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Introduction

Urgency of a theme of research. The majority of obligations relations in the civil circulation does not do without influence on them of the persons who are not their parties - the third parties. Thus the obligation can be executed both to the third party, and the third party.

Despite the numerous researches devoted to participation of the third party in the obligation, by present time in the civil law doctrine there was no uniform approach to definition of concept "third party", and also to specificity of a legal status of the third party participating in execution of the obligation. Inconsistent views on a third party legal status in traditional obligations designs in which execution it can take part thereupon take place. Participation of the third parties in the obligation researchers is considered mainly through a prism of legal communication of the third party from one of the parties of the obligation without such important sign causing influence of the third party on debt relationship, as interest of one of its participants. Besides, among jurists till now there was no common opinion concerning the legal nature of the incorporeal right of the third party under the contract concluded in its advantage; the moment of occurrence at the third party of the incorporeal right of the execution of a contract concluded in its advantage; destinies of the obligation executed by the third party; limits of putting on of execution of the obligation on the third party and the extent of performance the third party of the obligation for lack of putting on.

Discrepancy doktrinalnyh positions directly influences on further pravoprimenenie and law-making that does not promote stability of the civil circulation. Definition of limits of influence of the third parties on the civil-law obligation is necessary for the purpose of bar of claim by lapse of time of misuse of right as the obligation parties, and the third party. In connection with updating of the domestic legislation regulating rules of participation of the third parties in execution of the obligation, critical revaluation of corresponding positions is necessary. Creation of the complete system showing to model of participation of the third party in execution grazhdanskopravovogo the obligation, will allow to introduce further changes in the civil legislation, and also to solve problems and contradictions pravoprimenitelnoj experts.

Degree of a readiness of a theme of research. In execution of the civil-law obligation the set of researchers of the Soviet and modern period as it is direct - M.I.Braginsky (źInfluence of actions of others (the third) persons on socialist civil matters╗, 1962), N.S.Kovalevsky (źthe Contract in favour of the third parties - citizens╗, 1988), M.K.Kroz (źthe third party in the obligation╗, 2001), I.V.kissel (źthe Obligation with participation of the third parties╗, 2002), J.J.Zaharov (źthe Third party beneficiary contract in the theory and economic practice╗, 2003), M.A.Milkov (źobligations with participation of the third parties in civil law╗, 2010), and through a prism of separate legal categories and institutes - A.G.Pevzner (źConcept and kinds of the subjective civil rights╗, 1961), S.V.Mihajlov (źan interest Category in civil (private) the right╗, 2000) was engaged in problems of participation of the third parties D.A.Balykin (źactions in another's interest without the commission╗, 2002),

A.

B.Babayev (źthe Problem sekundarnyh the rights in the Russian civil law╗, 2006), etc. Nevertheless, the separate problems, concerning influences of the third parties on the obligation, have not been resolved within the limits of the listed works.

The theoretical basis of research was constituted by works of representatives of domestic civil jurisprudence: M.M.Agarkov, S.S.Alekseeva,

B. A.Belova, S.N.bratusja, V.V. Vitrjanskogo, B.M.Gongalo, V.P.Gribanova, D.V.Dozhdeva, A.V.Egorov, O.S.Ioffe, A.J.Kabalkina, O.A.Krasavchikova, P.V.Krasheninnikov, V.V. Kulakova, L.A.Luntsa, D.I.Meyer, L.F.Netishinsky, N.O.nersesova, I.B.Novitsky, A.G.Pevznera, K.P.pobedonostseva, I.B.Puginskogo, S.V.Sarbasha, V.I.Serebrovskogo,

C. K.Solomina, M.K.Sulejmenova, thick, by JU.K.Tolstoy, J.B.Fogelsona, G.F.Shershenevicha, A.M.Erdelevsky, etc. Besides, in the dissertation uses works of such foreign scientists, as W. Anson, A. Burrows, J. Cartwricht, C. Elliott, G. Treitel, G.Dernburg, R.Savate.

The empirical basis of research is presented by the published and neopublished practice of vessels of the general jurisdiction and arbitration courts concerning participation of the third party in execution of the civil-law obligation.

Methodological basis of research have constituted as general scientific (descriptive, logic, system-structural, historical, linguistic, the analysis, synthesis), and specially-legal (istorikojuridichesky, legallistic, rather-legal, tehnikojuridichesky) methods.

Object of research are obligations relations in which execution the third parties participate.

Object of research are the rules of law regulating the obligations with participation of the third parties, and also a third party legal status in such obligations.

The research objective consists in working out of concept of the third party as participant of debt relationship and construction of system of obligations in which execution the third parties can participate. The specified purpose is reached by means of the decision of following problems:

- To investigate a category of the third parties in a liability law;

- To reveal models of participation of the third party in execution of the civil-law obligation;

- To investigate model of participation of the third party on the party of the debtor;

- To investigate model of participation of the third party on the party of the creditor;

- To develop recommendations about perfection of the civil legislation in sphere of regulation of participation of the third parties in execution of the civil-law obligation.

Scientific novelty of research consists in formation of complete system of models and forms of participation of the third party in execution grazhdanskopravovogo obligations in which basis theoretical installation that realisation of interest of the participant of the civil circulation acts as a sufficient and necessary condition of acquisition by such participant of quality of the third party in relation to the obligation lays. The author's approach to understanding of the third party and interest of the third party in obligation execution has allowed to prove unauthenticity and discrepancy of some settled in grazhdanskopravovoj to the doctrine of designs with participation of the third party in the obligations legal bond, in particular: changes of the person on the party of the creditor at execution of the obligation by the third party; responsibility of the third party for obligation execution.

Besides, scientific novelty of the dissertation consists in the theoretical calculations mentioning positions of norms of a positive law which in the light of reform of the civil legislation have been subjected essential changes and consequently till now did not come under to scientific research, and also in the analysis, not received now the deep theoretical judgement, new kinds of the contractual designs providing participation of the third party in execution of the civil-law obligation.

On protection following substantive provisions are taken out:

1. The third party participating in execution of the civil-law obligation, is the participant of the civil-law obligation who are distinct from its parties, but possessing the interest laying always outside of this obligation which realisation mentions its dynamics and is the basic precondition for participation of the third party in execution of the civil-law obligation. Realisation of interest of the participant of the civil circulation acts as a sufficient and necessary condition of acquisition by such participant of quality of the third party in relation to the obligation.

2. A conclusion that allocation of two basic models of participation of the third party in execution of the civil-law obligation (model of participation of the third party in execution of the basic obligation on the party of the debtor and model of participation of the third party in execution of the basic obligation on the party of the creditor) is caused by presence of the combined criterion including two elements (the obligation party on which the third party acts, and interest of participants of the debt relationship which realisation provides third party involving in obligation execution). Each of these models is presented by system of the obligations, which elements obektivirujutsja through forms of expression of interest of participants of debt relationship.

3. The conclusion that interest of the third party in the mechanism of discharge of duty of the debtor can be expressed in following forms is drawn: 1) in repayment of the existing legal bond and, as consequence, the obligation termination as which parties act the debtor and the third party; 2) in occurrence of property benefit at the debtor, at the expense of savings on its party of that it should execute in favour of the creditor; 3) in preservation of property sphere of the third party which is subjected danger of loss of the right to property; 4) in legal bond occurrence - obligations between the debtor and the third party in which the third party becomes the creditor.

4. Basic (qualifying) value for definition of that role which is taken away to the third party is proved, that in model of participation of the third party on the party of the creditor, gets the maintenance of interest of the creditor. It is established, that with the advent of the third party the creditor, besides interest which answers the purpose of the basic obligation, possesses the interest characterised by features of the legal bond of the creditor and the third party. This interest can be expressed in following forms: 1) in granting of property benefit to the third party; 2) in definition of an appropriate place of execution of the basic obligation when at execution of the basic obligation the creditor specifies a place of its execution distinct from a residence (location) of the creditor.

5. It is proved, that the list of the special bases of participation of the third party in obligation execution on the party of the debtor is not limited to the bases provided by item 2 of item 313 GK the Russian Federation. From the point of view of the updated system of the special bases of participation of the third party revealed by the author of dissertation on the party of the debtor in obligation execution, and also the established limits of realisation of such bases the additional argument of position that the obligation, duties in which are completely executed for the debtor by the third party is offered, stops as the obligation executed by the debtor. Unauthenticity of the legislative approach that to the third party which has executed the obligation of the debtor, the rights of the creditor under the obligation on the basis of the law pass is proved.

6. Features of participation of the third party in the obligation on the party of the debtor when that has interest in preservation of the property sphere at danger of loss of the right to property are established. The conclusion that the diligent creditor has the right to demand acknowledgement of presence of legal claims of the third party on property of the debtor, and also probability of their infringement is drawn.

7. Features of realisation of interest of the creditor in granting of property benefit to the third party through a third party beneficiary contract design are established. The third is proved, that in the third party beneficiary contract, in relation to the contract, the person is that only at the moment of direct making contract by the parties. Two versions of a design of the third party beneficiary contract - with replacement by the third party of the creditor and without such replacement are revealed. At realisation of a contractual design with the subsequent replacement by the third party of the creditor as a result of incorporeal right transfer in full the third party loses the initial status, taking as a result of change of persons a place of the creditor. At realisation of a design of the third party beneficiary contract when the separate competence constituting the maintenance of the incorporeal right of the creditor is transferred only, together with corresponding creditor duties (the third party beneficiary contract without replacement by the third party of the creditor), the third party, remaining outside of the contract between the creditor and the debtor, substitutes for itself the creditor, becoming the "dominating" creditor with only it the inherent rights, first of all, the incorporeal right of execution of a contractual duty of the debtor to own advantage.

The theoretical importance of the dissertation is caused by that conclusions and the positions containing in work, bring the contribution to doctrine development about the third parties and their participation in execution of civil-law obligations, promote the further working out of various aspects of the specified problematics.

The practical importance of results of research consists in possibility of their use in pravotvorcheskoj and pravoprimenitelnoj to practice. Research conclusions can be used in the course of teaching of civil-law disciplines.

Degree of reliability of results of the spent researches. Reliability of results of research is provided with that in the conclusions the author of dissertation leans against the basic conceptual positions of the general theory of law and the civil law doctrine, special monographic works and scientific articles, a standard and practical material. Positions and dissertation conclusions are based on a complex of the theoretical approaches corresponding and reflecting specificity of object, a subject, the purpose and research problems.

Approbation of results of research. Substantive provisions and research conclusions are reflected in publications, discussed on faculty meetings of civil law of National research Tomsk state university. The received results are used in the course of teaching of a course of civil law in TGU, and also were a subject of performance of the author at scientific conferences (All-Russia nauchnoprakticheskaja conference źLegal problems of strengthening of the Russian statehood╗ (Tomsk, 2015, 2016); ź23rd International Academic Conference╗ (Venice, Italy, 2015); Youth international scientifically-practical conference of students, post-graduate students and young scientists źthe Science of 21 centuries: the new approach╗ (St.-Petersburg, 2015); International scientific student's conference MNSK - 2017 (Novosibirsk, 2017).

The dissertation structure is caused by the purpose, problems and logic of research. Work consists of the introduction, three heads including eight paragraphs, the conclusions and the list of the used sources and the literature.

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A source: Churilov Alexey Jurevich. PARTICIPATION of the THIRD PARTIES In EXECUTION of the CIVIL-LAW OBLIGATION. The dissertation on competition of a scientific degree of the master of laws. Tomsk - 2017. 2017
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  1. in introduction
  2. INTRODUCTION
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  4. 10.1. Introduction
  5. INTRODUCTION
  6. approbation and introduction of results.
  7. Introduction
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  9. INTRODUCTION
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