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Obligations civil matters as objects of maintenance of the penalty (in a broad sense)

Research of object of tort in which result there is a duty on penalty payment on contractual legal relationships, is directed, first of all, on showing, to what phenomenon what phenomenon is damnified also is object of maintenance of the contractual agreement on the penalty or a statutory way of maintenance in the form of the lawful penalty.

Further for brevity statements on an investigated theme the concept designation «object of maintenance of the contractual agreement on the penalty or a statutory way of maintenance in the form of the lawful penalty» is replaced with concept «object of maintenance of the penalty».

Research of object of maintenance of the penalty is connected with object of civil matter, a subject (object) of the contractual obligation.

As is known, object of civil matter is that blessing in which occasion there is a civil matter and in which relation there is a right and a duty corresponding to it.

According to article 128 GK the Russian Federations objects of the civil rights (so also civil matters) are things, including money and securities, other property, including property rights, works, services etc.

At the same time, the question on object of legal relation is one of disputable in the Russian legal science. Debatable continues to remain as well a question on, whether actions as object can be considered

Civil matters.

In a number of modern editions there are researches about a subject of the contract (obligation) on various models of contracts, opinions on which are divided. One believe, that the contract subject by some kinds of obligations is reduced to the goods (result of works), others - to actions of the parties, the third - tend to the doctrine about a subject of the contract (obligation): legal relations have two sorts of objects - objects of the first sort ("legal") represent party liable actions, objects of the second sort ("material") represent a thing which as a result of such action should be transferred [59 [60] [61].

Last point of view supported by A.Asoskovym is a little original. So, the basic subject of any obligation is understood as actions of the obliged subject in favour of the authorised person, as object of legal relation the thing which is coming under to transfer to the creditor [62] is considered.

As truly marks M.I.Braginsky, the purpose of any contract expresses its subject [63]. Differently, the purpose of any contract is execution by the parties of the obligations taken up in which result there is a transfer of the certain property blessing.

Accordingly, at any model of the contract all constituting its subject should be guaranteed by the debtor. By the penalty appropriate execution of the contractual obligation both regarding certain action of a party liable, and regarding property, other property rights can be provided

And objects of the exclusive rights which are coming under to transfer.

We believe, that the object of maintenance of the penalty on civil debt relationship is connected with object of the first and second sort.

Thus, the object of maintenance of the penalty has triple communication: first, with direct object of maintenance (the concrete right of the authorised person); secondly, with object of maintenance in «narrow sense» (a concrete kind of debt relationship); thirdly, with object of maintenance in «wide sense» (the contracts given the shape property, the debt relationships connected with transition of the property blessings).

In "wide sense" object of maintenance of the penalty as the legal institution of the civil law fixed in the law, are property, the debt relationships connected with transition of the property blessings from one persons to another, the contracts given the shape. In this sense the penalty legal institution is connected with fixed in General provisions and the General part of a liability law of the Part of the Russian Federation first the Civil code system of norms in which the concept of the obligation and the basis of occurrence and an order of their registration, an order of their execution, maintenance and protection, a discharge, volumes of property responsibility and a parity with losses and obligation execution in nature is defined.

In "narrow sense" object of maintenance of the penalty as a way of maintenance of the obligation, kinds of the debt relationships specified in the law are, and also legal relations which directly are not settled by the law and correspond to general principles and sense of the civil legislation. In this sense the penalty legal institution is connected with system of the norms specified regarding second GK the Russian Federation with reference to separate kinds of obligations.

Direct object of maintenance of the penalty is subek -

tivnoe the right of the authorised person which have arisen from concrete debt relationship.

It is necessary to notice, that the triple nature of object of maintenance of the penalty is expressed within the limits of "contractual" and "delictual" obligations.

PIx distinction consists in the following.

The basic and important category of obligations is constituted by the treaty obligations which are the basis of occurrence of various relations between subjects of a civil property turn. In a real economic market turn of the obligation are rather closely interconnected. Treaty obligations mediate process of the reference of commodity and non-commodity production between the economic organisations, the relations connected with manufacture of works and rendering of services on is equivalent-vozmezdnyh the beginnings.

Delictual obligations relations - arise from the tort - the wrongful act contradicting norms of the civil legislation.

If the parties in the contractual obligation are the creditor (the authorised person) who has a right to demand fulfilment of actions of property character, and the debtor who is other party in the obligation in the party tort liability are called "victim" and «prichinitel harm» (debtor).

In treaty obligations to the incorporeal right of the creditor there corresponds a duty of the debtor to make action or to refrain from action. The incorporeal right of the creditor and a duty of the debtor corresponding to it, and sometimes and the mutual rights and duties of the creditor and the debtor constitute the debt relationship maintenance.

In tort liabilities the debtor is obliged to compensate only damnified, to return unjust enrichment and to pay damages. Besides, for the sum of superficial monetary enrichment charge is possible

Percent for using another's means (item 395 GK the Russian Federation).

At last, essential distinction of obligations contractual legal relationships and tort liabilities consists that the first is based on lawful acts of subjects of law, and the second follows from misbehaviour of one of the parties.

Unlike contractual, tort liability does not assume preliminary communication between prichinitelem harm and to victims. The norms regulating tort liability, are directed on protection of an uncertain circle of persons. The sphere of influence of these norms is very wide, that provides protection of the various rights of a considerable quantity of persons unlike the contract which is directed on oposredovanie interests of concrete persons - participants of the contract.

In connection with the stated there is a lawful question: whether are object of maintenance of the penalty any obligations relations, both contractual, and non-contractual, "delictual" obligations? On the given question in the literature there is no unequivocal answer.

So, proceeding from the literal sense of item 187 GK RSFSR, V.S.Konstantinova sees, that by the penalty the non-contractual obligation (for example, the tort liability) can be provided both contractual, and. Fairly noticing, that practice does not know penalty cases for delay of compensation of harm the disputable conclusion, in our opinion, is drawn that joining of the additional obligation to the main obligation (based on the law) does not contradict законодательству1. Thus the main obligation is understood as the tort liability. Such relation contradicts principles of execution of the obligation.

Truly that the civil rights and duties arise from the bases, statutory and other legal acts which should not contradict civil law principles. But according to item 309 GK the Russian Federation under properly executed obligation the legislator understands the obligation executed according to conditions of the obligation and requirements of the law. Accordingly, the debtor is obliged to pay to the creditor, instead of the victim who is the party in the tort liability (item 1064 GK the Russian Federation), the penalty in case of default or inadequate execution of the obligation (item ZZO GK the Russian Federation).

That in the tort liability between sustained and prichinitelem harm is not present is characteristic and there can be no in advance reserved conditions of execution of the given obligation as neither that, nor another does not plan and does not make purposely any actions to tort liability approach. Tort liabilities are characterised by the action contradicting norms of the civil law. Subjects of law should refrain from fulfilment of such action. The transaction (contract) represents the lawful legal act directed on achievement of certain legal effects, and it is delimited by it from wrongful acts.

The transaction (contract) are directed on achievement of positive result to which the parties aspire. In this connection tort liabilities are not regulated by General provisions of the civil legislation on the contract.

V.P.Gribanov, arguing on distinctions contractual and out of contractual responsibility, fairly noticed, that "forms of contractual and non-contractual responsibility" [64] are various also.

The legislator under tort liabilities on occasion establishes responsibility in the form of compensation of not received income, payment of bank percent for using another's means for the sum neosnova -

t

telnogo monetary enrichment (st, 1107 GK the Russian Federation — obligations arising from unjust enrichment) or in the form of compensation of harm and possibility of charge of bank percent on the basis of item 395 GK the Russian Federation since the moment when the decree about duty putting on to compensate harm money has entered in lawful силу1.

The impossibility of maintenance with the penalty of the delictual (non-contractual) 41 obligations which have arisen from actions, contradicting the law, is dictated and

The special signs inherent in the given legal institution: its additional, obespechitelnym (in relation to the basic obligation) and stimulating execution of the obligation by character. As tort liabilities and unjust enrichment do not assume the conclusion between prichinitelem harm and to victims of the contract so far as there are no legal grounds for penalty application.

The told allows to consider proved opinions of those authors, koto - 11 rye consider, that the penalty in tort liabilities cannot be applied,

"As tort liability rules have imperative character, in communication than the parties of the given legal relation cannot change at own discretion a condition of responsibility and its size" 2.

Compensation of harm or payment of not received incomes, otherwise, the indemnification under non-contractual obligations, on the legal nature is responsibility prichinitelja harm or the person superficially enriched at the expense of another's property. The law does not provide ^ a penalty establishment on a case of default or inadequate ispolne

nija (delays in performance) of responsibility in the form of harm compensation under tort liabilities. The penalty serves as means of maintenance of lawful acts of the parties, cannot be means of maintenance of performance pra -

1 See: the Decision of Plenum of the Supreme Court of the Russian Federation and YOU the Russian Federation № 13/14 from October, 8th 1998г.//the Bulletin YOU the Russian Federation. 1998. № 11.-S.13.

2 Smirnov B.T., Sobchak A.A.general the doctrine about tort liabilities in the Soviet civil law. - L, 1983.-S.101.

vonarushitelem statutory responsibility in the form of the indemnification or the payment of percent provided by item 395 GK the Russian Federation.

Apparently, tort liabilities are not objects of maintenance of the penalty.

Negative legal effects causes not only the tort, but also the void contract. Concerning the legal nature of the void transaction in the literature there are different points of view: one authors carry it to сделкам1, others — to правонарушениям2.

Meanwhile among scientists there are no disagreements that obligations of the parties under the void contract are not object of maintenance of the penalty. It is proclaimed by the law: the void transaction does not generate legal effects (item 167 GK the Russian Federation). The given circumstance is confirmed by numerous examples from judicial-arbitration practice.

Judicial and arbitration practice has developed four kinds of the requirements concerning the validity of transactions to which the attention and in scientific литературе3 is paid.

Therefore here especially it is necessary to underline that object of maintenance of the penalty in "wide sense" are the property debt relationships which have arisen on the basis of the prisoner between the parties of the contract. Those legal relations can be object of maintenance both contractual, and the lawful penalty.

The law defines concept of the contract as the agreement of two or several persons on an establishment, change or the termination of the civil rights and duties to which rules about transactions and general provisions on obligations (item 420 GK the Russian Federation) are applied.

' See: Shakhmatov V.P.Sostavy of illegal transactions and the consequences caused by them. - Publishing house Tomsk un y, 1967. - With. 164.

2 See: Novitsky I.B.transaction. Limitation of actions. - M., 1954, - С.65; Rabinovich N.V.invalidit of transactions and its consequence. - Publishing house I LIE, 1960. - S.11-12, 157-158; Agarkov M.M.Ponjatie of the transaction on the Soviet civil law//the Soviet state and the right. 1946. - № 3-4. - С.55.

3 See: Heifetz F.S.invalidit of transactions on the Russian civil law. - M., 1999. - S.46-49.

Defining interrelation of objects of maintenance of penalty C of a position "transaction-obligation-contract", M.I.Braginsky writes: "Concluding the contract, the parties should be guided by the head about transactions (meaning necessity of conformity of the contract to conditions of the validity of transactions); the heads devoted to general provisions on obligations (they define how should be executed dogovory as execution can be provided and what ♦ responsibility attacks a case of their infringement); the norms devoted

To conditions of contracts, and also order of their conclusion (the part of these norms concerns contractual treaties, and the others to contracts-pravootnoshenijam) "1.

According to point 2 of item 421 GK the Russian Federation the parties can conclude the contract as provided, and not statutory or other legal acts.

There is a question: whether all contractual debt relationships including not statutory, are object obespeche - SH nija penalties? The answer to the given question contains in definition juridiche

skoj the penalty nature, more precisely, the bases of its occurrence.

As it was marked above, the penalty can arise: 1) on the basis of the contract, when the parties the agreement concluded in writing (item ZZ 1 GK the Russian Federations) have specially provided the penalty to those legal relations and obligations about which they have agreed; 2) on the basis of the law when the penalty to those or other debt relationships and concrete obligations of the parties is defined by the law and it is applied irrespective of, whether the duty of its payment by the agreement of the parties (item ЗЗ2 GK the Russian Federation) is provided.

The given standard positions have basic value for question definition: what contractual relations can be object of maintenance of the contractual penalty, and what - the lawful penalty, or in general in

! Braginsky M. I. Dogovory and their place in civil law. - С.95. The similar opinion see: Halfina R.O.Znachenie and essence of the contract in the Soviet civil law. - with. 120.

The plan of definition of that object and other kind of the penalty there are no distinctions.

As a civil law science has affirmed trehchlennoe division of contractual conditions on: essential, usual and casual, that has found reflexion in the majority published at various times учебников1. In the literature at illumination of the various questions connected with the maintenance of contracts, as a rule, representations about essential treaty provisions which the Russian Federations directly follow from item 432 GK are reproduced.

According to norms of civil law the contract is considered the prisoner if between the parties in the form demanded in coming under cases the agreement under the essential treaty provisions is reached. Thus the contract can be concluded in any form provided for fulfilment of transactions if by the law for contracts of the given kind it is not established defined форма2.

Indicative example is business under the Limited liability company claim «the Titan Transit» to Joint-stock company of open type "Bashneftegeofizika" about exaction of a penalty in connection with oil delay in delivery under contracts of purchase. The debtor on business called in question the making contract fact. The presidium of the Supreme Arbitration Court of the Russian Federation recognised, that signing of the disputable contract from Open Company "Башнефтегеофизика" took place with addition, the seller suggested to change a procedure of payments for production, having replaced payment of oil after reception to the advance payment.

In the Decision of Presidium YOU the Russian Federation is noticed, that «conditions about a subject of the contract which conditions are recognised by essential by the legislation are essential or all those conditions concerning which under the statement of one of the parties should are necessary for contracts of the given kind, and also

1 See: the Soviet civil law. - M., 1950. - S.370 - 371; the Soviet civil law. Т.1. - M., 1965.

- С.449; the Soviet civil law. - Kiev, 1977. - С.403.

2Cm.: whether Novoselova L.A.Zakljuchen the contract//the Economy and the right. 1994. - № 9. - with. 102; Braginsky M. I, Vitrjansky V.V. n. - С.238.

To be reached the agreement ». As to addition to the contract concerning change of a procedure of payments for production, according to the Supreme Arbitration Court of the Russian Federation, it for the parties is essential. As the agreement on the given essential condition is not reached by the parties, the contract from 16.06.94г. It is recognised by not prisoner, and penal actions - by unreasonable [65]. The Supreme Arbitration Court of the Russian Federation consistently adheres to a position according to which follows, that the court does not have legal grounds for satisfaction of the penalty provided under the contract if this contract does not allow to define its essential conditions owing to what cannot be considered as the prisoner [66].

Apparently, object of maintenance of the contractual penalty owing to its specificity can be, without any doubt, the legal relations following from "written contracts" in which text of the party have provided as maintenance of the obligation the penalty or have entered into the separate agreement on the penalty in addition to the basic contract, that in practice happens seldom.

Meanwhile the contract can be in writing concluded by drawing up not only one document signed by the parties, and also by an exchange of documents by means of the post, cable or other communication allowing authentically to establish, that the document proceeds from the party under the contract. Thus the written form of the contract is considered observed at fulfilment by the person who has received the offer, in time, established for its acceptance, actions on performance of the conditions specified in it (item 434 item, item Z item 438 GK the Russian Federation). Behind absence at least one of these conditions, about which there are special instructions in the law (for example, a condition about quantity of the goods in the purchase and sale contract), it it is impossible to consider the contract concluded and found a validity (item 465 GK the Russian Federation).

The legal relations arising on the basis of contracts, concluded not in the form of the uniform document signed by the parties, and a different way, certainly, are object of maintenance of the lawful penalty if that is statutory for certain infringements of obligations character by the given kind of debt relationships. At the same time, hardly there are legal grounds to approve, that considered legal relations are object of maintenance of the penalty of contractual character. If the parties have not constituted the uniform document regulating their mutual rights and duties, conditions of execution of the obligation and their maintenance they will not enter into separately the agreement on the penalty which as the law demands, should be made in writing. In this case, at infringement of the obligation of one of the parties be right other party cannot are provided by the penalty.

For example, under the bailment for hire the simple written form is considered observed if thing acceptance on storage is certificated by the keeper delivery to the depositor of the trust receipt, receipts, the certificate or other document signed by the keeper (item 887 of item 2 GK the Russian Federation). The Civil code to take established the duty of the depositor a thing back after the caused period of storage and legal effects of default of the given obligation. The law at the moment does not establish the penalty for infringement of execution by the depositor of the specified duty. The specified example is, in our opinion, convincing acknowledgement of a conclusion that similar obligations in the absence of the separate agreement signed by the parties on the contractual penalty cannot be object of its maintenance.

However in practice there are cases when the parties in tovarorasporjaditelnyh or other documents (for example, in a waybill on goods reception) specify terms of payment of the goods and reserve the penalty on a case on -

rushenija obligations. In such cases at observance by the parties of all requirements of the law on a subject of the obligation and presence of its essential conditions in this document or acknowledgement by other party of counter will on obligation execution, and also conditions about the transaction validity (when the maintenance and legal result of the transaction does not contradict the law; it is made by the capable, authorised person; the transaction form corresponds to the form, # statutory for the given transaction, etc.), it is considered, that has me

Hundred contractual penalty.

In the literature there is an opinion that the object of maintenance of the penalty arises and in the absence of contractual relations. So, for example, confirming to the conclusion V.A.Semeusov refers to norms of Positions about the deliveries establishing responsibility in the form of the penalty in spite of the fact that the basic obligation of delivery is absent [67 [68].

Really, points 68, 84 Positions «About deliveries of the goods people - F nogo consumption» have been provided penalty from the supplier in

Advantage of the buyer (addressee) for delivery without the consent of the buyer of the goods which have been not provided by the contract, or with infringement of treaty provisions, and also in the absence of contractual relations if the buyer has refused acceptance of these goods for use and has left them on responsible storage, and also - for a delay over order target dates about use of the goods [69].

However in first two cases it is a question of infringement by the supplier ус* ~

lovii contracts of delivery regarding the name, assortment, the quantity provided by the contract of delivery of the goods. And only in the latter case it is a question of penalty for delivery of the goods in the absence of contractual relations between the supplier and the addressee.

It is necessary to notice, that the penalties provided by Positions about deliveries of the consumer goods and production proizvodstvennotehnicheskogo of appointment, before introduction of a part of the Russian Federation first the Civil code were applied as lawful penalties. In the conditions of socialist system of planned conducting managing the legislator introduction of such measure, probably, pursued the aim to harden contractual relations both contractual discipline of deliveries and their strict execution: on the one hand, application to the infringer-supplier of responsibility in the form of the penalty; on the other hand, realisation of protection of valuable interests of the buyer (addressee) which did not order put production. Though in a considered case, in the absence of contractual relations between the parties, the penalty did not carry out the main function - maintenance of appropriate execution of the obligation - and hardly in this connection had effective value. Besides, the penalty represents in this case a civil responsibility measure - responsibility of the debtor before the creditor. At absence between the parties of contractual relations on delivery the addressee of not ordered production cannot be considered as the creditor before the supplier, accordingly, there are no at it actual bases for putting on on other party of responsibility in the form of the penalty.

In the light of the further perfection of an economic mechanism and development of market relations, it appears, not casually named penalties for the specified offences have not been reproduced in new Positions about deliveries of the consumer goods and production is industrial - the technical appointment, accepted in 1988 [70]. Application of the lawful penalty at absence between the parties of contractual relations has not found acknowledgement neither in the law, nor in normative acts about an establishment of the penalty, operating during the period before acceptance of the new Civil code of the Russian Federation, in a sou -

Debno-arbitration практике1.

On the contrary, the higher degrees of jurisdiction the conclusion that if the contract between the parties is absent, there are no also bases for responsibility application in a kind неустойки2 time and again became. Therefore at the disposal of legal proceeding, arising in connection with inadequate fulfilment by bank of operations under the account, it is necessary to consider, that the penalty provided by article 856 of the Code, is lawful and can be applied to the bank serving the client on the basis of the contract bank счета3.

Such position concerning object of maintenance of the penalty is based on the law and follows from legal nature of the penalty: the penalty is only there where there is a debt relationship and object of maintenance; the obligation arises on the basis of the contract between privies (item 307 item, 329, 330 GK the Russian Federation).

Meanwhile in practice there are various cases of participation of the third parties which are not the party under the contract, in the legal relations which have arisen between the parties that occurs at will of one or both parties; or execution of obligations of one of the parties depends on action of the third parties interfering execution of the obligation. For example, the parties under the contract can provide in the contract as the addressee of the goods (works, services) the third party, or it can be connected with payment of the sum of the contract to the third party.

Judiciary practice has developed the uniform approach at the resolution of disputes regarding requirements of creditors about application of responsibility in the form of the penalty

1 See: item 8 of the Decision of Presidium of the Supreme body of the Russian Federation and the Government of the Russian Federation from May, 25th, 1992 № 2837-1 "About urgent measures on improvement of calculations in a national economy and increase of responsibility of the enterprises for their financial condition"; Decisions of supervising board YOU Russian Federation Н-27-11 from 23-27.02.1995г., H-I from 1703.1993г., item 2 of the Letter YOU the Russian Federation from 29.05.1992г. № С-13/ОПИ-122 "About exaction of a penalty for untimely return of container from the addressee who is not the buyer, and about bezaktseptnom a procedure of payments for the released electric power"//Fursov D.A.deliver: the Grant for judges of arbitration courts. - M., 1997. -

With. 13,19,89 (accordingly).

2 See: the Letter YOU the Russian Federation from 28.04.1994г. "About the separate recommendations accepted at meetings on judicial-arbitration practice 7/the Economy and the right. 1994. - №7. - S.146-147,

3 Sm: point 20 of the Decision of Plenum of the Supreme Court of the Russian Federation and Plenum of the Supreme Arbitration Court of the Russian Federation from October, 8th 1998г. № 13/14//the Bulletin YOU the Russian Federation, 1998. - № 11.

For obligation infringement in such cases. The position of courts of justice on the given question can be expressed two conclusions. First, the third parties in which advantage payment is made or production under the contract is shipped, are not responsible for execution of contractual obligations from the debtor, accordingly, do not bear responsibility in the form of payment of the penalty [71 [72]. In - the second, responsibility for execution of contractual obligations, sootvetst - #1 venno, responsibility in the form of the penalty for execution infringement objazatel

stva, it is not put in dependence on actions of the third parties interfering execution of the obligation by the debtor.

Such approach pravoprimenitelnyh bodies is based on item 401 GK the Russian Federation. The debtor is not released from an obligation liability of infringement if it has occurred because of counterparts of the debtor, in view of absence in the market of the necessary goods.

The theme investigated by us about object of maintenance of the penalty is closely connected with a question on the subject of putting on of responsibility in the form of the penalty in relations with participation of the third parties; at an establishment in the law of direct responsibility. However the given question is behind frameworks of our research in this connection in detail it is not considered.

So, object of maintenance of the penalty in «wide sense» are contractual property, debt relationships.

2.2.

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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

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