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Civil-law maintenance of consumer interest The citizen who is the debtor in the contractual obligation

In jurisprudence of concept "right protection", "legal regulation", «legal maintenance» and «legal means» are closely interconnected. Thus, as marks E.B.Lauts, legal maintenance is understood by the majority of researchers as most the general concept.

It is necessary to notice, that the purpose of the present research is not consideration of all aspects and a parity of the specified concepts. However in the light of specificity of the declared subjects it is expedient to stop on a position stated by A.B.Olshanetsky.

The scientist suggested to understand «legal maintenance» a little bit more widely, than "legal regulation". In its opinion, rules of law can operate in two directions: or to promote search, acceptance and realisation of optimum decisions, or, on the contrary, to interfere with these processes. In the second case legal maintenance is absent, as operating legal regulation does not guarantee achievement of the purposes [208 [209]. Such approach most precisely reflects requirement of a modern society not so much in an establishment of rules of the behaviour regulating public relations, how many in their effective influence on participants of the civil circulation for achievement of necessary result - realisations of their protected interests.

Interests of subjects of a property turn in the course of their realisation find the certain form depending on the selected way

Satisfactions of requirements. In this sense the obligations

The legal relation, having the maintenance, as a matter of fact, «the right to another's action», at the same time expresses some objective interests: interest of a bound party and interest of the authorised party. Each of them can have different degree of a recognition a society and protection by the state which depending on the importance of concrete objective interest for a society proves in an establishment of the special rules providing priority realisation of the most important interest. Thereupon obvious feature of legal maintenance of interests of the citizens who are debtors in obligations relations, the establishment of a priority of their protected interests before interests of other participants is.

The specified circumstance in the literature connect with necessity of maintenance and protection of interests of "weakness" for the obligation [210]. The given problem is actual today not only for jurisprudence, it also has also practical value. Acknowledgement of it is considerable number of the various interpretation given by the higher degrees of jurisdiction on the given question among which it is necessary to note item 9 of the Decision of Plenum of the Supreme Arbitration Court of the Russian Federation from 14.03.2014 № 16 «About freedom of the contract and its limits», item 5 of the Review of judiciary practice on the civil cases connected with the resolution of disputes about execution of credit obligations, the Supreme Court of the Russian Federation approved by Presidium from 22.05.2013, Definition of the Supreme Court of the Russian Federation from 23.12.2014 № 80-KG14-9, etc. Courts below at the permission of disputable situations often also come to conclusion about necessity of protection of interest more weakness in concrete legal relation [211]. Thus, despite the frequent reference vessels to the given problematics, in pravoprimenitelnoj to practice there is no unity, perhaps, on the main question: what participant of the obligation should admit weakness - the debtor or the creditor? There is no unanimity on the given question and in the doctrine.

As often enough weakness in the obligation is called the creditor. So, according to S.A.Hohlova, «if to speak about weakness in obligations that really are the creditor, the victim and other persons who have lost that is necessary to them under the law». R.S.Bevzenko considers, that «legal weakness of position of the creditor is connected by that it (unlike the owner of the limited real right) does not have possibility to satisfy the requirements by direct influence on property of the debtor» [212 [213] [214]. According to B.D.Zavidova, the present legislator, adhering to traditions of Russian civil jurisprudence and in a counterbalance to the Soviet civil law, starts with that idea, that weakness in obligations is the creditor, instead of the debtor. For this reason GK the Russian Federation establishes a presumption in favour of inadmissibility of execution of the obligation in parts which is directed on

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Protection of interests of the creditor.

However there is also other position. So, E.V.Vavilin believes, that «... From two parties in the obligations relation (the debtor and the creditor), most likely, the debtor concerns the weak subject, as it is charged by necessity to make certain actions (or to abstain from fulfilment of actions) in favour of other party» [215 [216] [217]. According to the scientist, «owing to the certain reasons of subjective or objective character the debtor bears risk of impossibility of execution of a duty laying on it, and at adverse succession of events, proceeding from conscientiousness of business management by the debtor, on the given subject of civil matter

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Civil responsibility »is assigned.

There is also other approach. For example, S.A.Sinitsyn considers, that the concept of weakness is not settled by individual characteristics of the subject of civil law (a sex, age, legal illiteracy, a social accessory, property well-being) though so try to present the characteristic of the person of weakness in the contract in the legal literature more often. In its opinion, revealing of weakness of the contract demands the complex analysis of a legal status of the parties with reference to each concrete obligation, estimations of a measure of influence-compulsion which one of contracting parties on another in each separate can render

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Case.

It is difficult to agree with last opinion to the full as practical introduction of so individualised approach with inevitability will lead to uniformity infringement in pravoprimenenii, in particular, when opposite subjects will admit the same relations weakness. At the same time other aspect of a position of the author - that the in itself role of the party of the obligation (the debtor or the creditor) cannot testify exclusively about its weakness or force in legal relation, - is worthy supports and recognitions.

Thereupon E.V.Vavilina's supposing possibility of allocation third opinion (besides the debtor or the creditor) values of weakness in civil matter when as weakness in the contractual obligation the participant possessing initially smaller resource, economic base acts, status possibilities in relation to the counterpart [218] is true. In this case in action the civil-law mechanisms levelling possible negative consequences of such discrepancy are resulted.

However it is necessary to notice, that the economic superiority can be expressed not only in distinctions of property base of subjects. As fairly notices J.G.Leskova, often credit organisations actually force to join the offered conditions, knowing, what even at a reference to the court it will be difficult to borrower (guarantor) to prove the fact of absence at it to possibility of influence on the maintenance of the contract [219]. Thus, the inequality of subjects of relations also is shown available at one of the parties of advantages of organizational property caused by overweight in trunk-call possibilities, a product demand and so forth

It is important to understand, that depending on concrete circumstances probably recognition of the debtor weakness of the obligation irrespective of subject structure of such relations. Proceeding from listed above criteria, the commercial organisation can be recognised "weak both the citizen, and. In this sense the citizen who is the debtor in the obligation only owing to the status of the debtor cannot be recognised by weakness.

Another matter when the citizen in the obligation represents itself as the party getting the goods, works, services for satisfaction of personal needs (consumer relations). In this case without dependence from actual facts the citizen is allocated with the additional possibilities providing satisfaction of its interest.

However it is obvious, that feature of legal regulation of the specified relations is caused by not so much weakness of a position of the citizen, how many presence in their basis of diverse objective interests.

As it is truly marked in the literature, consumer relations arise concerning maintenance raznonapravlennyh interests of their participants. On the one hand, the seller (the manufacturer, the manufacturer of the goods or the person rendering service or performing work) enters similar relations for profit extraction (reception of the income of product realisation). On the other hand, the citizen getting the corresponding goods, work or service, has intention to satisfy personal, family and other requirements.

D.G.Batishchev fairly notices, that «the main reason

Discrepancy of interests of the manufacturer and the consumer follows from their economic isolation, and also raznonapravlennosti material requirements laying in its basis ».

Really, the differentiation of objective interests of participants of consumer relations, an establishment of hierarchy and fastening of a priority one over others allow to delimit consumer relations from others and to explain their specific nature.

The circle of the consumer relations which are a subject of regulation by the civil legislation, is extensive. As a rule, similar relations arise concerning acquisition by citizens of consumer goods, results of works or services with a view of satisfaction of personal, house, family and other needs. Thus a key discriminating sign of the specified relations is their specific subject structure: on the one hand, as the participant of the given relations "consumer", from [220 [221] other parties - the person, the businessman (carrying out economic activities on a professional basis) always acts.

The operating civil legislation uses the term "consumer" in various values. The mention of the consumer meets in many articles GK the Russian Federation, however only in some the maintenance of the given concept reveals.

One of the values reflected in the legislation, is found out in item 426 GK the Russian Federation devoted to concept of the public contract. In it the legislator, fixing a duty of the person who are carrying out enterprise or other activity bringing in the income to conclude the contract with any addressed, names the approximate list of such agreements: retail trade, a telecommunication service, transportation by common use transport, power supply, hotel, health services etc. Thus the law orders to establish the price of any public contract of a corresponding category identical to consumers. In value of the given norm the consumer is any person who has addressed for making contract with whom making contract for the professional participant of economic circulation is obligatory. For example, according to the item 539 GK the Russian Federation such consumer will be the person who has addressed in energosnabzhajushchuju the organisation with the demand for delivery of the electric power through the attached network.

Feature of the given approach is that the consumer, besides the citizen, can admit and the legal body, whether and irrespective of the organisation receives energy for realisation of enterprise activity or not.

In similar value the consumer is understood and in paragraph 25 of item 4 of the Federal act from 26.07.2006 № 135-FZ «About competition protection» and defined as legal or the physical person getting the goods, and also in item 1252 GK [222]

The Russian Federation, forbidding use of means of the individualization, capable to mislead consumers concerning properties of the goods, work, service.

Through the maintenance of the named norms it is impossible to reveal correctly specific lines of such subject, as the consumer as they are aimed first of all at bar of claim by lapse of time of refusal of the commercial organisations from the conclusion of certain kinds of contractual agreements or on competition maintenance in the corresponding commodity market.

Other approach to use of the term "consumer" is reflected in item 429, 626, 730 GK the Russian Federation (the contract of retail purchase and sale, hire, household podrjada). In them this term is used in value of the Law on protection of the rights of consumers from which in the literature allocate three key signs of the given concept:

1) the consumer is the citizen - the participant of civil-law relations;

2) the consumer satisfies exclusively personal, family, house and other needs which have been not connected with realisation of enterprise activity;

3) the consumer enters relations with intention to order, get or use the goods, works or services.

This value rather obosnovanno has received the widest illumination in the legal literature and pravoprimenitelnoj to practice. Besides, presented approach allows to designate the objective interest having priority protection, namely satisfaction of property requirements of citizens, i.e. Use of the goods, works, services in such a way at which their cost is not shifted on the newly founded economic objects arriving in a turn (the concept of final consumption) [223 [224] [225].

It is necessary to notice, that the fundamentals of legislation, regulating the specified relations, constitutes the Law on protection of the rights of the consumers, accepted in maintenance of the common right of the consumer on goods acquisition (result of work, service) appropriate quality, safe for its health, a life, and also property, on the full information on the goods (results of work, service), its manufacturer (the executor, the seller) and, of course, rights of defence the state of interest of the consumer in case of its infringement.

Besides the specified law of the norm, realisations concerning separate aspects and protection of interests of consumers, contain and in others normativnopravovyh certificates, including in GK the Russian Federation, in federal acts «About advertising","About

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Mail service "," About bases of health protection of citizens in the Russian Federation », etc. Thus positions of other laws concerning protection of the rights of consumers should not contradict rules of the Law on protection of the rights of consumers.

According to M.A.Bychko, a consumer legislation main objective - protection of weakness against wrongful acts of its counterparts [226 [227] [228] [229] [230] [231]. In turn, «realisation of the given problem demands formal deviation from one of main principles of the civil legislation - equalities of participants of civil-law relations (item 1 GK the Russian Federation)». Actually, giving to weakness the additional rights and, accordingly, assigning to its counterpart under the contract additional duties, GK the Russian Federation and other laws thereby provide in practice equality

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Participants of such contractual relations.

However the analysis of positions of the consumer legislation allows to conclude, that norms of the named laws provide realisation of "consumer interest» citizens, as a rule, acting on the party of the creditor in the obligation. Thus in the Law on protection of the rights of consumers of very few attention it is given to problems of realisation of interest of the citizen at execution of the duties by it under the contract.

Nevertheless, in the Law on protection of the rights of consumers it is possible to find out some rules, applicable for maintenance of interest of the citizen - of the debtor.

The first attracts attention the general interdiction for inclusion in the contract of the conditions, capable to belittle legitimate interests of consumers which is fixed in item 16 of the Law on protection of the rights of consumers. Similar conditions of contracts with participation of consumers are considered as the void. In particular, on this basis courts recognise as void conditions about payment of a commission for opening and conducting the loan account as striking statutory rights of consumers. The named conditions are qualified as insignificant. Thus, besides restitutsionnyh consequences of invalidity of considered transactions, owing to item 1 of item 16 of the Law on protection of the rights of consumers from the counterpart in favour of the consumer the damages suffered by the citizen at execution by it of the contract can be claimed.

The positions of contracts causing reception by the citizen of one blessings depending on acquisition of other goods, works, services (item 2 of item 16 of the Law on protection of the rights of consumers) admit void also. Such the conditions connecting the right to reception by the borrower of the credit with necessity of obligatory acquisition of other service - life insurance and health of the borrower, for example, are considered. Besides, the counterpart has not the right to perform on the contract without the consumer written approval additional works or to render services for a payment. The consumer has the right to refuse payment such [232 [233] works (services) and if they are paid - to demand from the seller (executor) of return of the paid sum (item 3).

And still the special rules directed exclusively on realisation of interest of the consumer as a bound party of contractual relations, the Law on protection of the rights of consumers practically does not contain. It is possible to explain it to that (i.e. regulated by the consumer legislation) where the citizen represents itself as the party on which primary execution lays, not too it is a lot of actually "consumer" obligations. Basically they are connected with return by the citizen of the received extra means or acquisition of the goods by it, works, services on credit or with a payment delay.

In this area some regulatory legal acts fixing a special legal status of the consumer-debtor among which first of all it is necessary to name the Federal act from 21.12.2013 № 353-FZ «About the consumer credit (loan)» which regulates the relations arising in connection with granting of consumer credits and loans to physical persons with a view of, not connected with realisation of enterprise activity [234] are accepted.

The specified Law contains the special rules directed on realisation of interest of the consumer-debtor. It has cardinally changed the approach to a regulation of mutual relations between creditors and borrowers, having established new mechanisms of protection of citizens-consumers, essentially having limited freedom of the discretion of the parties at the conclusion of credit contracts. First of all it was expressed in an establishment of the marginal cost of consumer credits (loans); in fastening of impossibility of change of the interest rate provided by the contract, towards its increase; in fastening of information duties to the creditor; in an establishment of sequence of repayment of requirements; in definition of rules of interaction between the creditor and the borrower within the limits of execution of a contract.

Fixing restrictions of the size of the marginal cost of the consumer credit (loan), the Law provides, that the price of the credit (loan) all payments of the borrower cannot exceed more than on one third calculated by Bank of Russia srednerynochnoe value of full cost of the consumer credit (loan), applied in corresponding calendar quarter. Thus the specified value is defined by Bank of Russia as average not less than on hundred largest creditors or on one third of total of the creditors giving the corresponding category of the consumer credit. Besides, the law limits the size of the penalty (the penalty, peni) for default or inadequate execution by the borrower of obligations on return of the credit and-or payment of percent. The size of the penalty cannot exceed 20 % annual if for not returned sum the percent provided by the contract are charged, or 0,1 % of the delayed debts a day if during infringement conventional interests are not charged (ch. 21 items 5).

In protection of interest of the debtor by the Law on the consumer credit (loan) unilateral change of conditions of the concluded contract of the consumer credit only in favour of the borrower is supposed. So, according to item 16 of item 5 the creditor has the right to reduce unilaterally the constant interest rate, to reduce or cancel a payment for rendering of the services provided by individual treaty provisions of the consumer credit (loan), to reduce the size of the penalty (the penalty, peni) or to cancel it in full or in part to establish the period during which it is not levied, or to make decision on refusal to levy the penalty (the penalty, penju) and also to change general terms of the contract of the consumer credit (loan) provided that it will not entail occurrence new or increases in the size of existing liabilities of the borrower under the contract of the consumer credit (loan). Thus the creditor in an order established by the contract of the consumer credit (loan), is obliged to direct to the borrower the notice on change of treaty provisions of the consumer credit (loan), and change of the size of forthcoming payments - also the information on forthcoming payments, and to provide access to the information on change of treaty provisions of the consumer credit (loan). The creditor has the right to change general terms of the contract of a consumer loan in the event that it will not entail occurrence new or increases in existing liabilities of the borrower on what it should notify the borrower.

Information duties of the creditor are expressed, in particular, in necessity of the message to the borrower of general terms of the credit (loan). The given conditions (regulate an extending credit order (a loan), the basic rights and duties of the parties, a procedure of payments, etc.) are established by the creditor unilaterally and are calculated on repeated application. The borrower can join only them, therefore concerning the named conditions rules about the contract of adhesion operate. The law (item 5 item 4) establishes the requirement about obligatory placing by the creditor in places of rendering of services of the information on conditions of granting, use and return of the consumer credit (loan), including about terms during which the borrower has the right to refuse reception of the consumer credit (loan).

Individual treaty provisions of the consumer credit (loan) are adjusted by the creditor and the borrower individually at making contract, their list is resulted in item 9 of item 5 of the Law on the consumer credit (loan). Thus in item 5 item 11 the rule according to which individual and general terms of the contract of the consumer credit (loan) should correspond to the information given by the creditor to the borrower is established. This norm is directed on protection against unfair creditors which change conditions of contracts in comparison with earlier placed information. However, as fairly notices S.P.Grishaev, any concrete sanctions for its infringement it is not established, therefore this norm has declarative character [235].

The important treaty provision about the consumer credit (loan) is the condition about percent for using money resources under the contract of the consumer credit (loan). The legislator pays to this question the big attention. By existing rules the interest rate can be or a constant when it is fixed throughout all currency of the contract, or a variable - its size can change depending on change of the variable provided in individual treaty provisions. The procedure of payments of the variable interest rate should include a variable. Values of a variable should be defined proceeding from the circumstances which not dependent on the creditor and affilirovannyh of persons are (connected) with it. Values of a variable should take places regularly in popular sources of the information. Compound interests («percent for percent») are forbidden by the current legislation.

Special information duties if the credit sum exceeds hundred thousand roubles are assigned to the creditor. In such cases the creditor is obliged to inform the borrower, that if within one year the general size of payments on all available for the borrower for date of the reference to the creditor about granting of the consumer credit (loan) to obligations under credit contracts, loans for consumption, including payments under the given consumer credit (loan), will exceed fifty percent of the revenue of the borrower, for the borrower there is a risk of default by it of contractual obligations of the consumer credit (loan) and application to it of penal actions.

The important information duty of the creditor are the instructions in the contract of full cost of the consumer credit. It pays off the creditor in percentage annual under the formula specified in item 2 of item 6 of the Law. The creditor is obliged to finish it to the borrower, having reflected in the maintenance of the credit contract. Full cost of the credit should be placed in a square framework in the right top corner of the first page of the contract of the consumer credit (loan) and is put by capital letters of black colour on a white background accurate, well readable font. The information on full cost of the credit should be authentic. The creditor who has extended an unreliable information about full cost of the credit, can be involved in the administrative

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Responsibility.

One more duty of information character is compulsion of the regular message to the borrower of data on execution of the contract by it, about the floating debt and forthcoming payments. Thus granting of the information on the delayed debts is in a special way regulated. So, according to item 4 of item 10 of the Law on the consumer credit (loan) the information on presence of the delayed debts under the contract of the consumer credit (loan) goes to the borrower in free of charge way and in time which are provided by the contract of the consumer credit (loan), but seven days from the date of occurrence of the delayed debts.

The relations connected with execution of a contract are in a special way regulated. According to item 22 of item 5 of the Law on the consumer credit (loan) in the contract of the consumer credit (loan) of the party can establish one or several ways of execution by the borrower of liabilities under the contract. Thus the creditor is obliged to give to the borrower the information on a way of free execution of the liability under the contract of the consumer credit (loan) in settlement in a place of reception by the borrower of the offer (offers to conclude the contract) or on specified in the contract of the consumer credit (loan) to the location of the borrower.

As repayment (return) of the credit is frequent is made by write-off by bank of money resources from the account of the client-borrower under its payment commission (the written order) or without that in bezaktseptnom an order, the great value is got by the rules defining sequence of repayment of requirements. Unlike the general rule of item 319 GK the Russian Federation the sum, [236] insufficient for execution of obligations of the borrower, repays first of all not costs of the creditor, and percent, then the basic debt, the penalty etc. (ch. 20 items 5 of the Law on the consumer credit (a loan)). This difference provides protection of interest of the debtor against wrongful charge by the creditor of the penalty and write-off or offset of payments under the contract in repayment of unreasonable measures of responsibility.

The law on the consumer credit (loan) fixes a rule that general terms of the contract of the consumer credit (loan) should not contain a duty of the borrower to conclude others dogovory. At the same time the current legislation nevertheless supposes acquisition by the borrower of additional services under condition of the written approval to rendering to it of such services, including on the conclusion of other contracts which the borrower is obliged to conclude in connection with the contract of the consumer credit (loan). Thus, as the legislator further specifies, the creditor in the statement for granting of the consumer credit (loan) is obliged to specify cost of additional service offered at additional expense and to provide to the borrower possibility to agree or refuse rendering to it at additional expense such additional service, including by means of the conclusion of other contracts which the borrower is obliged to conclude in connection with the contract of the consumer credit (loan). Thereby the Law on the consumer credit supplements the positions fixed in item 16 of the Law on protection of the rights of consumers.

For the sake of justice it is necessary to notice, that some authors consider impossible to include the relations connected with granting of consumer credits, in sphere of regulation of the Law on protection of the rights of consumers. Often it is proved by specificity of extra legal relations which cannot be carried neither to rendering of services, nor to sale of the goods, to performance of works.

So, according to A.JA.Kurbatov, crediting is not rendering of financial service as according to GK the Russian Federation extra (credit) relations are not carried to regulation vozmezdnogo rendering of services, and the elements of financial service which are available in the money loan (credit), do not carry

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Defining character. E.V.Fedulina also pays attention that will not mention the Law on protection of the rights of consumers in the list of the laws which are coming under to application to contracts of the consumer credit (loan), specified in item 2, and

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On essential distinctions in legal regulation of investigated relations. The given conclusions of authors sporny.

First, the question of reference of crediting to sphere of rendering of services is resolved in the Decision of Plenum of the Supreme Court of the Russian Federation from 28.06.2012 № 17 «About consideration by vessels of civil cases on disputes on protection of the rights of consumers» in which item 3 granting of credits (loans) is recognised by financial service, i.e. The service rendered to the physical person in connection with granting, attraction and (or) placing of money resources and their equivalents which are representing itself as independent objects of the civil rights. In - the second, presence of some distinctions in rules of the named laws does not exclude possibility of their simultaneous action taking into account a principle of application more the special provision to regulation of civil matters. Thirdly, the exception of consumer crediting of sphere of operation of law about protection of the rights of consumers will unreasonably deprive of the borrowers who are economically more weakness of given relations, effective remedies and ways of protection against abusings from creditors. Besides, in the Law on the consumer credit (loan) there is a binding to the Law on protection of the rights of consumers: in item 13 item 1 it is specified, that claims of the borrower to the creditor are shown according to the legislation of the Russian Federation on protection of the rights of consumers.

The given circumstances allow to come to conclusion that interests of the citizen-borrower can be provided not only the tools fixed in special laws (the Law on the consumer credit, «About [237] [238] [239] banks and bank activity», etc.), but also the provided general provisions of the consumer legislation - provided that the credit or a loan have been received by the physical person not for the purposes connected with realisation of enterprise activity.

At the same time it is necessary to agree with justice of some arguments of the authors opposing applications of norms of the Law on protection of the rights of consumers to relations concerning granting of the consumer credit (loan). In particular, E.V.Fedulina states the proved doubts in possibility of use of some ways of protection for maintenance of interests of borrowers, namely about charge of the lawful penalty at infringement of target dates of rendering of service at a rate of three percent of the price of rendering of service (item 28 item 5) [240].

Really, application of similar sanctions to the creditor in credit relations is represented doubtful. At the same time according to a legal position of the Supreme Court of the Russian Federation reflected in item 2 of the Decision of Plenum of the Supreme Court of the Russian Federation from 28.06.2012 № 17, to relations, arising from contracts on rendering of separate types of service with participation of the citizen, a consequence of which infringement of conditions do not come within the purview gl. III Law, general provisions of the Law on protection of the rights of consumers, in particular about the right of citizens to granting of the information (item 812), about a liability of infringement of the rights of consumers (item 13), about compensation of harm (item 14), about indemnification of moral harm (item 15) should be applied.

Besides, according to the Law on protection of the rights of consumers the citizen possesses a number of remedial advantages at a presentation of legal actions. First of all claimants are released from State Tax payment (item 17 item 3). Also consumers address in court with claims for rules of the co-ordinate jurisdiction (item 17). It is necessary to notice, that application of norms about the co-ordinate jurisdiction concerns only the disputes initiated by the debtor in the obligation. Thus concerning requirements of the creditor to the borrower of item 13

The law on the consumer credit (loan) allows the parties of the credit contract to change in individual conditions the business venue under the claim. Such change will be considered admissible if at an establishment the parties of rules about jurisdiction define the court located within the subject of the Russian Federation on the location of the borrower or in a place of reception by the borrower of the offer to conclude the contract (offers).

According to the researchers, the given rule is entered in attempt «to balance interests of the borrower and the creditor». However "equation" of the given innovation raises the doubts. The matter is that specificity of subject structure of the relations arising from consumer crediting, assumes, that the citizen who is not possessing skills and special knowledge in the field of jurisprudence participates in them. Thus, as practice shows, the greatest quantity of infringements from creditors occurs at delivery of microloans - the insignificant sums necessary for the citizen for satisfaction of basic needs in medicines, meal, clothes, etc. In the specified cases deviation from the general rule of a presentation of claims to the respondent in a place of its residence can essentially complicate to it realisation of possibilities on protection of the interests. At the coordination of such conditions in the credit contract the court of justice on the location of a department of the creditor on work with the delayed debts which often not only does not coincide with a residence of the borrower, as a rule, is underlined, but also is in other settlement. Thereupon consider expedient to limit possibility of change by the parties of the contract of the consumer credit of the venue not to limits of the subject [241 [242]

The Russian Federation, and municipal union borders on the location of the borrower.

The law on the consumer credit in a special way regulates the relations connected with transfer of disputes on consideration of the arbitration courts. According to item 13 item 4 the arbitration agreement on the resolution of dispute, the consumer credit (loan) which has arisen from the contract, can be concluded between the borrower and the creditor only after occurrence of the bases for suing. The given rule is rather timely, as allows to choose that arbitrator to whom both parties of dispute trust, and limits possibilities for abusing the creditor the position at credit delivery.

It is necessary to notice, that the given rule owing to the special nature of the contract of the consumer credit as contracts of adhesion was supplemented earlier with imperative position of item 3 of item 5 of the Federal act from 24.07.2002 № 102-FZ «About the arbitration courts in the Russian Federation» in which force the arbitration agreement on the resolution of dispute under the contract of adhesion admitted valid only if it has been concluded after occurrence of the bases for suing. In the novel regulating activity of the arbitration courts - «About arbitration (arbitration) in the Russian Federation» - the given norm is absent. Therefore on participants of the consumer relations, not concerning the consumer crediting, the given restriction does not extend. However, as fairly specifies A.I.Savelyev, «the purpose of the given positions is obvious: not to give the chance economically more to a strength to impose to other party the arbitration court convenient for» [243 [244]. Thus, with a view of maintenance of a right protection of interest of the debtor it is necessary to fix a similar rule in norms of the Law on protection of the rights of consumers.

The important problem in aspect of maintenance of a right protection of interest of the debtor acting as the borrower under the contract of the consumer credit, is the problem of collecting of debts under the credit at default of the contract by the borrower. Thus it is important to be reserved, that in this case it is a question of maintenance of interest of the diligent borrower, under objective causes become incapable to execute the obligation properly.

In connection with the crisis phenomena in economy and, as consequence, increase in quantity of the delayed credits the bank organisations recently more often steels actively to resort to services kollektorskih agencies. Thus mutual cooperation between the credit organisations and kollektorskimi agencies, as a rule, is based on two forms of relations: concessions of incorporeal rights; the brokerage contract or the contract of agency [245 [246].

It is necessary to notice, that according to positions of item 5 of the Federal act «About banks and bank activity» the concession of incorporeal rights under credit contracts is not bank operation and consequently from a position of the current legislation the express prohibition to the credit organisations on a concession of the rights, including to the organisations which are not credit and not having licence for employment bank activity, no. However in pravoprimenitelnoj to practice possibility of such concession long time was called into question.

In particular, FAS Northwest district in the decision on business № А56-60582/2009 from 28.04.2010 has specified, that on sense of item 819 GK the Russian Federation money resources only the bank or other credit organisation having the corresponding licence, hence, the incorporeal right on credit can give can be transferred only to subjects of bank sphere. The given position has affirmed and as item 51 of the Decision of Plenum of the Supreme Court of the Russian Federation from 28.06.2012 № 17 where it is specified, that, resolving affairs on disputes on a concession of the requirements following from credit contracts with consumers (physical persons), the court should mean the following: The law on protection of the rights of consumers does not provide the right of bank, to other credit organisation to transfer the incorporeal right under the credit contract with the consumer (physical person) to the persons who do not have the licences for the right of realisation of bank activity if other is not statutory or the contract containing the given condition which has been adjusted by the parties at its conclusion. Besides, courts, recognising void dogovory cessions, specified, that as kollektorskie agencies had no bank licence, that, concluding dogovory a concession with the credit organisations, they broke standard positions about bank secret.

The given approach has got support and in the legal literature. Thus researchers resulted various arguments, in particular that the concession of incorporeal rights of the creditor to the person who does not have the corresponding licence, breaks public interests that the similar concession can lead to distortion of indicators of obligatory specifications of the bank established by Bank of Russia, in impossibility of satisfaction of requirements of investors, etc. [247 [248]

The law on the consumer credit (loan) has resolved the specified dispute, having fixed in item 1 of item 12 a rule about an admissibility of a concession of incorporeal rights from contracts of the consumer credit to the third parties if other is not provided by the federal act or the agreement containing a condition about an interdiction of a concession, adjusted at making contract. Thus incorporeal right transfer assumes granting to the access third party to the protected information, including to personal data of the debtor (the information on the debtor, including its surname, a name, a patronymic, the address of residing, house and other contact phones, nameplate data, etc.) . Thereupon fair fastening in rules of specified article of requirements about maintenance of confidentiality and safety of such data, an establishment of legal responsibility for their disclosure is represented. The similar rule is fixed and in a new wording item 47 of the Federal act from 16.07.1998 № 102-FZ «About the mortgage (real estate pledge)» [249], supposing a concession of incorporeal rights under the given contracts to "any third parties».

The given step of the legislator towards maintenance of interests of creditors has considerably expanded practical possibilities of banks on sale of overdue debts kollektorskim to agencies that has led to activization of activity of similar structures in the market of financial services.

Under the specified circumstances interests of debtors under consumer credits, on sense of the law, should be provided with action of item 15 of the Law on the consumer credit (loan), regulating procedure of interaction of the debtor with the creditor or other person operating from his name.

The specified norm establishes imperative rules about admissible forms of interaction with the debtor with a view of debt return. Such interaction is possible at personal meetings, telephone conversations, by sending of items of mail, cable, text, vocal and other messages, use of other means modern informatsionnokommunikatsionnyh technologies. The admissibility of different ways of interaction with the debtor depends on presence of its written approval. Besides, in the Law the instructions contain on what actions concerning the debtor are inadmissible. In particular, application of any measures to the debtor before the obligation time of performance (except for a case of preschedule reclamation, statutory) is inadmissible. The period of time within day when interaction with the debtor is supposed is legislatively defined, the rule forbidding to the third parties to make action which can harm the debtor, and also misuse of right in other forms is fixed.

According to the legislator, the establishment of the given rules is sufficient for protection of interests of debtors against abusings from collectors. However, as fairly notices S.N.Shishkin, the State Office of Public Prosecutor of the Russian Federation repeatedly elicited the facts of rough and illegal methods of influence on people from collectors, and there were they already after coming into force of the Federal act from 21.12.2013 № 353-FZ «About the consumer credit (loan)» [250]. Therefore true it is represented

E.B.Kazakovoj's who has sounded doubts in sufficiency of only one norm for settlement of activity of so impressive direction on scales [251] statement, and also position of the authors seeing necessity for special regulation kollektorskoj of activity [252].

In this connection acceptance of the special regulatory legal act - the Federal act from 03.07.2016 № 230-FZ «About protection of the rights and legitimate interests of physical persons became rather timely at activity realisation on return of the delayed debts and about modification of the Federal act" About microfinancial activity and the microfinancial organisations "» [253] which regulates fulfilment of the actions directed on return of delayed debts of physical persons.

The legislator has rather widely defined sphere of application of the specified Law, having excluded from it debts of individual businessmen and debts before municipal services are only long citizens before other physical persons for the sum no more than fifty thousand roubles. Thus, actions on execution reception practically any liability from the citizen-debtor since January, 1st, 2017 should be carried out in strict conformity with norms of the given Law. It is necessary to notice, that norms of the considered Law are formally applied and to relations of the citizens who are not individual businessmen, but also not concerning consumers on sense of the Law on protection of the rights of consumers.

The law contains a number of essential restrictions for the collectors which are carrying out given activity on a professional basis. For its realisation inclusion of data in the state register, indemnity against liability for causing of losses is necessary for the debtor at a rate of not less ten millions roubles, presence of pure actives at a rate of not less specified sum, absence of the liability which has been not executed within 30 days from the date of becoming res judicata of the judicial certificate about collecting of delayed debts, observance of other technical and organizational requirements [254].

It is important to notice, that, fixing in item 15 of the Law on the consumer credit (loan) of a rule of interaction with the debtor, similar specified, the novel extends these requirements and of dialogue with the third parties - members of a family of the debtor, relatives, other persons living with the debtor, neighbours and any other physical persons, interaction with which is possible only in the presence of the separate written approval of the debtor.

Without reception of the consent of the debtor three forms of interaction with it are admissible only: direct interaction (personal meetings, telephone conversations), items of mail, messages on channels of an information-communication communication facility. Thus, the legislator supplements an arsenal of means of legal maintenance of interest of the citizen - of the debtor with the written agreement on interaction between it and the creditor, and also the written approval of the debtor to interaction with the third parties.

It is necessary to notice, that application of the forms of interaction not adjusted with the debtor can entail for the creditor or the person operating from his name, adverse consequences. It is necessary to understand any actions as interaction on compulsion of the debtor to obligation execution, including to fulfilment of the actions directed on return of delayed debts, in frameworks nejurisdiktsionnoj forms of protection (self-defence). So, for example, deduction of property of the citizen-debtor, write-off of money resources from its account if it is not provided by obligation conditions, will be wrongful interaction.

Positions of item 2 of item 6 of the specified Law, in particular, testify to it, forbidding to the creditor or other person operating from his name, to make the actions connected with introduction of the debtor and other persons in error concerning the size of the unsatisfied obligation, times of performance of the obligation, consequences of default of the obligation for the debtor and other persons. Wrongful change, for example, term of return of the credit or the size of payment by the creditor will entail additional civil-law (the indemnification and indemnification of moral harm), and for the third parties - administrative responsibility agree item 14.57 KoAP the Russian Federation.

The important legal means directed on protection of interests of debtors, possibility of the debtor to define the person who will carry out interaction with the creditor from his name is. Thus rather doubtful restriction of action of institute of representation in the given sphere, expressed in possibility of attraction as the representative only the person having the status of the operating lawyer is represented. The given rule imposes burden of additional expenses on the citizen who has already appeared incapable to execute the liability.

The effective tool in the mechanism of a right protection of interest of the debtor-citizen is the right of the last to declare refusal of any interaction with the creditor and other persons concerning repayment of the arisen debts. The citizen can make such refusal not earlier than in four months from the date of occurrence of delay in performance of the obligation. At reception by the creditor of the statement of the debtor about refusal of interaction after the expiry of the term it has the right to co-operate with it only by items of mail. Direct and other forms of interaction since this moment are not supposed. And such restriction extends and on cases of charging order of debts. At acceptance of the corresponding judicial certificate action of the statement of the debtor only stops for two months.

The specified rule essentially limits possibilities of the creditor to influence the debtor not only on pretrial stage, but also at a manufacture stage on business and executions of judgement.

It is possible to establish, that, despite some lacks, the Law № 230-FZ it is progressive enough and directed on formation of civilised conditions of interaction between creditors and debtors - physical persons, allows to provide due level of a right protection and protection of interests of the citizens who are weakness in the obligation. Besides, named Law sets standards professional kollektorskoj

Activity, forbidding illegal and degrading advantage of the citizen of the form of influence on the debtor and the third parties, causing of harm by it, threats of application of physical strength and psychological pressure; demands much of the person of the persons who are carrying out interaction with the citizen - by the debtor, forbids to involve in the given activity of citizens with the outstanding (not removed) previous conviction, to combine this activity with activity of a pawnshop, the microfinancial organisation.

Thus, it is possible to conclude, that civil-law maintenance of objective consumer interest of the citizen who is the debtor in the obligation, it is provided with an establishment of additional obligatory content requirements of the contractual obligation with participation of the citizen - of the consumer, and also fastening of special rules of interaction with the creditor concerning obligation execution.

3.2.

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A source: Gajmaleeva Ajsylu Tagirovna. CIVIL-LAW PROTECTION of INTEREST of the DEBTOR In the CONTRACTUAL OBLIGATION. The dissertation on competition of a scientific degree of the master of laws. Ufa - 2017. 2017
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