Concept of the penalty

Starting point in definition of concept of the penalty as civil law legal institution is the norm of the law - item ZZO GK the Russian Federation. In it the penalty (the penalty, penej) the sum of money which the debtor is obliged to pay to the creditor in case of default or inadequate execution of the obligation admits defined by the law or the contract.

From here penalty payment admits the theory of civil law as preterpevanie unprofitable property consequences for the party which "has not resisted", has not executed properly the obligation [2].

However not all provided in the law and infringements of the obligation of a measure applied as consequences under the maintenance, the bases and an application order are unequivocal. Operative sanctions, the responsibility, traditional ways of maintenance of the obligation are ranked as such measures.

By different authors it was given not only various interpretation to the specified measures, they, besides, differently and were called: «the means directed on maintenance of conformity of real behaviour to the rights and duties» [3 [4], «means of maintenance of realisation of the rights and legal obligations», «ways of protection» [5], "measures of protection" [6] etc.

Question on concept of various measures of compulsory character, on a parity of these measures among themselves, about concept of responsibility, the penalty and its place


In system of ways of maintenance of the obligation many years is a subject of wide discussion.

For system research of this question it was necessary to classify statutory on a case of infringement of the obligation of a measure on the various bases, to define a place of the penalty among them.

Some known scientists had a wide approach to opredele - ^ niju ways of maintenance of appropriate execution of the obligation, to which

Along with traditional ways measures of operative influence, ways of protection broken прав4 are carried ответственность1, collecting of losses.

As a whole such concrete definition of special ways of maintenance of obligations is worthy, for in penalty legal effects is inherent obespechitelnyj and additional character in relation to the provided obligation. Such sight at penalty definition as obespe - # chenija obligations is divided way by all scientists-tsivilistami, which in that

Or other time dealt with a problem неустойки5.

So, all the ways long maintenance of the obligation of O.S.Ioffe classified: 1) on a legal design - on connected and not connected with preliminary allocation of property for possible compulsory realisation of a duty of the infringer where the penalty carried to the second group; 2) by the legal nature - for ways of maintenance the obligations which are and not being measures of legal responsibility, carrying the penalty to measures the answer - ^ stvennosti; 3) on action sphere - on applied in relations between lju

bymi subjects of civil law (for example, the penalty), in obligations

1 See: Halfina R.O.Ukaz.soch. - S.316-320.

2 See: Novitskij I.B., Lunts L.A.general the doctrine about the obligation.

- M., 1950. - С.236.

3 See: Gribanov V.P.Predely of realisation and protection of the civil rights. - M., 1972. - С.187.

* See: Putin B.I.Ukaz.soch. - S.134-135.

5 See: Grave K.A.Ukaz.soch. - С.7; Ioffe O. S. The Liability law. - M., 1975. - with. 158; Putin B.I.Ukaz.soch. - С.137; Gavze F.I.liability law. - С.100; Gribanov n of the civil rights and duties. - M., 1973. - С.84.; Efimova L.G., Novoselova L.A.bank: responsibility for infringements at calculations. - M., 1996. - С.20.

Only with participation of citizens or legal bodies [7].

Other classification of ways of maintenance of the obligation is given by V.S.Konstantinova in the work devoted entirely to problems of legal maintenance in economic obligations where the general are allocated obespechitelnye means and special ways.

The rules of law of various branches of law regulating legal relations are carried to the general obespechitelnym to means; the contract detailing the maintenance of legal relation; the property liability for nonperformance or inadequate execution of the obligation (which is understood as collecting of losses) and a statutory duty of execution of the obligation in nature, applicable for all kinds of obligations [8].

V.S.Konstantinova's penalty considers as special way, specificity of the penalty is shown that in most cases (test, exclusive) it is combined with the size of the losses suffered by the creditor. Thus the creditor has no additional property guarantees. When it has losses, the debtor compensates to it or all losses (test), or a part (exclusive) and only. But such situation, writes it, «develops only when the creditor has losses if they are not present there are differences in the obligations provided with the test penalty and not provided that. In the first case the creditor can receive a certain sum of money in the form of the penalty irrespective of presence at it losses. In the second - in the absence of losses the creditor loses this right. In other words, obligation execution here is provided by a special measure» [9].

As V.S.Konstantinova's other special sign specifies in additional character of the penalty in relation to the basic main thing

To the obligation, and also on «... Presence special obespechitelnyh the properties influencing and on behaviour of the creditor, and on behaviour of the debtor...» 1. Probably, absence cases here mean at infringement of the obligation of losses or cases of application of the penal sum.

Differentiation of all ways of maintenance of appropriate execution of the obligation on the general and special, stated to V.S.Konstantinovoj, and reference thus to the first group of rules of law and contracts has been subjected criticism V.A.Ojgenzihtom. As it is a question of maintenance of execution of a contract with the ways fixed in norms which define an order, the mechanism of maintenance, V.A.Ojgenziht asks a fair question on that, what for as ways to name norms and договор2.

«Maintenance of regulation of public relations» and «maintenance of appropriate execution of obligations» which too represent public relations, it is impossible to recognise concepts equivalent. Rules of law, the conclusion between the contract parties in itself do not guarantee appropriate execution of obligations under this contract.

In our opinion, reckoning to ways of maintenance of appropriate execution of obligations of rules of law is represented incorrect.

By V.S.Konstantinovoj's recognition depending on character obespechitelnyh measures all special ways of maintenance of the obligation are subdivided into three groups: the first pursue the aim by threats of approach of unprofitable property consequences (losses) for the debtor to induce it properly to fulfil the duties (penalty); the second - to provide in advance with property on which collecting (pledge) can be turned; the third - give to the creditor possibility of the reference of collecting not only on property of the debtor, but also on third party property — the guarantor.

1 See: Konstantinova V. S. The decree. soch. - С.29.

2 See: Ojgenziht V. A. Maintenance of execution of obligations: traditions and prospects//liability law Problems. Interhigh school. sb. nauch. tr. - Sverdlovsk, 1983. - S.ZO.

Criterion of such division is allocation of property for possible compulsory realisation of a duty of the infringer in case of inadequate execution of the obligation. In this sense of obligation V.S.Konstantinovoj's given differentiation of ways of maintenance has something in common from the offered O.S.Ioffe classification by a legal design.

Differentiation of ways of the maintenance specified in the law, in view of their ambiguity on application consequences, is really justified. Ways of maintenance are various, the current legislation has expanded their list which is not settling. For example, the new Civil code specifies such way of maintenance of execution of the obligations, applied to all obligations, as deduction. The list of ways of maintenance of the obligation, specified in the law, can replenish at the expense of use of other legal designs under the agreement of parties.

The general for all ways of maintenance of the obligation is that they serve various debt relationships in which basis the certain valuable interest of the creditor is put, or mutual interests of both parties. They pursue the uniform aim - stimulations of the debtor to appropriate behaviour by means of investment of the creditor with the additional rights on prevention or elimination of adverse consequences. Consequences of application of various ways of maintenance, in communication C by property character of civil matters and possibility of compulsory realisation of a duty of the debtor at the expense of its property, can be different.

Apparently, division of ways of maintenance of obligations into three groups, made V.S.Konstantinovoj, does not contain uniform criterion of differentiation of these ways: groups (penalty) are put in a basis of the first the purposes of application of the penalty; security possibility is put in a basis of the second groups (pledge) in advance by property, that is an order of application of a concrete way of maintenance and its legal effects; in a basis the third groups (guarantee) - an order of application of a way of maintenance at obligation infringement.

Speaking about the penalty as a way of maintenance of the obligation, it is necessary to note lines inherent in it in which in due time specified K.A.Grave, namely: it obespechitelnyj and additional character in relation to the provided obligation [10 [11]. Such position concerning the nature neus - L tojki is conventional, and it is fixed in the law.

Obespechitelnaja penalty function is expressed in strengthening of obligations relations by maintenance of interest of the creditor. This interest of the creditor provided with the penalty, «can consist or in execution by the debtor of obligations laying on it, or in a covering of those losses which the creditor owing to default or inadequate can incur is -


polnenija the debtor of these obligations ». According to the civil legislation the debtor, irrespective of penalty payment, is obliged at nenad - f laying execution to execute the obligation in nature. Interest maintenance

The creditor it is reached by that the debtor by threat of payment of the penalty is induced to performance of the obligations.

Really, if the basic function of the penalty consists in maintenance of interest of the creditor under the obligation penalty action probably only there where there is any obligation, able to be provided and where there is a right of the creditor to demand belonging to it owing to the obligation. Thereby the penalty always represents addition to already * to the existing obligations relation, thereof the penalty

Without the obligations relation provided with it, the so-called main obligation, cannot exist, as it would be pointless.

Additional character neustoechnogo agreements as obespechitelno -

go obligations it is shown in a number of the moments which have found reflexion in the civil legislation, and also in arbitration practice.

First, only valid obligations requirement can be provided. In this case it is necessary to understand legality of the bases of occurrence of the obligation and the maintenance of treaty provisions as the requirement validity to law requirements, and also that such requirement is not extinguished by the period of limitation. Invalidity of the basic obligation involves invalidity of the providing obligation, and, on the contrary, invalidity of the agreement on maintenance of execution of the obligation does not influence the validity of the basic obligation (item 2, item 329 GK the Russian Federation).

The treaty obligations provided with the penalty, can be wrongful if the contract contradicts under the form and the maintenance to the law if it is concluded by the unauthorized person if in it requirements of the item of item 162 are not observed, 167, 331 GK the Russian Federation. Practically it means, that the penalty under such contracts cannot be applied [12].

The second moment characterising additional character of the penalty in relation to the main obligation, that obespechitelnoe the obligation follows destiny of the basic obligation at a concession of the rights of the creditor and delegation to other person is. In this case the penalty institute is connected with such institute of civil law, as change of persons in the obligation (item 384 GK the Russian Federation).

However till now a subject of wide discussion among scientific and practical workers is the question on volumes and terms of the transferred rights, and also possibilities of a concession of the rights in a situation when the basic obligation is executed with infringement from the debtor, but the creditor has a right to penalty application for obligation infringement.

Results of the analysis of judicial-arbitration practice for last years

Testify to that courts do not recognise possibility of occurrence of plurality of persons («splitting of the rights») in the obligation arising on the basis of the agreement on a concession of the right, possibility of a concession of the right in lasting legal relations before the obligation termination. Agreements on a right concession in which the initial creditor has not left completely the obligation, admit the Supreme Arbitration Court of the Russian Federation insignificant [13]. Such пози* tsija it is supported in the literature by some authors [14].

The theoretical substantiation of a rule about inadmissibility of a concession of the right besides change of the person in the obligation is given O.Lomidze. In particular, it proves the conclusion, «first, indissolubility of communication of the right and a subjective duty; secondly, transfer by the party of the obligation of the right belonging to it without transfer of the duty assigned to it, no less than allocation by the party of the obligation from structure of the right belonging to it and transfer to the third party of separate competence would lead to infringement by the certain, set rules of law of sequence in development of the rights and duties of the parties, and as a whole — to infringement of structure of legal regulation» [15].

The essence of reasonings of the authors criticising developed practice, is reduced to the following.

1. Under V.Pochujkina's statement, it is a question of obligation maintenance in narrow sense, that is the concrete incorporeal right of the creditor, instead of about maintenance of the contract [16]. The assignor can concede to the transferee as separate * the incorporeal right (in this case there will be a change of the creditor in the separate

The obligation in narrow sense), and all requirements following from the obligation in a broad sense which are meant as separate kinds of the obligations mentioned regarding II Code. Therefore chapter 24 GK the Russian Federation regulates the relations connected with change of persons in the obligation, instead of with change of the parties in the contract [17].

2. L.A.Novoselova considers, that, when the obligation is a dividend owing to features of a subject of the obligation (the things defined by generic characteristics, sums of money), the incorporeal right concession on a debt part if other does not follow from the law, other legal acts or the contract on which basis there were conceded rights [18] is possible.

Argument in protection of such approach are positions of item 384 GK the Russian Federation in which force if other is not statutory or the contract, the right of the initial creditor passes to the new creditor in that volume and on those conditions which existed by the moment of transition [19]. As the norm stated in item 384 GK the Russian Federation, is optional so far as deviation from a rule stated in such norm, is lawful as «possibility of similar deviation not only does not contradict norm, but also is directly provided by it» [20]. Differently, if in the agreement on a concession of the right (delegation) cession of rights under the concrete obligation in any part («right splitting») a rule of item 384 GK the Russian Federation about incorporeal right transition in the volume existing by the moment of transition, does not operate is provided.

In our opinion, the requirement concession can be carried out: 1) at a stage of execution of a contract when term of counter-execution of the obligation from the debtor has not come yet; 2) when the time of performance of the obligation from the debtor has come, however it is not executed; 3) when the obligation is executed by the debtor in the inadequate image, but it is accepted the creditor.

With reference to the penalty in the first and in the second cases the right to the penalty accompanies the right conceded by the assignor under the transferred obligation (in the full or conceded part). Here «splitting of the most conceded right» is possible, but transfer of the right to the penalty separately from the conceded right under the basic obligation is impossible. In it the additional character of the penalty caused by legal nature ' • of given institute also is shown. In the latter case the creditor does not have right vtorich

nogo requirements of the execution of the obligation accepted by it. However it has a right to penalty. The creditor can realise this right by a reference to the court with the requirement about penalty and can concede it to other person that will not contradict item 382, 384 GK the Russian Federation.

At last, additional character of the penalty, is shown that the termination of the basic obligation, as a rule, attracts also the termination of its maintenance. C the expiry of the term of limitation of actions under the main requirement expires • the period of limitation and under additional requirements (under the penalty, pledge and

Etc. - item 207 GK the Russian Federation), thus has no value, whether penalty payment is based on the law or the contract. The given property of the penalty is not challenged by anybody.

However in practice there were cases when courts refused in penalty for obligation infringement for the period after the action expiry of the term договора1. Certainly, such position is erroneous, contradicts the law. The termination of the currency of the contract does not relieve from the party of responsibility for its infringement (item 4 of item 425 GK the Russian Federation), from the date of infringement objaza - ^ telstva before its actual execution penalty charge not is possible

It is dependent on the action expiry of the term договора2.

More interesting the question on is represented, whether it is possible for the parties to adjust a condition about the contractual penalty after obligation infringement

1 See: the Decision of Presidium YOU the Russian Federation from November, 18th, 1997 № 5154/96//the Bulletin YOU the Russian Federation. 1998. - № 3.

- S.77-78.

2 See: the Letter YOU the Russian Federation from January, 30th, 1995 № С1-7/ОП-54//Contractual disputes. The collection of documents.

-M., 1999. - WITH. 127-128.

The debtor at a stage of its execution if that has not been adjusted by the parties preliminary - at a making contract stage.

In practice there are cases of an establishment the penalty parties for obligation infringement already after its execution.

Odnak about in court the debtor challenges this penalty, as contradicting the law, motivating it that the obligation has stopped its execution in this connection there is no subject of maintenance.

The law, regulating an order and conditions of application of the penalty, does not order in the imperative form any term, the making agreement period about the penalty rather to stages of an establishment and debt relationship development under the contract. Therefore, considering the double nature of the penalty: on the one hand, it is a way of maintenance of the obligation; with another, the responsibility form, - is not present the convincing bases to believe, that the agreement on the penalty cannot be made the parties and after approach of the fact of infringement of the obligation to stages of its execution.

We share opinion of those authors which consider, that the penalty is also way of maintenance of the obligation, and can be the form grazhdanskopravovoj responsibility '.

The two-uniform beginning of the penalty speaks that at civil responsibility definition the bases applications (offence) are considered, its maintenances (additional burden in the form of negative consequences) and the realisation mechanism (application of measures of the state compulsion).

Payment by the debtor in a voluntary order of the penalty provided

1 See: Ioffe O. S. Ukaz.soch. - С.157; Lejst O. E. Sanctions and responsibility by the Soviet right. - M., 1981. - with. 131; Malein N.S.property responsibility in economic relations. - M., 1968. - С.118; plaited white bread - fina R.O.Obshchee the doctrine about legal relation. - M., 1974. - С.423; antimonov B.S.bas of contractual responsibility of the socialist organisations. - M., 1962. - with. 17,18; Gribanov n of the civil rights and duties. - M., 1973. - С.84; V.A.Otvetstvennost's Crests under obligations. - M., 1980. - С.6; Braginsky M. I, Vitrjansky V.V. n. General provisions. - M., 1998. - С.499,

The law or the contract for a case of infringement of the obligation, or collecting of this penalty by the state compulsion does not change the legal nature of the paid sum. It is in any case property responsibility owing to that: 1) its payment is adverse for the debtor, it causes a loss to its valuable interests, being thus additional burden in comparison with the initial obligation; 2) it is paid for obligation infringement; 3) if the penalty will not be paid voluntary when due hereunder its collecting under compulsion through the state bodies (arbitration court) [21] will inevitably follow.

From here, as to the civil responsibility maintenance, it is necessary to allocate the bases of occurrence of additional duties at privies owing to modification of the initial relation [22] which O.S.Ioffe names «additional burden», causing for the infringer certain negative consequences [23].

Depending on character of infringement, a kind of the penalty, a way of protection of the broken right, a parity with losses, - the penalty can or bear additional negative burden for the infringer, or assigns new duties (alters initial legal relation), or bears negative burden and simultaneously alters the initial obligation. In the first case it can be the penalty and the requirement about compulsion to execute the obligation in nature (goods additional delivery); in the second - collecting of the test or exclusive penalty, smaller on the size of losses under the basic obligation; in the third - penal sum collecting.

Definition of the maintenance of the penalty as the responsibility form has the important practical value for the creditor and is connected from the economic point of view with a correct choice of a way of protection of the broken right and

Possibility of application of measures of the state compulsion to the infringer.

Possibility of voluntary discharge of duty on penalty payment admitted also to N.S.Maleinym. Together that, in its opinion, at the voluntary discharge of duty, arising of an offence, the state compulsion as the responsibility sign remains necessary for, «if the offender does not fulfil voluntary the duty, responsibility is provided with compulsory withdrawal of property» [24].

So, the penalty has the uniform nature: on the one hand, it is a way of maintenance of the obligation, with another - the civil responsibility form. It is represented, that at a stage of the conclusion and execution of a contract the penalty is way of maintenance, carries out stimulating function and provides appropriate execution of a contract; at a stage of infringement of the obligation - the penalty becomes the form of responsibility with signs inherent in it. The penalty which has been not adjusted by the parties in advance, established only after the fact of infringement of the obligation, is the form of responsibility which carries out in bolshej degrees of function of punishment, indemnifications of the adverse consequences which have arisen at the creditor.


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A source: Malikova Elza Maratovna. penalty Legal regulation at the present stage. The dissertation on competition of a scientific degree of the master of laws. Kazan -. 2001

More on topic Concept of the penalty:

  1. 1.1. Concept of the penalty
  2. 1.3. History of the legislation on the penalty, the foreign LEGISLATION On the PENALTY
  3. § 2. Concept and the bases of administrative responsibility for non-payment of the administrative penalty in time, statutory
  5. 2.3. Compensatory function of the penalty in a commercial turn
  6. the purpose and penalty functions
  7. § 2. A parity obespechitelnogo payment and the penalty
  8. 1.2. The penalty maintenance
  9. principles of legal regulation of the penalty
  10. a penalty parity (as way of protection) with losses and percent for using another's money resources
  11. Ways of perfection of application of rules of law about the penalty
  12. Obligations civil matters as objects of maintenance of the penalty (in a broad sense)
  13. charge of the judicial penalty (astrent)
  14. 2.4. The penalty, as the responsibility form under commercial OBLIGATIONS
  15. rights as direct objects of maintenance of the penalty
  16. 2.2. A parity of the penalty and other ways of maintenance of OBLIGATIONS
  17. 2.1. The penalty, as a way of maintenance of execution of commercial OBLIGATIONS
  18. 1.4. The penalty nature in a commercial turn
  19. kinds of debt relationships as objects of maintenance of the penalty (in narrow sense)