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INTRODUCTION

The theme urgency is defined by influence of the new civil legislation on character of civil matters taking into account market relations.

In this connection in creation of preconditions of a lawful state it is not enough to make the penalty object of research only from a legal institution position in a separation from a liability of infringement of treaty obligations (I.B.Novitsky, L.A.Lunts).

The system analysis of penalties within the limits of the contract as agreements (V.P.Mozolin, E.A.Farnsvort) and contracts as document (M.I.Braginsky, V.V.Vitrjansky) within the limits of private (V.I.Homenko), the general signs of responsibility (V.P.Slesarev) and ways of execution of obligations (M.M.Agarkov) is necessary.

The penalty theory includes the logic basis of a liability law (F.I.Gavze); the anthological basis of "internal will╗ the person entering legal relation (O.S.Ioffe); aksiologicheskoe the basis of the purpose of penalties to satisfy corresponding public interests (for example, stimulation of appropriate execution of the obligation on the basis of various patterns of ownership (item 8 of item 2 of the Constitution of the Russian Federation).

For all these directions by the initial the subject of variability and historicity of the constitutional institutes can be recognised; obshchesotsialnye and legal guarantees; methods of influence of legal regulators on public relations under the influence of the international standards; objects of transfer of public relations in politiko-legal relations; principles of imperativeness and optionality in the right.

Condition of scientific working out of a theme.

The penalty was known to the Russian pre-revolutionary legislation. In the civil-law doctrine it was proved in works of E.V.Vaskovskogo, G.Dernburga, D.I.Mejera, I.A.Pokrovskogo,

G F SHershenevicha.

Results of studying of references for the various periods of system engineering of civil-law institutes testify that the Soviet civil law has been connected with the theory of centralisation and the concept of an autonomy of individuals. They were put forward in M.M.Agarkov, G.N.Amfiteatrova's works, s.n.bratusja, I.L.Braude, D.M.Genkina, A.G.Gojhbarga, ^ L.G.Efimovoj, G.A.Sverdlyk, G.S.Shapkinoj, Z.I.Shkundina.

Formation of development of the concept of "an autonomy of individuals╗ has passed in the theory of civil law three stages.

The first stage covers 1922-1939. It is possible to consider as its beginning the Civil code of RSFSR in which M.M.Agarkov and I.L.Braude's ideas about system of the Soviet socialist right and the state socialist property have been put in pawn.

Feature of a stage is expressed in definition of elements of the penalty in frames - shch kah doctrines about liabilities (L.A.Lunts, M.M.Agarkov). That is characteristic,

That a parity of the penalty and money, as źeventualnyj an execution subject╗ (I.B.Novitsky, L.A.Lunts), is defined by modern scientists. Term of money of the penalty finds acknowledgement in the current legislation (section 1 PS the Russian Federation).

In the second stage (1940-1960гг.) M.M.Agarkov, I.L.Braude, S.I.Vilnjansky, A.VLZenediktov, V.P.Efimochkin, O.S.Ioffe, J.A.Kantorovich, O.A.Krasavchikov, V.I.Nezhdanov, G.N.Poljanskaja, V.K.Rajher, I.A.Tanchuk, ^ J.K.Tolstoj, K.K.Jaichkov defined the maintenance of the concept of an autonomy indivi

dov within the limits of civil matters.

In researches of those years the big attention was given also to treatment of concept of "the Soviet civil law╗, to civil law "subject", "limits" of realisation and protection of the civil rights, "juridical facts" in civil law (A.V.Venediktov, A.V.Karass, D.M.Genkin, O.S.Ioffe,

s.n.bratus).

The third stage (1960-1994гг.) Century FLkovleva on responsibility problems, including property, social value of rules of law, a civil-law method of regulation and contract freedom is connected with S.S.Alekseeva, V.V.Vaskina, F.I.Gavze, N.S.Maleina, N.I.Ovchinnikova, N.V.Rabinovicha, L.N.Rogovets, I.S.Samoshchenko, M.H.Farukshina, F.N.Fatkullina, Z.M.Fatkudinova, V.A.Hohlova's workings out.

It is necessary to underline, that nerealizovannost a principle of freedom of the contract and the concept of an autonomy of individuals in development of the Soviet legislation in the conditions of socialist system of managing speaks ignoring of offers of scientists on separate regulation of property relations of the organisations and citizens. Before contract-planned economy has initially brought to nothing private property protection (V.K.Mamutov, I.N.Petrov). Opponents of the concept of an autonomy of individuals tried to confute its instructions on imperativeness of the right. They have proved the conclusion that źthe penalty in the conditions of socialist system of managing pursues absolutely other aims, carries out other functions in economic circulation and (K.A.Grave) differs in the legal configuration from similar institute under the name in the conditions of a capitalist economy╗.

In the Soviet legal literature experience of state regulation of an economy is not apprehended at mixed economy in view of "ostensibly" it źbourgeois essence╗. Precisely also display of the world tendency of socialisation of a society was not considered, and the doctrine of the economic right admitted erroneous.

The plan and the contract defined the maintenance of penalties (s.n.bratus). At an estimation of a role of economic contracts "subordination" of the contract to indicators of planned targets, inadmissibility of deviation was invariably underlined

From them under the agreement of parties (G.S.Shapkina). At the same time the opinion according to which the delivery contract is not only means of a concrete definition of a planned target (B.S.Antimonov), the tool of the control over (O.S.Ioffe's) its performance, but also way of its specification (V.K.Rajher), the original form of correction of errors in operational planning (Z.G.Krylova, N.S.Malein) was expressed.

At the same time practice of development of the Soviet economic legislation has shown expediency of comparative studying of legal regulation of economy of the USSR and foreign countries.

At the present stage in the general theory of law the individualistic concept develops. It is proved by that the autonomy of individuals exists owing to that the civil law is the right of a personal autonomy, the personal initiative imushchestvenno (J.A.Tihomirov's) independent individuals. Citizens and legal bodies enter mutual relations independently, irrespective of direct instructions of higher bodies

I

The authorities (s.n.bratus, S.F.Kechekjan).

In working out of the theory of the penalty as way of maintenance of the obligation and form of property responsibility the big role in 1950-1970гг. K.A.Grave's works (the first monographic research concerning the contractual penalty in the Soviet right), O.S.Ioffe, V.K.Rajhera, I.S.Samoshchenko, M.H.Farukshina, R.O.Halfinoj, N.S.Maleina have played.

In more later time 1970-1990гг. To questions of research of the penalty from the point of view of the property sanction, a way of legal maintenance hozjaj - j stvennyh obligations, to responsibility and ways of protection of the right T.E.Abovoj, V.A.Varkalo, S.N.Bratusem, V.P.Gribanovym's attention, j has been paid to V.S.Konstantinovoj, O.E.Lejstom, V.N.Hohlovym and others.

At research of questions of contractual discipline by penalty problems were engaged also A.V.Venediktov, O.A.Krasavchikov, B.I.Puginsky and

Others.

It is necessary to notice, that many authors during this or that time considering the penalty, investigated kinds of penalties on a parity with losses, penalty functions.

Traditionally in a science of civil law the penalty is considered as a way of maintenance of the obligation and the civil responsibility form. The penalty institute in modern legal regulation has kept a lot of traditional with the pre-revolutionary legislation and grazhdanskopravovoj the doctrine.

As a whole, definition of the penalty in the form of means of joining to the basic obligation of additional about payment by the debtor of the known sum on a malfunction case in execution, is kept and in the operating civil legislation.

At the same time, questions on definition of functions and principles of legal regulation of the penalty continue to remain a subject of wide discussion.

C acceptance in 1994 of the new Civil code of the Russian Federation, the federal acts regulating various civil property legal relations, recognises become invalid many earlier operating normative acts by which "lawful" penalties have been established. In this connection the urgency of research of questions was designated: about object of maintenance of the penalty as źway of maintenance of the obligation╗; about the uniform nature of the penalty as a way of maintenance, the form grazhdanskopravovoj responsibility and a way of protection of the civil rights.

Importance of the given research consists in definition of the purpose and functions of the penalty depending on its legal nature and stages of development of contractual legal relationship.

Not investigated in a civil law science there were questions opre -

Divisions of a place and penalty role in system of ways of protection of the civil rights. The permission of the given question has the important practical value for application of norms about the penalty.

The new Civil code of the Russian Federation has not settled questions on a parity of the penalty with such property civil-law measure, as percent for using another's money resources; limits and criteria of decrease and court of the penalty in case of disproportion of its size to consequences narushe

nija obligations.

To number of the circumstances which have caused a choice of the given theme, it is necessary to carry and the following. The optional method of regulation of civil matters which is based on equality, property independence and autonomy of will of the parties, allows to consider the penalty as a way of maintenance of the obligation within the limits of freedom of the contract and formation of will of the parties on application of the penalty in the conditions of a market mechanism.

# It is necessary to notice, that for last 70 years there is no complex

Monographic research of problems of the penalty where the penalty would be considered from the point of view of its triple legal nature (a way of maintenance of the obligation, civil responsibility forms; a way of protection of the civil rights); object of maintenance of the agreement on the penalty.

Meanwhile for this time have changed in Russia as principles of property managing, goods turnover, and the civil legislation as a whole.

^ The problems of the penalty shined in different works for these years, answered

In bolshej degrees to interests of socialist system of planned conducting economy in this connection have in many respects become outdated.

Object and object of research. Object of research is definition of the nature of the penalty from the point of view of the legal institution as a way of maintenance of the obligation, the form civil-law otvetstven -

nosti and penalty coordination in the listed qualities with way of protection of the broken civil rights. At a stage of infringement of the contractual obligation the penalty, being an implementer of rules of law and means of maintenance of interest of the creditor, represents a way of protection of civil law from the remedial point of view.

In this sense the penalty is connected with each stage of development of contractual legal relationship (O.A.Krasavchikov, V.V.Luts). Accordingly, each stage of the contractual obligation korrespondiruet defined, carried out by the penalty, function.

Object of research is definition of object of maintenance of the penalty. Recognising that objects of civil matter actions are a thing, results of spiritual and intellectual creativity, the personal non-property blessings (V.A.Rjasentsev, I.L.Braude, S.I.Vilnjansky, | I.B.Novitsky, L.A.Lunts), object of maintenance of the penalty in "wide sense" are recognised property, the debt relationships connected with lawful transition of the property blessings from one persons to another, the contracts given the shape.

Object of maintenance of the penalty in "a narrow kind" are established by the Civil code of the Russian Federation kinds of the debt relationships specified in the law, and also legal relations which are not settled by the law; but correspond to general principles and sense of the civil legislation. Obligations concern them on vozmezdnym, bilateral and unilateral, konsensualnym and to the real contracts concluded according to zako - nom. Owing to that "exchange" and "brave" obligations within the limits of cummutative contracts do not come under under the general rule to judicial protection, they not javlja - і jutsja objects of maintenance of the penalty, except the separate cases provided in the law.

Direct object of maintenance of the penalty is subek -

tivnoe the right of the authorised person which have arisen from concrete debt relationship. In this sense object of maintenance of the penalty are things, other property rights and objects of exclusive rights which as a result of the actions provided by the obligation should be transferred. Division of direct object into two kinds in the form of action and a thing speaks the uniform purpose of the contract on various legal relations.

At a stage of breach of contract the penalty represents itself as a way of protection of the broken right. Feature of the penalty is caused by character of infringement of the most contractual obligation, a parity of the penalty with other ways of protection of the broken right.

Research objective is coordination of a standard basis of the penalty with the theory of treaty obligations as a whole. The given purpose speaks that the norms providing possibility of application of the penalty for infringements of the obligation, should influence effectively (N.S.Malein's) economic relations, promote protection of the broken interests of the creditor.

Results of studying of judiciary practice show, that nerealizovannost penalty functions in stimulation of appropriate execution of the obligation is caused by objective and subjective factors.

Objective are an imperfection of the legislation, in particular, for example, item ZZZ GK the Russian Federation, a condition of economy and a general crisis of non-payments. Subjective factors are expressed in unconscientiousness of counterparts договора1, acceptance by competent bodies in some cases not absolutely fair decisions taking into account application of item ZZZ GK the Russian Federation and decrease in the penalty to the insignificant size or collecting of unreasonably high sizes of the penalty.

The work purpose has defined statement and the decision of following problems: to define a condition and level of a modern readiness in a science of citizens -

1 In 2000 across Russia among civil-law affairs in arbitration courts of 84 percent have constituted the disputes connected with default of contracts. See: the Report of the Chairman of the Supreme Arbitration Court of the Russian Federation V.F.Jakovleva at total meeting for 2000//the Bulletin YOU the Russian Federation. 2001. - № 5.

skogo the rights and legislations of the purpose, function, principles, objects of maintenance of the penalty; to open concept of the penalty from a position of civil-law institutes; to show feature of the penalty in civil matters; to define functions and problems of ways of execution of obligations; to analyse sources of legal regulation of the penalty in civil law; to investigate conditions of realisation of the penalty as way of protection of the civil rights; to reveal ways of perfection of the legislation; to investigate a penalty role in creation of legal stability in a society.

Methodological basis of research is the doctrine about the mechanism of influence of the penalty on public relations as major tool of legal regulation. During work preparation different scientific methods, such as analytical, rather-legal, is formal-logic, system-structural, historical both other general and private methods of knowledge of the legal validity were used.

Theoretical basis of the dissertation are proceedings of representatives of the general theory of law and a science of civil, enterprise, international private law.

Penalty problems are developed on the basis of konstitutsionno-legal institutes (I.S.Samoshchenko, V.M.Samoshchenko); the basic institutes of civil law (O.N.Sadikov); objects of civil matter (M.Braginsky, E.Suhanov, K.Jaroshenko); concepts of civil law (G.N.Amfiteatrov, A.G.Pevzner); (V.F.Jakovlev's) civil-law methods and subjects of regulation of public relations (V.P.Gribanov); forms of legal regulation (V.M.Gorshenev); doctrines about the obligation (I.B.Novitsky, L.A.Lunts, V.S.Tolstoj, M.M.Agarkov, F.I.Gavze, I.B.Novitsky, N.V.Rabinovich, G.Dernburg); the civil responsibility bases (O.A.Krasavchikov, G.K.Matveev, Z.M.Fatkudinov) and theories of legal responsibility (O.S.Ioffe, s.n.bratus, R.O.Halfina,

I.S.Samoshchenko, N.S.Malein, V.A.Vlasenko, V.K.Rajher, V.S.Tolstoj).

Is standard-empirical bases of the dissertation.

In work are widely used and analysed normativnopravovye certificates, judicial documents of federal authorities and subjects of the Russian Federation.

Offers on activity perfection pravoprimenitelnyh the bodies, formulated in the dissertation, are based on the analysis of work of the Supreme Arbitration Court of Republic Bashkortostan for 1995 - 2000.

At the decision of tasks in view the author of dissertation as the judge of the Supreme Arbitration Court of Republic Bashkortostan started with own vision of occurring transformations in the Russian Federation and its subjects at application of norms of the current legislation.

Scientific novelty of research consists in complex working out of concept of the penalty not only from the point of view of the legal institution and the civil responsibility form, but also from the point of view of a way of protection of the civil rights, basic elements and functions of the theory of the penalty, the target concept of the penalty, object of maintenance of the penalty, the bases and forms of realisation of the penalty, entering as positions on perfection of the legislation of offers on criteria and limits of decrease by court of the size of responsibility (item ZZZ GK the Russian Federation), the summary procedure of consideration of disputes on penalty judicially.

As the concrete contribution to research of the given theme on protection following substantive provisions, conclusions and recommendations are taken out.

1. The obligations arising from statutory kinds of contracts and the contract though and not provided by the rule of law (law), but corresponding to general principles and sense of the civil legislation (to principles of optionality, freedom of the contract, equality of the parties, etc.) to which by analogy other norms of the law are applicable, can be objects

Penalty maintenance (neustoechnogo agreements).

2. The conclusion about object of maintenance of the penalty (neustoechnogo agreements) debt relationships is connected with norms of civil law about the debt relationships placed in chapters 21 - 22 GK the Russian Federation which define concept of the obligation and principles of their execution, and in chapters 30-35, 37-55 GK the Russian Federation, regulating the concrete kinds of the obligation carrying bilateral vozmezdnyj character, and also with norms about the lawful penalties containing in various federal acts.

3. A conclusion about the triple nature of object of maintenance of the penalty. In - the first, it is connected with direct object of maintenance (the concrete right of the authorised person); secondly, it is connected with object of maintenance of the penalty in źnarrow sense╗ (a concrete kind of debt relationship); thirdly, it is connected with object of maintenance of the penalty "in a broad sense" (property civil matters of obligations character).

4. A conclusion about limitation of application of the penalty in gratuitous debt relationships. It is caused by a method grazhdanskopravovogo regulations of these relations, and also presence and a parity of countervailing equities and duties of the parties under the contract.

5. A conclusion about the triple nature of the penalty within the limits of the penalty purpose as legal institution from a position of a way of maintenance of the obligation, the form of civil responsibility and a way of protection of the broken right.

6. Definition of principles of legal regulation of the penalty is caused by legal nature of the penalty (a way of maintenance of the obligation and the civil responsibility form); objects of the penalty. The purpose and principles of legal regulation of the penalty are closely interconnected and vzaimoobuslovleny for the purpose of the contractual obligation. It causes difference of the penalty from annual interest rates on infringement of liabilities.

7. The penalty urged to provide realisation of triple function: in - the first, stimulus to real and appropriate execution of the obligation (stimulating function); secondly, a source of compensation caused by default or inadequate execution of the obligation of losses (compensatory (pravovosstanovitelnaja) function); thirdly, a signal of unsatisfactory work of the enterprise (organisation) which have broken the obligation (signalling function) [1] and the prevention henceforth similar infringements. At each stage of development of contractual legal relationship the penalty carries out certain functions.

8. The sphere of application of the penalty as way of protection of the broken right is caused by a number of factors: statutory legal effects of infringement of a concrete kind of the obligation, in the ways of protection of the right chosen by the creditor, character of infringement. The conclusion that the penalty can be applied as an independent way of protection from here follows, simultaneously with other ways of protection or to have other mediated or indirect communication with them.

Application of the lasting penalty as a way of protection of the broken right depends directly on the fact of existence of the contractual obligation and after its infringement in a case when the law allows the creditor odnostoronne to change or terminate the contract or to refuse its execution (item 2 of item 450 PS the Russian Federation).

9. A conclusion about necessity of an establishment for item ZZZ GK the Russian Federation accurate criteria of decrease by court of the size of the penalty in case of obvious disproportion of the penalty to consequences of infringement of the obligation under the current legislation.

In this connection the establishment in item ZZZ GK the Russian Federation is represented expedient: the separate (isolated) criteria for definition of limits umen

shenija penalties on separate, to most often repeating infringements; the minimum and maximum limit of reduction of the penalty; to establish as criteria of reduction of the penalty, instead of concept źconsequences of infringement of the obligation╗ (not having any legal loading), such indicators, as: the sum of the unsatisfied or broken obligation; character of infringement: whether the obligation completely (that on the consequences should attract more strict measures) is executed or the obligation is executed partially or with ustranimymi infringements, etc.; acceptance by the creditor of measures to prevention of the admitted infringement (that is organically entered in the penalty nature as the measure stimulating the debtor to appropriate execution of the obligation); the period of infringement of the obligation and inactivity of the debtor on infringement prevention, etc.; Establishment in the law as a limit of reduction of the penal sum of the determinate sum (indicator) of the collecting leaving for the sum obosnovanno of losses shown to collecting.

10. With a view of perfection of the current legislation and practice of its application followed provide obligatory pre-judicial settlement of disputes about penalty or the simplified legal proceedings (correspondence consideration of disputes under indisputable claims).

11. Also the establishment of lawful penalties in relations between legal bodies under turnkey contracts, purchase and sale, in particular on such offences, as nekachestvennost works (goods) - 5 % the penalty from cost of poor executed works (goods) is necessary; infringement of terms of elimination of defects of works (goods) - 0,1 % peni per every day of delay; infringement of terms of delivery of result of works - 0,1 % peni per every day of delay.

Scientifically-practical value of work consists in definition of complete concept of the penalty from the point of view of a way of protection of the civil rights; op -

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redelenii criteria of application of the penalty with other ways of protection depending on character and duration of an offence; an establishment for the first time objects of maintenance of the penalty. Results of research can be applied in teaching activity on civil law; in practical activities of arbitration courts on consideration of disputes on penalty.

Approbation of results of research. Substantive provisions and conclusions

Dissertations are used by the author at scientifically-practical conferences (Ekaterinburg - 1998г.; Saratov - 1998г.; Ufa - 1998г.; Sterlitamak - 1999г.; Moscow - 1999г.; Sibaj - 1999г., Chelyabinsk - 2000-200ІГ.) also are stated in the published works.

The work structure is defined by sequence and interrelation of research problems. The dissertation consists of the introduction, three heads divided into paragraphs, the conclusions and the list of the used literature.

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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 INTRODUCTION:

  1. in introduction
  2. INTRODUCTION
  3. INTRODUCTION
  4. 10.1. Introduction
  5. INTRODUCTION
  6. approbation and introduction of results.
  7. Introduction
  8. Introduction
  9. INTRODUCTION
  10. INTRODUCTION
  11. Introduction
  12. Introduction
  13. INTRODUCTION
  14. Instead of Introduction …
  15. PRACTICAL INTRODUCTION OF RESULTS OF WORK