Decision No. 2-3633/2013 2-19-14 2-19/2014(2-3633/2013;) 2-19/2014 dated February 26, 2014

SOLUTION

IN THE NAME OF THE RUSSIAN FEDERATION

02/26/2014 Orenburg

Central District Court of Orenburg, consisting of:

Presiding judge Goncharova E.G.

Under secretary Kulneva L.V.

With the participation of assistant prosecutor Popova E.A., representative of the defendant Ivantsova E.S., acting on the basis of a power of attorney, representative of the interested party - PFR Osokina A.N., acting on the basis of a power of attorney,

Having considered in open court a civil case at the request of the prosecutor of the Central district of Orenburg in the interests of Russian Federation represented by the Department Pension Fund Russian Federation ( government agency) and Galda Yu.V. to the non-state pension fund "RGS" on recognizing the contract on compulsory pension insurance as invalid, applying the consequences of the invalidity of a void transaction,

INSTALLED:

The prosecutor of the Central District of Orenburg filed the above claim in court, indicating that as a result of an inspection carried out on the basis of the appeal of Galda Yu.V. It was established that, on the basis of the agreement on compulsory pension insurance, the pension savings of Galda Yu.V. transferred to NPF "RGS". Believing the transfer of pension savings Galda Yu.V. from the state to the non-state pension fund is illegal, since the latter did not submit an application for the transfer of pension savings, did not enter into an agreement with the NPF "RGS", asked to apply the consequences of the nullity of the agreement on compulsory pension insurance between the non-state pension fund "RGS" and Galda Yu.V. from DD.MM.YYYY, namely: to oblige NPF “RGS” to terminate the said agreement and transfer the pension savings funds to Galda Yu.V. to the Pension Fund of the Russian Federation.

Subsequently, the prosecutor repeatedly clarified the claims and finally asked to recognize the agreement on compulsory pension insurance between the non-state pension fund "RGS" and Galda Yu.V. from DD.MM.YYYY invalid (void), apply the consequences of the invalidity of the transaction, obliging NPF "RGS" to transfer to the Pension Fund of the Russian Federation, accrued based on the results of previous financial years and the first of the new financial year until the moment of transfer, investment income and pension savings received by the fund, reflected on a pension account in the name of Galda Yu.V.

Assistant Prosecutor E.A. Popova at the court hearing, she supported the claims in full, asked to satisfy the claims on the grounds set out in the amended statement of claim, indicating that, against the will of the insured, his pension savings were illegally transferred to the defendant, about which Galda Yu.V. was not notified in a timely manner.

Representative of the defendant Ivantsova E.S. At the court hearing, she objected to the satisfaction of the claims. She explained to the court that Galda Yu.V. was notified of the transfer of pension savings from the Pension Fund of the Russian Federation to NPF "RGS" in a timely manner, but did not submit an application or demands. In addition, she asked to take into account that the plaintiff is inappropriate and asked to dismiss the claim on these grounds.

Representative of the interested party of the Office of the Pension Fund of the Russian Federation (state institution) Osokina A.N. at the court hearing, she did not object to the satisfaction of the claims, she asked to satisfy the claims in full, indicating that upon receipt of the application and agreement presented in the case materials, they transferred the savings to the defendant, they do not carry out the authority to verify the authenticity of the submitted documents due to the lack of powers.

Having heard the opinions of the parties, examined the case materials, and assessed the evidence presented, the court comes to the following conclusion.

According to Part 4 of Art. 36.4 of the Federal Law “On Compulsory Pension Insurance in the Russian Federation”, when concluding an agreement on compulsory pension insurance in the event that the insured person exercises the right to refuse the formation of the funded part of the labor pension through the Pension Fund of the Russian Federation and the right to choose a fund for the formation of the funded part of the labor pension, must be respected the following order:

An application for transfer to the fund is sent by the insured person to the Pension Fund of the Russian Federation in the manner established by Article 36.7 of this Federal Law;

The Pension Fund of the Russian Federation makes appropriate changes to the unified register of insured persons before March 1 of the year following the year in which the insured person filed an application to transfer to the fund, provided that the fund notified the Pension Fund of the Russian Federation about the newly concluded mandatory agreement with the insured person. pension insurance in the manner established by paragraph two of Article 36.2 of this Federal Law, an agreement on compulsory pension insurance has been concluded by the appropriate parties and the application of the insured person to transfer to the fund, submitted to the Pension Fund of the Russian Federation in the manner established by Article 36.7 of this Federal Law, has been satisfied;

In accordance with Art. 32 Federal Law “On Compulsory Pension Insurance in the Russian Federation” the insured person ( individual) has the right, in the manner established by Federal Law, to refuse to receive the funded part of the labor pension from the Pension Fund of the Russian Federation and to transfer his savings, recorded in the special part of the individual personal account, to a non-state pension fund, starting from January 1, 2004.

According to Part 5 of Art. 36.4 Federal Law “On Amendments and Additions to the Federal Law “On Non-State Pension Funds”, when concluding an agreement on compulsory pension insurance by an insured person exercising the right to transfer from one fund to another, the following procedure must be observed:

The contract on compulsory pension insurance is concluded in simple written form;

Notification of the conclusion of an agreement on compulsory pension insurance is sent by the insured person to the Pension Fund of the Russian Federation to make changes to the unified register of insured persons no earlier than July 1 and no later than October 1 of the current year;

If an agreement on compulsory pension insurance is concluded by the proper parties and (or) concluded in violation of the legislation of the Russian Federation, changes are not made to the unified register of insured persons.

DECIDED:

Claims of the prosecutor of the Central District of Orenburg in the interests of the Russian Federation represented by the Office of the Pension Fund of the Russian Federation (state institution) and Gald Yu.V. to the non-state pension fund "RGS" to recognize the contract on compulsory pension insurance as invalid, to satisfy the consequences of the invalidity of a void transaction.

Recognize the agreement on compulsory pension insurance No. dated DD.MM.YYYY between the non-state pension fund "RGS" and Galda Yu.V. invalid, apply the consequences of invalidity of a void transaction.

To oblige the non-state pension fund "RGS" to transfer to the Pension Fund of the Russian Federation the investment income accrued based on the results of previous financial years and from the beginning of the new financial year until the moment of transfer and the pension savings received by the non-state pension fund "RGS", reflected in the pension account in the name of Galda Yu. IN..

To recover from the non-state pension fund "RGS" to the state income the costs associated with conducting a forensic examination in the amount of.

The decision can be appealed to the Orenburg Regional Court through the Central District Court of Orenburg within a month from the date the decision was made in final form by filing an appeal.

Judge Goncharova E.G.

The reasoned decision was made on 03/03/2014.

Court:

Plaintiffs:

Defendants:

Judges of the case:

Judicial practice on:

Judicial practice on the application of Art. 454, 168, 170, 177, 179 Civil Code of the Russian Federation

Judicial practice on the application of Art. 167 Civil Code of the Russian Federation

Facts of the case.
A situation from which no one is immune: you received a notification from a non-state pension fund that it has taken control of the funded part of the pension and until that moment you did not even suspect the existence of this fund.

One of my clients found himself in this situation.

To begin with, of course, they sent a claim to this pension fund with a notification that he did not sign anything and if the money is not returned to the Pension Fund, there will be a trial.

The only reaction was a call in which a representative of the fund clarified some details and no settlement proposals were received at that time.

Our legal position.

They went to court with quite interesting demands (I even find it difficult to imagine how they would fulfill it).

Along with the usual demand that the transaction be declared invalid (he did not sign the agreement with the fund), the following demands were also stated:

1) Recognition of actions related to the processing of personal data as illegal

In accordance with Art. 17 of the Federal Law “On Personal Data”, the subject of personal data has the right to appeal against the actions or inaction of the operator in court, including against illegal processing of personal data.

2) Illegal inaction of the defendant in the form of failure to provide the plaintiff with the information provided for in paragraph 3 of Art. 18 of the Federal Law “On Personal Data”

In accordance with paragraph 3 of Art. 18 of the Federal Law “On Personal Data”, in cases where personal data was not received from the subject of personal data, except in cases where personal data was provided to the operator on the basis of federal law or if personal data is publicly available, Before processing such personal data, the operator is obliged to provide the personal data subject with the following information:

1) name (last name, first name, patronymic) and address of the operator or his representative;

2) the purpose of processing personal data and its legal basis;

3) intended users of personal data;

4) the rights of the subject of personal data established by this Federal Law.

3) Compensation for moral damages for illegal processing of personal data.

In accordance with Art. 17 Federal Law “On Personal Data” dated July 27, 2006 N 152-FZ if the subject of personal data believes that the operator is processing his personal data in violation of the requirements of this Federal Law or otherwise violates his rights and freedoms, the subject of personal data has the right to appeal the actions or inaction of the operator in court.

The subject of personal data has the right to protect his rights and legitimate interests, including compensation for losses and (or) compensation for moral damage in court.

4) Judicial penalties in geometric progression.

In accordance with clause 1. Protection of the rights of the creditor under the obligation

1. If the debtor fails to fulfill an obligation, the creditor has the right to demand in court that the obligation be fulfilled in kind, unless otherwise provided by this Code, other laws or an agreement or follows from the essence of the obligation. The court, at the request of the creditor, has the right to award a sum of money in his favor (clause 1 of Article 330) in the event of non-execution of the said judicial act in an amount determined by the court on the basis of the principles of fairness, proportionality and the inadmissibility of profiting from illegal or dishonest behavior (clause 4 of Article 1).

I already had positive judicial practice regarding the illegal processing of personal data, recovery of moral damages for processing and collection of legal penalties in geometric progression, but there these claims were considered in different cases.

In this case, I was interested in trying new combined methods of protecting civil rights.

Result.

After a couple of days of filing the claim, the defendant got in touch and learned that we had gone to court and asked to look at the statement of claim. The amount of compensation that satisfied my client was paid within 24 hours.

The court has not yet even reached the deadline for accepting this claim.

The court did not accept the claim for proceedings, sending us to the place of registration of the defendant.

Although in this case, by virtue of clause 6, claims for the restoration of pension rights can also be brought to the court at the plaintiff’s place of residence and by virtue of clause 6.1, claims for the protection of the rights of the subject of personal data may also be presented to the court at the plaintiff’s place of residence.

IN Lately The situation with transfers of pension savings of Russians between non-state pension funds without their knowledge has worsened. In 2017, 2.6 thousand people complained to the Central Bank about this.

This situation is associated with the ongoing “moratorium” on accumulation. Non-state pension funds cannot attract “fresh” funds, so some of them are trying to use illegal methods to replenish their client base at the expense of people who have savings in other non-state pension funds.

Citizens will learn about the transfer from a notice from the old fund about the early termination of the contract or from a letter from the new fund confirming receipt of money. A person who is presented with a fait accompli on such an important issue naturally feels deceived. Moreover, the matter is not only in the moral side of the issue: when transferring funds, investment income is lost. You can change NPF without loss only once every 5 years. In case of early transfer, the calculation is made “at par”, the interest accrued over the past years remains in the old fund.

How to act in such cases?

According to Advisor to the President of the NAPF Valery Vinogradov, first you need to send a request to the NPPF so that they provide certified copies of the agreement and application for the transfer of pension savings. These documents will help clarify the situation; from them it will be possible to determine where the transfer order came from and who signed it. If there is a fake signature on the application, you can safely defend your rights, including in court.

Sometimes the problem is resolved at the pre-trial stage. NPF managers do not like scandals; if they see that the client is acting competently, they usually agree to return the money and compensate for losses from the loss of investment income.

When you can't reach an agreement, you have to go to court. Samples of claims to invalidate contracts are posted on www.napf.ru and all-pf.com. By law, a fund can be held liable for the actions of its agents. That's just the application of Art. 15.29 of the Code of Administrative Offenses is complicated by the need to prove the fact of forgery of the signature on the application.

Central Bank comment

If it turns out that the agreement on the transfer of funds was concluded behind the back of the victim or he signed the document under the influence of false information, then it is quite possible to avoid material damage. Much depends on how long ago all this was formalized:

1. If the agreements with the old and new funds were executed within the same year, it is necessary to write to the new NPF a request to invalidate the agreement. You also need to contact the Pension Fund of the Russian Federation before December 31 with an application to change the insurer.

2. If the existence of a new agreement is discovered after a year, it will be more difficult to resolve the situation. The contract will become invalid only after a corresponding court decision. When this issue is successfully resolved, you must contact the Pension Fund with a request to return the savings to the previous fund.

Situations when a citizen understands that he was transferred to a new NPF without consent, based on a “false” application, occur quite often. Citizens' savings are transferred to other organizations with less interest rate or bad reviews.

Most often, people learn about such a translation by accident. And the question immediately arises: what to do if the money was transferred to the NPF fraudulently? More on this later.

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The process of transferring the funded part of the pension

A transfer to a non-state pension fund without the client’s consent is a violation of the law, because according to the latest reforms, citizens have the opportunity to manage pension savings on their own, and not under pressure from third parties.

One of the options for such management is the transfer of funds to the Non-State Pension Fund, which became especially important in 2014, when the Pension Fund of Russia officially stopped the formation of savings. Now the money is automatically sent to the insurance part of the pension.

The advantage of pension savings over insurance contributions is that this money will become an addition to the pension, which is what most citizens are interested in. This is why it became possible to deposit additional funds into your account in order to increase your income in the future.

The convenience of such a pension reform lies in the fact that NPFs transfer all savings by inheritance. That is, in the event of a sudden death of the insurer, the funds will go to his relatives and will not disappear.

There are no mandatory requirements for transferring funds to NPFs in the legislation. Thanks to this, citizens have the opportunity to take advantage of a number of benefits:

1. The opportunity to significantly increase your pension savings in comparison with the conditions offered by the state pension fund.
2. Account holders can independently track the movement of their funds, for example, through special online services.
3. The conclusion of an agreement for the transfer of funds is carried out only once; there is no need to re-issue documents every year.
4. All cash funds stored in NPF accounts are insured. If the company goes bankrupt, all money will be returned to the owners.
5. If for some reason the applicant is not satisfied with the fund, he has the right to renew the contract at any time.

When is it possible to transfer a pension without notifying the owner?

After the adoption of a legislative act on the mandatory transfer of part of the pension from the state fund, NPFs became more active and began to act aggressively. For example, most of these firms hire agents to represent their interests and “sell” a new contract to the hapless client.

Most often, scammers act this way: the agent rings the doorbell of the apartment and asks the tenant to show it.

In this case, the following arguments are used:

1. Preparation of various documents, without filling out which the percentage of growth of the funded part may decrease, or such interest will not be accrued.
2. Conducting a population census to draw up inserts that will contain information about valid SNILS.

There are rarely cases when a person is simply asked to sign a form about transferring to another fund.

Despite the fact that the Pension Fund of Russia has repeatedly made statements that its employees do not go door to door, there are citizens who fall for the bait of such scammers.

Another way in which a transfer to a non-state pension fund is carried out without the client’s consent is through paperwork at a recruitment agency. Often, along with a contract for the provision of services, a person is given an application to transfer pension savings to a non-state pension fund.

How to solve the problem of transferring funds to a non-state pension fund

What to do if there is a transfer to a non-state pension fund without consent?

There are 5 ways you can solve this problem:

1. First of all, you need to go to the nearest office of the state Pension Fund and write a statement about the illegal transfer of funds to the NPF. During the calendar month, the department in each region collects such notifications, after which it sends them to the central Pension Fund to resolve the conflict.
2. The second option is to send a written complaint to the organization where the funds were illegally transferred. The claim reflects the client’s disagreement with the transfer of savings and the loss of income from investing this part of the pension.
   In this case, the citizen has the right to demand the provision of certified copies of documents on the basis of which his pension savings were transferred to the new organization.
3. The next way is to file a complaint about the actions of the fund with the Central Bank, which regulates and controls the activities of such organizations in the field of compulsory pension insurance.
4. Another popular way is to go to court. If the applicant manages to prove that his funds were transferred to the NPF without his knowledge and consent, then the contract will be declared invalid, and all accumulated funds will be sent again to the previous insurance company. The transfer is carried out within 30 days from the date the court decision enters into force.
5. The best option is to submit an application to transfer your savings to the previous fund. This must be done before the end of this year.

Responsibility for illegal translation

Wrongful transfer to a non-state pension fund without consent has become so big problem that a bill has been passed providing for liability for such actions.

According to the provisions of this act, violators are held accountable in the form of a fine, the amount of which depends on who the culprit is:

1. The organization is subject to a fine of 700,000 rubles.
2. For an official, the fine is 30,000 rubles.
3. For a repeated offense committed by an official, the penalty is increased to 50,000 rubles. or removal from office for a period of up to 2 years.

According to the requirements of Russian legislation, if an organization provides false information about the insurer to the state Pension Fund, which is why an unlawful transfer of funds to a non-state pension fund occurs, this legal entity is subject to a restriction on concluding new insurance contracts.

The Pension Fund itself should make such a proposal; there is no point in the victim making a similar request to law enforcement agencies, since this is not within their competence, because in the fraudulent actions of a non-governmental organization there are no signs of a crime provided for by the Criminal Code of the Russian Federation.

Deception cannot be a basis for bringing the perpetrator to criminal liability, since there is no real damage to the applicant’s finances. After all, no one appropriates funds; in practice, only the transfer of the right to preserve them occurs.

How to avoid falling for scammers

There are several ways in which a person can preserve his rights and savings.

1. First of all, you should not show your documents to anyone. Representatives of state insurance companies do not go door to door and do not offer their services, and large non-state pension funds also do not need such intrusive and illegal advertising of their services.
2. You cannot sign contracts with unfamiliar company representatives.
3. If a person is concerned about the safety of his pension savings, he can contact the Pension Fund to write an application to keep all contributions unchanged for the next year.
   If there is such a request from the insurer, the funds cannot be transferred, even if a new application for such a desire is submitted.

If a person nevertheless signed such a statement, and his funds were transferred to the account of a Non-State Pension Fund, it is necessary to take all measures as soon as possible to correct this error.

Let us remind you that it is possible to transfer savings without loss more often than once every 5 years, otherwise the future pensioner will suffer damage in the form of loss of investment income. In 2019-2020, transferring pension savings without loss is beneficial only for those citizens who last wrote an application to choose an insurer in 2014, and this application was considered positively by the Pension Fund. In all other cases, the transfer threatens the loss of investment income for at least the current year.

In 2019-2020, the transfer of savings to NPFs can only be carried out by personally contacting the Pension Fund office or through the State Services portal. Now neither state funds nor Multifunctional Centers accept such applications.

Dear readers!

We describe typical methods solutions to legal issues, but each case is unique and requires individual legal assistance.

What to do if your pension savings were illegally transferred to a non-state pension fund: advice from the Pension Fund of the Russian Federation

Citizens complain that they did not write applications to transfer to the NPF and did not enter into agreements with it. It is quite fair that people consider themselves deceived and demand the return of pension savings to the Pension Fund.

Thus, in the Mordovian Pension Fund, 125 such appeals were registered, and 5 complaints about the illegal “withholding” of pension savings in NPFs, 7 complaints from residents of the republic about the loss of investment income. In addition, we receive many telephone calls and oral complaints from citizens about violations of their rights.

What to do if a similar situation happens to a person? The Pension Fund gave 5 pieces of advice.

Firstly, you must contact the Pension Fund Office at your place of residence or place of actual stay with a statement about the unlawful transfer of pension savings to a non-state pension fund. The PFR branch collects such information every month and sends it to the Russian Pension Fund and NPF to resolve the current situation.

Secondly, send a claim to the NPF about the unlawful transfer of pension savings and loss of investment income. A person has the right to demand that a NPF provide certified copies of documents (application and agreement on compulsory pension insurance), on the basis of which savings were transferred to this NPF.

Third, you can file a complaint about unlawful NPF actions in the Central Bank, which regulates and controls the activities of non-state pension funds in the field of non-state pension provision and compulsory pension

Fourth, protect your rights to form a funded pension by going to court. If the fact of an unlawful transfer is proven, the contract on compulsory pension insurance may be declared invalid by the court. If the court makes such a decision, the pension savings will be returned to the previous insurer (PFR or NPF) within 30 days from the date of the court decision.

Fifthly, a person can simply submit an application to transfer pension savings to the previous insurer before December 31 of the current year, i.e. return his pension savings to where they were illegally transferred from.