work specified in the announcement before he became or should have become aware of the change in the conditions of the competition and its cancellation; the person who announced the competition shall be released from the obligation to reimburse expenses if he proves that the said work was performed not in connection with the competition, in particular before the announcement of the competition, or knowingly did not comply with the conditions of the competition.

The right to receive an award (award) arises from the participant of the competition only if his work is recognized as the best. If the results are achieved in the work performed jointly by two or more persons, the reward is distributed in accordance with the agreement reached between them. If such an agreement is not reached, the procedure for distributing the award is determined by the court.

Competitive works that have not been awarded an award, the organizer of the competition is obliged to return to the participants immediately after the announcement of the results. Failure to fulfill this obligation gives the contestants the right to demand the return of their works, and in case of their loss or damage - compensation for damages.

There are two parties involved in public competition obligations:

The person who organized the competition (announced the competition);

Persons participating in the competition, including those who won this competition (fulfilled the conditions presented).

Public competition with an obligation to pay an award

Article 1057 of the Civil Code of the Russian Federation establishes that a person who has publicly announced the payment of a monetary reward or the issuance of another award (the payment of an award) for the best performance of work or the achievement of other results (public competition) must pay (give out) a conditional award to someone who, in accordance with conditions of the competition is recognized as its winner.

A public competition must be aimed at achieving some socially useful goals.

A public competition may be open or closed.

A public competition is open when the proposal of the organizer of the competition to take part in it is addressed to everyone by an announcement in the press or other media. At the same time, an open tender may be conditioned by the preliminary qualification of its participants, when the organizer of the tender conducts a preliminary selection of persons who wish to take part in it.

A public competition is closed when an offer to take part in the competition is sent to a certain circle of persons at the choice of the organizer of the competition.

The announcement of a public competition must contain conditions that provide for the essence of the task, the criteria and procedure for evaluating the results of work or other achievements, the place, term and procedure for their presentation, the amount and form of the award, as well as the procedure and terms for announcing the results of the competition.

Public competition with the obligation to conclude a contract

Paragraph 5 of Article 1057 of the Civil Code of the Russian Federation establishes that the rules of Articles 447449 of the Civil Code of the Russian Federation on the conclusion of a contract at an auction and on the organization and procedure for conducting an auction are applied to a public tender containing an obligation to conclude an agreement with the winner of the tender.

Article 447 of the Civil Code of the Russian Federation provides that an agreement may be concluded by holding an auction, in which case the agreement is concluded with the person who won the auction.

An owner of a thing or a holder of a property right or a specialized organization acting on the basis of an agreement with the owner of a thing or the holder of a property right may act as an organizer of the auction.

Bidding may be held in the form of an auction or competition, in which more than one participant must participate.

The winner of the auction is the person who offered the highest price.

The person who, according to the conclusion of the tender commission appointed in advance by the organizer of the auction, offered the best conditions, is recognized as the winner of the tender.

Auctions and competitions can be open and closed.

Any person can participate in an open auction and open tender.

Only persons specially invited for this purpose participate in the closed auction and closed competition.

The notice of the auction must be made by the organizer at least 30 days before the auction and must contain information about the time, place and form of the auction, its subject and procedure, including registration of participation in the auction, determination of the person who won the auction, as well as information about the starting price. If the subject of the auction is only the right to conclude a contract, the notice of the upcoming auction must indicate the period provided for this.

Bidders make a deposit in the amount, terms and procedure specified in the notice of the auction. If the auction does not take place, the deposit is refundable. The deposit is also returned to persons who participated in the auction, but did not win it. When concluding an agreement with the person who won the auction, the amount of the deposit made by him is counted towards the fulfillment of obligations under the concluded agreement.

The person who won the auction and the organizer of the auction sign on the day of the auction or competition the protocol on the results of the auction, which has the force of the contract. The person who won the auction, if he evades signing the protocol, loses the deposit he made.

The organizer of the auction, who evaded signing the protocol, is obliged to return the deposit in a double amount, as well as to compensate the person who won the auction for the losses caused by participation in the auction, to the extent exceeding the amount of the deposit. If the subject of the auction was only the right to conclude an agreement, such an agreement must be signed by the parties no later than 20 days or another period specified in the notice after the completion of the auction and the execution of the protocol.

Reward

The decision on the payment of the award must be made and communicated to the participants of the public competition in the manner and within the time limits established in the announcement of the competition.

If the results indicated in the announcement are achieved in the work performed jointly by two or more persons, the reward is distributed in accordance with the agreement reached between them. If such an agreement is not reached, the procedure for distributing the award is determined by the court.

Reimbursement of expenses of participants of the competition

In the event of a change in the conditions of the competition or its cancellation, the person who announced the competition must reimburse the costs incurred by any person who performed the work specified in the announcement before he became or should have become aware of the change in the conditions of the competition and its cancellation.

However, the person who announced the competition is released from the obligation to reimburse expenses if he proves that the specified work was performed not in connection with the competition, in particular before the announcement of the competition, or knowingly did not meet the conditions of the competition.

Accounting

Accounting with the person who organized the competition

Accounting depends on the goals pursued by the organizer of the competition when it was announced:

If the purpose of the competition was to choose the best architectural project for the construction of a building or structure, the costs incurred are subject to reflection in the debit of account 08 “Capital investments”; at the same time, in cases where these costs are not provided for in the summary estimates of the cost of construction, they are subsequently not included in the initial cost of completed construction of fixed assets, but are charged to the developer's own funds: Dt 88 "Retained earnings (uncovered loss)" Kt 08 "Capital investments";

If the purpose of the competition was to select the best version of a manuscript or other work of literature, art, science for subsequent commercial publication or distribution in another paid way, then the costs incurred are to be reflected in the debit of account 08 "Capital investments" with subsequent inclusion in the inventory value of an intangible asset (rights to use relevant works of literature, art, science) with the obligatory execution of the relevant copyright or license agreement: Dt 04 "Intangible assets" Kt 08 "Capital investments".

However, if the corresponding agreement has not been concluded and the right to commercial use of the work has not been transferred to the organizer of the competition, there is no need to talk about the acquisition of an intangible asset, so the only way out is to attribute all costs incurred to own sources: Dt 88 "Retained earnings (uncovered loss)" Kt 08 "Capital investments";

If the purpose of the competition was to identify (or achieve) any results that are not related to production activities of the person who announced the tender, the costs incurred are subject to reflection in the debit of account 88 “Retained earnings (uncovered loss)”.

Based on the above accounting entries, the transfer sums of money awards and reimbursement of expenses to the winners (participants) of the competition are reflected as follows:

calculation of the amount to be paid (depending on the purpose and results of the competition):

Dt 08 "Capital investments" (88 "Retained earnings (uncovered loss)" Kt 76 "Settlements with various debtors and creditors";

transfer of the amount of the award (cash payment from the cash desk):

Dt 76 “Settlements with various debtors and creditors” - Kt 51 “Settlement account” (50 “Cashier”). When making payments to individuals, it should be borne in mind that subparagraph “h” of paragraph 1 of Article 3 of the Law “On Income Tax” provides for a tax benefit for the full exemption from taxation of the value of “prizes in cash and in kind received at competitions and competitions during year, not exceeding the amount of twelve times the amount of the monthly wage established by law. Upon payment of an award in an amount exceeding fixed size, income tax is withheld from the excess amount at the established rate scale. For example, Letter No. 040406 from the Ministry of Finance of Russia explains that “if the winners of International competitions receive prizes in cash and in kind, then the value of these prizes in excess of twelve times the minimum monthly wage established by law shall be included in taxable income.”

With regard to the calculation of mandatory insurance contributions to the Pension Fund of the Russian Federation, it should be noted the same points that we stopped at when considering the obligations that arose when the public promise of the reward.

On the one hand, paragraph 14.9 of the resolution of the Board of the PFR No. 22 clarifies that the mandatory insurance premiums in the FIU should also be charged on the cost of "awards awarded in cash or in kind for prizes in competitions, reviews, competitions (sports, professional, artistic, in-plant, republican) and other similar events" in cases where such payments are accrued to the employee from the funds of the employer. A similar explanation is contained in paragraph 10 of the Resolution of the Board of the PFR No. 73.

On the other hand, paragraph 21 of the "List of payments for which insurance premiums are not charged in Pension Fund of the Russian Federation” established that mandatory insurance contributions to the Pension Fund of the Russian Federation are not charged on “remuneration paid to citizens under civil law contracts, excluding remuneration paid under contracts the subject of which is the performance of work or the provision of services, and also excluding remuneration under copyright agreements” . At the same time, in the letter of the PFR Board No. EB09 11/2147IN, it is explained that insurance premiums to the PFR should be accrued on remuneration paid to individuals under contracts the subject of which is the performance of work or the provision of services; at the same time, “contracts ... of a public competition cannot belong to this category.” A similar explanation is contained in the letter of the PFR Board No. EB1628/8929.

So if the reward is paid to an individual without proper documentation of the transaction, inspectors from the PFR will inevitably raise the issue of calculating insurance premiums to the PFR for these payments and subject the organization to an appropriate fine.

However, even the proper written execution of a transaction for the payment of an award based on the results of a public competition does not guarantee against conflict with inspectors from the FIU. Therefore, when paying an award, it is necessary to draw up all documents in writing in strict accordance with the norms of civil law.

Accounting for contestants

In a competition with an obligation to pay an award

If the costs did not lead to victory in the tender, then all costs incurred are subject to reflection in the debit of account 88 "Retained earnings (uncovered loss)" as an unproductive distraction own funds.

If all expenses incurred by the tender participant are reimbursed by the organizer of the tender, in accordance with the established procedure, they must form the proceeds of the tender participant:

Accounting for all costs incurred Dt 20 "Main production" Kt 10 "Materials" (70 "Settlements with personnel for wages", 69 "Settlements for social insurance and security", 60 "Settlements with suppliers and contractors", etc.) ;

Calculation of the amount of reimbursement of costs to be received under the contract Dt 62 “Settlements with buyers and customers” - Kt 46 “Sale of products (works, services)”;

Allocation of VAT as part of revenue Dt 46 “Sales of products (works, services)” Kt 68 “Settlements with the budget” / sub-account “VAT settlements”;

Accrual of tax on road users - Dt 26 "General expenses" Kt 67 "Calculations on extra-budgetary payments";

Write-off of all expenses of the tender participant Dt 46 "Sale of products (works, services)" Kt 20 "Main production" (26 "General expenses", etc.); definition financial result(profit) Dt 46 "Sales of products (works, services)" Kt 80 "Profits and losses";

Dt 80 “Profits and losses” Kt 68 “Settlements with the budget” charging tax on the maintenance of the housing stock and social and cultural facilities;

Debt repayment by the organizer of the tender Dt 51 “Settlement account” - Kt 62 “Settlements with buyers and customers”.

In a tender with an obligation to conclude a contract

If the costs did not lead to the conclusion of the relevant agreement, all costs are subject to reflection in the debit of account 88 "Retained earnings (uncovered loss)" as an unproductive diversion of own funds.

If, however, as a result of the competition, a result is achieved - an appropriate agreement is concluded - then the amounts transferred to the organizer of the competition should be counted towards the deposit under this agreement.

At the same time, such expenses of the tender participant as payments “for the right to conclude” the relevant contracts, which were the subject of the tender (for example, real estate lease agreements), constitute a special category.

When analyzing such costs, the following should be noted. Firstly, letters of the Ministry of Finance of Russia No. 040311 and No. 040311, the right to conclude a lease agreement for a land plot is not subject to VAT. However, when realizing (reselling this right), VAT is applied to full price sales.

Secondly, the letter of the State Tax Inspectorate for the city of Moscow - No. 1113/9767 clarified that the "Regulations on the composition of costs" does not provide for the attribution to the cost of payment for the right to conclude land lease agreements. Therefore, "the transfer of funds to the settlement accounts of Moskomzem in the form of a fee for the right to conclude lease agreements is carried out at the expense of the profit remaining at the disposal of enterprises after taxes have been paid."

Thus, such payments “for the right to conclude an agreement”, which are subsequently not counted towards the deposit under the concluded agreement, are subject to accounting as follows: the actual transfer of payments - Dt 76 “Settlements with various debtors and creditors” Kt 51 “Settlement account »; attribution of expenses incurred at the expense of own funds - Dt 88 "Retained earnings (uncovered loss)" - Kt 76 "Settlements with various debtors and creditors".

The person who announced the tender sets the terms for holding this tender: the start date and the end date.

At the same time, Article 1058 of the Civil Code of the Russian Federation establishes that a person who has announced a public competition has the right to change its conditions or cancel the competition only during the first half of the period established for the submission of works. At the same time, notification of a change in the conditions or cancellation of the competition must be made in the same way as the competition was announced.

The person who announced a public competition must clearly define the place of the competition (or the place where the results of the competition are summed up). However, in the event of a reward being paid (both to an individual and to a foreign legal entity), the source of such income must make appropriate tax withholdings.

Use of the competition results

If the subject of a public competition is the creation of a work of science, literature or art, and the conditions of the competition do not provide otherwise, the person who announced the public competition acquires the pre-emptive right to conclude an agreement with the author of the work awarded with a conditional award on the use of the work with the payment of an appropriate remuneration to him.

Return of the submitted works to the participants of the competition

The person who announced a public competition is obliged to return to the participants of the competition works that were not awarded, unless otherwise provided by the announcement of the competition and does not follow from the nature of the work performed (which in principle cannot be returned to the participant, for example, when holding a competition for the best sand sculpture on seaside beach).

1. A person who has publicly announced the payment of a monetary reward or the issuance of another award (about the payment of an award) for the best performance of work or the achievement of other results (public competition) must pay (give out) a conditional award to the one who, in accordance with the conditions of the competition, is recognized as his winner.

2. A public competition must be aimed at achieving some socially useful goals.

3. A public competition may be open, when the offer of the organizer of the competition to take part in it is addressed to everyone by an announcement in the press or other mass media, or closed, when the offer to take part in the competition is sent to a certain circle of persons at the choice of the organizer of the competition.

An open competition may be conditioned by the preliminary qualification of its participants, when the organizer of the competition conducts a preliminary selection of persons who wish to take part in it.

4. The announcement of a public competition must contain at least conditions that provide for the essence of the task, the criteria and procedure for evaluating the results of work or other achievements, the place, term and procedure for their presentation, the amount and form of the award, as well as the procedure and terms for announcing the results of the competition.

5. To a public competition containing an obligation to conclude an agreement with the winner of the competition, the rules provided for by this chapter shall apply insofar as Articles 447-449 of this Code do not provide otherwise.

Commentary on Art. 1057 of the Civil Code of the Russian Federation

1. Today, such a legal action as the announcement of a public competition is becoming more widespread in civil circulation. According to S.A. Chernysheva, by its legal nature, the competition is a unilateral transaction, which is characterized by the expression of the will of one party. The announcement of a competition is a one-sided transaction, because for its occurrence it is enough to express the will of the organizer of the competition. The submission by a person of a work completed in accordance with the conditions of the competition is also a one-sided transaction, since the desire of the person to participate in the competition is expressed without prior agreement on issues related to the competition.

The Constitution of the Russian Federation (Article 43) introduces the concept of "on a competitive basis" in relation to obtaining higher education in state or municipal educational institutions. However practical use this concept is much broader. It is found in many laws passed for recent times, and affects various aspects of the life of the state and society. So, in pursuance of the Decree of the President of the Russian Federation of April 12, 1993 N 443 "On urgent measures state support undergraduate and graduate students educational institutions higher vocational education"and Regulations on scholarships of the President of the Russian Federation, approved by order of the President of the Russian Federation of September 6, 1993 N 613-rp (as amended by Decrees of the President of the Russian Federation of February 14, 2010 N 182, of June 22, 2010 N 773, of 8 March 2011 N 285), an open public competition was announced for obtaining scholarships from the President of the Russian Federation for studying abroad students and graduate students of Russian universities in the 2011/2012 academic year.

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Collection of acts of the President and the Government of the Russian Federation. 1993. N 16. Art. 1341.

Collection of acts of the President and the Government of the Russian Federation. 1993. N 37. Art. 3451.

Collection of legislation of the Russian Federation. 2010. N 8. Art. 837.

Collection of legislation of the Russian Federation. 2010. N 26. Art. 3331.

Collection of legislation of the Russian Federation. 2011. N 11. Art. 1514.

Typically, a public competition is announced by organizations interested in achieving the best result in a particular field of activity. However, as practice shows, the organizers and participants of a public competition do not always clearly imagine legal side relations that they enter into in connection with its announcement.

A public competition is, first of all, one of the most important institutions of civil law, by virtue of which a person who has publicly announced the issuance of an award for the best performance of work or the achievement of other results undertakes to fixed time competition and give a conditional award to the one who, in accordance with the conditions of the competition, is recognized as its winner.

A public competition and a public announcement of an award combine the public promise of a reward for doing a lawful act.

The public nature is manifested in the fact that the announcement is addressed to an indefinite circle of persons in a public place. This may be an appeal made on the Internet or at a press conference during the international exhibition, in print and electronic means mass media.

The announcement of a public tender is understood as a notice made available to an indefinite circle of persons by the organizer of the tender about his acceptance of the obligation to pay property remuneration to the winner of the tender, i.e. to those who, in accordance with the terms of the competition, will be recognized the best way performing a certain job or achieving other best results.

2. A necessary sign of the results of the actions of the participants in the competition should be their contribution to the achievement of any socially useful goals. As for the public promise of an award, the message about this, as in the case of a public competition, should be available to the information of an indefinite circle of persons. At the same time, in contrast to a competition, with a public promise, a reward can be promised for performing not only socially useful, but also any other lawful action, usually aimed at satisfying the interests of a private person (for example, finding a lost thing, obtaining the necessary information). In addition, the reward must be paid to anyone who performs the action specified in the announcement. If the required action is performed by several persons, then the right to the award is acquired by the one who performed this action first, and not the one who achieved the results and was recognized as the winner of the competition.

Both the public promise of a reward and the public competition as a variation of the public promise of a reward, as noted above, are traditionally considered one-way transactions. Meanwhile, in relation to them in this aspect, one can discern some difference.

According to Professor A.M. Erdelevsky, the qualification of a public promise of an award as a unilateral deal is beyond doubt. For an obligation to pay an award to arise, there must be two legal facts: 1) public announcement of the promising person about the payment of the reward; 2) the commission by another person of the action that caused the payment of the reward. Of these actions, only the first should be directed to the offensive. legal consequences inherent in the promise of a reward, namely, the obligation to pay the reward. The actual orientation of the will of the person who committed the relevant action is legally indifferent for the emergence of this obligation, since, according to paragraph 4 of Art. 1055 of the Civil Code of the Russian Federation, the obligation to pay a reward arises regardless of whether the corresponding action was taken in connection with the announcement made or independently of it.

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Erdelevsky A.M. Public promise of a reward // Legitimacy. 2000. N 8. S. 11.

The direction of the will of the person performing the required action to receive an award has legal significance only as the basis for the emergence of his right to reimbursement of expenses incurred in connection with the commission of this action, in the event of the lawful cancellation of the public promise of the award, since such a right may arise for a person who “responded” to announcement (clause 2 of article 1056 of the Civil Code).

The unilateral nature of such a transaction as a public competition is not so obvious. In order for the organizer of a public competition to pay an award, there must be four legal facts: 1) the organizer's announcement of a public competition; 2) performance by the participants of the competition certain work or achieving other results; 3) presentation of the results of the competition task for participation in the competition; 4) recognition of the participant of the competition as the winner.

It is easy to see that the performance of the competition task and the submission of results for participation in the competition together form the action, the fulfillment of which determines the promise of an award in a public competition. The performance of the first part of this action - the performance of the competition task - may well not be associated with the announcement of the competition and may not be aimed at taking part in it. However, the second part of the action of the participant of the competition - the submission of the results of the work performed to the competition - is always aimed at entering into legal obligations with the organizer of the public competition and at achieving the legal consequences inherent in such a competition.

The foregoing gives grounds to some Russian civil scientists (including V.P. Mozolin, S.A. Chernysheva, A.M. Erdelevsky and some others) to consider a public competition not as a unilateral deal, but as a kind of contract, where the announcement of the competition turns out to be a kind of public offer, which becomes irrevocable after the first half of the period established for the submission of works, and the submission of the results of the work to the competition becomes an acceptance of the offer in accordance with paragraph 3 of Art. 438 of the Civil Code of the Russian Federation, which states that the performance by the person who received the offer, within the period established for its acceptance, of actions to fulfill the conditions of the contract specified in it (shipment of goods, provision of services, performance of work, payment of the corresponding amount, etc.) is considered by acceptance, unless otherwise provided by law, other legal acts or specified in the offer.

3. The organizers of a public competition can be both legal entities and citizens, and the public competition itself can be open and closed. The legal capacity of citizens participating in the competition is determined by the general norms of civil law. There are no age restrictions set. This means that not only adult citizens can participate in the competition, but also minors aged 14 to 18, because they have the right to exercise the rights of the author of a work of science, literature or art, invention or other protected the law of the result of their intellectual activity (). For minors under 14 years of age in accordance with Art. 28 of the Civil Code of the Russian Federation, transactions can be made on their behalf by legal representatives (parents, adoptive parents, guardians).

The circle of participants in the competition depends on the type of competition. If the public competition is open, then the organizer's offer to take part in it is addressed to everyone by means of an announcement in the media.

An open competition may also be conditioned by the preliminary qualification of its participants, when the organizer of the competition conducts a preliminary selection of persons wishing to take part in it.

Thus, before the XIV International Competition named after P.I. Tchaikovsky, which took place from June 14 to July 2, 2011 in Moscow, all those who applied for participation in this competition were invited to go through a preliminary selection, which formed the final composition of the contestants in four categories (piano, violin, cello, solo singing) . It should be noted that a certain age limit was also established at this competition: instrumentalists - 16 - 30 years old, singers and singers - 19 - 32 years old.

In a closed competition, participants make up a certain circle of persons at the choice of the organizer of the competition.

The possibility of holding a closed tender in relation to, for example, placing orders for the supply of goods, performance of work, provision of services for state and municipal needs is regulated by a special federal law dated July 21, 2005 N 94-FZ “On placing orders for the supply of goods, performance of work, provision of services for state and municipal needs” (as amended and supplemented, effective from January 1, 2011).

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Collection of legislation of the Russian Federation. 2005. N 30 (part 1). Art. 3105.

Ministry economic development and Trade of the Russian Federation, by its Order of May 3, 2006 N 124, approved the Procedure, which regulates the issues of holding a closed tender, a closed auction, the possibility of concluding a state or municipal contract with a single supplier (performer, contractor).

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Bulletin of normative acts. 2006. N 30.

Nevertheless, the announcement of a closed competition itself must be made public, although in this case not necessarily through the media, but in any way, for example, through a wall newspaper, posting announcements, distributing information leaflets. This conclusion follows from paragraph 1 of the commented article, where the publicity of the announcement of the payment of the award is indicated as a mandatory feature of any public competition, both open and closed.

4. The content of a unilateral transaction (public announcement by the organizer of the competition) or agreement on a public competition constitute essential and other conditions. Clause 4 of the commented article establishes fairly strict requirements for the content of the announcement of a public competition. It should include the conditions that determine the essence of the task (i.e. what kind of work should be done or what results should be achieved), the criteria and procedure for evaluating the results of work or other achievements (by the organizer of the competition, a specially formed jury, etc. .), place, timing and procedure for presenting the results to the competition, the amount and form of the award, as well as the procedure and timing for announcing the results of the competition. Establishing criteria for evaluating the results is necessary, in particular, in order to exclude the possibility of arbitrary determination of the winner of the competition. The absence in the announcement of the competition of any of necessary conditions entails its invalidity.

Thus, the essential conditions of a public tender include the following: the subject of the transaction; place, term and procedure for providing work or other achievements; criterion and procedure for evaluating the results of work; the size and shape of the award; the procedure and terms for announcing the results of the competition.

As other conditions, the procedure and terms for paying remuneration, as well as the fate of works submitted to the competition that were not awarded an award, may be indicated.

The subject of the transaction is the implementation of lawful actions aimed at achieving a socially useful goal and constituting the essence of the task.

The presence of a socially useful goal means that the competition itself and its results serve the society as a whole, since it is interested in identifying and supporting talented performers, developing projects for the protection of monuments, protecting environment etc.

The essence of the task is described as the requirements for the work and its result. The specification of the requirements for the result of the work is also practiced. Thus, the program of the XIII International Competition named after P.I. Tchaikovsky regulated in detail the content of each round, as well as the mandatory requirements for the performance by the contestants in each round of a certain kind of musical work.

The place of presentation of the work is usually the address of the organizer or his authorized representative. The conditions of the competition may stipulate that the presentation of the work takes place in a public place, i.e. along with the jury, access to spectators and listeners is also provided.

Establishing a deadline for the submission of work is necessary so that all participants are in the same time conditions for the successful completion of the task specified in the announcement. The deadline must be real. Final and intermediate deadlines may be set for the submission of work. For a performing competition, the organizer usually approves calendar plan competition indicating the dates of registration, draw, each round (listening, viewing), awards ceremony and closing.

The terms of the competition may provide for the provision of work under the motto in order to keep the secret of the name of the participant for an objective determination of the winner.

The essential condition is the criteria and procedure for evaluating the results of the work. The organizer has the right to independently evaluate the achievements submitted for the competition, or to involve third parties. Sometimes, as noted above, a competition commission or committee is created specifically for these purposes. Evaluation of the results of work can be carried out by any permanent body of the organizer of the competition.

For each competition, taking into account its specifics, criteria for evaluating the results of work are established. The score can be displayed by the sum of the points scored for each criterion.

A prerequisite is the determination of the procedure and deadline for the announcement of the results of the competition. The exact date of the announcement of the results of the competition or the period during which the result is announced after the decision on the selection of the winner is established.

The result is communicated either orally to all participants, or through the media simultaneously with the notification of each winner, or in writing. Sometimes the announcement of the result in a solemn atmosphere is specially stipulated.

5. A separate group is the norms governing the conclusion of contracts at auction, one of the forms of which are competitions (Article 447 of the Civil Code). The purpose of these competitions is the alienation of certain property to the one who offered for it best conditions. As a result of such competitions, the organizers are obliged to conclude an agreement with the winner, which defines their obligations. The object of the same competition in the sense of Ch. 57 of the Civil Code of the Russian Federation are pre-announced obligations of the organizer. Therefore, the norms of the commented chapter can be applied to relations arising during the conduct of auctions only in cases where these relations are not regulated by the indicated norms and do not contradict them.