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THE CONCLUSION

In dissertational work on the basis of the system analysis tsivilistiche - skih scientific works, regulatory legal acts, and also practical materials, as a rule, in their generalised kind the following up the executed research is summed.

By results of consideration of the legal characteristic of the contract of the author's order it is established, that it is konsensualnym as at the moment of the conclusion of the analyzed contract product with the set characteristics is not created yet. The contract of the author's order can be as vozmezdnym, and gratuitous. The legislator provides only a presumption vozmezdnosti the given contract. It is concluded, that the possibility given for today to the parties to define vozmezdnost or gratuitousness of the contract of the author's order corresponds to a principle of freedom of the contract and expands sphere of its application. It is supposed, that the cummutative contract of the author's order can be both equivalent, and nonequivalent. Vozmezdnyj and the gratuitous contract of the author's order is mutual. The conclusion is drawn on possibility of reference of the contract of the author's order to number of fiduciary contracts. Besides, analyzed contract is the aleatory contract. In the contract of the author's order the risk is expressed in possibility of non receipt of expected result.

In the present research the exhaustive list of essential treaty provisions of the author's order is offered. The subject of the contract of the author's order is defined is the creation of product corresponding to treaty provisions. Criteria of product are revealed. It is established, that creative character concerns activity (to process on product creation). It is concluded, that ideas, thoughts, plots are not protected by the copyright. Therefore the product maintenance should not come under to a right protection. It is necessary idea and thought of the author to express in the objective form.

The situation according to which author is considered assumes liability to create product which contradicts norms mora -

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Whether also morals. Signs of such products are presented. It is established, that the contract of the author's order for creation asotsialnogo products it is necessary to nullify by rules of item 169 GK the Russian Federation - invalidity of the transaction made with the purpose, opposite to law and order or morals bases.

The substantiation of necessity of consideration of term as the essential treaty provision is presented. Analyzing norm about the period of grace, it is established, that it is given by the legislator in the presence of reasonable excuses (for example, in view of heavy illness of the author). For avoiding of disputes concerning what reasons to consider valid, it is necessary, that the author and the customer specified them directly in the text the contract. Moreover, for protection of the author it is necessary the interdiction for association of a term of a contract and the period of grace in uniform term follows.

In GK the Russian Federation does not contain norm about the price as the essential treaty provision of the author's order. We believe, that in case of the conclusion of the cummutative contract of the author's order the price is among essential conditions as to be guided by item 3 of item 424 GK the Russian Federation concerning original and unique product of a science, literatures, arts it is impossible.

It is offered to include in item 1288 GK the Russian Federation a rule that at absence in the cummutative contract of the author's order of a condition about a rate of commission or an order of its definition the contract is considered not prisoner.

Thus, as essential conditions of the gratuitous contract of the author's order the subject and term act. For the conclusion of the cummutative contract of the author's order the coordination of a subject, term and the price is obligatory as these conditions should be among the essential.

Criteria for otgranichenija contracts of the author's order from adjacent contracts are developed. The basic criterion otgranichenija the investigated contract from other contracts is the subject which consists in realisation by the author of creative activity. Differences of the contract of the author's order and the turnkey contract in the following. 1) various subject structure (in the contract of the author's order as the founder-author the physical person acts, in the turnkey contract - any subjects of civil law); 2) the contract of the author's order unlike the turnkey contract provides limited liability of the author; 3) the object created under the turnkey contract, is transferred to the customer on the property right, and according to the contract of the author's order the material carrier in which product contains, can be transferred to the customer either in the property, or in time possession and using; 4) the turnkey contract always vozmezdnyj, and the contract of the author's order can be as vozmezdnym, and gratuitous.

Differences of the contract of the author's order from the contract on performance of developmental and technological works consists in the following: 1) regulates relations in the field of creation of results of intellectual activity in scientific and technical and industrial sphere; 2) opytnokonstruktorskie and technological works are complex as include not only works of creative character, but also preparation of the corresponding documentation, and also the industrial and technical works directed on manufacturing of the sample and check of its characteristics. Differences of the contract on performance of research works from the contract of the author's order consists: 1) in a various circle of subjects as as the executor, as a rule, act legal bodies - scientific institutions 2) result of research work is exclusively new scientific knowledge fixed in the objective form (the scientific report, the conclusion of the expert, etc.).

Differences of the contract of the author's order from office products consist in the following: 1) office products are created within the limits of the employment contract. Thus under the employment contract the worker (the author) submits to rules of the internal labour schedule and is guided by duty regulations. In the contract of the author's order the operating mode of the author over product creation practically is not subject to the control; 2) under the general rule the exclusive right to office product belongs to the employer, and the exclusive right to the product created under the contract of the order, initially belongs to the author; 3) relations of the employer and the worker within the limits of creation of office product always carry vozmezdnyj character; 4) the employment contract consists for uncertain term, except cases, statutory. The contract of the author's order has urgent character.

Differences of the contract of the author's order from the products created under the order (the order contract): 1) various subject structure as the executor under the order contract is the legal body; 2) in the order contract it is established the presumption that the exclusive right to the product created under the contract creation of such product was which subject, belongs to the customer 3) in the order contract possibility of granting to the executor of the period of grace for end of work on product creation is not provided; 4) in case of infringement of obligations by the executor under the order contract general provisions on civil responsibility are applied. Thus unlike the contract of the author's order the executor (legal body) under the order contract bears responsibility on the basis of risk, i.e. without a condition about fault presence.

By results of rather-legal analysis of the contract of the author's order and adjacent civil-law institutes it is established, that the contract of the author's order is the independent civil-law contract. The characteristic signs are revealed, allowing to define a place of the contract of the author's order in system of civil-law contracts. By criterion of result the contract of the author's order should be carried to the contracts directed on creation of objects of intellectual property and on alienation of exclusive rights to objects of intellectual property or on according a right of use of objects of intellectual property. It is concluded, that the contract of the author's order is an independent kind of contracts of the offered group.

In the dissertation the subject structure of the contract of the author's order is defined. As the author under the contract of the author's order exclusively physical person as only it possesses ability to be engaged in creative activity should act, to create the new. The author - the physical person (the citizen or the individual businessman), is "weakness" of the contract of the author's order as it is impossible to provide conformity of result of creative activity of the founder to expectations of the customer with accuracy, even in case of the coordination of various characteristics of product as their value judgment can not coincide. At the author - the individual businessman the basic criterion at product creation is creative character. In case the author under the contract are legal bodies such contract is not the contract of the author's order. In this situation it is necessary to apply positions of item 1296 GK the Russian Federation - the products created by request. Norms are not applied to achievement of balance of interests of authors and customers concerning the executor - the legal person about limited liability of the author, about the period of grace of execution of a contract.

The author any citizen irrespective of its age and capacity can admit. Position of the legislator is supported and given in addition reason what to conclude the contract of the author's order, to carry out the rights of the author of product the minor who has reached of fourteen years has the right without the consent of legal representatives. Besides citizens of the Russian Federation authors of products of a science, the literature, art foreign subjects and stateless persons can admit. The contract of the author's order can be concluded with several authors (co-authors). It is proved, that agreement presence between co-authors is one of the cores and co-authorship compulsory conditions. Variants under the decision of a question on making contract of the author's order with several authors are offered.

In dissertational research also are subjected the analysis of the right and a duty of counterparts under the contract of the author's order. The basic duty of the author is creation of object of the copyright, expressed on the material carrier or in other form accessible to perception. For discharge of duty on product creation it is necessary, that product has been created by the author personally. Besides, product should be created in the term established by the contract.

In the civil legislation there is no list of duties of the customer. The conclusion that the acceptance of product expressed on the material carrier or in other form, it is necessary to consider as a duty of the customer is drawn. It is offered to reflect the specified duty in legal definition of the contract of the author's order. Necessity of an establishment of a presumption on approval of the product expressed on the material carrier or in other form accessible to perception is proved. In case of the conclusion of the cummutative contract of the author's order it is necessary to pay a duty of the customer to the author compensation for the created product.

The legislator does not specify who bears expenses in case of the conclusion of the gratuitous contract of the author's order. Thereupon the conclusion is drawn on necessity of inclusion in GK the Russian Federation of the provisional rule according to which on creation of object of the copyright the person under which order it and is created should bear expenses if other is not provided by the contract.

Necessity of fastening of a special rule about the written form of the contract of the author's order as at default or inadequate execution of a contract of the author's order of the prisoner in the oral form inevitably there will be difficulties with definition of a subject of the contract is proved. Besides, the oral contract of the author's order will cause complexities with acknowledgement of the fact of making contract. Thus non-observance of the written form should entail invalidity of the contract of the author's order.

In the present work rules about responsibility of the counterparts, coming in case of default or inadequate execution of a contract of the author's order are defined and analysed. It is concluded, that in GK the Russian Federation it is proved full responsibility of the customer before the author is not provided. In case of attraction of the customer to responsibility, it is necessary to apply general provisions about responsibility for infringements of obligations.

Unlike the customer for the author under the order contract limited liability in the form of compensation of only real damage is fixed. It proves to be true that it is impossible to provide conformity of result of creative activity of the founder to expectations of the customer with accuracy, even in case of the coordination of various characteristics of product since their value judgment can not coincide. Responsibility of the author comes only in case of its fault. At the same time a fault principle at obligation infringement will not be applied, if the contract provides other bases of responsibility. However in that case the special status of the author-creator, the founder will not be considered, and attempts of the legislator about granting of an especial legal regime can be brought actually to naught. On the basis of the stated is considered to establish necessary in GK the Russian Federation the mandatory provision about responsibility of authors only in the presence of fault.

The exception of possibility of collecting from the author of the penalty will mean, as a matter of fact, clearing of the author of responsibility as return of advance payment does not assign to the author of additional property encumbrances and, hence, in exact sense responsibility is not. For appropriate execution of the obligation by the author of the duties the expediency is proved to include in the contract of the author's order a condition on which the author should pay to the customer the penalty.

Responsibility of co-authors should be defined proceeding from a co-authorship kind. At a dividend the co-authorship responsibility of co-authors should be share. At the indivisible co-authorship under the agreement of all co-authors the decision on the product promulgation is made, all co-authors get the copyright to the whole product, and, hence, each of co-authors bears responsibility concerning product as a whole. Therefore and responsibility of co-authors in case of the indivisible co-authorship should be solidary.

The problem of "creative failure╗ is investigated at which fault of the author is absent. We believe, that the risk of creative failure cannot be assigned exclusively to the author or it is exclusive on the customer. For maintenance of balance of interests of the parties it is necessary to mete consequences of creative failure between the author and the customer.

Concepts "risk", źcreative risk╗ are analysed. Product creation under the order contract is interfaced to certain risks. It is established, that in case of approach of objective and subjective risk it is necessary to release the author from the liability for nonperformance or inadequate execution of a contract of the author's order. At the same time there should be a right of the customer to return to it of advance payment as actually unsatisfied work is not paid.

Substantiated conclusion about that for created asotsialnoe product before other persons directly creator should bear non-contractual civil responsibility, i.e. the author as its "creative" work creates such product. It is necessary to speak about an individual responsibility. The similar conclusion about an individual civil liability of the author can be made and in case of distribution asotsialnogo products, both the author, and the customer. Except a civil liability of the author, creation asotsialnogo products attracts the responsibility provided by norms of the public law.

On the basis of the carried out research recommendations about modification and additions in standard legal acts are offered.

1) to State item 1 of item 1288 GK the Russian Federation in the following edition: źUnder the contract of the author's order one party (author) undertakes to create by request of other party (customer) the product of a science caused by the contract, literatures or arts, and the customer undertakes to accept product of a science, the literature or the art, expressed on the material carrier or in other objective form accessible to perception.

2) to Add item 1288 GK the Russian Federation with a following rule: źAt absence in the cummutative contract of the author's order of a condition about a rate of commission or an order of its definition the contract is considered not prisoner. Thus rules of definition the prices provided by item 3 of item 424 GK the Russian Federation, are not applied╗.

3) to Specify in item 1288 GK the Russian Federation a following rule: źthe Contract of the author's order consists in writing. Non-observance of the written form attracts invalidity of the contract╗.

4) to Include in item 1288 GK the Russian Federation a following rule: źthe Customer is obliged within thirty days if other term is not established by the contract to inform the author, or on approval transferred to it under the contract of the author's order of the product expressed on the material carrier or in other form accessible to perception, or on its deviation on the bases provided by the contract, or on necessity to make to amendment product, with instructions of a being of demanded corrections within treaty provisions. In the event that the notice is not directed the author when due hereunder, product is considered the approved customer╗.

5) to Fix in item 1288 GK the Russian Federation the norm establishing a duty to assign expenses on creation of object of the copyright to the customer if other is not provided by the agreement of the parties.

Prospects of the further working out of a theme. The received results of dissertational work can be used for the further scientific researches in the field of the copyright, at a writing scientific and studies. Conclusions containing in research, offers and recommendations can be used for perfection of the civil legislation, and also in pravoprimenitelnoj activity.

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A source: Belousov Vladimir Nikolaevich. the CONTRACT of the AUTHOR'S ORDER In CIVIL LAW of Russia. The dissertation on competition of a scientific degree of the master of laws. Irkutsk - 2018. 2018

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