Contributions to the compensation fund SRO level of responsibility. Formation and placement of compensation funds of self-regulatory organizations

All self-regulatory organizations are required to have their own compensation fund. To understand what a compensation fund is in an SRO and with all the conditions regarding the formation of such a fund and its functioning, you can open the Town Planning Code of the Russian Federation and read the stipulated rules.

The value of the compensation fund

The entire value of the compensation fund (CF) can only be determined by the organization itself, and only after that all this can be recorded and legalized in the constituent documents regarding obtaining SRO approval. But the compensation fund itself must be no less than the amount specified in the legislation. The very size of this fund may depend on the way of activity of all enterprises and firms that are part of this self-regulatory organization. Naturally, the requirements for the compensation fund in this case will be different.

Contribution to the SRO compensation fund

All participants in this self-regulatory organization must pay a certain contribution to the SRO compensation fund. Such a fee must be made every month, but the entrance fee itself is determined at a meeting of SRO members. In building self-regulatory organizations, the amount of the entire compensation fund must be at least 1 million rubles for each of its members. In such architectural and construction organizations and engineering amounts are different: for each member - no less than 500 thousand rubles.

This amount is set in order to be able to pay material damage in the event of a situation where the company violated the safety of construction sites during the work. In the event that an enterprise is building an object whose cost is estimated at more than 10 billion rubles, the size of the compensation fund itself should be no less than 30 million rubles. The Compensation Fund cannot spend its money on any other needs than those provided for by the Code. But there are exceptions, which are also prescribed and approved by law.

Where can the money from the SRO compensation fund be spent?

• In addition to payments of material damage in case of safety violations during construction work, the fund's money can be spent on the following needs:
  to expand and maintain the compensation fund;
• for the return of the SRO compensation fund in case of their erroneous transfer;
• if any of the members of the self-regulatory organization caused damage by their wrong actions, the fund compensates for this damage

Although all funds are kept in deposits for the possibility of their increase and safety, but, if necessary, the above payments, this is done within ten days.

Refund from CF

The legislation does not provide for a refund of the contribution upon withdrawal from the SRO. This means that any company or organization that decides to terminate its membership in a self-regulatory organization may not receive a refund of its contributions.

In fact, the return of the compensation fund upon withdrawal from the SRO can be achieved by a court decision. If liquidation (or self-liquidation) of the SRO occurs, then the entire compensation fund is transferred to the disposal of the following National organizations: NOSTROY, NOIZ or NOP.

In this case, there are mandatory payments to companies that were part of the liquidated SRO.

After the adoption of Law N 372-FZ, the professional construction community needed to understand the issues of its application. In particular, to understand what changes have been made to the procedure for making contributions to the KF SRO.

SRO Compensation Fund: requirements for the formation

Federal legislation provides for the mandatory formation by self-regulatory organizations until July 1, 2017 of a compensation fund for damages. The purpose of its creation is to ensure the property liability of the partnership members for obligations that arise as a result of causing material damage to legal entities and individuals or causing harm to a person due to damage or destruction of a building/structure.

By decision of the SRO participants, an additional fund for securing contractual obligations may be created. It is formed in order to ensure the property liability of partnership members for obligations that arise under work contracts concluded in the course of state, municipal, commercial bidding or electronic auctions. To make a decision on the creation of such a fund, the consent of at least 30 SRO members who intend to participate in procurement for construction work on a competitive basis is required.

The amount of contributions to the compensation fund of SRO builders before and after amendments to the Urban Planning Code

Compensation fund

As you can see, by lowering the limit of the minimum contribution to the CF SRO to 100 thousand rubles, the state not only reduces the financial burden on construction companies when joining the SRO, but makes it possible to conclude more profitable contractor agreements.

Contractual Obligations Fund

If you are already a member of an SRO and have made a contribution to the compensation fund in the amount stipulated by the requirements of the Town Planning Code in the old version, for example, the minimum of 300 thousand rubles, then these funds will be divided into two parts, one of which (100 thousand rubles) will go in the CF compensation for harm, and the second - in the fund for ensuring contractual obligations. At the same time, you will be able to conclude work contracts without using competitive methods for determining the contractor and take part in competitive procedures.

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We will give answers to all questions about changing the requirements for the SRO compensation fund and the amount of contributions in 2016-2017, as well as talk about other innovations in the legislative framework governing the institution of self-regulation in construction.

When joining a self-regulatory organization (SRO), construction companies are required to contribute a significant amount of money to the compensation fund. In what cases are payments made from this fund to cover damages due to deficiencies in construction work? What are the consequences of poor performance for the company?

Appointment of the Compensation Fund

Recall that in subparagraph 2 of paragraph 2 of Article 55.4 of the Town Planning Code of the Russian Federation, as a requirement necessary for a non-profit organization to acquire the status of a self-regulatory organization ( SRO), the presence of a compensation fund formed in the amount of at least 1 million rubles is indicated. for each member of such an organization.

Or, if the organization has established a requirement for insurance by its members of civil liability, in the amount of at least 300 thousand rubles. for each participant.

The main principle of spending the compensation fund is to make payments in order to ensure the property liability of members self-regulatory organization(SRO) to consumers of goods (works, services) produced by them and other persons. Payments for other purposes are not allowed (clause 13, article 13 of the Federal Law of December 1, 2007 No. 315-FZ "On Self-Regulatory Organizations").

The procedure for spending funds
Let's take a closer look at the payment process.

IN WHAT CASES IS LIABILITY AVAILABLE?

Article 55.16 of the Town Planning Code of the Russian Federation provides that the SRO, within the limits of the compensation fund, bears subsidiary liability for the obligations of its members arising as a result of causing harm by them. And in the event of such liability, payments can be made from the compensation fund in order to compensate for harm and legal costs. Cases of liability are established in Article 60 of the Town Planning Code of the Russian Federation. Thus, compensation for damage caused due to shortcomings in construction, reconstruction, overhaul of a capital construction object is carried out by the person who performed such work, that is, the construction company. Jointly and severally with it, subsidiary liability is borne by:

• the Russian Federation or a constituent entity of the Russian Federation, if the damage was caused as a result of non-compliance of the constructed object or the performed construction work with the requirements of technical regulations or project documentation in the presence of a positive conclusion of the state construction supervision body;
• self-regulatory organization in relation to a person who, at the time of performing such work, had a certificate of admission to them issued by this SRO.

Thus, if deficiencies are discovered, the customer or another person who has been harmed first turns to the contractor - the construction organization that performed the work. And only if you do not receive a response or if you receive a refusal - to self-regulatory organization.

At the same time, if the creditor's claim can be satisfied by offsetting a counterclaim against the construction organization or by indisputably collecting funds from it, the injured party is not entitled to demand satisfaction of its claim against the contractor from SRO.

It follows from the foregoing that a self-regulatory organization must make a payment from the compensation fund in the amount necessary to cover the harm in the part not compensated by its participant. In other words, only part of the necessary funds is compensated at the expense of the fund.

WHAT IS SUBSIDIARY LIABILITY?

The establishment of subsidiary liability means that before making claims against a person who is liable in addition to the liability of another person who is the main debtor, the creditor must make a claim against the main debtor (clause 1, article 399 of the Civil Code of the Russian Federation).

That is, it is possible to present a claim to a person bearing subsidiary liability only if the principal debtor refused to satisfy it or the creditor did not receive from him within a reasonable time a response to the claim.

HOW COMMITMENTS ARE FULFILLED

In addition, the rules of civil law on joint and several liability should be taken into account. What are they?

Firstly, with a joint and several obligation of debtors, the creditor has the right to demand performance both from all debtors jointly, and from any of them separately, moreover, both in full and in part of the debt (Article 323 of the Civil Code of the Russian Federation).

Secondly, not having received full satisfaction from one of the joint and several debtors, the creditor has the right to demand what was not received from the other joint and several debtors.

Thirdly, joint and several debtors remain obligated until the obligation is fully performed.

These rules are applied subject to the above rules regarding subsidiary liability (that is, joint and several liability is applied only after a claim has been made against the principal debtor). At the same time, a self-regulatory organization in any case is liable for the obligations of its member only within the limits of the compensation fund (clause 12, article 13 of Law No. 315-FZ).

IF LIABILITY IS INSURED
There are specific features of compensation for damage caused due to shortcomings in construction work (reconstruction, overhaul of buildings, structures), if the organization that performed such work has concluded a civil liability insurance contract.

When damage is caused in these circumstances, compensation is made at the expense of the insured and the contractor (clause 4, article 60 of the Town Planning Code of the Russian Federation). And only if these funds are insufficient, as well as if the construction organization refuses to satisfy the claim for damages, joint and several subsidiary liability of all the above entities, including SROs, comes.

Measures of influence on dishonest participants
For non-compliance with the requirements of technical regulations, a self-regulatory organization may apply disciplinary measures to its members.

Namely:

• warning;
• issuance of an order on the mandatory elimination of identified violations within the established time limits;
• suspension of the certificate of admission to work affecting the safety of capital construction facilities in relation to a certain type or types of work;
• termination of the certificate of admission (Article 55.15 of the Town Planning Code of the Russian Federation).

Last resort for these violations - exclusion from members of a self-regulatory organization- provided for by subparagraph 1 of paragraph 2 of Article 55.7 of the Town Planning Code of the Russian Federation.

If payments were made from the compensation fund, the company due to which the harm was caused due to shortcomings in construction work (even if it was excluded from the SRO), as well as other members, must make additional contributions to the fund. This must be done in order to increase it to the amount established by the charter of the self-regulatory organization, within a period not exceeding two months from the date of making these payments (clause 5, article 55.16 of the Town Planning Code of the Russian Federation).

"Accounting in construction" №3, 2010
especially for the Information resource "All about self-regulation in Russia" ("All about SRO")
www.site

Compensation fund for self-regulatory organizations of builders, prospectors, designers is created in accordance with the current legislation of the Russian Federation. This is a mandatory element of any self-regulatory organization. By the way, the size of the membership fee to the SRO compensation fund, as a rule, is determined by the internal documentation of the non-profit partnership, but the amount cannot be less than the amount established by the current legislation. Also, internal documentation contains instructions adopted at the general meeting of SRO members, which determine a clear procedure for the formation of a comp fund and methods for investing funds.

The Compfund is one of the effective ways to ensure the property liability of the member companies of the self-regulation organization. It is the basis for the stability of the SRO system. The very existence of the compensation fund is based on the principle of collective responsibility, i.e. absolutely all members of the organization are responsible for filling this fund. Legally, all issues of the compfund are spelled out in the Civil Code of the Russian Federation, especially pay attention to Art. 55.16.

Builders SRO Compensation Fund: Highlights

Within the financial resources of the fund, the SRO bears joint and several collective liability for the obligations of all its member companies arising from the infliction of harm, but only in the cases described in Art. 60 of the Civil Code of the Russian Federation. The SRO Compfund can be placed on a deposit in any banking or credit institution. No member of the NP SRO can be released from the obligation to pay a contribution to this fund for any reason. It is absolutely not allowed to make payments from the financial resources of the compensation fund, except as provided by law.

Cases for the payment of funds from the compfund

Payments of financial resources from the compfund can be made if:

• there was a need to return erroneously transferred money;
• it is necessary to save them, increase the amount by placing funds on a bank deposit;
• it is necessary to make payments due to the onset of joint and several liability, which is provided for by part 1 of Art. 55.16 of the Civil Code of the Russian Federation (i.e. payments for damages, legal costs).

That is, if the participating company has decided to withdraw from the self-regulation organization, then the return of the contribution to the comp fund paid by it is not refundable in accordance with Art. 55.7 FZ No. 148.

What are the minimum membership fees to the SRO Compensation Fund?

SRO builders must form a comp fund for each member of their organization in the amount of at least 1 million rubles. However, if the NP SRO establishes a requirement for compulsory insurance of its members, then the amount of the contribution is allowed to be reduced to 300 thousand rubles.

The SRO of designers and the self-regulatory organization of engineering surveys are required to form a compfund, the amount of which for each of its members will not exceed 500 thousand rubles, when members are insured, the amount of the contribution is reduced to 150 thousand rubles.

There is also a gradation of contributions for each member, depending on the total amount of income from work performed under one contract. Other features of the formation of the contribution amount can be found in a detailed study of our website or by calling.

The procedure for payments from the SRO compensation fund

1. The victim must file a claim against the construction company that caused the damage. This can be done by referring to Art. 1095 of the Civil Code of the Russian Federation.
2. Payment of insurance is carried out according to the terms of the concluded insurance contract.
3. If the amount paid by the insurers is insufficient to compensate for the damage caused, the entity that performed the construction work is liable. Moreover, according to the general rule, the scope of liability is not limited by law.
4. In the event that the funds paid are not enough, compensation for harm was refused or the compensation was never paid within a clearly defined time frame, subsidiary liability of the NP SRO arises in accordance with paragraph 1 of part 4 of Art. 60 of the Civil Code of the Russian Federation. But, if the self-regulatory organization has concluded a collective insurance agreement in advance, then the insurance company still bears responsibility under the terms of the agreement.
5. The SRO reimburses the funds of the fund only if the cash insurance payments under the collective insurance contract turn out to be insufficient.
6. Thus, payments from the compfund are made when all possible ways of compensating for the harm caused have been completely exhausted.
7. Then construction companies that are members of SROs must pay contributions to the compfund within two months in order to restore its minimum volume.

When is it possible to return the contribution to the SRO compensation fund?

• The return of contributions is quite possible if the construction company decided to withdraw from the members of the NP self-regulatory organization due to the fact that the certificate of admission to work issued to it has become invalid due to its exclusion from the general list of types of work by Order of the Ministry of Regional Development No. 624.
• Also, the return of the contribution to the SRO Compfund is possible by decision of the court in case of voluntary termination of membership. The Company has the full right to receive back the funds contributed to the Compfund, as she is no longer a member of the SRO, therefore she does not bear property liability under Part 13 of Art. 13 of the Federal Law "On self-regulatory organizations" and Art. 55.16 of the Civil Code of the Russian Federation.

As a rule, in 90% of cases, questions about the return of a contribution to the SRO compensation fund are resolved exclusively in court.