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§ 3. An optionality principle



The optionality principle refracts in a number of norms of civil law and unanimously admits jurists as branch [670]. It is necessary to pay attention that in different displays the specified beginning exists in many branches of law.
So, have considerably filled up the doctrine of optionality of research in sphere criminal and administrative law [671], administrative process.
One of the first have entered concept "optionality" into legal lexicon Vettsel [672] and Endemann [673]. Hajntse [674] and Kanshtejn [675] have even more approved this term in a science about the right, having opened its essence as idea of the order of the parties the rights in civil procedure.
This position, certainly, in high degree models process of realisation of the rights and discharge of duties. As in realisation of the rights the main role is played by will of financially interested persons, that is subjects of law sources of this principle are put in pawn in a being of civil relations — in the right of a personal property and an autonomy of will of participants of relations. In civil law in comparison with other branches of law the role of the given beginning cannot be overestimated, as in sphere of private law the state does not put a problem strictly to define the rights and duties of subjects. Thus, character of civil-law relations is shown in necessity «an individual regulation in personally certain relations in addition to the maintenance of relations which are defined by normative acts» [676].
The similar understanding of a principle of optionality is prepared by a number of researches. So, M.A.Gurvich, I.A.Zheruolis notice, that the named beginning is predetermined by independent character of the civil rights [677]. It is shown in prevalence of provisional rules in civil law, that, in turn, allows participants of adjustable relations to organise the activity independently. In sphere of regulation of relations the named principle allows to meet legislative lacks, for example, the agreement of the parties [678].
According to the named principle subjects carry out the rights the will and in the interest (in some cases and in interests of the third parties). This circumstance means possibility of the subject to carry out as a whole the legal capacity at own discretion, to get rights or not to get, choose a concrete way of their acquisition, to regulate at own discretion in the established frameworks the legal relation maintenance, to dispose of the cash right, to resort or not to resort to measures of protection of the broken right [679].
Often the conflict of interests of participants of legal relations is generated by possibility of a choice of variants of realisation of competences. So, the assistant to the public prosecutor of the Perm edge has addressed in court with the statement for a recognition contradicting the federal legislation and invalid paragraph 13 positions, 15, 55 and 58 items 5 of a technique of definition uniform in territory of the Perm area of a procedure of payments of a rent lessors at tenancy of uninhabited premises (buildings) of a state ownership of the Perm area which is recommended for use by administrations of areas and cities of the Perm area at tenancy of the specified property of a municipal pattern of ownership. From paragraphs challenged by the public prosecutor 13, 15, 55 and 58 items 5 of a technique of definition uniform in territory of the Perm area of a procedure of payments of a rent lessors at tenancy of uninhabited premises (buildings) of a state ownership of the Perm area follow, that the factor of type of activity is defined depending on the purpose of use of leased premises.
The size of the given factor is established in size: 2 — for the tenants who are engaged in manufacture and realisation of medical products in drugstores, booths (except the state and municipal enterprises); 1,8 — for tenants of premises for the purpose of optics placing (except the state and municipal enterprises); 1 — for tenants of premises under circuses, theatres of not state pattern of ownership, and also under the state and municipal unitary enterprises, including affiliated, for activity conducting on the basic profile according to the Charter.
In a substantiation of the statement the public prosecutor has specified, that an establishment of factors of type of activity for tenants of the premises (buildings) which are in territory of the Perm area, being a state ownership of the Perm area, depending on a pattern of ownership of the tenant, is illegal. According to the current legislation it admits and protected similarly private, state, municipal and other patterns of ownership. Participants of civil matters are equal before each other. There should be an equal establishment of a rent for all managing subjects irrespective of presence of the state or municipal pattern of ownership. The court has given up in satisfaction of the statement of the assistant to the public prosecutor of the Perm edge, referring on item item 1 124 GK the Russian Federation, according to which subject of the Russian Federation, in the name of its executive powers of the government as the independent participant of civil matters acts in the relations regulated by the civil legislation, on the equal beginnings with other participants of these relations — citizens and legal bodies. Therefore according to item 2 of item 1 GK the Russian Federation it has the right to carry out the civil rights the will and in the interest, is free in an establishment of the rights and duties on the basis of the contract and in definition of any treaty provisions not contradicting the legislation, including as has fairly specified court, rent contracts of the uninhabited premises (buildings) belonging to it which are in its territory [680].
Thus, the quintessence of optionality consists available at subjects of variants of their lawful behaviour or actions.
For example, in the civil legislation consequences of sale to the consumer of the goods of inadequate quality are regulated. Except the indemnification, the buyer has the right to demand at the choice: gratuitous elimination of lacks of the goods or the reimbursement for their correction by the consumer or the third party; proportional reduction of a purchase price; replacements by the goods of similar mark (model, the article); replacements by the same goods of other mark (model, the article) with corresponding recalculation of a purchase price; cancellation of the contract of purchase (item 18 GK the Russian Federation). In addition to offered one more variant (one of the most universal) is the Law of the Russian Federation from 7февраля 1992 №2300-1 «About protection of the rights of consumers» to behaviour variants: possibility to refuse protection of the broken rights.
Thus, optionality appears as characteristic line of a method of civil-law regulation [681]. Experts noticed, that optionality is shown as at a stage of formation of civil relations (a choice of the counterpart, definition of object of legal relations etc.), and in realisation freedom by cash rights (possibility of investment of the rights and duties, the order them to define the moment of occurrence, change and prekrashenija legal relations) [682].
In our opinion, it is possible to reveal some directions of action of this principle in the mechanism of realisation of the rights and discharges of duties.
First, optionality provides dynamics of process, connecting one stage of realisation with another. Driving stimulus are in this case legitimate interests of legal owners.
Secondly, maintenance of ample opportunities of a parity of the rights and duties.
Thirdly, maintenance of possibilities of a choice of ways and implementers of the rights and discharge of duties.
It is necessary at the same time be reserved, that optionality in some cases has relative character [683], it depends on a configuration of the rights and duties in concrete legal relations [684]. So, if the right of the subject simultaneously is also its duty the legal owner in realisation of this right is obliged to be guided not only the interest and will, but also law command (item 448 item 5, item 3, 4 items 165 GK the Russian Federation, etc.). For example, each of the parties in the contract which form provides the state registration, has the right and is simultaneously obliged to carry out the state registration of the transaction concerning this or that real estate (item 3, 4 items 165).
Besides, will of the subject limits of realisation of the rights, kodifitsirovannye in item 10 GK limit also the Russian Federation and defined by other civil-law principles. So, the law provides the termination of the property right concerning thriftlessly contained cultural values, premises which are compulsorily redeemed at the proprietor (item 240, 293 GK the Russian Federation).
Besides other the optionality border is outlined in a sense and a principle of preservation of the rights in default citizens and legal bodies from these rights.
And it is necessary to consider, that in sphere of discharge of duties optionality has the expressed restrictions in comparison with process of realisation of the rights. These restrictions are connected with definition of times of performance, or with conditions about a way of discharge of duty (execution in nature or a money's worth). As original border of optionality the restrictions connected with protection of the state interests act. That is, for example, the mode of the obligatory conclusion of contracts of delivery in interests of the state and a society [685].
Fourthly, optionality predetermines potential of the interested person to achieve protection by the ways specified in the legislation, or to refuse that at own discretion.
Fifthly, optionality forms a basis of efficiency of process of realisation of the civil rights and discharges of duties. So, possibility of different variants of behaviour of the authorised helps to overcome collision of legitimate interests of the parties, complicating process of realisation of the rights and discharge of duties.
Obvious communication between degree of optionality and efficiency of realisation of the rights and discharges of duties is traced. Z.Karbone fairly noticed, that efficiency of the law which provides action freedom, consists not in operation, and in freedom, that is in possibility to choose an admissible variant of action. Such law always possesses invisible efficiency thanks to the psychological influence on people [686]. Thus, optionality carries not only subjective character (psychological influence), but also is put objectively in pawn in rules of law.
Sixthly, optionality allows to harmonise considerably private and public interests [687].
Differently, the optionality principle in bolshej degrees appears as a constructive, organizational element of the mechanism of realisation of the civil rights and discharge of duties and carries out a role of a regulator of ways and means pravoosushchestvlenija.

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A source: Vavilin Evgenie Valerevich. the MECHANISM of REALIZATION of the CIVIL RIGHTS And DISCHARGE OF DUTIES. The dissertation on competition of a scientific degree of the doctor of juridical science. Moscow - 2009. 2009

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