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Introduction

Urgency of a theme of research. Declaration of Russia as a lawful state is assumed by necessity of development of the is social-directed national economy, which overall objective - service of requirements of all population.

The important means of the maximum satisfaction of requirements of citizens (which protection of their rights and interests, formations are end users got under the contract of retail purchase and sale of the goods) in qualitative and safe for a life, health and property of the goods, and developments of the civilised market of consumer goods, increases of a standard of living, well-beings of all population the contract of retail purchase and sale which is the final legal form mediating processes of the reference of the goods in sphere of consumption, acts as the basic legal form of trading service of all population.

As a result of absence of a legal order in a daily life of a society throughout many tens years, prominent features of a modern Russian society is presence of such negative phenomena, as low level of sense of justice, total legal nihilism. Because the contract of retail purchase and sale is one of the most mass consumer contracts, the further perfection of the legislation on retail purchase and sale and, the most important, creation of the effective mechanism of realisation of its norms, should promote overcoming of the specified phenomena.

The Social and economic conditions which have developed in Russia for last fifteen years as a result of carrying out of economic reforms, are characterised by freedom of enterprise activity, variety of patterns of ownership, absence of the developed competition, complexity of "know-how", development of economic relations, complication of an economic life of a society. These circumstances, and also a number of others, have affected development, including, and relations of retail purchase and sale.

In the presence of the specified conditions the buyer under the contract of retail purchase and sale appears in unequal position in relation to its counterparts (to the seller, the manufacturer, the importer). The given inequality is aggravated also with that now there is only a market economy formation, and civilised mutual relations of buyers under the contract of retail purchase and sale and their counterparts have not developed yet. During this period the buyer requires the greatest protection from the state.

All it also has caused necessity of basic changes for legal regulation of relations of retail purchase and sale. On February, 7th, 1992 "the Law of the Russian Federation has been passed About protection of the rights of consumers" by which for the first time at legislative level relations have been settled, including, and between consumers and their counterparts at sale of the goods, fundamental laws of consumers and the mechanism of their realisation are fixed. Later, in the Civil code of the Russian Federation (further - GK the Russian Federation) the Russian legislator has fixed legal definition of the contract of retail purchase and sale and has put it for the first time on the first place among separate kinds of the contract of purchase.

Revealing of lacks and blanks in separate positions of the Law of the Russian Federation "About protection of the rights of consumers" and GK the Russian Federation, their backlog from requirements of developing Russian economy has demanded entering into them of some changes and the additions as a whole directed on harmonisation of relations of buyers and their counterparts under the contract of retail purchase and sale and strengthening security of the rights and legitimate interests of buyers.

At the same time, the analysis of the legislation on retail purchase and sale and practice of its application testifies to necessity of the further perfection of legal regulation of the specified relations that is impossible without corresponding scientific base.

The weight allows to approve the above-stated about an urgency and the practical importance of the present research.

Degree of a scientific readiness of a theme. Because during the Soviet period the contract of retail purchase and sale was one of those contracts who to a lesser degree were exposed to public legal regulation, in civil-law jurisprudence of that time to it the big interest was shown. To the given theme addressed in E.V.Alekseeva, Z.G.Ahvlediani, J.J.Lvovich, S.H.Svobodova, E.A.Flejshits, B.L.Haskelberg's works, etc. Later, the big role in development of a problematics of civil-law consumer's right protection, including under the contract of retail purchase and sale, has brought pauchpo-monographic research of A.E.Sherstobitova [1],

For today there are only separate works devoted to some concrete aspects of legal regulation of relations of retail purchase and sale (for example, V.A.Vnukovoj, L.A.Shashkovoj). However complex scientific research of contractual relations of retail purchase and sale taking into account a modern condition of the doctrine, the current legislation and practice of its application in domestic legal science it was not spent. Thus, the subjects of legal regulation of the contract of retail purchase and sale demand the further ╗scientific judgement.

The purpose and problems of dissertational research. The purpose of the present dissertational research is realisation of the complex scientific analysis of legal regulation of contractual relations of retail purchase and sale.

Within the limits of the designated purpose the author of dissertation puts following problems:

- To carry out the analysis of development of scientific views on essence and features of the contract of retail purchase and sale in the Russian pre-revolutionary, Soviet and modern legal science;

- To carry out the analysis of development of legal regulation of relations of retail purchase and sale during the basic historical periods (Soviet and modern) and to reveal prominent features of the legislation on retail purchase and sale;

- To study interaction of norms in the complex legislation, including in the legislation on retail purchase and sale;

- To investigate the bases of classification of the contract of retail purchase and sale in the legislation and to define their value;

- To consider features of legal regulation of separate kinds of the contract of retail purchase and sale;

- To study influence of classification of the civil-law contract on types and kinds on a structure of the legal institution of the corresponding contract;

- To analyse features of subject structure of the contract of retail purchase and sale and legal relations of retail purchase and sale, to consider specificity of cases of plurality of persons in investigated obligations;

- To investigate features of the maintenance and the form of the contract of retail purchase and sale, to establish specificity of an order of its conclusion;

To develop a complex of offers on perfection of the legislation on retail purchase and sale.

Object and object of research. Object of research are the public relations developing between the buyer and the seller in connection with the conclusion, execution and cancellation of the contract of retail purchase and sale. As an object of research the rules of law regulating given relations and expert of their application act.

Methodological basis of research. As the general methodological basis dissertatsionnoju researches the dialectic method has served. Along with it such private-scientific methods, as sravnitelnopravovoj, is formal-logic, tehniko-legal, structurally-legal, a method of the istoriko-legal analysis, an interbranch method of legal researches and some other were applied.

Theoretical basis of research. The theoretical basis of dissertational research was constituted BY MM works. Agarkov, S.SLlekseeva, C, R bratusja, A.K, Bezinoj, M. GBRAGINSKY, N.G.Vavina, V.V.Vitrjanskogo, N.P.Voloshin, F.I.Gavze, K.A.Grave, In L.Gribanova,

Zagvjazinsky, O.S.Ioffe, it is scarlet. Kabalkina, J.A.Kamfera, ГІ. I.Klein, A.D.Koretsky, E.G.Kornilova, O.A.Krasavchikova, V.V. Lazareva, T.L.Levshinoj, J.J.Lvovicha, V.S.Martemjanova, M.N.Marchenko, D.I.Meyer, L.A.Novoselovoj, J.E.Part_ja, B.I.Pugine to go, V.V. Rovnogo, J.V.Romantsa, V.A.Rjasentseva, O.N.Sadikova, A.P.Sergeeva, E A. Cy khans and, JU.K.Tolstoy, E.A.Flejshits, R.O.Halfinoj, B.L.Haskelberga, MJO. CHelysheva, B.A.Shabli, A.E.Sherstobitova, E.F.Shershenevicha, A.M, Erdelevsky, h.p. JAvicha, V.F.Jakovlevoj, etc.

Empirical basis of dissertational research are materials of judiciary practice of the Supreme Court of the Russian Federation, the Supreme Arbitration Court of the Russian Federation, the Supreme Court of Republic Kareliya, Federal arbitration court of the Moscow district, Federal arbitration court of Northwest district, Federal arbitration court Volgo-Vjatskogo of district, Arbitration court of the Chuvash Republic, the Kalininsky regional court of Cheboksary, a judicial site № 1 Kalininsky area of Cheboksary, practice of making contract of retail purchase and sale by sellers of Cheboksary.

Scientific novelty of the dissertation. Scientific novelty of the dissertation is predetermined, first of all that complex research of legal regulation of contractual relations of retail purchase and sale both in theoretical, and in practical aspects for the first time is carried out, taking into account a modern condition of the legislation and practice of its application. In the present dissertational work as the author:

- Legal forms and legislative receptions of interaction of norms in the complex legislation, in particular the legislation on retail purchase and sale are allocated;

The reasons and stages of display of integrated approach of the legislation on retail purchase and sale are established;

- On an example of civil-law regulation of relations of retail purchase and sale the parity between reception of a method of legal regulation and the is standard-issued reception of legislative technics is defined;

- Influence of classification of the civil-law contract on types and kinds on a structure of the legal institution of the corresponding contract is revealed;

- Influence of the maintenance of the investigated norms of the fiscal law on the maintenance of norms of civil law concerning definition of the moment of discharge of duty on service payment (result of work) is defined by cash money resources;

- Classification of imperative treaty provisions of retail purchase and sale is spent;

- On the basis of the spent analysis of legal relations of retail purchase and sale in case of plurality of persons on the party of the buyer and its counterpart kinds of joint liabilities are allocated.

Scientific novelty of the dissertation is concretised in the following the conclusions made in the course of research:

1. Integrated approach of the legislation, including the legislation on retail purchase and sale, is expressed in interaction of norms of various branches of law (parts of the norms which are in various branches of law) at regulation of homogeneous public relations for the purpose of formation of adequate standard base taking into account features of a subject of legal regulation. The specified interaction of norms in the legislation on retail purchase and sale can be carried out in two legal forms: in the form of addition (when norm parts are in various branches of law) and completion (when the norms regulating any relation of retail purchase and sale, are in various branches of law). Thus the legislator uses three basic receptions of interaction: direct sending (to concrete article of the regulatory legal act, to the concrete regulatory legal act or to legislation branch); Use of norm of other branch of law in the complex regulatory legal act (acceptance of the complex regulatory legal act); the actual interaction which legislatively directly has been not defined.

2. Among the general reasons of integrated approach of the majority of branches of legislations, including the legislation on retail purchase and sale, it is possible to allocate: integrated approach of public relations which the legislation urged to regulate; a combination private and public interests in legal relation.

Other reasons of integrated approach of the legislation on retail purchase and sale (and some other legislations with similar subject structure, including consumer legislations) are: presence of an economic inequality (in case of relations of retail purchase and sale being multistage), and, as consequence of necessity of its elimination, - use of ways, receptions of methods of various branches of law,

3. Because interaction of rules of law is shown only in the course of active actions of subjects of law in relation to rules of law, integrated approach of the legislation on retail purchase and sale is shown only at stages of creation and application of rules of law. So, integrated approach of the legislation on retail purchase and sale is shown at following stages of the mechanism of legal regulation: at a stage of formation of legal rules the legislator, at a stage of realisation of the rights and duties participants of legal relations and a pas of a stage of application of the right judicial and executive organs. At a stage of occurrence of the rights and duties at privies for the specified reasons integrated approach of the legislation is not shown.

4. On the basis of the analysis of treaty provisions of retail purchase and sale and its separate kinds fixed by the legislator, the author of dissertation the conclusion is drawn that the concrete parity optional, imperative and is imperative-dispozitivnyh conditions of the considered contract depending on the one who acts on the party of the buyer (the citizen or the legal body (the individual businessman)), is, first, is standard issued reception of legal technics, C which help will of the legislator receives the legal expression and, in - the second, reception of a method of the legal regulation, defining an order of an establishment of a combination of permissions, interdictions and instructions in the concrete rule of law. The given is standard issued reception of legal technics, also as well as reception of a method of legal regulation, are used by the legislator with the same purpose - for weakness protection in the contract and elimination of an existing economic inequality,

5. On the basis of the spent comparative analysis of tax laws and the consumer legislation regarding corresponding sections HK the Russian Federation, the containing rule, payments of taxes and tax collections concerning an order and the Law of the Russian Federation "About protection of the rights of consumers", regulating an order and forms of payment of the performed work (the rendered service), the author of dissertation becomes a conclusion that in the field of protection of the rights of consumers the maintenance of corresponding norms of the fiscal law influences the maintenance of the specified norms of civil law concerning definition of the moment of discharge of duty on service payment (result of work) cash money resources. So, for the purpose of perfection of legal regulation of relations on protection of the rights of consumers, the legislator has reflected borrowed of HK the Russian Federation the scheme of definition of the moment of discharge of duty on tax payment by cash money resources (item item 2 45) in the regulatory legal act of the civil legislation which the Law of the Russian Federation "About protection of the rights of consumers" (item 37) is.

6. Classification of the civil-law contract on types and kinds influences a structure of the legal institution of the corresponding contract. Existence of separate type of the contract causes existence of the legal institution of the contract. Presence of a kind of the contract predetermines existence of legal subinstitute of the contract. Presence of subspecies and other versions of the contract causes existence of more fractional strukturngh divisions of the obligations conventional law, such as groups of rules of law about separate subspecies of the contract which in a science of the name have no now.

7. C the purpose of definition of limits of independence of the parties of the contract of retail purchase and sale in an establishment of its conditions, the author of dissertation it is offered to classify imperative conditions of the specified contract on following bases:

- But orientations of imperativeness of conditions on subjects of the contract:

The buyer and its counterpart;

- On the subject, their establishing: legislatively established imperative conditions and established by the counterpart of the buyer under the contract;

- On degree of participation of the party of the contract in an establishment of its conditions:

Absolutely imperative and is imperative-optional (in which relation more preferential mode can be provided only, in comparison with the established legislator).

8. On the basis of the spent analysis of legal relations of retail purchase and sale in case of plurality of persons on the party of the buyer and its counterpart, the author of dissertation classifies joint liabilities on following bases:

- On used reception of an establishment of a joint liability in the legislation differ: obvious solidarity - in case of the phrase use, with word use is solidary"(with the various terminations); and the latent solidarity - in case of an establishment of the mechanism of solidarity (item 18 of the law of the Russian Federation" About protection of the rights of consumers ", item 1 of item 1096 GK the Russian Federation) or when possibility of occurrence of a joint liability is provided in the most legislatively certain concept of the subject of concrete legal relation {for example, in the concept"consumer"fixed in the Enacting clause of the Russian Federation" About protection of the rights of consumers ");

- On volume of powers of the party of a joint liability: the full and limited solidarity;

- By the form arising recourse obligation: a joint liability with the share and bilateral recourse obligation; the full and partial recourse obligation; corresponding and not

The recourse obligation corresponding to the executed obligation.

9. Within the limits of the offered concept of perfection of legal regulation of relations of retail purchase and sale by the author of dissertation

Necessity of modification of following positions of the Civil code of the Russian Federation is proved: p, I item 428, item 498, item 518 item 2; the law of the Russian Federation "About Protection of the rights of consumers": paragraph 8 of item 2 of item 10 to enter item 11.1"the Order of payment of the goods (the performed work, the rendered service) at use of the non-cash form of calculations"; the Code about administrative violations of the Russian Federation: item 14.7, and also changes in positions of the governmental order of the Russian Federation from May, 13th, 1997 № 575 "About the statement of the list of technically difficult goods in which relation of the requirement of the consumer about their replacement come under to satisfaction in case of detection in the goods of essential lacks", the governmental orders of the Russian Federation from June, 6th, 1998 № 569 "About the statement of Rules of commission business

neprodovolstvennymi ".

The theoretical and practical importance of the carried out research are caused by its scientific novelty.

The theoretical importance is expressed that the conclusions formulated in dissertational work and positions can be used in the further scientific researches, both contracts of retail purchase and sale, and other separate civil-law contracts.

The practical importance of work is defined by applied character of some offers directed on perfection of legal regulation of relations of retail purchase and sale. The carried out research is directed on the further development of legislative base, theoretical approaches and judiciary practice. Along with it, results of dissertational research can be used in educational process of higher educational institutions at teaching of disciplines "Civil law", "Consumer's right protection" and of some other corresponding disciplines and special courses.

Aprobats і ї ╗results of research. The dissertation is executed on chair of the civil and enterprise right Kazan

The state university where its discussion has been spent. Substantive provisions of dissertational research are stated in publications of the author, and also have found reflexion in performances at scientific conferences: International V scientific conference of young scientists "Actual

Problems of private-law regulation "(Samara, on April, 22-23nd, 2005); International VI scientific conference of young scientists" Actual problems of private-law regulation "(Samara, on April, 28-29th, 2006); a theoretical seminar of chair of the civil and enterprise right of the Kazan state university. Separate positions

Dissertational research have been used in pedagogical activity of the author of dissertation by preparation and carrying out of seminar employment at the rate "Consumer's right protection" on faculty of law of the Kazan state university, at a writing and lecturing at the rate "Civil law" in educational process of Cheboksary branch of the Nizhniy Novgorod academy of the Ministry of Internal Affairs Russian

Federations.

The structure of dissertational work is caused by the purpose and research problems and consists of the introduction, two heads consolidating six paragraphs, the conclusions, the list of the used sources and the appendix.

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A source: Horoshavina Hope JUrevna. Legal regulation of contractual relations of retail purchase and sale. The dissertation on competition of a scientific degree of the master of laws. Kazan - 2007. 2007
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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