<<
>>

INTRODUCTION

Urgency of a theme of research. Increase of a standard of living of citizens is the primary goal of any society and the state. Its decision is impossible without qualitative functioning of the basic market mechanisms providing a normal property turn in which frameworks its participants enter various sorts property and non-property relations.

Possessing a will autonomy, citizens and the organisations independently get rights and take up corresponding legal obligations. Thus the basic file of the civil rights and duties is realised in shape grazhdanskopravovyh obligations relations.

The obligation institute has old history and is key for all private law that explains constant interest of researchers to liability law questions. By means of obligations separate certificates of an economic exchange between its concrete participants are made out. In a science of civil law they are understood as the typical relative legal relations connecting only of a concrete party liable by necessity of fulfilment of any action (inactivity). The given property of obligations explains that circumstance, that the basic attention of researchers of a liability law is turned exclusively to a figure of the creditor as competent subject in the obligation. At the same time not enough attention is given to questions of a legal status of the debtor.

Modern realities of an economic life of our society dictate absolutely other conditions, forcing to recognise requirement for maintenance of a due right protection of the debtor as the debt relationship parties. Especially obvious this problem becomes in obligations, as debtors in which citizens act. On the one hand, consumers even more often use credit products for satisfaction of the requirements (acquisition of the goods, works, services), that in the conditions of the crisis phenomena in economy leads to a problem perekreditovannosti the population. On the other hand, citizens, taking up similar duties, often are more weakness, than the creditors use, aspiring to receive the maximum profit and to minimise the enterprise risks. Under such circumstances the problem of appropriate protection of the rights and interests of debtors in the obligation becomes obvious.

Today the domestic civil legislation is at the transition period closing stage. For last years the considerable quantity of regulatory legal acts as within the limits of the general modernisation of system of civil-law regulation, and reforming of its separate institutes, including a liability law is accepted. Among the most important acts for a right protection of interest of debtors in the obligation it is necessary to name the Federal act from 21.12.2013 № 353-FZ źAbout the consumer credit (loan)╗, fixed essentially new basis of legal regulation of relations concerning granting of consumer loans and credits, the Federal act from 03.07.2016 № 230-FZ źAbout 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 "╗, the fixed order of interaction between creditors and their debtors, the Federal act from 29.06.2015 № 154-FZ źAbout settlement of features of an inconsistency (bankruptcy) in territories of Republic of Crimea and a city of federal value of Sevastopol and about modification of separate acts of the Russian Federation╗, Revived institute źconsumer bankruptcy╗, etc.

Prompt development of the legislation in the given area inevitably generates heterogeneity of judiciary practice concerning interpretation and application of the given norms that is partly caused by an insufficient readiness of base theoretical views on problems of a right protection of interest of a bound party in the obligation. The specified circumstances show, how much research of actual problems of protection of interest of the debtor (the debt relationship party) is important for formation adequate pravoprimenitelnoj experts that causes the practical importance of a theme of research.

Becomes obvious and requirement for deep theoretical judgement of concept and the nature of interest of the debtor for the obligation, and also applied means of a right protection of such interest. Besides, for correct qualification of the relations arising in given sphere, the complex analysis of positions GK the Russian Federation and the special laws regulating these relations is necessary.

All aforesaid testifies to necessity of comprehensive investigation of questions of civil-law protection and protection of interest of the debtor for the contractual obligation.

Degree of a scientific readiness of a theme. The considerable quantity of scientific works, including such scientists, as J.N.Andreev, E.E.Bogdanova, E.V.Vavilin, A.P.Vershinin, V.P.Gribanov, M.A.Rozhkova, V.A.Rjasentsev, E.M.tuzhilova is devoted research of questions of the mechanism of civil-law protection, etc.

The works devoted to research of separate questions in sphere of a liability law (S.S.Alexey, N.A.Barinov, A.V.Barkov, V.S.Belyh, S.N.bratus, O.S.Ioffe, V.P.Kamyshansky, V.A.Lapach, L.A.Lunts, A.V.Malko, B.I.Puginsky, V.L.Slesarev, S.A.crest, etc.) have great value also.

It is necessary to note and some works devoted: to questions of the legal nature of interest, in particular A.V.Malko and V.V. Subocheva (źLegitimate interests as a legal category╗), S.V.Mihajlova (źan interest Category in the Russian civil law╗), A.A.Osipov (źInterest and subjective civil law╗), to separate aspects of protection of the rights of the debtor in the relations connected with consumer crediting (Fedulina E.V. źCivil-law protection of the rights of the borrower under the contract of the consumer credit (a loan)╗), to problems of an inconsistency (bankruptcy) of debtors (Brusko B.S. źProtection of the rights and legitimate interests of creditors in the bankruptcy╗), etc.

At all variety of the researches devoted to the general problems of a liability law and separate aspects of civil-law protection and protection of the rights and interests of the parties of obligations relations, questions of a right protection of interest of the debtor as the parties of the obligations relation were not a subject of complex scientific studying. Proceedings of the specified authors mention basically questions of civil-law protection and protection of the civil rights and interests of the creditor and do not consider features of a legal status of the debtor in the obligation, specificity of positions of the special legislation in the given area.

Object of dissertational research is the system

The public relations developing at realisation grazhdanskopravovoj of protection of interest of the debtor as the parties in the obligation.

Subject of dissertational research are norms,

Regulating relations concerning occurrence, executions and the terminations of civil-law obligations, and also relevant pravoprimenitelnaja practice, scientific works on questions grazhdanskopravovoj protection of interests of the parties in the obligation.

The purpose of the present dissertational research - complex comprehensive investigation of a phenomenon of civil-law protection of interest of the debtor who is the party in the contractual obligation, working out of offers and a substantiation of conclusions about application of rules of law in liability law sphere, entering of offers on perfection of the legislation with a view of its effective and uniform application.

For object in view achievement it is necessary to solve following problems:

- To define concept and the nature of interest of the debtor of the obligation;

- To investigate essence of civil-law protection of interest of the debtor;

- To reveal kinds and to establish the maintenance of legal means of protection of interest of the debtor;

- To open features of application of legal means of maintenance of interest of the debtor;

- To reveal specificity of a legal status of the consumer-debtor in the obligation;

- To define features of a right protection of interest of the citizen-debtor at its inconsistency.

The methodological basis of the dissertation was constituted by general scientific and special methods. From general scientific methods have been used: dialectic, logic, the analysis and synthesis, an induction and deduction, etc. With use of a dialectic method scientific approaches to definition of essence of concept źinterest of the debtor╗ have been considered and compared. The method of the system analysis was applied at research of civil-law means of protection of interest of the debtor in the contractual obligation.

In number chastnonauchnyh knowledge methods were used: formalnojuridichesky, rather-legal, system-structural, etc. So, the legallistic method has allowed to analyse the operating civil legislation, in particular the norms of a liability law devoted to ways of protection of interest of the debtor. The author resorted to rather-legal method by consideration of specificity of a legal status of the citizen-debtor as the parties in the contractual obligation. Sistemnostrukturnyj the method has laid down in a basis of research of a phenomenon of civil-law means of protection and maintenance of interest of the debtor in the contractual obligation.

The theoretical basis of research was constituted by works of known representatives of domestic legal science: S.S.Alekseeva, J.N.Andreeva, N.A.Barinov, A.V.Barkova, J.G.Basina, V.S.Belyh, S.N.bratusja, M.I.Braginsky, E.V.Vavilina, A.P.Vershinin, V.V. Vitrjanskogo, B.M.Gongalo, V.P.Gribanova, R.E.Gukasjana, O.S.Ioffe, O.V.Isaenkovoj, M.F.Kazantsev, E.A.Krasheninnikov, O.A.Kuznetsovoj, J.G.Leskovoj, A.V.Malko, N.I.Matuzova, D.I.Meyer, V.F.Popondopulo, B.I.Puginsky, M.A.Rozhkovoj, L.V.Sannikovoj, S.V.Sarbasha, V.L.Slesareva, E.M.tuzhilovoj,

S.J.Filippovoj, D.M.Chechota, G.F.Shershenevicha, V.F.Jakovleva, S.A.Hohlova, etc.

Standard base of research have constituted the Constitution of the Russian Federation and GK the Russian Federation, federal acts and other regulatory legal acts containing norms, the regulating relations connected with a right protection of interest of the debtor in the obligation.

The empirical basis of research was constituted by materials pravoprimenitelnoj practice of arbitration courts and vessels of the general jurisdiction of various level on the affairs connected with protection of interests of debtors in the obligation; data of bodies of the judicial authority; the facts reflected in the scientific literature and periodicals.

Scientific novelty of research is defined by package approach to a question on a phenomenon of civil-law protection of interest of the debtor in the obligation.

The present work is the first attempt of the generalised permission not investigated or insufficiently investigated before the actual problems, concerning establishments of essence of interest of the debtor in the obligation, and also applications of civil-law means of protection and maintenance of such interest. Questions of civil-law protection of interests of the parties of debt relationships earlier investigated in a science refract in the light of norms existing in the modern Russian right and rules about consumer bankruptcy, consumer crediting, interaction of the creditor and the debtor.

Within the limits of dissertational research the nature of interest of the debtor in the obligation for the first time is investigated. New aspects of a phenomenon of a right protection of interest from a position of changes of the civil legislation in the specified sphere are considered.

The new approach is expressed that concepts of objective interest of the debtor of the obligation for the first time are investigated, and also protected interest of the debtor, their characteristic as objective phenomenon is given, the concept of legal means of protection and maintenance of interest of the debtor is considered and their classification is offered. In work features of application of civil-law means of protection of interests of debtors-citizens as participants of obligations relations, and also insolvent debtors-citizens for the first time are allocated and considered.

On protection the following positions reflecting and concretising scientific novelty of dissertational research are taken out:

1. In debt relationship the party liable (debtor) possesses own interest as is the carrier of corresponding objective requirement. Thus the term źinterest of the debtor in the obligation╗ should be understood 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 carrier of interest (objective interest).

2. Reguljativnoe influence of civil-law norms on participants of the obligations relations, directed on realisation of interest of a party liable, is provided with a recognition behind it of rights, legal obligations and legitimate interests that is ways of legal fastening of interest of the debtor.

3. The objective interest of the debtor which has found fastening in norms of civil law, becomes object of civil-law protection and can be called as protected interest of the debtor. Thus the concept grazhdanskopravovoj protection of interest of the debtor can be understood in two values - in a static condition (reguljativnom influence on participants of obligations relations by means of legal means) and in a dynamic condition (law-enforcement activity).

4. Civil-law protection of interest of the debtor in a static condition is provided with influence of the certificates-regulators fixing legitimate interests of a party liable, its right and a duty, and also establishing guarantees of realisation and protection of protected interest. In this value legal means of protection of interest of the debtor in the contractual obligation are rules of law, and also not standard regulators (chastnoavtonomnye contract positions, pravopolozhenija primenitelnoj experts).

5. The dynamic condition of civil-law protection of interest of the debtor is expressed in realisation by the state bodies and other subjects of the activity directed on creation of conditions of realisation of protected interest and elimination of consequences of its infringement. As legal means for such activity, used in the course of realisation of interest of the debtor the legal possibilities (tools) which have been put in pawn in norms of civil law serve in the obligation. Owing to a functional orientation on the prevention and suppression of infringements of interest of a party liable and elimination of negative consequences of their infringement it is necessary to call legal means of maintenance of interest of the debtor.

6. Legal means of maintenance of interest of the debtor in the contractual obligation should be differentiated on warning facilities and protection frames. The first are used in frameworks reguljativnogo legal relations and applied by the debtor independently (for example, in the form of caution) or by the reference to competent body. The second are realised within the limits of the guarding legal relation which maintenance is the independent guarding right of the carrier of interest (debtor) and a guarding duty of its infringer (creditor). Legal remedies concern them, administrative protection and interest self-defence.

7. Specificity of civil-law maintenance of interest of the citizen - of the debtor who has accepted the obligations with a view of satisfaction of personal, family and other needs, not connected with realisation of enterprise activity, is caused by differentiation of objective interests and a recognition of a priority of objective consumer interest of the citizen before other interests of participants of the obligation. The specified differentiation of interests forms a basis for an establishment of additional obligatory content requirements of the contractual obligation with participation of the citizen - of the consumer, and also fastening of special rules of interaction of the creditor with the debtor concerning obligation execution.

8. Feature of a right protection of interest of the citizen-debtor, not capable to execute in full requirements before creditors, fastening of additional legal means of maintenance of interest of a party liable (the statement for a recognition of the citizen insolvent, the plan of re-structuring of debts, the agreement of lawsuit, etc.), applied within the limits of procedures of an inconsistency (bankruptcy) of the citizen is. Thus with a view of observance of balance of interests of the insolvent citizen-debtor and its creditors it is obviously necessary to change the existing approach about compulsion of rehabilitation procedure of re-structuring of debts of the citizen in favour of a recognition of initiative character of the given procedure.

The Scientific-theoretical importance of research. The substantive provisions presented in dissertational work in the set express modern level system scientifically-tsivilisticheskogo the analysis of various aspects of the mechanism of a right protection of interests of the debtor in the contractual obligation, and also develop and supplement the important sections grazhdanskopravovoj sciences, such as civil-law protection and protection of interests of subjects of civil law, a liability law. Results of dissertational research and the stated recommendations can be used in the course of the further researches of a corresponding civil-law problematics, in particular, institutes of consumer bankruptcy, protection of the rights of consumers with a view of legislation perfection in the given sphere.

The practical importance of results of research. Positions containing in the dissertation, conclusions and the recommendations received as a result of research of positions of rules of law and theoretical workings out in the field of a right protection of interest of the debtor in the obligation, can be used at generalisation pravoprimenitelnoj experts, entering of additions and changes into positions of the current legislation devoted to regulation of financially-legal and remedial questions of protection of the civil rights, in educational process by preparation of uchebno-methodical grants within the limits of civil law courses, and also the separate special courses devoted to the obligations and enterprise right.

Approbation and introduction of results of research. Dissertational research, its results are discussed and approved at methodical seminars and faculty meeting of civil law of Institute of right FGBOU IN źthe Bashkir state university╗.

Work substantive provisions have found reflexion in publications of the author, and also have been used in educational process, including by working out of the working program of discipline "Civil law", at carrying out of lecture and seminar employment with students of Institute of the right of the Bashkir state university.

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

<< | >>
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
¤ţýţ¨Ř ˝ ÝÓ´Ŕ˝ÓÝŔňý ˇ¸ňßÝű§ ­Óßţ˛

More on topic INTRODUCTION:

  1. in introduction
  2. INTRODUCTION
  3. INTRODUCTION
  4. 10.1. Introduction
  5. INTRODUCTION
  6. approbation and introduction of results.
  7. Introduction
  8. Introduction
  9. INTRODUCTION
  10. INTRODUCTION
  11. Introduction
  12. Introduction