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§ 1. Standard fastening of definition of concepts "interest" and"affilirovannost"

Starting search of a place of fastening of categories "interest" and "affilirovannost" in the current legislation, it is necessary to notice at once, that the given problem will cause some difficulties as "interest", besides practically-applied (institutsionalnoj) functions has deep theoretical "roots" in sphere of direct contact (soobrazovanija) with civil law principles.

We consider, that for practical application of a category "interest" it is necessary to transform and fix in GK the Russian Federation its definition made by us. Transformation will be expressed in abstraction of "interest" from concrete article GK the Russian Federation where it is directly used. After all accepted in our legal system pandektnaja the form of a structure of standard legal acts causes construction of articles from the basic idea, principles, definitions to concrete norms (behaviour rules).

Because in GK the Russian Federation is absent article containing terms and the concepts used in it [232], at definition of a place of fastening of a definition of a category "interest" it is necessary to start with its functional mission.

In essence, interest is a condition of the concrete person in the form of coherence of the subject of law with the legal object. However the present
Definition is doktrinalnym, and cannot in the given kind be included in text GK the Russian Federation.

In a kind of that interest can be formed, shown and is carried out as at physical persons (them personally), and at legal bodies (by means of their bodies), "interest" definition should be in section GK the Russian Federation which yet is not graduating persons on physical and legal.

In something the subject of law, i.e. the person capable mentally can be interested only to form for itself and to reveal for others the interest, as personally (physical person), and means an ohm of the bodies (legal body). That is, in the generalised kind interest is a condition of the subject with which occurrence of the subjective civil rights is connected, their realisation and protection [233].

Analyzing told, it is possible to draw a conclusion that the probable chapter GK the Russian Federation containing a determinant of "interest", can be chapter 2 «Occurrence of the civil rights and duties, realisation and protection of the civil rights».

In our opinion, in separate article of chapter 2 GK the Russian Federation it is necessary to place norm-definition according to which interest of the person is understood as such condition which causes occurrence at it the civil rights, and also realisation and protection by this person of the rights.

The made definition is formulated by abstract image in a kind of that GK the Russian Federation uses the term "interest" in various contexts, each time giving to it different semantic loading. Nevertheless, the given fact in any way does not discredit the jural significance of the term "interest".

The author understands, that introduction of the given norm will generate one more, so-called, "rubber" norm in the civil legislation, however,
As has fairly noted A.V.Zavadsky: «the Part of the objective right should be precisely defined (is fixed), it represents as though skeleton which will give to all body ability to keep, other part should remain so uncertain that it could be constantly adapted for all separate moments.

It represents soft parts of the right which give it necessary elasticity» [234]. The category "interest" just also will be soobrazovyvat its concrete legislative use with defined (the concrete standard legal act) legal effects.

The place of norm regulating relations "affilirovannosti" was a subject numerous doktrinalnyh, political and legal discussions. In this connection even the bill «About affiliated persons» (the draught federal law № 99089445-2 «About affiliated persons» (the edition accepted by the State Duma in the first reading of 11.02.2000 [235])) which was laconic enough has been developed: it consisted of five articles, and the volume most part was constituted by transfer of signs affilirovannosti. As a subject of regulation the bill specified: « The concept of affiliated persons establishes duties of legal bodies and individual businessmen under the account and granting of the information on the affiliated persons, requirements to transactions with affiliated persons or with their participation, defines the rights of participants (founders) of legal bodies to reception of the information on affiliated persons of legal bodies, participants which (founders) they are ». As the most general definition of affiliated persons the project specified the following:« Affiliated persons - physical and (or) the legal bodies who are in certain present article of interrelation with other
The person »[236]. However the Bill and remained the State Duma at a stage of the second reading of its consideration. JU.P.Oryol and E.A.Pavlodsky name a cause of a failure from acceptance of the corresponding law - complexity of definition"affiliated person"[237].

For acceptance of the separate law regulating the relations affilirovannosti, A.V.Gabov so it specifies acts: «to pass the separate law on affiliated persons - this variant, probably, there would be the most correct, after all if is planned to enter positions about affilirovannosti as the general it could be made in the special law» [238].

Let's dare to disagree with such reasonings for acceptance of the whole law for the sake of settlement of one institute is not represented "profitable". Most likely, such conclusions are born by branch uncertainty "affilirovannosti", however it in any way does not cause acceptance of the separate law. Reasonable it would be unequivocal to be defined with the concept maintenance "affilirovannost". And the decision has followed.

Now, unlike a category "interest", a category "affilirovannost" already is present in GK the Russian Federation [239] so its maintenance is defined item 53.2 under the name "Affilirovannost": «In cases if the present code or other law puts approach of legal effects in dependence on presence between persons of relations of coherence (affilirovannosti), presence or absence of such relations
It is defined according to the law ». It is necessary to notice, that given article GK the Russian Federation is enough new so it has been entered in GK the Russian Federation by the Federal act from 05.05.2015 [240]. Norm introduction about"affilirovannosti"in GK the Russian Federation was apprehended not unequivocally

It is remarkable, that article "Affilirovannost" is in chapter 4 "Legal bodies". With what we categorically do not agree. As, in - the first, physical persons - businessmen (individual businessmen) can be affiliated persons not only legal, but also. The given position proves to be true item 4 the Law of RSFSR «the Competition and restriction of monopolistically activity in the commodity markets». In - the second, the physical persons who are not carrying out enterprise activity that proves to be true judiciary practice (a vivid example - the Decision of Presidium YOU the Russian Federation from 22.03.2012 № 14613/11) can be affiliated persons. Thirdly, from the maintenance of item 53.2 GK the Russian Federation as does not follow, that it regulates relations only between legal bodies or the persons who are carrying out enterprise activity. Moreover, given article sends pravoprimenitelja to vast number of the laws business relations (for example, the Federal act from 30.12.2006 № 275 «About an order of formation and use of the target capital of the noncommercial organisation» [241]) can and not to be which subject of regulation.

In connection with the resulted argument it is necessary, in our opinion, the norm regulating the relations "affilirovannosti", to transfer from chapter 4 "Legal bodies" to chapter 2 «Occurrence of the civil rights and duties, realisation and protection of the civil rights» GK the Russian Federation. Such transformation will be methodologically true owing to the following:
1) in chapter 2 GK the Russian Federation is not present obvious gradation of realisation of the civil rights depending on division of persons on physical and legal; 2) when it is put approach of legal effects in dependence on something (in data cases from coherence relations ("affilirovannosti") between persons) is looks in a role of conditions of realisation of the civil rights; and any conditions of realisation something are certain restrictions which can be considered as abstract limits (realisation encumbrance), and it, in turn, already destiny of regulation of chapter 2 GK the Russian Federation. Moreover, article carrying over "affilirovannost" in chapter 2 GK the Russian Federation will be looked organically and consequently, that condition ascertaining affilirovannosti between certain persons will influence by all means occurrence at them the civil rights, duties, and also realisation and protection by these persons of the rights.

The maintenance of a legislative definition of a category

"affilirovannost" looks as follows: «In cases if the present code or other law puts approach of legal effects in dependence on presence between persons of relations of coherence (affilirovannosti), presence or absence of such relations is defined according to the law». We already criticised the given definition in paragraph 2 of chapter 1 of the present work. It is thought, "coherence" relations as equal to relations "affilirovannosti", between persons by all means it is necessary to transform. Particularly: a "coherence" word to replace with a "coordination" word, or the term of "mutual coordination of economic activities». Most likely, the given changes will express more capaciously essence of a condition "affilirovannosti" between persons. Besides, resulted possible changes, in particular replacement by the term «mutual coordination», will remove a debatable question about possible vzaimoaffilirovannosti between persons.

The legal design, besides the intrinsic basis, should have the substantive provisions concretising and showing it
The maintenance in the standard right certificate including the given legal design. For without a corresponding regulation the legal design (category) is assigned to diverse interpretation both from the doctrine, and from the party pravoprimenenija.

It is known, that essence and the maintenance not identical concepts. So, essence of concept probably to enclose in its definition. The maintenance by all means demands a certain concrete definition. The definition as Gegel specifies, reduces a subject to its concept, rejecting its external lines which are necessary for its existence [242].

At inclusion of a legal category in the law text its continuation expressed in parts, points, subparagraphs of article of the law containing the given category should be found out.

We consider, that

Legislative definition of a category

"Interest"

Can look as follows: «under

Interest of the person

Such condition which causes occurrence at it the civil rights, duties, and also realisation and protection by this person of the rights »is understood. Now we will try to reveal a concrete definition and legal effects of the deduced definition, i.e. To define its maintenance.

So, by us it has been specified, that the term "interest" is used in GK the Russian Federation in various interpretation. Hence, there, where the legislator has directly fixed interest of the person, it should prezjumirovatsja (be assumed). In other cases the person has the right to prove its presence, or absence. To the person who has not proved the interest, refuses in the claim, and also measures, statutory are applied others. At proving of presence or absence of "interest" the person should use those explanations which have been given by us concerning intrinsic properties of a category "interest".

The court under the initiative can define presence or absence of interest of the person in concrete business in a case of absence of legislatively established presumption of interest of the person.

Ascertaining of a condition of interest of the person influences (character of such influence is defined by the purpose of use of "interest" in the concrete rule of law) on occurrence at it the civil rights, duties, and also realisation and protection of the rights by it.

Let's make an attempt to generate corresponding article which can be included in GK the Russian Federation.

Article 10.1"Interest of persons».

1. Interest of the person is understood as such condition which causes occurrence at it the civil rights, duties, and also their realisation and protection if other does not follow from the law, other legal acts or a legal relation being.

2. Interest presence admits cases:

1) when it is directly defined by the present Code or other legal act;

2) when the person has proved the interest in concrete business.

3. By court can be recognised, under own initiative or under the statement of the third parties, absent a condition of interest of the person.

4. Absence of interest of the person in concrete business which application it is declared by the contestant, is the basis to removal by court of the judgement of nonsuit, and also application of other measures, statutory.

Article of such maintenance quite could be a subject of consideration for its inclusion in GK the Russian Federation.

The category "affilirovannost" though has been integrated in GK the Russian Federation, however due development in it and has not received. It is expressed in its so abstract definition - «in cases if the present code or other law puts approach of legal effects in dependence on presence
Between persons of relations of coherence (affilirovannosti), presence or absence of such relations is defined according to the law », that it in general ceases to be that, and passes in the category of empty definitions. Such state of affairs, certainly, demands changes.

If we have entered in GK the Russian Federation the norm regulating the relations affilirovannosti of persons which directly influence on sdelkosposobnost these persons regulation "affilirovannosti" in head GK is necessary to develop the Russian Federation devoted to transactions in general. As GK the Russian Federation does not provide such procedures as transaction approval. As a subject of regulation GK the Russian Federations became corporate relations, that, as consequence of it, it is necessary to provide in it an order of approval of the transactions demanding approval which arise in corporate legal relations. Meanwhile in the doctrine absence of unification of regulation extraordinary (transactions of demanding approval) transactions in the special legislation [243] was repeatedly underlined.

So, "affilirovannost" by all means should find the reflexion in chapter 9 of "Transaction" GK the Russian Federation. In paragraph 1 of the resulted chapter which is devoted concept, kinds and forms of transactions, in our opinion, should fix the special order regulating sdelkosposobnost affiliated persons. It, first of all, should be expressed in special (in relation to general provisions of the conclusion of transactions) an order of the conclusion of transactions, and, as consequence of it, their possible recognition void.

In particular we consider, that the Russian Federation it is necessary to add chapter 9 of "Transaction" GK with articles

157.2"Transactions concluded by affiliated persons»:

The transactions concluded between affiliated persons come under to approval in an order, statutory or other legal act.

173.2"Invalidity of the transaction concluded between affiliated persons»:

The transaction concluded between affiliated persons can be recognised by void under the claim of the interested person on conditions and in an order, statutory or other normative act.

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A source: TIKHONOV VLADIMIR VLADIMIROVICH. CATEGORIES of INTEREST And AFFILIROVANNOSTI In CIVIL LAW of Russia. The dissertation on competition of a scientific degree of the master of laws. Rostov-on-Don 2018. 2018

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