§1. Concept and aksiologija liability law principles

The civil literature devoted to revealing and the analysis of principles separate podotraslej and institutes of civil law, despite all urgency of similar researches, not so it is a lot of. Told it is characteristic and with reference to liability law principles: their essence, discriminating lines is not defined, it is not offered the uniform settled list of fundamental principles podotrasli a liability law, other questions having great value both for the theory, and for practice are not resolved. It is necessary to carry to an essential blank of a modern science and that the parity between branch principles and the basic beginnings of a liability law is not considered. It is represented, that the permission of listed and other problems will allow is system and comprehensively to approach to the questions connected with principles of a liability law.

Let's preliminary notice, that by a science of the beginning separate podotraslej and institutes are estimated ambiguously. To one of the first principles about difficult structure wrote E.V.Vaskovsky under which statement the principle «quite often leans against other, higher principle which, in turn, can be a consequence more the general and so on up to any initial and a right substantive provision» [1]. The resulted thesis to the full will be adjusted with a position that there are separate interconnected principles civil, a liability law, separate institutes.

In Soviet time to one of those who marked importance of studying of principles podotraslej and institutes, became JU.H. Kalmyks. In its opinion, «in civil law similar differentiation (on branch principles, podotrasli, separate institutes, subinstitutes - A.V.) has special value as in this branch of law more often, than somewhere there are such structural divisions as podotrasl and subinstitute» [2]. Then there are also the first researches devoted to principles of separate institutes of civil law: executions of obligations [3 [4] [5], realisation and protection grazh -


danskih the rights and others. At all urgency of similar works they only indirectly concerned object of our research.

For today also it is impossible to approve, that all elements of system of principles of civil law are to the full studied. Told, first of all, concerns with reference to principles separate podotraslej and institutes. As marks E.V.Vavilin, «"printsipologii"it is possible to carry the researches devoted to studying of the general and branch beginnings of civil law to the most mastered directions. Initial polo -


zhenijam separate juristic institutions has carried less ».

Nevertheless, there are researches in which independent principles separate podotraslej civil law are allocated. For example, following principles of the property right are offered: equalities of patterns of ownership, inviolability of the property, inadmissibility of deprivation of property differently, than under the decree and others [6 [7] [8] [9]. In a science there is a number of approaches to definition of fundamental principles of the law of succession. Are allocated such, as a principle of freedom of the will, a principle universally -


go assignment, a principle of the account of will of the estate-leaver. It is conventional, that separate institutes of civil law also have the principles (for example, institute of execution of obligations).

Moreover, there are basic beginnings of narrower groups of public relations. In particular, privatisation principles are legislatively allocated gosudarstven -


nogo and municipal property, principles state reguliro -


vanija activity on guardianship and many other things.

Progressive for development of a modern science the thought on existence of two levels of principles is represented: tselepolagajushchih (through them the general legal purpose is expressed) and principles-methods (in which the bases for a choice of certain means and ways of achievement of this purpose are put in pawn) [10]. Proceeding from the specified classification, it is necessary to carry liability law principles to principles-methods which open fundamental tselepolagajushchie civil law principles, specify in concrete directions of action, liability law methodology.

Meanwhile among jurists there is no consent of validity of allocation and studying of independent principles podotraslej and civil law institutes. So, E.M.tuzhilova notices, that «reflecting principles podotrasli, institute or right subinstitute, it is necessary to be guided, first of all, by branch principles» [11]. In a substantiation of similar opinion the argument that principles reflect specificity of branch along with a subject and a legal regulation method is resulted. Similar, according to some authors, it is impossible to tell about podotrasli. From this statement the conclusion about impossibility of allocation of independent principles podotrasli, institute, subinstitute becomes.

At all external validity of the similar point of view we will note the following. The subject podotrasli a liability law is a component of a subject of branch of civil law. At the same time the subject various podotraslej civil law is specific. The relations regulated real, hereditary, by a liability law, intellectual property right, are interconnected, but are not identical. Each of them have the discriminating lines. The same it is possible to tell and about a method. Proceeding from it, we do not support thought that there are no independent principles separate podotraslej and institutes.

Special position at V.I.Borodjanskogo. In its opinion, allocation of the special beginnings of legal institutions «would contradict unity and an internal coordination of standard civil-law regulation» [12]. It is difficult to agree with the specified conclusion. More likely, on the contrary, presence of the interdependent, interconnected principles of civil law, a liability law, institutes provides sistemnost civil law branches. In it as it is represented, the theoretical mission of system of principles of the Russian right is expressed.

On the basis of told it is possible to draw a conclusion that allocation of principles separate podotraslej and civil law institutes is proved, however the questions connected with principles of a liability law, their discriminating lines not in a due measure are studied by civil law.

For the fullest and detailed consideration of principles of a liability law it is necessary to give concept to the considered phenomenon preliminary.

In the logician allocate four methods of construction and a substantiation of definitions. Proceeding from problems of the present research, most applicable of them in relation to concept «liability law principles» the inductive way sees. Its essence consists in revealing of discriminating lines of the analyzed phenomenon [13]. Thus, for explanation of essence of principles of a liability law necessary to establish its generic characteristics, that is, concept of principles of civil law, and also specific signs - discriminating lines of principles of a liability law.

On a question what should be concept of principles of civil law, the uniform answer in a science is not present. To one of the first definition to right principles was given by G.F.Shershenevich as which he understood «the general direction opened in a number of legal rules» [14 [15]. The Soviet civil law predlo -


Vein for principles of civil law a number of new definitions. For example, JU.H. Kalmyks, approved, that principles are «the fundamental principle, the basic idea penetrating system of norms» [16]. A definition G.A.Sverdlyk, in which opinion has offered conventional law principles it «stable is standard-supervising positions according to which the base of contract-legal regulation and a regulation of behaviour of subjects of the conventional law are under construction, and also pravoprimenenie» [17].

V.I.Borodjansky has defined civil law principles as «the developments of economic relations caused by objective requirements and the fundamental principles (ideas) fixed in the legislation defining essence and the maintenance of civil-law regulation» [18 [19]. Civil law principles, on E.V.Vavilina's treatment, «it is the basic is standard-supervising beginnings (positions, ideas) which characterise the civil legislation, are expressed by its fundamental tendencies


Developments ».

O.A.Kuznetsova, considering norms-principles of civil law, gives them following definition: «the specialised imperative extremely general provisions defining the maintenance all others grazhdanskopravovyh of norms and possessing in relation to them the higher validity, having atypical structure and carrying out specific functions in civil-law regulation» [20]. V.V. Kulakov suggests to qualify civil law principles as the special form of the right which possesses the most advanced stage of generalisation [21].

At all abundance of various definitions, it is represented, that the basic sense of such phenomenon as "principle" that is certain idea which is the general for all norms regulating a concrete kind or a sort of public relations (depending on that with what we we deal: a branch principle, podotrasli, etc.). The similar thought is traced practically in each definition. So, the liability law principle is a basic idea (position) which is fundamental to all podotrasli a liability law.

We believe, that in a definition of principles of a liability law should find the reflexion the answer to a question on ways of their occurrence which in a civil law science is rather disputable.

The specified problem has been mentioned even in G.F.Shershenevicha's works, which approved that «thought (i.e. A legal principle - A.V.)... It is caught to some private and indirect signs. It only is felt by quite often creator of norm, but will not confess clearly» 1. That is it is possible to tell, that already during the pre-revolutionary period of development of civil law there is a judgement that principles can and not to be directly fixed in the law, but follow from its basic ideas, sense, an orientation on the decision of specific targets. The Soviet science also has not ignored a case in point. For example, S.N.bratus noticed, that «principles can be found out from the general sense of norms. In the latter case. The big role is played by judiciary practice» 2.

Among modern approaches to a question on ways of occurrence of principles of civil law it is possible to allocate, at least, three points of view. So, N.A.Amirov approves, that principles of execution of contracts can be established not only regulatory legal acts, but also oby -


Teas it to be provided by the parties in contracts, in judgements. It is difficult to agree that it is necessary to carry substantive provisions of separate contracts to sources of fundamental principles. The last are obligatory only for subjects of concrete legal relations and are not imperative for other participants of the civil circulation.

Similar arguments lead to thought, that customs do not concern sources of principles of the right. For example, a special role Principles of the international commercial contracts 2010 [22 [23] play kodifitsirovannye customs of the international trade turnover, for example. However they are obligatory only in the event that the parties have agreed about it. At the same time liability law principles are such beginnings which extend the action to all podotrasl, are fundamental to all norms regulating debt relationships. From the told follows, that customs and substantive provisions of separate contracts do not concern sources of fundamental principles of a liability law.

Many scientists approve, that principles find the reflexion exclusively in regulatory legal acts. For example, E.G.Komissarova allocates following sources of principles: the international legal certificates ratified by the Russian Federation at level of the legislation,


The constitution of the Russian Federation, the Civil code of the Russian Federation (further - GK the Russian Federation [24], other federal acts [25]. N.V.Berebenja approves, that «that any principle (or basic idea) came under to corresponding branch of law to application and has been realised, its accurate legislative fastening in the form of the rule of law» [26 [27] [28] is necessary. In this case the author obviously specifies in application of a principle as the rule of law, a regulator of concrete legal relations. It is obvious, that it is the important function of principles, but not unique about what it will be told more low.

By O.A.Kuznetsova it is proved notices, that principles can be fixed in the right both direct, and indirect way. The last (indirect principles or principles-ideas) receive the name and are filled with the concrete maintenance in certificates of superior courts (including, owing to item 15 of the Constitution of the Russian Federation in Decisions of the European court under human rights). The author approves, that «indirect principles of the right follow from sense of the legislation (it is allocated by us - A.V.) by its interpretation by the higher degrees of jurisdiction, the principles-ideas which are not possessing are thus formed


The status of the rule of law ».

JA.A.Osmolovsky, making definition to civil law principles reasonably notices, that the last can be as are fixed by the civil legislation, well deduced from a subject, a method, functions and the mechanism of civil-law regulation, the constitutional bases of branch of civil law and the legislation [29]. The similar position at S.F.Afanaseva and O.V.Isaenkovoj, approving, that «such line of a principle as normativnost, it can be shown and oposredovanno when the principle logically, leksicheski or is by deduced by other from one (more often - several) norms» [30]. According to V.V. Ershov, the analysis of the principles which have been only directly fixed in legal acts, is obviously insufficient, as thus outside of research there are other objectively existing beginnings [31].

It is thought, modern development of civil law proves that fact, that its principles can be not only are fixed in legal acts, but also developed by judiciary practice, can follow from sense, equity of statute. In the given occasion very exact E.V.Vavilina's remark is represented what to recognise as a source of principles only normativnopravovoj the certificate - means «to recognise perfection of all existing legal system that is persistently confuted by judiciary practice» [32].

The fundamental ideas of the civil law which directly has been not fixed in the regulatory legal act, can admit principles only in the event that they correspond to certain signs. It is necessary to carry the following to the last:

1) find the reflexion in aggregate the civil-law


2) are proved and applied by judiciary practice on group


3) are calculated on repeated use;

4) the sense and the maintenance of principles of the named group follows from positions of the Constitution of the Russian Federation, the conventional principles and norms of international law, fundamental principles of the civil legislation.

Vivid example of that the basic beginning can be developed judiciary practice, the conscientiousness principle is. It was actively enough applied by vessels still before its formulation has appeared in item 1 GK the Russian Federation. So, for example, in one of the Decisions the Supreme Arbitration Court of the Russian Federation has specified, that in the civil circulation of the person should operate honesty (the substantiation was spent through item 2 of item 6 GK the Russian Federation, item 3 of item 10 GK the Russian Federation) [33]. Active use and a conscientiousness substantiation in judiciary practice has led to that the specified beginning has appeared in GK the Russian Federation [34 [35].

One of the principles following from sense of the law, the principle of protection of weakness in the obligation which is based on ideas of justice, equality of citizens, social essence of the Russian state, the politician which it is directed on creation of conditions is, I provide -


shchih a worthy life and free development of the person. The specified beginning is shown in the legislation (for example, item 428 item, 577 GK the Russian Federation, subitem 3 of item 1 of item 10 FZ «About competition protection» [36] and many other things), and also in decisions of various vessels.

Let's notice, that exarticulation of fundamental principles from sense and equity of statute is, in bolshej to a measure, feature of private law. Civil (in particular, obligations) the right as the body of rules, inseparably linked with an economic turn, should develop, follow actively changes of relations on manufacture, consumption, an exchange of the blessings. For this reason in civil law, in difference, for example, from criminal, the analogy of the right and the legal analogy is applied. Legislation development not always is in time (in force both subjective, and objective causes) behind development of economic relations that is filled with judiciary practice.

Thus, the point of view that right principles can be sees more proved not only are directly formulated in standard - the legal act, but also to follow from sense, equity of statute on the basis of what to be applied by judiciary practice. The specified thesis confirms, that in a definition of principles of a liability law it is necessary to use not only the term "position", but also the term "idea". It is represented, that the understanding of principles as positions opens them as standard instructions, concrete rules of law, and the understanding of the beginnings as ideas allows to show possibility of expression of the last in sense and equity of statute through judiciary practice.

Discriminating features of principles of a liability law are caused by essence of the obligation which follows, first of all, from its positions of item 1 of item 307 GK the Russian Federation. The various definitions of the obligation offered in scientific researches, specify in economic essence, and also on some other discriminating signs of the named category. So, V.V. Kulakov has defined the obligation «as the relative property civil matter which purpose is directed under the general rule on commodity moving of property in which the creditor has the right of the requirement from the debtor of fulfilment of active action on transfer of this property» 1. Of Century Kolodub, defining the obligation, places emphasis on dynamism of the given legal relation, that is, it «the relative, dynamical civil matter procedures and processes of active and passive activity of the parties (the debtor and the creditor become which maintenance), forming valid (formally and actually) legal result» 2.

The liability law differs from others podotraslej civil law a special subject and a regulation method. The subject podotrasli a liability law includes special group of property relations - obligations, i.e. legal relations in which force one person is obliged to make certain action in favour of other person or to refrain from certain action. The method of regulation of obligations relations also is specific. In civil law it was noticed, that dozvolitelnoe liability law regulation has «that feature, that investment with the right is accompanied by putting on on other person of a counter duty» [37]. It is possible to allocate and other discriminating lines of a method of the liability law, distinguishing it from ways of regulation of others podotraslej civil law [38 [39].

On the basis of an obligation definition, and also the specified specificity of a subject and a method in the scientific literature the following is allocated distinguish -


telnye debt relationship signs:

1. Definiteness of subject structure of the obligation, i.e. a relativity of considered legal relation. The resulted sign predetermines a question on on whom the duty in the given relations lays and who can bear responsibility for inadequate execution (default) of this duty. It is correctly noticed, that «everyone, in advance not certain subject whereas in debt relationships communication of subjects is so concrete can be the offender of real right, that infringement of the rights of the person competent is expressed in undue behaviour only persons obliged» [40].

2. Dynamism of the obligation. Unlike property relations (relations of an accessory, a statics) specific line of obligations is the constant reference of material benefits [41].

3. Imperativeness of the maintenance of the obligation. At occurrence of debt relationship the creditor has a right to demand certain behaviour of the debtor.

4. Purposefulness of the obligation. A main objective, appointment of norms of a liability law, first of all, is maintenance of the rights and legitimate interests of the creditor.

5. Konkretizirovannost maintenances of the obligation which is characterised by that the debtor under the civil-law obligation is obliged to make strictly certain action or to refrain from concrete action.

The signs resulted above in the set characterise all podotrasl a liability law, distinguish it from others podotraslej. Therefore and liability law principles will possess the given signs. And these signs are discriminating lines of principles of a liability law, way of differentiation of fundamental principles podotrasli a liability law and civil law branch.

So, private characteristics of principles of the liability law, them from other fundamental principles, debt relationship signs are distinguishing: a relativity, dynamism, imperativeness of the maintenance, purposefulness, konkretizirovannost. The listed signs distinguish principles of a liability law from grazhdanskopravovyh principles. Besides, presence of the given private characteristics serves as one more proof of that the basic beginnings of a liability law act as an independent link in system of principles of the right.

Proceeding from the above-stated, liability law Principles are the fundamental positions containing in rules of law, and also the basic ideas applied in judiciary practice on a basis of system interpretation of the legislation which are sistemoobrazujushchimi for all podotrasli a liability law and in which find the reflexion debt relationship signs (a relativity, dynamism, imperativeness of the maintenance, purposefulness, konkretizirovannost).

One more problem not to the full investigated by civil law, the question on classification of principles [42] is. It is possible to offer various criteria of division of fundamental principles podotrasli a liability law on groups.

I. On the subject:

1) the principles directed on maintenance of the rights and interests of all participants of an economic turn (for example, principles of freedom of the contract, appropriate execution of the obligation);

2) the principles directed on maintenance of the rights and interests of separate participants of an economic turn (principles of protection of weakness in the obligation, protection of the rights of the creditor, protection of the debtor).

II. On fastening in the legislation:

1) is standard fixed (principles of freedom of the contract, appropriate execution of the obligation);

2) directly not fixed in regulatory legal acts, but finding the reflexion in judiciary practice, proceeding from sense and equity of statute (a principle of protection of weakness in the obligation).

III. Depending on character of carried out function:

1) reguljativnye (principles of freedom of the contract, stability of the obligation);

2) guarding (principles ought, specific performance of obligations).

The specified criteria of classification cannot be considered as unique and indisputable. They are only capable to illustrate a parity of the various beginnings in system of principles of the right. The further working out of criteria of classification, construction of fuller and structured system of principles - important problems of a science of civil law as their decision will allow in more details and all-round to look at liability law fundamental principles.

By civil law it is quite proved a task in view to study principles from a position of the pragmatical approach, them pravoprimenitelnogo values [43 [44] [45]. As approved D.I.Meyer, «right appointment - to have the appendix to a life». Told to the full concerns and principles. Besides, the basic beginnings have special theoretical and pravotvorcheskoe value. Thus, an actual direction of researches in area "printsipologii" is revealing of sense, values for the sake of which there are fundamental principles. It is possible to name such researches aksiologiej principles. Aksiologija liability law principles the purpose and value reveals through categories.

Aim philosophies it is understood as an ideal or real subject of conscious or unconscious aspiration of the subject; final re - zultat on which process [46 [47] is purposely directed, that is to what we aspire, that it is necessary to carry out. It is possible to tell, that the purpose of principles of a liability law is a formation of a legal ideal in the most general, fundamental positions, creation of basis, a firm ideological basis for all body of rules of a liability law.

In a science it was not generated the uniform approach concerning treatment of value of principles of civil law. Meanwhile the urgency of the specified question is very great, as that depends on its permission, how much pravoprimenitel, the legislator, participants of an economic turn will estimate importance of principles, how much effectively and often basic beginnings will be put into practice. Failure of evidence of the practical importance of principles will lead to that the last will be considered, how the academic, formal categories which have been not intended for the permission of concrete situations that, certainly, mismatches the validity.

To one of the first in domestic civil law in special value of principles has specified G.F.Shershenevich. In its opinion, by means of fundamental principles «we foresee private rules on unforeseen the legislator cases» 2. On well-aimed judgement of ZH.-l. Berzhelja, «in a case when the law is silent or insufficiently accurately expresses on the given question, the court should find the decision in the light of the general principles». That is it is actually spoken about use of principles at application of analogy of the right.

O.A.Kuznetsova logically approves, that «in norms-principles in the concentrated kind all civil law as branch of law» [48] is presented, therefore the basic functions of the right (reguljativnaja and guarding) are inherent in them. The specified conclusion is represented correct. Nevertheless, norms-principles are special categories which, besides the general, have special, discriminating functions.

N.V.Berebenja, considering theoretical bases of system of principles of civil law, marks the following: «appointment of principles of civil law consists in maintenance of functioning of the mechanism of all civil law covering along with its actual action, its maintenance, internal consistency, and also unity pravoprimenitelnoj experts» [49 [50] [51]. It is thought, in the given position the theoretical mission of principles reveals.

V.I.Borodjansky allocates three basic functions of legal principles at their interaction with norms of civil law: normoobrazuju -


shchuju, reguljativnuju, information. V.A.Abalduev by consideration of principles of the law of master and servant specifies, that they have following value: correct construction of the labour legislation, explanation of an orientation of legal regulation, explanation of sense of the legislation, regulation of concrete relations.

In a science functions of principles of the legislation which show their practical mission revealed: maintenance of the adjusted development of legal space of the Russian Federation, maintenance of stability of the legislation, integrativnaja function, reguljativnaja function, maintenance lips -

novlenija the valid sense of standard instructions [52]. It is obvious, that principles of the right and legislation principles - the different phenomena [53]. Nevertheless, them aksiologija has the general lines, therefore some functions of principles of the civil legislation coincide with functions of principles of civil law. So, maintenance of stability of the legislation - a problem not only legislation principles, but also right bases.

The led approaches are represented to definition of value of principles to a greater or lesser extent correct and proved. Meanwhile, they not always possess property vsestoronnosti and completeness. Very often at revealing of appointment of principles authors consider this question one-sidedly: for example, from a position pravoprimenitelnogo or academic value. Therefore actual the problem is represented to develop the system approach to studying aksiologii (values) of principles of a liability law.

It is thought, that value of principles of a liability law is most systematised it is possible to present in following positions.

1) Theoretical (obshchefilosofskoe) value.

Liability law principles are the base podotrasli a liability law, its fundamental principle. In fundamental principles the basic ideas, essence of all podotrasli are reflected, they specify in social appointment and reference points of development of a liability law. In this plan interest represents S.S.Alekseeva's remark concerning that positions of item 1 GK the Russian Federation is whole philosophy of freedom, independence and independence of participants economic, the economic activities, that philosophy which can quite become a spiritual basis of transformations going to Russia [54]. The similar position should be applied and in relation to substantive provisions podotrasli a liability law.

The liability law represents system of norms which are in certain interrelation. Principles are supervising beginnings of all system of norms, institutes, help to avoid contradictions in legal statuses, predetermine most the general directions of development of a liability law. Thus, liability law principles is a filosofsko-ideological substantiation of all body of rules of a liability law.

2) Pravotvorchesky value.

Liability law principles are used by the legislator by consideration and regulatory legal act acceptance, modification and additions in it. A.A.Pavlushinoj's position that any bill at a consideration stage «should be investigated from the point of view of its conformity to right principles Thereupon is worthy. And system of principles it is right it is possible to use as a technique of an estimation not only preparing, but also already accepted normative act» [55]. The similar idea should be apprehended to all officials who are carrying out legislative activity.

Ignoring of fundamental principles, their wrong understanding the legislator leads to occurrence of contradictions in the law, to creation of norms which are not entered in the existing legal doctrine, to occurrence of ambiguities in legislative guidelines. All it extremely negatively affects sense of justice, legal culture of citizens, corruption creates preconditions for such phenomena, as various abusings. Finally, disrespect for the law and court grows, the legal nihilism of the population is more actively shown.

So, in the scientific environment the position concerning imperfection of the Criminal code of the Russian Federation (further - UK the Russian Federation) [56 [57] time and again expressed. According to a number of scientists, in it it is ever less traced sistemnost, sogla -


sovannost norms. One of the reasons of a similar situation is that the legislator at modification and additions in UK the Russian Federation not always considers criminal law principles: ignoring of principles in practice creates possibilities for leaving guilty from responsibility, unreasonable impeachment innocent, leads to infringements of the rights of citizens etc. [58]. As we see, absence of due attention from a legislature to substantive provisions of this or that branch of law can lead to infringement of the purposes and legal regulation problems.

The present stage of development of the civil legislation is characterised by scale changes. It is important, that by preparation and acceptance of changes and additions in GK the Russian Federation the legislator considered liability law principles, understood their appointment and essence.

In particular, one of substantive provisions by which are guided pravotvorcheskie bodies at acceptance of certificates in sphere of the civil legislation, the principle of protection of weakness in the obligation is. As it is specified in the literature, weakness in the obligation is that which has less possibilities for realisation of the right, and also possesses a smaller set of resources for realisation and protection of the rights in comparison with the counterpart [59].

At use of the specified principle of a liability law in legislative activity the choice of that subject it is necessary for them to give the additional rights is important. It can be the citizen-consumer, the manufacturer of agricultural production etc. At creation is standard the legal act can other way of alignment of position of participants of an economic turn is applied also. Quite often in the law putting on of additional duties on a strength or strengthening of its responsibility is provided.

Unfortunately, not always pravotvorcheskie bodies adhere to a principle of protection of weakness in the obligation. So, at level GK the Russian Federation (item 124 item 1) it is proclaimed, that public formations on equal with other subjects participate in an economic turn. Similar equality it is not always reached in practice owing to that economically, organizational, it is information weaker counterpart of the state (the subject of the Russian Federation, municipal union) it is not to the full capable to realise and protect the right.

3) Special pravoprimenitelnoe value.

Liability law principles are applied by vessels by consideration of concrete affairs. As we will see more low, told extends as on the beginnings directly provided in the law, and on what in legal acts are not established, but follow from their sense and spirit.

The court differently can use liability law principles. O.A.Kuznetsova, considering civil law principles, marks such four cases: for argument "strengthening" on business; in the course of interpretation; at the reference to analogy of the right; at direct use as norms of direct action [60]. With similar treatment it is necessary to agree with one addition: it is better to allocate direct use of principles as independent function as pravoprimenitelnoe all principles have value, and as rules of law only fundamental positions directly fixed in the law can act.

So, principles are actively used by vessels in the course of interpretation of rules of law, finding-out of their true sense. As an example it is possible to result the Decision of Plenum YOU the Russian Federation «About freedom of the contract and its limits» [61] in which by court are made important for pravoprimenitelja conclusions. In particular, proceeding from a principle of freedom of the contract the norm defining the rights and duties of the parties, is interpreted proceeding from its being and the purposes of legislative regulation, that is the court takes into consideration not only literal value of words containing in it and expressions, but also those purposes which were pursued by the legislator, establishing the given rule.

In some cases courts use fundamental principles of a liability law for argument "strengthening" on business. For example, in a similar role the principle of protection of weakness quite often acts.

Open Society AKB "Энергобанк" has addressed in arbitration court with the statement to Management of Federal service on supervision in sphere of protection of the rights of consumers and well-being of the person on Republic Tatarstan about annulment of the instruction taken out by it. According to the claimant, conclusions of the respondent about illegality of a condition of the typical contract concluded by bank with citizens, about possibility bezaktseptnogo write-offs by bank of money resources of the borrower, and also a condition about agreed jurisdiction are groundless. The court has come to conclusion, that the specified positions of civil-law agreements directly contradict norms GK the Russian Federation, the Law of the Russian Federation «About protection of the rights of consumers» [62], other legal acts. Besides, in opinion of court, the citizen as economically weakness in these legal relations, requires special protection of the rights that attracts necessity for corresponding legal restriction of freedom of the contract for other party, that is for banks. In particular, the legislator enters special rules of definition of jurisdiction of civil cases with participation of consumers [63].

In the specified example for acceptance of the lawful decision it was not obligatory to court to refer to a principle of protection of weakness. Nevertheless, its instructions in the decision reasoning have made the last even more proved. We believe, that active use of principles for argument strengthening on business raises quality of judgements, promotes legality development in judiciary practice, raises level of the valid relation to decisions of vessels.

4) Performance of functions of rules of law.

As it has already been told, rules of law are carried out by two basic functions: reguljativnuju and guarding. The part of principles of a liability law finds the reflexion in rules of law. So, the principle of freedom of the contract in most general view is presented to item 1 of item 421 GK the Russian Federation. With the account of that any rule of law carries out two specified functions, norms-principles of a liability law carry out the same functions.

Let's notice, that, in our opinion, it is necessary to discriminate performance of functions of rules of law and pravoprimenitelnuju a role of principles. The first is a reflexion of that value which is characteristic for all rules of law. The second group of functions is unique for principles, reflects their discriminating lines as independent legal category. It is obvious as well that fact, that those principles of a liability law, which directly are not fixed in the law (for example, weakness protection) cannot realise right function. It in addition causes difference of different groups of appointments of principles and, besides, proves an urgency and the importance of the researches connected with studying of a parity of various kinds of principles: is standard fixed and not fixed in normativnopravovyh certificates, but finding the reflexion in judiciary practice.

Let's give an example performance by principles of functions of rules of law. So, contract freedom can directly be applied to protection of the rights of participants of the civil circulation. For example, the citizen has addressed in court with the requirement about a recognition void instructions for use culture establishments. According to the claimant, position of instructions for use by the library, providing restrictions for the citizens who do not have registration in St.-Petersburg or Leningrad region regarding an interdiction to take the literature on the house, are illegal. The court has given up in satisfaction of claims whereas restriction on delivery of books on the house to the specified citizens does not break the law requirement. With reference to the questions which have been not settled by the legislation, the principle of freedom of the contract according to which citizens and legal bodies are free in making contract [64] operates.

Proceeding from stated in the present paragraph, the conclusion follows, that liability law principles are the fundamental positions containing in rules of law, and also the basic ideas applied in judiciary practice on the basis of system interpretation of the legislation which are sistemoobrazujushchimi for all podotrasli a liability law and in which find the reflexion signs of the obligations

Legal relations: a relativity, dynamism, imperativeness of the maintenance, purposefulness, konkretizirovannost.

It is represented, that researches aksiologii principles, that is not only their value, but also the purpose of existence, other valuable aspects can become actual. The purpose of principles of a liability law is a formation of a legal ideal in the most general, fundamental positions. Liability law principles have special theoretical, pravotvorcheskoe, pravoprimenitelnoe value, carry out functions of rules of law.

<< | >>
A source: Volos Alexey Aleksandrovich. LIABILITY LAW PRINCIPLES. The dissertation on competition of a scientific degree of the master of laws. Saratov -.
Ïîìîùü ñ íàïèñàíèåì ó÷åáíûõ ðàáîò

More on topic §1. Concept and aksiologija liability law principles:

  1. §2. A parity of principles of civil law and liability law principles
  3. §3. Other principles of a liability law
  6. § 1. Concept of the conventional principles and norms of international law and its value for civil law
  8. Hair Alexey Aleksandrovich. LIABILITY LAW PRINCIPLES. The dissertation on competition of a scientific degree of the master of laws. Saratov -,
  9. 3.1 Principles of civil law: concept and intrinsic signs
  10. 2.1. Concept of the contract on rendering of paid educational services and its place in liability law system
  11. Chapter 2. Concept and the legal nature of indemnity against liability under the contract. Otgranichenie from tort liability insurance