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Introduction

Urgency of a theme of research. Development of a modern society is impossible without use of result of creative activity. The considerable quantity of products of a science created under the contract, literatures, arts forms a civilised society, provides scientific and technical progress.

In the legal literature the problematics of the contract of the author's order began to meet since then when there was a protection of copyrights and their civil circulation [1]. However and now the questions connected with creation of product of a science, the literature, art to order have the important theoretical and practical value. Last years active development of a network information field is observed, there are new objects of the copyright. With development of digital technologies created objects of the copyright have undergone to considerable updating. Occurrence, for example, «cloudy technologies» changes representation about the concept maintenance «the material carrier» in which product created under the contract is expressed. Expansion of practice of use of the given contractual design has generated necessity of revision of some positions, concepts, categories in sphere of the contract of the author's order.

In the domestic civil legislation and the civil doctrine there is discrimination to definition of the legal nature of the contract of the author's order, a parity of the given contract adjacent contracts, to an establishment of the list of the essential conditions necessary for making contract of the author's order. There is no unity of opinions on subject structure of the analyzed contract. Debatable there are questions of responsibility of counterparts under the contract of the author's order.

The analysis modern pravoprimenitelnoj experts on an investigated question shows, that the position of courts of justice does not promote effective development of the civil circulation. Courts of the general jurisdiction and arbit

razhnye courts, considering the disputes connected with creation of product to order, ambiguously, and at times it is inconsistent apply corresponding norms of the civil legislation. Uncertainty of positions of courts of justice of a question of uniform application of norms of the civil legislation leads to abusings in sphere of treaty obligations on creation of objects of the copyright.

It is impossible to recognise degree of a scientific readiness of a theme of research of corresponding degree of its theoretical and practical urgency. There are no the works comprehensively investigating the contract of the author's order. In the legal literature there are only separate publications or paragraphs in monographies, the dissertational researches, the contracts of the author's order devoted to some features, for example works of following authors: V.V. Vidmy, V.S.Vitko, E. P.Gavrilova, N. M.Lapina, R.S.Rahmatulinoj, O.A.Ruzakovoj, JU. P.Svit, V.A.Hohlova, S - M.S.Chapanova. All stated testifies to a demand jurisprudence and practice of complete research of the contract of the author's order, as has caused a choice the author of a theme of dissertational work.

Object of research - a complex of the public relations connected with the conclusion and execution of a contract of the author's order.

Object of research - the Russian civil legislation, judiciary practice, the theoretical workings out devoted to the contract of the author's order.

The purpose and research problems. The purpose of dissertational work is the all-round characteristic on the basis of the analysis of legal regulation of the relations developing at creation of product to order, and also revealing and the decision of theoretical and practical problems of a regulation of the contract of the author's order. The specified purpose has predetermined following problems of dissertational research:

- To give the legal characteristic of the contract of the author's order;

- To establish the list of essential treaty provisions of the author's order;

- To correlate the contract of the author's order with adjacent contracts, to define a place of the contract of the author's order in system of civil-law contracts;

- To investigate subject structure of the contract of the author's order;

- To analyse rights and the duties of the parties following from the contract of the author's order;

- To reveal features of responsibility of the author and the customer under the contract of the author's order;

- To generalise judiciary practice on the basic problems considered in dissertational research;

- To develop specific proposals on perfection of the legislation connected with the contract of the author's order.

Methodology and research methods. The methodological basis of dissertational research is constituted by a general scientific dialectic method. At studying of separate questions such general scientific receptions of knowledge, as the analysis, synthesis, an induction, deduction, modelling are used. Private-scientific methods of knowledge are widely applied, namely: is formal-logic, system, rather-legal. Use of the specified methods has allowed to carry out the complex analysis of the contract of the author's order, to reveal its essence, to define lacks of legal regulation and to formulate offers on perfection of the civil legislation.

Degree of reliability of results of dissertational research is provided with its theoretical basis including scientific works of the recognised scientific-tsivilistov various historical periods and work of modern writers; standard base; set of materials of judiciary practice, and also application of various methods of knowledge which have provided achievement of objects in view and problems. A theoretical basis of research are classical works of Russian pre-revolutionary jurists: D.I.Meyer, I.A.Pokrovskogo, G.F.Shershenevicha and others; classical works of domestic jurists: B.S.Antimonova, M.I.Braginsky, A.I.Vaksberga, M.V.Gordona, V.A.Dozortseva, O.S.Ioffe, V.A.Kabatova, O.A.Krasavchikova, N.S.Maleina, G.K.Matveeva, I.B.Novitsky, E.A.Flejshits and others; and also works of modern writers: V.A.Belova, E. G.Belkovoj, V.V. Vitrjansky, V.S.Vitko, E. P.Gavrilova. M. Gongalo, V.O.Kaljatina, N. M.Lapina, And. G.Matveeva, L.A.Novoselovoj, Rahmatulinoj, O.A.Ruzakovoj, JU. P.Svit, And. P.Sergeeva, J.A.Serkovoj, E.A.Sukhanov, V.A.Hohlova, S. TH. S.Chapanova, T. V.Shepel and others. The standard base of research is drawn up by the international statements, the Russian civil legislation which regulate the relations arising at execution of a contract of the author's order. The empirical basis of research is constituted by judiciary practice of the permission of civil cases about the contract of the author's order, the decision of Plenums of the Supreme Arbitration Court of the Russian Federation, the Supreme Court of the Russian Federation.

Scientific novelty of research. The dissertation represents the special theoretical research of the contract of the author's order first in domestic civil law. In work have received the further development and an additional substantiation, the theoretical positions opening the legal nature of the contract of the author's order. By results rather - the legal analysis of the contract of the author's order and adjacent grazhdanskopravovyh institutes it is established, that the contract of the author's order is the independent civil-law contract. The characteristic signs are revealed, allowing to define a place of the contract of the author's order in system of civil-law contracts. The exhaustive list of essential conditions of the given contract is offered and given reason. The conclusion that the acceptance of product expressed on the material carrier or in other form, it is necessary to consider as a duty of the customer is drawn. Necessity of an establishment of a presumption on approval of the product expressed on the material carrier or in other form accessible to perception is proved. The new approach to definition of responsibility of the author coming in case of default or inadequate execution of a contract of the author's order is proved. The conclusion is drawn on reference of the contract of the author's order to number of aleatory contracts. On the basis of the carried out research offers on perfection of the legislation and pravoprimenitelnoj experts in sphere of the contract of the author's order are presented.

In work the following positions which are taken out on protection are formulated:

1. The contract of the author's order is the independent kind of the civil-law contract concerning according to classification by criterion of result to group of contracts, the objects of intellectual property directed on creation and on alienation of exclusive rights to objects of intellectual property or on according a right of use of objects of intellectual property. As criterion of independence of an investigated kind of the contract own subject - creation of the product corresponding to treaty provisions acts.

2. Essential conditions of the gratuitous contract of the author's order are the subject and term. As essential conditions of the cummutative contract of the author's order along with a subject and for contracts should act and the price owing to that created product of a science, literatures, arts possesses originality, novelty, it is created by creative activity, and, hence, to define its market price according to general provision G razhdanskogo the code about the contract price it is not obviously possible.

3. The author under the contract of the author's order is exclusively the physical person as only it possesses ability to be engaged in creative activity, to create the new. The physical person admits the author of product irrespective of age and capacity volume, and possibility independently to carry out the rights arises at the minor person on achievement of fourteen years by it as such person possesses necessary knowledge, experience for intelligent realisation by exclusive rights to the products created by it. Hence, to act as the author of the product created under the contract of the author's order the citizen who has reached chetyrnadtsatiletnego of age has the right.

4. In case of creation of product by several co-authors each author should conclude the contract of the author's order with the customer personally or through the representative as the co-authorship is an association of persons which does not form the independent subject of civil law. Responsibility of co-authors should be defined proceeding from a co-authorship kind. At a dividend the co-authorship responsibility of co-authors should be share as to assign to the diligent (innocent) co-author execution of negative consequences in case of inadequate execution of a contract of the author's order unreasonably. At the indivisible co-authorship responsibility of co-authors should be solidary as under the agreement of all co-authors the decision on the product promulgation is made, all co-authors get the copyright to the whole product, and, hence, each of co-authors bears responsibility concerning product as a whole.

5. Acceptance of the product expressed on the material carrier or in other form accessible to perception, it is necessary to consider as a duty of the customer. Otherwise in the gratuitous contract of the author's order there will be no basis for responsibility putting on on the customer. The author has not the right would be to declare the requirement the indemnification at default or inadequate execution by the customer of a duty on product acceptance, as the right to collecting of losses probably only in case of infringement of execution of a corresponding duty by the counterpart. For uniform understanding and application of the contract of the author's order it is necessary to specify in its legal definition in a duty of the customer on acceptance of the created product.

6. Necessity of an establishment of a presumption on approval of the product expressed on the material carrier or in other form accessible to perception is proved. For this purpose expediently optional regulation of a rule about approval term. 30-days term for approval if other term is not provided by the contract of the author's order is offered. In the absence of objections of the customer in time, established by the contract or the right provisional rule, it is necessary to consider product approved. At motivirovannom refusal of approval of product and impossibility of entering into it of corrections to the customer should be accorded a right to refusal of the contract. In case of disapproval of product, but in the presence of possibility of its correction the author on request of the customer should make changes and (or) additions to product and repeatedly to present to its customer. At refusal of the author of execution of requirements about completion of object of the copyright the customer should have a right to a termination of the contract and attraction of the author to responsibility for inadequate execution of a contract.

7. In case of making contract of the author's order for creation asotsialnogo products it is necessary to recognise the given contract insignificant by the rules provided for a recognition of the void transaction, made with the purpose opposite to bases of the law and order or morals. A substantiated conclusion about an individual civil liability of the author before other persons for created asotsialnoe product, irrespective of from whom the order for such product and also by whom it is extended asotsialnoe product proceeded. This results from the fact that by creative activity of the author it is created asotsialnoe product.

8. The contract of the author's order is among aleatory contracts as it is interfaced to the creative risk, expressed that at the conclusion of such contract in view of low prognoziruemosti result of creative process, it is impossible to be assured that under condition of appropriate execution by the author of the duties, product with the set characteristics will be created. Hence, the risk in the contract of the author's order is expressed in possibility of non receipt of expected result, as owing to objective circumstances, and value judgment by the customer. Presence of creative risk in the contract of the author's order should be considered at an establishment of conditions and volume of responsibility of the author.

The theoretical and practical importance of dissertational research. Results of dissertational work can be used for the further scientific researches in the field of the copyright, at a writing scientific and studies, teaching on disciplines «G a passion - danskoe the right (special part)», "Intellectual property right", "Copyright", "Conventional law". Conclusions containing in research, offers and recommendations can be used for perfection of the Russian legislation regulating the contract of the author's order, and also in pravoprimenitelnoj activity.

Approbation of results of research. The dissertation is discussed and recommended to protection on chair of civil law and process of Irkutsk institute (branch) of the All-Russia state university of justice (RPA Ministry of Justice of Russia). Substantive provisions and research conclusions are stated by the author in the published scientific works, and also in the prepared reports and scientific messages on V international nauchnoprakticheskoj to conference «Protection of the private rights: theory and practice problems» (Irkutsk, 2016); V international scientifically-practical conference «Problems of the modern legislation of Russia and foreign countries» (Irkutsk, 2016); X All-Russia scientifically-practical conference «the Science young» (Arzamas, 2017), IV international nauchnoprakticheskoj conferences «Problems and jurisprudence prospects in modern conditions» (Kazan, 2017) VI international nauchnoprakticheskoj conferences «Protection of the private rights: theory and practice problems» (Irkutsk, 2017); the international scientifically-practical conference «the Parity Russian and international law» (Tyumen, 2018), annual conferences of the faculty, doktorantov and post-graduate students of the Baikal state university.

The work structure is caused by the purpose and research problems. Dissertational research consists of the introduction, three heads including seven paragraphs, the conclusions and the bibliographic list.

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A source: Belousov Vladimir Nikolaevich. the CONTRACT of the AUTHOR'S ORDER In CIVIL LAW of Russia. The dissertation on competition of a scientific degree of the master of laws. Irkutsk - 2018. 2018

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