Today, the power to act or represent another person in a legal relationship is a separate topic for discussion. What is power of attorney? Its content, form, validity will be considered in the materials of this article. In addition, the reader has the opportunity to get acquainted with some practical points of the issue.
The concept of power of attorney
In accordance with paragraph one of Article nine of the Civil Code of the Russian Federation, legal entities and individuals, at their sole discretion, exercise civil rights that somehow belong to them. So, civil rights are subject to exercise by subjects of civil legal relations in person or through representatives. The concept of representation is determined by the first paragraph of Article 182 of Russian civil law. This term should be considered the transaction of a transaction by one representative (person) on behalf of another representative (person) by virtue of a certain authority.
Powers of Justification
As a rule, authority is based on the following factors:
- Indication of legislation.
- Indication of an act of a public authority or local self-government, mandatory for that.
- Power of attorney (form, content, types are considered in this article).
To date, in notarial practice, a proxy representation has become widespread. It is important to note that the power of attorney is nothing more than a written authorization issued by one representative (person) to another representative (person). Content of power of attorney in civil law suggests that extradition can occur in relation to a certain number of persons. Its key objective is to represent directly before third parties. Thus, a written authorization regarding the transaction by a representative may be granted only to a third party appropriate to the situation. This provision defining content of the power of attorney of the representative, prescribed in paragraph three of Article 185 of the Russian Civil Code. It is interesting to add that the power of attorney can be issued both for the implementation of transactions and for the commission of other actions that are endowed with legal significance.
Power of Attorney Requirements
As it turned out, a power of attorney is a deal. Like any transaction, it involves certain power of attorney requirementsthat are presented by current legislation. Thus, the power of attorney can be issued solely in accordance with the commission of legal actions of a lawful nature. In addition, the will of the presented (principal) one way or another must be in accordance with his will. Form and content of the power of attorney They say that it can be recognized as invalid only according to general requirements regarding the invalidity of transactions. So, the following are invalid:
- Powers of attorney that violate the requirements of a law or other legal act.
- Powers of attorney issued in accordance with the commission of powers that obviously contradict the foundations of morality or the rule of law.
- Power of Attorney involves imaginary and pretense.
- Power of attorney, which are committed under the influence of significant error.
- Power of attorney, the design of which took place under the influence of deception, threat, violence or adverse circumstances.
- Power of Attorney involves committing it by an incompetent or juvenile individual. It is important to note that under certain circumstances, judicial authorities may recognize legal force. As a rule, this occurs as a result of a power of attorney for the benefit of a minor or legally incompetent citizen.
Additional Rules
It is important to note that in addition to the above requirements power of attorney suggests rules of special disposition. By the way, their non-compliance, as a rule, entails the recognition of the invalidity of powers of attorney issued in the established manner. For example, in accordance with the second model of the first paragraph of Article 186 of the Civil Code of the Russian Federation, a power of attorney, where the date of its commission is not indicated, is somehow recognized as null and void.
As it turned out, content of power of attorney in civil law implies a one-way deal. For its implementation, as well as for providing the power of attorney with legal force, there is no need for the consent of the representative. Nevertheless, the exercise of powers that are based on the issued power of attorney, one way or another, depends on the representative. Everything types of power of attorney in content suggest that the representative is endowed with the absolute right at any time to refuse to implement the functions assigned to him. In addition, this refusal does not entail any consequences, which in no case depends on specific reasons.
Since the power of attorney is nothing but a kind of representation, when it is completed, it is necessary to take into account the rule that is contained in the third paragraph of Article 182 of the Civil Code. In accordance with it, a representative is not entitled to make transactions in respect of himself on behalf of the represented person, as well as in respect of another person when he is a temporary representative of the latter. It is important to note that in this case the exception is situations stipulated by applicable law.
Power of attorney: form, content
To begin with, it should be noted that the form of the power of attorney should be understood as one of the fundamental requirements that apply to it. So, the power of attorney is not able to exist without registration in writing. Form and content of the power of attorney they require notarization when it is issued in accordance with transactions that in one way or another require a notarial form. This power of attorney concerns the submission of applications regarding the state registration of transactions or rights, as well as the disposal of rights that have passed the registration procedure in the state register. This provision is spelled out in the first paragraph of Article 185.1 of the Civil Code. By the way power of attorney in any case, it involves notarization of an irrevocable power of attorney.
It should be noted that in the practice of using article 185.1 of the Civil Code, up to now, there has not been a unanimous opinion on whether information on transactions that are notarized must be certified by a notary. It is interesting that different authors advocate completely opposite opinions on this matter. The point of view regarding the possibility of issuing powers of attorney of all varieties on behalf of YL in a simple written form is also expressed by the well-known Russian civilists today.
Nevertheless, the legal construction of article 185.1 of civil law is such that it is completely impossible to formulate such a conclusion on the basis of it, because in accordance with paragraph four of the article, a power of attorney is issued on behalf of the legal entity exclusively signed by its management or another person authorized to perform this operation through its constituent documentation.It is important to keep in mind that this norm is not endowed with the nature of an exception to the general rule, which is provided for in paragraph one of the article under consideration.
Notarized power of attorney
In addition to those presented above, powers of attorney, which are issued in accordance with the transfer of authority, must be certified in a notarized manner. The exception here is the cases provided for in paragraph three of Article 185.1 of the Civil Code. This includes a power of attorney to receive salaries and other payments that are related to labor relations, to receive monetary remuneration for inventors and authors, benefits, pensions and scholarships, as well as to receive correspondence (the exception here is valuable correspondence).
In addition to this, notarized certificates are subject to certain powers of attorney related to the performance of certain actions determined by legal significance. Thus, in accordance with paragraph six of paragraph two of Article 9 of the Federal Legislative Act “With respect to acts of civil status”, notarization shall be subject to power of attorney related to obtaining a second certificate regarding state registration of certain acts of civil status.
On the basis of the power of attorney in relation to the conclusion of any transactions stipulated by the current legislation and the performance of any actions that are not contrary to the law, they can be certified through notaries working in notary offices of the state level (Article thirty-six) engaged in private practice (Article thirty-fifth), and also officials of consular posts (Article thirty-eighth).
Power of attorney: concept, content, types
As noted above, the content of the power of attorney should be understood as the scope of authority provided for by the power of attorney, which is vested in the representative. It is important to add that these powers should not go beyond the current legislation, as well as contradict it. Power of attorney, content, types its classification is as follows:
- General (general) powers of attorney, which are issued for the implementation during the specific time period of various transactions and other actions significant in the legal plan. The general powers of attorney include powers of attorney for the disposal and management of property complexes, the implementation of the functions of a representative office in various instances, execution of all kinds of transactions permitted by current legislation and so on. It must be remembered that even in accordance with general (general) powers of attorney, usually containing a very wide range of powers, which are conferred to the attorney, and the ability to carry out almost all operations on behalf of the represented person, some transactions cannot be executed.
- Special powers of attorney are associated with the implementation of actions of a uniform nature during a specific time period. The power of attorney of this type must include the power of attorney for judicial representation, to dispose of the deposit, and so on.
One-time powers of attorney
A power of attorney, which is issued for the implementation of a strictly defined, specific transaction or the commission of another predetermined action of a legal nature, is called a one-time. It is important to note that today the majority of powers of attorney, which are certified and used in notarial practice, are one-time.
It should be borne in mind that a power of attorney of the type in question may contain a certain number of powers (for example, obtain a certificate of state registration of law, draw up a contract for the sale of real estate, and so on).The given powers are somehow connected with a single object, therefore, despite this multiplicity presented, as well as the need to provide a power of attorney to different authorities, the variety of power of attorney is one-time.
Irrevocable power of attorney
Relatively recently, a kind of power of attorney appeared as irrevocable. In order to ensure fulfillment or direct fulfillment of an obligation on the part of the representative to the representative or those persons in whose interests or on behalf of which the representative performs operations, when such an obligation is related to the implementation of entrepreneurial activity, the representative has the right to indicate in the documentation issued to the representative about the exception of the cancellation of the power of attorney before the end of its validity period or the cancellation only in cases provided for by applicable Russian law as specified in the document itself. It is important to note that an irrevocable power of attorney can be certified by a notary, and also include a direct indication of the formation of certain limits in terms of the possibility of its cancellation under the first paragraph of Article 188 of the Civil Code.
Termination of Power of Attorney
In accordance with article 188 of the Civil Code, the following clauses are included in the grounds for the termination of a power of attorney:
- The expiration of the period of validity of the power of attorney.
- Cancellation of a power of attorney by the person who issued it.
- Refusal of the person to whom the power of attorney was issued from his own authority.
- Termination of the legal entity to which or on behalf of which it was issued.
- Death of the person who issued the power of attorney, or of the person to whom it was issued.
- Introduction to the relations of the representative and the bankruptcy procedure submitted, in accordance with which the person loses the right to independently issue powers of attorney.
It is important to note that the list of reasons for terminating the power of attorney is not exhaustive, although it is formed in this way.