<<
>>

concept and the nature of civil-law means of protection of interest of the debtor of the contractual obligation

As already it was specified earlier, the most widespread in theory of law is the understanding of the mechanism of legal regulation as system of legal means taken in unity with which help productive legal influence on public relations [95] is provided.

Therefore any complex research of questions of legal regulation of those or other public relations with inevitability addresses to a problem of understanding of legal means.

To studying of a phenomenon of legal means many known scientists-jurists (S.S.Alexey, A.V.Malko, B.I.Puginsky, V.A.Sapun, R.O.Halfina, etc.) addressed. However the uniform understanding of the nature of the given phenomenon at the moment does not exist.

Despite the frequent use of the term «legal means», in the legal literature of attempt of a complex theoretical substantiation of the given phenomenon have started to be undertaken rather recently. B.I.Puginsky's research which for lack of the general theory of legal means has made an attempt substantiations of general provisions on the nature and functional specificity of civil-law means became the first large theoretical work. The scientist has defined legal means as «complexes of legal acts the persons based on institutsionalnyh permissions of the civil legislation and serving to achievement of own purposes of the person, not contradicting the law and interests of a society» [96].

33

34

35

103

Results of the carried out research have received an ambiguous estimation from jurists. As a whole researchers have highly appreciated advantages of the named approach, however some positions of the theory offered by the author have been subjected the serious criticism [97 [98] [99]. In particular, attempt of definition of legal means through the phenomena of not standard character has met objections from scientists. So, S.S.Alexey has noticed, that «attempts to reduce legal means only to a certain circle of the legal phenomena, besides such which in many respects carry"not standard"character, hardly can crown success. And not only because such approach concerns basically

107

Private law but also because their estimation as legal »is complicated.

S.S.Alexey named legal means substantsionalnymi institutsionalnymi the phenomena of the legal validity embodying reguljativnuju force of the right, its energy to which posess a role of its active centres. Thus he believed, that «legal means do not form any special, essentially differing from traditional, fixed by dogma of the right, in the standard conceptual device of the phenomena of the legal validity. It is all arsenal, all spectrum of legal phenomena of various levels with that only feature, that they are isolated and considered from positions of their functional mission, those lines which characterise them as legal regulation tools» [100]. However such wide understanding of legal means has generated doubts in necessity of the concept of legal means because of its excess, uselessness [101].

Other authors, criticising dejatelnostnyj B.I.Puginsky's approach, stated objections against understanding of civil-law means as

Complex of actions [102]. As marks S.A.Karelin, «hardly actions (or acts) should be considered as means. Means are tools with which help, using which in the course of activity, this or that subject achieves the object also result, but not activity» [103 [104].

B.I.Minz considered legal means not as actions, and ways and the receptions of actions developed by legal practice and expressing optimum variants of behaviour of subjects of relations at a stage of realisation of the right. However such approach is represented to us rather disputable as does not consider terminological distinctions of concepts "way" and "means". Way in the given aspect is the set of methods with which help the necessary legal result is reached, as means the tools (tools) of the influence which are giving effect to measures (ways) established by the legislation of achievement of such result act.

In development of representations about legal means, considering developed discussion apropos dejatelnostnogo the approach, in theory of law the so-called tool theory of legal means in which force legal means are understood by scientists as the various legal tools necessary for the decision of concrete legal problems [105] was generated. One of attempts of introduction of tool theory of law should recognise V.A.Sapuna's understanding legal means as work «such institutsionnye formations (establishments, forms) the legal validity which in the real functioning, use in the course of special legal activity lead to achievement of certain result in the decision of social and economic, political, moral and other problems and the problems facing to a society and the state at the present stage» [106].

Conclusions of the author of the tool approach to understanding of legal means also have undergone to criticism. As marks S.J.Filippova, named «its research does not include just the basic lines of an instrumentalism which allow to qualify it as other approach to understanding of the legal phenomena. Apparently, here there is no communication of an instrumentalism with activity of people, the right again is perceived by the scientist only as the certain objectively given system. The lost coordination with human activity emasculates all heuristic potential of this approach» [107].

There is also a compromise approach. So, JU.B.Baturin, including legal means dejatelnostno-institutsionalnym formation, notices, that dejatelnostnym legal means is done by its tool nature as this means serves as the certain tool which subjects for realisation of legal activity [108 [109] use.

According to A.V.Malko, «legal means are the legal phenomena expressed in tools (establishments) and acts (technology) with which help interests of subjects of law are satisfied, achievement of socially useful purposes» is provided.

In quality of criticism of the named approach in the literature the association inaccuracy in one definition of concepts of legal means dogmatic (legal means are embodied in rules of law) and sociological jurisprudence (legal means are embodied in activity of subjects of law) [110] is noted.

Recognising justice of the given remark, it is necessary to note, as dogmatic (positivistic), and tool (sociological) approaches can be separately applicable to disclosing of a phenomenon of legal means of protection of interest. Thus depending on the chosen approach the legal phenomena called by legal means, will essentially differ.

As it was marked by us earlier, the interest right protection can be understood in a static and dynamic condition. The interest right protection in a static condition is provided with influence of the certificates-regulators fixing both interests the subject (legitimate interests), and its rights and legal obligations, and also establishing guarantees of their realisation and protection. In this aspect rules of law and not standard regulators will be legal means.

The dynamic condition of a right protection is found out in law-enforcement activity of the state bodies and other subjects, directed on creation of conditions of realisation of interest, suppression of infringements and elimination of consequences from infringement. Laws or regulatory legal acts cannot be legal means of such activity, them are the tools fixed in corresponding rules of law. That is in this aspect understanding of legal means fairly offered N.A.Barinov as the legal possibilities which have been put in pawn in norms of civil law and its separate institutes, used in the course of their realisation with a view of maintenance of property and non-property requirements of citizens and the organisations.

Thus, it is necessary to support a position of the scientists recognising, that

121

«Legal means» - collective concept. Thus it is necessary to agree with [111 [112] expediency of allocation of various levels of legal means in

122

Dependences on value in which the given concept reveals.

So, with reference to the purposes of the present research legal means of protection of interest of the parties of the contractual obligation can be subdivided into some levels.

Legal means of the first level mediate an interest right protection in its static condition and often are called in the legal literature as the phenomena-regulators. By means of the specified means it is provided reguljativnoe influence of the right to participants of economic circulation. Researchers usually carry the legal means forming "substance" of the right to them, not concerning legal activity. Therefore the given legal means are expedient for calling reguljativnymi. The specified legal means as truly specifies V.L.Slesarev, provide a recognition of the economic

~ 124

Interests of citizens and the organisations.

S.S.Alexey, proceeding from structure of the legal validity, allocated two groups of such phenomena:

1) the phenomena-regulators forming a basis and controlling instrument (norms, pravopolozhenija experts, individual instructions, the rights and duties);

2) the phenomena of the legal form - standard and individual certificates.

V.A.Sapun, subdividing all legal phenomena on three groups, includes the specified legal means in the first group as central points of the right, the primary centres of the legal validity round which other legal phenomena are grouped: rules of law, legal relations, the legal capacity, [113 [114] [115] competences and the competence, rights and duties, dogovory, legal responsibility and measures of protection, etc. [116].

To reference to legal means of the first level to us the group of the means offered by O.M.Rodionovoj, including rules of law, and also not standard regulators fixed in juridical acts [117] is represented to the most suitable.

First of all norms of civil law concern the first group of legal means of protection of interest of the debtor.

It is necessary to notice, that in jurisprudence the understanding of the rule of law as initial structural element of the legal system prevails. Differences of rules of law from other social norms is that rules of law from the state proceed and are protected by it, have formal definiteness and obligatory character. Thus in the legal literature the norm of civil law often is called as a behaviour rule.

In a liability law as behaviour rules it is possible to name a classical example of norm item 1 of item 307 GK the Russian Federation: «owing to the obligation one person (debtor) is obliged to make in favour of other person (creditor) certain action, as that: to transfer property, to perform work, to render service, to bring the contribution to joint cooperation, to pay money, etc., or to refrain from certain action, and the creditor has the right to demand from the debtor of execution of its duty».

Among the norms-rules providing protection of interest of the debtor in the obligations relation, it is possible to name, in particular, item 2 of item 308.1 and item 308.2 GK the Russian Federations ordering to the creditor fulfilment of concrete actions at a choice by the debtor alternative and the optional obligation; item 1 of item 313 GK the Russian Federation, obliging the creditor to accept execution from the third party, etc.

Special interest rules of item 2 of item 312 GK represent the Russian Federations entered by the Federal act from 08.03.2015 № 42-FZ, containing instructions about necessity of acknowledgement of powers of the representative of the creditor at reception of execution by it. Owing to the given norm the debtor not only is allocated with the right to demand acknowledgement of powers of the representative of the creditor operating on the basis of the power of attorney or other document, made in the simple written form, but also can refuse execution of the obligations to a presentation the representative of the creditor of notarially certified power of attorney, before acknowledgement of powers of the representative by other ways provided in the law. In particular, such ways can be transfer by the creditor to the debtor of the simple letter of attorney personally; the instructions in the contract of the persons, having the right to operate on behalf of the creditor.

Such rule, rather timely and justified in the conditions of the general tendency to simplification of a mode of representation, in some cases can cause difficulties at definition of powers of the representative or generate doubts in authenticity of documents.

Some authors mark as lacks of such innovation possible increase in expenses at use of institute of representation by legal bodies as, making insignificant at the price of the transaction, the last are forced to resort to services of express services or the carriers which investment with notarially certificated powers is not only inconvenient, but also zatratnym. This rule, on the contrary, promotes strengthening of contractual discipline and though fastening in the text of contracts or appendices to it of plenipotentiaries of the parties under the transaction will demand special attention from counterparts, however it will provide the big degree of security of interests of the debtor in the obligation. [118]

There are also other norms, it is formal not directory on all necessary elements of activity (behaviour) of subjects. So-called specialised norms, including norms-principles, norms - of a presumption concern them.

Specialised norms possess some features. In most cases they do not contain rules of behaviour in the form of duties, permissions or interdictions. Thus they carry out special functions: norms - principles form the initial beginnings of branch regulation; norms - of a presumption fill public relations with standard model of the missing legal phenomenon. The structure of such norms is atypical, that complicates allocation in them of traditional elements (a hypothesis, a disposition, the sanction). Such norms operate in unity and system communication with norms - with rules, being detailed and being realised through them.

In a liability law norms-principles are presented to item 3 of item 307 GK the Russian Federation installed by the Federal act from 08.03.2015 № 42-FZ, fixed the general duty of the parties of the obligation to operate honesty at its execution and after its termination. The given duty provides realisation of a branch principle of the conscientiousness reflected in item 3 and 4 items 1 GK the Russian Federation in which force nobody has the right to take advantage from the illegal or unfair behaviour. In case of an establishment of unfair behaviour of the party of the obligation (including the creditor) to it can be given up in protection of the right in full or in part. At the same time the investigated norm besides a conscientiousness principle fixes also principles of necessity of the account of the rights and legitimate interests of the parties of the obligation; necessities of mutual rendering of assistance for achievement of the purposes of the obligation; necessities of granting of the information each other.

GK the Russian Federation also contains the norms-principles, concerning executions of obligations. It, in particular, norm-principle of appropriate execution of [119] obligations (item 309), and also norms-principles about inadmissibility of unilateral refusal of execution of the obligation (item 310), term (item 314), a place (item 316), currency (item 317) of execution of obligations.

The named norms-principles are extended equally to all participants of the obligation. So, item 309 GK the Russian Federation fixes position that any obligations should be executed properly according to their conditions and requirements of regulatory legal acts or according to customs or other usually shown requirements. The given position is fair for all parties of debt relationship, therefore the creditor cannot change an obligation condition at own discretion. Thus according to the legal position stated in the Decision of Plenum of the Supreme Court of the Russian Federation from 24.03.2016 № 7 «About application by vessels of some positions of the Civil code of the Russian Federation about a liability of infringement of obligations», the creditor has not the right to demand from the debtor on court of execution of the obligation in nature in case of objective impossibility of realisation of such execution, in particular at lawful acceptance of the certificate of public authority or local government to which such execution of the obligation will contradict, or at  destruction of a specific thing which the debtor has been obliged to transfer to the creditor. In these cases the debtor is obliged to pay to the creditor the damages caused by default of the obligation if there are no bases for the obligation termination, for example, provided items 1 of item 416 and item 1 of item 417 GK the Russian Federation.

Fixing in item 310 GK the Russian Federation a rule about inadmissibility of unilateral refusal of obligation execution, the law does not name the subject of the obligation to whom the given requirement is addressed. As marks S.J.Filippova, for the debtor refusal of obligation execution means the statement for absence of intention to make the actions established by the obligation, and for the creditor - the statement for absence of intention to accept offered by the debtor [120]

130

Appropriate execution of the obligation. Such refusal from the debtor can be caused various circumstances: as unlawful conduct of the creditor, for example, at contract material breach (item 450 GK the Russian Federation), refusal of the creditor of acceptance of execution (item 3 of item 484 GK the Russian Federation), and in connection with change of a property status of the debtor, in particular at refusal of donation execution of a contract (item 1 of item 577 GK the Russian Federation), or can not depend at all on possibility or impossibility of execution of the obligation or behaviour of the counterpart, for example, at refusal of the turnkey contract (item 717 GK the Russian Federation) or contracts vozmezdnogo rendering of services (item 782 GK the Russian Federation). Establishing rules of definition of the time of performance of the obligation in item 314 GK the Russian Federation, in a case when its conditions do not provide the time of performance, the legislator gives to the debtor possibility to demand from the creditor of acceptance of corresponding execution etc.

Thereupon the important norms directed on protection of interests of the debtor, certainly, rules about periods of limitation (gl are. 12 GK the Russian Federation), in particular item 196 GK the Russian Federation (in edition of the Federal act from 02.11.2013 № 302-FZ) according to which the aggregate term of limitation of actions constitutes three years. Thus owing to item 2 of specified article, this term cannot exceed ten years from the moment of right infringement.

In some cases such term limits not only possibilities on right protection, but also delimits existence of the obligation. According to item 200 GK the Russian Federation concerning obligations with the uncertain time of performance limitation of actions starts to flow from the date of a presentation the creditor of the requirement about execution of the obligation or the expiry of the term given to the debtor for corresponding execution, but anyway cannot exceed ten years from the date of obligation occurrence. [121 [122]

The purposes of legal fastening of limitation periods are obvious. Establishing deadlines for protection of the broken rights, the legislator aspires to strengthen contractual discipline of participants of civil matters, and also to provide stability of economic circulation, releasing diligent debtors from the duties not claimed by creditors. Therefore restriction by time of possibilities of the creditor on enforcement of the right is absolutely defensible.

Thus, norms-principles of a liability law provide an interest right protection as the creditor, and the debtor in the obligation.

In norms-presumptions the jural significance of assumptions of presence or absence of the certain facts is fixed. Such assumptions owing to a conclusion about high degree of probability of their existence under certain circumstances (conditions) generate corresponding legal effects. Therefore in jurisprudence under civil-law presumptions often it is understood expressly or by implication fixed in grazhdansko - the rule of law the inductive probable assumption based on statistical communication prezjumiruemogo of the fact with the fact valid, concerning circumstances, having legal effect, and attracting legal effects by necessity of its application provided that presence of the opposite assumption [123 [124] [125] will not be proved.

As fairly notices B.A.Bulaevsky, the role of presumptions in the mechanism of a right protection of interests of participants of civil matters is various. One presumptions are directed on a recognition of certain interest, others - on its unobstructed realisation, the third - on maintenance of interests,

- 134

The fourth are connected with protection of interests.

The offered classification is applicable and to differentiation of norms - of the presumptions providing a right protection of interest of the debtor in the obligation.

The basic presumption directed on a recognition of existence of interest of the debtor, «the presumption of existence of the obligation» is. B.A.Bulaevsky finds out it in item 1235 GK of France: «any payment assumes a debt; that has been paid without debt presence, comes under to return reclamation»; in ch. 1 items 361 GK of Georgia: «each execution means obligation existence». In the Russian legislation the given presumption finds reflexion in the norms devoted kondiktsionnym to obligations, namely in item 1102 and 1103 GK the Russian Federation in which force of position about unjust enrichment come under to application to requirements of one party in the obligation to another about return executed in this connection the obligation. Such it is possible including in cases of excessive payment by the debtor at execution of the obligation [126 [127] [128], unreasonable deduction by the creditor of the sum bolshej, than it is provided by obligation conditions, etc.

To the presumptions is priority directed on realisation of interests of the debtor in the obligation, it is necessary to carry a basic purpose of a presumption of conscientiousness of participants of the civil matters, item 10 GK fixed in item 5 the Russian Federation in which force conscientiousness and a rationality of behaviour of subjects is supposed.

Among norms-presumptions on maintenance of interest of the debtor in the obligation it is possible to name item 408 GK the Russian Federation fixing, that the finding at the debtor of the debt document which has been given out to the creditor as a witness of the obligation, certificates, until proved otherwise, the termination of such obligation. Article 367 GK the Russian Federation contains a presumption of execution of the poor obligation the debtor in the presence of several obligations. In item 380 GK the Russian Federation is fixed a presumption: other is not proved yet, in the presence of doubts concerning, whether the sum paid on account of payments, due from the obligation, the deposit is, it is considered paid as advance payment.

The presumptions is priority directed on protection of interests of the debtor in the obligation, are connected with the permission of situations of infringement of the corresponding right or interest of the debtor. To the norms fixing such presumptions, item 406 GK the Russian Federation about delay of the creditor, containing the assumption that the creditor has refused to accept execution if it has not made the actions necessary for execution by the debtor of the obligation concerns.

The important presumption contains in item 348 GK the Russian Federation limiting possibility of the reference of collecting on put in pawn property at insignificance of infringement admitted by the debtor and disproportion of infringement of cost of put in pawn property. Presence of the specified circumstances is supposed at simultaneous observance of two conditions:

1) the sum of the unsatisfied obligation constitutes less than five percent from the size of cost of the put in pawn property;

2) the period of delay in performance of the obligation provided with pledge, constitutes less than three months.

Last from the listed norms-presumptions is accepted specially for maintenance of interest of the debtor (depositor) in the obligation. However formulations of the given norm about obligatory observance of both conditions, used by the legislator, actually do the given norm inapplicable. Therefore it is represented expedient to exclude from the given rule instructions on simultaneous presence of all conditions, having limited to their transfer with use of the union "or".

The big number of the presumptions providing a right protection of interests of the debtor, contains and in the special legislation, in particular in the Federal act from 26.10.2002 № 127-FZ «About an inconsistency

(Bankruptcy) », the Law of the Russian Federation from 07.02.1992 № 2300-1« About protection of the rights of consumers », the Federal act from 21.12.2013 № 353-FZ« About the consumer credit (loan) », the Federal act from 03.07.2016 № 230-FZ« About protection of the rights and legitimate interests of physical persons at activity realisation on return of the delayed debts and about modification of the Federal act "About microfinancial activity and the microfinancial organisations" », etc. However the specified norms-presumptions basically are directed on maintenance of protection of interests of the debtors-citizens who are weakness in the obligation, therefore specificity of their application will be considered by us in the separate chapter.

It is necessary to notice, that the norms of civil law regulating investigated relations, can be found out not only in the civil legislation. The sources of civil law recognised in jurisprudence, besides the legislation, the conventional principles and norms of international law, international treaties, civil-law customs also are.

The conventional norms and international law principles have imperative character and contain obligations erga omnes, i.e. Obligations concerning all and each of members of interstate community. However though they consolidate norms of international law of different levels, basically regulations not private-law, but public relations concern. Speaking about the given norms principles of the Charter of the United Nations, formulated mainly with reference to mutual relations of the United Nations and [129 [130] its members, and also to mutual relations between its members, as a rule, are mentioned. Principles of non-interference, non-use of force, the peace permission of state differences, in particular, concern them, territorial integrity and inviolability of the states, equality and self-determination of the people, respect of human rights, diligent observance of the international obligations taken on, cooperation of the states. Therefore it is obvious that to allocate any special principle as applicable for maintenance of protection of interest of a bound party in the obligation it is represented inconvenient.

Otherwise business with the norms containing in international treaties is. There is a considerable quantity of such agreements devoted to various aspects of regulation of the external economic obligations which also provide the special rules directed on maintenance of interest of the debtor in such obligations. In international trade as an example it is possible to name the Convention of the United Nations on contracts of the international purchase and sale of the goods (Vienna, 1980) which relieves from the seller of responsibility for any discrepancy of the goods if at making contract the buyer knew or should know about such discrepancy (item 35 item 3), the right to suspend execution of the obligations (item 71) assigns to a bound party or to terminate the contract (item 72), etc.; The Hague convention on the right, applicable to the international purchase and sale of the goods (the Hague, 1955), fixing the general rule about application to the obligation of the right of the country - the places of permanent residence of the seller in the absence of the agreement on choice of law express choice; the Convention on limitation of actions in the international purchase and sale of the goods (New York, 1974), establishing the four-year-old period of limitation, etc. At the same time, despite an abundance of similar international treaties, their detailed studying is not included into the maintenance of the present research as concerns special obligations relations - complicated with a foreign element.

One more source of civil law is the legal custom. According to item 2 of the Decision of Plenum of the Supreme Court of the Russian Federation from 23.06.2015 № 25 [131] under custom it is understood not provided by the legislation, but developed, i.e. Defined enough in the maintenance, widely applied rule of behaviour at an establishment and realisation of the civil rights and execution of civil duties. According to legal definition of the custom containing in item 5 GK the Russian Federation, existence of the given rule of behaviour does not depend on that, it is fixed in any document or not. The obligation parties can independently authorise application of custom by the reference to this or that collection of customs (for example to apply the International rules of interpretation of trading terms "Inkoterms" or the Unified rules under the Collection). Such customs are obligatory for the parties only in the presence of the corresponding reference. In its absence the legal customs which are coming under to application to relations of the parties, are defined by court by dispute consideration (for example, the Unified rules and customs for documentary letters of credit UCP 600).

Besides norms of civil law legal means of protection (in its static condition) interest of the debtor as the parties of the obligations relation are also not standard regulators which number the contract first of all concerns.

It is necessary to notice, that in the educational literature on civil law about the contract it is accepted to speak in a transaction context (the juridical fact - the bases of occurrence of debt relationships), legal relations (reflecting rights and duties) and the document (the agreement form) [132 [133]. However possibility of disclosing of the contract as regulator of public relations demands more detailed studying.

Complexity in understanding of the contract as regulator is caused it mnogoaspektnostju. On the one hand, any contract in itself already grows out pravorealizatsionnoj of the activity of subjects which is carried out within the limits of a legal field. On the other hand, the rules established by the parties of the contract, are for them obligatory, that underlines it reguljativnye properties.

In connection with the given specificity of civil-law contracts in a civil law science the concept of contractual regulation was generated. One of authors of the named concept, M.F.Kazantsev, believes, that the contract is necessary for considering and as legal акт142, and as the source of law [134 [135] [136]. The scientist supposes existence of standard and not standard civil-law contracts. Those dogovory which are calculated on numerous realisation (for example, the contract of delivery providing monthly delivery of the goods within year and the penalty for short shipment), admit to them standard legal acts, and what do not contain standard conditions (the contract of retail purchase and sale executed at the moment of its fulfilment), are, on

144

To its opinion, not standard.

The conclusion of the author about possibility to consider civil-law dogovory standard is represented to us disputable. The given concept is rather widely used in the legal researches devoted to questions of administrative law. So, V.I.Shkatulla defines the law-making treaty as the contractual certificate which is laying down law (a behaviour rule), obligatory for the numerous and formally uncertain circle of persons, calculated on the numerous application, operating irrespective of,

145

The concrete legal relations provided by it have arisen or have stopped. In opinion Of this year Eremina, in case of the conclusion of law-making treaties the parties allocated with imperious powers, by means of legal rule creation define occurrence and the maintenance of set of legal relations between unlimited circle of subjects not participating in this contract [137 [138] [139] [140]. Similar positions meet and in works of other researchers. Their general line is the recognition for subjects of the law-making treaty of the special competence and, as consequence, presence of special subjects of law-making treaties, and also the special maintenance, functions and consequences of the specified contracts.

Therefore, despite existence in civil-law agreements of individual establishments, obligatory for their participants, the specified establishments do not create the new rule of law, and as fairly notices O.V.Pljusnina, provide application of rules of law, fill them and if the norm has optional character concretise and personify it

148

Action.

For the specified reasons it is represented to us disputable and V.A.Sapuna's recognising the individually-legal contract by the atypical source of law position as the contract characteristic as the source of law can be applicable only to standard legal contracts.

At the same time regulating property of civil-law contracts undoubtedly. Thus, as marks O.M.Rodionova, the will of the legislator is directed on an establishment of the permission to the contract parties independently to define the rights and duties, and the will of the parties of the contract consists in definition of the last. The parties, using procedural norms of the law, carry out activity as agreed the vol (conclude the contract), expressing it in the will which form is established besides by the law [141]. In this case it is necessary to say that the contract contains not rules of law, and chastnoavtonomnye positions.

In the legal literature it is noticed, that under the private autonomy called in paragraph 1 of item 1 of item 2 GK the Russian Federation by an autonomy of will, it is necessary to understand given by the law to the person possibility to make out the relations with other persons through fulfilment of wills [142]. Thus realisation of such possibility proceeds in the strict frameworks ordered by the law. As, as it is fairly noted by E.A.Krasheninnikov and J.V.Bajgushevoj, disfunktsionirovanie legal effects of private wills it is in most cases eliminated by means of means of the state compulsion, the state cannot admit, that chastnoavtonomnoe registration of relations contradicted the purposes of the law [143].

Thus, containing in the contract chastnoavtonomnye positions have essential differences from rules of law. First, they do not carry the general character as under the general rule the contract does not generate the rights and duties for the third parties (item 3 of item 308 GK the Russian Federation); secondly, their maintenance is predetermined by norms of civil law as owing to item 1 of item 422 GK the Russian Federation the contract should correspond to obligatory rules for the parties, statutory and other legal acts (mandatory provisions) operating at the moment of its conclusion.

Realisation of possibilities on an establishment chastnoavtonomnyh positions by participants of contractual relations in the limits permitted by the law is provided by a principle of freedom of the contract, being key for all contractual and a liability law. At the same time, as fairly notice A.G.Karapetov and E.M.Fetisova, in real practice of the permission of contractual disputes long time dominated characteristic mistrust for the Soviet right to idea

Autonomies of will of the parties. Concerning a question on qualification of norms of the conventional law this mistrust was shown that the old Soviet antimarket methodology of especially mechanistic interpretation of norms of the conventional law, according to which all thousand norms GK the Russian Federation and other laws continued to be applied, the defining rights and duties of the parties of the contract, are considered strictly imperative, except cases when norm it is directly authorised to recede from its maintenance. In attempt to overcome such mistrust Plenum of the Supreme Arbitration Court of the Russian Federation the Decision from 14.03.2014 № 16 «About freedom of the contract and its limits» in which criteria of imperativeness of the norms devoted to regulation of contractual relations are allocated is accepted.

In the Decision two versions of mandatory provisions are named. The first version includes the norms containing obviously expressed interdiction for an establishment by the agreement of the parties of the treaty provision, the distinct from rule provided by this norm; the second does not contain obviously expressed interdiction, but admits imperative proceeding from necessity of protection of especially significant interests protected by the law (public interests, interests of the third parties, interests of weakness of the contract); bars of claim by lapse of time of gross violation of balance of interests of the parties; specificity of the given kind of the contract, dictated by the purposes of legislative regulation. Thus even if in norm there are instructions on possibility of an establishment the parties of other rule, such optionality of norm is considered limited to the above-named limits.

Thus, from positions of the named Decision the important conclusion follows, that freedom of an establishment chastnoavtonomnyh positions can be limited by the parties in connection with necessity of maintenance of protected interest of one party or maintenance of balance of interests of all parties of the contract. The basic role of such positions consists in creation of necessary conditions for realisation of interest of participants of contractual relations. About it also [144] - an interdiction for the agreement of the parties the following explanation of the considered Decision testifies to other, containing in the mandatory provision, should be interpreted narrowly. Such interdiction limits possibility of an establishment to the parties of the conditions infringing interests protected by the law of the party on which protection the mandatory provision is directed. As an example in the Decision the norm ch is resulted. 4 items 29 Federal acts from 02.12.1990 № 395-1 «About banks and bank activity», providing an interdiction for unilateral change by the credit organisation of an order of definition of percent on the credit contract concluded with the borrower-citizen. However it does not testify to inadmissibility of such unilateral change of the specified order, owing to which rate of interest under the credit

154

For the borrower decreases.

There are many examples of restriction of the right to freedom of the contract with a view of maintenance of interest of the debtor in the obligation. In particular, courts recognise as insignificant the positions of credit contracts providing payment of the single commission for extending credit as such payments are provided for standard actions without which fulfilment the credit contract [145 [146] could not conclude and execute bank, and also the conditions providing a duty of the borrower to support turns in bank in certain volume as limiting the right of the borrower to freedom of choice of counterparts-banks [147], etc.

In the literature there is an opinion, that in the contract where always there are two parties, own interests of each of the parties initially are in some opposition. As believes D.I.Stepan, «interest of one party of the contract is resisted here by interest another, and both necessity of making contract, and its subsequent execution are directed on satisfaction of such resisting interests: interest of each party is reached by means of the conclusion and the subsequent execution of a contract. As soon as interests of the parties are satisfied with achievement of the designated purpose, the conflict of interests disappears in itself simply because the place to contractual relations there is not present» more.

It is difficult to agree with the resulted opinion, as existence of the contract (i.e. The adjusted will of its counterparts) already testifies that interest of each of the parties, found out in the course of the realisation, is apprehended by the counterpart and it is accepted by it as own interest. So, the buyer having intention to get a thing, aspires to buy it under the least price without quality loss; the seller, wishing to sell production made or got by it, is interested in reception of the maximum profit. In such situation it is really seen raznonapravlennost interests of each of the specified persons. However this conflict will exist only until the parties will not find the counterpart offering conditions, realisations of their objective interest approaching for the purposes. Concluding the contract, the named subjects define conditions of the future obligation as unique means of satisfaction of their requirements, and therefore the contract does not generate the conflict of interests, and acts as means of the permission of such conflict.

The given conclusion first of all is based on establishments of item 2 of item 1 GK the Russian Federation in which force citizens and legal bodies get and carry out the civil rights the will and in the interest.

The coordination of will of subjects of the future contract is carried out within the limits of the special relations called in a science of civil law by the precontractual. [148]

Their value is extremely great not only for making contract, but also for the most obligations relation as at this stage conditions of the future obligation are formed.

As fairly notices V.V. Bogdanov, «the contract as the agreement of two or more persons cannot arise spontaneously. Its occurrence is preceded, as a rule, by any actual relations, contacts and interactions of the parties... It is impossible to imagine the contract which would grow out of the casual consent of the parties" in one point "». At this stage, according to the author, there is a serious collision raznonapravlennyh interests and the purposes (quite often opposite), pursued by the parties. Therefore the prospect of realisation of the most objective interest of their participants entirely depends on development of the specified relations also.

It is important to notice, that precontractual legal relationships are understood by us as the relations settled by rules of law, arising concerning making contract. Thus the relations developing outside of a stage of making contract, cannot be considered precontractual in spite of the fact that on time they can precede making contract. So, for example, the actual introduction into possession of a thing in which relation in the subsequent the contract is concluded, generates the independent "non-contractual" obligation regulated gl. 59 and 60 GK the Russian Federation.

The given circumstance visually shows discriminating feature of precontractual relations, namely their orientation on the conclusion of the future contract. The specified relations can proceed in various forms: negotiating, dispatch of letters on cooperation, placing of offers on the conclusion of contracts etc. Thus the civil legislation regulates most demanded of them. In particular, GK the Russian Federation contains the norms defining rules of carrying out of negotiations by the parties (item 434.1), [149] directions of the offer and the acceptance on it (item 435, 438), makings contract at the auctions (item 447-449.1), and also establishes legal effects of their non-observance.

As the given rules concern first of all behaviour of participants of the future contract at formation of its conditions, they are equally directed on maintenance of a right protection of interests of each of participants of precontractual relations, including debtor in the future obligation.

So, the law orders to participants of negotiating process to operate honesty at the introduction into negotiations about making contract, and also during their carrying out, not supposing participation in negotiations at notorious absence of intention to reach agreements with the counterpart; obliges the parties to provide confidentiality of the information which have become by it known during precontractual relations; forbids use of negotiations with a view of detrimenting to other party.

At the same time, depending on the subject of negotiating process, and also specificity of the entered into agreement, the rules regulating precontractual relations, can be specified by norms of the special legislation. A vivid example of such special regulation are rules of the conclusion of the "consumer" contracts, fixed in the Law of the Russian Federation «About protection of the rights of consumers» [150], the Federal act from 21.12.2013 № 353-FZ «About the consumer credit (loan)» [151] which provide protection of the citizen as most economically weakness. Precontractual relations concerning the conclusion of the state or municipal contracts, privatisation transactions, contracts in a field of activity of subjects of natural monopolies and other spheres are in a special way regulated.

However without dependence from sphere of application of institute grazhdanskopravovogo contracts invariable there is one - the contract can exist only in the presence of the adjusted will of its participants in the form of the agreement.

According to positions of item 1 of item 432 GK the Russian Federation is considered, that the contract is concluded, if between the parties the agreement on all its essential conditions is reached. Here it is important to consider, that, according to a legal position of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation, the requirement to essential conditions of contracts are established by the legislator on purpose not to admit uncertainty of legal relations of the parties and to warn disagreements concerning execution of contractual obligations. Thus courts estimate proofs and circumstances in aggregate and interrelations in favour of preservation, instead of cancellation of obligations, and also proceeding from a presumption of conscientiousness and a rationality of participants of civil matters [152].

The current legislation allows the contract parties to include in it the various positions, allowing to provide the fullest and effective realisation of their interest, including interest of a bound party. For example, the parties of the obligation connected with realisation by all its parties of enterprise activity, can fix in the agreement the right to unilateral refusal of execution of this obligation (item 2 of item 310 GK the Russian Federation); to provide possibility of its preschedule execution (item 315 GK the Russian Federation); to establish share character of obligations of several debtors (item 2 of item 322 GK the Russian Federation); to define an order of execution of the obligation by entering of a debt into the deposit of the notary (item 1.1 of item 327 GK the Russian Federation).

Without dependence from subject structure of the obligations relation of the party can the agreement to cause discharge of duties by fulfilment or not fulfilment by other party of certain actions or approach of some circumstances, including completely depending on will of one of the obligation parties (item 327.1 GK the Russian Federation).

Earlier in judiciary practice the admissibility of conditions of obligations at which approach of duties in full or in part depended on will of one party of the contract was ambiguously estimated. So, for example, the Arbitration court of Volga region district has dismissed arguments of the respondent that the insurance contract is concluded with suspensive condition and because the specified suspensive condition has not come (the car it is not shown to survey within three days after policy registration), the contract at the moment of insured accident approach did not operate. Satisfying the declared requirements, the court has specified, that the condition should be the circumstance which is not dependent on will of the party, and concern the future. Thus the parties do not know, there will come corresponding circumstance or not [153]. However after introduction of the norm provided by item 327.1 GK the Russian Federation, possibility of contest of similar treaty provisions it is eliminated.

There is one more "regulator" acting as a lever on participants of a turn, - pravoprimenitelnaja practice. Speech first of all goes about explanations of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation concerning judiciary practice. It is necessary to notice, that the nature of the specified explanations already long time is a subject of sharp discussions. Not going into details disputes, we will notice, that as the basic point pretknovenija the problem of reference of instructions to sources of law acts.

On the one hand, as specified S.N.bratus and A.B.Vengerov, pravopolozhenija, expressed in judicial pravoprimenitelnoj activity, possess only known degree normativnosti, i.e. Certain degree obobshchennosti and compulsions. According to authors, they have no all necessary structural elements of the rule of law. In particular, there is no the mechanism providing their unconditional realisation, i.e. There is no anywhere a fixed rule in which force discrepancy of the decision to instructions of plenum of superior courts would be the unconditional basis for their cancellation [154]. On the other hand, as marked V.V. Lazarev, «plenums of superior courts act not as pravoprimenjajushchie the subjects who are carrying out justice, and as administrative body with certain specific pravotvorcheskimi functions» [155].

The special legal status of the Supreme Court of the Russian Federation is legislatively fixed in item 126 of the Constitution of the Russian Federation, and also in item 2 and 5 Federal constitutional laws from 05.02.2014 № 3-FKZ «About the Supreme Court of the Russian Federation» [156]. To this higher court of justice are invested with powers on preparation of explanations for vessels concerning judiciary practice with a view of maintenance of uniform application of the legislation of the Russian Federation. Thus, as truly specified S.S.Alexey, results of such interpretation, being continuation and a conclusion from legal rules, have rather independent value [157]. Such recognition of a special role of the higher degrees of jurisdiction has allowed some authors to conclude fairly, that explanations of plenums of the higher judicial and arbitration bodies on legislation application can get and actually get character of an additional source of civil law [158].

In the specified aspect it is necessary to agree with S.S.Alekseeva's including pravopolozhenija of practice in number of legal means conclusion, providing reguljativnoe influence [159]. Speech in this case goes not about any explanation made corresponding court, and only about what supplement effective standards of civil law or concretise conditions of their application and are thus obligatory for application by courts below, i.e. Contain pravopolozhenija.

It is necessary to notice, that in Russian pravoprimenitelnoj to practice there is a considerable quantity of the explanations containing pravopolozhenija concerning protection of interest of the debtor in the obligations relation. One of the most significant should name the Decision of Plenum of the Supreme Court of the Russian Federation from 24.03.2016 № 7 «About application by vessels of some positions of the Civil code of the Russian Federation about a liability of infringement of obligations» [160], containing the explanations, called to provide realisation of interests of a bound party. So, the Decision contains conclusions that the creditor has not the right to demand on execution court in the obligation nature which execution is so connected with the person of the debtor that its enforcement will break a principle of respect of honour and advantage of the citizen (for example, do not come under to satisfaction of the requirement about compulsion of the physical person to execution in obligation nature on execution of a piece of music at a concert (item 23)); The creditor has not the right to demand withdrawal from the debtor of a specific thing which is absent at the last or is transferred to the possession of them, economic conducting or an operational administration of other creditor in execution of the obligation (item 26). Besides, owing to the given Decision the debtor should be released from payment of the percent provided by item 395 GK the Russian Federation, in that case when the creditor has refused to accept the appropriate execution offered by the debtor or has not made actions, statutory, other legal acts or the contract or following from customs or from an obligation being before which fulfilment the debtor could not execute the obligation, for example, has not informed data on the account on which means should be enlisted, etc. (Item 47); it also has the right to bring an attention to the question on decrease under item 333 GK the Russian Federation the penalty which have been written off by the creditor from the account of the debtor unilaterally (item 79), etc.

Except named, the Decision of Plenum of the Supreme Court of the Russian Federation from 29.09.2015 № 43 «About some questions connected with application of norms is accepted

G razhdanskogo the code of the Russian Federation about limitation of actions », approved the important conclusion that limitation of actions cannot interrupt by means of inactivity of the debtor (item 203). That circumstance, that the debtor has not challenged the payment document about bezaktseptnom write-off of the money resources which possibility of contest is supposed by the law or the contract, (item 23) does not testify to a recognition it of a debt. Other explanations, maintenance of interests of a bound party of the obligation anyhow concerning questions, including the Decision of Plenum of the Supreme Court of the Russian Federation from 23.06.2015 № 25« About application by vessels of some positions of section of I part of the Russian Federation first the Civil code », 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 », the Decision of Plenum of the Supreme Arbitration Court of the Russian Federation from 06.06.2014 № 35« About consequences Also operate

173

Contract cancellation », etc.

Thus, the civil-law means of the first level mediating a right protection of interest in its static condition, include norms of civil law, pravopolozhenija experts, and also not standard certificates-regulators which the contract concerns. In the given aspect a right protection of interest of the debtor as the parties of the obligations relation are a condition of lawful realisation of interest «under the control of social institutes, but without their intervention». Therefore legal means with which help regulation of "normal relations» is carried out, in the literature

175

It is accepted to name reguljativnymi as they urged to order activity of subjects. [161 [162] [163] [164] [165] [166]

The given designation rather precisely reflects a functional orientation specified above legal means. However use of such designation can generate some terminological nestykovki. It is connected by that the named civil-law means are a part of the mechanism of legal regulation through which there is an influence of the right to participants of a property turn. In this sense the instructions on them reguljativnye properties at their designation are represented excessive. More correct for the present research is the designation of legal means of the first level as legal means of protection of interest of the debtor.

Not always the legal means mediating positive influence on behaviour of participants of a property turn (legal means of the first level), lead to desirable result. As it was already marked, existence of rules of behaviour does not guarantee their strict observance. Therefore infringement established and provided with force of the state compulsion of rules demands special reaction from the social institutes, providing the prevention and suppression of infringements, and also elimination of consequences of any infringement. The given reaction is inconceivable out of activity of corresponding subjects which can be called law-enforcement activity. Therefore the second level of legal means of protection of interest concerns tools with which help such activity is carried out.

Similar means, according to B.I.Puginsky, it is necessary to call means of legal maintenance [167]. The author defines them as the ways of influence based on the law on subjects with a view of compulsion to observance of the rights (legitimate interests) of other persons and the appropriate discharge of duties, applied by the authorised bodies or is direct interested persons. The named means have an overall aim assistance to normal realisation of the civil circulation, the prevention and elimination of offences and their negative consequences. At the same time separate kinds of legal means are directed on achievement of other purposes, carry out special functions: suppression of made infringement, maintenance of specific performance of the obligation, indemnification of the property

177

Damage to the victim, etc.

B.I.Puginsky allocates following groups of legal means of maintenance: protection frames - ways of state-compulsory influence on citizens and the organisations for the purpose of suppression or the prevention of the rights and interests protected by the law and restoration of the broken condition; measures of property responsibility - reaction to an offence, connected with the state compulsion; measures of operative influence - based on the legislation or the agreement of the parties of action of the subject on unilateral change of conditions of the obligation or refusal of its execution in connection with the infringements of duties admitted by the counterpart; special means of maintenance of obligations (pledge, the deposit, the guarantee, a guarantee).

The legal means directed on the prevention, suppression of infringement and restoration of the broken right in the literature also often are called as guarding legal means. To their number usually carry

179

Coercive measures: sanctions, a preventive punishment, punitive measures, measures

180 181 protection and responsibility measures.

It is simple to notice, that the general line specified above approaches is that means reveal in value of ways of influence on participants of the civil circulation. However mixture of concepts "means", "way" and "measure" is inadmissible. [168 [169] [170] [171] [172]

Measures really concern receptions and ways with which suppression of infringement or restoration of the broken interests is provided. So, according to A.P.Sergeeva and JU.K.Tolstoy, financially-legal measures of compulsory character fixed by the law characterise a way of protection of the broken right. As through a law-enforcement measure defines a way of protection of E.A.Sukhanov and other authors. However measures define only character of influence on participants of public relations and in itself means cannot admit. V.V. Butneva's fair statement which, speaking about protection frames, defined them as the tool of influence of the law-enforcement character, giving effect to the measures (ways) of protection of the right established by the civil legislation is in this connection applicable in

185

The purposes of its restoration or suppression of its infringement.

Nevertheless the interrelation of legal means and measures (ways) is obvious, as from specificity of a corresponding way of the prevention, suppressions of infringement or elimination of its consequences possibility of application of those or other security means depends also. As the way of protection demands state intervention in sphere of interests of participants of public relations, possibility of its application depends on correctness of a choice the subject of legal means. For example, application of consequences of invalidity of the transaction demands the reference with the corresponding claim in court, unilateral refusal of obligation execution assumes fulfilment by the person having on this right, certain actions on finishing of the will to the counterpart, etc. And on the contrary, legal means of maintenance assumes start of the concrete mechanism of the state influence by certain way. Therefore use inapplicable for a corresponding way of [173 [174] [175] [176] protection of legal means is not capable to start the mechanism of the state compulsion.

So, a way of protection - collecting of losses - depends on the reference with the corresponding requirement in court. However elimination of consequences of infringement of interest in such a way as the legal relation termination, can be reached and without a reference to the court - by unilateral refusal of execution by the debtor of the obligation. Means the corresponding behaviour of the debtor directed on refusal of the contract (the message to the creditor about refusal of obligation execution) will admit in this case. At the same time presence of interrelations between concepts "means" and "way" does not allow to substitute for one another.

Owing to stated in the second level of the legal means providing protection of interest of the debtor in the obligation, it is necessary to include the tools (possibilities) given by rules of law to the subject for the prevention (warning facility) and protection of broken interest (protection frame).

Warning facilities can be applied by the interest carrier independently (such means can concern, in particular, the reference to the counterpart with caution from infringement) or by means of the reference to competent body (for example, in antimonopoly service). The basic feature of warning facilities is that they are used in frameworks reguljativnogo legal relations and are applied at a stage previous infringement.

Legal warning facilities from infringement of interest of the debtor in the obligation can be various. As a matter of fact, it is possible to carry any legal tools allowing the debtor to influence the counterpart so that to stimulate its lawful behaviour to them. Such influence can be provided with carrying out at the initiative of the debtor of verification of clearing between the parties and fastening of their results in the certain document; the reference to the creditor behind reception from it the document certificating the fact of appropriate execution of the obligation and (or) absence of claims for quality of execution; a presentation the debtor of the requirement to the representative of the creditor about acknowledgement of the powers by it on reception of execution on behalf of the creditor; inquiry at the creditor of the information on the debts rest under the contract, etc.

In a case of infringement of interest of the party of the obligation there is a material guarding legal relation. On its participants there is a corresponding influence by norms of the civil law ordering to them fulfilment of certain acts or omissions (in particular to cease infringement and to provide elimination of negative consequences). The specified legal relation arises irrespective of desire of the parties, however for achievement of legal result from the carrier of the broken interest fulfilment actual and-or legal acts is required. The interest carrier is forced to address for protection to corresponding competent body or to take statutory measures independently. In this case legal means will be those tools with which help corresponding reaction of the authorised bodies is initiated or independent influence on the infringer is provided.

Depending on forms in which corresponding legal means of maintenance of interest are realised, they can be subdivided on jurisdiktsionnye and nejurisdiktsionnye protection frames. So, in frameworks jurisdiktsionnoj forms can be applied remedies and protection frames in executive organs (administrative protection), and also protection frames in the arbitration courts (in the presence of the corresponding arbitration agreement). In nejurisdiktsionnoj to the form means of operative influence and self-defence are used.

142

143

144

2.2.

<< | >>
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
Ïîìîùü ñ íàïèñàíèåì ó÷åáíûõ ðàáîò

More on topic concept and the nature of civil-law means of protection of interest of the debtor of the contractual obligation:

  1. CHAPTER 2. CIVIL-LAW MEANS OF PROTECTION INTEREST OF THE DEBTOR IN THE CONTRACTUAL OBLIGATION
  2. a general characteristic of civil-law protection of interest of the debtor In the contractual obligation
  3. CHAPTER 1. INTEREST OF THE DEBTOR IN THE CONTRACTUAL OBLIGATION AS OBJECT OF CIVIL-LAW PROTECTION
  4. concept, the legal nature of interest of the debtor of the contractual The obligation
  5. CHAPTER 3. SPECIFICITY OF CIVIL-LAW PROTECTION OF INTEREST OF THE CITIZEN-DEBTOR IN THE CONTRACTUAL THE OBLIGATION
  6. Civil-law maintenance of consumer interest The citizen who is the debtor in the contractual obligation
  7. 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
  8. legal protection frames of interest of the debtor in the contractual The obligation
  9. §2. Concept, value and classification of civil-law means of preventive protection of the rights of the consumer of electric energy
  10. a right protection of interest of the insolvent citizen-debtor
  11. Dorenkova Julia Mihajlovna Ispolnenie. of the contractual obligation in civil law of Russia. The dissertation on competition of a scientific degree of the master of laws,
  12. Paragraph 3. Civil-law protection of corporate franchises on means of an individualization of results of the activity
  13. CHAPTER 1. CONCEPT And PRINCIPLES of EXECUTION of the CONTRACTUAL OBLIGATION
  14. § 2. Concept and the legal nature nezakljuchyonnosti the civil-law contract
  15. § 1. The rights and duties of the parties of the contractual obligation of delivery for law-enforcement bodies
  16. 1.2. Concept and kinds of civil-law means of free use of products
  17. Paragraph 4. Civil-law protection of corporate franchises on individualization means