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Chapter 3. PRINCIPLES of EXECUTION of OBLIGATIONS

Execution of obligations is one of those spheres of civil law which repeatedly found reflexion in various researches [307]. Nevertheless, it is impossible to tell, that all questions of the specified problematics have been in full studied.

Them some them (the list of fundamental principles of execution, a parity ought and specific performance, essence of categories źprofitability of execution╗ and źassistance of the parties at execution of obligations╗) will be considered more low.

Within the limits of the present work it is obviously necessary to analyse principles of execution which should be considered as liability law principles. Last fact is caused by several circumstances. First, execution fundamental principles are applied under the relation to all without an exception to obligations: both contractual, and non-contractual. Secondly, execution of the obligation [308] is inseparable from the obligations relation, it is impossible without it. Moreover, execution - the existence purpose, normal development of the obligation. From this follows, that all liability law so, and its principles, should be directed on execution stimulation as the most effective result of the relation. Told the structural finding of chapter 22 GK the Russian Federation among liability law general provisions speaks also. Thirdly, in execution principles find the reflexion discriminating signs of principles of a liability law (a relativity, dynamism, imperativeness of the maintenance, purposefulness, konkreti - zirovannost). For example, in the course of execution debt relationship is filled with one of such major characteristics as dynamism.

The aforesaid confirms the thesis that principles of execution of obligations are an integral part of principles of a liability law and come under to inclusion in the list of the last. The specified conclusion does not contradict opinions of jurists [309], and also judiciary practice [310].

The conclusion follows from the told about a place of the beginnings of execution in system of principles. Principles of execution of obligations and liability law principles correspond as a part and whole, are the interdependent, interconnected phenomena. The given fact is especially important for pravoprimenitelnoj experts. At decision-making on concrete business at application of norms about execution of obligations it is necessary for vessels to be guided as branch, and podotraslevymi by principles, including the execution beginnings.

So, Open Society the Joint-stock bank "Russia" has addressed in court with the claim to citizens about debts collecting under the credit and the collecting reference on the put in pawn property. The requirement is declared because arrest has been put property of respondents, and conditions of the credit contract provide the right of bank to demand in a similar case of preschedule return of the sum of the credit. Open Society claims in the specified part are satisfied by the decree. The court in this case was guided by positions of the agreement entered into by the parties, disregarding thus principles of civil law. In this connection the Supreme Court of the Russian Federation has specified the following. According to norms GK the Russian Federation obligations should be executed properly. Execution can be provided with any way, statutory or the contract.

However respondents honesty executed the credit obligations. On the property belonging to the borrower, the arrest, however the given property is put was not the subject of pledge providing execution of the credit contract. Besides, according to the Supreme Court of the Russian Federation, by vessels of subordinate instances it is not considered requirements of item 10 GK the Russian Federation (bar of claim by lapse of time of misuse of right), and also that fact, that citizens are weakness in the contract with bank. Taking into account stated the Supreme Court of the Russian Federation has made the decision on business transfer on new trial [311].

In the resulted example the court at decision-making was guided by simultaneously branch principles of civil law (the conscientiousness requirement, bar of claim by lapse of time of misuse of right), liability law principles (contract freedom, weakness protection), the beginnings of execution of obligations (a principle of appropriate execution). It is represented, that practice of application by vessels simultaneously principles of different level promotes acceptance of the lawful and proved decisions, strengthens the argument of opinion of court and should be used as it is possible is more often. The another matter that is frequent, as in the above-stated example, is difficult to spend differentiation of various principles. The permission of a similar problem - one of actual problems of a modern science.

In civil law the question on the list of principles of execution is debatable. In particular, in the educational literature only the emphasis is quite often placed on two principles: ought and specific performance [312]. In a science also often enough there is a narrow approach to the list of principles of the execution, including only three beginning. So, V.P.Mozolin, analyzing the Soviet legislation, has allocated three principles of execution, statutory and embodied in rules of law: appropriate execution of obligations, profitability, cooperation of the parties [313]. V.V. Rovnyj also was limited to three beginnings, but has offered other list: appropriate, real (natural) execution, inadmissibility of unilateral refusal of execution of the obligation [314 [315].

Probably, the specified authors started with those principles which most obviously follow from the law text. It is difficult to agree with the resulted lists of the beginnings as there are also other principles of execution which follow from sense of the legislation, are used in judiciary practice, a business turn.

More often among execution principles name principles of appropriate execution, specific performance, inadmissibility of unilateral refusal of execution of the obligation, profitability of execution, assistance of the parties. Such list is offered in A.L.Frieva, A.A.seagull's [316] works, A.V.Shilova [317], I.J.Shumejko [318] and others. At the same time separate authors name also other principles of execution, for example, dobroso - 1 2 vestnosti, a rationality and conscientiousness (as a uniform principle), dispozi -

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tivnosti.

Concerning the last it is necessary to notice, that the conscientiousness requirement at realisation of the rights, no less than an optionality principle, concern the branch beginnings of civil law (item 1 GK the Russian Federation). The assumption of a rationality of actions of participants of relations also is a basis of their regulation (item 10 GK the Russian Federation). Obviously, named categories are applied and in a liability law. Nevertheless, it is difficult to recognise as their principles of execution of obligations because they concern principles of higher level, operate at regulation not only obligations, but also real, hereditary and other relations.

Let's remind, that the rule about inadmissibility of unilateral refusal of execution of obligations is considered by us within the limits of a principle of stability of the obligation as is a component of the last. As it has been shown, the stability principle finds the reflexion at various stages of action of the obligations relation, and not just on its execution. In this connection there is no necessity to allocate a separate principle of inadmissibility of unilateral refusal of execution of obligations within the limits of liability law principles. At the same time, the specified rule should be considered as basic, fundamental norm podotrasli a liability law, the major display of a principle of stability.

So, it is necessary to carry principles to principles of execution of obligations ought, specific performance, profitability of execution, assistance of the parties which, in our opinion, most full reflect action me - [319 [320] hanizma realisation of the rights and discharge of duties. We will consider in more details separate principles of execution of obligations.

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A source: Volos Alexey Aleksandrovich. LIABILITY LAW PRINCIPLES. The dissertation on competition of a scientific degree of the master of laws. Saratov -.
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More on topic Chapter 3. PRINCIPLES of EXECUTION of OBLIGATIONS:

  1. ž2. Principles of profitability of execution and assistance of the parties at execution of obligations
  2. ž 2. Principles of execution of obligations
  3. Chapter 4. Execution of obligations with participation of the citizen recognised It is unknown absent
  4. Chapter 1. TEORETIKO-METHODOLOGICAL BASES of the DOCTRINE ABOUT OBESPECHITELNOM PAYMENT AS the WAY of MAINTENANCE of EXECUTION of OBLIGATIONS
  5. THE CHAPTER II. SPECIFICITY OF LEGAL REGULATION OF STAGES OF PLANNING, THE STATEMENT AND EXECUTION OF ACCOUNT OBLIGATIONS OF SUBJECTS OF THE RUSSIAN FEDERATION
  6. ž 3. Participation of the third parties in maintenance of execution of obligations.
  7. CHAPTER 1. CONCEPT And PRINCIPLES of EXECUTION of the CONTRACTUAL OBLIGATION
  8. 2.1. The penalty, as a way of maintenance of execution of commercial OBLIGATIONS
  9. ž 1. Concept n ways of maintenance of execution of obligations
  10. ž 2. Participation of the third parties in execution of obligations.
  11. ž 3. Obespechitelnyj payment as a way of maintenance of execution of other obligations