The retention is ... The retention in modern civil law: the concept, the peculiarities of the institution of retention

As Article 359 (paragraph 1) of the Civil Code says, the entity that has a particular item that is to be transferred to the debtor or a person specified by it, if the obligated party fails to fulfill the terms of the transaction for the payment of the thing or compensation to the creditor of the costs associated with it, and other losses, Can hold the object until the debt is repaid. Similarly, claims not related to reimbursement of expenses, other possible losses, but arising from relations, the parties in which act as entrepreneurs, can also be provided.

Characteristics of the Institute

The corresponding right is realized by the retender to the infringer of his interests independently. одна из оперативных мер воздействия. It follows that retention is one of the operational measures of influence. It refers to law enforcement tools of a security nature, established directly in the law. The retentor independently decides whether to use the opportunity provided by the norms or not. His will is manifested in actions aimed at retention. поведение представляет собой одностороннюю сделку, в рамках которой у должника и ретентора появляются и изменяются соответствующие субъективные обязанности и права. This behavior is a one-sided transaction in which the debtor and the retentor appear and change their respective subjective duties and rights.

Subject

As it acts a certain thing belonging to the debtor on legal grounds. It should be for someone else's creditor. The thing that is in the ownership of the lender can not act as an object of retention. For example, an item belonging to the seller when the buyer delays payment. The very assumption that the owner is entitled to receive satisfaction of claims at the expense of the price of his subject is absurd. форма приостановления выполнения обязательства либо отказа от его исполнения (по 328-й статье, п. 2, ГК). In such situations, withholding is a form of suspension of the fulfillment of an obligation or a refusal to perform it (under Article 328, paragraph 2, of the Civil Code). As an object, any immovable thing can act. At the same time, the right to retain it arises regardless of state registration. The object can also be an individually-specific thing or objects endowed with generic attributes. The latter also include securities (documentary), foreign currency. The provisions of the 359th norm do not apply to the retention of the sample of the result of intellectual labor. A similar situation with property rights.

Timing

Legislation does not establish when the retention begins and ends . условие определяет кредитор самостоятельно. This condition is determined by the lender on its own. He can begin to implement an interim measure at any time after the appearance of an appropriate ground. Last, in particular, is the non-payment of the thing, the lack of compensation for costs and other losses associated with the item, the dissatisfaction of another monetary claim arising from the relations in which the subjects act as entrepreneurs. The retention will be possible and lawful as long as the right of claim secured by it remains in force. In the event of the repayment of the obligation, the creditor may reclaim the property in the manner prescribed for the pledge. Satisfaction of requirements is carried out at the expense of the value of the object. исполнительным документам . In this way, in practice, retention of executive documents is carried out.

Specificity of law

The functions of legal capacity are to stimulate and ensure the debtor's proper performance of the obligation he has made, as well as to satisfy the monetary claims of the retender. The volume and procedure for collection are established by the Civil Code. The requirements of retention are always material. The corresponding right of the creditor is retained upon the transfer of ownership of the thing to a third party. The corresponding provision is enshrined in Article 359 (paragraph 2) of the Code. The lender may retain the thing held by him, even if, after the receipt of it in his possession, the rights to it are acquired by another person.

Collateral classification

In terms of the content of functions, retention is divided into civil and entrepreneurial. In the first case, the law derives from the relationship between any person. In the second situation, it arises in the framework of entrepreneurial relations. General citizenship law can appear when the retentor has the ability to retain a thing belonging to the debtor, if it does not fulfill its obligations to pay it or compensate for costs and other losses directly related to it.

For example, a car after an accident is transported to a car repair center, where it is being repaired. But the owner of the TS does not pay the costs of transportation, the cost of parts and restoration works provided for under the contract. In this situation, the car service is entitled to keep the car. In this case, his requirements are connected with it. If the owner of the car has paid the costs for spare parts, repairs and evacuation, then the car service does not have the right to withhold it, referring to the owner's failure to fulfill obligations with regard to the second car being restored.

Retention of income

In the process of charging employees with remuneration for their professional activities, the law allows various withdrawals of funds. They can be grouped into 3 groups:

1. Required. с учетом льгот для некоторых категорий граждан, а также изъятия по ИЛ судебных органов. These include the withholding of personal income tax , taking into account benefits for certain categories of citizens, as well as seizure of judicial bodies by IL. As NK points out, the tax rate is 13% of the accrued salary.
2. The deduction is initiated by the employee himself. They are made on the basis of a personal application of the employee to transfer money to legal entities or other citizens.
3. по инициативе предприятия. Deductions from the salary at the initiative of the enterprise. They are produced by order of the head of the organization. . The relevant order should specify the specific reasons and amount of deductions . The employee must be acquainted with the order for signature.

Types of seizures initiated by the organization

As a rule, they are related to violations committed by the employee. Deductions from s / n are carried out:

1. For any material damage to the enterprise.
2. For industrial marriage, committed through the fault of the employee.
3. On loans and loans provided to the employee company.
4. To pay off the spent and timely not returned advance payment issued for the report.
5. To return excessively paid amounts due to a counting error, for the period of idle time due to the employee's fault.
6. In other cases. For example, they refer to situations involving the dismissal of an employee on the initiative of the employer.

Taxation

The rules of calculation, transfers of personal income tax are established in the 23rd chapter of the Tax Code. As payers are:

1. Fizlitsa-residents of the Russian Federation.
2. Non-resident citizens, but receiving income from sources located in Russia.

For each of them a taxable object is installed. For resident individuals, it is income that was received on the territory and beyond the borders of the Russian Federation, for non-residents only within Russia.

Contents of minors

. From z / n workers is forced or voluntary withholding of alimony . The latter takes place if there is an agreement between the former spouses. осуществляется согласно правилам, установленным в законе. Forced retention of alimony is carried out in accordance with the rules established by law. The seizures are made in shares from the remuneration:

• 1/4 of the salary for 1 child.
• 1/3 - on two.
• 1/2 - 3 or more.

The amount of withholding is calculated after deduction of tax.

Accounting

Each transaction to withdraw funds from the remuneration must be matched with the posting. The deduction of the tax and the maintenance on children can be issued as follows. For example, the salary of an employee is 30,000 rubles. There are no other payments from the employee. He is entitled to a standard deduction for a child - 1.4 thousand rubles. The amount of the tax is 3718 ((30 thousand rubles - 1.4 thousand rubles.) X 13%). Alimony was also withheld 13,162 rubles. In accounting, the following entries are reflected:

1. Д-т сч. 20 Cd. 70 - charge c / n.
2. Д-т сч. 70 Cd. 68 - Withdraw tax.
3. Д-т сч. 70 Cd. 76 - alimony was withheld.

Deductions are provided monthly. Their size depends on the number of minors. At the first - 1.4 thousand rubles., For the second and subsequent - 3 thousand rubles. Deductions can be used until the child reaches adulthood. However, the law provides for an exemption for students on a daily basis. Their parents can use the deductions until they are 24 years old.

The tax base

When it is determined, all the income of the payer, including in a non-monetary form, incomes in the form of material benefits is taken into account. The latter include funds:

1. Obtained from the purchase of goods, services, works from individuals, IP, organizations that are interdependent with the payer.
2. In the form of savings on% for the use of borrowed funds received from legal entities and individual entrepreneurs.
3. Received from the purchase of securities.

The determination of the magnitude of the material gain from the acquisition of goods has its own nuances. When calculating into account, the difference is taken between the cost of products purchased by interdependent persons and sold to third-party consumers. For example, the building association sold its employees apartments. Their price was lower than the cost of premises with similar characteristics sold to third-party citizens. The enterprise and persons who are with it in labor relations are considered interdependent. In this situation, the organization calculates the material benefits that are liable to taxation. It acts as an excess of the cost of apartments sold to non-interdependent persons over the prices at which the workers purchased the premises. The calculation is carried out in respect of each employee who bought the object.

Nuances

The tax base is determined for each income separately, if it establishes its own rate. For receipts in relation to which a tariff of 13% is provided, it is calculated as a collection of receipts to be taxed, reduced for deductions. If the value of the latter is higher than the amount of revenue, the base is assumed to be zero. For receipts in relation to which other rates are set, deductions are not applied to the calculation.

Additionally

Legislation provides for several categories of deductions:

1. Standard.
2. Professional.
3. Property.
4. Social.

The former are given to people at the place of their work. To receive a deduction it is necessary to issue an application. If the subject works in several enterprises, he must choose one place of work, which will use the right. Other categories of deductions are provided when the payer submits a declaration.