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Achieving goals is a necessary condition for public competition. Public competition: what is it and why are we talking about it

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 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.

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 higher education in state or municipal educational institutions. However, the practical application of this concept is much wider. It is found in many laws adopted recently, and affects various aspects of the life of the state and society. So, in pursuance of Decree of the President of the Russian Federation of April 12, 1993 N 443 "On urgent measures of state support for students and graduate students of educational institutions of higher professional education" and the 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 March 8, 2011 N 285), an open public competition was announced for obtaining scholarships of the President of the Russian Federation for education students and graduate students of Russian universities abroad 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 are far from always clearly aware of the legal side of the relations 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 hold a competition within the prescribed period and issue a conditional award to someone who, in accordance with the conditions competition was declared the 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 an international exhibition, in print and electronic 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 the one who, in accordance with the terms of the competition, will be recognized as the best performer of a certain work or 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 a reward to arise, two legal facts must exist: 1) a public announcement by the promising person of 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 aimed at bringing about the legal consequences inherent in the promise of a reward, namely, the obligation to pay the reward. The actual direction 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 is 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 participants of the competition of a certain work or achievement of 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 for 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 agreement, 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.

So, 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 line-up 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 - 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 of July 21, 2005 N 94-ФЗ “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.

The Ministry of Economic Development and Trade of the Russian Federation, by its Order of May 3, 2006 N 124, approved the Procedure that 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 itself, a specially formed jury, etc. .), place, timing and procedure for submitting 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 of any of the necessary conditions in the announcement of the competition 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 the 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 the calendar plan of the competition, indicating the dates of registration, draw, each round (audition, viewing), award 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 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 the best conditions for it. 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.

New edition Art. 1057 of the Civil Code of the Russian Federation

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

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

The announcement of a public competition is also a one-sided deal. The subjects of the arisen obligation are the debtor (the person who publicly announced the payment of the award based on the results of the competition) and creditors (the persons participating in the competition and the person who won the competition). In contrast to the public promise of an award, the legal relationship under consideration is characterized by the fact that the creditor is not any one who has responded, but the winner among those who have responded is the one who completed the task of the organizers better than others.

By its legal nature, the competition is a one-sided 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.

S.A. Chernysheva

Another commentary on Art. 1057 of the Civil Code of the Russian Federation

1. Public competition - a kind 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).

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, 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 size and form of the award, the procedure and deadlines for fulfilling the results of the competition .

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.

5. 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. As an award, commemorative signs are given - golden badges, sculptures (theatrical festivals "Golden Mask", "Nika"), etc.

nothing more than a one-sided legal deal. That is, for its implementation, the desire or expression of the will of one side is sufficient.

And what is interesting - and from the side of the person who performed a certain work and presented it as a result to the organizer or organizer of the event, this process will also be considered as a one-sided legal transaction. Since this person participates in the competition without prior agreement on the necessary issues related to this event.

It must be said that a public competition is a kind of such legal action as public announcement of the award. And both of these forms of civil law are united in fact for a certain lawful action.

The organizers of the public competition can be

individuals or various organizations. Often, those who announced such a competition, as well as those who participate in it, are not fully aware of the legal aspect of such an event. And this sometimes leads to the fact that, not knowing all the subtleties of the organization of this process and the subsequent responsibility for their public statements or proposals, the organizers, to put it mildly, take a very risky not quite clearly imagining the situation from a formal point of view.

After all, any event publicly announced by the competition is, first of all, a process related to the institution of civil law. From which it follows that the one who publicly promises the issuance of a certain reward in the form of a specific reward (monetary or material prize) as a result of a competition for a particular action, undertakes the obligation to hold a certain competitive event within a certain period of time with the subsequent issuance of a conditional reward to that of the participants who will be declared the winner of this event.

That is, in legal terminology, a person who publicly announces the payment of a monetary reward or the issuance of any other award for the best performance of work or the achievement of other results, being the organizer and initiator of the competition, must fulfill his publicly stated promise.

All these public announcements are usually made either at some events or in the mass media. information or on Internet sites. That is, the public nature of such an event is determined by the fact that its information is addressed to a wide and, in fact, indefinite circle of people located in any kind of public place.

But - let's talk about this in more detail. Often - and especially in recent times - there are many public competitions of various sizes. As a rule, they are announced and held when their organizers intend to encourage their audience to achieve some specific result in one or another type of activity. That is, one of their features is that such events should set themselves the task of achieving some socially useful goals.

In practice, again, such high moral motivations, which characterize a public competition as a public event, are not always found in this case. More often, such events are announced with a more prosaic purpose: to warm up, as they say, the audience; get people interested in this or that opportunity; thus gain their loyalty to a particular type of business proposal.

However, there is nothing wrong with that. The main thing is that all conditions are met and everyone, accordingly, would be satisfied.

A prerequisite for a public competition is

setting an exact date for the announcement of its result, or choosing a specific period of time during which, after the decision on the winner, these results will be announced.

Such an announcement occurs either verbally for personally invited participants, or using various kinds of media. Each winner of the competition is notified separately, often the organizers announce the winners and the results of the event in a specially organized solemn atmosphere.

Speaking about the award, it should be noted that it can be both a certain monetary reward and some other type of award or several awards given to winners. In this case, the number of announced prizes is taken into account.

Sometimes it happens that the work indicated in the conditions of the competition is made by a group of participants in the amount of two or more persons. Then the winnings or premium must be distributed in accordance with a separate agreement negotiated between the participants. If such an agreement cannot be reached amicably, as they say, a court decision comes into force, which puts all the dots over and in this kind of dispute (clause 2 of article 1059 of the Civil Code). The competition organizers, as a rule, do not interfere in this process.

It often happens that at competitions, those who become their winners are awarded various honorary titles, certificates, diplomas, honorary diplomas, solemn medals, cups, and so on.

At the same time, from a legal point of view, moral encouragement cannot be an award for participation or victory in a competition and becomes such only together with the issuance of a material award.

Despite this, this kind of reward as a moral encouragement for the winners is used by the organizers quite often.

As an example of one of these events, one can cite the once held open all-Russian competition for scholarships of the President of the Russian Federation.

In this case, the basis for participation in it, along with other conditions, was precisely the fact that applicants for participation in the competition already had the title of winners in various creative competitions and olympiads.

Well, returning to the topic of a public competition as such, one more side of it should be noted.

If, say, something went wrong with the organizers -

the person who announced the public competition, may change its terms. But this can only be done, practically, at the beginning, or rather, during the first half of the period that was set for the submission of competitive tasks.

In doing so, you need to remember that:

Information about the cancellation of the competition or about changing the conditions for its conduct must be received by its participants in the same way and in the manner that were used when the competition was announced;
If the person or organization that announced the competition decides to cancel it for some reason, - they must be ready to reimburse the expenses incurred by any participant who completed the tasks stipulated by the conditions, until the moment when the participant of the competition was informed either about the change in conditions or about the cancellation of the competitive event;
At the same time, the advertisers of the competition may be exempted from the need to reimburse their expenses only if they can prove that the tasks or certain work in this regard was performed by the participants regardless of the announced event or did not meet its conditions.
By the way, one should keep in mind that a publicly announced competition is usually recognized as failed and insolvent if only one person takes or intends to take part in it.

Considering specific situations- we can give an example of such an event, announced in 2003 by Bee Line GSM. So, she announced a public all-Russian competition for the best history of dating using a mobile phone, and this story was to be presented to the founders as an article on a designated topic.

In this particular example, it is obvious that in this case, they agreed, as they say, as a private interest of a business organization (advertising, increasing the number of customers), and the goal, as they say, of a socially useful nature: strengthening mutual communication between people, plus creating, to moreover, a certain product of a creative character: a literary or journalistic article.

That is why, in this case, the relationship between the organizers and participants of the competition should be regulated by the legal norms given in Chapter 57 of the Civil Code "Public Competition". This chapter of the Civil Code, divided into articles 1057 -1061, regulates such events.

Article 1057. Organization of a public competition

1. Contests are becoming more and more popular in Russia. They pursue the goal of the best solution of certain problems in the spheres of spiritual life and material production. Competition in a particular area of human activity involves an appeal to an indefinite number of people, its openness. That's why it's called "public". Competition means competition, rivalry, competition. As a result of the competition, the championship is given to the best. Depending on the nature of the competition, it may be about identifying the best participant or work.

The Constitution (Article 43) introduces the concept of "on a competitive basis" in relation to higher education in state or municipal educational institutions. The application of this concept is much broader. It is found in many laws adopted recently, and affects various aspects of the life of the state and society.

Unilateral transactions made by the parties to the tender (announcing the tender and its participant) in some cases develop into a competitive legal relationship. In its development, it goes through several stages, such as: a) announcement of the competition, b) presentation of the work performed in accordance with the conditions of the competition, c) comparative evaluation of the works, d) making an evaluation decision, e) payment of an award. Each stage of the competition generates corresponding rights and obligations for its participants.

The subjects of the competitive legal relationship are the persons who have publicly announced the payment of a monetary reward or the issuance of another award, as well as the participants in the competition, i.e. persons who have completed and submitted a certain work for review.

The previous civil legislation (Article 439 of the Civil Code of the RSFSR) recognized that a public promise of remuneration (bonuses) could come from a state, cooperative or public organization, i.e. from a legal entity. But not every legal entity could announce a competition, but only one for which holding a competition was an element of its special legal capacity. A citizen or organization that was not a legal entity was not granted the right to conduct a competition.

Now, the organizer of the competition is the person who has publicly announced the payment of a monetary reward or the issuance of another award. The concept of "person" gives grounds to speak of the organizer of the competition in a broad sense. It includes both individuals and legal entities. From Art. 18 of the Civil Code, which reveals the content of the legal capacity of citizens, it follows that citizens can make any transactions that do not contradict the law and participate in obligations. This right can be attributed to the competition.

The legal capacity of a legal entity means that it can have civil rights corresponding to the objectives of the activity provided for in its constituent documents, and bear the obligations associated with this activity (Article 49 of the Civil Code). The right to hold a competition may be stipulated in constituent documents, charters, regulations of creative unions, scientific and technical societies, editorial offices of newspapers, magazines, etc. At the same time, an organization may be granted the right to hold a competition by special civil legislation of Russia, other acts, containing civil law.

Participating in the competition can be both citizens and legal entities. 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 by law without the consent of parents, adoptive parents and trustees. the result of their intellectual activity (Article 26 of the Civil Code). For minors under 14 years of age, according to Art. 28 of the Civil Code, transactions can be made on their behalf by legal representatives (parents, adoptive parents, guardians).

Citizens participate in the competition individually or collectively. Participants of the competition may be foreign citizens, as well as stateless persons, whose legal capacity is determined by civil law. Legal entities can act as applicants. If a competition is announced for the best solution of a technical problem, then research institutes, design bureaus, technical societies, etc., have the right to participate in its development.

From the content of the competition announcement it should be clear who is invited to participate in it: either only citizens (for example, performing artists), or only organizations (amateur groups). It is possible that both are invited. Thus, from the report on the competition "Ecology-96" it follows that journalists, groups of newspapers, radio and television companies can take part in the competition (RG. 1996. 19 April).

The promise of remuneration for the performance of certain work, as a rule, must be public. This involves an appeal to an indefinite circle of people. A promised reward is a specially established premium or other reward that is paid to the winner of the competition for the result achieved. The receipt by the winner of the award does not exclude his right to receive other types of remuneration for his work. Competitive remuneration can be in monetary terms or in the form of a specific thing (car, TV, etc.). Other forms of rewarding the winner of the competition (diplomas, diplomas, medals and other distinguishing marks) are possible only in combination with the payment of a premium. The issuance of these incentives without the payment of a premium is not a competitive remuneration.

A public competition is a type of public promise of an award that has not previously been regulated by civil law (for details, see Art. comments to ch. 56 ). What unites these types of public promise of a reward is that in both cases a reward is publicly promised for the commission of lawful actions within a certain period of time. But there are differences between a public promise of an award and a public competition. They have different goals. A public promise of a reward is associated with the performance of any lawful action (for example, finding a lost thing, an animal, providing a person with the necessary information, etc.). A public competition involves the achievement of the best result in the performance of creative work by a person who wishes to participate in the competition. In addition, the nature of competitiveness and rivalry is inherent in a public competition, which is absent in a public promise of an award.

While a winner must always be determined in a public competition, no winner is determined in a public promise of an award, although the action indicated in the announcement may be performed by two or more persons at the same time. In this case, the efforts of the persons who took part in the commission of any lawful action named above shall be equally rewarded.

2. Public competition pursues the achievement of any socially useful goals. The expression "any" makes it possible to broadly define socially useful purposes. They can affect the areas of spiritual life and material production.

Training of specialists is provided by higher education. As noted, Art. 43 of the Constitution enshrines the provision that everyone has the right to receive higher education on a competitive basis in a state and municipal educational institution.

In the field of labor relations, a public competition is associated with the selection of personnel and is regulated by the norms of labor legislation. The competition makes it possible to identify highly qualified specialists who are able to effectively participate in solving the problems facing the organizer of the competition.

Competition is also used in environmental legal relations, but with a different purpose. According to the Subsoil Law, subsoil use licenses are granted on the basis of tenders and auctions. In this case, rational use of subsoil is decisive.

When using subsoil, relations arising in the process of prospecting, exploration and production of mineral raw materials, the division of manufactured products, etc., are regulated by a production sharing agreement. These agreements are concluded by the state with the winner of the competition or auction (Article 6 of the Production Sharing Law).

The transition to market relations has pushed the boundaries of the competition. If earlier competition as a civil law institution covered relations related to the performance of a certain creative work or the identification of the best participant, now it is used in the sale, purchase, contract, construction, etc.

At the competition, enterprises are sold as property complexes or shares of an open joint-stock company created during privatization, constituting more than 50% of the authorized capital of the company, if the buyer has to fulfill any conditions regarding the specified property (Law on privatization).

The need for efficient spending of funds from the federal and other budgets requires the procurement of goods, works and services for state needs on the basis of a competitive placement of orders, but there is no federal law on the organization of tenders yet. The Civil Code also does not regulate relations for the competitive placement of orders for the purchase of products for state needs. This gap in the legislation is filled by Decree of the President of the Russian Federation of April 8, 1997 N 305 "On priority measures to prevent corruption and reduce budget expenditures when organizing the purchase of products for state needs" *(246) , which determines the procedure for conducting tenders and at the same time sets the task for legislators to supplement civil legislation with rules on tenders of a commercial nature.

In addition, Federal Law No. 126-FZ of September 25, 1997 "On the Financial Basis for Local Self-Government in the Russian Federation" (as amended on October 6, 2003) *(247) prescribes the placement of a municipal order for the performance of works (rendering of services) financed from the local budget, on the basis of an open competition, the rules of which are established by the representative body of local self-government. The customer under the municipal order for the performance of works (rendering of services) financed from the local budget is the bodies or officials of local self-government.

For competitions, the ultimate goal of which is to obtain permission to use something, the right to purchase, is characterized by competition with an element of competition. It is not the best participant, not the winner, but the one who will ensure the most rational use of something, the economic benefit from acquiring something.

Competition combines material and moral incentives to achieve a socially useful goal. It generates the activity of its participants, which should be creative. The result of this activity is a work of literature and art or the solution of other problems that contribute to cultural and technological progress.

3. The person who announced the public competition addresses an indefinite circle of persons. The number of its participants can be quite wide, or it can be limited to employees of one organization or one profession.

Competitions can be open and closed. An open competition involves an appeal to everyone who wants to participate in it. The announcement of a public competition is given in the mass media (press, broadcast on radio, television). Appropriate notices may be posted in public places. When holding an open competition, its organizers have the right to select in advance the participants who wish to take part in it. This is due to a preliminary assessment of the qualifications of the participants (eg performing artists, musicians). But no matter how limited the selection of participants in an open competition may be, it must remain uncertain.

A limited number of persons are invited to participate in a closed tender, i.e. specially invited. The selection of participants is made by the organizer of the competition, and the proposal to take part in the competition is sent to a certain circle of persons. If the competition is held among a strictly defined circle of specially invited persons, it is characterized by a combination of elements of the competition and copyright agreements. In fact, such a competition is an order to specific individuals to perform a specific task. The payment of remuneration is made to the one whose work will meet the conditions of the task.

Relations associated with the creation and use of works of literature, science and art are governed by copyright. For the competitive selection of the best works, a jury is created, the authors are paid the established premiums, thus the rules on the competition are applicable here.

4. The announcement of the competition must contain a number of conditions. Some of them are mandatory, others are not. Mandatory conditions include: the essence of the task, the criteria and procedure for evaluating the results of work or other achievements; place, term and procedure for their submission; the size and shape of the award; the procedure and terms for announcing the results of the competition.

The essence of the task is, in fact, information about the subject of the competition or "certain work". The nature of this information depends on the purpose of the competition.

In the announcement of a competition for the best material designed to cover the elections of the President of the Russian Federation in 1996 (RG. 1996. Feb. 24), the task was defined as follows: election materials submitted for the competition should contribute to the further development of democracy, increase political activity , the conscious participation of citizens of the Russian Federation in the management of the affairs of the state, the fuller use by them of their electoral rights.

The competitive task can be expressed in a simple statement of the problem, which gives an idea, a topic, and also indicates the form of its resolution. It is possible to detail the features that the solution of the competitive task must meet.

The order and term of the comparative evaluation of works are predetermined by the peculiarities of the work itself. Preliminary selection and evaluation of prospectuses and applications are possible.

The competition can be held in several stages (rounds). At each of them, an assessment of the work is given, which allows you to select the best work for the next round. The final evaluation of the work may be preceded by an open discussion or placement on an exhibition for public viewing and public opinion.

One of the prerequisites for the competition is the place of submission of the work. His indication is important not only for the participants of the competition, but also for the public. This is especially true of competitions for performing activities, in which there is a spectator audience.

The term for the implementation of the competition task must be of such duration that the participant has a real opportunity to complete it. The time allotted for this can be determined by the appropriate period (for example, from February 15 to July 15, 1996 or within 6 months from the date of the announcement of the competition) or by a fixed calendar date.

Final and intermediate deadlines may be set, for example, an intermediate deadline for previewing or auditioning performers; deadline for submitting prospectuses for the performance of the competitive task.

The form of submission of work for the competition is determined by its nature. It is possible for a participant to transfer the result of his work in the form of a materialized object (drawing, painting, medal, manuscript, project, etc.) when creating a work of science, literature, art or identifying a technical solution.

A special form of presentation of the work can be vocal, dance performance, poems with direct perception of this performance by the organizer of the competition.

Refusal to accept a work for the competition can take place only on the grounds of its non-compliance with the conditions of the competition or violation of the procedure and deadlines for its submission.

The size and shape of the award are a prerequisite for the competition announcement. They are established in the form of a sum of money or other property value. Several prizes may be established in accordance with the prize-winning place (for example, the first prize - 15 thousand rubles, smaller amounts for two second prizes, two thirds). Not one, but several prizes can be set for each place: one first prize, two second prizes, two third prizes, etc. Simultaneously with the awards for the winners of the competition, incentive awards may be provided. They are intended to reward those who did not take a prize, but created a work worthy of being noted.

The number of prizes and their size are set by the organizers of the competition within the funds allocated for these purposes.

The procedure and terms for announcing the results of the competition are considered mandatory conditions. Determining the results of the competition follows from the evaluation of the submitted works. The deadline for the announcement of the result is given in the announcement of the competition. The works of literature, science or art awarded and accepted for use by the organizer of the competition may become the subject of contractual relations between the organizer of the competition and the authors of these works.

The optional conditions of the competition are determined by the free discretion of the organizer. The number and nature of such conditions depend on the characteristics of the competition. Optional conditions may relate to the order of submission of the work under the motto, when the name of the author is kept secret until the evaluation of his work, or signed by the author; the number of copies of works submitted for the competition; the need and deadline for the preliminary submission of the prospectus, etc.

5. The competition organizer may use the award-winning work on the basis of an agreement with the respective participant. If the organizer of the competition evades the conclusion of an agreement stipulated by the conditions of the competition, then the participant who received the award (premium) has the right to apply to the court with a demand to compel the conclusion of the agreement. At the same time, the question of compensation for losses caused by evasion from its conclusion is raised. The rules provided for in the commented chapter apply in this case, since they do not contradict Art. 447-449 GK.

Article 1058. Change of conditions and cancellation of a public competition

1. In contrast to the previous legislation (Article 440 of the Civil Code of the RSFSR), the possibilities of the competition organizer have now been expanded. He is given the right not only to change the conditions of the competition, but also to cancel it. Amendments are allowed in all conditions, except for the one that concerns the essence of the competition (goals, objectives). Changing the essence of the competition practically leads to its cancellation.

A different presentation of the conditions of the competition may affect the interests of potential participants who have begun to perform the specified task. Therefore, the law allows the organizer of the competition to change the conditions or cancel it only in the first half of the deadline set for the submission of works.

Later changes in the conditions of the competition are not excluded, but only if they improve the position of future participants (for example, the size and number of prizes have been increased).

The cancellation of a lawfully announced competition may be due to the discretion of its organizer, who has encountered obstacles to its holding (for example, the inability to provide conditions for the stay of non-resident participants or the refusal of sponsors to provide financial support).

The organizer of the competition cannot change the conditions or cancel the competition if any of the participants submitted the work within the first half of the deadline. After notification of a change in the conditions of the competition in accordance with paragraph 2 of the commented article, the participant in the competition cannot demand acceptance of the work on the original conditions or invalidate the changes made to them. His further participation in the competition is possible as a result of correcting the work in accordance with the new conditions of the competition.

2. Changes in the conditions of the competition or its cancellation must be brought to the attention of its possible participants. This refers to an indefinite circle of persons to whom the announcement of a public competition was addressed. Potential participants must be informed about changes in the conditions of the competition or its cancellation in the same way that the competition was announced (publications in newspapers, radio, television, distribution of information leaflets on street stands, etc.).

Compliance with this requirement by the organizer of the competition releases him from the obligation to accept the work performed on the originally specified conditions. It does not take into account the fact that the author of this work, for a good reason, did not know about the changes in the conditions of the competition or its cancellation.

3. After the announcement of a public competition, persons who wish to participate in it and have completed the work bear certain costs (for example, they purchase writing paper, canvas, paints, brushes, etc.). The work can be made by the participant of the competition before the announcement of the change in the conditions or the cancellation of the competition. Expenses incurred by any bidder must be reimbursed to him. The person who announced the competition, in case of its cancellation or change in conditions, must reimburse the expenses incurred by the person who performed the competition work, if it was ready before its author became or should have become aware of the change in the conditions of the competition and its cancellation.

The organizer of the competition may be released from the obligation to reimburse expenses. To do this, he must prove that the specified work was performed not in connection with the competition, but precisely before its announcement. Another reason for the release of the organizer of the competition from the obligation to reimburse the participant's expenses is the performance by him of work that obviously does not meet the conditions of the competition.

4. Regardless of the reasons that forced the person who announced the competition to change its conditions or cancel it altogether, it must comply with certain requirements. The latter relate to the term and procedure for notifying the participants of the competition about the ongoing changes in the conduct of the competition. These requirements are set out in paragraphs 1 and 2 of the commented article.

If they are violated by the organizer of the competition, then he must pay a reward to those who performed the work in accordance with the agreed conditions.

Article 1059. Decision on the payment of an award

1. Announcement of the competition among the mandatory must contain a condition on the procedure and deadline for the payment of the award. The decision on the payment of the award is communicated to the participants of the competition. This must be done in a timely manner and in compliance with the procedure and deadline for the payment of the award. When announcing the competition, the organizer indicates how many prizes he establishes and in what amount.

When summing up the results of the competition, the organizer, based on the number of awards awarded, may take one of the following decisions: a) on the payment of awards according to their number for each prize; b) on the refusal to award prizes for individual prizes (when several are announced); c) on awarding incentive prizes instead of awarding prizes for prizes; d) not to award prizes at all, if none of the submitted works is recognized as being awarded or none of them meets the requirements set forth in the conditions of the competition. In case of refusal to pay awards or other decision, the organizer of the competition is not obliged to motivate his decisions.

Evaluation of competitive works can be carried out by the organizer himself, be entrusted to other organizations or by a specially created competition commission or a jury of highly qualified specialists in this field of activity.

The formation of the competition commission (jury) is announced in the announcement, but its composition with a listing by name is not indicated. The competition commission or jury evaluates the submitted works and determines the winners. Prizes are awarded by the organizer of the competition. The winners of the competition are recognized only by persons who are awarded prizes for prizes.

Failure to comply with the deadline for the announcement of the results of the competition and the payment of bonuses is a violation of the obligation of the organizer. Participants of the competition, whose works are recognized as satisfying the conditions of the competition and subject to bonuses, have the right to apply to the court with a claim for payment of the bonus.

2. The work submitted for the competition may be performed by two or more persons. In case of awarding a prize to a team of authors, the amount of the prize does not increase. It is distributed among the participants who completed the work in accordance with the agreement reached by them. In the absence of such an agreement, the procedure for distributing the award is determined by the court.

The decision to pay the award to the participants of the competition, whose works are awarded, is communicated to them by written notification, as well as publication of the results of the competition in the press or announcement in other media.

In case of disagreement with the decision of the competition commission (jury) on the results of the competition and the payment of the award, the participants of the competition shall file a complaint with its organizer. The complaint may be resubmitted to a higher body, the decision of which is final.

Article 1060

A public competition may be announced for the purpose of creating a work of science, literature or art. The organizer of the competition, having awarded the created work with a conditional award, acquires the pre-emptive right to conclude an agreement on the use of the work with the winner of the competition.

If the plans of the person who announced the competition does not include the intention to use the awarded works, the authors of these works must be informed about this. When announcing the conditions of the competition, it may be stipulated that the awarded works will not be used by the organizer. This gives the author the opportunity to use the work at his own discretion, namely to look for a person or organization with which to conclude an agreement.

The law does not determine the period during which a person who has announced a public competition must exercise the pre-emptive right that has arisen for him to conclude an agreement with the author of the work awarded the award. The delay for an indefinite period of execution of the contract with the winner of the tender allows the latter to apply to the court with a demand to compel the conclusion of the contract. In case of unreasonable evasion from the conclusion of the contract, the organizer of the competition must compensate the author of the awarded work for the losses caused by this (see clause 4 of article 445 of the Civil Code).

Depending on the court decision on compelling the organizer of the contest to conclude an agreement with the author of the awarded work, the organizer's right is either canceled or he concludes an agreement in accordance with the rules of copyright (Article 31 of the Copyright Law).

When concluding an agreement between the organizer of the competition and the author, the period for which he transferred the right to the awarded work, as well as other conditions of the agreement, is stipulated. If there is no condition on the term in the author's agreement, the agreement may be terminated by the author after 5 years from the date of its conclusion with a written notification of the user 6 months before the termination of the agreement.

The law (clause 4, article 1057 of the Civil Code) does not stipulate the method of using the work awarded at the competition. It is determined either at the conclusion of the author's contract, or is used in a way arising from the purpose of the competition, for example: a piece of music - for performance before the public; literary work - for publication, artistic reading, etc.

The issuance of a conditional award to the participant - the winner of the competition does not deprive him of the right to receive the appropriate remuneration under the agreement concluded with him on the use of the work.

Article 1061

In addition to the prerequisites (cf.

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 (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 competitive advertisement, 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 term for comparative evaluation of 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 has completed the work stipulated 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 were not 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.