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4.3 Basic branch principles of civil law: a problem of element structure

In the legal literature the opinion on division of all legal principles on sphere of their action on obshchepravovye, specially-legal and principles of separate institutes is conventional. Principles of legality, humanism, equality of all concern number obshchepravovyh before the law, etc.

(branch) principles, characteristic for concrete branch of law admit to justice Specially-legal.

Branch principles characterise the most essential lines of branch of law. According to V.F.Jakovleva, they «are not less connected with foundations of existing public relations, than main principles of the right, but in rather limited sphere legal oposredovanija. Branch jurisprudence at research of principles, makes a start from features of a subject of regulation from what besides does not follow, that the valid genesis of principles of the given branch of law occurred and occurs besides influence on it of the main principles peculiar to all legal system» [496, with. 164]. Characterising branch principles of civil law, G.A.Sverdlyk paid attention that «the width of their action reflects the nature and essence of civil law …» that «they promote not only to achievement of results of regulation, but also definition of its direction, prospect, and also act as methodological reference points pravoprimenenija» [397, with. 105].

Within the limits of the present section we will try to define elements of system of principles of the civil law which joint functioning is capable to guarantee effective regulation of civil-law relations. Thus it is necessary to start with a legislative establishment that it is impossible to limit system of principles of civil law to the principles named item 2 GK. The given system represents wider in substantial sense a generality in which principles which directly are not formulated in the form of separate statutes are included also, and are deduced as a result of the analysis of all body of rules of the civil legislation of Byelorussia.

It is necessary to consider also that circumstance, that each of civil-law principles, being an element of system of principles of civil law, at the same time itself has difficult enough structure. It consists of the various elements strongly among themselves connected within the limits of the fundamental principle and closely co-operating in the course of its realisation. For this reason consider expedient by consideration of principles of civil law to concretise and detail these elements, to track various displays of branch principles in various podotrasljah and civil law institutes, to bring specific proposals on perfection of the mechanism of civil-law regulation. 4.3.1 Principle of legal equality of participants of civil matters

According to item 7 of the General Declaration of human rights of 1948 which has joined BSSR, «all people are equal before the law and have the right, without any distinction, on equal protection of the law». As marks B.S.Krylov, the state admits democratic and is that only provided that it recognises an equality principle in relations between people and between the people and makes necessary efforts for its realisation in practice [194, with. 13]. In norms of the Constitution of Byelorussia the equality principle repeats repeatedly: «all are equal before the law and (item 22) have the right without any discrimination to equal protection of the rights and legitimate interests»; «nobody can enjoy advantages and the privileges contradicting the law» (item 23 paragraph 2); « Foreign subjects and stateless persons on territories of Belarus have the rights and freedom and fulfil duties on a level with citizens of Byelorussia if other is not defined by the Constitution, laws and international treaties »(item 11);« the state gives all the equal rights for realisation of economic and other activity, except forbidden by the law, and guarantees equal protection and equal conditions for development of all patterns of ownership.

The state guarantees all equal possibilities of free use of abilities and property for enterprise and other economic activities not forbidden by the law »(item 13 [182]).

The given constitutional positions in norms of the civil legislation are issued as a principle of equality of participants of civil matters: «subjects of civil law participate in civil matters on equal, are equal before the law, cannot enjoy advantages and the privileges contradicting the law, and have the right without any discrimination to equal protection of the rights and legitimate interests» [88].

The essence of a principle of legal equality is accurately enough expressed still by the Roman lawyers: « lex uno ore omnes alloqitur "(" the law speaks with all equally »). It is necessary to recognise that equality in this case is only the requirement to essence, the inequality is inevitable in any society. V.A.Vitushko fairly specifies, that the given principle« corresponds to a general scientific and physical principle of identity as in a society, as well as in the nature, the full equality is not present and cannot be »[66, with. 121]. Equality becomes possible only in the legal form as only in the right actually various people are considered as formally equal subjects. It is right formally equalises actually unequal subjects. It aspires to provide the equal relation to all subjects. The formal equality in this case should be understood as equal freedom of participants of legal dialogue. It is quite natural, that different people possess the different rights. If all were similar in everything, including and the specification of rights, mutual agreements would not arise, except for separate cases. The Nobel prize winner in the field of economy of J. Buchanan wrote: «the Exchange of the rights occurs that people differ, without dependence from, whether these distinctions by physical abilities, quantity of the blessings belonging to them, or different tastes and preferences» [43 are caused, with. 224].

For social stability communication between the rights of the individual and prospective distinction in knacks should have great value. «Fixing this principle, the law fixes equality of the social possibilities recognised and provided with civil law» [103, with. 20]. « Right fundamental principles are legal equality (equality) of citizens and equivalent closely connected with them in movement and an exchange of the blessings, services, and also in requital of punishments for offences. Freedom becomes the right only when it is settled, normirovana on the basis of legal equality and an equivalent. The right by the nature (contrary to an arbitrariness and the privilege) assumes the general scale, a measure expressed in legal equality of participants of legal dialogue and equivalence in their relations »[132, with. 85]. The conclusion follows From the stated that the principle name requires updating. As it is a question not of actual equality which is unattainable, but only only about legal equality of participants of civil matters, the principle should be formulated as« a principle of legal equality of participants of civil matters ». Edition of item 2 GK should undergo Respective alterations.

At the same time not all scientists-jurists name a principle of equality among the civil law principles, some consider equality as the characteristic of a branch method. So, O.N.Sadikov, listing civil law principles, does not carry equality to their number, believing, that equality represents a sign of a method of civil-law regulation [97, with. 11].

However, in our opinion, equality can simultaneously act in several qualities: as a principle of civil law and a method of civil-law regulation as in each of these qualities plays the role. It is represented, that equality consideration in civil law only as characteristic line of a method does not allow to estimate to the full its value in the legal regulation mechanism. The method of legal regulation and principles are those legal categories without which qualification of civil matters as those which represent itself as criteria of division of branches of law is impossible. Both the method of civil-law regulation, and principles carry out the role in the mechanism of civil-law regulation. Principles represent a category characterising qualitative features of norms of branch of civil law. Unlike a method, they are directly fixed in norms of the current legislation or can be deduced from it by interpretation. Therefore the rule about equality is a requirement that should be. The civil law method as legal branch is based on basic ideas which as a result predetermine the maintenance of norms of the civil legislation. The given ideas act as a reference point, according to which legislator effective remedies and receptions of regulation of the public relations constituting a subject of civil law as branch are selected most. In this connection, in our opinion, there are no bases to refuse a recognition of equality as one of fundamental principles of the civil legislation.

Despite the fact that what the principle of equality of participants of civil matters is by the legal nature obshchepravovym (constitutional) principle, on its inclusion in number of branch principles of civil law it is necessary to recognise a position of the legislator proved. In norms of civil law the named principle has set of displays, it fills the constitutional principle with more extensive maintenance, opening and concretising it with reference to sphere of private relations. Without exaggeration it is possible to name a principle of equality of participants of civil matters one of the central principles of civil law, «as the ideal and the legal regulation purpose is considered the given principle obligatory attribute of civil law of all free communities» [66, with. 122].

Appointment of an investigated principle consists first of all in excluding subordination of one participant of civil matters to another. In item 1 GK defining a circle of relations, regulated by the civil legislation, it is fixed, that «to the property relations based on administrative or other imperious submission of one party another, the civil legislation is not applied, if other is not provided by the legislation». As in a role of the participant of civil matters the state can act, item 124 GK specially contains instructions that Byelorussia, administrative and territorial units participate in the relations regulated by the civil legislation, on these relations equal with other participants – physical and legal bodies.

The equality principle means, that all subjects of civil law possess identical legal possibilities and on their actions under the general rule the same civil-law norms extend. All of them in an equal measure can have property on the property right or other real right, get this property, own, use and dispose of it, «the rights of all proprietors are protected similarly» (item 5 of item 213 GK). According to item 16 GK ability to have the civil rights and to perform duties (the civil legal capacity) admits an equal measure for all citizens [88]. According to position of item 11 of the Constitution of Byelorussia «foreign subjects and stateless persons on territories of Belarus have the rights and freedom and fulfil duties on a level with citizens of Byelorussia if other is not defined by the Constitution, laws and international treaties» [182].

All citizens possess the equal legal capacity, that is the volume of the legal capacity of all citizens is identical. In this connection we will consider a number of positions of the legislation containing an interdiction for employment by enterprise activity to separate categories of citizens. According to ch. 2 items 2 of the Decree of the President of Byelorussia from June, 18th, 2005 № 285 «About some measures on regulation of enterprise activity», activity of the individual businessman since January, 1st, 2008 can be carried out only with attraction of members of a family and close relatives (spouses (the spouse), parents, children, the adoptive fathers adopted (adopted), native brothers and sisters, the grandfather, the grandma, grandsons) [261]. At the same time not all individual businessmen have members of a family and close relatives. Hence, it is necessary to recognise the given position disabling the given persons, breaking a principle of legal equality of participants of civil matters and the constitutional principle of freedom of enterprise activity.

The legislation provides also other restrictions. So, according to ch. 2 items 2 of the Law of Byelorussia from May, 28th, 1991 «About business in Byelorussia» are not supposed employment by enterprise activity to officials and the experts working in state governing bodies, Offices of Public Prosecutor and vessels [279]. The law of Byelorussia from November, 13th, 1992 «About the status of military men» forbids military men to be engaged in any kinds of enterprise activity (item 8 [303]). The Same interdiction operates concerning workers of bodies of financial investigations (item 12 of the Law of Republic Belarusot on June, 4th, 2001 «About bodies of financial investigations of Byelorussia») [314].

However, in our opinion, the resulted statutes do not contain the norms breaking a principle of equality of the legal capacity of citizens. The special status of the given categories of the workers, allowing them, using the official position to occupy more advantage-grounds in the civil circulation and by that to put other participants of the civil circulation in unequal position, forces the legislator to provide by an establishment of similar restrictions realisation of a principle of equality. Fairly in this occasion it has been noted by O.S.Ioffe: « Any principle, whatever the general it was, does not lose the value and when it suffers those or other exceptions if, however, the last really are exceptions … »[141, with. 29]. Thus naturally there is a question on what causes and how much admissible and justifies existing deviations from a principle of equality and whether they reach known« critical weight », destroying action of the principle. We will try to answer this question, having analysed separate positions of the legislation.

Deviations from an equality principle can be expressed in an establishment of certain privileges (privileges) and rights of priority. The reasons on which the legislator recedes from an equality principle, are various. Among these reasons it is possible to name the following: necessity of the decision of the problems facing to the state; requirements of achievement of justice; maintenance of stability of civil-law relations, etc. Certain deviations from a principle of equality of subjects of civil-law relations can be established by the legislator for the purpose of protection of interests more weakness.

It is represented methodologically defensible to begin research of the given problem with the analysis of concepts "privilege" and "rights of priority" by means of which the legislator opens the maintenance of a principle of equality in civil law. In Russian the given concepts are considered as synonymic designs: «a privilege – the simplification to somebody given as an exception of general rules» [325, with. 520], «the privilege – the right of priority, a privilege» [325, with. 294]. At the same time it is necessary to recognise, that in norms of the civil legislation between the given concepts essential distinction is found out.

The legal relations including in the maintenance rights of priority, in system of civil matters are allocated especially. D.I.Meyer paid attention to specific character of these rights: «There are many rights which belong not to all members of the state union but only that from them which are in these or those conditions under which the rights are given; but all persons who are in appointed conditions, have these rights. They are called as the rights especial» [221, with. 113]. The attention is paid To exclusive character of rights of priority and in the modern civil literature. It is especially underlined, that as such rights give to the owners the legal superiority over other subjects and are beyond an equality principle, they can arise at subjects only in cases, statutory [106, with. 135].

So, according to item 315 GK primary before other creditors of the depositor at the expense of cost of the put in pawn property the pawnbroker, except for the cases provided by acts has the right to satisfaction of the requirements. The first option of actions sold by another shareholder participants of the closed joint-stock company (item 97 GK) possess. Participants of a society with limited liability use the right of priority of purchase of a share of the participant in case of its sale if the charter of a society or the agreement of its participants do not provide other procedure of this right (item 92 GK). Such rights and to participants of the general common property are given. At share sale in the right of the joint property to the by-stander other participants of the common property have the right of priority of purchase of a sold share under the price for which it is on sale, and on other equal conditions, except a case of sale from market places (the item 253 GK).

In item 592 GK the right of priority of the tenant to rent making contract to new term is fixed. The right of priority to rent making contract after the expiry of the term of its action before other persons the tenant properly fulfilling the duties under the rent contract if other is not provided by the legislation or the rent contract with other things being equal has. If the lessor has given up to the tenant in making contract for new term, but within a year from the date of the expiry of the term of the contract with it has concluded the rent contract with other person, the tenant has the right to demand at the choice in court of transfer into the rights and duties under the concluded contract and the indemnification, caused by refusal to renew with it the rent contract, or only compensation of such losses.

By the decision of economic court of the Minsk area from January, 13th, 2002 it has been given up in the claim to individual businessman I to enterprise "" (the first respondent) and to individual businessman P (the second respondent) about transfer of the rights and duties under the rent contract.

During a legal investigation it is established, that on January, 6th, 1997 between the claimant and enterprise "" the rent contract of an uninhabited premise for use under cafe-bar has been concluded. On February, 26th, 1999 the parties under the contract had been renewed the rent contract of uninhabited premises for use under cafe-bar, office and a warehouse. The currency of the contract – from March, 15th, till March, 15th, 2000 on December, 14th, 1999 the first respondent has in writing notified the claimant that the rent contract № 1 from February, 26th, 1999 will not be enlarged. On January, 11th, 2000 the administration of enterprise "" the letter repeatedly informed the claimant that rent contract term № 1 from February, 26th, 1999 expires on March, 15th, 2000 and will not be enlarged. On February, 2nd, 2000 the claimant has in writing applied to the first respondent about prolongation of action of the contract. The letter from March, 1st, 2000 the first respondent has established term for clearing of leased premises. In all three letters enterprise "" administration specified that premises occupied with the claimant will be used by the lessor for the organisation of new forms of cultural-mass work of the enterprise c on June, 1st, 2000 the first respondent concludes with the second respondent the contract № 2 rents of uninhabited premises of enterprise "" for use under cafe-bar. Because the lessor, contrary to assurances about use of premises occupied with the claimant for the organisation of new forms of cultural-mass work of enterprise "", has transferred disputable premises to other tenant, the claimant declares the requirement transfer into it, as on the person the having right of priority to rent making contract to new term, the rights and duties under the contract concluded by respondents № 2 rents of uninhabited premises.

Challenging legitimacy of the shown claim, the first respondent has specified that in rent contract action № 1 from February, 26th, 1999 the claimant executed in the inadequate image the contractual obligations taken up, supposed infringement of treaty provisions regarding observance of rules of fire-prevention safety. The court pays attention that the right of priority of the tenant fixed by the civil legislation to rent making contract after the expiry of the term of its action arises only under condition of ought execution by the tenant of the duties under the rent contract [373].

Rights of priority, as a rule, are given for maintenance of stability of the civil circulation, certain stability of civil-law relations, protection of interests of its separate participants. They provide to their owner the first priority, superiority at other equal possibilities. While privileges represent legal means with which help the legislator corrects equality of participants of civil matters, gives to their owners some additional guarantees. If distinction between rights of priority and privileges obviously "privilege" and "privilege" terms can be used as synonymic designs.

Necessity of the effective and timely decision of the social and economic, scientific and technical, defensive, nature protection and other problems facing to Byelorussia, has predetermined deviation from the equality principle, expressed in definition of the list of privileges which are given to participants of the civil circulation, concluding and executing dogovory, providing state needs. As V.N.Godunov marks: « In the conditions of freedom economic (economic, enterprise) activity and contract freedom as predominating beginnings of market relations the state by means of deliveries, works and services for the state needs aspires to provide the existence, and also effective functioning »[84, with. 28]. As stimulation measures, by the Law of Byelorussia« About deliveries of the goods for the state needs »are named: credits on favourable terms; tax benefits and to other payments in the budget; target grants and grants; priority maintenance with on-line adjustable material resources; other privileges (item 9 [267]).

Additional legal guarantees which also have character of privileges, are provided for citizens-consumers in their mutual relations with businessmen. As an example it is possible to specify in the conclusion of so-called public contracts and contracts of adhesion according to rules of item 396 and item 398 GK accordingly. So, the party which has joined the contract (provided that this contract consists not in connection with realisation of enterprise activity) has the right to demand cancellation or contract change if the contract of adhesion though does not contradict the legislation, but deprives this party of the rights usually given under contracts of such kind, excludes or limits responsibility of other party for infringement of obligations or contains other obviously burdensome conditions for the joined party which she, proceeding from the reasonably understood interests, would not accept at presence at it possibility to participate in definition of treaty provisions. In this case deviation from a principle of equality and granting of side benefits to citizens as to businessmen as to professional participants of the civil circulation more rigid are shown, increased requirements is available, considering presence at them knowledge and skills which put them initially in more favourable position for the purpose of protection of interests more weakness in the civil circulation. Side benefits are provided also by the consumer legislation [248].

Exceptions of a principle urged to serve in the civil circulation the equalities established for physical persons to the purposes of maintenance of a principle of justice. So, in item 60 GK defining sequence of satisfaction of requirements of creditors of legal bodies in case of their liquidation, it is established, that requirements of citizens before which the liquidated legal body bears responsibility for injury of a life or to health, are satisfied first of all. In the second turn calculations on payment of severance pays, a payment of the persons working under the employment contract, on payment of compensations under author's contracts are made. Such order is directed on realisation of others obshchepravovyh principles: justice and a social orientation of regulation of economic activities.

Requirements of maintenance of justice in the civil circulation it is necessary to explain and withdrawals from an equality principle, statutory for responsibility of the businessman which is more strict. So, according to item 372 GK under the obligations connected with enterprise activity, condonation for default or inadequate execution of obligations probably only in case of action of force majeure circumstances. Besides, in item 2 of item 303 GK the presumption of solidarity of the obligation with plurality of persons is established when some debtors or some creditors participate in the enterprise obligation.

Proceeding from importance of maintenance of the constitutional principles of equality and economic activities freedom, the state is obliged to carry out the control over that granting of any rights of priority and privileges was strictly within the limits of the law. The general prohibition of unreasonable granting to separate managing subjects of the tax and other privileges putting them in primary position in relation to other managing subjects, working in the market of the same goods, contains in the Law of Byelorussia «About counteraction of monopolistically activity and competition development». In item item 2 15 Laws contain addressed to the state bodies will lock to accept to (publish) certificates, to enter into agreements, to make other actions which limit independence of managing subjects, create discrimination conditions of activity for separate managing subjects if such certificates or actions have or can have the result restriction of a competition and (or) injury to the rights, freedom and legitimate interests of managing subjects or citizens, including: to give to managing subjects of instructions on prime delivery of the goods to a certain circle of buyers (customers) or about the priority conclusion of the contracts which have been not provided by the legislation; and also unreasonably to give to separate managing subjects the tax or other privileges putting them in primary position in relation to other managing subjects in the commodity market of the same goods [284].

The considered positions of the legislation allow to draw a conclusion that the purposes pursued by the legislator at an establishment of rights of priority and privileges, can be various. In one cases is a necessity to provide stability and stability of the civil circulation, in others – to stimulate development of this or that kind of activity, in the third – aspiration of achievement of justice by maintenance of "balance" of participants of the civil circulation [24].

The privilege established by item 1 of item 314 GK as in the law she is fixed not, and the right of court to its granting to separate participants of civil matters is most specific. Thus possibility of granting of the specified privilege in the form of penalty reduction – not a duty, and the court right. The practice of application of item 314 GK analysed by the author does not differ uniformity as the basis for its application in the form of the formulation «it is obviously disproportionate to consequences of infringement of the obligation» are abstract enough. Not casually, in beginning HH century it has been subjected the fair criticism M.M.Agarkov, named it after I.A.Pokrovsk «an insignificant ornament in social spirit» [4, with. 28]. We will result some examples.

The economic court of the Minsk area has considered case under Open Company "And" claim to collective farm "L" about collecting 4 292 690 rbl. the Claim 4 292 690 rbl., including 1 833 120 rbl. of debts for put production, 1 878 031 rbl. peni for unpaid amount and 581 539 rbl. of percent for using another's money resources have been declared collecting from the respondent. The claimant in the statement of claim has specified, that according to the contract from January, 13th, 2003 has shipped to the respondent on commodity-way-bill (further – TNT) for the sum 1 833 120 rbl. the Respondent the obligations on payment of the goods has not executed mineral oil.

The court has established, that contract item 3.4 for untimely payment of production is provided penja at a rate of 0,15 % per every day of payment delay. According to item 6 of the decision of Plenum of the Higher Economic Court of Byelorussia from January, 2nd, 2004 № 1 «About some questions of application of norms of the Civil code of Byelorussia on responsibility for using another's money resources», at the permission of a question on penalty reduction according to item 314 GK, the economic court can consider recoverable percent for using another's money resources which compensate the consequences caused by infringement of the liability by the debtor in a certain part. Taking into account that the callable penalty is obviously disproportionate to consequences of infringement of the obligation, the percent peni per every day of delay is extremely high, collecting is come under by the sum of percent for using another's money resources during delay of payment, the basic debt is not extinguished, the court on the basis of item 314 GK has reduced callable penju by 20 % [378].

Let's result one more example testifying to absence of uniformity of judiciary practice in a question of application of item 1 of item 314 GK.

The economic court of the Minsk area has considered on July, 14th, 2004 in open session of the court cases materials under claim TUP "And" to a regional consumer society about collecting of 1341329 roubles.

In connection with default by the respondent of treaty provisions of delivery on payment of the accepted goods the claimant asks to collect from the respondent of 214 176 roubles of the basic debt, 1 042 532 roubles peni for default of the obligation as of June, 1st, 2004 and 84 621 roubles of percent for using another's money resources, proceeding from calculation on a discount rate of National Bank of Byelorussia of 22 % annual. The respondent claims recognised, however asked court to reduce the size peni according to item 314 GK of Byelorussia.

Being guided by a principle of harmony of the size of the callable penalty to consequences of infringement of the obligation, the court according to item 314 GK reduces the callable penalty by 30 % (for 96 379 rbl.). At definition of disproportion the court was guided by such criteria, as the high percent of the penalty established in the contract; degree of execution of the basic obligation and the short time of performance of the obligation [374].

In other case, satisfying claims UP "And" ZHodino to Open Company "" of Smolevichi about collecting 1 595 314 rbl., court, being guided by a principle of harmony of the size of the callable penalty to consequences of infringement of the obligation, according to item 314 GK has reduced the penalty by 40 %. At definition of disproportion the court was guided by following criteria: excess of the sum of the penalty over the sum of not returned debt; collecting besides peni percent which compensate the consequences caused by infringement of the liability [382] in a certain part.

Thus, reducing the size to coming under payment of the penalty, the court considers various criteria as the legislator does not give a definite answer on a question that it is necessary to understand as obvious disproportion, carrying that its decision on judicial discretion. For the purpose of elimination of legal uncertainty the decision of Presidium of the Higher Economic Court of Byelorussia from August, 8th, 2002 № 24 «About some questions of application economic vessels of article 314 of the Civil code of Byelorussia» was accepted. In item 4 of the given decision it is provided: « Criteria for a disproportion establishment in each concrete case can be extremely high percent of the penalty established in the contract; considerable excess of the sum of the penalty over the sum of possible losses (including excess of the sum of the penalty over the sum of not returned debt); the short time of performance of the obligation, etc. Also at the permission of a question on reduction of the penalty court can consider the paid percent for using another's money resources which compensate in a certain part the consequences caused by infringement of the liability ». Thus according to item 7 of the aforementioned decision the court has the right to reduce the size of the penalty, but has not the right to release the respondent from penalty payment completely. However reduction of the size of the penalty by 90 % is practically equivalent to its cancellation [257].

The economic court of the Minsk area has considered on March, 24th, 2005 in open session of the court case under Open Company "And" claim to regional UP «Agrocombine" "about collecting 2 186 212 rbl. peni and percent for using another's money resources in connection with infringement by the respondent of treaty provisions of delivery from July, 26th, 2004 № 334 for the period from the date of awarding judgement by court on business from November, 4th, 2004 on date of full repayment of debts on final process, that is on March, 10th, 2005 the Representative of the claimant in session of the court has supported claims in a part, petitioned for reduction of requirements in connection with the made recalculation after reception of data on last payment on March, 4th, 2005 in a part peni to 1 997 719 rbl., regarding percent to 185 580 rbl., all asked court to collect from the respondent 2 183 299 rbl.

The court recognised requirements of the claimant regarding the size peni proved and lawful, however has come to conclusion that the penalty declared by the claimant is obviously disproportionate to consequences of infringement of execution of obligations the respondent, as the delay period insignificant (half a year), the debts at the moment of a legal investigation on declared TTN is extinguished completely as are extinguished penja and percent to execute the decree from November, 4th, 2004, the amounts collected of percent in a part compensated the delay consequences for using another's money resources, the declared percent of the penalty of 0,5 % from the delayed sum per every day of delay is economically unreasonable, in view of what considers necessary to take advantage of the right to apply item 314 GK of Belarus and to reduce callable penju by 90 %, thus to collect from the respondent penju in the sum 199 772 roubles [377].

The resulted examples testify to infringement simultaneously several principles of civil law. First, the principle of equality of participants of civil matters as the court at own discretion defines the rate of interest on which the penalty concerning various subjects can be lowered is broken. Secondly, the principle of freedom of the contract is broken, being guided which the parties have independently defined treaty provisions regarding a penalty version. Still bolshee bewilderment causes position of item 2 of the above-named decision of Presidium of the higher Economic Court of Byelorussia from August, 8th, 2002 № 24, according court a right to apply item 314 GK under the initiative. If the party in interest does not declare the petition for reduction of the size of the penalty the court thereby breaks also a principle of inadmissibility of any intervention in private affairs, interfering in contractual relations of the parties. The given intervention is not based on law requirements, other standard legal act as according to item 2 of the Law of Byelorussia «On standard legal acts of Byelorussia», to number of standard legal acts from among published by the Higher Economic Court of Byelorussia decisions of Plenum of the Higher Economic Court of Byelorussia [264] concern only.

Still G.F.Shershenevich marked double value of the penalty, specifying that it is «not only means of maintenance of the obligation, but also way to define a rate of commission on deviation from the obligation» [483, with. 293]. On the one hand, the penalty carries out obespechitelnuju function, stimulating the parties to appropriate execution of the obligations, and here its place in gl. 23 GK («maintenance of execution of obligations»). On the other hand, it represents the civil responsibility form, compensating to a certain extent the consequences caused by infringement by the party of the obligations. As the responsibility form, it finds out itself in gl. 25 GK («the Liability of infringement of obligations»).

Traditionally in civil law and practice of vessels the penalty was considered as «the penalty for malfunction in execution of a contract» [483, with. 293], inducing participants of civil-law obligations to appropriate execution of treaty obligations. The penalty and has now the same value. Proceeding from it, one more conclusion is obvious also: the court, reducing the size to coming under payment of the penalty, limits a conscientiousness and rationality principle, encouraging the defaulter. As be agree to the above-named decision of Presidium of the Higher Economic Court of Byelorussia «the penalty cannot it is reduced in connection with a heavy financial position of the respondent, an execution delay before it of obligations its debtors, refusal of the guarantor of payment to the claimant of the sum istrebuemogo a debt, the big creditor debts, shortages in the budget, arrestment by its settlement account etc.» (item 5 [257]).

Such approach mismatches principles of justice and a social orientation of regulation of economic activities. Only weighty enough reasons can form the basis for penalty reduction. In this connection we consider as expedient item 1 of item 314 GK to state in the following edition: «If the penalty coming under to payment is obviously disproportionate to consequences of infringement of the obligation and its collecting will entail or can entail a heavy financial position of the debtor, the court has the right to reduce the size of the penalty».

In summary we will notice, that granting of rights of priority and privileges in civil law is not that other, as restriction of a principle of equality of participants of civil relations. Hence, without dependence from motives by which the legislator is guided, any restriction (not to become infringement) should be established only on the basis of the law and be carried out in exact conformity with its positions. As visible economist K.Viksell marked, drawing an analogy with the theory of games, «the approach should be aimed at reform of game rules, instead of on improvement of strategy of separate participants at an invariance of its rules» [43, with. 24]. 4.3.2 Principle of inviolability of the property

«The first phenomenon of freedom in world around is the property», – B.Tchitcherin [479 wrote, with. 120]. The classical Roman jurisprudence considered the property as unlimited and exclusive domination of the person over a thing, as the right, free from restrictions and absolute on the protection. «The basic sight of the Roman lawyers at the private property right is that, that the proprietor has the right to do everything with the thing, that directly it is not forbidden to it». However, as marked I.B.Novitsky, «at all width of the property right it was not all the same unlimited. Since the most ancient times a number of lawful restrictions of the property right, mainly on the real estate has been established. For example, under Laws of XII tables the proprietor of the earth has been obliged to suppose on the earth of the neighbour for collecting of the fruits which have fallen from the next site [234, with. 93].

During an epoch of great bourgeois revolutions the come to power bourgeoisie aspired to legislative registration of the basic legal principles: a formal equality; autonomies of the person; freedom and inviolability of a private property. For this historical stage declaration of absolute character of a private property and the minimum intervention of the state in economy is characteristic. Napoleon's code of 1804 contained item 544: «the Property is the right to use and dispose of things in the most absolute image so that using was not such which is forbidden by laws or regulations» [196, c. 115]. « The birth of new German system of civil law in the end of ХIХ century again marked a mercantilism celebration »[100, with. 17]. According to § 903 GGU« the proprietor of a thing can dispose of a thing at own discretion and eliminate other persons from any influence on it »[196, with. 59]. GGU, as well as Napoleon's Code, has fixed freedom of citizens on hand the property, along with freedom of the conclusion of contracts among main principles of civil law.

However, since ХIХ century «the property right has ceased to be considered as the phenomenon especially private. Estimating a condition of private-law relations in beginning HH century, M.M.Agarkov wrote:« sights at the property as on the absolute beginning directly following from a personal freedom are, of course, alien to the Present. The idea of restriction of the property right was successfully embodied in a life … More than that, the negation of the property right is for us something habitual, at least in the field of thought. We see in it only a legal way of distribution of material benefits, the basic for capitalist manufacture [5, with. 32].

Throughout history of mankind inviolability of the property was one of the central principles of civil law. However in the course of evolution of legal system of a position which were occupied with this principle in legal system either amplified, or weakened. And only after October revolution of 1917 the given principle has been in essence lost. The reasons which have led to it, M.M.Agarkov has in detail enough characterised. In beginning HH century the scientist wrote: « Now we do not look at the property as on revealing of the person and its freedom in civil relations. Social experience of the last century has visually shown, that the private property institution cannot protect all interests of the person, that in some displays it is the precondition for belittling of the human person, that is economic operation and the private, master's power of one over another is based on it »[5, with. 33]. In this statement of the scientist the deep sense is concluded. Value of a principle of inviolability of the property is shown only when using its protection the proprietor the behaviour does not bear threat to the rights and interests of other subjects of civil law. For this reason at a modern historical stage inviolability of the property is considered not as the full impossibility for somebody to influence the property right besides the proprietor, and is faster as a way of the most reasonable combination of interests of each concrete proprietor and all society as a whole, that is admits possibility of compulsory restriction or the property right termination [5, with. 33].

After the Second World War and many other things the countries the property was obliged to serve as constitutions and laws of Germany, Japan, France, Turkey social, including humanistic character to interests of the population [100, with. 18]. Requirements of necessity of use of a private property in interests of general welfare contained not only in certificates of the civil legislation, but also in constitutions of some the countries. So item 2 and item 3 of item 14 of the Constitution of Germany from May, 23rd, 1949 have been formulated:

«2) the Property obliges. Its use should serve general welfare simultaneously.

3) property Compulsory purchase is supposed only for general welfare. It can be made only by the law or on the basis of the law regulating a kind and the sizes of compensation. Compensation should be defined with the fair account of common interests and interests of the parties. In case of disputes on the sizes of compensation it can be established in the general legal process »[418, with. 332].

Similar formulations contain in constitutions of France (1946 and 1958), Spain (1978), Greece (1975) and other countries. However «the most developed definition of the property in the spirit of the theory of social functions the Constitution of the Italian Republic of 1947 differs, agrees ch. 2 which items 42« a private property admit and guaranteed by the law which defines ways of its acquisition and border of its action on purpose to provide its social function and to make its accessible to all »[196, with. 61]. By the general Declaration of human rights it is provided, that« each person has the right to own property as individually, and together with others »(item 17);« For each person as a member of a society, the right of free development admits economic area of its ability to live (item 22 [72]). Abundantly clear, that «in modern legislations the property is the main trunk of civil law from which the most essential institutes on their social value» [5 branch, with. 31]. This results from the fact that the normal market economy can function so far as as the most part of subjects of civil law represents itself as proprietors. Hence, stability of all civil circulation appreciably depends on appropriate maintenance of inviolability of the property. «The property right represents the steadiest real right constituting the basic legal precondition and result of a normal property turn» [179, with. 289].

The constitution of Byelorussia fixes following positions: «the State guarantees to everyone the property right and promotes its acquisition. Inviolability of the property, the right of its inheritance are protected by the law. Property compulsory purchase is supposed only on motives of public necessity at observance of conditions and an order, defined by the law, with timely and full compensation of cost of aloof property, and also according to the court decision» (item 44). The constitutional principle of inviolability of the property in norms of the civil legislation gets already a little bit other sounding. In item 2 GK it is provided: « The property right, got in the lawful way, is protected by the law and protected by the state, its inviolability is guaranteed, and compulsory purchase is supposed only on motives of public necessity at observance of conditions and an order, defined by the law, with timely and full compensation of cost of aloof property or according to the court decision »[88].

Pertinently in this connection to give G.A.Gadzhiev's believing of word, that «proceeding from unity of the right, cases when there are« different interpretations »concerning the maintenance of the constitutional right and the branch, civil right … Simultaneous participation in the legal regulation mechanism are undesirable assumes coincidence of interpretation of norms constitutional and civil law» [79, with. 17]. Besides, taking into account requirements of a principle of the supremance of law, the legislator, formulating norms of the branch legislation, should be guided constantly by Organic law positions, assuming, that pravoprimenjajushchie bodies, especially courts, at the resolution of disputes in essence will be guided first of all by norms of the branch legislation. It is necessary to consider, that the property right – the absolute power turned against all and each, including against the state, however a question on guarantees of these rights lays nevertheless in the field of the public law.

Principle of inviolability of the property, as well as other principles of the civil legislation, it is not necessary to absolutise. As restriction of the property right of J.S.Gambarov understood limits which are put to the proprietor in realisation of this or that competence which are a part of its property. «Similar restrictions are established or voluntary, under the agreement of the proprietor with other person, or under the instruction of the law limiting the proprietor, irrespective of its will. The first are discussed on the conventional law beginnings, … and the second constitute lawful or present restrictions of the property» [81, with. 205].

The maintenance of a principle of inviolability of the property in civil law includes: a recognition of an equal legal regime of all patterns of ownership; granting of an equal legal protection by it; granting to the proprietor of the right to carry out concerning the property any actions constituting the maintenance of the property right (item 210 GK). The recognition of an equal legal regime of all patterns of ownership in the civil legislation is fixed along with a special legal regime of separate kinds of property. In public interests special rules operate for such objects of the property, as the earth, its bowels, water, and also the property having defensive value. Some kinds of property for reasons state or the public safety cannot belong to citizens. Defining the property right maintenance, the legislator establishes, that at realisation of the property right belonging to it the proprietor should not make the actions contradicting the legislation, public advantage and the safety harming to environment, to historical and cultural values or the striking rights and interests of other persons protected by the law. Interdictions for fulfilment of some actions can follow from requirements of observance of sanitary, veterinary and other rules.

Fixing among fundamental principles of the civil legislation the principle of inviolability of the property, the law supposes at the same time possibility of the termination of the property right besides will of the proprietor. Such direction of development of legal regulation gives the basis for the statement about "socialisation" of the property obliging the proprietor to serve not only to the interests, but also interests of all society. However, despite restrictions of proprietary rights, the unique carrier of the right, both in interests of other proprietors, and in interests of the state as a whole the property right institute continues to remain the central institute of civil law, and the proprietor – the central figure in a civil trade turnover. It proves to be true that in parallel process of restriction of proprietary rights is observed strongly pronounced, the tendency – creation before unknown mechanisms of protection of the property right would seem contradicting the specified direction in development of the legislation and judiciary practice. One of them is introduction of special registration of deeds that allows to put into practice a principle of reliability of the rights of the landowner [96, with. 27]

For the purpose of realisation of a principle of inviolability of the property in GK property right titles are in detail settled: pravoporozhdajushchie juridical facts (the basis of occurrence of the property right) and pravoprekrashchajushchie juridical facts (the basis of the termination of the property right). In item 236 GK the exhaustive list of the bases on which in cases, statutory, and also according to the court decision compulsory withdrawal at the proprietor of property is supposed is fixed. According to GK number of such bases concern: alienation of property which owing to the legislation certificate cannot belong to the given person (item 239); real estate alienation in connection with ground area withdrawal (item 240); the repayment of thriftlessly contained cultural values (item 241), the repayment of pets (item 242); requisition (item 243), etc. Norms of the Law «About available housing privatisation in Byelorussia» (item 13) [280], the Housing code (the item 69) [126] and other standard legal acts the right to reception of indemnification by citizens in connection with a pulling down of apartment houses, structures and the constructions belonging to them on the property right is provided.

From the resulted list of the bases of the compulsory termination of the property right the overwhelming majority carries vozmezdnyj character. Only in two cases it is a question of uncompensated taking at the proprietor of property belonging to it: at the claim to property reference under obligations (item 238 GK) and confiscations (item 244 GK). In item 244 GK it is fixed: « In the cases provided by acts, the property can be gratuitously withdrawn from the proprietor in the form of the sanction for committing a crime or other offences (confiscation). Thus the confiscation is administratively supposed only with observance of conditions and an order, statutory. The decision on the confiscation, accepted administratively, can be appealed in court ». The text of item 244 GK us is deliberately reproduced to pay attention once again on purpose completely to term replacement« the law "term" acts ». Require corresponding updating and positions of item 210 GK of Byelorussia, according to the item 3 which «possession, using and the order the earth and other natural resources in that measure, in what their turn is supposed by the legislation, is carried out by their proprietor freely if it does not put a damage to environment and does not break the rights and interests of other persons protected by the law» [88].

The specified circumstance is represented essential enough as in the conditions of a lawful state, and also at observance of a principle of leadership of the law such state of affairs is inadmissible. In this occasion, analyzing separate cases of extrajudicial application of confiscation as disciplinary measures for administrative violation, V.V. Podgrusha has noted: «Kohl soon compulsory purchase of property on a gratuitous basis is supposed by the Constitution, its positions should be observed in the strict image: conditions and an order of such withdrawal should be defined by the law. The court as that is demanded by the Organic law» [338] should accept decisions on confiscation.

In our opinion, with a principle of inviolability of the property and a principle of a social orientation of regulation of economic activities positions of the Decree of the President of Byelorussia from February, 7th, 2006 № 87 «About some measures on reduction of not preserved apartment houses not finished by building, summer residences», containing requirements of end of building of capital structures in the form of an apartment house, summer residences on the ground areas given when due hereunder, within three years [262] will not be adjusted. Introduction by the state of similar restriction should to be accompanied, in our opinion, by other measures directed on protection of interests of the proprietor (for example, target credits for building end can be given to separate categories of citizens).

To A.S.Gajduk and A.A.Kiselyov have offered following definition of a principle of inviolability of the property: «the civil-law principle of inviolability of the property represents one of the major beginnings of civil-law regulation of public relations and is a reference point according to which the civil law should regulate property relations so that in greatest possible without infringement of public interests to a measure to provide inviolability of the property as it is intrinsic property of the property, immanent to the nature of this right» [80, with. 168]. However the made definition does not open essence of a principle of inviolability of the property, its maintenance as carries in bolshej degrees declarative character.

In our opinion, there is no necessity essentially to redraft item 2 GK, it is enough to specify of it, having stated as follows: «a principle of inviolability of the property (property compulsory purchase is supposed only on motives of public necessity at observance of conditions and an order, defined by the law, with timely and full compensation of cost of aloof property, the confiscation is supposed only under the court decision)».

As the criterion allowing optimum to combine interests of the proprietor and all society and also to guarantee the greatest possible degree of inviolability of the property, the criterion of legislative fastening of cases should act, at which probably compulsory restriction or property right termination. Thus it is necessary to consider, that according to item 44 of the Constitution the property right termination contrary to will of the proprietor should be carried out only in cases, statutory and is exclusive under the court decision. However the reasons which have induced the legislator to limit a principle of inviolability of the property, should be exclusively weighty [19; 30; 39].

4.3.3 Principle of freedom of the contract

The principle of freedom of the contract fixes objective laws of development of civil-law relations in the conditions of market economy and a democratic society, it in bolshej to a measure, than other principles of civil law, it is possible to name a "market" principle. Historical experience testifies, that contract freedom is a condition of development of business, promotes adjustment of new economic communications, zavoevyvaniju the new markets, to revealing of various ways of satisfaction of requirements of a society. E.A.Vasilev marks in this occasion: «Declaration and legislative fastening of a principle of freedom of the contract was and remains the progressive phenomenon on the essence as creates legal conditions for self-realisation of the person in sphere of enterprise activity, legal conditions for a healthy competition and unlimited maneuvering by capitals depending on requirements of a society» [98, with. 522].

To open the maintenance of a principle of freedom of the contract, it is necessary at least tezisno, in general to concern the concept of the contract. French GK 1804 for the first time has fixed position according to which «the contract is the agreement by means of which one or several persons are obliged before other person or before several persons to give something, to make something or not to do something» (item 1101). Characterising the given concept, the French scientists R.Savate and Z.Morander underlined, that in a contract basis the agreement of the parties, and the consent of the party which is obliged, is an essential condition of the validity of the agreement [390 is necessary, with. 55; 127, with. 127].

The pre-revolutionary Russian civil legislation borrowed the norms which have fixed concept of the contract from the French legislation. In item 1550 t. H. 4.1 Codes of laws civil it was provided: «as the Contract is called the agreement of two or more persons directed to an establishment, change or the termination of legal relationships». In item 1528 it was underlined, that the contract is constituted on mutual consent of contracting parties. It assumes for the lawful validity of the contract absence of any compulsion at its conclusion. Russian jurist A.D.Solodovnikov specified: «Each contracting party should, without any pressure from another, give the consent to acceptance of those requirements which oblige its concluded contract, otherwise she can demand or compensations for the damage suffered by it, or even a contract recognition void» [414, with. 179].

The English legislator, despite dualism of opinions existing in the legal doctrine, in § 196 Arches of English civil law also has fixed concept of the contract which central element is the agreement of the parties. «The contract is an agreement which creates or has for an object to create the legal obligation between the parties participating in it» [399, with. 233]. Specified means, that the necessary precondition of occurrence of contractual relations the legislator recognises the agreement of the parties. However some authors understand the promise or a number of the promises which execution is provided with the right [18 as the contract, with. 25; 461, with. 102].

Two treatments of concept of the contract have found in the American civil law legislative fastening. The contract is a promise or a number of promises for which infringement by the law sanctions are provided and which execution the law considers as a duty [500 §1 arches of the conventional law of the USA, with. 252]. Thus, admits, that at the heart of the contract voluntary given promise to take up the legal obligation lays. However even the convinced supporters of this point of view do the reservation that the contractual promise grows out of mutual agreement of the parties [198, with. 54]. Other treatment of concept of the contract is fixed in §1-201 (11) Uniform trading codes of the USA which has defined the contract as «the legal obligation as a whole, growing out of the agreement of the parties» [122, with. 252]. The essence of the given definition consists that the contractual obligation is accepted by the party voluntary, and the main, intrinsic element of the contract is the agreement of the parties.

Hence, without dependence from treatment of concept of the contract, opinion of legislators of the countries representing various legal systems, converge in the main thing – without the agreement of the parties the contractual obligation cannot arise. The analysis of these positions allows to draw a conclusion that both western, and the European legislation firmly stand on positions of the unconditional requirement of the free agreement of the parties for an establishment of the contractual obligation. The modern Belarus and Russian legislation comes back to the former understanding of the contract doing an emphasis on the free agreement of the parties as the basis of occurrence of contractual relations.

As it is noted above, social value of contractual regulation in days of the Soviet power has not been claimed properly. The main appointment of the contract in which it was specified in the theory and practice, reproduction by the parties of requirements of the legislation was. As a result of such approach «the contract appeared a part of the mechanism of legal regulation, and its maintenance – reflexion of establishments of the law. Accordingly self-regulation is in that case carried out by participants of contractual relations though and by the coordination of counter wills, but it is not any, and strictly following standard instructions». In modern conditions «the contract acts as the tool of the most effective organisation of market relations, and contractual regulation by independent legal way of the organisation of concrete individual contractual communications of the managing subjects, existing along with an is standard-legal regulation» [483, with. 43]. The principle of freedom of the contract creates strong legal guarantees of such position.

The principle of freedom of the contract reflects branch specificity of civil law in bolshej degrees, than all fundamental principles of the civil legislation considered above. Proceeding from edition of item 2 GK freedom in civil law is shown to conventional law sphere that speaks relevancy and dimensions of institute of the contract in the civil legislation to which it is devoted more than half of norms containing in the code. However, in our opinion, there are all bases for the statement that the principle of freedom of the contract, as well as the principles of civil law considered above, not only does not become isolated in frameworks podotrasli a liability law, extending on all others podotrasli civil law, but also has strong communication with positions of the Constitution of Byelorussia [33; 39].

Displays of a principle of freedom of the contract are found out in all podotrasljah civil law. So, in rules of law of the property it is realised in law requirements about – in granting to the proprietor of the right of free possession, using and the order by the property; in norms of a liability law – in the right of the parties of debt relationship to provide its execution by other ways provided by the legislation or the contract (item 1 of item 310 GK); at institute of legal bodies the principle of freedom of the contract guarantees to participants of civil matters possibility to act as founders of legal bodies, provides will freedom at the conclusion of articles of incorporation (item 2 of item 48 GK). It is necessary to notice, that the given thesis will completely be adjusted with practice. In the decision of economic court of the Brest area from April, 25th, 2005 In particular, it has been specified, that «obshchegrazhdansky the principle of liberty of contract operates and in the legislation on societies with limited liability» [359].

The principle of freedom of the contract means, that citizens and legal bodies are free in making contract. Compulsion to making contract is not supposed, except for cases when a duty to conclude the contract is provided by the legislation or voluntary accepted obligation (item 2; item 1 of item 391 GK). For the purpose of comparison it is reversible to GK Russia and Ukraine in which the principle of freedom of the contract also is fixed, however within the limits of the national legislation it has other sounding. So, according to item 421 GK the Russian Federation compulsion to making contract is not supposed, except for cases when a duty to conclude the contract is provided GK, the law or voluntary accepted obligation [89]. It is obvious, that the Russian legislator above estimates contract freedom, supposing possibility of intrusion into sphere of private-law relations only in unusual cases and only by means of certificates of the higher validity. The Ukrainian legislator spends a principle of freedom of the contract, making a start not from concept "compulsion", and from concept "freedom" even more consistently: «the parties are free in making contract according to code positions, other certificates of the civil legislation, customs of a business turn, rationality and justice requirements» (item 627 GK of Ukraine) [90].

The maintenance of freedom of the contract with reference to concluded contracts the Belarus legislator reveals in item 391 GK. First, citizens and legal bodies are free in making contract, except for cases when a duty to conclude the contract is provided by the legislation or voluntary accepted obligation. It means, that at the heart of contractual relations freely expressed will of the parties which operate in the interest lays. Subjects of civil law have the right to solve independently a question on the introduction into contractual relations and to conclude any contract which they have selected if only it did not contradict the law.

Display of a principle of freedom of the contract is freedom of change of separate contractual conditions. Being guided by a principle of freedom of the contract, the parties can initiate assignment. According to item 353 GK the right (requirement) belonging to the creditor on the basis of the obligation, can be transferred them to other person under the transaction (a requirement concession) or to pass to other person on the basis of the legislation certificate. The concession of the requirement to other person is supposed by the creditor, if it does not contradict the legislation or the contract (item 359 GK) [88]. From sense of item 353 GK it is seen, that a subject of the contract on cession is the property right (requirement). The given object of the civil rights, undoubtedly, is specific enough, in this connection there is a question on what characteristics the right which is coming under to a concession should possess. In the conditions of the civil circulation speech can go about transfer to the new creditor of the right to demand: To pay the sum of the basic debt, to pay damages or only to pay the due penalty, to transfer a certain thing, to compensate damnified. However in all cases it is conceded it is not simply right, namely the incorporeal right. One of the "weakest" places of the considered legislation is the concession of the requirement which will arise in the future. The opinion has affirmed as the literature, that necessary conditions for the contract on an incorporeal right concession are: occurrence and existence at the moment of transfer of the right of legal relation in which frameworks it has arisen; preservation of the maintenance, character and volume of the transferred right; observance of the interdictions which are not supposing transition of the rights to other person [175, with. 41]. By the civil legislation of Byelorussia it is not established direct restrictions on a concession of the requirement which will arise in the future that has formed the basis for a conclusion that «a subject can be not only the requirement existing at the moment of making deal about transfer of the requirement, but also the requirement which will arise in the future» [457]. However, in our opinion, not each requirement can be a cession subject. G.F.Shershenevich, analyzing conditions of making contract of cession, wrote: «Former veritel (the creditor. – N.B.) that has transferred him quite valid right which does not have any legal lack» [483 answers before new, c. 288].

Let's simulate the following legal situation. For example, between the initial creditor (supplier) and the debtor (buyer) it is concluded the delivery contract according to which the creditor is obliged to put to the debtor the goods, and the debtor before the term specified in the contract (or in connection with approach of certain term or event) is obliged to pay the given goods. The named contract, being by the legal nature konsensualnym, becomes effective from the moment of achievement by the consent parties on all its essential conditions. It means, that the right of the creditor to reception of payment from the debtor arises at the moment of making contract. However this right yet did not become the incorporeal right as before the maturity date defined in the contract the creditor does not have a possibility to demand from the debtor of payment of the given sum, it cannot force the debtor to discharge of duty as the fact of inadequate execution of the obligation while is not present. If to admit, that the obligation on goods delivery will not be executed properly the right to demand payment for the put goods at the supplier will not arise at all, that is it does not become the creditor. Moreover, the buyer can take advantage given to it item 493 GK of the right to terminate the contract unilaterally in case of material breach of the contract from the supplier.

With reference to bilateral obligations the concession of the right (requirement) is supposed possible only in the event that the initial creditor has executed the duty before the debtor. Thus it is not necessary to lose sight of position of item 362 GK according to which transfer by the debtor of a debt into other person is supposed only with the consent of the creditor. At such scheme execution of obligations by the debtor before the new creditor (payment) inseparably linked with execution of obligations by the initial creditor (delivery). It means, that at the moment of making contract of a concession of the requirement at the initial creditor debt receivable should take place.

To such conclusion the economic court of of Minsk, the dispute which has considered on December, 23rd, 2003 between enterprises "Å" and "M" has come. Analyzing the fact of a concession of the future requirement, the court has come to conclusion that as the initial creditor has conceded to the new creditor the obligation which has not arisen yet, and has not left the obligation, that is the right which was conceded, at the moment of making contract to the initial creditor did not belong, the given contract is insignificant as inappropriate to legislation requirements (item 169 GK). The court has specified, that the initial creditor has not left the obligation as at observance of positions of the contract the new creditor could demand payment for the goods only under condition of delivery of the goods to the debtor the initial creditor – enterprise "МСЗ" that contradicts a being of the contract of a concession of the requirement having for an object change of persons in the obligation.

The court of court of cassation to enterprise "M" has given up in satisfaction of the complaint of enterprise "Å", having disregarded the plaintiff's cases (enterprises "Å"), trying to qualify the given contract as the transaction under suspensive condition [366].

Thus, in continuing contracts the requirement concession is possible provided that incorporeal right occurrence is connected with approach of certain term or certain circumstances. In that case the right of the supplier to demand payment for the put goods arises from the moment of execution of a duty laying on it, however to be realised the granted right can only at approach of the moment defined in the contract. The given requirement is real, but term of its realisation has not come. E.V.Vaskovsky specified: «Nobody can transfer to another of such right which itself has no». The given principle he named «a consequence of the Supreme principle of an autonomy of will which underlies civil law, and each private law agrees which is at the full disposal of the owner» [56, with. 223].

Let's put one more argument in a substantiation of own point of view. The financing contract under a concession of the monetary requirement (faktoring), to be exact, its such kind as opened faktoring, represents a cession special case. Providing possibility of a concession of the future requirements, in item 2 of item 157 BK the legislator has fixed position according to which «at a concession of the future requirement it is considered passed to the factor after there was a right to reception from the debtor of the money resources which are a subject of a concession of the monetary requirement (faktoringa), provided by the contract. If the concession of the monetary requirement is caused by certain event, it becomes effective after approach of this event» [22]. Thus, as a cession subject the abstract requirement can act only real, instead of. The validity of the contract on cession depends on following characteristics of its subject: The right – a transfer subject, first, should be real, that is arise at the assignor at the moment of cession making contract, secondly, to be accurately defined, thirdly, the concession of the requirement concerning the given subject should not contradict the legislation. Proceeding from stated, it is necessary to add item 1 of item 353 GK with the paragraph of the following maintenance: «transferred on the basis of the contract is right (requirement) should real and defined» [4–А; 5–А; 39].

Freedom of subjects of civil law in the decision of a question concerning the introduction into contractual relations inseparably linked with the party option under the contract. The law of Byelorussia from June, 14th, 2003 « About public service in Byelorussia »the restrictions connected with public service are established. In particular,« the civil servant is obliged to transfer in the order established by the legislation in confidential control under a guarantee of the state for the period of public service passage shares of participation being in its property (the action, the rights) in the authorised capital of the commercial organisations, except for the cases provided by the legislation (item 22 item 3) [241]. Not challenging validity of introduction of similar restriction, at the same time it is impossible to agree with the restriction containing in Position about confidential management by shares belonging to civil servant of participation (actions, the rights) in authorised capitals of the commercial organisations, approved by the Decree of the President of Byelorussia from March, 17th, 2004 № 136. In the item 2 given Positions are established, that «the civil servants having in the property of a share of participation (actions, the rights) in authorised capitals of the commercial organisations, are obliged within three months to transfer them for the period of public service passage to open joint-stock company« Savings bank "Belarusbank" in confidential management »[243]. Civil servants thereby are deprived the option of the counterpart under the contract as it is defined imperatively.

Restriction of a principle of freedom of the contract regarding the option of the counterpart is found out and in Position about insurance activity in Byelorussia, approved by the Decree of the President of Byelorussia from August, 25th, 2006 № 530. According to this Position by the insurer on compulsory insurance of the structures belonging to citizens (item 72), on compulsory insurance from accidents on manufacture and occupational diseases (item 242); on compulsory insurance of responsibility of the commercial organisations which are carrying out rielterskuju activity, for injury in connection with its realisation (item 359) is Belarus republican unitary insurance enterprise "Белгосстрах" [304]. By other kinds of compulsory insurance as insurers the state legal bodies or legal bodies act only, in which authorised capital more than 50 % of shares (simple (ordinary) or voting actions) are in the property of Byelorussia and (or) its administrative and territorial units. Thereby the insurance market has appeared practically completely monopolised, and insurers – the commercial legal bodies of not state pattern of ownership having special permissions (licence) to realisation of insurance activity in Byelorussia, – superseded with the insurance market of Byelorussia. In our opinion, the specified restrictions not only break a principle of freedom of the contract, but also put in unequal position of subjects of managing, than the principle of equality of participants of civil matters is broken.

Following element of freedom of the contract is granting to subjects of contractual relations of possibility to conclude the contract in which elements of the various contracts provided by the legislation (the mixed contract) (item 2 of item 391 GK) contain. The competence of the conclusion of the mixed contract is directly fixed for the first time in the legislation. Some of the mixed contracts already have found the reflexion in the legislation (the hiring-sale contract – item 471 GK), others – while only in practice.

In practice there are various variants of the mixed contracts including elements of contractual designs named in the legislation. Combinations of "mixed" elements can be the most various provided that they do not contradict one another (for example, in the gift contract it is impossible the condition about counter granting for the donator) and are taken from the contracts, known to the legislator. It can be dogovory, including elements of contracts of delivery and storage; deliveries and the commissions; rent and storage; deliveries, the commissions and vozmezdnogo rendering of services, etc. Mixed dogovory are extended and in bank practice. For example, the contract of the bank account including a condition about payments under the account on which there are no money resources, is mixed, containing also elements of the credit contract. The parties enter into such agreements, being guided by the various reasons, main from which consists that such dogovory most correspond to a being of the legal relations which have arisen between counterparts.

The brokerage contract concerns number of mixed contracts strongly fixed in the civil circulation. In GK Byelorussia the specified contractual design is absent, that gives the basis to address to the definition fixed in the Russian legislation. Under the brokerage contract one party (agent) undertakes to make for compensation on the instructions of other party (principal) legal and other actions on its own behalf, but at the expense of the principal, or from a name and at the expense of the principal (item 1005 GK the Russian Federation). The given contract includes elements of contracts of factorage and the commission, but can include and elements of other contracts (for example, purchase and sale). Depending on that, the contract the agent from own name or on behalf of the principal consists, it is under construction on models or contracts of agency, or contracts of factorage. Convenience of a legal design of the brokerage contract consists also that within the limits of one brokerage contract probably simultaneous performance of the agent in one transactions – on its own behalf, and in others – on behalf of the principal. The way of participation of the agent in relations with the third parties, being criterion of differentiation of contracts of factorage and commissions, has no basic value for the brokerage contract.

Activity such widespread in industrial-trading sphere where businessmen-agents (dealers) carry out in interests of the clients (principals) both legal, and actual actions. As a rule, within the limits of the brokerage contract the person operating as the agent, incurs a number of the obligations connected among themselves on: realisations of the goods, to the organisation and advertising campaign carrying out, studying of demand for perspective assortment (marketing services), the analysis of a condition of the market in a segment of activity of the principal.

One more kind of the mixed contract which have received development in the civil circulation of Byelorussia, but standard fastening, the contract of the commodity credit is not found. The contract of the commodity credit provides a duty of one party to give to other party of a thing, generic (item 822 GK the Russian Federation) [87]. The classical contract of the commodity credit represents original "hybrid" of the credit contract and the loan for consumption with elements of the contract of purchase. Its maintenance joins conditions which are represented by the most desirable for both parties proceeding from specificity of their economic activities. For this reason in such contractual form clothe received a wide circulation in operation practice on goods acquisition (raw materials, the materials completing) on the terms of the commodity credit. We will result a number of the arguments testifying to necessity of inclusion of the given legal design in norms GK of Byelorussia.

(Unlike the credit contract) any subjects of extra relations [99 can conclude the contract of the commodity credit, with. 419], and not just banks or other credit organisations having the corresponding licence. Instead of money under such contract the buyer (borrower) receives things, generic (goods). Such contract consists the parties, as a rule, instead of the traditional contract of purchase (delivery). For the supplier this contract – the original insurance from impossibility to receive payment for the goods put under the contract. In cases when the buyer does not pay the goods, the supplier (seller) has the right to demand return of the unpaid goods together with due percent and to realise its different way. As to the buyer at occurrence at it difficulties with sale of goods or impossibility of payment it can return the goods or a part of the non-realised goods. Besides, the delay or the instalments of payment of the goods is given to it. It allows the buyer to pay in case of absence of necessary money resources the goods parts, including at the expense of the means received from its realisation.

Absence at the possibility parties to conclude the similar contract would mean necessity of the conclusion of the traditional contract of delivery. Thus in GK Byelorussia the exhaustive list of circumstances at which refusal of the buyer of the goods and its return to the supplier (the initial proprietor) is possible is resulted. As shows the analysis of norms of the specified code of lawful basis to return the non-realised qualitative goods back to the seller at the buyer is not present. Hence, return of the goods which is transferred by the seller to the buyer under the delivery contract, payment for which is not made, possible only on the basis of the new contract of delivery. Thus the seller becomes the buyer, and the buyer the seller. The given transaction is inefficient both from the point of view of the civil circulation, and from tax laws positions as the contract parties should pay repeatedly the taxes connected with sale of goods.

Noted advantages of the brokerage contract and the contract of the commodity credit have allowed them to become stronger strongly in economic practice. In this connection for the purpose of a uniformity establishment pravoprimenitelnoj experts inclusion of the given legal designs and in norms GK of Byelorussia by entering of additions [2–А is represented expedient; 14; 25; 33; 39].

Unfortunately, item 2 of item 391 GK does not contain instructions on granting to the possibility parties to conclude dogovory, not provided by the legislation, but not contradicting it (so-called not named dogovory). It is represented, that the given legislative decision mismatches requirements of a principle of freedom of the contract. Thus the right to the conclusion of the contracts which are not contradicting the legislation which includes and is right to create independently new models of contracts, logically follows from the text of item 1 of item 7 GK of Byelorussia. For comparison we will notice, that item 421 GK provides the Russian Federation, that the parties can conclude the contract, both statutory, and such which in laws is not mentioned at all, however will correspond most to a being of the legal relations which have arisen between the parties and optimum to regulate them [89]. According to the item 6 GK Ukraine the parties have the right to conclude the contract which is not provided by certificates of the civil legislation, but corresponds to fundamental principles of the civil legislation [90].

The right of the parties to conclude dogovory any maintenance and to include in them any conditions which are not contradicting the legislation, constitutes essence of a principle of freedom of the contract, its positive maintenance. It results from the appointment of the contract to serve as the form of certain private relations for satisfaction of private interests. E.A.Sukhanov among the basic tendencies of development of a liability law named, in particular, a dominating place of the conventional law, occurrence of the complex (mixed) and atypical contractual interrelations, internationalisation and conventional law unification [102, with. 7]. Taking into consideration the specified processes, it is represented to proved items 2 of item 391 GK of Byelorussia to be reworded as follows taking into account requirements of a principle of freedom of the contract [14; 29; 33; 39].

Contract freedom means, that treaty provisions are defined at the discretion of the parties in an order and the limits provided by the legislation. Action of a principle of freedom of the contract assumes, that the majority of the rules of law regulating the relations in contractual sphere, have optional character. However the legislator cannot refuse use of mandatory provisions as in imperativeness social necessity of compulsion of the subject to certain behaviour is concluded. The problem of the legislator consists in finding such variant of a combination imperative and provisional rules which would provide the greatest efficiency of legal regulation and was comprehensible both from positions of interests of a society, and from positions of an autonomy of will of the separate subject. Besides, in legal acts administrative (tax, financial, customs) and other branches of law the overwhelming majority is constituted by mandatory provisions. At definition of conditions of the future contract of the party are obliged to consider their requirements.

So, according to the Decree of the President of Byelorussia from July, 6th, 2005 № 314 «About some measures on protection of the rights of the citizens performing work on civil-law and employment contracts» with a view of maintenance of timely calculation with citizens for the performed work, the rendered service and the created object of intellectual property under civil-law contracts and protection of their separate sociolabor rights, legal bodies and the individual businessmen employing citizens under civil-law contracts which subject is performance of works, rendering of services and creation of objects of intellectual property, are obliged to conclude with them specified dogovory in writing and to define in these contracts except the conditions established by the legislation, and other essential conditions. As such conditions are named: a procedure of payments of the parties under civil-law contracts, including the sums, repayable; The obligation of the customer – the legal person or the individual businessman employing citizens under civil-law contracts, on payment for them when due hereunder obligatory insurance premium payments on the state social insurance in Fund of social protection of the population of the Ministry of Labour and Social Protection; obligations of the parties on maintenance of safe working conditions proceeding from duties of the parties of the civil-law contract and responsibility for their default; the bases of preschedule cancellation of the civil-law contract; the liability for nonperformance the customer of obligations on payment of the performed work, the rendered service or the created object of intellectual property in the form of the penalty at a rate of not less than 0,15 % of an outstanding sum per every day of delay (item 1.1 [260]). Some of aforementioned essential conditions are already defined in the legislation imperatively and their mechanical reproduction in the contract text it is not represented expedient. So, obligations on payment of obligatory insurance premium payments on the state social insurance; on maintenance of safe working conditions and responsibility for their default; the bases of preschedule cancellation of the civil-law contract are provided by the legislation.

It is necessary to notice, that the elements of a principle of freedom of the contract considered above basically are shown at a precontractual stage and a making contract stage. However it is necessary to include in the maintenance of a principle of freedom of the contract also the right of the parties to dispose of destiny of the contract, that is the right it to change or terminate, and also to select any of statutory ways of its termination. The granted right, in our opinion, was in a certain measure is limited by acceptance of the Decree of the President of Byelorussia from August, 15th, 2005 № 373 «About some questions of the conclusion of contracts and executions of obligations in territory of Byelorussia». In conformity this Decree in territory of Byelorussia from August, 1st, till December, 31st, 2008 At realisation of enterprise activity of the organisation and individual businessmen if other is not established by the President of Byelorussia, have no right to conclude dogovory exchange, and also to cease obligations under cummutative contracts an innovation, granting instead of execution of a compensation without receipt when due hereunder organisation money resources, to the individual businessman; to cease obligations without receipt when due hereunder organisation money resources, to the individual businessman with excess of limiting specifications of the discharge annually approved by Ministerial council of Byelorussia in coordination with the President of Byelorussia (item 1.1 [256]).

Legislative fastening of a principle of freedom of the contract does not mean loss of necessity of legal regulation of contractual relations. Napoborot, the developed and detailed system of legal regulation is a guarantee from administrative dictatorship and from an arbitrariness from others pravopolzovatelej. Therefore the legislator establishes restrictions of a principle of freedom of the contract, which can be divided into the general (item 9 GK) and special. So, the law supposes possibility of compulsion of participants of civil matters to making contract owing to the law or voluntary accepted obligation. Making contract is obligatory in cases: the conclusions of the public contract (item 396 GK); the conclusions of the basic contract provided by the preliminary contract (item 399 GK); makings contract with the person who has won the auctions (item 417, 418 GK); makings contract of delivery of the goods for the state needs (item 499 GK); In other cases provided by the legislation. A version of claims about compulsion to making contract are claims about transfer into the claimant of the rights and duties any of the parties on the prisoner with infringement of its right of priority to the contract (item 253 item 3, item 1 of item 592 GK). If the party for which making contract is obligatory, evades from its conclusion, other party has the right to address in court with the requirement about compulsion to conclude the contract. Thus such claim can concern not only all contract as a whole, but also to its separate conditions. To the statement of claim the claimant is obliged to put the contract draught, on compulsion to which conclusion, the claim (item 4 of item 415 GK) [237] is made.

Cтороны can voluntary assume liability about making contract in the future, having concluded the preliminary contract and then to demand its enforcement (item 399 GK). The preliminary contract is quite independent agreement in which in the form demanded by the law the obligation of the parties under the introduction into the basic contract is expressed, on certain conditions, when due hereunder. If the party which has concluded the preliminary contract, evades from the conclusion of the basic contract the positions established for the conclusion of contracts without fail (item 5 of item 399 GK) are applied. The party which has unreasonably evaded from making contract, should pay to other party the damages caused to it (item 4 of item 415 GK). It is necessary to notice also, that consequences of infringement of the preliminary contract differ from consequences of infringement of the core. In the first case it is a question of indemnification of negative interest (interest to the conclusion of the basic contract), and in the second – positive interest to observance by the counterpart of the obligation broken by inadequate execution of the obligation, following of the basic contract. As the maintenance of the preliminary contract represents obligations of the parties on the conclusion in the future of the corresponding contract on assignation, to performance of works or rendering of services, the legislator recognises that the basic contract should be concluded on the conditions provided by the preliminary contract. The preliminary contract predetermines the maintenance of the basic contract, therefore it should contain all essential conditions of the basic contract, otherwise the contract cannot be regarded as preliminary and requirements about compulsion to the conclusion of the basic contract do not come under to satisfaction.

The given statute causes objections for following reasons. First, at the moment of party making contract cannot define with confidence all essential conditions of the basic contract (sometimes for this reason they resort to the conclusion of the preliminary contract and do not conclude the basic contract), and, secondly, the purpose of the preliminary contract and the basic contract different. With reference to the basic contract the purposes can be: assignation in the property; performance of works; rendering of services; the joint cooperation organisation. The purpose of all preliminary contracts – maintenance of guarantees of the conclusion of the basic contract.

The law also demands, that the preliminary contract has been concluded in the form established by the legislation for the basic contract. If the form of the basic contract is not provided by the law, it there should be a simple written form. Non-observance of requirements to the contract form attracts its negligibility (item 2 of item 399 GK). In practice there is yet a question which has not received the unequivocal answer on, whether are required the state registration of preliminary contracts if their subject is the conclusion in the future of the contract requiring such registration.

In an explanation of the Higher Economic Court of Byelorussia from October, 11th, 2005 № 03-24/1891 «About the state registration of the preliminary contract» the attention to the following is paid. «According to item 3 of item 9 of the Law of Byelorussia from July, 22nd, 2002« About the state registration of real estate, the rights to it and transactions with it »(further – the Law) to the state registration come under dogovory which are or can become the basis of occurrence, transition, the termination of the rights or restrictions (encumbrances) of the rights on real estate. Besides, owing to subparagraph 3.4 of item 3 of item 24 of the Law at the state registration of the preliminary contract or the transaction according to which occurrence, transition or the termination of the rights, restrictions (encumbrances) is right probably will come in the future, conditions of occurrence, transition or the termination of the rights, restrictions (encumbrances) of the rights, and also identification data on the candidate in legal owners» [240] register. In our opinion, the given positions of the law require updating by an exception of item 3 of item 9 of the Law of words: «or can become».

In our opinion, such position contains unjustified obstacles for subjects of the civil circulation and should be reviewed proceeding from the following. In the enacting clause of Byelorussia from July, 22nd, 2002 № 133-Z «About the state registration of real estate, the rights to it and transactions with it» it is told, that he establishes legal bases and an order of the state registration of real estate, the rights and restrictions (encumbrances) of the rights on it, and also transactions with it within territory of Byelorussia for the purpose of a recognition and protection by the state of the rights registered according to the named Law, restrictions (encumbrances) of the rights on real estate and transactions with it [239].

As the analysis of item 399 GK testifies, the preliminary contract does not generate any rights to real estate, is not also the transaction with it. As its unique purpose acceptance by the parties of the contract of the obligation acts to conclude in the future the contract (the basic contract) on the conditions provided by the preliminary contract. The requirement of its state registration, thus, has not for an object «a recognition and protection by the state of the rights», most likely, its purpose fiscal, that does not promote protection of economic interests of subjects of the civil circulation. Besides, according to item 6 of item 399 GK, «the obligations provided by the preliminary contract, stop, if before the term termination in which the parties should conclude the basic contract, it will not be concluded also any of the parties will not direct to other party the offer to conclude this contract». Thereupon, the above-named positions of the Law «About the state registration of real estate, the rights to it and transactions with it» require updating regarding an exception of requirements about the state registration of preliminary contracts.

Changes should undergo and item 399 GK. In particular, it is necessary to state item 2 and 3 items 399 GK in the following edition:

«2. The preliminary contract consists in writing. Non-observance of the form of the preliminary contract attracts its negligibility.

3. The preliminary contract should contain the conditions, allowing to establish a subject of the basic contract. »[22; 39].

Significant amount of the bases testifying to a duty to conclude the contract owing to requirements of the law, are concentrated in insurance sphere. These cases concern both obligatory personal, and property insurance. So, the legislator has allocated separately obligatory state insurance providing cases of compulsory insurance of a life, health and property of citizens at the expense of the means given from the corresponding budget. At receipt of citizens for work or an appeal on service the corresponding ministries and other organisations take up obligations on life insurance and health of the specified persons on a case of  destruction (death), wound (contusion), a mutilation, the disease, received in connection with course of duty. Such insurance is carried out for the purpose of protection of interests of the employees which work is connected with certain risk, in case of injury to their health and (or) to property, and interests of members of their families in case of death causing to such employee if damage of health or death have come in connection with performance of official duties. Categories of the civil servants who are coming under to obligatory state insurance, are defined by the legislation. Them, in particular, concern: all workers of militia; military men; workers of fire service; public prosecutor's workers, etc. [251]. Compulsory insurance is come under by a carrier civil liability before passengers who are transported by means automobile, air, water and a railway transportation in territory of Byelorussia [312]. According to item 4.1. Positions about the insurance activity, the President of Byelorussia approved by the Decree from August, 25th, 2006 № 530 «About insurance activity», following kinds of compulsory insurance are defined: the insurance of building, belonging to citizens; insurance of a civil liability of owners of vehicles; insurance of a civil liability of a carrier before passengers; indemnity against liability for default of contractual obligations of creation of objects of share building; accident insurance on manufacture and occupational diseases, etc. [304].

Duty conclude the contract can to be based and on the raised interest of the state as subject of public authority in fulfilment of such contracts. The state, carrying out of the problems put before it, faces a number of problems which it should solve in interests of all society as a whole. Maintenance of the state needs (item 1 of item 495 GK) concerns number of such problems.

The economic court of the Minsk area considers on July, 29th, 2004 case under claim RUPP "And", to SPK about compulsion to conclude the contract on delivery 45 t ferrous metals. The claimant in the statement has specified, that to execute the state order finished to it for delivery of a breakage and a waste of ferrous metals it has directed to the respondent on February, 25th, 2004 the state contract, having suggested to issue contractual relations. The volume of deliveries is finished to the respondent according to the decision of Ministerial council of Byelorussia from November, 3rd, 2003 № 1459 order of management agricultural and the foodstuffs of Mjadelsky district executive committee from January, 27th, 2004 the Respondent of the answer has not presented also the consent to contracting is not received.

The decision of Ministerial council of Byelorussia from November, 3rd, 2003 № 1459 «About delivery (preparation, delivery) for republican state needs of a breakage and a waste black and nonferrous metals in 2004» had been approved breakage standard items. To execute the given decision the order of Management of agriculture and the foodstuffs of Mjadelsky district executive committee № 4 from January, 27th, 2004 had been finished volumes of delivery of a breakage on the enterprises which are in territory of area. The respondent has been obliged to conclude the contract of delivery of a breakage of ferrous metals with the claimant in volume 45 t, however the above-named state contract has not signed.

According to item 5 of item 499 GK if the supplier evades from making contract of delivery of the goods for the state needs, the buyer has the right to address in court with the requirement about compulsion of the supplier (executor) to conclude the contract on the terms of the contract draught developed by the buyer. For the conclusion of the state contract the adjusted will of two parties is necessary. In the cases provided by item 2 of item 497 GK, on the supplier the duty is assigned to conclude the state contract. As in the order established by acts the respondent the state order finished to it has not challenged, it should accept the order to execution in full.

One of the principles of the civil legislation fixed in item 2 GK, the principle of freedom of the contract is. Compulsion to making contract is not supposed, except for cases when a duty to conclude the contract is provided by the legislation. One of ways of protection of the civil rights is annulment of the certificate of the state body. As the respondent did not realise the right and has not challenged (has not nullified) the certificate of the state body, the requirement of the claimant about compulsion to the conclusion of the state contract has been recognised by lawful, and the claim is satisfied [381].

Restrictions of a principle of freedom the contracts supposing possibility to demand of making contract without fail, can be connected and with special designs of separate kinds of contracts. Legal designs of public contracts (item 396 GK) concern number of such contracts and contracts of adhesion (item 398 GK).

The special kind of restrictions of a principle of freedom of the contract, expressed in an interdiction for the introduction into contractual legal relationships, is connected with legal regulation of monopolistically activity. In this occasion German scientist Irmin T. Nojffer marked: « Freedom of employment by the trade activity, received the strongest development in the end of ХVIII and ХIХ century, and the prompt development of economy connected with it have led to occurrence in a competition of numerous unfair frauds and methods which have quickly turned to the general problem which decision needed creation of the special mechanism of a right protection »[329, with. 76]. With acceptance on December, 10th, 1992 the Law of Byelorussia« About counteraction of monopolistically activity and competition development »the state has incurred responsibility for maintenance of free development of a market economy, that is for maintenance on commodity markets and services of certain level of a competition, for prevention of monopolistically dictatorship of the prices and application of unfair contractual conditions [284].

Research of concrete displays of a principle of freedom of the contract in civil law underlines indissoluble communication of the given principle with others even more: principles of equality, inviolability of the property, inadmissibility of any intervention someone in private affairs. Unity so strong what to delimit sphere of action of one principle from another it is impossible. However most closely the principle of freedom of the contract is connected with a principle of unobstructed realisation of the civil rights. In the maintenance of each of them on a plan of the legislator the requirement of presence of free, independent will of subjects of civil matters is concluded. Taking into account it expediently textually to consolidate these principles.

The principle name of "unobstructed realisation of the civil rights» is represented insufficiently correct. Possibly, for this reason the legislator could not fill the given principle substantially. The matter is that no state can really provide to the citizens unobstructed realisation of their rights which, as a matter of fact, is similar to an arbitrariness or anarchy. Therefore under any conditions the given principle cannot be realizable, in this connection, there are no bases to fix it in norms of the civil legislation.

Restrictions of realisation of the civil rights can be caused by necessity of protection both public interests, and private. The law the exclusive right of the state to realisation of separate kinds of activity can be fixed, for conducting many kinds of enterprise activity the special permission (licence) of competent state body to which is accorded to give up a right in delivery of such permission if the applicant does not meet the established requirements [182, item 13] is necessary. Deviation from a principle of unobstructed realisation of the civil rights can be dictated and aspiration of the legislator to provide protection of interests of separate participants of the civil circulation (item 4 of item 275 GK). Thereupon it is represented to more correct to talk not about unobstructed realisation of the civil rights, and about an autonomy of will of participants of civil matters.

The principle of an autonomy of will is the central principle of the law of succession. Norms of the law of succession in GK are formulated so that in the greatest possible measure to provide freedom of the will which is incompatible with existing earlier legislative interdictions and restrictions of the order by a private property, the hereditary succession first priority. The principle of freedom of the will, is a special case of a principle of an autonomy of the will, found direct fastening in GK. In particular according to item 1041 of the specified Code the legator has the right to bequeath at own discretion property to one or several persons, both entering, and not entering into a circle of legal heirs, in any image to define shares of successors in the inheritance, to disinherit one, several or all legal heirs, not specifying the reasons of such deprivation to cancel or change the perfect will.

With a view of protection of the rights and legitimate interests of other persons the legislator has provided withdrawal from a principle of freedom of the will rules about the compulsory portion in the inheritance. The right to the compulsory portion is fixed to minor or invalid children of the estate-leaver, its invalid the spouse and parents (item 1064 GK). However and in this case the legislator aspires to provide in the maximum degree realisation of a principle of freedom of the will, reducing the compulsory portion in the inheritance from two thirds to half of share which would be due to each of the listed persons at hereditary succession, that is at intestacy. So, according to item 2 of specified article the compulsory portion is allocated first of all from nezaveshchannoj property parts.

On maintenance of realisation of a principle of freedom of the will norms GK guaranteeing secret of the will, its drawing up providing the facilitated form, increase in quantity of turns of successors, etc. for example are directed also, according to item 1046 GK to the legator is accorded to make a right the will, not giving thus to other persons, including the notary, possibilities to familiarise with its maintenance (the closed will). Unlike GK 1964 in GK 1998 as prime at definition of successors testamentary succession, instead of under the law is provided. In item 2 of item 1032 GK it is fixed, that hereditary succession takes place, when the will is absent or defines destiny not all inheritance. The purposes of maintenance of principles of inviolability of the property, inadmissibility of intervention in private affairs, contract freedom are served also by the norms of the legislation establishing restriction of the right of the state on property of the died citizen by means of considerable expansion of number of turns of successors; an establishment of the first priority of testamentary succession; increase in turns of successors of property; reduction of the compulsory portion of hereditary succession; according a right of drawing up of the closed will, etc.

Considering the above-stated, for the purpose of fuller disclosing of the maintenance of a principle of freedom of the contract, and also being based on the position developed by us about inclusion of a principle of an autonomy of will in a legal fabric of a principle of freedom of the contract, we suggest to fix in item 2 GK a principle of freedom of the contract, having formulated it as follows: «participants of civil matters get and carry out the civil rights the will and in the interests, they are free in making contract, an establishment of the rights and duties on the basis of the contract and in definition of any treaty provisions not contradicting the legislation. Compulsion to making contract or change of its conditions, is not supposed, except for cases when such duty is statutory or voluntary accepted obligation.» [39]. 4.3.4 Principle of inadmissibility of any intervention in private affairs

In the General Declaration of human rights of 1948 it is proclaimed: «Nobody can be exposed to any intervention in its personal and home life, to any encroachments on inviolability of its dwelling, secret of its correspondence or on its honour and reputation. Each person has the right to protection of the law from such intervention or such encroachments» (item 12). According to item 2 of item 29 of this document at realisation of the rights and freedom each person should be exposed only to such restrictions what are statutory exclusively and for the purpose of maintenance of a due recognition and respect of the rights and freedom of others and satisfaction of fair requirements of morals, a public order and the general well-being in a democratic society [72].

The Civil-law principle of inadmissibility of any intervention in private affairs has the source of norm of item 23 of the Constitution of Byelorussia in which it is fixed: «Restriction of the rights and personal freedoms is supposed only in cases, statutory, in interests of national safety, a public order, protection of morals, health of the population, the rights and freedom of other persons» and item 28: «Everyone has the right to protection against illegal intervention in its private life, including from an encroachment on secret of its correspondence, telephone and other messages, on its honour and advantage» [182]. It is represented, that the given principle is reflexion of two constitutional principles: freedom of enterprise activity and inviolability of a private life of citizens. In these constitutional beginnings find a combination as ideas private, and public character.

«In international legal documents it is provided, that an establishment of limits of the rights and freedom probably on the basis of the law. Restrictions can be only such which are necessary in a democratic society for protection of the state and national safety, a public order, health and morals, no less than fundamental laws and freedom of other persons. In other words, the legislator is not free in the discretion: restriction of the rights and freedom probably: first, only if it is statutory; secondly, only on following bases:) in interests of national safety, a public order; morals protection; population health; the rights and freedom of other persons.

Thus, restrictions are caused by interests of development of the democratic state where are provided not only interests of a society, but also the separate person "…" Restrictions should be proportional to the democratic nature of the corresponding right, its constitutional maintenance... »[50],« to be necessary, the legislator should choose the least burdensome means of restriction of the rights [48, with. 25]. In such context it is formulated ch. 4 items 1 of the Law of Byelorussia from November, 13th, 1992 «About the status of military men»: «the Military man guarantees the rights and freedom established by the legislation for citizens of Byelorussia, with restrictions in their use, the caused features of military service. Restriction of the rights and freedom of military men is compensated by granting of additional state guarantees by it and privileges» [303].

According to item 2 GK intervention in private affairs is not supposed, except for cases when such intervention is carried out on the basis of rules of law in interests of national safety, public order, protection of morals, health of the population, the rights and freedom of other persons [88]. Causes disagreement a position of the legislator receding from the constitutional principle at formation of the branch. The term "law" in GK is replaced with much wider under the maintenance the term "rule of law" that testifies to necessity of reduction of a branch principle for conformity with the constitutional. In this connection V.F.Jakovleva's statement that «in the private affairs, not based on the law, it is necessary to consider any intervention any is fair. For an intervention assumption, – the scientist marked, – it is necessary, that it has been directly statutory in the form of the powers of this or that state body defined by the law or the public agent »[103, with. 23]. G.A.Gadzhiev takes of a similar position:« It is necessary to consider constantly a phenomenon of simultaneous participation of norms of the constitutional and branch right in the mechanism of legal regulation of public relations. Norms of the civil legislation regulate public relations under the vigilant control of the constitutional norms and principles »[79, with. 17].

The legislator, in our opinion, should show the big care, formulating norms of the branch legislation in order to avoid similar different interpretations which can have the consequence the expanded interpretation of the constitutional norms. Any substantial updating of the constitutional principles in process normotvorcheskoj activity is inadmissible.

For the purpose of comparison we will result positions of item 1 GK the Russian Federation in which the principle with the similar name, is formulated as follows: «the civil rights can be limited on the basis of the federal act and only in that measure in what it is necessary with a view of protection of bases of the constitutional system, morals, health, the rights and legitimate interests of other persons, maintenance of defence of the country and safety of the state» [89]. The norm of item 3 GK of Ukraine also fixes inadmissibility of any intervention in sphere of a private life of citizens and inadmissibility of the termination of the property right, except the cases established by the Constitution of Ukraine and the law [90]. Such position of the legislator finds support and in the legal doctrine. « Restrictions should pursue exclusively constitutional aims and to be it proportional; directly also are unambiguously fixed in laws within the limits of uniform standard strategy; they cannot actually be spent through an establishment of a certain order of realisation of other single-level (adjacent) powers or otherwise to undermine system integrity of fundamental laws and freedom; have no retroactive effect; are addressed subjects exclusively honesty having by the rights »– fairly believes V.I.Kruss [192, with. 18].

The principle of inadmissibility of any intervention in private affairs has a two-vector orientation. First of all it is addressed public authority. In this quality it «represents self-restriction of the state which thereby undertakes not to interfere with affairs and relations which are sphere of private interests. Realisations of requirements of an investigated principle promote rules of the legislation on property responsibility of bodies of public authority for illegal intervention in civil matters (item 15 GK), and also about possibility of a recognition court void certificates of public authority and their non-use at the resolution of dispute (item 11 and 12 GK). The given principle means also, that the state is obliged to bar the actions of other persons representing any illegal intervention in someone's private affairs» [103, with. 23]. At the same time, the given principle comprises the requirement turned to participants of civil matters to abstain from illegal intervention in affairs each other.

The law of Byelorussia from July, 18th, 2000 «About an economic inconsistency (bankruptcy)» contains the rule of law about inadmissibility of intervention in activity of the managing director. According to item 63 of the named Law «influence in any form on the managing director with a view of hindrance to execution of duties of the managing director by it in manufacture on business about bankruptcy or acceptances of an illegal decision or other judicial certificate of economic court involves responsibility according to the legislation» [319].

The brightest display in private affairs finds a principle of inadmissibility of any intervention in sphere of personal non-property relations where it is concretised in positions of the legislation on inviolability of a private life, personal and family secret of citizens, their honour, advantage and business reputation, other personal non-property rights and other intangible benefits (item 151 GK). According to item 153 GK the citizen has the right to demand on court of a refutation discrediting its honour, advantage or business reputation of data if spread such informations will not prove, that they correspond to the validity. On request of interested persons the honour and dignity protection of the citizen and after his death is supposed. Legal bodies have the right to protection of the business reputation. The specified rules about protection of business reputation of the citizen accordingly are applied to protection of business reputation of the legal person, except compensation of moral harm [282].

The principle of inadmissibility of any intervention in private affairs assumes also inadmissibility of infringement of the rights of subjects on confidentiality of post and other messages, infringement of secret of contributions, medical and a trade secret, etc. According to positions of the Law of Byelorussia from December, 15th, 2003 « About a mail service »« all operators of a mail service are obliged to provide observance of secret of a mail service. The information on the address given users of services of a mail service, about items of mail and their maintenance and other messages entering into a field of activity of operators of a mail service, are secret of a mail service and can stand out only to senders, addressees or their legal representatives, and also the state bodies in the cases provided by acts »[269]. In BK Byelorussia article according to which« data on accounts and contributions, including data on account presence in the given bank, its owner, number and other requisites of the account, the size of the means which are on accounts and in contributions, and it is equal data on concrete transactions, on operations under accounts and contributions, and also the property which is in escrow with the bank contains, are bank secret and do not come under to disclosure »[22].

The principle of inadmissibility of any intervention in private affairs is shown also in positions of the legislation on protection of the information constituting office or a trade secret (item 140 GK). So, in Position about a trade secret, approved the decision of Ministerial council of Byelorussia on November, 6th, 1992 № 670, defines economic and legal bases of protection of a trade secret. According to item 1 of this Position «the trade secret is constituted by purposely hidden economic interests and the information on the various parties and spheres of industrial-economic, administrative, scientific and technical, financial activity of the subject of the managing which protection is caused by interests of a competition and possible threat of economic safety of the subject of managing. As the guarantor of the rights of subjects of managing on a trade secret and its protection the state (item 12) acts. In the item 2 named Positions are underlined, that the information constituting a trade secret, is the property of the subject of managing or is at its possession, using, the disposal in the limits established by the proprietor and acts »[342]. The given norm is represented enough indicative as once again confirms presence of organic communication and functional unity of principles of civil law. Actions on disclosure of the information constituting a trade secret of the subject of managing, are simultaneously infringement as principle of inadmissibility of any intervention investigated by us in private affairs, and other civil-law principle – inviolability of the property (item 2 GK).

In some cases is perfectly in order and on the conditions provided in the law, intervention in private affairs is objectively necessary. Unfortunately, we are forced to establish, that not always such order of introduction of the public interest in sphere of private-law relations is observed, and in the current legislation the principle of inadmissibility of any intervention in private affairs is realised not to the full. The certificate to that is the problem of a parity of the contract and the legislation. In item 2 of item 392 GK «the Contract and the legislation» it is fixed: « If after the conclusion and before contract cancellation the certificate of the legislation establishing obligatory rules for the parties, others is accepted, than what operated at making contract, conditions of the concluded contract should be brought into accord with the legislation if other is not provided by the legislation ». The list of certificates of the legislation, fixed by item 3 GK, is rather considerable, and requirements of each of them are obligatory for contracting parties. It means, that the rule of law of any normative act can limit action as principle of inadmissibility of any intervention in private affairs, and a principle of freedom of the contract. Besides, giving to the retroactive effect legislation is infringement of the constitutional principle of leadership of the law.

By the decision of Plenum of the Higher Economic Court of Byelorussia from December, 16th, 1999 № 16 «About application of norms of the Civil code of Byelorussia, regulating the conclusion, execution and cancellation of contracts» it is provided, that if the parties have not made to the contract the changes connected with acceptance of the certificate of the legislation, establishing obligatory rules for the parties, others, than operating at making contract, the court under the party in interest claim the decision approves necessary changes of the contract (item 15 [281]). Thereby at legislative level the legislation priority over the contract, and both operating at the moment of making contract, and installed after its conclusion is fixed.

For comparison we will notice, that in item 2 of item 422 GK of Russia «the Contract and the law» it is fixed: «If after making contract the law establishing obligatory rules for the parties others is passed, than what operated at making contract, conditions of the concluded contract are valid, except cases when in the law it is established, that its action extends on the relations which have arisen from earlier concluded contracts» [89]. Among the bases for change or a termination of the contract cт. 651 GK Ukraine considers the astipulation if other is not established by the contract or the law [90]. Thus, the Russian and Ukrainian legislator in provided only the law, instead of the legislation cases supposes deviations from the named principles of civil law.

The following follows from the stated. First, preservation of item 2 of item 392 GK of Byelorussia in the specified edition is infringement of some principles of civil law of Byelorussia, bears potential threat of an autonomy of will of participants of the civil circulation and stability of contractual relations. Secondly, similar basic divergences in norms of civil law are an essential obstacle in a way of realisation of plans on creation of the Union of Russia and Belarus. Formation of uniform economic space and adjustment of economic communications become possible only under condition of formation of uniform legal space that assumes the decision of a problem of unification first of all the civil legislation of two countries. Taking into account it in item 20 of the Contract on creation of the Allied state it is established: « The State-participants create uniform economic space. In the Allied state the uniform legislation regulating economic activities, including civil and tax laws »[287] operates unified, and then and. In our opinion, in the course of such unification of position of item 422 GK the Russian Federations can be are taken for a basis.

The principle of inadmissibility of any intervention in private affairs is simultaneously obshchepravovym (constitutional) and branch civil-law principle. In its maintenance find a combination of idea of the private and public character which reasonable parity allows to establish such order of legal relationships according to which all participants of legal relations, are protected from any intervention in their affairs. In private affairs it is necessary to recognise as any intervention any intervention which has been not based on the law. In all cases when the legislator considers necessary to recede from positions of the given principle, it should be guided first of all by legality reasons, and only in the second – expediency.

In the private affairs, fixed by item 2 GK, it is necessary to formulate a principle of inadmissibility of any intervention as follows: «participants of civil matters get and carry out the civil rights the will and in the interests, intervention in private affairs is not supposed, except for cases when such intervention is carried out on the basis of the law in interests of national safety, protection of morals, health of the population, the rights and freedom of other persons» [29].

On an example of action of a principle of inadmissibility of any intervention in private affairs the organic interrelation of principles of the civil law forming system is traced. In norms of real right this principle merges together with a principle of inviolability of the property, in norms of a liability law – with a principle of freedom of the contract. This interrelation should be considered by the legislator at acceptance of the standard legal acts containing norms of civil law. 4.3.5 Principle of conscientiousness and a rationality of participants of civil matters

The essence of civil law consists that it expresses the beginnings of decentralisation, freedom of separate subjects. According to it legal regulation of mutual relations of such subjects under the general rule is under construction not by means of obligatory norms and interdictions, and in the form of a various sort of permissions and the reference points supposing the ample opportunities of a choice of variants of behaviour within the limits of the law. The nature of arising legal relations demands from civil law of adequate forms of regulation: combinations of equality, an autonomy of will, property independence of subjects and necessity of the account the last of the rights and legitimate interests of other participants of the civil circulation. Aspiration of the legislator to find the compromise between «suppression of institutes of the private law, leading to an economy inefficiency, and abusing the private law attracting the big social intensity» [496, with. 168], it is possible to explain inclusion in number of fundamental principles of the civil legislation of a principle of conscientiousness and a rationality of participants of civil matters.

The given principle also urged to provide balance between as much as possible admissible freedom of realisation of private (individually-personal) interests and requirements of observance of public (state-public) interests (maintenance of safety, protection of a life and health of people, preservation of the environment, historical and cultural values, etc.). The rights G.A.Gadzhiev believing, that «conscientiousness as the legal principle carries out a role of the general legal regulator, necessity in which is connected by that at fulfilment of the legal actions directed on achievement of subjective interest, it is necessary to consider such objective reality as interests of the counterpart, no less than public interests» [78, with. 58].

Characterising main principles and tendencies of development civil and a commercial law, E.A.Vasilev and A.S.mosquito to their number fairly carry «appreciable increase in the standard instructions directed on protection of persons, operating honesty, leaning on corresponding will of other person, or honesty getting property, from nesobstvennika. In the field of the conventional law and other areas the concept of a rationality and justice …» [96, c began to play a considerable role. 30].

It is necessary to notice, that a principle of conscientiousness and a rationality of participants of civil matters – the phenomenon not new neither for the civil legislation, nor for the civil-law doctrine. So, item 5 GK BSSR of 1964 it was provided: « At realisation of the rights and discharge of duties citizens and the organisations should observe laws, respect rules of a hostel and moral principles of a society »[87]. The important place was taken away to an investigated principle and in the Soviet civil-law doctrine. O.A.Krasavchikov among principles of the Soviet civil law named principles of freedom of realisation of the civil rights according to their social appointment and conscientiousness in execution of civil duties [411, with. 28]. V.P.Gribanov also carried a conscientiousness principle at realisation of the civil rights to number of branch fundamental principles. Opening the maintenance of the given principle, the scientist believed, that it consists in observance by the participant of a property turn of moral and other not legal social norms [109, with. 226]. And. Sverdlyk also analyzed display of the given beginning in norms of the civil legislation, however has called it «a principle of diligent realisation by subjects of civil law of the rights and duties according to their social appointment in a socialist society» [397, with. 114]. On a new coil of development of the civil legislation research of a principle of conscientiousness gets new sense and value as, under V.A.Vitushko's fair statement, «as well as an equality principle, conscientiousness should be the purpose of social relations and the civil circulation» [166, with. 130].

Fastening in item 2 GK of conscientiousness and a rationality of behaviour of participants of civil matters among fundamental principles of the civil legislation puts a number of the problems connected with the analysis of concept, the legal nature and the maintenance of the given principle before a science of civil law.

According to item 2 GK, conscientiousness and a rationality of participants of civil matters is supposed, as other is not established. Thus, GK has fixed a presumption of conscientiousness and a rationality of behaviour of participants of civil matters among fundamental principles of the civil legislation 1998. Thus item 4. Item 9 GK provides, that «in cases when the legislation puts protection of the civil rights in dependence on, whether these rights honesty and reasonably were carried out, conscientiousness and a rationality of participants of civil matters is supposed» [88]. The analysis of item 2 GK allows to draw a conclusion, that in it the presumption, instead of a principle is fixed. Thus there is a question on, whether the right principle be formulated in a kind prezumptivnoj norms can.

The word "presumption" occurs from Latin «praesumptio» – the assumption. «A presumption – the assumption which is considered true while its correctness is not confuted» [447, with. 1239]. At the heart of a presumption there is a repeatability of vital situations: as something regularly occurs, it is possible to assume, that under similar conditions it has repeated and this time. Such conclusion not authentic, but probable. Hence, presumptions carry presumable, prognostichesky character. Nevertheless they serve as the important additional tool of knowledge of the surrounding validity. Presumptions represent itself as the means helping an establishment of true. In it their scientific and practical value consists.

In the legislation there is no presumption definition, and there are only instructions that it «specialised standard position» (ch. 2 items 29 of the Law of Byelorussia «On standard legal acts of Byelorussia») [264]. It gives us the basis to address to positions of the legal doctrine. In jurisprudence it is accepted to understand the assumption as a presumption, indirectly or directly fixed in the rule of law according to which the certain order of things in the field of public relations admits usual, normal and owing to it, not demanding proving. V.K.Babayev understands as the legal presumption «the assumption of presence or absence of subjects, communications, the phenomena, based on communication between them, and a subject, communications, the phenomena the cash confirmed with vital practice [130, with. 326].

Despite the fact that what and right principles have presumptions much in common, the basic difference between them is obvious. It consists that a presumption – only probable assumption which can be confuted while the right principle represents the incontestable, basic, universal supervising beginning characterising essence and appointment of the right. Principles cannot be broken, is equal as cannot be cancelled or confuted during the permission of legal business. Thus, legal presumptions and right principles – the independent legal phenomena which is inadmissible to mix. Wrongly V.K.Babayev approving, in our opinion, believes, that «the so-called presumption of innocence is not a presumption in the standard sense, and a principle of innocence convicted» [130, with. 326]. If to follow logic of the scientist, the person guilty is recognised cannot be, as such recognition will entail infringement of a principle of the right.

Besides, as follows from sense of item 4 of item 9 GK, conscientiousness as a presumption is intended for those cases when the law puts protection of the civil rights in dependence on, whether these rights reasonably and honesty were carried out. And in this quality conscientiousness extends only on certain legal situations and does not carry universal character for branch. The principle has wider spectrum of action, being addressed not only legislative and to executive powers of the state which should be guided by it in normotvorcheskoj and pravoprimenitelnoj activity, but also all subjects of the civil circulation. From such position the norms of the civil legislation containing addressed participants of civil matters of the requirement of diligent and reasonable behaviour are formulated.

So, in HPK Byelorussia the conscientiousness principle is fixed along with a conscientiousness presumption. «In dispute among themselves the parties are obliged to use honesty laws of procedure belonging to them and to fulfil remedial duties. Each participant of legal proceedings admits diligent economic court, until proved otherwise» (item 18 item 4) [464].

The conscientiousness and rationality principle and courts of justice is similarly treated.

The economic court of the Minsk area in the intermediate order taken out by it on February, 20th, 2006 on affairs № 513-10/5, № 539-10/05 and № 540-10/05 has specified the following. «The operating civil legislation (item 2 GK of Byelorussia) fixes a principle of the supremance of law according to which all participants of civil matters operate within the Constitution of Byelorussia and the certificates of the legislation accepted according to it, and also a principle of conscientiousness and a rationality of participants of civil matters: realisation of the civil rights should not strike at the rights and interests of other persons protected by the law» [469].

According to item 53 of the Constitution of Byelorussia everyone is obliged to respect advantage, the rights, freedom, legitimate interests of other persons [182]. The principle of conscientiousness of participants of civil matters based on this constitutional position penetrates the civil legislation, and equally criminal, labour, family, housing, tax, etc., that does not allow to speak about exclusively branch accessory of the given principle. At the same time it is necessary to recognise, what exactly in norms of the civil legislation is the fundamental principle is shown and claimed most full.

The modern civil legislation differs from former wide use of concepts "conscientiousness" and "rationality". The named concepts contain in all podotrasljah and civil law institutes. About conscientiousness and a rationality there is a speech to item 3 of item 49 GK: « The person who owing to the certificate of the legislation or constituent instruments of the legal person speaks on behalf his name, should operate in interests of the legal person represented to it honesty and reasonably ». In item 3 of item 573 GK the requirement addressed to court contains at the resolution of dispute between the parties about volume of the maintenance which is given or it should be given to the citizen, be guided by a conscientiousness and rationality principle. The norm of item 633 GK provides possibility of clearing of the lessor of the enterprise from a duty of compensation to the tenant of cost of inseparable improvements of the leasehold if at realisation of such improvements the conscientiousness and rationality principle has been broken. Conscientiousness is the important condition for awarding judgement about property true recovery. At the innocent purchaser the proprietor has the right to obtain on demand the property only in cases when it has left its possession besides its will (the item 283 GK), and at the male fide purchaser – in all cases. Conscientiousness of possession of property is a necessary condition for property buying in force priobretatelskoj prescription (item 235 GK).

The great value in GK is taken away also to a rationality principle. The given principle is used at cancellation of the contracts of adhesion concluded on obviously burdensome conditions for the joined party (item 2 of item 398 GK), change and contract cancellation in connection with essential change of circumstances from which the parties proceeded at making contract (item 421 GK), at definition of times of performance of obligations, when they are not provided by the obligation (item 295 item 2, 434, item 436 item 2, item 438 item 4, 440, 445, item 2 of item 447 and other articles GK) [104, with. 32]. Are used GK and other designs including the term "rationality": «the reasonable price of the goods» (item 524, 693 GK), «reasonable expenses» (item 490, 500 GK), «reasonable measures» (item 375, 705, 850 GK), «reasonable business management» (item 69 GK), «reasonable replacement of a place of transfer of the goods» (item 494 GK).

Requirements of diligent and reasonable behaviour, and also others it is moral-legal requirements contain not only in GK, but also in other certificates of the civil legislation. So, according to the Law of Byelorussia «About economic societies» members of bodies of an economic society at realisation of the rights and discharge of duties should operate in interests of this society honesty and reasonably (ch. 6 items 33) [309]. In paragraph 2 of item 3 of item 933 GK zakreplno position according to which «in harm compensation can be given up if harm is caused under the request or with the consent of the victim, and actions prichinitelja do not break moral principles of a society. At realisation of the rights cruel treatment with the animals, contradicting humanity principles (item 2 of item 137 GK) is not supposed. In item 3 and 4 items 186 of the Maritime Code of Byelorussia defining duties of the parties, it is provided:« Towage should be carried out with skill display as that is demanded by circumstance, without interruption and the delays which have been not caused by necessity, and according to principles of good sea practice. The vessel or other construction, capable to carry out swimming which are under control of the captain of other vessel or other construction, capable to carry out swimming, should show also care of safe swimming of a towing caravan »[169]. According to ch. 3 items 2 of the Law of Byelorussia from December, 16th, 2002« About patents for the inventions useful to model, industrial samples »do not admit patentable the inventions contradicting public interests, principles of humanity and morals [265]. The law of Byelorussia from February, 5th, 1993« About trade marks and service marks »contains an absolute interdiction for registration as trade marks of the designations contradicting the public policy, humanity and morals principles (item 4 item 5.3) [305].

Along with a conscientiousness category in the civil legislation the "unconscientiousness" category is used also. In particular, at institute kondiktsii: the unfair superficial purchaser answers «for everyones including for everyones casual, shortage or deterioration superficially got or sberezhennogo property» (item 2 of item 973 GK), it is responsible «the losses caused by the subsequent change of cost of property» (item 1 of item 974 GK), «for the sum of superficial monetary enrichment come under to charge percent for using another's means» (item 2 of item 976 GK). According to item 1029 and 1030 GK the unfair competition is not supposed, and the person who has admitted an unfair competition, is obliged to cease wrongful acts, to publish a refutation of widespread data and the actions constituting the maintenance of an unfair competition, and also to pay the caused damages.

The principle of conscientiousness of participants of civil matters also has a two-vector orientation in the civil legislation. First, it is addressed the private persons acting in a role of participants of civil matters, and in this quality it is egoism "control" in the civil circulation, secondly, – legislative and to executive powers of the state which «should be as much as possible diligent at creation both separate civil-law norms, and all building of civil-law standard regulation» [487, with. 120]. Presence in the civil legislation of a presumption of conscientiousness assumes, that the specified bodies should start with its positions at an estimation of behaviour of all subjects of civil-law relations, including businessmen and tax bearers. As fairly underlined And. Gadzhiev, the state has no right to create legal, tax system, being guided by reasons, that subjects of economic relations – unfair and not legislative citizens [78, with. 54].

It is necessary to notice, that conscientiousness and a rationality in civil law should not be personified with altruism. Participants of civil matters get and carry out the civil rights the will and in the interests (item 2 GK), and also at own discretion (item 8 GK) when it is a question of realisation of enterprise activity its main objective – reception have arrived, that also to the full is in limits of the constitutional co-ordinates.

As it is specified above, the criterion of "kind customs» at legislative level has been fixed for the first time in GGU (§ 242 GGU), then – in the Swiss civil code, and later has been apprehended also by the Japanese legislator. [45, with. 245]. However in one of aforementioned sources of the legislation does not contain exact definition of these concepts. As legal definition of conscientiousness it is possible to result the definition containing in item 1-201 (19) of the Uniform trading code of the USA: conscientiousness means actual honesty in behaviour or the transaction about which there is a speech. This definition is supplemented in item 2-103 (b) with the requirement of "observance of reasonable commercial criteria of fair conducting trading affairs». Criterion of unconscientiousness is presence of intention and conscious default by the guarantor of conditions of the obligation. Gross negligence (culpa lata) takes place in cases when the debtor does not show a measure of care which it is possible to demand from everyone [36, with. 613]. The concept «conscientiousness (good faith)» is widely enough applied and in the international practice [283; 352].

It is necessary to recognise, that the problem of inclusion of moral standards in regulation of commodity-money relations differs exclusive complexity and discrepancy. Criteria of conscientiousness and a rationality, certainly, are the estimated criteria intended for an estimation, mainly, of a psychological aspect of behaviour of participants of civil matters. For this reason many scientists believe, that «use of estimated categories for legislative fastening of the maintenance of principles of the right should be accompanied by their unequivocal legislative decoding» [353, with. 57]. According to an explanatory dictionary the diligent subject is the same, as «fair, carrying out obligations» [186, with. 867]. Reasonable behaviour the behaviour, «justified by the reason, based on the reason, possessing positive sense» [447 admits, with. 867].

So, A.A.Malinovsky considers conscientiousness as «aspiration of the subject to legitimacy of the forthcoming legal behaviour, legal faultlessness of a way of achievement of an object in view, and also refusal of use of blanks and current legislation contradictions to the detriment of the law and order» [211, with. 103]. A.A.Chukreev suggests to fix following definition in the civil legislation: «the conscientiousness Principle is a duty of the participant of civil matters at use of the rights and execution of the duties to care of observance of the rights and legitimate interests of other participants of a property turn». Accordingly «unconscientiousness as an application condition to the subject of the legal sanction is an absence in illegal act or an insufficient embodiment of intention to observe another's rights and legitimate interests» [480, with. 103].

Despite complexity of definition of the given categories, in some standard legal acts definitions of concept of conscientiousness with reference to separate kinds of activity are fixed. So, the Rule of auditor activity «the Purposes and the general principles of audit of the accounting (financial) reporting», approved by the decision of the Ministry of Finance of Byelorussia from October, 26th, 2000 № 114, contains item 8 of the following maintenance: «Conscientiousness consists in compulsion of rendering by the auditor of professional services with due carefulness, attentiveness, efficiency and appropriate use of the abilities. The conscientiousness principle means the assiduous and responsible relation of the auditor to the work, but should not be treated as a faultlessness guarantee in auditor activity» [317].

It is necessary to notice, that from the moment of introduction of criteria of conscientiousness and a rationality in the civil legislation, their treatment caused rough disputes among scientists-jurists. In particular, I.A.Pokrovsk and M.M.Agarkov called in question correctness of the given decision, generating, in their opinion, a situation of uncertainty and danger of a judicial arbitrariness [340, c. 328; 4, with. 28]. Really, similar danger exists. However specificity of a method of civil-law regulation, prevalence of the rules of law having optional character, the wide freedom given to participants of civil matters, predetermines necessity of inclusion for norms GK of a principle of conscientiousness and a rationality. The legislator cannot (and proceeding from requirements of a principle of freedom of the contract and should not) to try to settle all possible situations. And under such circumstances inclusion in norms of the civil legislation of moral standards, in our opinion, smaller harm, than rigid standard regulation. Besides, both the principle, and a conscientiousness presumption are inherent not only civil, but also to the law of procedure by which norms judges in the course of justice realisation on civil and economic affairs are guided.

Some scientists as it is noted above, carry a principle of inadmissibility of abusing to number of principles of civil law the civil rights. In particular, E.G.Komissarova believes, that «the substantial party of the fundamental principle of inadmissibility of abusing the rights is formed by an interdiction for such realisation by the authorised subject of the right which is unfair and unreasonable owing to what it is damnified or there is a real threat of its causing to the rights and interests of other participants of the civil circulation» [174, c. 265].

The category "misuse of right" has been entered into the Soviet civil-law doctrine by V.P.Gribanovym, offering to understand as misuse of right «a special kind of the tort made by the authorised person at realisation of the right belonging to it, connected with use of unlawful concrete forms within the limits of permitted to it the law of the general type of behaviour» [109, with. 228]. However the position about allocation of the given principle as fundamental principle of the civil legislation was divided not by all scientists. M.M.Agarkov considered, that item 1 GK of 1922 fixing this principle, «has been entered into the civil legislation exclusively with a view of struggle against abusing nepom, has been calculated on a transition period and consequently naturally should was lose further the value» [4, with. 41].

In our opinion, allocation of a principle of inadmissibility of abusing by the civil rights is impossible on following bases. First, the named position does not answer all signs which characterise the beginnings which are put forward for a role of principles of civil law, – its action does not carry universal character, and is directed only on concrete participants of the civil circulation – carriers of the subjective civil rights while a conscientiousness and rationality principle has general character. Secondly, sounding of a principle contradicts dozvolitelnoj to an orientation of a method of civil-law regulation. If to formulate a principle of inadmissibility of abusing the rights as branch, that, following this logic, it is necessary to formulate and other principles: inadmissibility of infringement of the rights and legitimate interests of participants of civil matters, inadmissibility of injury, inadmissibility of contractual delinquency, etc. Thirdly, abusing the rights is a special case of unfair behaviour and the certificate of infringement of requirements of a principle of conscientiousness and a rationality of participants of civil matters.

According to item 9 GK «actions of citizens and the legal bodies, carried out exclusively with intention to harm other person, and also misuse of right in other forms» [88] are not supposed. Proceeding from the formulation of given article, misuse of right can be expressed in the form of the express intent (the nuisance – realisation is right exclusively with intention to harm other person) and imprudence (misuse of right in other forms, objectively harming the third parties). «Feature of the nuisance as kind of misuse of right consists that the unique purpose of realisation of the right the authorised person is injury to other person. Misuse of right in other forms of such purpose does not pursue» [177, with. 55].

Still the Roman lawyers paid attention to displays of the nuisance and specified in its bar of claim by lapse of time. However it was a question of the nuisance. Similarly solved this question and composers GGU. § 226 GGU said: « Right realisation is inadmissible, if it can have svoeju the exclusive purpose injury to another »[341, with. 114]. Later codifications have expanded concept of misuse of right, having included in it along with the nuisance also any realisation of the rights opposite to the beginnings of" kind conscience ». Such legislative decision was not supported categorically by I.A.Pokrovsk, believing, that« the civil law is on advantage area of private self-determination, that is area of legal egoism », therefore unlawful conduct of subjects of civil law should be limited only by a nuisance interdiction, but not any other misuse of right [341, with. 119]. The analysis of one of works in L. Djugi testifies that the problem of misuse of right has grown out of development and growth of popularity of social doctrines in the right, put forward ideas about it is boundless the state dominating over an individual, full negation of freedom of subjects of civil law and the subjective civil rights belonging to them [121]. In the Soviet civil-law doctrine misuse of right was treated widely enough and has been erected in a rank of a principle of civil law. Now it is necessary to place accents differently, therefore main principles of civil law are freedom of the contract and inadmissibility of any intervention in private affairs. The recognition of inadmissibility of abusing the rights as a civil law principle is capable to shake the private-law beginnings essentially.

Hence, misuse of right should be considered precisely as tort. Besides, for the purpose of bar of claim by lapse of time of the expanded interpretation of a category "misuse of right", it is necessary to make changes in item 9 GK. In particular, it is necessary to state paragraph 1 of item 1 of specified article in the following edition: «Actions of citizens and the legal bodies, carried out exclusively with intention to harm other person, and also misuse of right in other forms, statutory, is not supposed».

The carried out analysis allows to make a number of conclusions. In norms of civil law the principle of conscientiousness of participants of civil matters is realised as constitutional (obshchepravovoj) a principle based on positions of item 53 of the Constitution of Byelorussia: «Everyone is obliged to respect advantage, the rights, freedom, legitimate interests of other persons». However in item 2 GK the principle, and a presumption is fixed not, that, in our opinion, is not correct. The principle of conscientiousness of participants of civil matters should be fixed in the civil legislation not as a presumption, and along with it. The concept of a principle requires updating. And a rationality of participants of civil matters it is offered to fill the principle of conscientiousness fixed in item 2 GK with the following maintenance: « At realisation of the rights and discharge of duties participants of civil matters should operate honesty and reasonably, should not strike at the rights and interests of other persons protected by the law ». Absence of possibility at legislative level to make definition of terms« conscientiousness "and" a rationality »testifies to necessity doktrinalnoj workings out of the specified concepts with reference to each kind of civil-law relations [27; 28; 39].

4.3.6 Principle of maintenance of restoration of the broken rights, their judicial protection

According to the Constitution of Byelorussia to everyone protection of its rights and freedom competent, independent and impartial court in the terms defined by the law (item 60 [185]) is guaranteed. «Citizens and legal bodies have the right to carry out protection of the civil rights in court (economic court) and the different ways provided by the legislation, and also self-defence of the civil rights with observance of the limits defined according to civil-law norms» (item 2 GK) [88]. Thus, the civil-law principle is based on Organic law positions, however with reference to civil law sphere its maintenance is specified and added.

The specified principle fixed in item 2 GK is called as a principle of unobstructed realisation of the civil rights, maintenance of restoration of the broken rights, their judicial protection. The logic of the legislator who has textually consolidated two various on orientations of the beginning of the civil legislation is not clear, each of which has the maintenance and realisation in norms of the civil legislation, and accompanied the comment only one of them. Proceeding from it, in the civil literature the principle of unobstructed realisation of the civil rights and a principle of maintenance of restoration of the broken rights, their judicial protection are considered separately [104, with. 29; 106, with. 54]. As us it was offered to consolidate a principle of freedom of the contract with a principle of unobstructed realisation of the civil rights, within the limits of the present subsection it will be a question only of a principle of maintenance of restoration of the broken rights, their judicial protection.

V.S.Kamenkov fairly believes, that «in all current legislation of Belarus regulating the relations between participants economic, including enterprise, of activity, possibility of protection of the broken rights admits the legislator to one of key principles … Maintenance of protection of the broken or challenged economic rights of subjects of managing promotes stability of the civil circulation, is a reliable guarantee of normal realisation of enterprise and other economic activities» [155, c. 14].

For a lawful state creation of the debugged mechanism of restoration of the broken right which necessary element is presence of real possibilities on suppression of infringement of the rights, to their restoration and indemnification, the rights of losses caused by infringement is characteristic. For this reason GK gives to participants of civil matters a wide spectrum of ways of protection of the civil rights. In particular, protection of the civil rights is carried out by: right recognitions; restoration of the position existing before breach of law; suppressions of the actions outraging or creating threat of its infringement; recognitions of the voidable contract void and applications of consequences of its invalidity, finding of fact of negligibility of the transaction and application of consequences of its invalidity; annulments of the certificate of the state body or body of local management and self-management; right self-defences; award to discharge of duty in nature; The indemnification; penalties; indemnifications of moral harm; the terminations or legal relation changes; non-use by court of the certificate of the state body contradicting the legislation or body of local management and self-management; the different ways provided by the legislation (item 11 GK). It is important, that the given list is not settling. In case of infringement of the civil rights can be used and the different ways provided by the legislation. Such legislative decision «predetermines increase of a role of the higher courts of justice in an establishment of practice of application of corresponding statutes» [63, with. 78]. The major value in this connection is got by decisions of Plenums of the Higher Economic and the Supreme Court of Byelorussia in which explanations of civil-law norms applied in practice contain.

According to the Russian jurists, «the principle of restoration and judicial protection of the broken rights means, on the one hand, presence of strict property responsibility of subjects of civil law at infringement of the accepted obligations, especially in sphere of enterprise activity, and on the other hand, possibilities to protect the civil rights in court …» [97, with. 30]. Judicial protection is the basic form of protection of the rights of participants of civil matters, it «is appreciated above other form of protection of the rights its democratic character, publicity, and also for the greatest guarantees from errors";"maintenance of the rights of citizens on judicial protection, is an objective criterion on which it is possible to judge, the given state is legal or it only is called as that» [435, with. 168]. « Within the limits of proceeding and on the basis of a judgement the state compulsorily eliminates obstacles to realisation of subjective civil law or the broken civil rights at the expense of the offender »[103 are compulsorily restored, with. 24]. Protection of the broken or challenged civil rights is carried out by court, economic court, the arbitration court according to the jurisdiction established by the remedial legislation, and in the cases provided by the legislation – according to the contract (item 10 GK).

Analyzing principles of civil law, E.A.Sukhanov fairly expands the maintenance of a principle of maintenance of restoration of the broken rights, their judicial protection, calling it «with a principle of all-round protection of the civil rights, including possibility of restoration of the broken rights and their maintenance independent of influence of the parties of judicial protection» [106, with. 54]. Partly it is necessary to agree With this opinion, as abundantly clear, that the investigated principle characterises first of all guarding function of civil-law regulation. At the same time it is necessary to notice, that all-round protection of the civil rights is provided with norms of the Constitution of Byelorussia, being norms of direct action. According to Organic law item 21 «… maintenance of the rights and freedom of citizens of Byelorussia is the state prime target». As to the accent made to scientists on independence vessels from influence of the parties it will completely be adjusted with item positions 60 Constitutions of Byelorussia. Proceeding from it, similar expansion of concept of a civil-law principle hardly expediently.

At the same time at disclosing of concept of a principle of maintenance of restoration of the broken rights, their judicial protection within the limits of item 2 GK it is necessary to emphasise the requirement of restoration of the broken rights as subjects of civil law are free to select independently a way of protection within statutory, in our opinion. Taking into account specified the given principle should be formulated as follows: «a principle of maintenance of restoration of the broken rights, their judicial protection (the broken rights come under to restoration. Citizens and legal bodies have the right to carry out protection of the civil rights in court (economic court) and the different ways provided by the legislation)».

The majority of scientists-jurists support a position of the legislator about inclusion of the given principle in norms GK. However E.G.Komissarova believes, that inclusion in sphere of the civil legislation of the legal principle having bolshee the relation to civil procedure, than to civil law, is inexpedient. According to this author, «at all importance of the right to judicial protection of the broken rights, is not the basic position characterising sphere of civil-law regulation, and obshchepravovoj a principle acting as a guarantee of generality of judicial protection of any rights and freedom in the form of the general permission». E.G. Komissarova defends a position according to which the norm about judicial protection «for the civil legislation is private, focusing subjects on certain forms of protection, and designates, that the system of civil (substantive law) proceeds in the civil and arbitration law of procedure, and material and remedial branches constitute indissoluble system. It means, that in the right material it is impossible to exclude sending to the right remedial. However does not follow these norms having an adjacent branch accessory, to allocate among fundamental principles of the civil legislation» [174, c. 174].

It is impossible to agree with the given position on two principal causes. First, E.G.Komissarova narrows the maintenance of the named fundamental principle only to a principle of judicial protection. Meanwhile, proceeding from the principle name, its maintenance is much wider. In the civil legislation in norms of various legal institutions the numerous statutes directed on maintenance of restoration of the broken rights are found out. As an example we will result only some positions GK: the harm caused to the person or property of the citizen, and also the harm caused to property of the legal person, comes under to compensation in full the person who has harmed (item 1 of item 933 GK); the person who without established by the legislation or the transaction of the bases has got or was saved up by property (purchaser) at the expense of other person (victim), is obliged to return the last superficially got or sberezhennoe property (unjust enrichment) (item 1 of item 971 GK); The debtor is obliged to pay to the creditor the damages caused by default or inadequate execution of the obligation (item 1 of item 363 GK); the citizen has the right to demand on court of a refutation discrediting its honour, advantage or business reputation of data if spread such informations will not prove, that they correspond to the validity (item 1 of item 153 GK); the harm caused to the citizen as a result of wrongful use of his name, comes under to compensation according to the law (item 5 of item 18 GK).

Secondly, as it has been noted above, sistemnost civil law principles it is not necessary to understand only as association of the civil-law beginnings within the limits of GK. Sistemnost in this case means also that civil law principles along with principles of the right remedial, and also other branches of law form the uniform legal system which header purpose is realisation of positions of the Constitution of Byelorussia. It is impossible to delimit sphere of action of one principle from sphere of action of another, and also completely to delimit one branch of law from another. As well as other principles of the civil law, an investigated principle it is integrally connected not only with other civil-law principles, but also with principles of other legal branches which also are based on Constitution positions.

J.S.Gambarov's rights, that «norms of civil procedure matter sanctions for norms of civil law which would be considerably weakened, and are often deprived also any validity if near to them there were no rules of procedure». The similar opinion is stated also to A.F.Cherdantsevym in which opinion «the instructions in the material law on remedial protection frames are justified – when the law grants the right, it gives forms and means of its protection. Functions of remedial branches in the legal system are original: they are directed first of all on regulation of the public relations developing at enforcement of the rights and duties, the material branches established by norms. Process – is the form, called to transform the right and duties of subjects of material legal relation in a reality [470, with. 14]. Presence of rules of procedure in the civil legislation "strengthens" action of the civil-law norms directed on protection of the rights and legitimate interests of subjects of civil law [466, c. 10].

Analyzing tendencies of development of the Belarus right in modern conditions, V.G.Tihinja as one of them names «increase protsessualnosti in right regulation», expressed, in particular, in «increase in number of rules of procedure in material-legal acts» [435, with. 148]. Owing to existing close are interconnected legal branches and for the purpose of increase of efficiency of their action in material and remedial branches there are institutes and the norms which are places of their closest rapprochement as the law of procedure acts simultaneously and as a legal regulator of activity of court and as most an effective remedy of protection of private interests. As such things in common the principle investigated by us acts.

The principle of maintenance of restoration of the broken rights, their judicial protection, as well as analysed by us earlier, has certain restrictions. First of all, it is limited to norms of institute of limitation of actions which is understood as term for right protection under the claim of the person which right it is broken (item 196 GK). The institute of limitation of actions facilitates an establishment objective truth vessels on business, promotes removal of correct decisions, promotes civil circulation stabilisation, uncertainty elimination in relations of its participants. It is necessary to recognise, that «absence of reasonable time restrictions for compulsory protection of the civil rights would strike at the rights protected by the law and interests of respondents and the third parties which not always can consider in advance necessity of collecting and preservation of corresponding proofs» [112]. However, in our opinion, there are bases for lengthening of the aggregate term of limitation of actions under the legislation of Byelorussia. In this connection it is necessary to take into consideration G.F.Shershenevicha's words that «in few civilised society periods of limitation are ordinary rather short, in process of development of a society they are extended», and drawn a conclusion, that «there where the doubt is impossible, where, despite any time, the valid right can be easily proved, there the prescription has no application» [483, with. 134].

Summing up the research spent within the limits of the present chapter, it is possible to draw following conclusions.

The system of principles of civil law is the complete, structurally ordered unity of the principles which are in interaction among themselves, and also with principles of other branches of law and civil-law relations providing effective legal regulation. Thus sistemoobrazujushchim criterion of construction of system of principles of civil law is the civil law subject.

For the purpose of formation of complete and effectively operating system of principles of civil law in the conditions of a lawful state it is offered:

– To correct the maintenance of principles of civil law taking into account the constitutional positions for the purpose of their uniform interpretation. It assumes not duplication of positions of the Constitution, and their concrete definition taking into account specificity of the public relations regulated by civil law. At an establishment of principles and norms of the civil legislation extensive interpretation of the constitutional positions is inadmissible;

– To refuse practice of fastening separate constitutional (obshchepravovyh) principles in norms of the civil legislation, having excluded from item 2 GK principles of the supremance of law and a social orientation of regulation of economic activities. Such necessity is dictated by character of the given kind of legal principles which are in structural communication not with any one, and with all system of rules of law;

– To exclude from item 2 GK a principle of a priority of public interests as contradicting item 23 of the Constitution of Byelorussia fixing a principle of harmony (proportionality) and equation at restriction of rights.

– In quality sistemoobrazujushchego criterion of construction of system of principles of civil law to consider a legal regulation subject. It is necessary to include in system of principles of civil law only those principles which are in organic communication with a subject of civil-law regulation, correspond to a branch format of civil law, are in internal unity with each other.

Part 2 items 2 GK of Byelorussia to be reworded as follows:

«Main principles on which the civil legislation is based:

1) a principle of legal equality of participants of civil matters (subjects of civil law participate in civil relations on equal, are equal before the law, cannot enjoy advantages and the privileges contradicting the law, and have the right without any discrimination to equal protection of the rights and legitimate interests);

2) a principle of inviolability of the property (property compulsory purchase is supposed only on motives of public necessity at observance of conditions and an order, defined by the law, with timely and full compensation of cost of aloof property, the confiscation is supposed only under the court decision);

3) a principle of freedom of the contract (participants of civil matters get and carry out the civil rights the will and in the interests, they are free in making contract, an establishment of the rights and duties on the basis of the contract and in definition of any treaty provisions not contradicting the legislation. Compulsion to making contract or change of its conditions is not supposed, except for cases when such duty is statutory or voluntary accepted obligation);

4) a principle of inadmissibility of any intervention in private affairs (intervention in private affairs is not supposed, except for cases when such intervention is carried out on the basis of the law in interests of national safety, public order, protection of morals, health of the population, the rights and freedom of other persons);

5) a principle of conscientiousness and a rationality of participants of civil matters (at realisation of the rights and discharge of duties participants of civil matters should not strike at the rights and interests of other persons protected by the law);

6) a principle of maintenance of restoration of the broken rights, their judicial protection (the broken rights come under to restoration. Citizens and legal bodies have the right to carry out protection of the civil rights in court (economic court) and the different ways provided by the legislation.

The civil legislation is based also on other civil-law principles following from the maintenance and sense of civil-law norms »[7–А; 14; 19; 21; 26; 27; 28; 29; 30; 32; 34; 35; 37; 39; 40; 44; 45; 49; 53].

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A source: BONDARENKO NATALIA LEONIDOVNA. PRINCIPLES of CIVIL LAW of REPUBLIC Belarus, THEIR REALIZATION In NORMOTVORCHESKY And PRAVOPRIMENITELNOJ ACTIVITY. The dissertation on scientific degree competition Doctors of juridical science. Minsk, 2007. 2007

More on topic 4.3 Basic branch principles of civil law: a problem of element structure:

  1. 2.1 Basic stages of formation of principles of civil law
  2. 3.3 Basic functions of principles of civil law
  3. §2. A parity of principles of civil law and liability law principles
  4. THE CHAPTER THE SECOND THE PRINCIPLES REFLECTED BY THE CONCEPT OF HARMONIZATION OF THE CONVENTIONAL LAW OF THE LATIN AMERICAN COUNTRIES, AND THEIR PARITY WITH INSTITUTSIONALNYMI PRINCIPLES OF OPERATING CIVIL LAW OF BRAZIL
  5. § 3. A parity of concepts «civil-law principles» and «principles of realisation of the rights and discharge of duties»
  6. TRANSFORMATION OF BRANCH STRUCTURE OF ECONOMY OF REGION AND THE PROBLEM OF MAINTENANCE OF ITS DEVELOPMENT
  7. 5.4 Realization of principles of civil law in the course of justice realisation on civil and economic affairs
  8. Section III. PRINCIPLES AS the MAJOR ELEMENT of the MECHANISM of REALIZATION of the CIVIL RIGHTS And DISCHARGE OF DUTIES
  9. § 2. Action of principles of the civil law of procedure in affairs about entering of corrections or changes in civil registration
  10. § 1. Concept of the conventional principles and norms of international law and its value for civil law
  11. 5.1 Mechanism of realisation of principles of civil law
  12. 4.1 Concepts of system of principles of civil law and search sistemoobrazujushchego criterion
  13. 3.2 Place of principles in system of civil law and system of the civil legislation
  14. 3.1 Principles of civil law: concept and intrinsic signs
  15. the Chapter II. Civil matter structure on obligatory state insurance of civil servants of military and law-enforcement services
  16. 2.2 Principles of civil law in the conditions of a social lawful state