1. Owing to civil law of opinion prevailing in the doctrine that the obligation represents the right to another's action, the basic attention of a science is concentrated on a figure of the creditor - the person possessing rights.

In this connection the debtor is often considered only as the subject providing realisation of interests of the creditor.

2. Negation of existence of interests of a bound party is incorrect. The debtor as the participant of civil matters possesses own interest which requires independent protection, along with interest of the creditor.

3. The question on the interest nature in a civil law science is debatable. It is possible to allocate conditionally three most widespread approaches to disclosing of the nature of interest: understanding of interest as subjective phenomenon; representation about it as about unity of display of objective and subjective essence of the phenomenon; interest definition as objective phenomenon.

Lacks of first two approaches is inclusion in the maintenance of investigated concept of conditions of a mental estimation the carrier of the interest (at subjective understanding of interest) or its comprehension by the carrier (at objectively-subjective understanding of interest). However it is established, that neither the internal relation of the person, nor comprehension by the subject of the objective requirements does not influence interest existence in its legal effect and cannot be a condition for its right protection.

4. At the heart of interest objective requirements in connection with which occurrence the public relation constituting the maintenance of interest of the subject is formed always lay. Thus, the interest category should be understood in objective sense as the public relation caused by necessity in material and the intangible benefits, providing conditions of normal ability to live of the person (objective interest).

5. Comprehension and satisfaction of objective interest is a part of the mechanism of its realisation in which frameworks the objective interests reflecting requirements of their carrier, are learnt by the last and become a reference point for its strong-willed activity.

Realisation of objective interest is not always provided with participation of its carrier in the relations having legal character. However more often in the course of interest realisation its carrier enters the relations which are a subject of legal regulation (makes legally significant actions, takes up obligations, carries out their execution etc.).

6. Legal regulation should be understood as specific influence of the right to subjects of public relations for the purpose of their prompting to fulfilment of certain lawful acts (bezdejstvy). Such influence is carried out by means of permissions and interdictions, by investment of participants of public relations with rights and fastening of legal obligations, that, in turn, provides transition from one person to another of the blessings necessary for satisfaction of arisen requirements, so also realisation of interests of subjects of a property turn.

7. Depending on a role which are carried out by any civil matters in the mechanism of legal regulation, the obligation it is accepted to divide on two groups: reguljativnye and guarding. The first cover the obligations arising on the basis of lawful acts (contracts, other transactions) and mediate normal (lawful) communications of participants of the civil circulation (for example, purchase and sale, rendering of services, successively, etc.).

The second result from wrongful acts (offences) and urged to provide protection of the suffered person (for example, tort liabilities, kondiktsionnye obligations).

8. The party liable (debtor) in reguljativnom the obligation possesses own interest as is the carrier of corresponding objective requirement. As reguljativnye obligations mainly arise at will of all participants, the right of the creditor entering into their maintenance and korrespondirujushchaja to it a duty of the debtor in a sense promote satisfaction of requirements of both parties of the obligation.

9. Fastening of interest of the debtor in norms of civil law

It is carried out by various ways. First, civil

The legislation without dependence from reguljativnogo or guarding character of the obligations relation gives to the debtor such possibilities as which owing to essence of the legal bonds arising between the parties of the obligation, it is possible to consider as rights of the debtor as they are provided corresponding korrespondirujushchej by a duty of the creditor (creditor duties). Secondly, interest fastening can be carried out by a legal obligation establishment, that equally provides realisation of interest of a party liable as speaks the concrete character of the legal obligation which are not supposing ambiguous interpretation of its maintenance. Thirdly, besides granting to the debtor of rights and fastenings to it of legal obligations in the maintenance of the rule of law it can be reflected or possibility of protection of objective interest, or it can be mentioned presence of so-called legitimate interests, i.e. The permissions of the general character which has been not provided with a counter duty from the creditor.

Thus, the right, the legal obligation and a legitimate interest - independent legal ways of fastening of objective interest of the debtor who is the party of the contractual obligation.

10. The objective interest which has received fastening by investment of its carrier by the subjective civil rights, legal obligations or a recognition behind it of a legitimate interest, within the limits of debt relationship becomes object of civil-law protection (protected interest of the debtor).

11. Reguljativnoe on participants of the obligations relations arising in the course of realisation of their objective interest, provided with fastening to them rights, legal obligations and legitimate interests, it is necessary to consider influence of norms of civil law as an interest right protection in a static condition. Such right protection of interest of the debtor is carried out out of special guarding legal relation as rules of law till the moment of infringement of protected interest are in a positive condition.

12. Influence of rules of law on behaviour of participants of public relations cannot be reduced only to an establishment of rules of behaviour. An indispensable constituting right protection of interest the prevention and protection against the infringements, provided with corresponding coercive measures - conservation measures is. The right protection in the given value is understood carried out by competent state bodies and other subjects of law as the interconnected measures directed on the prevention of offences, elimination of the reasons, their generating, and their negative consequences, promoting, thus, to creation of conditions for unobstructed realisation of requirements of dispositions of rules of law (a right protection in a dynamic condition).

13. A key problem for understanding of a right protection (in a dynamic condition) interest of the debtor in the contractual obligation is possibility of its independent protection. Infringement of protected interest, no less than the right, is circumstance with which occurrence in the debtor of certain possibilities on its protection is connected. However till the moment of infringement of protected interest (including when it exists in shape not the right, and a legitimate interest) the right of defence does not exist. Therefore in case of infringement of interest of the party of the obligation without dependence from a way of its fastening (the right, a duty, a legitimate interest) the interest carrier becomes the participant of the guarding legal relation which maintenance are the guarding right and a guarding duty.

14. In that case when interest realisation is provided with fastening to the carrier of any right, interest does not cease the existence, and only gets other legal form as at right infringement it is protected not only the right, but also the objective interest laying in its basis (that is found out on an example of the termination of the right at property destruction).

15. In case of infringement of interest of the debtor who is the party of the obligations relation, the arisen guarding right of the debtor and korrespondirujushchaja to it a guarding duty of the creditor can be realised in various forms. So, in one cases the guarding rights are provided with force of compulsion only on the basis of the certificate of competent body. In others restoration of the broken interest is realised by actions of the subject of protection, without the reference to someone. Thus, protection of protected interests of the debtor can be carried out or within the limits of remedial guarding legal relation, as a rule, the subject arising after the reference in competent body behind protection of the interest, or the material guarding legal relation arising at the moment of infringement of protected interest of the debtor as the party of the obligation.

16. Protection of protected interests of the debtor in the contractual obligation is carried out in a statutory order, i.e. By application of the appropriate form, ways and protection frames. The form of protection of interest is understood as a complex of the special procedures which are carried out by the authorised person or pravoprimenitelnym by body within the limits of remedial process (jurisdiktsionnaja and nejurisdiktsionnaja forms). In the given aspect the concept of the form of protection reflects as the maintenance of the complex of the procedures providing restoration of broken interest, and specifies in the concrete subject who is carrying out protection, designating volume of powers of the last.

17. In frameworks jurisdiktsionnoj forms of protection of interest the authorised body is above the parties reguljativnogo relations from which there was a guarding right. Interest protection in nejurisdiktsionnoj to the form, on the contrary, proceeds within the limits of material legal relation and is carried out, as a rule, by its participants.

18. Consideration of a phenomenon of a right protection of interest of the debtor in the contractual obligation inseparably linked with the reference to a problem of civil-law means with which help it is carried out reguljativnoe and guarding influence on participants of public relations. Thus questions of definition of the nature of legal means in a science of civil law are among the debatable. It is possible to allocate conditionally two basic approaches to understanding of legal means: dogmatic (positivistic) and tool (sociological). Depending on the chosen approach the legal phenomena called by legal means, will essentially differ. Thus both approaches can be separately applicable to disclosing of a phenomenon of legal means of protection of interest of the debtor.

19. The interest right protection in a static condition is provided with influence of the certificates-regulators fixing both interests the subject (legitimate interests), and its rights and legal obligations, and also establishing guarantees of their realisation and protection. In this aspect legal means are rules of law, and also not standard regulators. They should be carried to legal means of the first level.

20. By means of the specified means it is provided reguljativnoe influence of the right to participants of economic circulation. The legal means forming "substance" of the right concern them, not concerning legal activity (rules of law, chastnoavtonomnye contract positions, pravopolozhenija primenitelnoj experts). Thus, as all legal means are a part of the mechanism of legal regulation, the instructions on reguljativnye properties at their designation are represented excessive. More correct for the present research is the designation of legal means of the first level as legal means of protection of interest of the debtor.

21. Complexity in understanding of the contract as regulator is caused it mnogoaspektnostju. On the one hand, any contract in itself already grows out pravorealizatsionnoj of the activity of subjects which is carried out within the limits of a legal field. On the other hand, the rules established by the parties of the contract, are for them obligatory, that underlines it reguljativnye properties. However, despite existence in civil-law agreements of individual establishments, obligatory for their participants, the specified establishments do not create the new rule of law, and reflect chastnoavtonomnye positions.

Realisation of possibilities on an establishment chastnoavtonomnyh positions by participants of contractual relations in the limits permitted by the law is provided by a principle of freedom of the contract. However freedom of an establishment can be limited by the parties of the specified positions in connection with necessity of maintenance of protected interest of one party. Often such party is the debtor in the obligation owing to specificity of the purposes of making contract and its subject structure (for example, the citizen entering the obligations relation for satisfaction of personal needs).

22. Speaking about pravoprimenitelnoj to practice as about legal means of protection of interest of the debtor, it is necessary to consider, that it is a question not of any explanation made corresponding court, and only about what supplement effective standards of civil law or concretise conditions of their application and are thus obligatory for application by courts below, i.e. Contain pravopolozhenija.

23. The dynamic condition of a right protection of interest of the debtor is found out in law-enforcement activity of the state bodies and other subjects, directed on creation of conditions of its realisation, suppression of infringements and elimination of consequences from infringement. Laws or standard legal acts cannot be legal means of such activity, them are the tools fixed in corresponding rules of law.

24. The specified legal means (legal means of protection of interest of the debtor of the second level) should be called legal means of maintenance. Their mission is expressed in assistance to normal realisation of the civil circulation by the prevention and suppression of infringements of interests of its participants and elimination of their negative consequences.

25. In the legal literature mixture of concepts "means", "way" is noticed at disclosing of the nature of the specified phenomena that is represented inadmissible. Nevertheless the interrelation of legal means and measures (ways) is obvious, as from specificity of a corresponding way of the prevention, suppressions of infringement or elimination of its consequences possibility of application of those or other legal tools depends also. Therefore the specified legal means of protection of interest of the debtor (the second level) should be differentiated on the tools (possibilities) given by rules of law to the subject for the prevention (warning facility), and also protection of the broken interest (protection frame).

26. Warning facilities can be applied by the debtor

Independently (the reference to the counterpart can concern such means with caution from infringement) or by means of the reference to competent body (for example, in antimonopoly service), in particular. The basic feature of warning facilities is that they are used in frameworks reguljativnogo legal relations and are applied at a stage previous infringement. It is possible to carry any legal tools allowing the debtor to influence the counterpart so that to stimulate its lawful behaviour to them.

27. In case of infringement of interest of the debtor in the obligation there is a material guarding legal relation. On its participants there is a corresponding influence by norms of the civil law ordering to them fulfilment of certain acts or omissions (in particular, to the infringer to cease infringement and to provide elimination of negative consequences). The specified legal relation arises irrespective of desire of the parties, however for achievement of legal result from the carrier of the broken interest fulfilment actual and-or legal acts is required. In the given aspect legal means are those tools with which help corresponding reaction of the authorised bodies is initiated or independent influence on the infringer is provided.

28. In frameworks jurisdiktsionnoj forms can be applied remedies and protection frames in executive organs (administrative protection). In nejurisdiktsionnoj to the form means of self-defence and operative influence are used.

29. The basic legal protection frames of interest of the debtor are remedies, such as the claim, the statement, the complaint, representation, etc.

The most important property of the claim as remedies is reflexion in it of a way of restoration of the broken right as any reference to the court with the requirement about protection necessarily should contain instructions for a way of such protection. The debtor in the obligation, whose interest is broken by actions of the creditor, can be used: claims about a recognition, converting claims, claims about award, including vindikatsionnye and negatory actions (a protection frame of real rights), actions for damages, about penalty, percent, claims about indemnification of moral harm, the requirement about award to obligation execution in nature.

30. As manufacture on business can be initiated not only the debtor, whose interest is broken, but also other person, including the creditor, with a view of maintenance of realisation of such interest other legal remedies can be used: objection against the claim, the statement about podlozhnosti proofs, the petition for appointment of examination, the complaint and representation. Among the special means applied to maintenance of interest of the debtor in this case it is necessary to allocate: the statement for the admission the creditor of the period of limitation; the statement for penalty reduction; the statement for reduction of the size of the percent provided by the contract; the counterclaim.

31. Remedies of interest of the debtor concern not only the tools applied at unfair behaviour of the creditor, i.e. At interest infringement. Belittling of interest of the debtor can be connected with the circumstances which are not dependent on behaviour of the parties. In particular, default of obligations by the debtor in connection with its insolvency generates a condition at which the debtor is not to the full capable to satisfy the requirements in the conditions of obligation preservation so it not in a condition to realise the objective interest. In this case the debtor has a possibility to initiate procedure of an inconsistency (bankruptcy) and by that to be released from debt burden.

32. Means of administrative protection of interest of the debtor represent the reference of the applicant in competent (extrajudicial) body with the request for application to the infringer of statutory measures of the state compulsion or fulfilment of other actions within the limits of the competence, directed on the prevention, suppression and elimination of consequences of infringement of protected interest. Protection frames, in particular, concern them the state and municipal bodies, and also means of notarial protection.

33. Allocating the legal means applied in nejurisdiktsionnoj to the form of protection of interest, it is necessary to notice, that self-defence is necessary for understanding in narrow and wide sense. In narrow sense it is necessary to understand fulfilment by the authorised person of the actual actions not forbidden by the law directed on failure of consideration or reduction of negative consequences of such infringement as self-defence. In a broad sense self-defence covers both actual, and legal acts. Thus it is important to notice, that realisation actual and-or legal acts by way of self-defence in itself can be understood and as means of maintenance of the broken interest as provides influence on the infringer, being expressed in operation, uniform in the form and the maintenance.

34. Specificity of civil-law maintenance of interest of the citizen who is the debtor in the contractual obligation, is caused by differentiation of the objective interests underlying debt relationships, and a recognition of a priority of objective consumer interest of the citizen before objective interests of other participants.

The objective consumer interest having priority protection in consumer relations, is directed on satisfaction of property requirements of citizens, i.e. use of the goods, works, services in such a way at which their cost is not shifted on the newly founded economic objects arriving in a turn (the concept of final consumption)

35. The law on protection of the rights of consumers fixes a number corrected, applicable for maintenance of consumer interest of the citizen who is a party liable in corresponding legal relation. It is expressed, in - the first, in the general interdiction for inclusion in the contract of the conditions, capable to belittle legitimate interests of consumers; secondly, in compulsion of reception of the written approval of the consumer on performance of additional works or service for a payment; thirdly, in rules about invalidity of positions of the contracts causing reception by the citizen of one blessings depending on acquisition of other goods, works, services.

36. Special possibilities of maintenance of interest of the citizen-debtor are fixed in the Federal act from 21.12.2013 № 353-FZ źAbout the consumer credit (loan)╗ which establishes requirements to the marginal cost of consumer credits (loans); fixs impossibility of change of the interest rate provided by the contract, towards its increase; fixes compulsion of performance of information duties the creditor; establishes sequence of repayment of requirements; defines interaction rules between the creditor and the borrower within the limits of execution of a contract.

37. Having estimated item 13 of the Law on the consumer credit which allows the parties of the credit contract to change in individual conditions the business venue under the claim corrected, consider expedient to limit possibility of change by the parties of the contract of the consumer credit of the venue not to limits of the subject of the Russian Federation, and municipal union borders on the location of the borrower.

38. Acceptance of the Federal act admits timely from

03.07.2016 № 230-FZ, the interaction devoted to the organisation between the citizen-debtor and the creditor or other persons operating in its interests. The given legal act supplements an arsenal of legal means of maintenance of interest of the citizen-debtor with the written agreement on interaction between the debtor and the creditor; the written approval of the debtor to interaction with the third parties; the statement of the debtor for definition of the person which will carry out interaction with the creditor on behalf of the debtor; a declaration of abandonment from interaction.

39. The important tool in maintenance of interests of the debtor who has become owing to objective causes incapable to execute undertaken, is źconsumer bankruptcy╗. Procedures of an inconsistency of such debtor allow to give, on the one hand, to the physical person time - "respite" (i.e. Time period during which penal actions for obligation default) within three years, sufficient are not charged that the debtor has planned execution of obligations to creditors and as a result has restored the lost solvency, on the other hand, in case of unsuccessfulness or inexpediency of regenerative measures to receive clearing of debts.

40. From the moment of commencing a suit about bankruptcy the citizen the-debtor gets additional possibilities for protection against requirements of the creditors. First of all it is expressed in the termination of charge of penalties and other financial sanctions; introduction of the moratorium on repayment of requirements of creditors for their uniform satisfaction; in possibility to be released from unsatisfied requirements of creditors, including not declared in business about bankruptcy, after end of calculations with creditors. Legal means of maintenance of interest of the poor debtor can admit: the statement for a recognition of insolvent; the project of the plan of the re-structuring, prepared by the debtor; the agreement of lawsuit with creditors.

41. The main lack of the current legislation about an inconsistency (bankruptcy) is fastening of compulsion of regenerative procedures concerning the citizen-debtor that is not equitable to interests both the debtor, and its creditors. Therefore it is represented to more correct to change the approach existing in the legislation on obligatory introduction of procedure of re-structuring of debts of the citizen, having provided voluntary character of such procedure, by analogy to procedure of financial improvement.


<< | >>
A source: Gajmaleeva Ajsylu Tagirovna. CIVIL-LAW PROTECTION of INTEREST of the DEBTOR In the CONTRACTUAL OBLIGATION. The dissertation on competition of a scientific degree of the master of laws. Ufa - 2017. 2017
¤ţýţ¨Ř ˝ ÝÓ´Ŕ˝ÓÝŔňý ˇ¸ňßÝű§ ­Óßţ˛

More on topic THE CONCLUSION:

  1. the Conclusion
  4. the Conclusion
  5. the Conclusion
  7. the Pathomorphologic conclusion
  13. the Conclusion
  15. the Conclusion
  18. the Conclusion
  20. the Conclusion