Game rules and betting plan. Russian civil law
Play is an activity that is voluntary, enjoyable, and has no apparent purpose other than pleasure. This concept enshrined in the Great Explanatory Dictionary of Sociology by David D., Jerry J. This is one of the fundamental concepts modern philosophy and sociology. In the context of these sciences, play is understood as an activity, the meaning and value of which lies in itself, in the very process of play.
The legal definition of the concept of “gambling” is contained in the federal law of December 29, 2006 N 244-FZ “On state regulation of activities for organizing and conducting gambling and about changes to some legislative acts Russian Federation”, where gambling is understood as “a risk-based agreement to win, concluded by two or more participants in such an agreement between themselves or with the organizer of the gambling game according to the rules established by the organizer of the gambling game. A bet is a game of chance in which the outcome of a risk-based agreement to win, concluded by two or more bettors among themselves or with the organizer of this type of gambling, depends on an event for which it is unknown whether it will occur or not”1 Federal Law dated 29.12 .2006 N 244-FZ (as amended on October 16, 2012) “On state regulation of activities related to the organization and conduct of gambling and on amendments to certain legislative acts of the Russian Federation” (ConsultantPlus). A bet in the form of a conflict of forecasts is actually a dispute not between the caller and those who responded, but only between the latter. The caller accepts bets, forecast options and sums up the results.
Carrying out games (betting) almost always (with the exception of the so-called charity lotteries) is a commercial activity for the caller, whose profit consists of the difference between the amount of risk contributions of those who responded and the amount that is prize fund and costs of organizing and running the game.
Basic distinctive feature games and betting civil law is their risky, or aleatory nature, which is expressed in the fact that the parties are aware of the possibility of the occurrence of both favorable and unfavorable consequences equally or with a certain probabilistic ratio, in other words - winning or losing. In addition, their important feature is the property nature of winnings, as well as losses.
The concepts of gaming and betting are very close in nature. Traditionally, the distinction between them is based on the ability of participants to influence the outcome. Thus, a game is defined as an agreement by virtue of which the participants in the game are promised (one or more of them) a certain win, depending on the degree of dexterity of the participants, their combination abilities, or to one degree or another on chance, i.e. usually the participants in the game have a significant influence on the result. With a bet, this possibility is absent, since one side claims and the other denies the existence of a certain circumstance that occurs independently of them. When betting, the participation of the parties in the occurrence of these circumstances is excluded or minimized and only verification of the facts is assumed. In essence, betting is a type of game. The significance of this special attention paid to this type of game probably lies in the fact that betting has more specificity than other types of games, as well as in its wide distribution.
103. Organization and conduct of games, lotteries and bets.
A game- this is an obligation by virtue of which the organizers promise one of the participants to receive a certain win, depending, on the one hand, on chance, and on the other, on the dexterity, dexterity, skill and abilities of the participants in the games. In the game, participants have the opportunity to influence its outcome.
Bet is an obligation in which one party asserts and the other denies the existence of a certain circumstance. The circumstance itself occurs independently of them. The parties only note its onset.
Citizens' demands and legal entities related to the organization of games and bets involving participation in them are not subject to judicial protection (Article 1062 of the Civil Code), with the exception of claims of persons who took part in games or bets under the influence of deception, violence, threats or malicious agreement of their representative with the organizer of the games or bet.
Claims related to participation in transactions involving the obligation of the parties to pay sums of money depending on changes in prices for goods, securities, inflation, etc., are subject to judicial protection if at least one of the parties to the transaction is a legal entity. the person who received the license and the transaction was concluded on the exchange.
Conducted by the state municipalities or on their instructions, lotteries, sweepstakes and other games based on risk have special regulations.
Lottery- a mass game, during which the lottery organizer conducts a drawing of the lottery prize pool among the lottery participants - owners of lottery tickets. At the same time, winning any lottery ticket does not depend on the will and actions of all subjects of lottery activity, is a matter of chance and cannot be specially arranged by anyone.
Totalisato p - a game in which the participant makes a forecast (bet) on a possible variant of a gaming situation, where the winnings depend on the partial or complete coincidence of the forecast with the resulting consequences, documented by facts.
System (electronic) game- a game in which bets are fixed and participants’ forecasts are carried out using electronic devices.
Persons who, in accordance with the conditions of a lottery, sweepstakes or other games, are recognized as winners must be paid by the organizer of the games the winnings in the amount, form (cash or in kind) and period stipulated by the conditions of the games, and if the period is not specified in these conditions, not later than ten days from the moment the results of the games are determined. In case of failure to fulfill these conditions by the game organizer, the participant has the right to demand from the game organizer payment of winnings, as well as compensation for losses caused by violation of the contract by the organizer (clauses 4 and 5 of Article 1063 of the Civil Code).
Requirements related to the organization of games and bets and participation in them
1. The claims of citizens and legal entities related to the organization of games and bets or participation in them are not subject to judicial protection, with the exception of the claims of persons who took part in games or bets under the influence of deception, violence, threats or malicious agreement of their representative with the organizer games or bets, as well as the requirements specified in paragraph 5 of Article 1063 of this Code.
2. For claims related to participation in transactions that provide for the obligation of a party or parties to a transaction to pay amounts of money depending on changes in prices for goods, securities, the exchange rate of the relevant currency, interest rates, the level of inflation or on values calculated on the basis of a combination of these indicators, or from the occurrence of another circumstance that is provided for by law and regarding which it is unknown whether it will occur or not, the rules of this chapter do not apply. These requirements are subject to judicial protection if at least one of the parties to the transaction is a legal entity that has received a license to carry out banking operations or a license to carry out professional activities in the securities market, or at least one of the parties to a transaction concluded on the stock exchange is a legal entity has received a license on the basis of which it is possible to conclude transactions on the stock exchange.
Claims related to the participation of citizens in the transactions specified in this paragraph are subject to judicial protection only if they are concluded on the stock exchange.
Article 1063. Conducting lotteries, sweepstakes and other games by the state and municipalities or with their permission
1. Relations between the organizers of lotteries, sweepstakes (mutual betting) and other risk-based games - the Russian Federation, constituent entities of the Russian Federation, municipalities, persons, and for lotteries - legal entities who have received the right to conduct such games from an authorized state or municipal body in the manner prescribed by law - and the participants of the games are based on an agreement.
2. In cases provided for by the rules of organizing games, the agreement between the organizer and the participant of the games is formalized by issuing a lottery ticket, receipt or other document, as well as in another way.
3. A proposal to conclude an agreement provided for in paragraph 1 of this article must include conditions on the duration of the games and the procedure for determining the winnings and its amount.
If the organizer of the games refuses to hold them within the established period, the participants of the games have the right to demand from their organizer compensation for real damage incurred due to the cancellation of the games or the postponement of their dates.
4. Persons who, in accordance with the conditions of a lottery, sweepstakes or other games, are recognized as winners must be paid by the organizer of the games the winnings in the amount, form (cash or in kind) and term stipulated by the conditions of the games, and if the period is not specified in these conditions , no later than ten days from the date of determining the results of the games or within another period established by law.
5. If the game organizer fails to fulfill the obligation specified in paragraph 4 of this article, a participant who wins a lottery, sweepstakes or other games has the right to demand payment of winnings from the game organizer, as well as compensation for losses caused by violation of the contract by the organizer.
- Section I Introduction to Civil Law
- Concept of civil law
- Concept, subject and methods of civil law
- Principles of civil law
- Sources of civil law. Effect of normative legal acts in time, space and circle of persons
- Civil law system
- Civil law as a science and academic discipline
- Section II civil legal relations
- Concept, content and types of civil legal relations
- Concept and signs of civil legal relations
- Contents of civil legal relations
- Types of civil legal relations
- Subjects of civil legal relations
- Citizens (individuals) as subjects of civil legal relations
- Civil legal capacity and legal personality
- Civil capacity. Subjective right and legal obligation
- Guardianship and guardianship. Patronage
- Citizen's name and place of residence
- Recognition of a citizen as missing. Declaring a citizen dead
- Civil status acts
- Legal entities as subjects of civil legal relations
- Formation, reorganization and termination of activities of a legal entity
- Bankruptcy (insolvency) of a legal entity
- Types of legal entities
- Russian Federation, subjects of the Russian Federation, municipalities as subjects of civil law
- Citizens (individuals) as subjects of civil legal relations
- Objects of civil rights
- The concept of the object of civil rights. Classification of things
- Money and securities
- results creative activity. Information. Results of work and services. Intangible benefits
- Grounds for the emergence, change and termination of civil legal relations
- Concept of legal facts
- Types and classification of legal facts
- Concept, types and form of transactions
- Conditions for the validity of transactions. Concept and types of invalid transactions
- Exercise and protection of civil rights
- Exercise of civil rights and fulfillment of duties
- Civil rights protection
- Representation
- Concept and types of representation
- Power of attorney. Types of powers of attorney
- Deadlines in civil law. Limitation of actions
- Concept and types of deadlines
- Expiration of limitation periods
- Section III Ownership and other real rights
- Property law and property rights
- The concept of property rights
- General provisions about property rights. Forms of ownership and forms of ownership
- Contents of property rights
- Acquisition and termination of ownership
- Features of the content of property rights of various subjects of civil rights
- Ownership of legal entities
- The right of state and municipal property
- Common property right
- Property rights of persons who are not owners. The right of economic management and the right of operational management. Easements
- Protection of property rights and other proprietary rights
- Ownership and other real rights to land
- Ownership and other proprietary rights to residential premises
- Section IV Law intellectual property
- The right to the results of intellectual activity and means of individualization
- General provisions on intellectual rights and intellectual property
- Exclusive rights to the results of intellectual activity
- Civil legal methods of protecting intellectual rights
- Copyright
- The concept and content of rights related to copyright (related rights)
- Patent Law
- Right to selection achievement
- Right to integrated circuit topologies
- The right to a production secret (know-how)
- The right to means of individualization of legal entities, goods, works, services and enterprises
- The right to use the results of intellectual activity as part of a unified technology
- General provisions on intellectual rights and intellectual property
- Section V Law of Obligations. General provisions
- Concept and types of obligations. Execution of obligations
- Concept and grounds for the emergence of obligations
- Parties to the obligation
- Types of obligations
- Concept and principles of fulfillment of obligations
- Proper fulfillment of obligations
- Ensuring the fulfillment of obligations
- The concept and system of ways to ensure the fulfillment of obligations
- Penalty
- Pledge
- Hold
- Surety
- Bank guarantee
- Deposit
- Change of persons in an obligation
- Transfer of creditor's rights to another person
- Debt transfer
- Liability for breach of obligations
- Concept, forms and types of civil liability
- Conditions of civil liability for violation of obligations
- Grounds for exemption from civil liability
- Amount of civil liability
- Termination of obligations
- Concept and grounds for termination of obligations
- Methods for terminating obligations
- General provisions of the contract
- The concept and meaning of the contract
- Contents and form of the agreement
- Classification of contracts
- Conclusion of an agreement
- Change and termination of the contract
- Certain types of obligations
- Purchase and sale. Mena
- General provisions on the purchase and sale agreement
- Rights and obligations of the parties
- Execution of the purchase and sale agreement and liability of the parties for its non-fulfillment
- Retail purchase and sale
- Goods supply
- Supply of goods for state and municipal needs
- Contracting
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- Property For Sale
- Sale of the enterprise
- Mena
- Donation
- Annuity and life support with dependents
- General provisions on annuity
- Types of annuity
- Transfer of property for temporary use
- General rental provisions
- Certain types of leases and lease of certain types of property
- Renting residential premises
- Free use
- Contract
- General provisions on contracts
- Types of contract
- Carrying out research, development and technological work
- Paid provision of services
- Transportation and transport expedition
- Concept and types transport transportation
- Forms of organization and types of contract for the carriage of goods
- Loan and credit
- The concept of credit and settlement legal relations
- Loan
- Credit. Commodity and commercial loans
- Financing agreement for assignment of monetary claim
- Bank deposit and bank account agreements
- Bank deposit agreement
- Bank account agreement
- Settlement obligations
- General provisions on calculations
- Settlements by payment orders
- Settlements under a letter of credit
- Payments for collection
- Payments by checks. Bill of exchange
- Storage in a warehouse
- Special types storage
- Insurance
- General provisions on insurance
- Insurance contract
- Types and forms of insurance
- Assignment. Acting in someone else's interest
- Order
- Acting in someone else's interest without instructions
- Commission. Agency
- Commission agreement
- Agency contract
- Trust property management
- Commercial concession
- Simple partnership
- Public promise of reward. Public competition. Games and betting
- Public promise of reward
- Public competition
- Games and betting
- Liabilities arising from causing harm
- General provisions on compensation for harm. Certain types of liability
- Compensation for harm caused to the life and health of a citizen, or due to defects in goods, works or services. Compensation for moral damage
- Liabilities due to unjust enrichment
- Section VII Inheritance Law
- Inheritance law
- General provisions on inheritance
- Inheritance by will
- Inheritance by law
- Acquiring an inheritance
- Inheritance of certain types of property
- Chapter VIII International private right
- International private law
- Concept, sources and norms of private international law
- Legal status individuals in private international law
- Legal status of legal entities in private international law
- General beginnings application of law
- Ownership
- Foreign economic transactions
- Consideration of disputes in arbitration
Games and betting
IN last years In the Russian Federation, the number of games, bets and especially gaming establishments (casinos, gaming bars, computer gaming halls, etc.) has noticeably increased, where games and bets are often of a gambling nature and act as a source of enrichment for others and a cause of ruin and impoverishment for others. The state cannot be indifferent to these phenomena. It's no coincidence that the casino gaming halls etc. have now been removed outside the capital and large cities and special zones have been allocated for them... However, the number of gambling and betting has not decreased because of this, they operate in major cities illegally, under other signs. Unfortunately, not all of them now fall within the scope of legal regulation, although some of them, classified as gambling, are regulated by Chapter. 58 Civil Code of the Russian Federation.
“Conducting games and betting”, others, with property winnings, but not gambling in the strict sense of the word, actions are regulated by Ch. 57 Civil Code of the Russian Federation. Everything else play activity human rights are indifferent.
Russian legislation, unfortunately, does not contain a detailed concept of gambling, so its content must be established through interpretation. Law is only interested in those games that involve the possibility of winning or losing. The game itself, as a process of pastime, which is not followed by summing up or announcing the result, has no legal purpose. But not every win (loss) moves the game into the realm of legal regulation. Thus, awarding a medal to the winner of a sports competition does not provide grounds for qualifying the corresponding game as gambling under Art. 1062 of the Civil Code of the Russian Federation. IN in this case Only winnings of a property nature (monetary or clothing) have legal significance, while a medal is only a symbol of victory, but not its monetary equivalent. Along with the chance to win in the game, there must be a risk of loss (and of a property nature). Finally, the most main feature gambling is the unpredictability of the result, its random nature. The outcome of a game of chess or checkers depends entirely on the skill of the players. Due to the fact that all the initial game data (arrangement of pieces) is known to the participants, the role of chance here is minimized, so even playing chess for money is not gambling within the meaning of Art. 1062 of the Civil Code of the Russian Federation.
From the point of view of the level of influence of chance on the outcome of the game, all games are classified into prestigious, commercial and gambling. Prestige games are those that are usually sports competitions, the result mainly depends on the skills, abilities and other personal qualities of the players. The rules of commercial games, for example, preference or bridge, already introduce a significant element of chance into the game (card layout). But not less important role is also given to the skills of the players themselves: combinatorial abilities, memory, etc. Only in gambling is the influence of chance great, and here the personal qualities of the players are practically unable to influence the result.
Gambling is an agreement, the only basis of which is the possibility of one of the participants acquiring property benefits (winnings) at the expense of another participant upon the occurrence of random conditions determined by the rules.
Depending on whether players participate in the process of determining the winner, that is, whether the winning procedure is carried out or not, gambling is divided into betting and gambling itself (in the narrow sense of the word). A bet is an event on the basis of which one of the participants claims the existence (in the past or future) of a certain circumstance, and the other denies it, while the winner is the one of the disputants whose prediction turns out to be correct. Once the betting agreement is concluded, the winning party is determined automatically, depending on whether the disputed event occurred or not. If, to determine the winner, an additional procedure is required - drawing, i.e. a sequence of actions determined by the rules (for example, card moves) of participants, then this is not a bet, but a game of chance in the narrow sense of the word.
In addition, bets are classified into two types - betting and bookmaker bets - depending on the method of determining the amount of winnings. In a bookmaker's bet (for example, roulette or a cash lottery), the winning amount is fixed and does not depend on the number of players, the amount of bets made or the number of winners. Winnings in betting (for example, at horse races or races) will be greater, the larger the prize fund, the higher the amount winning bet and lower probability of winning.
An agreement to conduct games or bets is usually interpreted as real, i.e. it is considered concluded from the moment when the players made their bets and formed the prize fund (“bank”). This scheme is convenient for the organizer of the games, because if he wins, he does not need to force the loser to pay the debt. However, nothing prevents the conclusion of a consensual agreement on the conduct of games or bets, if the rules of the game allow it.
The agreement to conduct a game is also considered compensated, since the property provision of one party (the player’s bet) corresponds to a counter provision of chances of winning from the game organizer. It is clear that the probability of winning is not always translated into reality, and it can be calculated in monetary terms and is also of a property nature.
Games and bets are risky. These are agreements in which one of the parties (the organizer) does not directly participate in the game and, therefore, does not risk their property; they are not agreements on gambling or betting. In such cases, we may be talking about a service agreement (for organizing a game), a rental agreement (for gaming equipment or space) or another transaction.
An agreement to conduct games or bets does not in itself give rise to obligatory relations between the parties. After all, an obligation is a legal relationship that mediates the commodity movement of material goods from one person to another. And immediately after the conclusion of an agreement, there is no question of transferring material goods; it is unknown which of the participants will acquire property under the agreement and who will lose. Due to the fact that this agreement is always a conditional transaction, it is the occurrence of the condition provided for by the agreement that gives rise to the corresponding obligation. Hence, the obligation to pay the winnings arises on the basis of a complex legal structure, which includes two legal facts: the contract itself and the condition that has occurred. In games, this condition (the victory of one of the players) is realized by performing a sequence of unilateral actions of the players (for example, moves in card games). This probably explains why games and betting are traditionally studied among the obligations of unilateral actions.
According to Art. 426, 1063 Civil Code of the Russian Federation and Art. 2 of the Federal Law of July 31, 1998 No. 142 “On tax on gambling business“It can be concluded that the contract for conducting games or betting is not public. Meanwhile, the agreement in question is an independent type of civil contract and is governed not by the rules on the provision of paid services, but by Art. 1062 and 1063 of the Civil Code of the Russian Federation. At the same time, this agreement in most cases is an agreement of adhesion (Article 428 of the Civil Code of the Russian Federation).
Typically, obligations from contracts for games or bets are in kind. In this regard, obligations that are deprived of enforceable protection will be called natural, i.e. those in which the rights of the creditor are protected not by their own claim, but by refusal to satisfy the debtor. These are, for example, obligations with an expired statute of limitations (if the debtor declared the application of the statute of limitations and the court did not restore the missed period). After the expiration of the limitation period, the creditor can no longer demand the forced exercise of his right through legal proceedings. But if the former debtor, after the expiration of the limitation period, voluntarily fulfills such a natural obligation (regardless of the motives for the action), then subsequently he will no longer be able to demand the return transfer of the property given to the creditor. After all, fulfillment of a natural obligation is not considered fulfillment of an undue obligation and can be withheld by the creditor.
In the obligations under consideration, the winning party, as a general rule, cannot demand payment of the winnings through the court, as stated in Art. 1062 of the Civil Code of the Russian Federation, which deprives claims based on games or bets from judicial protection. However, if the debtor voluntarily pays his debt and then demands the return of what was paid, he also, on the basis of Art. 1062 of the Civil Code of the Russian Federation, the claims will be denied. The creditor will be recognized with the right to retain the winnings. But the law in regulating natural obligations is limited to this only.
Legally significant obligations arise from the contracts in question only in cases expressly provided for by law. These include obligations involving persons who took part in games or bets under the influence of deception, violence, threat or malicious agreement of their representative with the organizer of games or bets (Article 1062 of the Civil Code of the Russian Federation), and obligations that arise from state-authorized (licensed) ) gambling or betting (Article 1063 of the Civil Code of the Russian Federation). In all other cases, gaming or betting agreements give rise only to natural obligations, and they are deprived of judicial protection.
The parties to the agreement to conduct a game or bet are the organizer and the participant (player). According to paragraph 1 of Art. 1062 of the Civil Code of the Russian Federation, the organizer of gambling or betting can be the Russian Federation, its constituent entities, municipalities, as well as entrepreneurs (individual or collective) who have received an appropriate license from an authorized state or municipal body. A player (bet participant) can be any legally capable individual.
As in all other civil law contracts, the subject - the size and procedure for determining the winnings - is an essential condition of the contract.
The amount that the player risks to win is the price of this contract and is most often called the bet. However, to the number essential conditions it does not apply to the contract (clause 3 of Article 424 of the Civil Code of the Russian Federation).
The term of the gaming or betting agreement is always of significant importance. If it is not agreed upon by the parties, the contract is considered not concluded. But only the duration of the game or bet is significant, but not the payment of winnings. The latter may not be agreed upon by the parties, in which case it is equal to 10 days from the moment of summing up the results of the games (clause 4 of Article 1063 of the Civil Code of the Russian Federation). Typically, the timing of a particular game or bet is determined by its nature. Thus, having agreed to play roulette, the parties agree that the game will begin immediately after the end of the bets and will end when the roulette wheel stops. When agreeing on the subject of the contract, the parties often predetermine its duration.
The form of the contract in question is subject to general rules civil law on the form of transactions. The Civil Code of the Russian Federation proceeds from the fact that issuing a lottery ticket, receipt or other document to a player in cases where this is provided for by the rules for organizing games or betting is a way of formalizing an agreement (clause 2 of Article 1063 of the Civil Code of the Russian Federation). Of course, a lottery ticket or similar document is not the same as a written transaction. In this case, non-compliance with the mandatory written form of the contract is not given legal significance.
The main responsibilities of the betting organizer are to determine the winner of the dispute, calculate the winnings due to him and pay the latter. If the organizer’s prediction comes true, then he can take over the bet made by the losing player, due to the fact that the player does not bear any obligations to the organizer. In case of victory, the player has the right to demand payment of his winnings in the amount and form (cash or in kind) that were provided for by the betting rules.
To determine the winner of a gambling game, it is necessary to draw the prize fund with the participation of the player. The obligation of both parties to the contract is to perform the actual actions necessary for this. Both parties are obliged to play according to the agreed rules, otherwise it should be considered that the violator of the rules of the game, through his actions, unfairly contributed to (or, conversely, prevented) the occurrence of the terms of the deal (the conditions for determining the winner). The one who breaks the rules loses the game, and his opponent gets all the winnings. If a participant, and not the organizer, wins the game, the latter becomes obligated to pay him the winnings, similar to the obligation from a bet. Conversely, if a participant loses, the game organizer purchases his bet.
According to ch. 25 of the Civil Code of the Russian Federation, liability in this case is based on the standard scheme of civil liability.
The organizer of a game or bet who has not paid the winnings due to the participant is obliged to compensate him for the losses caused by this in full. In addition, the participant retains the right to demand payment of the winnings themselves (clause 5 of Article 1063 of the Civil Code of the Russian Federation). The player cannot recover the winnings due to him twice: the first time - in the form of lost profits, and the second - as the actual winnings. AND this rule makes sense in cases where the winnings must be given out in kind (material) form.
Violation of the terms of the gambling agreement is possible even before the corresponding obligation arises. If the organizer can refuse to hold a game within the period established by the contract (cancel the game, postpone, etc.), in this case the law (Article 1063 of the Civil Code of the Russian Federation) obliges him to compensate only for the actual damage caused to the player. It is impossible to impose on the organizer of games the obligation to compensate for the loss of profit by the player when the organizer obviously had no chance of winning (if the game was not played).
When conducting research on such complex and multifaceted phenomena as gambling and betting, it is necessary, first of all, to make an attempt to define these concepts, identify and show their distinctive features.
The study of civil law norms regulating relations arising during the organization and conduct of games and bets is significantly complicated due to the lack of definitions of these concepts in the current legislation. The absence of a legal definition of the concepts of “game” and “betting” in Chapter 58 of the Civil Code of the Russian Federation distinguishes this chapter from other chapters of the Code devoted to regulation various types contractual structures, which already in the first article of each chapter contain a definition of the concept of the corresponding contract.
The absence in the Civil Code of the Russian Federation of a legal definition of the concepts of “game” and “bet” necessitates turning to the analysis of legal norms, as well as to theoretical research by civil scientists.
For example, A.Yu. Kabalkin points out: “The term “game” has several meanings and therefore it is hardly possible to express its universal concept in relation to these relationships. In the literature, a game is recognized as an obligation by virtue of which the organizer must give a reward to the winning person, and victory in the game depends simultaneously on chance and on the abilities, dexterity and other qualities of the participant. As a result, the property of the game is that participants can influence its outcome. A bet also represents an obligation, but unlike a game, its participants express diametrically opposed positions regarding the existence of a certain circumstance. The latter may occur regardless of the will of the participants in the bet, or it has already occurred, but the participants do not know the essence of the circumstance or do not assume that it has already arisen” 1.
Having considered the most interesting civil law views on the definition of the concepts of “game” and “betting”, it is necessary to turn to the analysis of normative sources regulating the relations developing in the sphere of organizing and conducting gambling and betting.
As already noted, in Chapter 58 of the Civil Code of the Russian Federation there are no definitions of the concepts of “game” and “betting”, which is partly compensated by their inclusion in tax legislation. Thus, in Part Two of the Tax Code of the Russian Federation, Chapter 29 “Tax on the Gambling Business” contains Article 364, which sets out the definitions of the basic concepts most often used in the gambling business.
Having abandoned the concept of “game”, the Tax Code of the Russian Federation operates with the terms “gambling” and “betting”, formulating its own definition for each of them. Thus, in accordance with Article 364 of the Tax Code, gambling is “a risk-based agreement on winnings concluded by two or more participants among themselves or with the organizer of a gambling establishment (totalizator organizer) according to the rules established by the organizer of a gambling establishment (totalizator organizer)” . From the meaning of the above norm it follows that the legislator excludes the situation when an agreement on winnings is concluded by one participant with the organizer of a gambling establishment, since he introduces the condition that the agreement must be concluded by at least two participants, therefore, the concept of gambling does not apply to business activities in the field of operation of slot machines, since a participant playing a slot machine essentially enters into an agreement to win with the organizer of a gambling establishment in one person. Consequently, Chapter 29 of the Tax Code of the Russian Federation does not apply to the relationship between the participant and the gambling establishment carrying out business activities in the field of operating slot machines.
The noted legislative shortcomings and the absence of a single regulatory act, including not only a list of basic concepts in the field of organizing gambling, but also regulating in detail the social relations emerging in this area, determined the objective need to develop a single regulatory act aimed at eliminating the existing legal vacuum in the area under consideration. , the adoption of which was delayed for several years for various reasons. New Federal Law of the Russian Federation No. 244-FZ of December 29, 2006 “On state regulation of activities related to the organization and conduct of gambling and betting and on amendments to certain legislative acts of the Russian Federation” (hereinafter referred to as the Gambling Law), which came into force on January 1, 2007, included a whole set of rules regulating the gambling industry.
Thus, Article 4 of the Gambling Law, along with other concepts, defines “gambling” and “betting”. The Law recognizes as a game of chance a risk-based agreement between the parties to win, concluded between two or more participants in such an agreement among themselves or with the organizer of the game of chance according to the rules established by the organizer of the game of chance (Clause 1, Article 4).
A bet, in turn, is defined by the legislator as a game of chance in which the outcome of a risk-based agreement on winning, concluded by two or more bettors among themselves or with the organizer of this type of gambling, depends on an event regarding which it is unknown whether it will occur or not (Clause 2, Article 4).
In this case, the relationship between the concepts of “gambling” and “betting” as generic and specific, where betting is a type of gambling, is clearly visible. At the same time, the legislator again excludes the possibility of a situation in which an agreement on winnings is concluded with the organizer of gambling activities by only one participant. It should be noted that, while revealing the content of the concept of “gambling,” the legislator does not indicate the dependence of a risk-based agreement on winnings on circumstances, the occurrence of which the parties have the opportunity to influence by their actions. And finally, the presence of an element of chance in a game of chance is the main feature of such a game in the field of civil law.
Social relations arising in the field of gambling and betting give rise to various rights and obligations among participants, for the protection and protection of which it is necessary to correctly qualify the substantive part of such legal relations. Such qualification will be impossible without establishing the characteristics characteristic of gambling and betting and allowing to identify the issues under consideration. institutions from a host of others.
The main distinguishing feature of the categories under study is the unpredictability of the result, its random nature, the occurrence of which, as already indicated, the parties either can or cannot have a certain influence on through their actions.
Due to the fact that the unpredictability of the result is the main qualifying feature of gambling and betting, their risky, or aleatory (from the Latin alea - case) nature is beyond doubt.
Despite the fact that those games that involve the possibility of winning or losing have legal significance, not every win (loss) transfers the game to the level of legal regulation. Only winnings of a property nature have legal significance, therefore, awarding a medal to the winner of a sports competition does not provide grounds for qualifying the corresponding game as gambling under Article 1062 of the Civil Code of the Russian Federation, since a medal, even if it is gold, is just a symbol of victory, but not its monetary equivalent. Along with winning, in all gambling games there must be a risk of loss, which is also of a property nature. For this reason, a tennis tournament with a prize fund will not be classified as a game of chance, since the loser in it does not lose anything except prestige. This conclusion is not negated by the fact that for players participation in some sports competitions is paid. This fee is charged to cover the overhead costs of the competition organizers and is in no way related to the size of the possible cash prize, i.e. is not a bet in the game. The above allows us to attribute their property nature to one of the characteristics of aleatory transactions.
Unpredictability of the result, proprietary nature and publicity , which are characteristic features of gambling and betting, are also inherent in some other civil contracts, for example, an insurance contract. Consequently, there is a need to distinguish them from other aleatory transactions, which is discussed in paragraph 1.2. of this work.
Risk in games and bets is never associated with the occurrence of an event that negatively affects the economic (entrepreneurial, commercial) activities of their participants. The loss itself, of course, affects the player’s property status, often quite negatively, but the loss is a consequence of participation in the game, and not of entrepreneurial activity.
Now we can highlight the following main distinctive features of gambling and betting:
1. The unpredictability and random nature of the result, the occurrence of which the parties either can or cannot have a certain influence on;
2. Risky (aleatory) nature;
3. The property nature of the winnings and the risk of losing;
4. Public in nature, except for cases when agreements are concluded between two or more participants in a game or bet without the participation of a professional organizer;
5. Conditional nature of concluded agreements;
6. The basis for participation in a game or bet is to place the same risk of an unfavorable outcome of the game (resolution of the bet) on the counterparty as your own;
7. The motive for participating in a game or bet is either enrichment or satisfaction of personal non-property needs (for example, recognition, confirmation of leader status);
8. Participation in a game or bet does not lead to optimization of the distribution of economic, entrepreneurial and commercial risks of their participants.
Of great interest is the question of the criteria by which gambling and betting differ from each other.
In modern literature, the distinction between games and bets is almost unanimously accepted based on the ability of participants to influence the occurrence of winning or losing conditions. In the event that there is a possibility of such influence, we are talking about a game; in the absence of this possibility, the presence of a bet should be stated.
In support of the position under consideration, one can cite the statement of N.P. Vasilevskaya: “In the game, participants have the opportunity to influence its results. The situation is different with betting. A bet is an obligation in which one party asserts and the other denies the existence of a certain circumstance. The circumstance itself occurs independently of them” 2.
Along with identifying the features inherent in gambling and betting, establishing criteria that allow us to distinguish these concepts from each other and distinguish them from the general mass of aleatory transactions, it is also advisable to determine the legal nature of these categories.
This question has not found an unambiguous solution in science. This is explained by the fact that in most cases the contract for gambling or betting is formulated as real, i.e. is considered concluded from the moment when the players made their bets and formed the prize fund (otherwise the “bank”). This design is convenient for the organizer of games, since after drawing the winnings, he will not need to force the loser to pay the debt, however, as rightly noted in the literature, nothing prevents the conclusion of a consensual agreement on holding games or bets, if the rules of the relevant game allow it.
The question of what types of transactions gambling and betting should be classified as: those that involve consideration (compensated) or those that do not need such representation (gratuitous). On the one hand, if a participant in a gambling or bet loses, then he loses his bet, that is, he transfers for free cash the winner without receiving anything in return. On the other hand, if the winning bidder receives an amount (property) several times greater than his own contribution (stake), he thus not only regains his own property, but also, in fact, receives money for free, while how remuneration involves reciprocal and comparable provision.
Having examined the concepts of “gambling” and “betting”, establishing their most important distinctive features, and determining the legal nature of these phenomena, it is advisable to consider the question of the types of gambling and betting.
For example, A.P. Sergeev and Yu.K. Tolstoy proposes to classify all gambling according to two indicators. The first of these is the degree of influence of chance on the outcome of the game, according to which gambling is divided into three types: prestigious, commercial and gambling.
The authors include sports competitions as prestigious gambling games, the result of which mainly depends on the skills, abilities and other personal qualities of the player. As for commercial games, for example, bridge or preference, their rules already introduce an element of chance into the game (card layout), but an equally important role in this case is also given to the skills of the players: combinatorial abilities, memory, etc. In gambling, the influence of chance is so great that the personal qualities of the players are practically unable to influence their outcome.
As another criterion for classifying gambling, the authors propose to consider the ability of players to participate in the process of determining the winner, that is, depending on whether the winning procedure is carried out or not. According to this criterion, A.P. Sergeev and Yu.K. Tolstoy divides gambling into betting and gambling itself (in the narrow sense of the word). It is noted that after the betting agreement is concluded, the winning party is determined automatically: depending on whether the disputed event occurred or not. In the same case, if to determine the winner it is necessary to carry out an additional procedure - drawing, i.e. the sequence of actions (for example, card moves) of participants determined by the rules does not take place as a bet, but as a game of chance in the narrow sense of the word.
Unlike gambling, there are no criteria for classifying bets. A.P. Sergeev and Yu.K. Tolstoy divides betting into two types - betting and bookmaker betting - depending on the method of determining the amount of winnings. In a bookmaker's bet, the amount of winnings is absolutely fixed and does not depend on the number of players, the amount of bets made or the number of winners; on the contrary, the winnings in a sweepstakes will be greater, the larger the prize fund, the higher the amount of the winning bet and the lower the probability of winning 3 .
The logic of the concept considered is not objectionable, but it seems to require some addition and the inclusion of another criterion of “legal (civil) significance”, depending on which three types of gambling and betting should be distinguished.
1. Games and bets that give rise to obligations to pay winnings, but are not subject to judicial protection. This rule, enshrined in Article 1062 of the Civil Code of the Russian Federation, means that violation of obligations from the organization of games and bets, or obligations from participation in them, does not give rise to any protective civil legal relationship, the content of which would be the right to go to court for the protection of violated subjective right In this case, the protection of civil subjective rights arising from the organization and participation in gambling and betting, contrary to Article 11 of the Civil Code of the Russian Federation, is not carried out by the court. The winner does not have the right to sue (neither in a material nor even in a procedural sense); to the loser for the recovery of a bet in a game or bet; therefore, property transferred in fulfillment of an obligation from a game or bet cannot, under any circumstances, be reclaimed, except in cases provided for by law.
2. Games and bets that give rise to obligations to pay winnings, subject to judicial protection. Such games and bets are listed in clause 5 of Art. 1063 of the Civil Code of the Russian Federation and include games conducted by the state and its subjects; municipalities; by third parties with permission from the state or municipalities. In this case, the legal fact underlying the requirement for the issuance of winnings is the completed game or bet.
Clause 3 of Article 1063 of the Civil Code of the Russian Federation stipulates that if the organizer of the games refuses to hold them within the established period, the participants of the games have the right to demand from the organizer compensation for real damage incurred due to the cancellation of the game or the postponement of the game. Considering that the list of claims of game participants that are subject to judicial protection given in Article 1062 of the Civil Code of the Russian Federation is exhaustive, claims for compensation for actual damage incurred in connection with the cancellation of games or the postponement of their dates must be recognized as not subject to judicial protection.
3. Games and bets that do not give rise to obligations to pay winnings, but are subject to judicial protection. In this case, demands for the return of lost money, arising in the event of violence, the influence of deception, threats or malicious agreement of their representative with the organizer of games or bets, are also subject to judicial protection (Article 1062 of the Civil Code of the Russian Federation). The legal fact underlying the emergence of a claim for the return of lost money, in this case, is the recognition of the completed game or bet as an invalid transaction and the fulfillment by the losing party of a non-existent obligation.
Commentary on Chapter 58 1.
Before the entry into force of part two of the Civil Code of the Russian Federation, the conduct of games and bets in Russia was not regulated at the legislative level. Certain acts of the highest governing bodies concerned the streamlining of lottery activities only.
A number of decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation, adopted after the entry into force of part two of the Civil Code, were designed to strengthen the regulation of this new type of activity, aimed ultimately at generating profit, attracting additional funds necessary for the implementation of social programs. Thus, in the system of Russian law of obligations, a special legal institution based on the law has emerged - the conduct of games and bets. 2.
Among the legislative acts on the conduct of games and betting, the fundamental one is the Federal Law of November 11, 2003 N 138-FZ “On Lotteries”, which came into force on January 1, 2004 (Law of the Russian Federation, 2003, N 46 (Part I), Art. 4434) (hereinafter referred to as the Law on Lotteries). The Law on Lotteries reveals the basic legal concepts of gambling.
A lottery is a game that is played in accordance with a contract. In it, one party (the lottery organizer) draws the lottery prize fund, and the second (the lottery participant) receives the right to win if it is declared a winner according to the conditions of the lottery. The agreement between the organizer and the lottery participant is concluded on a voluntary basis and is formalized by issuing a lottery ticket, receipt or other document or in any other way provided for by the conditions of the lottery.
Other basic concepts in the Lotteries Law include winning, lottery prize fund, lottery prize fund draw, lottery ticket, lottery organizer, lottery organization, lottery operation, lottery operator, distributor lottery tickets, lottery participant, lottery bet (paid game combination). 3.
The articles that make up the Law on Lotteries can be divided into three groups. The introductory group of rules consists of those devoted to types of lotteries, goals and methods of regulating relations arising in the field of organizing and conducting lotteries, maintaining lottery registers, and permission to conduct lotteries.
The central group of rules is formed by the rules relating to the issuance of permission to conduct a lottery, notification of an incentive lottery, general conditions lottery and conditions of the incentive lottery, mandatory lottery standards, targeted deductions from the lottery, requirements for lottery tickets. This group also includes norms on the most common lotteries: the All-Russian state lottery, the regional state lottery, the municipal lottery, the organizer of which is an authorized local government body.
The final group of norms are rules aimed at ensuring the protection of the rights of lottery participants and monitoring the conduct of the lottery. It is possible for credit institutions to participate in lotteries (this, in particular, is the right of the lottery organizer or operator to engage credit institutions on a contractual basis to distribute lottery tickets). There are rules governing the audit of the lottery organizer and lottery operator, liability for violation of the Law on Lotteries. 4.
Depending on the organizer, lotteries are divided into state and non-state. Organizer state lottery is the Russian Federation or a subject of the Russian Federation. On behalf of the Russian Federation, the organizer of a state lottery held throughout the Federation can only be federal body executive power, authorized by the Government of the Russian Federation. On behalf of a constituent entity of the Russian Federation, the organizer of a state lottery held on the territory of one constituent entity of the Russian Federation can only be an authorized executive body of the constituent entity of the Russian Federation.
The organizer of a non-state lottery can be a municipal entity or a legal entity created in accordance with the legislation of the Russian Federation and located in the Russian Federation.
The lottery organizer conducts the lottery directly or through the lottery operator by concluding an agreement (contract) with him and is responsible to the lottery participants for violation of their obligations under the agreement.
Revenue from a lottery is money received from the distribution of lottery tickets for a specific lottery.
A lottery bet is a paid game combination. 5.
The types of lotteries held on the territory of the Russian Federation are determined depending on the method of its implementation. A lottery, depending on the method of forming its prize fund, is divided into a lottery, the right to participate in which is associated with the payment of a fee, through which the prize fund is formed; a lottery, the right to participate in which is not associated with paying a fee and the prize fund of which is formed at the expense of the lottery organizer (stimulating lottery).
Depending on the territory where it is held, the lottery is divided into international, all-Russian, regional and municipal.
The first of them is carried out on the territories of two or more states, including the territory of Russia, on the basis of an international treaty of the Russian Federation. The procedure for conducting such a lottery is determined in accordance with the requirements of the Law in question.
The All-Russian lottery is held throughout the Russian Federation.
A regional lottery is held on the territory of one constituent entity of the Russian Federation. The organization and conduct of lotteries in the territories of several constituent entities of the Russian Federation is carried out in the manner established by the Law on Lotteries for conducting All-Russian lottery. A municipal lottery can be held on the territory of one municipality.
Article 1062. Requirements related to the organization of games and bets and participation in them
Commentary on Article 1062
1. As can be seen from the title of the article, it does not contain any indication of the nature of the relations developing between the parties. Its text does not provide a legal definition of such relations, does not establish any rules of conduct for the participants, and at the same time provides for specific negative consequences - the law does not provide for judicial protection of interested parties.
At first glance, the article eliminates the contractual nature of these relations. This is expressed in the words: “The demands of citizens and legal entities... are not subject to judicial protection.” Such a formulation may indicate not only that non-contractual relations are meant, but also relations that are generally outside the scope of civil law regulation. 2.
However, judicial protection is provided to persons who took part in games or bets under the influence of unlawful actions of their organizers, as well as participants in games and bets that are conducted by the state and municipalities or with their permission (clause 5 of Article 1063 of the Civil Code). 3.
The unclear definition of betting and games in the Civil Code has led to the fact that court practice began to include settlement forward transactions for the sale of currency concluded by banks among them. Accordingly, the courts began to refuse legal protection to the claims arising from the non-fulfillment of such transactions (Bulletin of the Supreme Arbitration Court of the Russian Federation, 1999, No. 9, Art. 40).
According to the complaint of the commercial joint-stock bank "Bank Societe Generale Vostok" about the verification of the constitutionality of Art. 1062 of the Civil Code the issue was considered Constitutional Court RF. The court recognized itself as incompetent to resolve the dispute on the merits, but noted the need to establish in this area the prerequisites for an organized market for such contracts (Determination of the Constitutional Court of the Russian Federation of December 16, 2002 N 282-O (SZ RF, 2002, N 52 (Part II), Art. 5291)). This indicates the need for legislative changes in the area under consideration.