Article 855 of the civil code. The priority of debiting funds from the account

Established in article 855 of the civil code the priority of payments is the sequence of the withdrawal of Finance according to several documents, the maturity date of which has come. In normal there are two rules of denition. Consider the next article 855 of the civil code as amended.

General rules

In the presence of the amount sufficient to pay all claims, the withdrawal is made in order of receipt of regulatory and other documents. This sequence of writing off cash from the account called calendar. This rule applies, unless otherwise provided by law. In case of insufficiency of the amount set the other term of the obligations.

Non-calendar sequence

In case of insufficiency of the amount of the debt is primarily on Executive documents, providing for the transfer/issuance for satisfaction of requirements about compensation of harm, caused to health/life, as well as alimony. After that, the deduction of severance benefits and salaries of persons working or working under contract, remuneration to authors of products of intellectual labor. In the third turn write-off is carried out according to settlement documents, providing for the issuance/transfer of remuneration to persons involved in the company in accordance with the contract and instructions of the control bodies for the repayment of debts to the budget. The latter, in particular, include overdue taxes and fees, and insurance premiums. In fourth place is the writing off of amounts for the satisfaction of other requirements. After that, the repayment of debt upon receipt of the documents.

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Explanations

The Rules stated in the rule apply to the account for LLC (credit organization) and its customers. The first applies in cases when the amount in the p/s is enough to meet all the claims. In this situation the repayment is done in order of receipt of documents, if the commitment period has passed (if the acceptance form or when specified on the date in the paper). Exceptions to this rule may be provided for in the legislation.

Second rule

It applies to cases when the sum to pay all claims is not enough. For the correct application of the sequence defined in article 855 of the civil code, it is necessary to take into account the judicial practice and other rules. The first and second group of requirements are defined by the paragraphs 2 and 3 of the second paragraph. Par. 4 Decision of the constitutional court recognized as non-conforming to the Constitution. According to part 3, article 79 of the Federal constitutional law No. 1, rules contrary to the Basic Law, and void. It must be remembered that the constitutional court if the decision was motivated by the need to repay wage arrears before the budget and at the same time. Since the corresponding changes are not made, the absence of a third group of contributions each year is compensated by the Federal law on the state budget.

The nuances of the rules

Bank account for LLC acts as the Fund, which concentrates capital intended for expenditure on various needs. These include wages, obligatory payments to the budget, insurance contributions. In accordance with article 855 of the civil code, the withdrawal of these amounts is made after the repayment of debts referred to in art. 1 and 2. From this rule it follows that non-tax and tax payments and wages are made in order of receipt of the relevant documentation. Contributions to the pension Fund, FSS and FOMS are considered in the budget allocations, in accordance with articles 144 and 10 Bq.

Controversial issue

It concerns the availability of the fourth stage in St. 855. Lawyers often disagree about its existence. The lack of a unified position on this issue entails, in turn, the contradictions in determining the number of groups in sequence. In one case, 6 of them, in another – 5. The fourth group under rule 855 of the civil code, was retained in a truncated form. Reference should be made to article 5 of Federal law № 308. Under the rule, payments to the budget and extra-budgetary state Fund allocated to the third group. However, the provisions of par. 5 of item 2 of article 855 of the civil code allow us to conclude that as a result of "subtraction", the above remains a category that is not included in the structure of the sequence. Are contributions to extra-budgetary funds. They go into the 4th group. 5 and 6 the queue are defined in paragraph 2 without additions and adjustments.

Pay

It is included in the second group in the sequence established by article 855 of the civil code. In determining the semantic content of the concept of remuneration it is necessary to use different legal sources. To them, except, maybe, include NC as well as judgments. Meanwhile, in the above sources present different lists of payments. In addition, these documents tend to differ escortlady nature and are used in the resolution of specific issues (calculation of salaries, the unified social tax and so on). Also worth mentioning that these open sources contain lists of categories. Employers, in turn, may establish a payment system in their enterprisesin its sole discretion. With regard to the use of the term "remuneration" in paragraph 3 of item 2 of article 855 of the civil code, the legislator has envisaged the formation of a preferential group for the contributions provided by the employer to the employee for the latter in the framework of the contract (agreement). This Directive allows you to exclude other amounts, not related to labour relations.

Tax Deductions

They are not limited to non-tax and tax amounts, contributions to the pension Fund, FSS, FOMS. The specified payments include all payments sent to the budget bill. They are designated in the column "a/C payee" in document disposal. The composition of budget allocations can get, for example, the rent to be translated in the account opened in the register of the Treasury. In practice, however, some problems arise in determining the composition of budget allocations. In the first place, difficulties arise when establishing the sequence of write-off of tax by order of the bailiff. They are caused by the following circumstances. The law "On enforcement proceedings" does not contain regulated in detail the mechanism of foreclosure and the charges of collection. However, we know that he shall be transferred to the Federal budget. But first it must be credited to the Deposit account of the bailiff along with the other means of repaying the debt. The total amount is distributed according to the rules established by article 110 of the above Act. This fee is transferred to the Federal budget in the third place. This implies that in practice a likely scenario when the amount collected from the debtor, in fact, is directed on satisfaction of requirements of the creditor. This, in turn, suggests that the decision of the bailiff is, apparently, to require banking organizations to enumerate the collection, not in the budget, but at the expense of the Federal bailiff service, which is open in the normal financial structure. In line with this, it appears that this deduction refers to the fifth group in the sequence. The Bank shall not be paid in the documentation provided by the bailiff any corrections. In this case, it is sufficient to make a payment to the statutory priority.

Tax amount

In practice, there are differences in the sequencing of the lifting of the debt on claims on depending on the on the order of execution of the decision. In cases where it is implemented by the Bank instructions of the tax structure, the amounts from the payer's account is debited directly to the Russian budget. These operations belong to the third group in the sequence. If the decision is implemented with the involvement of the bailiff, the amount debited to the account of FBS, and then transferred to the budget. In this case there is a problem with the group definition in the sequence of withdrawal. In accordance with the informal approach, taking into account that the amount charged on account of the FSSP, in the end, shall be credited to the budget. From this we can conclude the following. Exacted payments appear as deductions in the budget, regardless of what their listing is in him, not directly. For correct application of norms it is necessary to use a formal sign – account is subject to charge. P/s FSSP is not included in the structure of funds, which takes into account the amount of the budget system. In this regard, the collection of fines and debts is in fifth place.

Practical application of the provisions of the

Discussed above, the formal approach allows to overcome certain difficulties. For example, the bailiff in the decision indicated not only arrears to the budget at the decision of the tax Inspectorate but penalties and a performance fee. In the document, thus, there are amounts relating to different groups in sequence. For example, a p/s of the debtor was used as the blocking operations. This event, in accordance with article 76, part 1, NK, does not create obstacles to the transfer of funds in the budget. In this regard, any order of the tax inspection by either the owner of R/s on the direction of the respective sums are performed without taking the specified action. These deductions levied by order of the bailiff, shall be credited first to the account of the FSSP. Accordingly, in this case they cannot be attributed to the group budget allocations. If you follow the formal principle, both payments belong to the fifth group.

From this it follows that the measure, involving the blocking of transactions, will freeze them. If the informal approach, the fines and the arrears are written off from the account, regardless of the limits. While performing collection will be delayed.