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concept, the legal nature of interest of the debtor of the contractual The obligation

According to the opinion which has developed in civil law the obligation represents the right on another's действие1. The given sight of pre-revolutionary classics of the Russian civil law at an obligation being has found reflexion in the current legislation - in item 307 GK the Russian Federation according to which owing to the obligation one person (debtor) is obliged to make certain action in favour of other person (creditor) or to refrain from certain action, and the creditor has the right to demand from the debtor of execution of its duty.

Owing to the specified approach the basic attention of a science of civil law is concentrated on a figure of the creditor as the person possessing rights; for the debtor the role of the executor of another's will admits only. For this reason the questions connected with realisation of interests of the debtor - the participant of the obligations relation, remain practically out of sight of researchers-jurists.

Rather indicative A.JA.Kurbatov's statement that interest, oposredstvovannyj the right, - is such interest which realisation is provided with a duty of other party in concrete legal relation thereupon is. This measure of legal behaviour is given to the authorised person for satisfaction of its interests. The party liable too has a known measure of behaviour. However, unlike [1 [2]

The authorised person, it builds the behaviour not in the interests, and in interests of the carrier of the right 2.

Similar negation of existence of interests of a bound party in a root incorrectly. After all necessity of maintenance of due level of protection of the debtor as equal subject of civil-law relations is obvious. And as it is not the carrier of rights, the decision of the given problem probably through a recognition of presence of own interests of the debtor and creation of conditions for their realisation.

In an urgency of protection of interests of the debtor for development of the effective and balanced civil circulation fairly specifies E.V.Vavilin, noticing thus, that the debtor should have the necessary (fair) and rational mechanism of realisation of subjective civil duties

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(Responsibility).

For the decision of a problem of protection of interest of the debtor first of all it is necessary to address to research of concept "interest" in civil law.

It is necessary to notice, that, despite a frequent mention in the domestic legislation of the term "interest", its maintenance in norms does not reveal. Thus the doctrine, pravoprimenitelnaja an expert have not developed the uniform approach to understanding of so significant category. Besides, the category "interest" in various sciences reveals differently, that explains a variety of the semantic values given to the given term.

So, for example, N.N.worm perceives interest as the synthesised and average element difficult social системы4 [3]. O.N.Bobrovskaja considers interest as the inducement of realisation by the person of the subjective civil rights, proceeding from objective possibilities [4]. O.J.Bakayev and N.A.

Pogodin name its measure (way) of satisfaction of requirements [5 [6] [7] [8]. A.JA.Kurbatov believes, that the term "interest" can be used for a designation of two interconnected, but the various phenomena: interest as the phenomena of social being of people (objective interest) and interest as their phenomena

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Consciousnesses (subjective interest).

As a whole it is possible to allocate conditionally three most widespread approaches to disclosing of the nature of interest.

The first is the understanding of interest as subjective phenomenon. Such approach is characteristic for psychology where interest is considered or as reflexion of a psychological mood of the subject or as a special orientation of consciousness on any object of knowledge. In particular, in psychology interest is understood as the phenomenon of human consciousness, concentration on a certain subject of the thoughts, causing aspiration to get acquainted with it faster, is deeper in it to get, not to miss it from a field

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Sight. According to E.F.Zeera, interest is the positively emotionally painted orientation of attention to the phenomena, subjects, area

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The validity.

The philosophical understanding of interest too is often based on the subjective approach. So, the Russian philosopher, writer I.A.Ilyin named interest the relation of the living and wishing person to everything, that it is necessary for it or it is important [9]. G.I.Schukin considered interest as the special selective relation to world around [10].

The similar perception of interest is found out and in the legal literature. For example, A.V.Malko specifies, that interest can be understood as force of coupling of the person with a society, a communication channel of the person with the validity, a prism through which the individual perceives and masters this validity; I.V.Pershin names interest the characteristic of the relation of the subject to objective vital conditions, etc.

The basic lack of the subjective approach - attempt of researchers to connect existence of interest with the processes proceeding exclusively in mentality of the person.

The internal relation of the person to object does not influence interest existence in its legal effect. It is caused by that the right protection of interests does not depend on their mental estimation the interest carrier, therefore the current legislation recognises and provides a right protection and interests of incapacitated persons, and interests of an uncertain circle of persons, etc.

As fairly notices S.V.Mihajlov, narrowing of the maintenance of interest to emotional okrashennosti and informative activity that is characteristic for the scientists defending"psychological"interest, leads in deadlock. The sight at interest as on something representing emotionally painted orientation of our consciousness on certain objects, will be of no use for

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Understanding of an object of research .

More widespread approach to understanding of interest is representation about it as about unity of display of objective and subjective essence of the phenomenon, explaining formation of interest under influence both external, and internal factors.

So, F.O.Bogatyryov believes, that the subjective party of interest consists in a mental mood of the subject of interest to the address of any object (phenomenon), its tendency to possess those or other objects of the surrounding validity (or somehow to adjoin to them) or to learn objects (phenomena) of the validity. The objective party of interest consists in some independence, isolation of interest of its subject. That [11 [12] [13] is interest not only receives reflexion in consciousness of the subject, but also exists as the fact of the validity surrounding us [14].

According to V.P.Gribanova, to number of objective factors of occurrence of interest it is necessary to carry including material conditions of a life of a society, an economic system of a society, economic relations. But it is not enough only one objective factors for formation of complete interest, interest, according to the scientist, it should be shown, i.e. The given factors inevitably should pass through consciousness of the person [15 [16] [17].

The question on what finds reflexion in consciousness of the carrier of interest, also is debatable.

According to O.S.Ioffe, the interest protected by the right, constitutes the purpose and the precondition of subjective will (will of participants of civil matters) which is formed under the influence of interest, becomes stronger in the course of its comprehension, acts as the realised interest and is means

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Its satisfactions.

A.Genkin speaks about interest as about motive and stimulus of social actions on satisfaction of dynamical systems of individual requirements,

Caused by property relations, a principle of the economic

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Benefits.

I.V.Venediktova understands interest protected by the law as the claim realised by the subject of law to receive the certain material (non-material) blessing or to change a legal status which induces subjects of law to make concrete actions or, on the contrary, to abstain from them, to be in a legal field and to get in realisation by support of the state [18]. As the author, actually specifies, interest induces the person to its realisation, and interest realisation develops into legal relation which already provides the right and legal obligation presence settled by norm of private law... [19 [20] [21] [22] [23].

And still the considerable part of scientists-lawyers believes, that in consciousness of the person find reflexion objective requirements. As mark

O.J.Bakayev and N.A.Pogodin, interest arises in connection with requirement,

And such requirement should be realised and to be expressed in aiming

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On realisation of concrete activity.

The subjective party of the given phenomenon, according to various authors, can be shown, in particular, in comprehension by the subject of objective requirements, necessity of their satisfaction, reflexion in consciousness of people of aspiration to satisfaction of requirements [24], comprehension of requirement to achieve legal means of the certain legal blessings [25] or in aspiration of the subject to use the concrete social blessing [26].

Some representatives of the named approach understand interest as a certain characteristic of the relation of the subject to conditions of its life, to concrete vital circumstances, in which and thanks to which the subject finds that is capable to satisfy the requirement presented to its given interests.

That circumstance, that at the heart of interest requirements lay, is underlined also by other researchers. As marks A.A.Osipov, ... At the heart of interest... The requirements forming its structure and inducing the person, a group of persons, a society and, at last, the state lay to make certain actions, including legal, or to abstain from them for the purpose of satisfaction of these requirements by means of the introduction into already existing legal relations, or directed on their occurrence,

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Change or the termination .

At the same time terms "requirement" and "interest" are not synonymous. However their differentiation in the literature is proved differently. For example, A.S.Ajzikovich believed, that interest represents the specific requirement having social character, inherent in the person as to the social subject. According to the scientist, such social requirement represents itself as

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Interest.

Researchers of psychology see difference of interest from requirement that a category of interest inseparably linked with intellectual activity whereas the requirement does not possess such sign [27 [28] [29] [30]. In opinion

O.J.Bakaevoj and N.A.pogodinoj, requirement reflects what the given subject requires whereas interest first of all assumes presence of certain ways of satisfaction of corresponding requirements [31].

A.T.Hanipov, including requirement internal incentive force of activity, names its one of interest sources, owing to what

The orientation on satisfaction of requirements constitutes the integral

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The interest party.

According to F.O.Bogatyryov's position the requirement generates interest, becoming its maintenance. In its opinion, the generated interest means a requirement concrete definition, that is end of process of passage of requirement through consciousness of the subject and aiming of the subject at certain object of the validity. Therefore, being primary in relation to interest, the requirement supervises over interest [32 [33] [34].

A.JA.Kurbatov sees distinctions of the specified concepts that the requirement reflects needs of the subject, and interest of a measure their (ways)

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Satisfactions.

Thus, despite certain distinctions in sights at the given problem, researchers are unanimous in one: the requirement category is objective, and interest - objectively-subjective. As the universal thesis consolidating positions of scientists, it is possible to result the statement of Century of Item G ribanova that the requirement is always the known objective necessity caused by a material life of a society; interest is the reflected requirement, the necessity which passed through consciousness of people and has taken the form of conscious prompting [35].

With the statement that the requirement is an objective category, it is really difficult to argue. So, the author of the civil concept of property requirements N.A.Barinov fairly recognised requirement as objectively existing necessity (need) for consumption of material benefits (the food and industrial goods, property, objects of the property, dwelling, works, services, etc.) with a view of creation of conditions

For maintenance of a worthy life and normal ability to live of the person. Under its statement, requirement are always objective, as are determined by material conditions of a life of a society. Therefore, defining characteristic lines of requirements, N.A.Barinov believed, that, first, requirement - always need in something; secondly, it is shown as objective necessity; in - the third, it always acts as certain relations, for example, as

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Property relations .

At the same time, recognising communication of requirements with necessity of reproduction of material benefits, the scientist noticed, that they are considered both as the purpose, and as result of manufacture - and in it their feature. Thus, according to N.A.Barinov, requirements originally given to the person are abstract and have no external definiteness, therefore they are considered not as requirements for subjects, and as requirements for the conditions providing ability to live of the person, as the precondition of its actions. And only after detection of a concrete subject, a thing the requirement is detailed, concretised and gets the definiteness [36 [37] [38] [39].

It is necessary to support the given treatment of understanding of requirements, as well as that the requirement always underlies interest. However important the question in this case is: whether there is an interest from the moment of comprehension of such requirement how it affirms many researchers?

It is represented, that interest is caused by not so much comprehension of requirement, how many its existence. Thus lacks of the subjestive-objective approach to understanding of interest are expressed that not learnt interest, from a position of the named approach is absent as has not found reflexion in consciousness of its carrier. However in that case it is impossible to say and about protection of not learnt interest that is rather disputable as the requirement objectively exists.

In connection with told A.JA.Kurbatov's remark that protection of interests of a society, collectives (groups) and citizens cannot be put in dependence on correctness and degree of their comprehension or the interest carrier, or the subject infringing these interests [40 [41] [42] is represented fair.

The resulted examples visually show, that the recognition as an obligatory sign of interest of the fact of comprehension of requirement the subject is incorrect. After all as fairly notices B A.Bulaevsky, the fact of that interest will be realised, no less than the one by whom it will be realised, it already aspects

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Realisations of interests .

Thereupon L.I.Bondarenko's substantiated conclusion that such position means that interest is practically considered as a consciousness phenomenon though and with empty instructions on its objective (material) basis. Therefore such approach as a matter of fact differs nothing from subjective understanding

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Interest.

There is also the third approach explaining a phenomenon of interest as the objective phenomenon. It is characteristic basically for economic sciences where interests are understood as direct relations between social subjects concerning reproduction of a product for satisfaction of economic requirements [43].

The similar approach meets and in jurisprudence [44]. In particular, S.V.Mihajlov considers, that interest is not generated by consciousness, and exists actually in the form of communication of the subject with conditions surrounding it. This communication is shown in the form of the public relations which maintenance is the requirement of the subject [45 [46].

According to S.V.Mihajlova, legally significant interest is under the form the public relation, having the maintenance requirement of the subject having social character and shown in an establishment, change, the termination, protection of rights and duties for legal relations with

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Use of legal means for achievement of objects in view. The given approach most full opens the interest nature as a whole and is extremely important for the present research.

Occurrence of property and non-property requirements causes occurrence of public relations concerning their satisfaction, and these relations constitute interest of participants of a property turn. The given conclusion is especially actual for understanding of a being of obligations as a recognition of presence of independent interests of all participants of debt relationship allows to reflect correctly the mechanism of their realisation and, as consequence, to provide due level of their right protection.

Thus, the concept "interest" should reveal in objective value as the public relation caused by necessity in material and the intangible benefits, providing conditions of normal ability to live of the person. With a view of the most logical statement of a material within the limits of the present research further for a designation of the given category we will use also a word-combination objective interest.

Considering questions of differentiation of various kinds of interests, it is necessary to notice, that in the legal literature the considerable quantity of the bases for classification of interests is presented. S.V.Mihajlov specifies in possibility of classification of interests by kinds of public relations and

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Allocates economic, political, historical, legal interests.

A.A.Osipov suggests to classify interests on a branch accessory (constitutional, civil, labour, family, etc.); depending on a social orientation (the general and private); on subjects (interests of citizens, legal bodies and their associations, including not having status of legal bodies, the states); on character of relations (property and personal non-property) [47 [48].

D.N.Karhalev allocates such kinds of interest, as economic (or property) interest, a personal interest, non-property interest, creative interest, guarding interest [49].

A.JA.Kurbatov classifies interests on expression degree in rules of law and suggests to allocate two groups: interests which are mediated by rights; interests, not oposredstvovannye rights [50].

In the literature there are also other positions about differentiation of interests [51].

At the same time with reference to a theme of the present research and proceeding from objective understanding of a category of interest classification is expedient for spending depending on specificity of the requirements constituting the maintenance of interest. In particular, interests, as well as requirements, can have property and non-property character. So, the requirement for habitation or other property can become the precondition of relations on attraction of extra means. The requirement of non-property character (in reputation preservation, acknowledgement of business reputation) can cause guarantee or pledge making contract in maintenance of obligations of other person. In this connection it is important to notice, that non-property interest can quite be a basis of property relations, and on the contrary (for example, the property requirement and interest corresponding to it can become stimulus for creation of result of intellectual activity).

In the course of the realisation the objective interests reflecting requirements of their carrier, are learnt by the last and become a reference point for its strong-willed activity. The subject realises presence of objective interest, forms the purpose - that soznavaemyj and desirable result from realisation of the possibilities chosen by it which is directed on satisfaction of requirement, co-ordinates the behaviour with an object in view. Thus, as fairly specifies S.V.Mihajlov, the purpose is not included into the maintenance

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Interest as is a subject, on which interest it is directed.

Interest realisation is not always provided with participation of its carrier in legal relations. So, the satisfaction of requirement of the child (as carrier of corresponding interest) in meal or clothes does not assume obligatory acceptance by it on itself of legal obligations on granting of equivalent counter-execution before parents on which expense [52 [53] it is. However more often in the course of interest realisation its carrier enters the relations which are a subject of legal regulation (makes legally significant actions, takes up obligations, carries out their execution etc.). Thereupon the contractual obligation is one of the most widespread ways of realisation of objective interest of participants of the civil circulation.

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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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