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Models of participation of the third party in execution of the civil-law Obligations

It is possible to judge reliability of any theoretical model how it is entered in the mechanism of interaction of economic basis and a legal superstructure. If such model allows to resolve the practical problems connected with realisation of standard instructions, or, for example, to prove an optimality of legal regulation of corresponding relations or, on the contrary, proves necessity of change of norms of a positive law it undoubtedly is worthy.

Theoretical installation - źrealisation of interest of the participant of the civil circulation acts as a sufficient and necessary condition of acquisition by such participant quality of the third party in relation to the obligation╗ - assumes that the behaviour of the third party mentioning dynamics of any obligation, should be based upon any legal ground always. In absence of such legal ground the behaviour of participants of the civil circulation, mentioning dynamics of the obligation which parties they are not, does not come under to consideration from the point of view of behaviour of the third party. That is it is a question of an establishment of the certain limits which infringement leads to consequences distinct from consequences of behaviour of the third party - the participant of the obligation. Some of such consequences are necessary for considering through a prism of rules about unjust enrichment.

So, for example, norms of institute of action in another's interest without the commission define situation consequences when the participant of the civil circulation makes the actions which directly have been not directed on maintenance of interests of other person, including when this participant wrongly believes that operates in own interest. Similar actions lead to unjust enrichment formation on party źother person╗ (item 987 GK the Russian Federation). In the given situation it is necessary to understand, what action of the participant of the civil circulation comes within the purview gestora, that is the person operating in another's interest.

Operating in another's interest (interest dominusa) without the commission, gestor realises own interest. Interest gestora differs under the maintenance from interest dominusa. Interest of the last can express an essence of the right which belongs to it, or an essence of a subjective duty which it should extinguish. Interest gestora is formed under the influence of the certain circumstances which have been not connected with presence at it of any rights (including, in the relation dominusa), with execution of any legal obligations (including, in relation to dominusu). It is possible to assume, that to the law the interest maintenance gestora basically is indifferent. The Positive law makes the demand only to realisation of this interest, expressed in such actions which źshould be made proceeding from obvious benefit or advantage and the valid or probable intentions of the interested person and with necessary on circumstances has put care and discretion╗ (the item 1 items 980 GK the Russian Federation). For this reason of action gestora in most cases as it is represented, should fall under an act mode, and an interest essence gestora at such qualification of action it should be considered from the point of view of prompting gestora to assist dominusu.

At the same time, when acts of will of the person for the purpose of repayment of the debt take place, based on mistake belief of that it operates in the interest, but led to repayment of the incorporeal right of the creditor to other person, on the party of this other person there is an unjust enrichment.

In a similar situation it is a question only of one of unjust enrichment forms - superficial acquisition [40]. It is necessary to pay attention what action of the victim repays the obligation so, there is a reasonable question on what difference in what quality operates the person (as the victim or in quality gestora - the third party) if the execution offered by it, repays the requirement of the creditor to its debtor?

It is represented, that the difference basic and it is traced in consequences of such actions. In the action mechanism in another's interest without the commission gestor gets the rights in the relation dominusa in frameworks reguljativnogo obligations irrespective of he or not has approved these actions after their fulfilment gestorom. At unjust enrichment the person who wrongly assumed that pays off the debt, gets the requirement constituting the maintenance guarding (kondiktsionnogo) of the obligation concerning the debtor (the superficial purchaser).

The set example, concerns those cases when erroneous actions of participants of the civil circulation, not being the third person - the participant of the obligation, repay the obligations legal bond of the debtor and the creditor, generating on the party of the debtor unjust enrichment. However unjust enrichment formation is far not a unique consequence of fulfilment of the actions which are falling outside the limits actions of the participant of the obligation. For example, the person can make intentionally actions in interests of the interested person after it knew, that those are not approved by it. Whether such person gestorom is? It is obvious, that is not present: the person who has fallen outside the limits conscientiousness at fulfilment of actions in another's interest, loses the status gestora. At the same time, similar actions lead to the obligation termination, but do not attract any consequences neither for the creditor of this obligation, nor for its debtor. The duty cannot be assigned to the creditor of the extinguished obligation on return executed only on the ground that it does not come under to qualification as superficially got property (item 4 of item 1109 GK the Russian Federation). And for the debtor any consequences of property character in favour of the unfair executor are excluded for the reason, that actions of the last have been made outside of their possible qualification as actions in another's interest [41].

The above-stated examples are anyhow connected with necessity of correct qualification of concrete actions of subjects of the civil circulation, so, and a correct choice of those consequences which can cause these actions. At the same time, in the modern doctrine of civil law to an adequate estimation of model of participation of the third party in obligation execution stir scientific approaches in which result there is a mixture of the specified legal model to other adjacent models of involving in dynamics of the obligation of other persons distinct from the third party - the participant of the obligation.

This problem the roots leaves in research sphere when scientists-jurists have set for themselves a problem to define kinds and forms of participation of the third party in the obligation. Some of them to one of such forms have suggested to carry representation. Thus a starting point of such judgements, probably, those works which the purpose put revealing of various forms of influence of other (third) persons on civil matters, including contractual have acted.

In particular, N.O.nersesov, delimiting representation from other forms of influence of "other" persons on contractual communication, allocated actual partnership (existing in three basic forms - council or the help at a transaction formulation; execution of the obligation by the third party; actions of messengers, rukoprikladchikov, establishments of communication which only inform will to the counterpart), legal partnership (partnership which is necessary for transaction occurrence - consent on fulfilment of legally significant action - material partnership; actions of the persons participating at fulfilment of legally significant action - formal partnership) and situations at which for one person legal consequences follow from the transaction concluded by another besides will of last (to this form the scientist carries, in particular, the Roman design of necessary representation). [42] Stated allows to approve, that N.O nersesov spent accurate border between the representative and the third party - the participant of the obligation. At the same time, some modern writers have erased this border.

So, for example, E.L.Nevzgodina, making a start from installation that the representation is one of forms of participation of the third parties in

Legal relation [43], comes to conclusion: źrepresentation... Shows one of cases of execution of the obligation the third parties╗ [44], that, in turn, has led to necessity of differentiation of representation and putting on of discharge of duty of the debtor on the third party. At the same time, the offered E.L.nevzgodinoj the concept of perception of representation as one of possible forms of execution of the obligation the third party, contradicts its conclusion that, first, representation represents legal relation and, secondly, that within the limits of this legal relation one person speaks on behalf a name of another [45].

It is obvious, that the representative basically cannot represent itself as the third party in debt relationship as the figure of the representative is completely absorbed by a figure of one of the parties in summary actions of the representative of the right and a duty arise directly at the represented. The figure of the representative in dynamics of the obligation as independent subject of the distinct from obligation represented for another party is indifferent. The representative as the separate subject of the distinct from subject, acting on the party represented,

It is perceived only in mutual relations between the representative and represented. The legal ground on which the representative joins in dynamics of the obligation, is not that we name the basis of participation of the third party in debt relationship as its participant. And if execution of the obligation by the third party for the debtor is a question that the representative acts on the party of the debtor in the obligation is available in view of that actions of the representative are perceived as action of the debtor (represented) so, execution of the obligation by the representative is anything other as execution of the obligation by the debtor, but not.

The stated mechanism of participation of the representative in dynamics of the obligation has great value for an establishment of the maintenance of its interest: interest of the representative coincides with interest represented as under the maintenance, and an orientation. In difference from the third party which actions at realisation of its interest mention, including, and dynamics of the obligation which party it is not, the representative makes the actions having an exclusive orientation on dynamics of the obligation in which it carry out either function of the creditor, or function of the debtor.

Stated as it is represented, allows to exclude in general the representative from a circle of the third parties (including from a circle of the third parties - participants of the obligation) in relation to dynamics of any legal relation: the person operating on behalf of the party of the obligation, cannot be the third party as it and is the party of the obligation [46]. The similar approach to understanding of the representative, in turn, allows to concern critically the stated M.I.Braginskim of possibility of differentiation of the third parties in the contract on the third parties which are speaking on behalf of own name, and the third parties, speaking on behalf a name of the party of the contract [47]. Rather disputable acts and the classification of all third parties which are speaking on behalf of own name offered scientists, by criterion of the aims laid down by the parties. The scientist suggests to allocate źfirst of all cases in which third party participation constitutes the purpose of corresponding legal relation╗, namely - the third party beneficiary contract. All other situations of M. And. Braginsky suggests źto divide taking into account with what of the parties of the contract the third parties are connected: passive, i.e. the party of the debtor, or active - the party of the creditor╗ [48]. On a passive side the third party can act as the executor of the obligation or as the helper of the debtor. Third party participation on the active party is shown at acceptance of execution instead of the creditor and execution readdressing.

Not doubting the scientific value offered by M.I.Braginskim of classification, it would be desirable to pay attention to one discrepancy which reduces its reliability: allocation of the active and passive parties (and it is equal, the creditor and the debtor) is characteristic only for the obligation, but not contracts.

E.A.Sukhanov by criterion of subject structure of the obligation allocates: recourse obligations (on transposition of the executed debt on the third party); obligations in favour of the third party (instead of the creditor); the obligations executed (for debtors) the third parties [49]. In the offered classification first of all the attention involves the recourse obligation and possibility of its reference in number of obligations with participation of the third parties.

The scientist states traditional enough approach to definition of cases of occurrence of the recourse (return) obligation: źthe debtor under the basic obligation executes it instead of the third party or because of the third party╗. E.A.Sukhanov explains the recourse mechanism as follows: źthe recourse obligation always arises owing to execution of other, basic obligation, and the debtor under the basic obligation turns to the creditor under the obligation recourse, and the third party takes in it a place of the debtor";"recourse it is possible to consider any obligation in which force the debtor is obliged to make certain actions for the creditor because the creditor has made similar actions in favour of other person instead of the debtor or through his fault╗ [50]. Thus the jurist believes, that źnot any debtor can shift in a recourse order the debt or its part on the third party":" It is admissible only when such third party should become the executor (debtor) under the basic obligation, but owing to the law or the contract the debtor ╗[51] became them. As examples of occurrence of recourse when the debtor executes a duty instead of the third party, the scientist names a case of execution the joint debtor of the obligation in full volume (item 2 of item 325 GK the Russian Federation) and execution by the subsidiary debtor of the obligation (item 3 of item 399 GK the Russian Federation). As an example of execution of the obligation because of the third party the case of compensation of harm by economic association and the production co-operative, caused by their participants (members) is resulted at realisation of enterprise, industrial or other activity of association by the last or co-operative society (item 2 of item 1068 GK the Russian Federation) [52].

Not penetrating deeply in the bases of occurrence of the recourse obligation, there is not clear to what sign this obligation is carried to number of obligations with third party participation. After all in the recourse obligation the third party is absent as that: there is a debtor and the creditor. In dynamics of the recourse obligation there can be a third party, but only for the reason, that, or the debtor will assign execution of the duty to the third party, or the creditor somehow will designate execution in the address or in favour of the third party. There are no third parties and in the mechanism of those obligations which execution can lead to occurrence of recourse (return) action. By rules of item 325 GK the Russian Federation the joint debtor executes a duty in that volume in which the creditor will show. Till the moment of a presentation of this requirement all joint debtors represent the party of the obligation (debtor) and cannot be considered under the relation to each other as the third parties neither at the moment of obligation occurrence, nor at the moment of its execution by one or all joint debtors. The same concerns also obligation executions by the subsidiary debtor (item 399 GK the Russian Federation): the primary debtor and the subsidiary debtor are the parties of concrete obligations in which as the creditor the same person acts. It is represented, that the figure of the third party is not present in the mechanism of execution of a solidary duty and the subsidiary obligation. There is no figure of the third party and in model of the recourse obligation.

Even in a situation of compensation of harm by rules of the special tort (compensation of the harm caused by the worker of the legal person or the citizen - item 1068 GK the Russian Federation), the legal body (and it is equal, economic associations and production co-operatives) compensates the harm caused directly by it as actions of workers are considered as actions of the most legal person. For this reason to speak about the third party within the limits of the specified special tort it is not necessary.

Considering stated, it is necessary to recognise, that the recourse obligation cannot come under to consideration through the mechanism of participation of the third party in the obligation.

Recourse obligations and suggested to carry earlier to obligations with participation of the third parties. In particular, certain interest represents M.K.Sulejmenova's approach which allocated two groups of debt relationships with participation of the third parties by criterion of the norms regulating corresponding relations. The first group is formed by the relations regulated by norms of the General part of a liability law; the second - the relations regulated by norms of the Special part of a liability law. The scientist has carried to the first group: the third party beneficiary contract as which basis of allocation the third party legal status has served; the recourse obligation; attraction to execution of the third parties (the recommission of execution to the third party and execution readdressing); maintenance of the obligation by means of the guarantee and a guarantee; responsibility for actions of the third parties, that basically is connected with execution putting on on the third parties. In the second group M.K.Sulejmenov has carried: dogovory in which participation of the third parties, as a rule, is not supposed; dogovory, the considerable part of norms about which is devoted regulation of relations with the third parties; dogovory, assuming obligatory participation of the third parties for they also consist to enter relations with the third parties; relations with participation of the third parties, arising in tort liabilities (the claim for exoneration right, the tort liability, caused in an emergency condition) [53].

The stated approach is rather inconsistent. Attempt to designate two groups of obligations with participation of the third parties, being guided thus how norms are meted in liability law system (norm of the General and Especial parts), is the extremely unsuccessful: norms of the General and Especial parts regulate not different relations; as is known, general provisions develop and concretised at the expense of special provisions. The scientist could not overcome the given lack, as for the first and second group it uses the same examples. In particular, an example of the third party beneficiary contract he names insurance. The same example (insurance) is used and for an illustration of contracts, the considerable part of norms about which is devoted regulation of relations with the third parties. The recourse obligation besides takes an independent place in the first group of legal relations, also is used as an example of the relations arising from injury [54].

As lack of the resulted classification that the majority of elements of the presented M.K.Sulejmenovym of system of legal relations legal relations are not acts also. So, in addition, it has included elements in system of legal relations under following names: "third party beneficiary contract", źattraction to execution of the third parties╗, źobligation maintenance╗, źresponsibility for actions of the third parties╗, "dogovory", "relations". It is clear, that at such disorder of used terminology it is difficult to realise the theoretical and practical importance of the author's approach that excludes possibility of its use as authentic classification of obligations with participation of the third parties.

In the civil law doctrine other classifications of obligations with participation of the third parties have been offered also. However there is an occasion to doubt their reliability for by their working out there was no accurate criterion of differentiation of such obligations and as consequence there were possibilities of absorption of one classification group another. For example,

L.F.Netishinskaja offers numerous cases of participation of the third party in the obligation: obligations in which the third parties have the right of the requirement on the basis of the law; obligations in which to the third parties pass the rights of the creditor on the basis of the law; situations in which the third parties have the right to demand from the creditor under the recourse obligation, etc. [55]

Depending on necessity of participation for execution of the obligation of the third party, it is possible to allocate three basic groups of obligations:

- Obligations in which participation of the third parties is not supposed (obligations of strictly personal character);

- The obligations supposing participation in their execution of the third parties (for example, contract obligations, in particular, the obligations arising from the contract building podrjada, and also all other obligations, which execution it is possible the third party or acceptance of execution on which is possible the third party);

- The obligation which means participation of the third party in its execution (in particular, arising from the prisoner in execution of a contract of financial rent of the contract of purchase of object of leasing, and also arising at making contract in favour of the third party). [56]

The given classification allows to group obligations depending on necessity of participation for their execution of the third party, however, does not allow to explain the reason, the precondition of participation of the third party in obligation execution, and also to realise features of influence of the third party on its dynamics.

The third party figure in designs of the civil-law obligation is entered by means of its impregnation into elements of appropriate execution of the obligation (obligation execution to the appropriate person, the appropriate person, an appropriate subject, in the appropriate place, appropriate way, in due time). Third party occurrence as a rule involves change of any attribute of appropriate execution of the obligation. So, in the contract, the third party beneficiary contract constructed on model, from the moment of expression by the intention third party to take advantage of the right under such contract, such attributes of appropriate execution, as change: execution to the appropriate person and in an appropriate place. Features of involving of the third party in obligation execution depend and on character of the obligation: The third party can take part in execution both contractual, and non-contractual obligations, including in obligations arising from unjust enrichment, delictual and maintenance obligations. [57]

Thereupon it is obviously necessary to make classification of participation of the third party in debt relationship executions, by means of the combined criterion including two elements - the first element is reduced to the obligation party on which the third party acts; the second element reflects features of interest of participants of the debt relationship which realisation provides third party involving in dynamics of the obligation.

Thus, the third party, not being the debt relationship party (further such obligation we will name the basic obligation), can participate in its execution within the limits of two basic models:

I model - participation of the third party in execution of the basic obligation on the party of the debtor;

II model - participation of the third party in execution of the basic obligation on the party of the creditor.

Allocation of the specified models is caused not only third party position in relation to the creditor or the debtor, but also and interest as third party, and the debtor (creditor), causing possibility or necessity of influence of the third party on dynamics of the basic obligation [58].

Participation of the third party in execution of the basic obligation on the party of the debtor (I model) is reduced to execution by the third party of a duty of the debtor in the basic obligation. Thus third party participation on the party of the debtor is caused by interest of directly third party. Such interest lays outside of the purpose of execution of the obligation existing between the creditor and the debtor. However interest of the third party is not always indifferent for the creditor. So, according to item 2 of item 313 GK the Russian Federation, the creditor is obliged to accept the execution made by the third party in the event that the last is endangered to lose the right to property of the debtor owing to the collecting reference on this property, i.e. possesses interest in preservation of the property sphere. For lack of such interest, the creditor is not obliged to accept execution.

Now in world laws and orders there were three basic approaches to execution of the obligation by the third party: procreditor, balanced, prodolzhnikovyj. [59] In the procreditor approach the will of the debtor has no legal effect at execution by the third party of the impersonal obligation; prodolzhnikovyj the approach, on the contrary, demands the indispensable consent or approval of the debtor at execution for it of the obligation the third party; within the limits of the balanced concept interests of all privies are considered. [60]

The domestic legislation has apprehended the mixed concept. So, item 1 of item 313 GK the Russian Federation establishes the general basis supposing participation of the third party on the party of the debtor: putting on by the debtor of execution of the duty on the third party. In other words, the execution offered by the third party for the debtor, assumes presence of the expressed will of the last. In it the concept which should be perceived as a key rule having a number of exceptions in favour of the procreditor concept is shown prodolzhnikovaja: the law has provided cases when will of the debtor becomes indifferent for the purpose of execution of the basic obligation the third party (item 2. Item 313 GK the Russian Federation). It is a question of execution by the third person of the delayed liability and about execution by the third party of such obligations which default creates danger of forfeiture of the third party on property of the debtor owing to the collecting reference on this property. Thus, norms of a positive law, giving a priority prodolzhnikovoj concepts at definition of the basis of participation of the third party in the obligation on the party of the debtor, consider also the procreditor concept within the limits of special rules.

At the same time, despite the fact that, whether the law of presence of will of the debtor on participation of the third party in obligation execution demands, or such will it is not required, the basic precondition of participation of the subject of civil law in the obligation execution, which party it is not (the basic obligation), acts always interest of this subject. Realisation of the given interest acts as a sufficient and necessary condition of acquisition by such participant quality of the third party in relation to the basic obligation. Thus interest of the third party always is outside of the purpose of the basic obligation.

As a result to state an estimation to a legal ground of participation of the third party in execution of the basic obligation on the party of the debtor, it is necessary to understand the maintenance of interest of the third party. Interest of the third party which realisation mentions dynamics of the basic obligation Is represented, that, in the mechanism of discharge of duty of the debtor can be expressed in following forms.

First, in repayment of the existing legal bond and, as consequence, the obligation termination as which parties act the debtor and the third party (further - the auxiliary obligation). In such obligation the third party always is the debtor, and as the creditor the debtor under the basic obligation acts; as result (benefit) at achievement by the third party of interest which has served as the precondition for influence on dynamics of the basic obligation, acts: the termination of the auxiliary obligation existing between the debtor and the third party; reduction of the size of a duty of the third party in such auxiliary obligation.

In the cases designated above execution by the third party (the debtor under the auxiliary obligation) the duty before the creditor (the debtor under the basic obligation) is made not to the creditor, and the person specified to it (to the creditor under the basic obligation). Such execution within the limits of execution of the auxiliary obligation is connected first of all with change of an appropriate place of execution. Having executed this duty entirely, the third party satisfies own interest in repayment of the auxiliary obligation. Part performance of this duty leads to satisfaction of interest of the third party in change (reduction) of the size of a debt under the auxiliary obligation. From the point of view of dynamics of the auxiliary obligation it means, that third party actions have an exclusive orientation on achievement of the purpose of the auxiliary obligation. Achievement of such purpose is expressed in corresponding legal result - repayment of a debt of the third party (or change of its size) before the creditor.

Communication of execution of the auxiliary obligation with execution of the basic obligation occurs through one person who simultaneously acts in two ipostasjah - the creditor under the auxiliary obligation and the debtor under the basic obligation. Comparability of two separate obligations (auxiliary and the basic) on elements of appropriate execution allows to combine in one time point one of stages of dynamics of these obligations - their execution. In spite of the fact that each such obligation has the exclusive purpose expressed in concrete legal result, their execution is reduced to one active third party action. Thus for the purpose of execution of the basic obligation the given third party action is considered action of the debtor.

Thus, the provided interrelation of two different obligations through coincidence in one person of the debtor and the creditor of these obligations, allows to mention realisation of interest of the third party in the auxiliary obligation dynamics of the basic obligation one active action of this third party. Most brightly the interrelation of two different legal bonds is shown in sphere of a turn of money resources when the debtor under the basic obligation shifts execution of the duty on the debtor (third party) under the auxiliary obligation. In it action prodolzhnikovoj concepts of execution of the obligation is shown by the third party.

Secondly, 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. Interest achievement is carried out at the expense of fulfilment by the third party of action which for the purpose of execution of the basic obligation is discharge of duty of the debtor, and for the purpose of the established legal bond between the third party and the debtor acts as anything other as clearing of a property duty of the debtor (donee) before the creditor by means of execution of its duty by the third party (donator). In a similar situation interest of the third party (donator) is expressed in prompting of occurrence of certain thorough enrichment on the party of the donee at a rate of that last should give to the creditor under the basic obligation. The target orientation of similar thorough enrichment has predetermined formation in a legal superstructure of such model of the gift contract which would allow, passing the debtor to give property granting to directly person before whom the donee has a debt (to the creditor under the basic obligation). This model has received the name clearing of a property duty.

For explanation of a being of the given form of expression of interest of the third party (donator) it is important to understand, that realisation of its interest corresponds to action on clearing of a property duty of the donee before other person completely or in a certain part. This other person in the mechanism of clearing of a property duty will be always perceived as the third party, no less than the donator, but already in the mechanism of execution of the basic obligation, will be perceived also as the third party. Interest of the third party (donator) under any conditions will not coincide with interest of the debtor: within the limits of the gift contract they are opposite; at a parity of interest of the third party as donator and interest of the debtor in the basic obligation they differ under the maintenance. At the same time, realisation of interest of the third party will always lead to satisfaction of interest of the debtor in the basic obligation.

Thirdly, in preservation of property sphere of the third party which is subjected danger of loss of the right to property. Realisation of interest of the third party in preservation of the property sphere is expressed in operation this third party on some property granting which corresponds with action of the debtor under the basic obligation. The size of property granting is defined by such size which will be sufficient for elimination of threat to property sphere of the third party that is impossible without its comparison to the size of a duty of the debtor in the basic obligation. Only under condition of conformity of property granting to conditions of the basic obligation repayment of the last or reduction of volume of a duty of the debtor on it will lead to satisfaction of interest of the third party. In other words, achievement of the purpose of the basic obligation by its appropriate execution, and is equal reduction of volume of a duty of the debtor in the basic obligation, leads to satisfaction of interest of the third party only for the reason, that mentioned dynamics of the basic obligation acts as a condition of preservation of corresponding property rights of the third party.

The similar model of participation of the third party in execution of the basic obligation is a consequence of perception the domestic legislation of the procreditor concept of execution of the obligation the third party. Thus, unlike two previous forms of realisation of interest of the third party, the given form of realisation of interest does not assume any other legal ground distinct from the letter of the law (i.e. participation of the third party in execution of the basic obligation is possible owing to law express indication).

Fourthly, in legal bond occurrence - obligations between the debtor and the third party in which the third party becomes the creditor. The given form of realisation of interest of the third party excludes any agreement between the third party and debtors, and the order (other certificate) from the debtor on execution of its duty is equal. Possibility of inclusion of the third party in dynamics of the basic obligation is provided exclusively by norms of a positive law within the limits of the models ordered to it.

As basic feature of realisation of interest of the third party, which result occurrence of the new legal bond acts, that the third party, as a rule, is not connected with one of the parties of the basic obligation any legal communication is. The similar mechanism of participation of the third party in execution of the basic obligation should be perceived as an unusual case that is why to it should is shown increased requirements from the point of view of necessary scale of diligent behaviour, including inadmissibility of abusing by the civil rights.

The obligation therefore represents the relative legal bond as participation in it is interesting only to direct (concrete) participants of the civil circulation - to the creditor and the debtor. Occurrence at execution of the basic obligation of a certain subject which is not connected with one of the parties of obligations, looks at least absurd. However, the law supposes formation of such not illegal interest of participants of the civil circulation which realisation can play the role in civil circulation optimisation, including by means of elimination of defects of the basic obligations by their execution.

The new legal bond can act as a consequence: executions by the third party of the delayed liability for the debtor both from its permission, and without that; fulfilment by the third party of actions in another's interest without the commission; executions of obligations of the debtor by the third party at bankruptcy procedure (unlike a design of interest of the third party in preservation of property sphere, in this case interest in occurrence of the new legal bond between the third party and the debtor is shown as the basic precondition of participation of the third party in the obligation, instead of as consequence of satisfaction of interest of the third party in preservation of the property sphere).

So, it is possible to make an intermediate result concerning character of interest of the third party in cases when such person participates in execution of the basic obligation on the party of the debtor (I model). The Third party within the limits of investigated model is the person having interest:

- In repayment of the existing legal bond (and it is equal, in its change) and, as consequence, the termination of the auxiliary obligation;

- 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;

- In preservation of property sphere of the third party which is subjected danger of loss of the right to property;

- In occurrence of the new legal bond - obligations between the debtor and the third party in which the third party becomes the creditor.

At perception of each of reduced forms of display of interest of the third party within the limits of I model it is important to consider and that fact, that participation of the third party in execution of the basic obligation is not limited to only contractual sphere; the third party can participate and in execution of non-contractual debt relationships, including guarding.

Participation of the third party in execution of the basic obligation on the party of the creditor (II model) is characterised by specificity of display and the account of interest of the third party, distinct from display and the account of interest of the third party within the limits of I model of participation of the third party in obligation execution.

Requirement of participation of the third party on the party of the creditor it is caused, first of all, by existence of the numerous contractual communications arising between subjects of economic activities. Occurrence in dynamics of the obligation of the third party on the party of the creditor is always caused by presence of the certain legal bond existing between the creditor and the third party. The satisfaction of interest of the third party occurs by means of reception of a certain material benefit so, directly realisation of this interest occurs at the expense of third party actions on acceptance of execution from the debtor of the basic obligation. Thus it is necessary to understand, that reception of a certain material benefit by the third party not always pursues the aim of enrichment of the last; the third party can act only as one of links in a chain of the interconnected persons. But that it was possible to talk about third party involving in dynamics of the basic obligation not enough its only one will on acceptance of execution. He/she is the creditor allows to appear to the third party in the obligation on its party and it defines character of participation of the third party in execution of the basic obligation. For this reason whatever was the interest of the third party in the mechanism of execution of the basic obligation to it is not given that value which is given to interest of the third party when that acts on the party of the debtor.

In model of participation of the third party in obligation execution on the party of the creditor basic (qualifying) value for definition of that role which is taken away to the third party, gets the maintenance of interest of the creditor. Thus it is necessary to understand, 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. Reception of property benefit by the third party is provided with the conclusion of such contracts which are under construction on the general contractual design - to the third party beneficiary contract. Feature of realisation of a design of the third party beneficiary contract consists that the third party can as to remain behind frameworks of the parties of the obligation, and in certain cases to replace the party of the basic obligation - the creditor;

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. Such appropriate place execution is adhered to the concrete addressee - to the location or a third party residence. The given design of involving of the third party in dynamics of the basic obligation is characterised by that realisation of interest of the creditor (depending on its maintenance) can result as in property benefit of the creditor, and property benefit of the third party. For example, execution readdressing in the location of the counterpart which, not getting the incorporeal right of discharge of duty to own advantage and not getting the property right to transferred property, starts execution of the duties before the creditor, will undoubtedly lead to property benefit of the creditor. The third person can receive benefit at execution readdressing in the event that it gets the certain right to transferred property, for example, when the gift is handed over by the debtor to directly third party.

Hence, the third party within the limits of II model is the person involved by the creditor in execution of the basic obligation or as the subject of property benefit, or for the purpose of definition of an appropriate place of execution of the basic obligation.

Thus, features of participation of the third party in execution of the basic obligation can be reduced to two models: I model - participation of the third party in execution of the basic obligation on the party of the debtor; II model - participation of the third party in execution of the basic obligation on the party of the creditor. The given models are allocated on the basis of the combined criterion including two elements - the first element is reduced to the obligation party on which the third party acts; the second element reflects features of interest of participants of the debt relationship which realisation provides third party involving in dynamics of the obligation. In other words, the criterion of differentiation of the offered models lays not so much in a plane of subject structure of the basic obligation, how many in a plane of definition of character and the form of realisation of interest of the third party. If the third party acts on the party of the debtor realisation of interest of the third party has qualifying influence on definition of consequences of its participation in dynamics of the basic obligation. In case of third party participation on the party of the creditor, qualifying value for definition of specificity of its participation in dynamics of the basic obligation and those consequences which arise owing to satisfaction of its interest, is taken away to the maintenance of interest of the creditor. Thus it is important to understand, that third party participation on the party as the creditor, and the debtor, does not form neither active, nor passive plurality of persons in the basic obligation.

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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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