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1. Researches of the contract of retail purchase and sale in the Russian To jurisprudence.

Researches of the contract of retail purchase and sale in pre-revolutionary Russian jurisprudence.

Scientific interest to the contract of retail purchase and sale was shown in the Russian jurisprudence not always.

Having analysed works of many outstanding jurists of the pre-revolutionary period, such as D.I.Mejer1, G.F.Shershsnsvich [2 [3], V.I.Sinajsky [4], To, P.Pobedonostsev [5], etc., it is possible to come to conclusion, that the problem of legal regulation of retail purchase and sale actually was not put and not discussed during this period. The general questions of purchase and sale, essence of purchase and sale as a whole were investigated only. In pre-revolutionary civil law of a divergence in sights of researchers at legal essence of purchase and sale contacted the answer to the following question of principle: whether probably in general to consider purchase and sale by the contract and what its original status [6]?

Also, with purchase and sale institute at that time - sale (the contract on the subsequent making contract of purchase and sale or the preliminary contract) and delivery (the contract on alienation of property two independent institutes closely adjoined to the incoincident moments in time of its fulfilment and execution), causing disputes concerning the necessity of their special allocation and criteria otgranichenija from purchase and sale. It also is those questions which excited the scientists-tsivilistov of the pre-revolutionary period who were engaged in research of relations of purchase and sale. In this connection, the greatest interest in research of relations of retail purchase and sale represents the Soviet and modern stages of development of jurisprudence.

Researches of the contract of retail purchase and sale in the Soviet and modern Russian jurisprudence.

The scientific attention to legal regulation of retail purchase and sale did not weaken throughout all history of civil thought in the USSR. The common opinion about specificity of legal regulation of the contract of retail purchase and sale in the Soviet jurisprudence has developed not сразу1. Because during the Soviet period and up to acceptance of the current Civil code of the Russian Federation in the legislation there was no accurate regulation of relations of retail purchase and sale (in particular GK 1922г. [7] [8] [9], GK 1964г. [10] nanosecond contained the special provisions regulating the contract of retail purchase and sale), in the theory the various points of view, contracts of retail purchase and sale concerning the separate moments expressed.

In particular, N.G.Vavina, I.I.Zagvjazinskogo's works 20 - 30th years [11], V.V. Kotovoj, S.H.Mahmutovoj, E.A.Flejshits, B.L.Haskelberga's work of 50th years [12] have been devoted legal aspects of retail purchase and sale.

Also, these questions have been investigated and in J.J.Lvovicha, V.F.Jakovlevoj's later works and other 60 and next years [13].

Let's consider problems which found the greatest resonance in the scientific legal literature of the Soviet period. In the legislation of that time of nanosecond it has been fixed legal definition of the contract of retail purchase and sale that generated the disputes first of all connected with subject structure of this contract.

Among the various opinions stated by many authors, it is possible to allocate following basic sights on this question. A number of jurists of that time considered, that subjects under the contract of retail purchase and sale from the seller the state and co-operative trading organisations (enterprises) allocated with corporate franchises, some uncommercial organisations and trading on the collective-farm markets as the goods of the manufacture collective farms, collective farmers and separate граждане2 acted.

The question was disputable, whether it is possible trade in the markets, carried out by collective farmers and citizens, to rank as retail purchase and sale or the seller under the contract of retail purchase and sale the organisation can be only. O.S.Ioffe, being engaged in research of this question, wrote: " There are uncertain disagreements concerning legal borders of this contractual subinstitute. Sometimes say, that if economically retail purchase and sale is really characterised by the prednaznachennostju for constant service of the population legally by it are covered only otchuzhdatelnye transactions of the organisations state and co-operative торговли1. In that case it should to recognise, that, for example, trade in the collective-farm markets oposredstvuetsja the special purchase and sale excluded from retail goods turnover legally, on economically remaining in its structure. In order to avoid similar unjustified complications it is necessary to be guided, apparently, by volume conformity between retail trade in economic and legal sense, not excluding, certainly, its own internal differentiation "[14 [15].

Other authors considered incorrect reference to retail purchase and sale trade in the markets, carried out by collective farmers and separate citizens, giving reason for the point of view as that one of discriminating features of retail purchase and sale was including its special legal regulation [16]. B.S.Martemjanov, for example, believed, that "the special rules established for retail purchase and sale in variety of questions differ from norms of Bases and GK and these rules concern mainly trade which is led by special trading organisations" [17]. In this connection, in its opinion, also it was impossible to carry trade in the markets collective farmers and separate citizens to retail purchase and sale.

C current GK the Russian Federation this problem has been solved by acceptance at legislative level. So, according to item 1 of item 492 GK the Russian Federation the seller under the contract of retail purchase and sale can be the person who is carrying out enterprise activity on sale of the goods at retail. From here follows, that the individual businessman can be the seller under the contract of retail purchase and sale both the organisation, and. In turn,

dogovory the purchase and sale, concluded between citizens, are regulated by general provisions on purchase and sale ( 1 gl. 30 GK the Russian Federation: item 454-491 item).

As to the one who can act on the party of the buyer under the contract of retail purchase and sale in the legal literature of the Soviet period also it is possible otmstit certain disagreements. According to opinion of some authors, any socialist организации1 could be buyers under the contract of retail purchase and sale both citizens, and. Other authors believed, that buyers under the contract of retail purchase and sale citizens [18 [19] [20] could be only. Analyzing both these points of view, we come to conclusion, that the reason of these disagreements was, first of all, the various understanding authors of essence of the contract of retail purchase and sale, a parity of the legal and economic moments in its maintenance.

So, the Soviet jurists spent differentiation between concepts of the contract of retail purchase and sale and the contract of purchase, oposredstvujushchego retail goods turnover. S.H.Svobodova, for example, in the dissertational research prshttla to a conclusion, that the purchase and sale contract, oposredstvujushchy retail trade, represented the uniform legal institution, but depending on various forms and methods of retail of the goods had some versions. And only the contract of purchase and sale made in cash with full payment of the price of the goods at the making contract (without dependence from the one who acted on the party of the buyer - the citizen or the organisation), was the contract of retail purchase and sale, t.k, bylinaibolee typical for retail trade [21].

At use of other forms and methods of retail of the goods, according to the author, took place to be the contract of purchase, oposredstvujushchy

Retail trade. To them the author carried the contract of purchase on credit, the contract of purchase in posylochnoj to trade and other 1 Thus, S.H.Svobodovoj in a basis otgranichenija contracts of retail purchase and sale from the contract buy i-sales, oposredstvujushchego retail goods turnover, the form and a way of payment of the goods have been put.

S.H, Mahmutovoj in the research in a basis otgranichenija contracts of retail purchase and sale from the contract of purchase, oposredstvujushchego retail goods turnover have been put subject features of the parties of the contract. So, she suggested to consider as the contract of retail purchase and sale only the contract of purchase concluded by citizens at purchase of the consumer goods from socialist retail trade enterprises [22 [23] [24] [25].

According to Century In, Kotovoj, from the contract of retail purchase and sale as which she offered to understand all kinds of the contract of purchase which are making out retail goods turnover because all of them had a number of similar signs among themselves, it is necessary to distinguish the contract melkooptovoj purchase and sale, the buyer of the goods but to which the socialist organisations ’ acted. The opposite opinion has been stated With. G.Hinoj in which opinion "on the legal nature melkooptovaja sale represents the usual contract of retail purchase and sale, as the buyer in which establishments, the organisations and the enterprises \act

Correctly used term (concept) is of great importance for knowledge and disclosing of essence of the phenomenon in this connection, to understand the specified question, it is necessary to make, first, definition of the retail and wholesale purchase-prodazhe*

The concept of retail purchase and sale, also as well as wholesale purchase and sale, can be both economic, and legal. It is connected by that purchase and sale includes as well nejuridicheskuju activity of the person, i.e. all spectrum of activity of the person on alienation and property acquisition. The economic maintenance of purchase and sale, both retail, and wholesale, consists that it represents the economic relation characterised by the formula "the Goods - Money" which sense consists in an exchange of the parties of diverse values for the mutual beginnings.

As to the legal maintenance of retail purchase and sale, it is the contract, in which force one party (the seller who is carrying out enterprise activity on sale of the goods at retail), undertakes to transfer to other party (buyer) the goods intended for personal, family, house or other use, not connected with enterprise activity,

According to the legislation operating now, wholesale purchase and sale oposredstvuetsja various enterprise contracts: deliveries, contractings of agricultural production, delivery of the goods for the state needs. That is the legal maintenance of wholesale purchase and sale is the contract of purchase which makes out relations on vozmezdnoj sales of goods for enterprise and economic needs only between the organisations and individual businessmen. Features of the legal maintenance of wholesale purchase and sale depend on what enterprise contract is concluded.

Thus, the concept of purchase and sale is wider than concept of the contract of purchase and sale. So, the contract of heaps of gli-sale represents only

The legal form of fixing of activity of the person on purchase and sale also makes out legal relations of retail and wholesale purchase and sale. Also, the contract of purchase is the basis of occurrence of legal relation of purchase and sale and defines the maintenance of the given legal relation, t.e, actions of the seller on assignation, and also actions of the buyer on transfer of money and property acceptances.

So, wholesale and retail trade correspond among themselves as follows. The wholesale represents a primary stage in a turn of the consumer goods, such economic intermediary between manufacturers and the organisations of the retail trade, carried out by purchase of the goods at manufacturers for the purpose of resale to the organisations of retail trade.

Retail trade in turn is final, the closing stage of a turn of the consumer goods, economic intermediary between manufacturers and the consumers, carried out by purchase of the goods at the organisations of the wholesale for the purpose of realisation of the goods to consumers.

Thus, the author of dissertation comes to conclusion, that it is impossible to try to compare and correlate concepts of the various nature. So, concepts "retail goods turnover"and"melkooptovaja sale" ("wholesale"), are concepts economic, instead of legal. As there is no legal concept "the contract of the wholesale purchase-prodazhi1 ' (in the legislation there is a concept of the contract of delivery which legal concept" the contract, oposredstvujushchy retail goods turnover "along with other enterprise contracts and oposredstvuet the wholesale), and is not present, and in the legislation the concept of the contract of retail purchase and sale which and oposredstvuet all retail trade is provided.

Recently in the legal literature offers on settlement of the contract of wholesale purchase and sale in the legislation began to express. The main developer of the given problem is B.I.Putin, to which is offered to understand as the contract of wholesale purchase and sale the contract, on which the seller undertakes in an agreed period (or terms) to transfer to the possession of the buyer veshi (goods) for sale to the population according to requirements of such sale, and the buyer to accept things and to pay them стоимость1. As the Basic purpose of the contract of wholesale purchase and sale of B.I.Putin considers oposredstvovanie movings of the goods from manufacturers to the organisations of retail trade,

Now and a problem, concerning the one who can act on the party of the buyer under the contract of retail purchase and sale, and it is close with it the connected problem otgranichenija contracts of retail purchase and sale from the delivery contract, are solved by the legislator. So, according to an explanation of Plenum YOU the Russian Federation from October, 22nd, 1997 № 18 "About some questions connected with application of positions of the Civil code of the Russian Federation about the contract of delivery" [26 [27] [28] in the event that the buyer gets the goods for maintenance of its activity as the organisation or the citizen-businessman (the office equipment, office furniture, vehicles, materials for repair work, etc.) At the seller who is carrying out enterprise activity on sale of the goods at retail, relations of the parties are regulated by norms about retail purchase and sale. Thus, a solving sign for otgranichenija contracts of retail purchase and sale from the delivery contract in the specified case is the figure of the seller [29].

In the legal literature of the Soviet period also there was no that uniform understanding who is the tenderer under the contract of retail purchase and sale and what the legal nature of this offer. The majority of the scientists-jurists investigating this question, recognised that as the tenderer under the contract of retail purchase and sale acts corresponding retail trading предприятие4. Some authors believed, that the offer to enter the contract proceeds from the buyer and is turned to retail trade enterprise [30].

Concerning by what the legal nature of this offer, authors various opinions also were expressed. So, some jurists believed, that a duty of trading organisations to sell the goods to any interested person was administratively-pravovoj1. Other scientists-jurists connected publicity of the offer that it is turned to all and everyone [31 [32] [33]. So, O.S.Ioffe, investigating the given question, believed, that "the offer of retail shop to enter the contract is turned not to an uncertain circle of persons, and to all and everyone for during each given moment it can be accepted only one person and can be at any moment removed before receipt of the new acceptance" 2.

In the legal literature of the Soviet period the opinion according to which a trading organisation duty to conclude the contract with any wishing person also was expressed had the dual legal nature [34]. So, A.J.Kabalkip believed, that as assigned to the organisation its higher body, this duty in relation to it is is administrative-legal. But, being (offer) embodied in circulation to all citizens, the given duty represented the offer to any of them to conclude the concrete contract and consequently was civil-law.

In the modern legal literature the opinion according to which the tenderer under the contract of retail purchase and sale is the buyer [35] also is expressed. The given point of view is represented to nanosecond absolutely true. So, because the contract of retail purchase and sale is the contract of adhesion on which the buyer can join only treaty provisions in advance established by the seller, as the tenderer under the given contract in our opinion the seller always acts. Civil-law character of the public offer under the contract of retail purchase and sale also does not cause doubts as the offer is a part of procedure of making contract, and treaty obligations, according to item 2 GK the Russian Federation, are regulated by the civil legislation.

The important questions unequally solved by the Soviet jurists, questions of the moment of making contract of retail purchase and sale and the moment of transition of the property right on it were also. So, K.A.Grave and V.V. Kotova believed, that the moment of making contract of retail purchase and sale was defined by "coordination" with the buyer of the treaty provisions established by the seller [36]. Depending on character of the bought goods (individually defined or defined generic characteristics) them solved a question on definition of the form of expression of the coordination.

So, concerning individually certain thing the form of expression of the consent of the buyer on conditions of the seller was, for example, the request to turn, postpone a thing. If the contract subject was defined by generic characteristics the consent of the buyer could be expressed, in their opinion, for example, in payment of purchased cost of the goods in shop cash desk, During action GK 1922 g, (item 66) the question on transition of the property right to a thing dared depending on character of the goods: the property right concerning an individual thing passed under the contract from the alienor to the purchaser from the moment of contract fulfilment, and concerning a thing, generic, - from the moment of thing transfer.

According to K.A.Grave the similar decision of the given question did not consider features of retail purchase and sale that caused many difficulties in practice. He considered, that the recognition would be the most correct

The moment of transition of the property right the moment fakti cheskoj thing transfers without dependence from, whether is a thing individually defined, or is generic. A unique exception, he believed, should be made for strictly individual, unique things. In these cases property right transition to the buyer at the moment of contract fulfilment, and nanosecond at the moment of transfer of the bought thing to the buyer would protect interests of the buyer, depriving of possibility of the seller to sell to its other person. The question on risk of accidental loss of a thing it was offered to be settled to the parties as the special agreement or as the edition

Corresponding rules of trade.

The question on legal effects of non-payment of the price of the selected goods dared in the Soviet legal literature as follows. K.A.Grave considered, that in this case there was a turn of the legal results connected with approach of subsequent condition - non-payment by the buyer of a purchase price of the selected goods - According to E.A.Flejshits, in case of purchase price non-payment in due time the seller had a statutory right to refuse the contract and by that to make turn made by it legal последствий1. S.H.Mahmutova in this occasion believed, that "in case of a neopayment of the check the buyer does not bear any responsibility, as the contract is not concluded yet. If to consider the contract of retail purchase and sale as the prisoner from the moment of thing selection such contract has no validity: The buyer can leave, not having paid the check, that is not having executed the contract, and no legal consequences for the buyer come, and they cannot come, as the buyer is unknown "[37 [38]

In the research, the L, Haskelberg, polemizing from K.A.Grave, has come to conclusion, that the contract of retail purchase and sale, under the general rule, consists in conditions of coincidence of the moments of its conclusion and execution, at the moment of transfer to the buyer of the sold goods to that payment purchased цены1 precedes. Such approach to the decision of a case in point in the conditions of operating then legislations had many advantages: it provided realisation of a rule adequate under the maintenance about the moment of transition of the property right, excluded necessity of discussion of individual or patrimonial definiteness of a subject of the contract, influencing system of transition of the property right (st, 66 GK 1922), it is rational and expedient for the buyer determined the moments of occurrence at it the property right and transition of risk of accidental loss of the sold thing, connecting both moments with the transfer certificate (item 186 GK of 1922) [39 [40].

Concerning definition of the moment of making contract of retail purchase and sale R.O.Halfina who believed adhered to the similar point of view, that the valid moment of making contract of retail purchase and sale was payment of the goods by the buyer [41]: "the contract of retail purchase and sale - the contract executed at its conclusion, therefore simple expression of the consent to the introduction into the contract in this case yet does not create the contract. Survey of the goods and allocation for the buyer of those goods whom he wishes to buy, yet do not connect the buyer and do not create the contract. The will creating the contract, the will expressed in concrete actions on execution of this contract" [42] is.

Later, in action GK of 1964, opinions that the moment of making contract of retail purchase and sale is defined variously depending on its versions and technics of trade again were expressed. So, N.P.Voloshin believed, that if the buyer independently (at self-service) or together with the seller selected the goods necessary to it, and it was accompanied by an extract of the cash-memo or an oral statement of the buyer it followed consider as the moment from which the contract was совершённым1. J.J.Lvovich also believed, that the moment of making contract of retail purchase and sale depended on sale technics, and in some cases from desire of the buyer [43 [44].

According to V.F.Jakovlevoj, with a view of maintenance of stability of relations of the civil circulation and protection of interests of buyers, followed "date making contract of retail purchase and sale to the moment} ' otobranija the goods the buyer or under its request the seller [45]. In the same case when the goods have been selected till the moment of its payment, execution of a contract by the buyer with duty putting on on the seller during certain time accordingly kept away to store the goods selected by the buyer. In that case when the goods are on sale without preliminary before their payment otobranija, the moments of making contract and execution by the buyer of a duty on payment, in its opinion, coincided.

V.F.Jakovleva considered, as in that and in other case the property right to the bought goods at the buyer arose from the moment of transfer to it (deliveries by the seller, and in a supermarket the controller - the cashier) before selected or selected at the moment of payment by the buyer of a thing. C the same moment to it the moment of transition of risk of accidental loss of the goods communicated.

The problems connected with definition of the moments of making contract of retail purchase and sale and transition of the property right on it, are solved now by the legislator. So, according to position of item 493 PS the Russian Federation the making contract moment admits the moment of a presentation the buyer of the cash voucher or other document confirming payment of the goods. The moment of transition of the property right under the contract of retail purchase and sale is the moment of transfer of a thing to the buyer (item 223 GK the Russian Federation).

C the problem of definition of the moment of making contract of retail purchase and sale closely connects a problem of definition of the given contractual design as the real. The Soviet scientists-jurists, differently defining the moments of the conclusion and execution of a contract of retail purchase and sale, unfortunately, did not discuss questions of a reality or a game sensualnosti model of the contract of retail purchase and sale, laying them aside. In modern jurisprudence of unity of opinions on the given question is not present.

So, some authors connect a reality of the contract of retail purchase and sale by a method of self-service with frequent coincidence of the moments of its fulfilment and execution ’. For example, 0, P.Zimenkova considers, that in some cases at coincidence of the moment of the conclusion and the moment of execution of a contract of retail purchase and sale, it can be considered as the real. On the given question the author of dissertation agrees with opinion of those scientists which believe, that, despite certain ambiguity and discrepancy of positions of the legislator on the given question, the contract of retail purchase and sale is konsensualnym [46 [47] [48].

So, at the first approach the legislator can seem, that, fixing in item 1 of item 492 GK the Russian Federation konsensualnuju model of the contract of retail purchase and sale, rules of item 493 and p, 2 items 498 GK the Russian Federation [49] recognises as its real [50].

In the legal literature on a case in point the opinion according to which, the special legal fiction in which force goods payment always is understood as the taken place agreement сторон1 in this case operates is expressed. And if for the real contract conclusion, besides the coordination assignation (item 2 of item 433 GK the Russian Federation), in a case with the contract of retail purchase and sale "action of the buyer (goods selection in a supermarket, purchase price payment in cash desk of the seller, fulfilment of the actions necessary for reception of the goods from the automatic machine etc.) - always hardly probable not a unique way of expression of will of the buyer on making contract concerning the standard goods" [51 [52] is necessary also.

Above in the present research by the author of dissertation the problems connected with legal regulation of relations of retail purchase and sale, causing the greatest resonance in the scientific legal literature of Soviet time have been considered. As to modern scientific researches on the given theme problems of legal regulation of relations of retail purchase and sale covered in them can be divided on: connected e protection of the rights of consumers under the contract of retail purchase and sale and protection of the rights of their counterparts. The specified problems consist in certain interrelation with each other. Attempt of the decision of a problem of protection of the rights of consumers, including under the contract of retail purchase and sale, was the reason of occurrence of a problem of protection of the rights of their counterparts as development of legal regulation of relations is one nz the legal reasons of misuse of right.

Necessity of occurrence of the detailed consumer legislation has been caused by change of an economic situation in the country that has led to freedom of enterprise activity, increase in quantity of managing subjects, to expansion of assortment of the goods the economic inequality which has etc. Developed as a result not in advantage

zo

Consumers also has caused of acceptance of measures on their protection. Despite regular modification of the consumer legislation, directed on strengthening of security of their rights and legitimate interests, in the modern legal literature certain problems in this area are fairly marked: collisions of norms (for example, a collision in definition of terms and exchange places neprodovolstvennyh appropriate quality (item 25 of the Law of the Russian Federation "About protection of the rights of consumers" 1 (further - the Law about ZPP) and item 502 GK the Russian Federation), [53 [54] [55] miscalculations in the mechanism of protection of the rights of consumers, necessity of distribution of the specified legislation on

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Groups of consumers, such as TSZH, consumer co-operative societies and dr / ’

The problem of abusing the rights has started to be shined with consumers in the legal literature rather recently. In the civil law theory misuse of right is understood as the special tort made by the authorised person within the limits of the rights given to it, but with infringement of their limits [56]. Some authors critically estimate such possibilities of consumers provided by norms of the Law about ZPP as the right of return of a thing of due quality during 14 days from the date of purchase which the unlimited number of times can be used the consumer, the right of the consumer to cancellation of the contract and return of a purchase price of the goods [57] in case of detection in it any lack including insignificant, it is offered to enter into the Law text about ZPP positions about duties of consumers (for example, properly to use and not to abuse the consumer rights; Carefully and to destination to use the got goods, to observe rules

Operation; to use the given information on the goods in order to avoid impossibility of their use) and sanctions for them нарушение1.

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

More on topic 1. Researches of the contract of retail purchase and sale in the Russian To jurisprudence.:

  1. 3. The form of the contract of retail purchase and sale. Features of making contract of retail purchase and sale.
  2. the Chapter II. Elements of the contract of retail purchase and sale. Especial] makings contract of retail purchase and sale.
  3. the Chapter I. The Civil-law doctrine and the legislation on retail purchase and sale. Kinds of the contract of retail purchase and sale,
  4. 1. The parties of the contract of retail purchase and sale.
  5. 2. The maintenance of the contract of retail purchase and sale.
  6. 1.3. Protection Legal regulation at purchase and sale breach of contract in the Russian Federation
  7. 2. Concept and contract elements (the foreign trade contract) international purchase and sale of the goods
  8. 3* Kinds of the contract of the retail purchase-prodazhi*
  9. the First chapter. The CONTRACT of the INTERNATIONAL PURCHASE AND SALE of the GOODS In SYSTEM of CIVIL LAW of the RUSSIAN FEDERATION
  10. 1.2. The Legal protection at purchase and sale breach of contract in the international trade right
  11. 2. Execution of the international contract. Structure of contractual communications and kinds of the documents which are making out execution of the international contract of purchase and sale
  12. 1.1. Protection Legal regulation at purchase and sale breach of contract in foreign countries
  13. Regulations of an establishment (change) of rates of purchase and sale of a cash foreign currency, purchase (payment) and sale of documents of payment in a foreign currency at the expense of means of citizens General provisions
  14. the Chapter II. Separate remedies at law in case of breach of contract of the international purchase and sale of the goods
  15. the Chapter I. General provisions on a legal protection in case of breach of contract of the international purchase and sale of the goods
  16. Horoshavina Hope JUrevna. Legal regulation of contractual relations of retail purchase and sale. The dissertation on competition of a scientific degree of the master of laws. Kazan - 2007, 2007