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the Third parties in a liability law

Any civil-law obligation is perceived as the legal bond of two parties [1] from which one (creditor) it is allocated by the right, and another (debtor) bears a duty. [2] thus, to the right of the creditor always korrespondiruet the subjective duty of the debtor, which maintenance is reduced to necessity of fulfilment by the last of certain active action [3].

It would seem, the right of the creditor to active action of the debtor should be perceived as axiomatic position. Meanwhile, relations of economic basis have caused such designs which break the general representation about the obligation as exclusively communications of the creditor and the debtor [4] by a life. It is a question of the third party which in statutory, other legal acts, and also the agreement of the parties limits can affect dynamics of debt relationship. And that else in the Roman private law was considered through a prism of strictly personal character when the creditor had the individual right of the requirement turned to the debtor [5], acts today, is faster as an exception limiting possibility of attraction of the third party to execution of the obligation, both on the party of the debtor, and on the party of the creditor.

However, as though we concerned a third party role in dynamics of the obligation, one remains invariable: only for debt relationship (in difference from real, non-property and organizational) that the authorised person is called as the creditor is characteristic, and a party liable - the debtor [6]; these persons are so concrete, how much the obligation at the expense of those rights and duties which characterise participants of corresponding legal relation in general can be concretised. For this reason the civil law doctrine by criterion of intersubject communications carries the obligation to relative legal relations. And if in absolute legal relations the authorised party is resisted by an uncertain circle of parties liable which in a general view can be described a design «other persons» or "third parties" [7] in debt relationship occurrence of any other (third) person [8] distinct from creditor or the debtor should be perceived as the anomaly which presence was admitted by the law, having responded on requirement of relations of economic basis. Considering such reservation, the domestic doctrine of civil law allocates two basic categories of subjects of the obligation - the parties and the third parties. [9]

For today in the liability law theory there is no uniform approach to understanding of the third party that is caused, first of all, the ambiguous approach of the legislator to use of the term "third party" under the maintenance of separate norms of a positive law. So, interpretation of item 3 of item 308 GK the Russian Federation according to which «the obligation does not create duties

For the persons who are not participating in it as the parties (for the third parties) », allows to approve, that the legislator in most general view under the third party understands any person, other, rather than the parties of the concrete obligations

Legal relations. [10] such definition of the third parties for the purpose of a liability law does not introduce clearness in differentiation of such concepts as "third party", «other person», «an uncertain circle of persons».

In the doctrine the judgement that as the third parties it is necessary to consider all those who expresses, not being the party or the obligation parties, the acts or omissions definitely influence dynamics of the obligations

Legal relations. [11] but how in that case to understand, where there are those borders which transition by "other" persons will lead to what it will be perceived as influence on dynamics of the obligation by third party act or omission?

M.I.Braginsky defined the third parties as the participants of the civil circulation who are in certain position in relation to other participants. In its opinion if other person is any participant of the civil circulation who is not the party of initial legal relation, the third party, not being the party of the initial obligation, it is always legally connected with one of the parties of the initial obligation. [12] that is it is a question of not which legal communication as the qualifying sign, delimiting the third parties from all other participants of the civil circulation.

Presence of a similar qualifying sign was seen also by other scientists-jurists. In particular, O.A.Krasavchikov wrote: «as to the third parties the law carries to them such subjects who consist in the certain legal bond from one of the parties and get owing to it under the obligation some rights or duties, for example, in case of occurrence of the contractual obligation in favour of the third party» [13].

About legal communication of the third parties with the obligation parties wrote in due time and V.S.Tolstoy. [14] necessity of the legal bond of the third party from one of the debt relationship parties was proved by M.K.Sulejmenov. [15]

Under the influence of scientists-classics this position has found reflexion and in the modern literature. So, M.K.Kroz expresses opinion, that the third party in the civil-law obligation is its participant connected by certain legal relation from one of the parties of the given obligation and possessing the rights and duties, derivative of the rights and party duties (the debtor or the creditor) [16]. I.V.kissel also adheres to the point of view that one of the obligation parties is connected by other obligation with the third party [17].

Not objecting as a whole on the substance of the resulted opinions, it is obviously necessary to notice, that legal communication about which the given scientists talk, it is necessary to perceive exclusively as communication obligations [18]. Otherwise, if to understand it it is broad - as any legal communication, the third parties become practically inseparable from other persons. At the same time, presence of obligations communication cannot be considered in a context of the qualifying sign defining a condition of involving of subjects of the civil circulation in dynamics of the obligation as the third parties. The third party can be and is not connected with one of the parties of the obligation any legal communication, but thus to be capable to influence dynamics of legal relation. Speech, in particular, goes about action institute in another's interest without the commission in which frameworks relations of the person (third party) which is not possessing legal communication with the debtor are regulated, on execution for the last of obligations to its creditor. In the action mechanism in another's interest without the commission of a category "third party" and «other person» are in certain degree similar. However, gestor, operating in interests dominusa, passes from a category of "other persons» in a category "third parties". The given circumstance excludes possibility of use of criterion of legal communication for otgranichenija the third parties from all other subjects of the civil circulation as a universal (qualifying) sign. Moreover, the sign of legal communication not always works and in cases when the debtor or the creditor of the obligation simultaneously consist in set of other obligations communications: Only one fact of a finding of other person in obligations communication with the creditor and the debtor, does not transform it into the third party as other person can and not influence the obligation of the creditor and the debtor. Stated staticizes requirement of search of other universal criterion for registration of a figure of the third party in dynamics of the civil-law obligation.

What consolidates all third parties, anyhow capable to influence dynamics of the arisen obligation?

It is represented, that only interest of [19] participants of the civil circulation is capable to isolate one participants as the debtor and the creditor of the obligation, and others - as the third parties in relation to dynamics of this obligation [20]. Thus, if interest of the debtor and the creditor always corresponds with the obligation purpose interest of the third parties always is outside of this purpose [21], however its realisation in relation to such obligation acts as means (tool) of satisfaction of interests of the creditor and the debtor. It means, that formation of the subject of civil law as the third party in relation to the obligation passes two stages: the first is connected with fastening (registration) of certain interest that leads to occurrence of the potential third party; the second is connected with realisation of the given interest, mentions dynamics of the obligation at which the potential third party passes in a third party condition. Set of other persons concerning the obligation represents an uncertain circle of persons.

So, realisation of interest of the participant of the civil circulation acts as a sufficient and necessary condition of acquisition by such participant of quality of the third party in relation to the obligation.

Let's present third party model in dynamics of the civil-law obligation in the form of a certain set of spaces. In relation to the obligations communication presented by the creditor and the debtor (space of the parties of the obligation), all other subjects of civil law form space of "other persons». At the same time, the obligation parties act as a link for all those «other persons» who, not being participants of debt relationship, can potentially influence its dynamics, under condition of formation at them corresponding interest. These persons form space of the potential third parties in space of "other persons». In relation to space of the potential third parties all the others «other persons» get to space of an uncertain circle of persons (other persons).

At realisation of the interest the potential third party joins in dynamics of the obligation as its participant (third party), not getting quality of the basic privies - its parties. As a result it is possible to talk about formation of space of participants of the debt relationship including space of the parties of the obligation, and also space of the third parties. All spaces in relation to space of the parties of the obligation always are in a mobile condition: until there is an obligation, there is a possibility of transition of any subject of civil law from one space in another; any person who is a part of an uncertain circle of persons, can pass in a third party condition.

Coming back to the maintenance of item 3 of item 308 GK the Russian Federation and considering the above-stated, we will notice, that the instruction of the specified norm, obviously, concerns those third parties which are involved in dynamics of debt relationship as its participants. The given installation is important for that comprehension, that the legal phenomenon "third party" is many-sided: it shows the features not only in sphere of differentiation of legal relations on relative and absolute, real and obligations, but also and in each of the specified elements. Would be wrong to try to state an estimation to the third party in a liability law exclusively from a position of the person which behaviour corresponds with actions of the debtor or the creditor. After all not only the third parties can influence dynamics of the obligation, but also the obligation, both on stages of its occurrence, and on stages of its execution (and it is equal, on stages of its change or the termination of distinct from execution of the obligation) can influence on the third parties. Moreover, it is direct actions of the third parties as participants of the obligation can influence other participants of the civil circulation whom the law also names the third parties. Whether it is possible to say in that case about mixture of concepts and what the legislator without discrimination uses the term "third party" for a designation of different subjects of a liability law? It is obvious, that is not present.

It is necessary to understand accurately for what purpose the concept "third party" is used: if it is a question of dynamics of the obligation in which the subject distinct from the debtor or the creditor it is necessary to talk about the third party as the participant of debt relationship is involved; if it is a question of those persons who can get under action of those consequences which are connected with dynamics of the obligation, including caused by behaviour of the third party - the participant of the obligation, it is necessary to speak about the third party, as not being participant of the obligation.

For example, perceiving behaviour gestora in the action mechanism in another's interest without the commission as behaviour of the third party, we inevitably face that, as actions gestora (as an original cause) can infringe on interests of subjects of the civil circulation which will be perceived in relation to dominusu or gestoru as the third parties. So, according to item 1 of item 983 GK the Russian Federation actions gestora, made after it knew about their disapproval from the party dominusa, do not attract for the last duties neither in the relation gestora, nor concerning the third parties. The third party figure (neuchastnika obligations) is present also at a situation when gestor the actions harms: the third party in this case acts in a role of the dissatisfied party - the creditor in the tort liability (item 988 GK the Russian Federation).

But as though we did not concern a figure of those persons which norms of a liability law designate the term "third parties", at the heart of formation of such figure interest of these persons always lays.

So, for example, item 1 of item 460 GK the Russian Federation contains norm that «the seller is obliged to transfer to the buyer the goods free from any rights of the third parties, except for a case when the buyer has agreed to accept the goods charged with the rights of the third parties». Similar encumbrance can carry both real, and obligations character and for the purpose of protection of interests of the authorised third party means, that obligation occurrence on transfer of the goods charged with adverse titles, the valuable interest of this person is mentioned directly. The protective mechanism of interest of the third party (neuchastnika obligations) can be found out under the maintenance of separate norms of a positive law about purchase and sale. In particular, under the contract of purchase and sale of the enterprise creditors the seller (third parties) can demand preschedule execution of the obligations which are a part of the enterprise (item 2 of item 562 GK the Russian Federation). The set example concerns a situation when the certain valuable interest of the third party is directly connected with presence at it the concrete right and this interest is mentioned by the fact of occurrence of the obligation. But situations when dynamics of the obligation the valuable interest of the third party which, in turn, will lead to occurrence at it the certain right can be mentioned take place. For example, at discharge of duty on granting of services in management of a vehicle, given in rent, the lessor bears the tort liability, caused to the third parties this vehicle (item 640 GK the Russian Federation). In a similar situation action of the lessor at realisation of the corresponding obligation mentions interest of the third party (neuchastnika obligations) which as a result will be expressed in registration of its right of the requirement directed on compensation of caused harm.

Considering stated, offer at third party differentiation - participant of the obligation and third party - neuchastnika obligations to use the formula leaning against one of two models: or on model «realisation of interest of the third party», or on model «the mentioned interest of the third party». Thus, if it is a question of realisation of interest of the third party expressed in its certain action by which dynamics of the obligation, to us the third party is mentioned - the participant of debt relationship (in the given formula «realisation of interest of the third party» is always an original cause, and «mentioned dynamics of the obligation» is always a consequence); If it is a question of obligation realisation, including third party actions - the participant of the obligation by which interest of the third party before us the third party - neuchastnik obligations (in the given formula «the mentioned interest of the third party» is always a consequence, and as an original cause «obligation realisation» or «third party action - the participant of the obligation» acts directly) is mentioned.

The established clearness in understanding of a figure of "third party" in a liability law, allows to concentrate attention exclusively to the third party - the participant of the obligation (further - the third party) and its interest. We will remind: in spite of the fact that interest of the third party always lays outside of debt relationship, its realisation in the form of certain behaviour of the third party in dynamics of the obligation leads to satisfaction of interest of the debtor or the creditor, that, in turn, staticizes a question on the maintenance of such concepts as «interest of the third party», «interest of the parties of the obligation», «interest of participants of the obligation».

The current legislation avoids the specified concepts, that, most likely, is connected with impossibility to state it an estimation with the help definitivnoj norm or other juridiko-technical toolkit which is responsible for the maintenance of norms of a positive law. However, it does not reduce that role which as a whole plays interest of participants of the obligation in the organisation of a property turn.

So, the legislator, making out a being of a principle of conscientiousness with reference to liability law sphere (item 3 of item 307 GK the Russian Federation), establishes a duty of the parties of the obligation to operate honesty, that means, in particular, necessity of the account of the rights and legitimate interests each other, mutual rendering of necessary assistance for achievement of the purpose of the obligation, granting each other the necessary information. It allows to assume, that legal interest is in some borderline between economy and the right. Still S.N.bratus noticed, that interest

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Is the precondition and the right purpose that excludes possibility obektivizatsii interests of subjects of the civil circulation in a separation from economy. In this sense J.A.Kronroda's point of view which noticed is reasonably interesting, that economic interest is not a certain psychological phenomenon, a condition of individual and public consciousness, and the form of necessity of realisation of material, objective requirements. [22 [23] passing from the form of economic interest in the form of legal interest, last cannot lose intrinsic signs first.

At the same time, in the modern doctrine attempt to define a being of legally significant interest of subjects of civil law exclusively through a category «requirement of the subject» has been undertaken, ignoring some signs which existence is caused by a being of relations of economic basis. So the judgement that legally significant interest is the requirement of the subject having social character and shown in an establishment, change, the termination, protection of rights and duties in legal relations with use of legal means for achievement of objects in view, for example, takes place. [24] It is represented, that interest disclosing exclusively through requirement will not open all being of civil-law relations. Being a product of human consciousness, the variety of interests incomparably is wider in comparison with circle of the requirements systematised by a science, including in a hierarchical order. [25] Rudolf background Iering defined the right as legally protected interest, understanding under the last subjective egoistical desire of known benefit or advantage. [26] so, it is obvious, that in relations of purchase and sale the buyer has requirement to get the goods. However to consider interest of the seller on goods sale through requirement these goods to sell it is represented unduly narrow. The seller egoistical desire of benefit, instead of only one requirement for an establishment or change of rights, sale of the goods for the sake of goods sale moves. Known psychologist S.L.Rubinshtejn noticed, that attempts to reduce interest to requirement, having defined it is exclusive as the realised requirement, are insolvent, as requirement comprehension can cause interest to a subject, capable it to satisfy, but not realised requirement as that is nevertheless requirement, instead of interest. [27] In many cases, interest arises as reaction of the subject to objective requirement, however, is not settled exclusively by necessity of satisfaction of requirements. Hence, interest is not settled exclusively by requirement, being shown not only as the conscious prompting connected with satisfaction of requirement, but also as aspirations and the desires of the subject which has been not connected with its objective requirements. There is an opinion that the form of display of interest are public relations. [28] however as it is represented, the form of display of interest outside first of all are the actions of subjects directed on the introduction into legal relations apropos and with a view of realisation of the interests.

Interest of the subject, getting to a legal field, becomes legal, or legal interest and finds the expression in prompting of the person on reception of benefit [29]. Reception of such benefit can be connected with possession the certain property or non-property right, and is equal with its realisation; with necessity of protection of such right from actions of other persons.

The requirement for interest realisation motivates subjects of civil law on the introduction into legal relations by means of attraction of a certain set of legal means. Fair the statement that the person has interest if it has an actual possibility the behaviour thereupon is represented to derive for itself benefit. [30] legal interest is characterised by presence at its carrier of the right or legal possibility of acquisition of the right or competence constituting its part of which the person can take advantage with a view of realisation of the interest, and also presence of means of its protection. Interest of the person can be directed both on itself, and on the third party, for example, the subject gives benefit from eligibility of the requirement to the third party in the third party beneficiary contract.

Let's underline, that interest of the person is not the blessing, and represents prompting of this person to reception of benefit from possession the certain blessing. For example, at acquisition of the goods by the subject interest in the goods, and interest in possession over proprietary rights concerning the given goods supervises not. Interest of the person at the introduction into insurance legal relations is prompting of the subject to acquisition of benefit from eligibility of the claim for damages or payment of the determinate sum from the insurance company at approach of the insured accident which will mention its material sphere. [31]

It is difficult to agree from V.I.Serebrovskim referring to German jurists, that interest - not risk, but that is subject to risk. [32] at such definition of interest as it is represented, there is an identification of interest and the blessing which is exposed to risk of loss. All German researchers adhere to this point of view not. Kornfeld, for example, understood as interest «everyone for the given person from known circumstance benefit or everything, that the given person can receive from failure of consideration or approach of known event» [33].

The obligation purpose is directly connected with interest of the person. In the literature the purpose is defined as a starting point and motive force of activity of the subject and factor simultaneously directing this activity. [34] so, the purpose of the insurance obligation consists in a guarantee of reception of insurance indemnity by the insurer (beneficiary) at insured accident approach. [35] in most general view the insurance purpose is protection of valuable interests of persons at approach of casual events. [36] satisfaction of the realised interest also is the purpose of any act or omission of any subject of law [37].

Besides insurance relations, the interest category can be used in civil law for definition of the size of the liability for damages, caused by an offence as any offence encroaches on valuable interests of the affected party. Also it is necessary to carry interest to valuable interests in creation and use of object of intellectual property and protection reception at infringement of exclusive rights of the author.

Rights express certain interest of the subject possessing it, and also serve as means of satisfaction of this interest. Interest of subjects is shown not only in already arisen legal relations, but is the basic precondition for the introduction of persons in legal relation, its changes or the termination, and also the precondition of influence of the third parties on dynamics of debt relationship of other persons. For this reason legal interest cannot be considered as any juridical fact as internal promptings cannot represent itself as those. At the same time, interest of the parties represents essential value for obligation existence. G.Dernburg wrote, that else the Roman jurisprudence demanded the valuable interest most veritelja in the transaction. [38] however in dynamics of the obligation to interest of the third party significance only for the reason is not attached, that it lays always outside of the given obligation. These are the third party actions directed, first of all, on satisfaction of its interest, involved in dinamku obligations, as a rule, simultaneously lead to satisfaction of interest of one of the obligation parties. Considering, that dogovory some obligations, as a rule, generate, achievement of the purpose of one obligation can cause execution of other (mutual) obligation. For the purpose of participation of the third party in execution of one of mutual obligations it means only that the satisfaction of its interest (external in relation to the obligation) can lead to formation of new interest, but already within the limits of the new mutual obligation. That is it is a question that participation of the third party in obligation execution can lead to transformation of its figure - it becomes the high-grade party of the obligation (and it is equal, the high-grade party of the contract).

Let's result one of admissible models of transformation of the participant of the civil circulation in dynamics of the civil-law contract: « Other person - the third party - the party of the contract (obligation) ». So, for example, till the making contract moment at a stage of negotiations all participants of the civil circulation in relation to the persons who have entered negotiations, are in a condition of" other persons ». Further the separate subjects of law carrying to space of" other persons », from the moment of making contract, can possess such interest which realisation can mention dynamics of debt relationship. In other words, from the moment of these makings contract« other persons »pass in space of the potential third parties. Further at realisation of the given interest, for example, in dynamics of the contract constructed on model of the third party beneficiary contract, the potential third party passes in space of participants of debt relationship as the third party. Consequence of realisation of this interest which initially laid outside of the contract, that the third party will get quality of the party of the contract will act, and equally parties of the obligations arising from such contract.

Thus, the third party participating in execution grazhdanskopravovogo of the obligation is the participant of the civil-law obligation who are distinct from its parties, but possessing the independent interest laying always outside of this obligation which realisation mentions dynamics of the obligation. Interest of the third party as participant of debt relationship is a prompting of the third party to reception of the benefit which have been not connected with the purpose of the obligation (and it is equal with interests of its parties); the basic precondition for participation of the third party in execution of the civil-law obligation. At realisation of interest of the third party, this person influences dynamics of the obligation by means of satisfaction of interest of the debtor or the creditor, depending on on what party the third party [39] acts.

The third party as the participant of the obligation is not fallen asleep on a stage of occurrence of the obligation a figure which either appears at once, or does not appear at all. Interest of the third party, which realisation can mention dynamics of debt relationship, can arise at its any stage. Any subject of a liability law can pass from a circle of "other persons», «an uncertain circle of persons» in a circle of the third parties. Hence, in a circle of "other persons» the potential third party occupies dynamic position which allows it both to become the third party in relation to concrete debt relationship, and to pass from a third party condition back in a circle of "other persons».

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A source: Churilov Alexey Jurevich. PARTICIPATION of the THIRD PARTIES In EXECUTION of the CIVIL-LAW OBLIGATION. The dissertation on competition of a scientific degree of the master of laws. Tomsk - 2017. 2017
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