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§1. "Client" dogovory about rendering of services of telecommunication: local, vnutrizonovoj, long-distance and international telecommunication, mobile radio telephone communication.

Since Alexander Graham Bell in 1876 has received the patent for the invention - phone, has passed more than century. Now it is difficult to us to present the life without daily dialogue with the help of phone.

«Phone became for each of us, and furthermore for people of the young generation, necessary attribute of a modern life». [142]

In regulation of contractual relations in the field of rendering of telecommunication services, including telecommunication services, one of the major questions is finding-out of a parity of norms of the civil law containing in the Civil code of the Russian Federation, in the Law «About communication» and the Rules of rendering of services of telecommunication approved by the Governmental order of the Russian Federation from December, 9th, 2014 № 1342 (further «Incorporated rules»). [143]

So, item 1 of item 4 of the Law «About communication» establishes, that the legislation in the field of communication is based on the Constitution, the Law «About communication» and other federal acts. At close interpretation of specified article should follow, that the norms containing in G razhdanskom the code of the Russian Federation, to relations in the field of communication are not applied. However the given conclusion hardly is true. Owing to item 1, item 2. Law items 44 «About communication» in territory of the Russian Federation a telecommunication service appear on the basis of the civil legislation and rules of rendering of the telecommunication service approved by the Governmental orders. Moreover, in item 2 of item 779 of chapter 39 of the Civil code of the Russian Federation «Vozmezdnoe rendering of services» is directly specified, that positions of the present chapter are applied to contracts on rendering of a telecommunication service.

Thus, in our opinion, the statement of item 1 of item 4 of the Law «About communication» demands updating, and it is necessary to include instructions in the given point that relations between the telecommunication company and clients of such company concerning rendering of telecommunication services are regulated

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The civil legislation.

The current legislation about communications, including Incorporated rules, is not contained by concepts of the contract on rendering of services of telecommunication, however as a result of system interpretation of Rules of rendering of services of telecommunication under such contract it is offered to understand the agreement between the telecommunication company and the subscriber [144 [145]/user (client) about rendering to the subscriber/user (client) of services of telecommunication. As it will be visible further, the contract on rendering of services of mobile radio telephone communication at desire of the client can have the mixed character and to contain brokerage contract elements about realisation by the telecommunication companies of activity on transfer of orders of subscribers/users by services of telecommunication (clients) - physical persons to the credit organisations about increase in the rests of electronic money resources of such clients at the expense of the money resources brought of the telecommunication company for a telecommunication service.

According to Incorporated rules it is necessary to understand as telephone connection established (as a result of a call) interaction between a communication facility, allowing the subscriber (user) to transfer and (or) to accept the vocal and not vocal information (item 2 of Incorporated rules).

In spite of the fact that the current legislation for the present is not

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Technologically neutral, in the legislation such term, as «the fixed telecommunication service» is not applied. Relations concerning rendering of the fixed services of telecommunication develop recognising that for rendering of the given services the wire (physical) communication line (a network of fixed telecommunication) is necessary, which can be executed with use of various technologies (copper wires, an optical fiber and so forth), connecting a communication centre of a network of telecommunication with the user's equipment. [146]

However with development of technologies so-called «last mile» can be constructed with use of radio-waves (without use of physical objects of type of wires), thus, considering, that connection occurs to the fixed network of telecommunication, the given services also can be carried to services of fixed telecommunication.

Mobile services of telecommunication work by a principle of "wireless" technologies, using for connection to a network of mobile radio telephone communication identification modules (SIM-cards) which, according to item 2 of Incorporated rules represent the electronic data carriers established in user's station (the user's device) with which help identification of the subscriber by a communication statement is carried out, access of user's station (the user's device) to a mobile communication network, and also protection against not authorised use of user's number is provided.

Thus, division of services of telecommunication into services of fixed telecommunication and mobile telecommunication develops proceeding from technologies of the organisation of access to such telecommunication service that attracts differentiation of legal regulation of such relations. Introduction in the legislation in branch of communication of the term the "fixed" services of telecommunication under which followed understands services local, vnutrizonovoj, long-distance and international telecommunication on the fixed networks of telecommunication, would be timely and would lead to necessity elimination in details to describe the given services in [147]

The contracts concluded directly with subscribers (users) of services of the given category of telecommunication.

Differentiation of services local, vnutrizonovoj, long-distance and international telecommunication is under construction by a territorial principle. So, telephone connections within municipal union are local calls. For a possibility to carry out such telephone connections between the telecommunication company and the client the contract on rendering of services of local telecommunication consists. For realisation of telephone calls within the subject of the Russian Federation the contract on rendering of services vnutrizonovoj telecommunication consists. For possibility of realisation of calls in long-distance directions (if settlements are in different subjects of the Russian Federation) and (or) calls in other states consist dogovory about rendering of services of long-distance and international telecommunication. The technology of rendering of the given services is constructed in such a manner that services of long-distance and international telecommunication can render only

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One telecommunication company.

With development of possibilities of electronic payments and with introduction in action of norms of the legislation regulating a procedure of such payments, including the Federal act «About national payment system» from June, 27th, 2011 № 161-FZ (further the Law «About NPS»), the prisoner between the telecommunication company and the subscriber (user) the contract on rendering of services of mobile radio telephone communication gives possibility to such subscribers/users - to physical persons (clients) in [148]

Realisation of electronic payments from the personal account opened at the telecommunication company on which money resources for telecommunication fee are enlisted. Thus activity

The telecommunication companies in this case consists in transfer of the order of the client submitted by means of a communication facility, about increase in the rest of electronic money resources in the credit organisation at the expense of the money resources brought of the telecommunication company, for the purpose of the further payment of the goods, works, services of the third parties (Law item 13 «About national payment system»). After increase in the rest of electronic money resources in the credit organisation the telecommunication companies reduce the rest of the money resources reflected in personal accounts of subscribers/users (clients), for the same sum and list a similar sum of money in the credit organisation.

The subject structure of contractual relations about rendering of services of telecommunication is characterised by compulsory attendance on the party of the person rendering services of telecommunication, the subject with a special legal status, namely the telecommunication company. On the party of that person which consumes telecommunication services, the client - the legal body or the physical person can act. Thus for the legislation in branch of an extramarital affair of the client "subscriber" - i.e. the person with whom the telecommunication company concludes the contract on rendering of services of telecommunication at allocation for these purposes of a unique code of identification or user's number, or the user can act - i.e. The person ordering and (or) using services of telecommunication without allocation for these purposes of a unique code of identification or user's number (an example of consumption of services of telecommunication using the payphone in this case can be, established in point of collective access).

At user's number, according to item 2 of Incorporated rules, it is necessary to understand the telephone number unequivocally defining (identifying)

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Terminal element of a communication network or connected to a mobile communication network user's station (the user's device) with established in it (in it) the identification module (SIM-card). Thus, user's number urged to identify the terminal (user) device. The similar role is carried out by unique identification number. [149 [150]

Point 25 of Incorporated rules contains a duty of the subscriber - the legal person to give to the telecommunication companies of data on «actual users of the equipment of the subscriber of the legal person» - physical persons (a surname, a name, a patronymic (at presence), data of the document proving the identity, the residence address), thus specified persons are not the party under the contract. It is in addition important to notice, that in the contract on rendering of services of the mobile radio telephone communication, concluded between the telecommunication company and the subscriber - the legal body, possibility of realisation of electronic payments about which it was spoken above, according to the current legislation (ch. 1.1. Law item 13 «About NPS» and item 4 of item 54 of the Law «About communication») is given only to users of the legal person (the subscriber under the contract) - to physical persons. Probably, specified designs regarding introduction of such "subjects" in contractual relations about rendering of services of telecommunication are based on fiction of existence of the legal person («...fiktsija it is always proved from practical needs, eliminating contradictions in system, allowing it successfully to function»). [151]

From models of participation of the third parties known to legal science with reference to contractual relations it is necessary to consider models of the third party beneficiary contract and the contract with execution to the third party. The basic difference of such models is that in the third party beneficiary contract the third party can declare the requirement to the debtor obligation execution to own advantage. In case of execution to the third party the creditor to specify to the debtor to whom it can is necessary to execute the obligation.

O.S.Ioffe such appointment of the addressee named «execution readdressing». [152 [153]

M.I.Braginsky concerning the third parties has spent multilevel classification, having allocated the third parties which speak on behalf own name (third party beneficiary contract), and the third parties connected with one of the parties of the contract: with a passive side - the debtor or the active party - the creditor. If to consider the third parties on a passive side speech can go about the executor of the obligation or about the helper of the debtor. If it is had in view of the third parties on the active party it is possible to say about acceptance of execution instead of the creditor or that the third party addresses to other party under the contract of the requirement on execution. Thus, if the third parties speak on behalf a name of the debtor or the creditor, speech always goes about

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Representation.

In the current legislation to regulation of relations «in favour of the third party» it is devoted item 430 of the Civil code of the Russian Federation, and questions of execution to the third party - item 312 of the Civil code of the Russian Federation.

If at the analysis of the contract on rendering of services of mobile radio telephone communication regarding agency activity of the telecommunication company to start with the model «in favour of the third party», in this case from the moment of expression of will of the corresponding third party (the user - the physical person of the user's number allocated under the contract to the subscriber - to the legal body, further «the user - the physical person») in the specified part of the right and a duty arise between the telecommunication company and such user - the physical person.

At use of such model it is necessary to consider, that according to item 2 of item 430 of the Civil code of the Russian Federation if other is not statutory, other legal acts (and it in this case it is not provided) or the contract, from the moment of expression by the third party to the debtor of intention take advantage of the right under the party contract cannot to terminate or change the contract concluded by them without the third party consent. Thus, at design use «in favour of the third party» at making contract about rendering of services of telecommunication, the brokerage contract containing elements regarding use of electronic payments, action of the specified norm should be excluded the agreement of the parties. Otherwise it is necessary to consider, that contract change will be impossible without the consent of all

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The third parties participating in the contract.

Meanwhile, the specified model «in favour of the third party» has the advantages regarding protection of the rights of the third parties as the telecommunication companies will directly bear responsibility before users - physical persons regarding execution by such companies of obligations on transfer of orders of [154] users - of physical persons to the credit organisations for the purpose of realisation of electronic payments. Besides everything, in such design the subscriber - the legal body does not leave the contract, and also can demand from the debtor (the telecommunication companies) execution of obligations in favour of users - physical persons. Thus, according to item 4 of item 430 of the Civil code of the Russian Federation if the user - the physical person has refused the right given to it under the contract with the telecommunication company, the subscriber - the legal body cannot take advantage of the right given to it as it contradicts the law, namely the item 13 Laws «About national payment system».

However an essential lack for users - physical persons of the specified design is that the debtor (in this case the telecommunication company) has the right to make against demands of the user - the physical person of objection which it could put forward against the subscriber - the legal person (item 3 of item 430 of the Civil code of the Russian Federation). Such condition of the current legislation is necessary for considering at making contract about rendering of services of mobile radio telephone communication on model «in favour of the third party».

At model use «executions to the third party» should be considered, that in this case speech should go about representation. Accordingly, before execution of obligations on transfer of orders of users - physical persons to the credit organisations for the purpose of realisation of electronic payments the telecommunication company has the right to demand from the subscriber - the legal person or is direct from the user - the physical person of that acknowledgement, that execution is carried out to the appropriate person. In this case the third parties (users - physical persons) do not get independent incorporeal rights, and act as representatives of the subscriber - the legal person. Thus, in the specified design the telecommunication companies should bear responsibility for appropriate execution of obligations directly ahead of the subscriber - the legal body.

It is represented, that at the moment at making contract about rendering of services of mobile radio telephone communication with the subscriber - the legal body, the brokerage contract containing elements, use as models «in favour of the third party», and models with «execution to the third party» is possible. Thus in the first case on transfer of orders of users - physical persons to the credit organisations the telecommunication companies will bear responsibility directly ahead of such users-physical persons, and in the second - before the subscriber - the legal body.

At an estimation of contracts on rendering of services of telecommunication in hotels, houses otdyhah, boarding houses and so forth places of time stay of citizens (further as a whole "hotel") it is necessary to consider, that, as a rule, the current model of such contracts is under construction that the hotel itself represents itself as the subscriber - the legal person in the contractual relation about rendering of services of local telecommunication. Up to a point the contract between the lodger and hotel, as a rule, provides rendering to the lodger of a complex of services which number includes also telecommunication services, model «executions to the third party» (unlike contract model «in favour of the third party») in bolshej to degree is equitable to interests of the parties. So, in model of execution to the third party the telecommunication companies bear responsibility before hotel, and already in turn hotels answer under the obligations to lodgers. Concerning hotels, considering, that those are not the telecommunication companies (as a rule) and have not the right to render telecommunication services as do not possess the corresponding status, hotels in this case assign execution of obligations to the telecommunication companies (i.e. the model when obligation execution is assigned to the third is used

The person, item 313 of the Civil code of the Russian Federation).

As to object of contractual relations on rendering of services of telecommunication mediated through obligations relations that is such object of the civil rights as rendering of services.

In this case it is a question of telecommunication services. As it is marked in M.S.Barannikova's work to [155] rendering of services (and in this case to rendering of services of telecommunication) as to object of the civil rights following lines are characteristic: first, concrete and unequivocal instructions on activity which should be made (to provide possibility of an establishment of telephone connection and transfer on such connection of the vocal or not vocal information); secondly, the instructions on specific effect in which should result service rendering, and such effect cannot carry the form of independent object of the civil rights (in this case as effect data exchange possibility acts), and (or) the moment of the termination of rendering of service (separation of telephone connection); thirdly, consumption of service at the moment of its rendering (transfer and reception of the vocal and not vocal information during telephone connection).

If with understanding of the vocal information of questions does not arise, «not vocal information» Incorporated rules do not contain special decoding of concept. In this connection there is a question on legal qualification of a situation with transfer of faxes as on the one hand transfer of faxes according to Supervising document of branch «Telematic services», the approved Order of Ministry of Communications from July, 23rd, 2001 № 175, facsimile services (fax) are carried to telematic services, and on the other hand, in licence conditions of rendering of services of telecommunication according to the Governmental order of the Russian Federation from February, 18th, 2005 № 87 «About the statement of the list of names of the telecommunication service brought in the licences, and lists of licence conditions» it is underlined duty of the operator of services of telecommunication to provide possibility of transfer of faxes as a result of an establishment of telephone connection. The question on correlation of a telecommunication service, including regarding a possibility of transfer of faxes, already rose in the literature, [156] nevertheless, in practice till now there is a question on necessity of reception by the operator of telecommunication of the licence for rendering of a telematic telecommunication service for granting of possibility of transfer of faxes. Considering what technologically to transfer a fax probably by means of telephone connection, to solve the given ambiguous situation it would be possible by modification of Incorporated rules which would establish possibility to transfer among not vocal information on the established telephone connection faxes. Besides, short text messages concern number of not vocal information (sms).

As follows from definition of concept of a call, possibility to transfer and (or) to accept the vocal and not vocal information it is given only to the subscriber or the user of services of telecommunication (but not services in data transmission, for example). Meanwhile, for today introduction at legislative level (by the edition of the special standard legal act, or by modification of Order mininformsvjazi from August, 8th, 2005 is represented proved and from the point of view of a level of development of technologies which can provide appropriate quality, and from the point of view of requirement for such service, and also with use of a principle of a technological neutrality, № 98 «About the statement of requirements to an order of the admission of the traffic in a telephone system of communication of common use» and entering of respective alterations into Incorporated rules) possibilities under the admission of the vocal traffic from a telephone system of communication of common use in a network of data transmission and back, that would give possibility legally to make calls and video calls with use so-called IP a telephony. In practice it would mean possibility to make calls from the computer, a tablet, a mobile phone on a data transmission network (analogue Skype) and to finish such calls on usual phones of users (mobile, stationary) and back. For today such services appear the subjects who are not residents of the Russian Federation, or residents, but with possibility to make such calls only on a network of data transmission without an exit in a common use telephone system (i.e. For example, to make calls from the computer on the computer, but not from the computer on phone). Settlement of the given actual relations would allow to promote further in the field of construction of the information society characterised by a high level of development of information and telecommunication technologies and their heavy use by citizens, business and public authorities, [157 [158] [159] as it is provided «by Strategy of development of an information society in the Russian Federation», the Russian Federation approved by the President on February, 7th 2008 N Пр-212.

As to the form of contracts on rendering of services of telecommunication according to item 21 of Incorporated rules the user's contract consists in writing or in points of collective access by implicative actions. The legislation in branch of communication does not explain concept «point of collective access». Proceeding from system interpretation of the legislation in sphere of telecommunications under that it is offered to understand territory on which possibility of reception of a telecommunication service by an unlimited circle of persons with involvement of the equipment of the telecommunication company (for example is organised, the organised points of long-distance negotiations with the established telephone automatic machines, the established computers with possibility of access to the network "Internet") or with involvement of own user (terminal) equipment of clients (for example, possibility of access to the network "Internet" on technology Wi-Fi c the help of own mobile phone).

Thus, in points of collective access the single contract on rendering of telecommunication services can be concluded implicative actions as which, for example, can act a set of telephone number on the telecommunication equipment specially established in point of collective access.

Concerning the form of contracts on rendering of services of local and mobile telecommunication of doubts as does not arise: such dogovory consist in writing.

However, considering, that under the general rule the contract on rendering of services of telecommunication should consist in writing, and only by way of exception can consist implicative actions in points of collective access, there is opened a question concerning the form of contracts on rendering of services vnutrizonovoj and long-distance and international telecommunication (if those appear not in points of collective access, for example, and in premises). According to item 22 of Incorporated rules in the contract concluded in writing, should be specified a number of "conditions" (not concerning essential treaty provisions, but obligatory to inclusion in the contract) which number data on subscribers (a surname concern, a name, a patronymic, data of the document proving the identity, etc.) . The given requirement does not concern a question on the contract form, nevertheless, indirectly influences it. The requirement about inclusion in the contract of identifying clients of data hardly will promote development of the market of business of the fixed services of telecommunication as creates obstacles for using services vnutrizonovoj, long-distance and international telephone (VZ and MG-MN) communications, forcing subscribers personally to be in offices of operators VZ and MG-MN of communication and to show the documents proving the identity. Such requirements are not equitable to interests of the parties, after all the client always concludes the contract on rendering of services of local telecommunication in writing, and in the contract on rendering of services of local telecommunication specifies operator VZ and chosen by the subscriber of the operator of MG-MN to communication, besides, to the client is accorded to change a right MG-MN of operators, not changing thus the operator of local telecommunication (item 68 of Incorporated Rules). Thus, owing to presence of contractual communications between the telecommunication companies it is enough to identify the client - the user telecommunication services once (at making contract about rendering of services of local telecommunication). The decision of this question in such a way will allow to resolve questions with the form of the contract on rendering VZ and MG-MN of services by possibility of making contract by implicative actions (for example, by call realisation in a long-distance direction from "house" phone).

As to essential treaty provisions requirements to that are accurately fixed in item 25 of Incorporated rules:

User's number or unique code of identification;

Rendered services of telecommunication;

System of fee of telecommunication [160];

Order, terms and the form of calculations.

The named list of essential conditions, the absence is represented, that, of which the recognition of the contract not prisoner can entail one, in this case (as well as by consideration of the list of essential conditions with reference to the contract on joining of networks and the traffic admission) is superfluous. [161] so, a condition about system of fee of telecommunication, the order, terms and the form of calculations can be filled proceeding from effective standards of the civil legislation in view of what absence of one of them in the contract should not entail a recognition of the contract not prisoner.

Meanwhile for the contract on rendering of services of fixed telecommunication, in our opinion, to essential conditions it is necessary to carry not only a contract subject, but also the address of rendering of such services. Introduction of the specified condition as the essential is proved by features of the contract on rendering of services of fixed telecommunication. Considering, that for the access organisation to such services it is necessary to generate a user's line, absence of the coordination of the address of rendering of services can lead to impossibility of rendering of those. So, concluding the contract on rendering of the fixed services of telecommunication, the client can recognise that telecommunication services will are rendered the client in that premise where the client assumed. Meanwhile, the telecommunication company can start with necessity of rendering of services of fixed telecommunication to other address (for example, to the address of the place of residence of the client, not assuming thus necessity of the organisation of a user's line to other address, and moreover, not always having for this purpose technical possibility in view of absence of possibility to be connected to knot of a network of telecommunication to the certain address). Thus, without the coordination of the address of rendering of service of fixed telecommunication such contract should not be considered as the prisoner.

Thus, essential treaty provisions about rendering of services of telecommunication the contract subject, user's number (or a unique code of identification), and concerning services of fixed telecommunication, besides specified, the address of rendering of such services should be.

Other conditions of contracts on rendering of services of telecommunication [162] (conditions about necessity of the organisation of a wire "physical" user's line, or about rendering of a telecommunication service on wireless technology, the territory of rendering of telecommunication services and so forth) depends on that what particularly services are ordered by the client.

Not up to the end investigated there is a question on premise installation of telephones, [163] being in the common property. So, for making contract about rendering of services of fixed telecommunication the person, wishing to conclude such contract, according to item 66 of Rules of rendering of services of telecommunication is obliged to give to the telecommunication company the document confirming the right of possession or usings by a premise in which the terminal equipment will be established. The given document the certificate on 1/10 shares in the right to premises - one-room apartment can be, for example. According to the legislation in communication branch in this case the telecommunication company is obliged to conclude with such person the contract on rendering of services of fixed telecommunication under risk of attraction to administrative responsibility up to licence cancellation in default from the conclusion of such contract (ch. 3 items 14.1 KoAP the Russian Federation, item 37, 39 Laws «About communication»). Thus, it is important to notice, that the access organisation to telecommunication network can be interfaced to carrying out of a complex of civil and erection works indoors which is planned telefonizirovat.

Meanwhile, according to item 1 of item 246 of the Civil code of the Russian Federation the order the property, being in the common property, is carried out under the agreement of all its participants. In this case at all it is not supposed order possibilities such property on the basis of the decision of the majority of proprietors of such property. According to item 1 of item 247 of the Civil code of the Russian Federation possession and using the property which is in the common property, is carried out under the decision of all its proprietors, and at nedostizhenii the consent - under the decree. Some other approach contains the Housing Code of the Russian Federation. So, proceeding from system interpretation of norms of the Housing Code, possession, using and disposal of community property in an apartment house, is carried out on the basis of the decision of general meeting of proprietors. According to item 1 of item 46 ZHK the Russian Federation general meeting decisions on the questions put on voting, are accepted by the majority vote (according to item item 3 48 ZHK the Russian Federation the quantity of voices which each proprietor of a premise in an apartment house on general meeting of proprietors of premises in the given house possesses, is proportional to its share in the right of the joint property to the community property in the given house).

Thus, there is an uncertainty with necessity of reception of the consent of proprietors of the premise which are in the common property, at installation of telephones to the given premise (as a premise hereinafter it is understood both inhabited, and an uninhabited premise in which it is planned to organise a user's line for reception of services of fixed telecommunication). [164]

It is necessary to notice, that the answer to the given question is not unequivocal. [165] historically legal models of regulation of a mode of the common property are familiar to legal systems some. The first model originates since times of the Roman Law [166] and means by itself possibility to the proprietor of the community property to own, use and dispose of it under own discretion, thus any other proprietor even if its will is not supported by other proprietors and it in minority, has the right to put a veto for such decision («a presumption of that all is authorised to the proprietor, and in case of disagreement with it, other proprietors can declare the rights»). The second model more gravitates to stated in item item 1 246 Civil codes of the Russian Federation also are under construction by a principle of that the proprietor of the community property should adjust the will with will of other proprietors («a presumption of that is authorised nothing to the proprietor, other is possible under the agreement of all or under the decree»).

In the theory of the Russian civil law possibility of addition of the list of proprietary rights by separate competence - management as which it is necessary to understand, including, thing preservation, improvement of consumer properties of a thing, its maintenance in a serviceable condition also is discussed. [167] competence of management is known to German legal system. So, the Civil code of Germany contains such sections as "Joint management" and «Management and using under the majority decision». [168] Meanwhile the "management" concept with reference to the Russian legal tradition is enough disputable as the concept "management" can be included as a component in any of already existing powers in a triad: possession, using, the order (item 209 of the Civil code of the Russian Federation).

Thus, the question on possibility of installation of telephones to a premise under the decision of one of proprietors of a premise demands the system decision. Now the current legislation in branch of communication does not demand from the proprietor of a premise of representation of the documents confirming the consent of other proprietors of a premise on installation of telephones of such premise. Moreover, there is no unequivocal understanding concerning that, competences on possession, using and the order when it is a question of premise installation of telephones are how much applicable. Meanwhile, taking into account volume of spent works for the organisation of a user's line with a view of rendering of services of telecommunication it is represented expedient with a view of minimisation of risks of a presentation of objections from other proprietors of a premise to enquire of the proprietor concluding the contract on rendering of services of fixed telecommunication documents, confirming will of other proprietors on carrying out of such works and premise installation of telephones. Such decision is forced on the given stage and other it is not obviously possible yet.

As to questions of a responsibility of the parties under the contract on rendering of services of telecommunication if earlier operating Rules of rendering of services local, vnutrizonovoj, long-distance and international telecommunication, and also the Rule of rendering of services of a mobile communication contained a number of features of such responsibility (for example, establishing the sizes of lawful penalties as a result of inadequate execution by the Parties of contractual obligations) Incorporated rules of such features do not contain, except for accurate fastening in Incorporated rules of instructions that the size of the penalty levied from the client - the physical person, is established according to the current legislation and cannot exceed the size of debts under the contract on rendering of services of telecommunication. [169] Thus, at the resolution of disputes with clients - the physical persons, the rights of consumers connected with infringements, it is necessary to be guided also by Law positions «About protection of the rights of consumers», including concerning the size of penalties at refusal to aid / inadequate rendering of services of telecommunication (including item 5 of item 28 of the specified law). Thus at the resolution of disputes with consumers and only at fact-finding of infringement of their rights in favour of consumers are collected not only the sums regarding indemnification of moral harm, but also the penalty which according to item 6 of item 13 of the Law «About protection of the rights of consumers» is established at a rate of 50 % from awards in advantage

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Consumers, that also proves to be true developing judiciary practice. Concerning the size of penalties from the client - the physical person in case of untimely it telecommunication fees, probably also to be guided by positions of the Civil code of the Russian Federation (item 395) if only the smaller size of the penalty is not provided by the contract on rendering of services of telecommunication.

Concerning clients - legal bodies the sizes of penalties can be provided the contract. It is necessary to notice, that developing judiciary practice accurately specifies in impossibility of penalty at a rate of 1 % per every day of infringement from the client - the legal person of payment of the received telecommunication service as it has been earlier provided item 146 of Rules of rendering of services local, vnutrizonovoj, the long-distance and international telecommunication, approved by the Governmental order from May, 18th, 2005 № 310 and item 59 of Rules of rendering of services of the mobile radio telephone communication approved by the Governmental order of the Russian Federation from May, 25th, 2005 № 328, if such size of the penalty is not specified in the contract on rendering of services of telecommunication as Incorporated rules do not establish

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The concrete size of the penalty for infringement of obligations on fee.

Thus, according to the item of item 55-56 of the Law «About communication» for suing in court for clients it is established pretenzionnyj an order with putting on on the telecommunication companies of a duty on examination of a claim [170 [171] [172]

Clients within 30 days from the date of claim registration, and within 60 days if the claim concerns rendering of services of long-distance and international telecommunication, or rendering of services in roaming (i.e. in a communication network of other telecommunication company from which at the client the contract is not concluded, and a telecommunication service appears on the basis roumingovyh the agreements concluded between the telecommunication companies). Thus, it is necessary to notice, that judiciary practice recognises that non-presentation by the telecommunication company of the answer to the claim in target dates is the fact of infringement of licence requirements in sphere of rendering of a telecommunication service and can entail attraction of the telecommunication company

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To administrative responsibility.

Thus, by consideration of questions of responsibility of the telecommunication companies under the contract it is necessary to be guided by positions of the Civil code of the Russian Federation, the Law «About communication», the Law «About protection of the rights of consumers».

Separately it is necessary to specify the moment of cancellation of the contract on rendering of services of fixed telecommunication at the termination of the right of use and (or) possession of the subscriber of a premise in which the terminal equipment for using such telecommunication service is established. It is especially actual taking into account limitation of such resource, as user's numbers, after all at a termination of the contract about rendering of services of fixed telecommunication such resource as user's number is liberated and [173 [174]

Can be allocated under the contract on rendering of services of telecommunication to other subscriber.

According to item 5 of item 45 of the Law «About communication» in case of the termination at the subscriber of the right of possession and using a premise, in whom the terminal equipment is established (further «telefonizirovannoe a premise»), the contract on rendering of a telecommunication service with the subscriber stops. Thus, according to item 73 of Incorporated rules the contract on rendering of services of local telecommunication stops at the moment of reception by a communication statement of the notice on the termination of the right of use or possession of a premise of the subscriber. Obviously, given norms should be considered as a parity of the general and private: if the Law «About communication» establishes the general term that with the termination of the right of possession and using telefonizirovannym a premise, the contract on rendering of a telecommunication service stops Incorporated rules contain, besides, instructions for a moment from which such contract stops.

It is necessary to notice, that judiciary practice to the decision of questions on legal effects regarding fee of communication after the termination of the right of possession and using telefonizirovannym a premise, it is ambiguous. So, one courts recognise that with the termination of the right of possession and using telefonizirovannym a premise the contract of rendering of a telecommunication service stops, all obligations of the parties accordingly stop. Other courts recognise that, if the subscriber has not notified the telecommunication company on the termination of the right of possession and using a premise, contract action cannot stop. [175 [176] It is represented, that if a telecommunication service cannot be consumed any more for the reason that the premise where they appear, has left possession of the person who have concluded the contract on rendering of telecommunication services, the contract on rendering of services of telecommunication should stop at the moment of the termination of the right of possession or using such premise, thus, it is offered to add Incorporated rules with instructions on a presumption of responsibility of the client for all losses which were incurred by a communication statement at not the notice the client of a communication statement about the termination of the right of possession and using telefonizirovannym a premise.

The similar approach is offered to be used by consideration of questions on the moment of a termination of the contract about rendering of services VZ and communication MG-MN. With a view of preservation of balance of interests of the parties, in our opinion, inclusion in the contract on rendering of services of telecommunication of putting on on the client of a duty under the immediate notice on the termination of the right of use and (or) possession of a premise on which services local are rendered, and also VZ and communication MG-MN, not only the operator of local telecommunication, but also the telecommunication companies rendering VZ and MG-MN of communication would be fair (if it is a question about different

The telecommunication companies). Legislative putting on of obligations under the notice of operators VZ and communication MG-MN, is possible on the operator of services of local telecommunication with which such operator always consists in contractual communications.

The carried out research concerning the contract on rendering of services of telecommunication allows to come to conclusion that by the legal nature the specified contract, proceeding from positions of the Civil code of the Russian Federation, should be carried to contracts vozmezdnogo rendering of services. The given conclusions are based, including, on L.V.Sannikovoj's legal position which proves the statement that the basic qualifying sign of [177] obligations on rendering of services is such sign as the object of influence. In the obligation about rendering of services this object of influence is immaterial (unlike object of influence at performance of works, when object of influence material). In the contract on rendering of services of telecommunication by such object of influence telecommunication signals, which neveshchestvenny inherently act.

When the contract consists in the relation of rendering of services of mobile radio telephone communication, such contract contains still brokerage contract elements. The contract on rendering of services of fixed telecommunication as has the features as owing to technology of rendering of such services, it is closely connected with relations of possession/using of a premise in which the user (terminal) equipment for reception of services of telecommunication is established.

From the told follows, that by the current moment time the contract on rendering of services of telecommunication has the features in which force is the independent transaction in group of contracts on rendering of services and thus is differentiated with other contracts on rendering of such telecommunication services, as a telematic telecommunication service, a telecommunication service on data transmission, a telecommunication service for tele-radio broadcasting. Nevertheless, between the contract on rendering of telecommunication services in data transmission and the contract on rendering of a telephone telecommunication service there are general lines as the contract on rendering of services in data transmission as allows to transfer by means of the special equipment vocal and not the vocal information, and in certain cases can contain brokerage contract elements.

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A source: Kuznetsova Oksana Aleksandrovna. CIVIL-LAW REGULATION of CONTRACTUAL RELATIONS In SPHERE of TELECOMMUNICATION SERVICES. Moscow - 2001. 2001

More on topic §1. "Client" dogovory about rendering of services of telecommunication: local, vnutrizonovoj, long-distance and international telecommunication, mobile radio telephone communication.:

  1. CHAPTER 3. "CLIENT" DOGOVORY ABOUT RENDERING OF TELECOMMUNICATION SERVICES.
  2. § 3. Dogovory concerning rendering of telecommunication services for tele-radio broadcasting.
  3. §2. Features of the "client" contracts concluded for rendering of a telematic telecommunication service and a telecommunication service on data transmission.
  4. § 4. The uniform contract on rendering of telecommunication services.
  5. § 2. Features of the civil matters developing concerning rendering of telecommunication services.
  6. Chapter 2. OSNOVYE KINDS of the CONTRACTS NECESSARY FOR MAINTENANCE of RENDERING of TELECOMMUNICATION SERVICES.
  7. communication "Boko Jaras" with the international terrorist organisations
  8. §1. The review of the current legislation regulating the relations in sphere of telecommunication services.
  9. §3. Ordering of the contracts concluded in sphere of telecommunication services.
  10. subjects POV in a position "patriot" - "proponent" and "opponent" - "analyst"
  11. the Analysis of client base of "Object" as one of main motives of the bargain on association
  12. § 1. Genesis of terms "promise", "bribe" and "lihoimstvo" by the Russian right XIV-has begun XX centuries
  13. Chapter 1. TELECOMMUNICATION SERVICES AS SPECIAL OBJECT of civil-law REGULATION.
  14. Teoretiko-legal research of a parity of concepts «the person,« the physical person, "citizen", "person", "individual", "Everyone"