Все по закону: так ли страшен депозит?..

В связи со вступлением в силу с 1 января 2017 года изменений в Федеральный закон «Об основах туристской деятельности в Российской Федерации» (далее — закон, отраслевой закон) у турагентов постоянно возникают и вопросы и опасения по многим поводам. Так, большинство профессионалов турбизнеса обсуждают необходимость введения «депозитов»: будут они или нет, чем это хорошо или насколько плохо.


Постоянный эксперт TRN, адвокат, медиатор Димитрий Морозов комментирует актуальную тему и разъясняет нюансы возможных предстоящих изменений.

Д.М.: «Сначала хотелось бы внести некоторое уточнение. Тот инструмент, который в профессиональной туристической среде подразумевается под „депозитом“ с точки зрения гражданского законодательства таковым не является. Согласно статье 834 Гражданского кодекса РФ депозитом является договор банковского вклада, по которому банк, принявший поступившую от вкладчика или поступившую для него денежную сумму, обязуется возвратить сумму вклада и выплатить проценты на неё на условиях, предусмотренных договором.

Во взаимоотношениях между профессиональными участниками туристского рынка под депозитами понимается все-таки некий обеспечительный или авансовый платеж (далее — обеспечительный платеж).

Наверняка почти все участники рынка помнят, что практика введения обеспечительных платежей достаточно активно обсуждается, уже наверное, с 2012 года и частично была введена в обиход, как минимум одним туроператором.

Так что же изменится с 1 января 2017 года? Почему опять активно заговорили о необходимости обеспечительных платежей? А изменятся правила распределения ответственности между туроператором и турагентом.

Подавляющее большинство юристов считают, что с 1 января 2017 г. турагенты не смогут действовать от собственного имени и туроператоры должны будут выдать турагентам доверенность на совершение сделок и, вероятно, на получение денежных средств.

Затем, по каждой сделке, совершенной турагентом, обязанным лицом будет являться только туроператор. Это обстоятельство и беспокоит туроператоров. Предполагаю, что если кто-то из турагентов будет злоупотреблять своими правами, именно туроператорам придется нести ответственность. Но наряду с этим в законе (в редакции, которая будет актуальна с 1 января 2017 г.) устанавливается ответственность турагентов перед потребителями за перечисление денежных средств туроператору.

Вообще в отраслевом законе (в редакции с 1 января 2017 г.) присутствует достаточно много коллизий, наличие которых сводит многие рассуждения к предположениям. И без наличия правоприменительной практики и официальных разъяснений прогнозирование является достаточно сложной задачей.

Но можно сказать определенно, что введение обеспечительных платежей носит в большей степени не юридический, но экономический характер. Ведь туроператор таким образом получит дополнительные финансовые средства. И нет гарантий, что данные средства будут возвращены, если хозяйственная деятельность туроператора будет приостановлена. А с юридической точки зрения установление обеспечительного платежа вовсе не является обязательным.

Также можно отметить, что в профессиональной среде юристов в сфере туризма обсуждался и вопрос выдачи разовых доверенностей. Их предполагается выдавать вместе с подтверждением бронирования на конкретный тур. И в таком случае обеспечительный платеж, получается, не нужен или он будет минимальным.

Резюмируя, можно сказать, что варианты работы без введения обеспечительных платежей существуют, и они активно обсуждаются. Но станут ли туроператоры использовать одну или несколько моделей работы, как мне видится, будет зависеть от ситуации на рынке, но точно это покажет только время».

Источник: trn-news.ru

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