<<
>>

INTRODUCTION

Urgency of a theme of research.

As a result of the reform of the civil legislation carried out in Russia the category has been entered into the law and order «law detour».

The concept «law detour» has got special value in the modern conventional law providing economic relations.

Necessity for participants of economic relations to follow instructions of the law demands from them corresponding legal registration of own actions. Thus the aspiration to lower possible economic costs generates necessity to use all existing legislative possibilities, including optionality of norms of civil law, for economic activities optimisation.

In the Russian Federation following traditions of the continental law in which the law always played a predominating role, attempts to lower a role of the law with a view of judiciary practice development, by the most flexible to current requirements of developing economic relations recently are marked. In this connection there is one more, directly interfaced to detour of the law a problem of substitution of main principles, in particular, principles of conscientiousness, freedom of the contract, justice and a rationality, a principle of economic validity, economic feasibility or utility from the point of view of concrete pravoprimenitelja corresponding positions of the civil legislation.

Economic feasibility as a basis of an estimation of legislative guidelines has for a long time proved as effective criterion at realisation pravoprimenitelnoj activity in the western states, in particular in the USA. The American approach to
Modern civil and to a commercial law it is generated on the basis of the doctrine of the economic analysis of the right (economic analysis of law), and also doctrines of remedially-legal unconscientiousness (procedural unconscionability) which lead essentially to other system of estimations of the phenomena characterised in the domestic doctrine of civil law by the term «law detour». The essence American doktrinalnogo the approach to civil and to a commercial law is reduced to that in case the law is economically inexpedient it it is necessary and it is possible to cancel, interpret otherwise or to correct by means of the judicial precedent.

Economic feasibility of legislative guidelines gradually starts to be shown in domestic civil law and its major podotrasli - the conventional law. Certainly, data the approach mismatches neither to traditions of domestic jurisprudence, nor an existing standard basis of civil law. Concept formalisation «law detour» in the Civil code of the Russian Federation urged to level, in particular, effect of influence of the American doctrines actively perceived by the domestic law and order, contractual and judiciary practice. The Russian civil law direct dependence of efficiency and a demand of the law on its economic feasibility has in the basis other categories, including ethical and moral, rather than. Private-law concepts of civil law should include principles of justice, conscientiousness, morals and a rationality as a basis. From that, how much subjects of civil law will be protected in the contractual relations by positions of the law based on specified categories, the investment climate in the country to a great extent depends. Economic feasibility as the factor of efficiency of a law in force should have secondary character, on what repeatedly turned
The attention professor E.A.Sukhanov approving, that «private-law regulation should be based first of all on noneconomic concepts of justice and morals and only then to consider economic aspects as even in receivership proceeding of its party wait from the judge of the fair decision of the conflict, instead of reductions of costs» [1].

The purposes and research problems.

The purpose of the present research is carrying out of the complex comparative analysis of concept of the transactions made bypassing the law in the Russian Federation and in the USA, for revealing of their legal nature, and also influence of the Anglo-American right on development of the specified institute in the domestic law and order.

The choice of the specified purpose had been predetermined necessity of the decision of following primary goals of research:

1) to analyse the legal nature of concept «law detour» in the Russian Federation and the USA;

2) to investigate a legal phenomenon of the transactions made bypassing the law, in a context of a parity with contractual discipline in the Russian Federation and the USA;

3) to investigate realisation of basic principles of the right at fulfilment of simulated contracts in the Russian Federation and the USA;

4) to reveal laws of development of the legal regulation connected with fulfilment of simulated contracts in the Russian Federation;

5) to analyse the basic doctrines of the Anglo-American right in the field of the transactions made bypassing the law;

6) to define degree of influence of the Anglo-American approach about the transactions made bypassing the law, with reference to the domestic
To the law and order;

7) to develop offers on perfection of the legislation of the Russian Federation on the questions considered in work, and practice of its application.

Degree of a readiness of a problem.

The questions connected with research of concept and kinds of "law detour», were considered by many pre-revolutionary and Soviet authors in their works devoted more to a wide range of problems. To number of scientists of the Soviet period of development of domestic civil law and the modern writers mentioning in the researches essence of "law detour», it is necessary to carry Agarkov M. M, Bezbaha V.V., Braginsky M. I, Bratusja S.N., Vavina N.G., Gribanova V. P, Vitrjansky V.V., Ioffe O. S, Krasavchikova O. A, Kuznetsova M. N, Muranova A.I., Novitskogo I.B., Pokrovskogo I.A., Puchinsky Century K, Suvorova E.D., Suhanova E.A., Halfinu R. O, etc.

Questions of detour of the law on doktrinalnom level were considered by foreign scientists Geoffrey Buchanan, James Buchanan, D.J. Ibbetson, D. Calamari, J.M. Perillo, R.H. Graveson, Marvin A. Chirelstein, H. Pearson, R.A. Posner, A. Robert, H. Paul.

Object of the present research are public relations in which frameworks norms of the legislation on the transactions made bypassing the law in the Russian Federation and the USA are realised.

The subject of dissertational research is constituted by rules of law of the Russian Federation and the USA concerning transactions, made bypassing the law, fixing their concept and defining their legal essence.

Methodology of dissertational research.

The basic method of research used in the present work, the dialectic method as objective acts a way and
All-round knowledge. By research preparation other general scientific methods of knowledge, including logic, functional, system, historical, etc., and also sravnitelnoyopravovoj a method were used also.

Theoretical basis of the dissertation Bezbaha V.V., Braginsky M. I, Bratusja S.N.'s works have constituted, Vitrjansky V.V., Ioffe O. S, Kuznetsova M. N, Novitskogo I.B., Pokrovskogo I.A., Puchinsky Century K, Suhanova E.A. and other known scientists.

The standard basis of dissertational research was constituted by standard legal acts of the Russian Federation and the USA establishing a legal regulation of relations, the simulated contracts connected with fulfilment.

The empirical basis of dissertational research includes judiciary practice of the Supreme Court of the Russian Federation, arbitration courts and general jurisdiction vessels, judiciary practice of vessels of the USA, materials of bills and concepts of perfection of the current legislation of the Russian Federation.

Scientific novelty of dissertational research consists that dissertational work is the first complex research of the legal regulation connected with fulfilment of actions bypassing the law, and caused by fulfilment of such actions of judiciary practice in the Russian Federation and the USA. Novelty of work is defined by its maintenance and the basic conclusions taken out on protection and consisting in the following.

1. On the basis of generalisation existing doktrinalnyh approaches and judiciary practice following definition of concept «law detour is offered":"law Detour - actions of subjects of the civil law, made with intention not to fulfil the requirements established by the legislation or not to apply other established
The legislation of position without their direct infringement ».

Offered definition considers the conclusions proved in work that law detour cannot be considered in all cases as illegal act as for a recognition of actions on detour of the law by an offence the establishment of the additional circumstances connected with intentions of persons carrying out them and consequences of fulfilment of such actions is required.

2. Depending on legal effects of transactions or other actions,

Connected with law detour, it is offered to divide them into some categories: first, actions made bypassing the law,

Representing the misuse of right, capable to harm other persons or public interests, secondly, the actions made bypassing the law and representing misuse of right, but not leading to injury to other persons or public interests, and thirdly, the actions having exclusively signs of fulfilment bypassing the law in the absence of misuse of right.

Presence of last category as it is shown in work, is caused by blanks or contradictions in the legislation, and also with absence in some cases possibilities for subjects of civil law to satisfy the legitimate interests in the order established by the legislation.

3. It is proved, that fulfilment of the transaction or other action bypassing the law can admit an offence only in the event that corresponding actions of subjects of civil law represent misuse of right and result or can lead to injury to public interests or the rights and the protected law to interests of the third parties.

4. The conclusion that criterion of illegality is proved
The purposes at fulfilment of detour of the law, used in point 1 of article 10 of the Civil code of the Russian Federation as a condition of a recognition an offence of the actions which are carried out bypassing the law, should be replaced by set of criteria of misuse of right and an encroachment with public interests or the rights of the third parties.

Use of the criterion connected with presence of harm or, at least, of possibility of its causing to public interests either physical or legal bodies is proved, that, allows to fix in the legislation the objective basis for an estimation as an offence of actions of subjects of the civil law connected with detour of established legislative requirements.

5. It is offered to make changes to the paragraph the first point 1 and point 3 of article 10 GK the Russian Federation, having stated the positions concerning an offence in the form of detour of the law, by analogy to void contract definition in point 2 of article 168 GK the Russian Federation, in the following edition:

«1. Are not supposed realisation of the civil rights exclusively with intention to harm other person, actions bypassing the law, representing misuse of right and encroaching on public interests or the rights and interests of the third parties protected by the law, and also misuse of right by other obviously unfair realisation of the civil rights.»;

«3. In case misuse of right is expressed in fulfilment of actions bypassing the law, encroaching on public interests or the rights and interests of the third parties protected by the law, the consequences provided by point 2 of present article, are applied, as other consequences of such actions are not established by the present Code.».

6. It is established, that close interpretation by court of positions of the law (a principle tekstualizma) is not capable to provide sufficient level of prevention concerning actions of subjects of civil law on detour
The law at which fulfilment the sequence of lawful transactions or other actions carried out by subjects can lead to achievement of illegal result. In this connection lacks of the Russian legislative maintenance of the express prohibition of detour of the law should be filled with generalisation of the judiciary practice interfering possibility of use of formal positions of the law for cover of detour of the law.

7. It is proved, that the transactions made bypassing the law, have no character pritvornosti. If for colorable transaction the form of its expression completely corresponds to the law, covering true will of the parties in party simulated contracts aspire to achievement of planned result, bypassing legal mechanisms directly intended for use at the expense of use of other possibilities given by the legislation.

8. The conclusion that the legislation cannot order to subjects of civil matters use of certain legal approaches with an establishment of an interdiction of use of other legal institutions is drawn and to forbid use of other ways of realisation of their interests as the principle of optionality of civil law in this case is broken.

9. On the basis of the carried out research it is proved, that doktrinalnye distinctions in term interpretation «law detour» in the Russian right and in many respects terms similar to it «evasion of law» («evasion from the law»), «circumvention of law» («law detour») in the right of the USA are caused by distinction of legal systems and applied legal approaches.

For the Russian right a basis of formation of legislative norms is first of all the justice principle while the right of the USA starts with necessity of the account of economic validity, in connection with
Than the detour of the law considered in the Russian right as act, contradicting a justice principle, is not analyzed as that in the American civil law which main destination maintenance of an economic turn with use of any legal ways supposed by the legislation admits.

10. It is proved, that despite impossibility of direct use of the American legal doctrines in the Russian judiciary practice in view of their direct contradiction to bases of the Russian civil law, they can form a basis for development of separate compensatory measures of the legislative and judicial character, similar themes which are available in trading and civil law of the USA: institute estoppel, the doctrine of financially-legal unconscientiousness (substantive unconscionability), the doctrine hybrid (or mixed) unconscientiousness (hybrid unconscionability) as the system of the American judicial doctrines, being flexible concerning interpretation of actions of subjects, effectively protects interests of participants of transactions from law detour by their counterparts.

11. The conclusion that doktrinalnoe the concept of contractual discipline of the Russian civil law does not assume an interdiction for fulfilment by the counterpart of actions on purpose is drawn to avoid requirements of the law or execution of contractual obligations, and, hence, does not establish a duty to refrain from the actions representing detour of the law. The approach accepted in the USA based on positions of the doctrine of "reciprocative performance", assumes an interdiction of any actions of the counterpart under the contract, including directed on law detour if their fulfilment can lead to that reciprocative performance will not be given in that volume or on those conditions on which other party counted at making contract.

The theoretical and practical importance of research consist that the results received during its carrying out can form a basis for the further scientific research of problems of the legal regulation connected with detour of the law, be used for perfection of the legislation of the Russian Federation, in normotvorcheskoj and pravoprimenitelnoj activity, and also in the course of teaching of civil, enterprise and international private law.

Approbation of results of research. The dissertation is prepared on civil law and process chair and the international private law of juristic institution FGAOU IN «the Russian university of friendship of the people». The basic theoretical conclusions and the practical recommendations developed during dissertational research, are stated in scientific publications of the author of dissertation. Results of research are approved by the author at discussion on chair, and also in the course of granting of legal consultations.

Dissertation structure.

The dissertation consists of the introduction, three heads containing six paragraphs, the conclusions and bibliographies.

<< | >>
A source: Popova Irina Jurevna. Fulfillment of simulated contracts and its consequence in civil law of Russia and the USA. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2018. 2018

More on topic INTRODUCTION:

  1. in introduction
  2. INTRODUCTION
  3. INTRODUCTION
  4. 10.1. Introduction
  5. INTRODUCTION
  6. approbation and introduction of results.
  7. Introduction
  8. Introduction
  9. INTRODUCTION
  10. INTRODUCTION
  11. Introduction
  12. Introduction
  13. INTRODUCTION
  14. Instead of Introduction …
  15. PRACTICAL INTRODUCTION OF RESULTS OF WORK
  16. 5. Attention strengthening to questions of legal introduction.
  17. Introduction