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a general characteristic of civil-law protection of interest of the debtor In the contractual obligation

In the legal literature the right protection phenomenon, as a rule, reveals through the legal regulation mechanism. Thus the concept of legal regulation is defined by scientists differently. One understand it as process of investment of participants of public relations by competences, duties, responsibility (permissions, interdictions, upravomochijami), realisations of these competences, duties, responsibility, transformation of the mentioned participants into subjects of legal relations [54]. Others - as an establishment of expedient relations between subjects to cause the necessary behaviour [55 [56] [57]. The third consider, that the essence of legal regulation is expressed in influence of the right to public relations by means of system of special legal means. In particular, according to S.S. Alekseeva, legal regulation investigating a category, it represents the specific influence which is carried out by the right as special standard institutsionnym by a regulator.

Despite some distinctions, the general line of the named approaches is orientirovannost legal regulation process on end result achievement, i.e. Reflexion of legal instructions in actual behaviour of subjects. After all, as fairly notices h.p. JAvich, źthe right anything if its positions do not find the realisation in activity of people and their organisations, in public relations╗ [58]. In the given aspect legal regulation in a broad sense should be understood as specific influence of the right to subjects of public relations for the purpose of their prompting to fulfilment of certain lawful acts (bezdejstvy).

The specified influence on participants of public relations is carried out by means of permissions and interdictions, by investment with their rights and fastening of legal obligations, that, in turn, provides transition from one person to another of the blessings necessary for satisfaction of arisen requirements, so also realisation of interests of subjects of a property turn.

Ways of realisation of interest are various, as the blessings providing satisfaction of requirement, can be received various ways. For example, the interest carrier can independently make a thing which requires; to create the legal body or to make agreement about joint cooperation for achievement of desirable result. However the most widespread way of transition of the property blessings is obligation execution as such legal relation provides fastening to one person (creditor) of the right to action of other person (debtor) [59].

Depending on a role which is played by any civil matters in the mechanism of legal regulation, obligations can be divided on two groups: reguljativnye and guarding. The first cover the obligations arising on the basis of lawful acts (contracts, other transactions) and mediate normal (lawful) communications of participants of the civil circulation (purchase and sale, rendering of services, successively, etc.). The second result from wrongful acts (offences) and urged to provide protection of the suffered person (tort liabilities, kondiktsionnye obligations) 61.

Presence of interest of participants reguljativnogo obligations is found out easily enough. At such relation owing to its contractual (sdelochnoj) bases always there is a right mediating interest of the authorised person (creditor). The Party liable (debtor) also possesses own interest as is the carrier of corresponding objective requirement.

In this connection the right of the creditor and korrespondirujushchaja to it a duty of the debtor in a sense promote satisfaction of requirements of both participants of the obligation.

Non-contractual obligations in spite of the fact that there are they, as a rule, contrary to will of their participants, too urged to provide realisation of their interests. But if interest of the creditor is obvious (for example, at property tort of the citizen or to the personal non-property blessings there is a requirement for their restoration) the statement about presence of interest of the debtor in such obligation, at first sight, is represented doubtful. However interest of the debtor can be found out and in non-contractual obligations.

So, for example, item 1090 GK the Russian Federation gives to court possibility on demand prichinitelja harm to reduce the size of compensation if work capacity of the victim has increased in comparison with that which was at it by the moment of award of compensation of harm or if the property status prichinitelja harm in connection with its physical inability or pension age achievement has worsened in comparison with position at the moment of compensation award. In this case interest of the debtor reflects its requirements for maintenance of conditions of normal ability to live and, as

61

See: Ivanchak A.I.civil law of the Russian Federation. The general part. M, 2014.

WITH. 29-30.

The consequence, is expressed in necessity to be released from burden of responsibility with the least economic losses.

In jurisprudence there was a representation that process of realisation of interest is provided exclusively with fastening to its carrier of the right as when authorised the right providing certain behaviour of parties liable and causing thereby possibility of fulfilment of its actions (and these certain actions are made for achievement of own purposes) thanks to it necessary legal preconditions for satisfaction of known interests authorised (as a result of these actions are created is given the satisfaction of known interests operating) [60] is carried out. In this connection S.N.bratus wrote, that interest is a precondition and the purpose of the right which represents itself as means of achievement of the purpose directed on satisfaction of interest of the subject [61].

Speaking about possibility of realisation of interest of the debtor in the obligation, it is necessary to notice, that the civil legislation without dependence from reguljativnogo or guarding character of the obligations relation gives to the debtor such possibilities as which owing to essence of the legal bonds arising between the parties of the obligation, it is possible to consider as rights of the debtor as they are provided corresponding korrespondirujushchej by a duty of the creditor. According to B.M.Gongalo, they should be called źcreditor duties╗ [62]. In particular, them concern: the right of the debtor to assign obligation execution on the third party (item 313 GK the Russian Federation), the right to preschedule execution of the obligation (item 315 GK the Russian Federation), the right to compensation of the extra costs connected with change of a place of execution of the obligation (item 316 GK the Russian Federation), the information rights of the debtor, etc. It is thus important to notice, that in itself presence of such competences provided with a counter duty, does not allow to consider nevertheless their carrier as the creditor in corresponding legal relation as owing to the specificity the specified possibilities belong exclusively to the debtor.

The specified rights urged to provide realisation of objective interest, giving to it the corresponding jural significance. The given property is found out and in those situations when the right at its infringement stops as cannot be restored in a former kind. For example, in case of ádestruction of a thing the property right to it stops (item 1 of item 235 GK the Russian Federation). However the person guilty of ádestruction of a thing, has a duty on indemnification granting, i.e. On maintenance of interest of the sustained person.

At the same time the interest realised within the limits of contractual legal relationship, can be provided and legal obligation fastening as as fairly mark A.V.Malko and V.V. Subochev, it is one of ways of realisation of interests of the subjects, focusing in herself a combination public and personal interests, the form legal oposredovanija various interests and requirements of participants of legal relations, way of their expression [63].

The establishment of the legal obligation which is growing out of reflexion of counter will of the parties of the contract, equally provides realisation of interest of a party liable that speaks the concrete character of the legal obligation which are not supposing ambiguous interpretation of its maintenance. For example, a duty to put the certain goods provides realisation of interest of a party liable by that concretises character of due behaviour, excepting possibility of the authorised person to demand transfer of more expensive or rare thing.

Besides granting to participants of relations of rights and legal obligations in the maintenance of the rule of law it can be reflected or possibility of protection of objective interest, or it can be mentioned presence of so-called legitimate interests or interests protected by the law at the certain person.

It is necessary to notice, that in the legal literature and pravoprimenitelnoj to practice these terms are often used as synonyms. However their value is distinct from understanding of interest in objective sense as reflexion of requirement of its carrier. First of all this results from the fact that the named terms, as a rule, are used together with a word-combination "rights" or with a word of "right" with use of the union "and", i.e. Are perceived as the one-serial phenomena.

Thereupon in the literature has received a wide circulation opinion that between rights and lawful (protected by the law) interests much in common. For example, according to N.V.Vitruka, the legitimate interest, as well as a positive law, is possibility of the person to use social blessings which is expressed in competences of the carrier of a legitimate interest to operate definitely, to demand certain behaviour from parties liable, bodies and establishments, to address for protection to competent state and to public organisations [64].

V.V. Gruzdev considers, that the blessing coming under to protection is exclusively legally significant interest, namely the interest satisfied by means of realisation of the right [65]. A.A.Dankov The same way expresses, specifying, that in case of a recognition of interest object of a right protection its realisation becomes possible thanks to guarantees from the state which allocates the person with the rights with a view of satisfaction of its interest [66].

B.O.Dzgoeva defines a legitimate interest as the possibility of realisation of the subjective interest guaranteed by the state, fixed in

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To the rule of law or following from its sense.

D.N.Gorshunov names their legal dozvolennostju, having, unlike the right, character of legal aspiration. The legal permission directed on maintenance of the blessing, advantage, the satisfaction of requirement of its carrier, names T.V.hornet's legitimate interest.

O.N.Bramina notices, that if to recognise that the right there is a measure of possible behaviour in the same limits of the law which are available in legal space of the state the legitimate interest also is connected with a measure of those possibilities which are given by the law (the concrete rule of law), the consciousness and will in which are determined state-legal

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The beginnings.

However, despite some general lines, legitimate interests and rights in the literature often delimit from each other.

D.M.Chechot specified, that if the satisfaction of interest of the subject depends not on its own actions, and from actions of persons with which it is not connected by legal relations or if its interest consists only in creation of the conditions necessary for occurrence of legal relation interests of a similar sort cannot be satisfied by means of the right, and demand other legal means for the realisation. Legitimate interests, according to the scientist, are similar legal means.

J.N.Andreev believes, that interests exist in parallel with rights, essentially supplementing and expanding an influence spectrum on public relations. The legitimate interest is on a joint of the such

69

See: Dzgoeva B.O.parit private and public interests in advertising legal regulation: dis.... kand. jurid. Sciences. M, 2008. With. 16.

71

See: Gorshunov D.N.interest in private law: theory questions. Kazan, 2005. With. 77.

See: T.V.private's Hornet and the public interest in contractual regulation family the relation ': dis.... kand. jurid. Sciences. Perm, 2002. With. 39.

See: Barmin O. N. Misuse of right / otv. red. V.A.Kodolov. Kirov, 2015. With. 83.

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73

See: CHechot D.M.decree. soch. With. 38.

Legal concepts as the right and legal obligations,

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Permissions and interdictions, legal relations and the legal regulation mechanism.

According to A.V.Malko and V.V. Subocheva, the basic difference consists in their maintenance and essence. So, the legitimate interest maintenance, unlike the right, consists not from traditional four, but only of two possibilities (competences): to use the certain social blessing and to address in some cases for protection to competent bodies. Essence of the right is legally guaranteed and provided with duties of other party possibility. The essence of a legitimate interest consists in idle time legal dozvolennosti. Therefore a legitimate interest - original źthe truncated right╗, not in all cases provided with the legal obligation of the state and a defendant

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Relations.

Interesting M.A.Kozlova's position that the legislation promotes development and satisfaction of interest two ways is represented: or by its regulation, creating for achievement of interests of legal relation between participants of public relations, allocating one subjects of the given legal relations by rights, and others - legal obligations, or not interfering with process of achievement of the purposes, protecting this process from intervention of the third parties. In the first case we speak about rights, in the second - about interests protected by the law [67 [68] [69].

It is possible to agree with the conclusion specified above, if in the second case it is a question of "legitimate interests" as to the legal form of fastening of the interest reflecting requirements of the subject.

For example, in item 3 of item 307 GK the Russian Federation is spoken about necessity of observance by the parties of the obligation of legitimate interests each other. Thus the legislator opens it through the general duty of participants to render each other mutual necessary assistance for achievement of the purpose of the obligation, and also to give each other the necessary information.

GK the Russian Federation gives to the debtor some possibilities connected with execution of a duty laying on it, namely possibility of a choice of actions at execution alternative and the optional obligations, provided item 308.1, 308.2; possibility of unilateral refusal of obligation execution in the cases provided by the contract (item 310); possibility not to execute the obligation to the representative of the creditor before reception of acknowledgement of its powers (item 312); to carry out a choice of the repayable obligation at execution of homogeneous obligations (item 319.1); to make against demands of the creditor of objection at execution of joint liabilities (item 324); to suspend execution of counter obligations at delay of the creditor (item 328), etc.

The general line of the specified permissions given to a bound party in the obligation, that they, as a rule, are not provided by a counter duty from the creditor is. The law only formulates the general rule about an admissibility of such behaviour from the debtor, thereby fixing the general duty of any persons, including the creditor, not to interfere with the debtor in realisation of the specified possibilities.

In this sense O.O.Jurchenko's position is represented true, that źinterests protected by the law can get the status of rights by means of legislative registration or to be not mediated concrete rules of law, but owing to legal preconditions to be objects of a right protection and protection╗.

Thus, not only the right, but also a legitimate interest are represented by independent legal forms of fastening of objective interest. In this sense of a category "interest" and "legitimate interest" correspond as the purpose and means. In turn, the interest which has received [70] fastening by investment of its carrier by the subjective civil rights, legal obligations or a recognition behind it of a legitimate interest, becomes object of civil-law protection (protected interest).

Thereupon R.E.Gukasjana's supposing existence legal under the maintenance position, but interests not protected by the law, in the same way, as well as not legal under the maintenance is represented fair, but

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Interests protected by the law.

Thus, reguljativnoe influence of norms of civil law on participants of the obligations relations arising in the course of realisation of their objective interest, is provided with fastening to them rights, legal obligations and legitimate interests.

Rather fair A.R.Tigranjana's who has truly noticed statement in this connection is represented, that thus reguljativnaja the norm directed on creation of conditions for satisfaction of interests of subjects of legal relation, co-ordinates behaviour of participants of public relations by creation reguljativnyh the rights and duties [71 [72] [73].

Such fastening in rules of law of corresponding possibilities of realisation of interest in the literature often is understood as a right protection in its static condition. So, according to S.Sabikenova, protection of the rights and interests of citizens is carried out out of concrete legal relations as rules of law before their infringement are in a positive condition whereas protection of already broken rights always occurs within the limits of concrete offences,

Which occurrence is undesirable from the point of view of interests as person, and

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The states.

However existence of those or other rules of behaviour in itself does not protect from possibility of their infringement. Accordingly, influence of norms on behaviour of participants of public relations cannot be reduced only to application reguljativnyh measures. An indispensable constituting right protection of interests their prevention and protection against the infringements, provided with corresponding coercive measures - "conservation measures" (measures of protection, responsibility, self-defence and measures of operative influence), realised within the limits of guarding activity is.

As marks N.V.Vitruk, in a number of scientific publications the right protection is understood carried out by competent state bodies and other subjects of law as the interconnected measures directed on the prevention of offences, elimination of the reasons, their generating, and promoting, thus, to creation of conditions for unobstructed realisation of requirements of dispositions of rules of law (a right protection in a dynamic condition) [74 [75].

Part of the named law-enforcement activity is activity remedial, providing compulsory (concerning the obliged subject of law) a way of realisation of a disposition of the rule of law, applied in a statutory order competent bodies or the authorised person with a view of restoration of the broken right (a legal condition).

It is necessary to notice, that for the present research it is necessary to divide precautionary law-enforcement activity and activity remedial in connection with specificity of the legal means applied at their realisation. The first reflects the activity directed on the prevention of offences, elimination of the reasons, their generating, and promoting creation of conditions for unobstructed realisation of requirements of dispositions of rules of law. The second represents the compulsory mechanism of realisation of interest by means of suppression of infringement of rights and legitimate interests, removal of obstacles of their realisation or restoration of the broken right by different ways. Therefore remedial activity, being a part of law-enforcement activity, nevertheless possesses the specific features connected with the bases of its approach, subject structure, the realisation purposes, specificity of a procedure and other characteristics, and also specificity of used legal means. Thus a key problem for understanding of a right protection (in a dynamic condition) interest of the debtor in the obligation is the problem of its independent protection. The matter is that in the norms of the civil legislation regulating the relations, connected with grazhdanskopravovoj protection, it is spoken basically not about interest, and about rights as about object of remedial activity. It is easy for finding out and in headings of corresponding articles GK the Russian Federation: forms of protection of the civil rights (item 11), ways of protection of the civil rights (item 12), etc. Therefore it is frequent in a civil law science under protection possibility of application of statutory system of the measures directed on struggle against offences, leaning against force of the state compulsion, providing inviolability of the right and liquidation of its infringement [76 [77] is understood.

It is difficult to agree with the presented approach at least because the recognition protection of the possibility of application of any measures is represented to us incorrect as presence of any possibility does not assume its obligatory realisation. The specified possibilities to consider in aspect of the right of defence more correctly.

It is necessary to notice, that the concept "right of defence" ambiguously reveals in the legal literature. One authors pay attention to necessity of understanding of the given phenomenon for subjective and objective sense. So, V.V. Semenova believes, that in objective sense the right of defence can be considered as one of civil law or civil procedure institutes, in subjective sense - to be understood as the right of the subject to realisation of the protection.

Others consider the right of defence as the maintenance of the legal capacity of the person, expressed in the concrete right [78 [79] [80].

The third carry the right of defence to number of competences (elements) of the right in the form of special possibility to resort to measures of compulsory influence. Thus, according to M.I.Braginsky and V.V. Vitrjanskogo, the given element of subjective civil law proves only in situations when someone challenges, encroaches or breaks this right [81 [82].

There is also other approach which representatives consider the right of defence not as a right element, and the independent right arising at the subject at the moment of contest or infringement reguljativnogo of subjective civil law.

The recognition of independence of the right of defence from the right is represented to the most true. Thus specified property of the given phenomenon is especially obviously found out on an example of protection of the broken interest. So, in particular, infringement of protected interest, as well as the right, is circumstance with which occurrence in the person of certain possibility on its protection is connected. However till the moment of infringement of protected interest (including when it exists in shape not the right, and a legitimate interest) the right of defence does not exist.

In this sense A.I.Bazilevicha's fairly remark, that the right of defence fixed by the Constitution of the Russian Federation (item 45-48), GK the Russian Federation (item 11) both other federal acts and international legal certificates, exists objectively and does not depend on that, the citizen or нет90 requires it.

Accordingly, according to the author, after infringement of a legitimate interest or the right of the participant reguljativnyh legal relations there is a guarding legal relation in which frameworks protection of the broken rights and legitimate interests is carried out. In the guarding right possibilities of certain behaviour the persons given to it by guarding norms with a view of protection reguljativnogo of the subjective are reflected

91

The right and interest protected by the law.

At the same time it is important to understand, that the right of defence should not be considered in a separation from its object therefore as specificity of applied protective measures (obligations, veshchno-legal, non-property, etc.) depends on features of object of protection also. Besides, the law frequently connects the maintenance of guarding possibilities with character of the admitted infringements. Such communication, according to E.V.Fedulinoj, is caused by derivativeness of guarding legal relation which is expressed that the right of defence

90

See: Bazilevich A.I.form of protection of the subjective civil rights jurid. Sciences. Ulyanovsk, 2001. With. 26.

dis.... kand.

91

See: In the same place. With. 22.

Arises on the basis of relative or absolute reguljativnogo

92

Legal relations.

Thus, in case of infringement of interest of the party of the obligation without dependence from the legal form of its fastening (the right, a duty, a legitimate interest) the interest carrier becomes the participant of the so-called guarding legal relation which maintenance are the guarding right and a guarding duty. Only in this aspect it is possible to say, that źthe broken interest comes under to protection only in the event that the sustained person possesses the guarding right╗ [83 [84].

In this connection the position of the authors believing is represented disputable, that it is necessary to recognise as protected interests only such requirements which are taken by the law under the protection not by investment of the carrier of interest with the material right, and by granting to it the rights to resort to judicial or to other legal forms of protection [85].

About an inaccuracy of the similar statement speaks also what even in that case when interest realisation is provided with fastening to the carrier of any right, interest does not cease the existence, and only gets other legal form as at right infringement it is protected not only the right, but also the objective interest laying in its basis (that is found out on an example of the termination of the right at property destruction).

In case of infringement of interest of the debtor who is the party of the obligations relation, the arisen guarding right of the debtor and korrespondirujushchaja to it a guarding duty of the creditor can be realised in various forms. In one cases the guarding rights are provided with force of compulsion only on the basis of the certificate of competent body. In others restoration of the broken interest is realised by actions of the subject of protection without the reference to someone.

Depending on it protection of protected interests of the debtor can be carried out or within the limits of the material legal relation arising at the moment of infringement of rights and legitimate interests of the party of the obligation, or remedial guarding legal relation, as a rule, the subject arising after the reference behind protection of the interest in competent body.

As fairly marks M.S.Korableva, protection of interests protected by the law and the subjective civil rights is carried out in a statutory order, i.e. By application of the appropriate form, ways and protection frames [86].

The protection form in the legal literature often is understood as activity of the authorised bodies on protection is right [87 [88] [89] or the established order of protection of legitimate interests and the rights of subjects. However definition of the form of protection as complex of the special procedures which are carried out by the authorised person or pravoprimenitelnym is represented to the most true

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Body within the limits of remedial process.

In the given aspect the concept of the form of protection reflects the maintenance of the complex of the procedures providing restoration of broken interest, and specifies in the concrete subject who is carrying out protection, designating volume of powers of the last.

In the legal literature two forms of protection of the civil rights and interests more often are allocated: financially-legal (nejurisdiktsionnaja) and remedially-legal (jurisdiktsionnaja) [90]. The basic distinction between the specified forms of protection is that, first, jurisdiktsionnaja protection of interests is carried out by the bodies specially authorised by the state on realisation of such kind of activity whereas nejurisdiktsionnaja protection, as a rule, is realised by actions of the person, whose interests are broken; secondly, jurisdiktsionnaja protection is carried out with obligatory observance of the procedure defined by rules of procedure, and nejurisdiktsionnaja - within the limits of material legal relation.

In frameworks jurisdiktsionnoj forms of protection the authorised body is above the parties reguljativnogo relations from which there was a guarding right. Thus, as marks M.S.Korableva, the subject of protection should address in court or other authorised body with observance of rules about jurisdiction of dispute with the requirement about acceptance of the special measures necessary for suppression of an offence and restoration of the broken rights and interests. Such protection can be carried out both in general - judicial, and in special - an administrative order [91]. Thus in the ways of protection of interests of the debtor, realised mainly judicially, it is possible to name right a recognition; restoration of the position existing before infringement; a recognition of the voidable contract void and application of consequences of invalidity osporimoj or the void contract; award to discharge of duty in nature; the indemnification; penalty; indemnification of moral harm, etc.

In the obligation in jurisdiktsionnoj to the form also it is possible to name an example of protection of interest of the debtor entering by the debtor of securities due from it or money in the deposit of the notary in case of absence or incapacity of the creditor or at evasion of the creditor from acceptance of appropriate execution (327 GK the Russian Federation). According to a legal position of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation at entering by the debtor in time, provided by the obligation, money due from it in the deposit of the notary such liability admits executed in due time and percent, including the Russian Federations established in item 395 GK, for the debts sum are not charged [92]. Thus, possibility of the reference to the notary in the demanded form about entering of corresponding means into the deposit of the notary provides first of all protection of interest of the debtor, but not the creditor.

Protection in nejurisdiktsionnoj to the form, on the contrary, is carried out within the limits of material legal relation and, as a rule, its participants. For the given form of protection fulfilment of actions (measures) by the authorised person directed on suppression of infringement or restoration of broken interest, without the reference behind protection to judicial and other competent state bodies is characteristic.

It is necessary to notice, that structure of the admissible actions made with a view of self-defence of protected interest, by the law it is not established. As the basic requirement to protection application in the given form in the literature is called adequacy to infringement when actions of the subject of protection are proportional to infringement and do not fall outside the limits the actions necessary for suppression of such infringement [93].

Within the limits of the named forms of protection of interests of the debtor in the obligation application of the coercive measures corresponding to admitted infringement is provided. In particular, for interest protection the sustained person has the right to use the indemnification, collecting in obligations relations

Penalties, percent on item 395 GK the Russian Federation, the restitution, kondiktsiju, refusal from

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Contracts, deduction of property, etc. [94]

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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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