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the Conclusion

The research of domestic legal regulation of the contract of retail purchase and sale carried out by the author of dissertation allows to formulate a number of conclusions and offers on current legislation perfection.

1. Scientific interest to the contract of retail purchase and sale was shown in domestic civil law not always. In pre-revolutionary jurisprudence the concept of the contract of retail purchase and sale was absent, problems of legal regulation of retail purchase and sale were not put and not discussed. Since the middle of 20th years and up to the middle of 80th years the attention of scientists-lawyers of Soviet time has been turned on a problem of legal regulation of retail purchase and sale and the pas an extent of all history of civil thought in the USSR did not weaken. C the beginning of transition of the Russian society to market economy connects appreciable easing of interest to problems of the contract of retail purchase and sale in jurisprudence.

2. On the basis of the spent analysis of sources of the Soviet legal literature the author of dissertation allocates a number of the basic problems of retail purchase and sale which rose in jurisprudence of that time. Because the Soviet legislation did not contain neither concepts of the contract of retail purchase and sale, nor special provisions, its regulating, very many moments, concerning the considered contract, were debatable. The most disputable were the questions, contracts of retail purchase and sale concerning elements, the legal nature of the offer under the contract of retail purchase and sale, the moments of making contract of retail purchase and sale and property right transition on it. Also, the big resonance in a science was received by a problem, concerning criteria of allocation of the contract of retail purchase and sale in a separate kind of the contract of purchase.

3. Along with that many problems of relations of the retail purchase and sale, known to jurisprudence of the Soviet period, have been resolved in the legislation operating now, some problems and remained not resolved. So, till now there are debatable the questions, concerning figures of the tenderer under the contract of retail purchase and sale and the system sign delimiting the contract of retail purchase and sale from other contracts of purchase.

4. The carried out analysis of the modern legal literature and the current legislation allows the author of dissertation to allocate a number of the new problems, concerning contracts of retail purchase and sale. The given problems consisting in certain interrelation with each other, it is possible to divide on: connected with protection of the rights of the consumer under the contract of retail purchase and sale and its counterparts. Attempt of the decision of the first designated problem has caused occurrence of a problem of abusing by consumers by the rights as development of legal regulation of relations, in particular relations on protection of the rights of consumers under the contract of retail purchase and sale, is one of the legal reasons of misuse of right.

5, On the basis of the spent analysis of the current legislation about retail purchase and sale and pravoprimenitelnoj experts, the author of dissertation designates a number of scientific problems with which it is necessary to shine further in the legal literature.

The problems connected with the further development of legal regulation of relations on protection of the rights of consumers concern them, occurrence of new kinds of the contract of retail purchase and sale (for example, remote purchase and sale), elimination of blanks in legal реіулировании relations of retail purchase and sale with participation on the party of the buyer of the legal person (the individual businessman), first of all.

6. On the basis of the spent analysis of sources of the Soviet right, by the author of dissertation it is established, that the legal institution of the contract of purchase but to comparison with present time in a sufficient measure has not been worked in the Soviet legislation. To it testifies as the general smallest volume of the norms devoted to the contract of purchase, and absence in heads of the Soviet Civil codes devoted kupleprodazhe, internal differentiation of norms. Result of similar absence of interest of the legislator to purchase and sale relations was that laws of Soviet time did not contain neither concepts of the contract of retail purchase and sale, nor the norms specially devoted to regulation of relations of retail purchase and sale.

7. Feature of the legislation on retail purchase and sale of Soviet time was plurality of the subordinate legislation normative acts regulating the relations in given sphere. The basic place among the specified certificates was occupied with the departmental normative acts which prevalence led to possibility of discrimination of the rights of buyers since in them interests only one party - the department actually representing the seller-state were considered. A principal cause of plurality of subordinate legislation normative acts in sphere of retail purchase and sale was the extremely limited regulation of relations of retail purchase and sale by acts. As laws urged to regulate the most important public relations, hence, it is possible to draw a conclusion, that, regulating relations of retail purchase and sale basically at subordinate legislation level, the Soviet state did not recognise behind them the special importance.

8. Norms of retail purchase and sale of Soviet time, in comparison with today, in many respects had inefficient character. The problem of efficiency of norms of the retail purchase and sale, standing during the Soviet time for the agenda, consisted in the following:

- The certain rights of buyers under the contract of retail purchase and sale in norms Soviet GK were fixed in purely declarative form, in practice were not applied and did not receive the development in the subordinate legislation;

- Norms of retail purchase and sale were too the general, not detailed;

- The order of their action at level of legal procedures has not been established, that is the mechanism of realisation of norms of retail purchase and sale was absent.

9* Having investigated the basic sources of the administrative and criminal Soviet and modern right, the author of dissertation has established following changes in legal regulation of relations of retail purchase and sale by norms of the specified branches of law. First, in connection with serious change of political and economic relations in Russia, concerning many structures provided by the Soviet criminal legislation

Crimes decriminalization has been carried out. Also, now in legal regulation of relations of retail purchase and sale increase of a role of civil responsibility, value is marked

Property responsibility and others pravovosstanovitelnyh sanctions, in comparison with Soviet time where the principal value was given to criminal, administrative and disciplinary sanctions. Secondly, because relations of retail purchase and sale constantly develop and become complicated, in sphere of retail purchase and sale offences are made new, unknown to the Soviet time, there is a necessity of corresponding legal regulation.

10* Relations of retail purchase and sale represent the relations developing in the course of retail trade, and also other relations, is close with them connected. Presence of special relations of retail purchase and sale has caused necessity of their special legal regulation by means of the legislation on retail purchase and sale. In turn, the legislation on retail purchase and sale represents set of the standard legal acts regulating the relations of retail purchase and sale, Features of the legislation on retail purchase and sale are:

- Complex character;

- The civil legislation as its basis;

- More imperative regulation of retail purchase and sale in comparison with other kinds of purchase and sale.

11. Integrated approach of the legislation, including the legislation on retail purchase and sale, is expressed in interaction of norms of various branches of law at regulation of homogeneous public relations for the purpose of formation of adequate standard base taking into account features of a subject of legal regulation. Thus specified interaction can be carried out in two legal forms: in the form of addition (when norm parts are in various branches of law) and completion (when the norms regulating homogeneous public relations, are in various branches of law). Thus the legislator uses three basic prisma interactions: direct sending (to concrete article of the regulatory legal act, to the concrete regulatory legal act or to legislation branch); use of norm of other branch of law in the complex regulatory legal act (acceptance of the complex regulatory legal act); Actual interaction, legislatively directly nanosecond the defined.

12. Among the general reasons of integrated approach of the majority of branches of legislations, in particular legislations on retail purchase and sale, it is possible to allocate: integrated approach of public relations which the legislation urged to regulate; a combination private and public interests in legal relation.

Other reasons of integrated approach of the legislation on retail purchase and sale (and some other legislations, including consumer legislations) are: presence of an economic inequality (in case of relations of retail purchase and sale being multistage), and, as consequence of necessity of elimination of an economic inequality, - use of ways, receptions of methods of various branches of law.

13. Because interaction of rules of law is shown only in the course of active actions of subjects of law in relation to rules of law, integrated approach of the legislation, including the legislation on retail purchase and sale, shown only at stages of creation and application of rules of law. So, integrated approach of the legislation is shown a pas following stages of the mechanism of legal regulation; a pas of a stage of formation of legal rules the legislator, at a stage of realisation of the rights and duties participants of legal relations and at a stage of application of the right judicial and executive organs. At a stage of occurrence of the rights and duties at privies for the specified reasons integrated approach of the legislation is not shown.

14* According to the author of dissertation, the tendency of narrowing of powers of local governments in regulation of relations of retail purchase and sale that can lead to negative consequences in sphere of a legal status of consumers under the contract of retail purchase and sale recently is traced.

15, the Structure of the legislation on retail purchase and sale can be considered by means of its various classifications. So, in a basis of classification of legal regulation of relations of retail purchase and sale can be put:

- Validity of the standard legal acts regulating the relations of retail purchase and sale;

- Kinds of the goods, which purchase and sale it is regulated by the legislation on retail purchase and sale;

Kinds of contracts of the retail purchase and sale regulated

The legislation on the retail purchase-about even;

- The character of regulated relations subdividing normativnopravovye certificates of the legislation on retail purchase and sale on publichnopravovye and private-legal;

- The bodies which have accepted the standard legal act, constituting the legislation on retail purchase and sale;

- Subjects of regulated relations.

16 Having analysed concept of the consumer legislation and the legislation on retail purchase and sale, the author of dissertation comes to conclusion about their following parity. C one party, the consumer legislation is wider, than the legislation on retail purchase and sale as includes norms about protection of the rights not only consumers-buyers, but also consumers at rendering of services and performance of works, C other party, it already legislations on retail purchase and sale as regulates relations only with participation of citizens - of consumers on the party of the buyer, not mentioning thus relations with participation of legal bodies and individual businessmen.

17 On the basis of the spent analysis of sources of the Soviet and modern legal literature, the Soviet and modern legislation and pravoprimenitelnoj experts, the author of dissertation comes to conclusion that distinction of legal regulation of retail purchase and sale at this or that historical stage is caused by following reasons:

First, distinction of economic relations in the given area;

Secondly, distinction doktrinalnyh sights at corresponding problems;

Thirdly, distinction of the legislation on retail purchase and sale, including in a context of development of its private and public elements. In spite of the fact that at various historical stages the legislation on retail purchase and sale essentially differs, in legal regulation of relations of retail purchase and sale the certain continuity takes place,

18, On the basis of the detailed analysis of the legislation of Russia of all basic historical periods, including pre-revolutionary, Soviet and modern, conditionally legal regulation of relations of retail purchase and sale can be subdivided into following stages corresponding to them:

Dispozitivno-imperative. Till the end of 19 centuries legal regulation of relations of retail purchase and sale was characterised by prevalence of action of a common law, and only subsequently the sphere of private-law contractual relations of the beginning in bolshej to degree to be exposed to state regulation.

- The imperative. Imperativeness of the given stage is expressed that the Soviet state regulated relations of retail purchase and sale, basically using a power-submission method, and, being the seller under the contract of retail purchase and sale, first of all considered thus own interests.

Imperatively-dispozitivnyj. Imperative regulation of relations of retail purchase and sale has now the purpose basically protection of the buyer as more weakness under the contract. Other, less significant moments of the contract of retail purchase and sale, are regulated by the legislator in an optional order.

19. The author of dissertation spends detailed classification of the contract of retail purchase and sale on kinds and subspecies on the basis of its various conditions. The carried out analysis of features of legal regulation of separate kinds of the contract of retail purchase and sale allows to draw a conclusion that all classifications of the contract listed above the basis possess the certain specificity having following value. According to the author of dissertation, as the bases of allocation of separate kinds of the contract of retail purchase and sale the legislator uses those its conditions at which presence the certain rights and interests of the buyer are most vulnerable,

20. On the basis of the spent analysis of classifications of the rent contract and the contract of purchase, fastening of classifications in the legislation, the author of dissertation the conclusion that classification of the civil-law contract on types and kinds influences its structure as the legal institution becomes. So, existence of separate type of the contract causes existence

The contract legal institution. Presence of a kind of the contract predetermines existence of legal subinstitute of the contract. Presence of subspecies and other versions of the contract causes existence of more fractional structural divisions of the obligations conventional law, such, as groups of rules of law about separate subspecies of the contract which in a spider of the name have no now.

21. The analysis of the norms regulating the contract of retail purchase and sale carried out by the author of dissertation, concluded through the automatic machine, allows to draw a conclusion on their inefficiency connected, first of all, with absence of the mechanism of their realisation. In this connection, the author of dissertation offers to state item 498 GK the Russian Federation in the following edition:

"I. In cases when sale of the goods is made with use of automatic machines, the owner of automatic machines is obliged to finish to buyers the information on the seller of the goods, and also on the person who has given to it a place in rent under installation of the automatic machine, by a premise on the automatic machine or grantings to buyers a different way of data on their name (company name), a place of their finding, an operating mode, and their contact phones, and also about actions which are necessary for making to the buyer for goods reception.

2. The contract of retail purchase and sale with use of automatic machines is considered the prisoner from the moment of fulfilment by the buyer of the actions necessary for reception of the goods.

3. If the paid goods, the seller, the owner of the automatic machine, or the person who has given to it a place in rent under installation of the automatic machine is not given to the buyer, is obliged on request of the buyer immediately to give to the buyer the goods or to return the sum paid to it. For default (a performance delay) given requirement of the buyer the seller (the person who has given to it a place in rent under installation of the automatic machine) pays to the buyer per every day of delay the penalty (penju) at a rate of ten percent of the price of the goods.

4. In cases when the automatic machine is used for exchange of money, acquisitions of signs on payment or exchange, are applied rules about retail purchase and sale if other does not follow from an obligation being. "

22. The author of dissertation draws a conclusion that position of paragraph 4 of item 4 of item 26.1 of the Law about ZPP according to which "the consumer has not the right to refuse the goods of the appropriate quality having specific properties if the specified goods can be used consumer exclusively getting it" contradicts item 3 of item 497 GK the Russian Federation by which it is established that the buyer before goods transfer has the right to refuse execution of a contract of retail purchase and sale under condition of compensation to the seller of the necessary expenses suffered in connection with fulfilment of actions on enforcement of the treaty. In this connection, according to the author, the specified position of item 26.1 of the Law about ZPP strikes at the rights of consumers under the contract of remote purchase and sale and it is necessary for excluding.

23. The author of dissertation draws a conclusion according to which in the text of paragraph 3 of item 4 of item 26.1 there is an obvious contradiction. So, in specified article it is said, that "return of the goods of appropriate quality is possible in case its trade dress, consumer properties, and also the document confirming the fact and conditions of purchase of the specified goods" are kept. However already in the following offer it is underlined, that absence at the buyer of such document does not deprive of its possibility to refer to other proofs of acquisition of the goods. With a view of elimination of the given contradiction by the author of dissertation it is offered to state paragraph 3 p, 4 items 26.1 in the following edition: "Return of the goods of appropriate quality is possible in case its trade dress and consumer properties are kept. Absence at the consumer of the document confirming the fact and conditions of purchase of the goods, does not deprive of its possibility to refer to other proofs of acquisition of the goods at the given seller",

24. On the basis of the spent analysis of positions of the Decision

The governments of the Russian Federation from June, 6th, 1998 № 569

"About the statement of Rules of commission business

neprodovolstvennymi ", the author of dissertation comes to conclusion, that in connection with absence in the considered Governmental order of specificity of a legal status of the consumer-citizen in comparison with the buyer - the legal body (the individual businessman) by the given kind of the contract of retail purchase and sale, and presence of a legal blank in regulation of relations of commission business neprodovolstvennymi with participation of pokupatslej-aliens, it is necessary to extend its action and to last specified subjects of the contract of retail purchase and sale.

The author of dissertation it is offered to paragraph 4 p.І Item 1 of the Governmental order of the Russian Federation from June, 6th, 1998 № 569 "About the statement of Rules of commission business neprodovolstvennymi" to state in the following edition: "the legal body (the individual businessman) is understood the citizen having intention to get As the buyer, having intention to get or getting or ' using the goods for the purposes which have been not connected with realisation of enterprise activity either getting or using goods only for the personal, family, house and other needs which have been not connected with realisation of enterprise activity, and also".

25. The concept "buyer" and "consumer" in case of their participation in relations of retail purchase and sale correspond among themselves as follows. Under the contract of retail purchase and sale the concept "buyer", on the one hand, is wider than concept "consumer" as it can be not only the citizen-consumer, but also the legal body or the individual businessman. C other party, concept "buyer" - already concepts "consumer" as it under the contract of retail purchase and sale can be not only the citizen getting the goods, but also having intention them to get or their using.

26. In a case when on the party of the buyer under the contract of retail purchase and sale the legal body (the individual businessman) acts, following features of the analyzed contract are marked:

1. Between the seller and the buyer - the economic inequality, but to a lesser degree, than in case of participation in the contract of the citizen-consumer exists the legal body (the individual businessman) under the contract of retail purchase and sale. It causes its smaller protection by the legislator,

2. From the first noted feature follows, that in case of participation on the party of the buyer of the legal person (the individual businessman) legal regulation of the contract of retail purchase and sale varies. The law about ZPP and other regulatory legal acts regulating the relations of retail purchase and sale exclusively with participation of consumers-citizens, in this case do not come under to application.

3. Because the majority of treaty provisions of the retail purchase -

Sales are regulated by the legislator in an imperative order, and data

Conditions differ depending on the one who acts on the party

The buyer - the legal body (individual the businessman) or

The citizen, varies the contract maintenance: its conditions, including a condition about

Subject of the contract and the rights and duties of the parties. As to a subject

Contracts of retail purchase and sale, because its features

Are expressed through the acquisition purpose, in case of participation on the party of the buyer

The legal person (the individual businessman) varies

The purpose of acquisition of the goods. So, in this case the goods are got, with one

The parties, not for the personal, family, house purposes, on the other hand, only

For the purposes which have been not connected with realisation of enterprise activity.

Thus, the purpose of acquisition of the goods under the contract of the retail purchase -

Sales by legal bodies and individual businessmen /

Is already in comparison with the purpose of acquisition of the goods the citizen.

27. Any contract including the contract of retail purchase and sale, represents the certain structure, consisting not only from its certain elements, but also their interrelations. Most brightly given interrelations in the contract of retail purchase and sale are shown in a case when its party varies, and the subject and its maintenance (treaty provisions, the rights and duties of the parties) accordingly change.

28. The author of dissertation causes necessity of reduction of concepts "buyer" and the "consumer", used in the regulatory legal acts regulating the contract of retail purchase and sale, in conformity C by the definitions given by it in the Law about ZPP (concept "consumer") and GK the Russian Federation (concept "buyer"). Also, according to the author of dissertation, with a view of completion of an existing legal blank in regulation of relations of retail purchase and sale with participation on the party of the buyer of the legal person (the individual businessman), it is necessary to extend to them action of the regulatory legal acts regulating the relations only with participation of consumers, in that case when there is no necessary specificity.

29. On the basis of the spent analysis of legal relations of retail purchase and sale in case of plurality of persons the author of dissertation classifies joint liabilities on following bases:

- On used reception of an establishment of a joint liability in the legislation differ: obvious solidarity - in case of the phrase use, with word use is solidary"(with the various terminations); and the latent solidarity - in case of an establishment of the mechanism of solidarity or when possibility of occurrence of a joint liability is provided in the most legislatively certain concept of the subject konkretnoju legal relations;

- On volume of powers of the party of a joint liability: full and limited;

- By the form arising recourse obligation: a joint liability with the share and bilateral recourse obligation; the full and partial recourse obligation; the recourse obligation corresponding and mismatching the executed obligation.

Feature of plurality of persons in legal relation of retail purchase and sale is that it usually arises not from the moment of making contract, and subsequently, in the course of using the goods and detection in it of a lack, or injuries by goods lack.

30. In all cases when the contract of retail purchase and sale consists on behalf of the legal person acting on it as the seller or the buyer, it consists its authorised representative. This representation can be based on the employment contract, the administrative act, or the contract of agency and to appear from conditions in which the representative operates. Voluntary (based on the contract) the representation is possible also in case the physical person, including being the individual businessman is represented. Also, concerning the contract of retail purchase and sale probably lawful representation when predstavshigskis relations arise on law express indication (for example, legal representatives of juvenile children including under the contract of retail purchase and sale, their parents which powers are based on the motherhood and paternity facts) are.

31. On the basis of the spent comparative analysis of tax laws and the consumer legislation regarding corresponding sections HK the Russian Federation, the containing rule, payments of taxes and tax collections concerning an order and the Law about ZPP, regulating an order and forms of payment of the performed work (the rendered service), the author of dissertation becomes a conclusion that in the field of protection of the rights of consumers the maintenance of corresponding norms of the fiscal law influences the maintenance of the specified norms of civil law concerning definition of the moment of discharge of duty on service payment (result of work) cash money resources. So, for the purpose of perfection of legal regulation of relations on protection of the rights of consumers, the legislator has reflected borrowed of HK the Russian Federation the scheme of definition of the moment of discharge of duty on tax payment by cash money resources (item item 2 45 HK the Russian Federation) in the regulatory legal act of the civil legislation which the Law about ZPP (Law item 37 about ZPP) is.

32. According to the author of dissertation, the position containing in p, 2 items 45 HK the Russian Federation, concerning moment definitions from which the tax bearer is considered executed a duty on payment of the tax in case of use of the non-cash form of payment, it is necessary to borrow and provide also in the Law about ZPP the consumer right to be considered executed a duty on goods payment (works, services) at the moment of write-off of a necessary sum of money from its account, instead of at the moment of their transfer into the account of the seller (uslugodatelja, the manufacturer). For present purposes the author of dissertation offers to enter into the Law about ZPP item 11.1"the Order of payment of the goods (the performed work, the rendered service) at use of the non-cash form of calculations" the following maintenance: " At use of the non-cash form of calculations the duty on goods payment (the performed work, the rendered service) is considered the necessary sum of money executed from the moment of write-off from the consumer account ". Changes offered by the author of dissertation also would lead unifitsirovaniju a legal regime of the moment of discharge of duty of the consumer but to the contract of retail purchase and sale on payment of the goods by clearing settlements as in that case when the consumer pays the goods for the contract of retail purchase and sale with use of a payment card, it is considered executed a duty on payment of the goods at the moment of write-off of the necessary sum from its bank account.

33. According to the author of dissertation to avoid in practice of possible infringements of the rights of buyers under the contract of retail purchase and sale from sellers - the noncommercial organisations, it is necessary for the legislator

To specify possible subject structure but to the contract of adhesion and to bring in item 428 GK the Russian Federation respective alterations. So, the author of dissertation offers to state item 1 of item 428 GK the Russian Federation in the following edition: "the Contract of adhesion the contract which conditions are defined by one of the parties (the commercial or noncommercial organisation) in data cards or other standard forms admits and could be accepted other party precisely by joining to the offered contract as a whole".

34. The author of dissertation offers in order to avoid ambiguous interpretation of use by the legislator of brackets at transfer of subjects of the contract of retail purchase and sale, to state paragraph 8 of item 2 of item 10 of the Law about ZPP in the following edition: "the address (location), the company name (name) of the manufacturer, the executor, the seller, and also the authorised organisation or the authorised individual businessman, the importer".

35. Owing to that concerning the contract of retail purchase and sale the legislator provides considerable restriction of a principle of freedom of the contract, in particular, the contract of retail purchase and sale is the contract of adhesion and the public contract, imperativeness of its conditions has special character, C the purpose of definition of limits of independence of the parties of the contract of retail purchase and sale in an establishment of its conditions, the author of dissertation offers to classify imperative conditions of the specified contract on following bases:

- On an orientation of imperativeness a condition on subjects of the contract:

The buyer and its counterpart;

- On the subject, their establishing: legislatively established imperative conditions and established by the counterpart of the buyer under the contract;

- But degrees of participation of the party of the contract in an establishment of its conditions:

Absolutely imperative and it is imperative-dispozitivnye (in which relation more preferential mode, in comparison with the established legislator) can be provided only.

36. Precontractual relations always develop during procedure of the conclusion of any contract. Feature of making contract of retail purchase and sale is that the legislator in addition regulates in an imperative order procedure of the offer regarding precontractual relations on information granting.

37. On the basis of the analysis of treaty provisions of retail purchase and sale and its separate kinds fixed by the legislator, the author of dissertation the conclusion is drawn that the concrete parity optional, imperative and is imperative-dispozitivnyh conditions of the considered contract depending on the one who acts on the party of the buyer (the citizen or the legal body (the individual businessman)), is, first, is standard issued reception of legal technics, C which help will of the legislator receives the legal expression and, in - the second, reception of a method of the legal regulation, defining an order of an establishment of a combination of permissions, interdictions and instructions in the concrete rule of law. The given is standard issued reception of legal technics, also as well as reception of a method legal re a rumble krovav ija, are used by the legislator e the same purpose - for weakness protection in the contract and elimination of an existing economic inequality.

1998,-Na 10.-WITH. 104.

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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

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