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§3. Other principles of a liability law

The principle of stability of the obligation follows from norms GK the Russian Federation, other normative acts, judiciary practice. The major element of the given principle opening its essence, compulsion of the contract for persons, its concluded is.

Stability of the obligation means, besides other, «a constancy of its maintenance, namely inadmissibility of its unilateral change without dependence from that, the rights and duties of the parties by the law or the agreement of the parties» [201 [202] [203] are established. It is possible to approve, that a stability principle - the requirement not only to the most obligations relation, but also to its maintenance.

The stability principle «is directed on formation steady,

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Reliable and predicted turn ». There is a number of guarantees of stability of an economic turn: a condition about the periods of limitation, accurately fixed procedures of protection of the rights of participants of a turn, antimonopoly

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The legislation. In a science the system of the legal means providing stability of the contract [204] is allocated also.

Some authors (for example, S.A.Somenkov, A.J.Kabalkin) approve, that the stability principle is not inherent in a domestic liability law [205]. The similar conclusion becomes on the basis of that GK the Russian Federation supposes in some cases cancellation, contract change, unilateral refusal of obligation execution. It is difficult to agree with similar opinion. Existence of legislatively established, strict procedure of cancellation, change of the contract, unusual cases of an admissibility of unilateral refusal of obligation execution should be considered as arguments in favour of that the civil legislation is under construction on the beginning of stability of the obligation. Under A.S.Egorovoj's statement, that fact, that «the contract can be terminated only with the consent of both parties, confirms more likely, instead of confutes a course of legislative regulation on preservation of stability of the civil circulation» [206 [207]. It is necessary to agree With similar judgement.

In separate works it was noticed, that the principle of stability of the obligation includes only two elements (inadmissibility odnostoronne -

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go refusal of execution of the obligation and a constancy of its maintenance). The similar understanding of the given phenomenon should be considered as narrow. In fuller sense the stability principle reveals in following positions of the current legislation:

- Inadmissibility of unilateral refusal of obligation execution;

- Legislatively established exhaustive list of cases of a discharge (gl. 26 GK the Russian Federation);

- Rule about that the contract should correspond to obligatory rules for the parties, operating at the moment of making contract (item 1 of item 422 GK the Russian Federation). Exceptions can be provided only the law;

- Strictly established order of change and contract cancellation (gl. 29 GK the Russian Federation).

As one of the major displays of a principle of stability the requirement of inadmissibility of unilateral refusal of the obligation execution, provided by item 310 GK the Russian Federation acts. As fairly marks N.A.Amirov, the specified rule should be understood, how inadmissibility not -

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Lawful, instead of any refusal.

The given fact directly follows from item 310

GK the Russian Federation in which force possibility of unilateral refusal can be fixed in the law, and with reference to enterprise relations also in the agreement of the parties.

Traditionally corrected about inadmissibility of unilateral refusal of obligation execution it is allocated as a principle of execution of obligations. Moreover, a number of scientists consider it as a component of a principle of appropriate execution [208]. However principles of execution of obligations in bolshej to a measure place emphasis on performance of the requirements, concerning fulfilment of certain actions (a specific performance principle), and also their quantitative and qualitative characteristics (a principle of appropriate execution). The rule about inadmissibility of unilateral refusal characterises process of execution of the obligation about some other party. It orders, that it is impossible to refuse execution basically, not paying attention to actions on execution, their quantitative and qualitative aspects.

The stability principle finds the reflexion and in norms about separate kinds of obligations. For example, owing to item 1 of item 617 GK the Russian Federation transition of the property right to the leased property to other person is not the basis for change or rent contract cancellation. On realisation of stability of the obligations relation some norms of non-contractual obligations are directed also. Restrictions for cancellation of the public promise of the award (item 1056 GK the Russian Federation), changes of conditions and cancellation of public competition (item 1058 GK the Russian Federation) are established.

The orientation on achievement of stability of obligations is traced in judiciary practice materials. Applying above-stated and other norms, courts for a substantiation and specification of the position on concrete affairs quite often specify in necessity of maintenance of stability of a turn, thereby confirm and develop idea about existence in civil law of a principle of stability.

So, the citizen has addressed in the Constitutional Court of the Russian Federation with the request to check up constitutionality of position of item 4 of item 817 GK the Russian Federation in which force change of conditions of the released state loan is not supposed. The court has specified, that the challenged norm is directed on maintenance of stability of obligations of the state under the contract of the state loan and that cannot be considered as breaking constitutional laws and freedom of citizens [209 [210].

In one of the decisions the arbitration court, checking conformity to the law of separate positions of the credit contract concluded between bank and the citizen, has noticed, that a condition about the bank right independently to change conditions of the credit contract contradict established GK the Russian Federation to an order of change and cancellation of the contract and outrage the consumer

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On stability and an invariance of contractual relations. The specified conclusion of court underlines importance of a principle of stability of obligations for practice, and also its close connection with statutory order of cancellation and change of civil-law agreements.

On an another matter by consideration of the appeal for review the arbitration court has noticed, that courts of subordinate instances, satisfying the debt recovery suit under the unsatisfied contract of delivery, and also interests on arrears of payment of the goods, considered a principle of stability of contractual relations [211 [212]. Invariances of the agreement of the parties, it is necessary to recognise the approach according to which courts start with a presumption nerastorzhimosti, progressive, promoting correct development of the civil circulation.

Besides the pravoprimenitelnogo values, the stability principle began to play recently more and more a special role in pravotvorcheskoj activity. In the Concept of development of the civil legislation of the Russian Federation it is specified, that in a special direction of development it is right it is possible to allocate the positions which direct purpose is maintenance of stability of civil-law regulation and stability of the civil circulation. Necessity of consecutive carrying out at level of a legislative policy of a principle of preservation the concluded contract is especially underlined once.

The principle of stability of obligations, first of all, contractual, is to some extent reflected in the foreign right. So, according to the Civil code of Italy the contract is effective as law for the parties, its concluded, and can be terminated only by a mutual consent or for the reasons directly specified in the law. The similar rule is established item 1134 of the French Civil code. The analysis of the foreign legislation has allowed O.A.Kuznetsovoj to draw a conclusion that abroad the stability principle is provided with means, a part from which in general neiz -

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vestny to the Russian right.

The norms providing stability of obligations, contain and in Principles of the European conventional law. In particular, the party is obliged to execute the obligations even if execution became more burdensome in view of increase in cost or essential reduction of value received [213 [214] [215]. Contract change according to the specified document probably only at occurrence of such conditions at which contract execution becomes excessively burdensome, and only at observance of certain procedure.

Some Ukrainian authors specify in existence of a principle of compulsion of the contract following from norm of item 629 GK of Ukraine according to which the contract is obligatory for execution storo - нами2. The resulted point of view is represented true and applicable to the Russian right with that reservation, that compulsion of the contract - one of displays of a principle of stability.

Interesting the question on a parity of principles of freedom of the contract and stability of the obligation is represented. The specified beginnings supplement each other though carry out different functions. In particular, A.G.Karapetov allocates «paradox of two freedom». At making contract freedom of choice (the counterpart, conditions, etc.) is given to the parties. After its conclusion «the counterpart loses the right to change the mind, and its personal liberty is limited». As writes E.A.Farnsvort, at the moment of making contract «there is an instant transition from a condition neotvetstvennosti to a responsibility condition. Before its approach both parties have the right to interrupt negotiations about making agreement» [216]. It is possible to add told by that at approach of the specified moment the principle of stability of the agreement to which all its subjects are obliged to follow operates.

According to A.S.Egorovoj, «in the general plan it is possible to approve, that contract freedom is one of conditions of its stability» [217]. The similar idea dominates in works of German authors which approve: «freedom of the contract inseparably linked with a principle of firmness of the contract that means compulsion of the reached arrangement» [218 [219]. Thus, principles of freedom of the contract and stability of the obligation are closely connected and vzaimodopolnjajut each other.

About that the doctrine and judiciary practice have not to the full apprehended

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Principle of stability of the obligation, it was fairly specified in a science. The concrete measures directed on the permission of a similar problem were offered also. For example, according to separate authors, introduction of a presumption of optionality of norms of the conventional law [220] can become step to maintenance of an invariance of civil-law agreements. The specified position was exposed to criticism. In particular, E.V.Bogdanov noticed, that such measure as the increase in number of provisional rules, will not solve a problem of instability of the contract [221]. Other exit from a situation Instead is offered: perfection of the legislation and practice of its application, including taking into account foreign and international experience [222].

We consider, that realisation of the idea offered by E.V.Bogdanovym, it is capable to raise stability of obligations. Nevertheless, it is difficult to agree that introduction of a presumption of optionality will not affect in any way a principle of "firmness" of the contract. Reduction of number of mandatory provisions, possibility to demand a contract recognition void only in unusual cases are not only directions of development of stability of obligations relations, but also should raise respect of counterparts for the contract, consequences of its default.

It is necessary to notice also, that stability is not only a legal category, but also economic. Hence, stability is economic-legal principle, providing an invariance of the obligation, its maintenance and conditions. The specified principle directly is not fixed in the legislation, but follows from its sense, proves to be true judiciary practice. At the same time, obviously, as the civil legislation, and pravoprimenenie have not to the full apprehended a stability principle that it is possible to consider as one of problems of domestic civil law.

Principle of protection of the rights of the creditor. It is conventional, that the basic direction of action and an overall objective of existence of a liability law is protection of interests of the creditor. With the resulted thesis the majority of scientists agrees. So, according to S.A.Hohlova, «inherently the liability law is the body of rules, directed on protection of the creditor and establishing legal means of reception lamenting to it under the contract or the non-contractual obligation» [223]. Really, the debtor - a party liable. The civil law the priority puts investment of subjects with the rights, creation of mechanisms for their real realisation, hence, the law first of all protects the persons having the right, instead of a duty.

Principle of protection of the rights of the creditor as the basic idea of a liability law, follows from branch principles of civil law, first of all, unobstructed realisation of the civil rights. It is necessary to tell, that in a science the attention to the question on inclusion in GK the Russian Federation of the general provisions and even a principle establishing compulsion of civil obligations, inadmissibility of refusal of their execution [224 [225] is fairly brought. Besides it affirms about existence of a principle of the guaranteed realisation of civil law and duties which means «the requirement to research of the measures directed on achievement of economic, legal, material, organizational guarantees of realisation

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The rights and discharge of duties ». Taking into account that similar measures are directed first of all on protection of interests of the authorised person, in a liability law principles of necessity of execution grazhdansko - legal duties and the guaranteed realisation find the reflexion in the norms directed on protection of the creditor. Thus, the principle of protection of the rights of the creditor is private display of the branch beginnings of civil law.

The liability law orientation on protection of interests of the creditor is discriminating line of obligations relations. The given fact does not cancel that the considered category is simultaneously and a principle. In civil law it was repeatedly noticed, that the same phenomenon can be simultaneously both a principle, and a method, and discriminating line of branch [226 [227] [228]. With reference to a situation considered by us it means, that the idea of protection of the rights of the creditor is basic at regulation of obligations relations, the Russian Federation, judiciary practice is shown in norms GK, considered by the legislator in the course of reforming of the civil legislation.

So, a vivid example of realisation of a principle of protection of the rights of the creditor is the institute of maintenance of execution of obligations. Under statement B.M. G ongalo, «ways of maintenance are capable to guarantee interests of the creditor» 2. Moreover, practically all the ways long maintenance of execution of obligations can be considered as additional ways zashchi -

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You of the broken rights. Some ways of maintenance directly stimulate the debtor to discharge of duties (the penalty, the deposit), others protect interests of the creditor in case of default possibility of collecting of a sum of money from other person (the guarantee, a guarantee), the third induce the debtor to appropriate execution of the obligation, and at its infringement guarantee protection of interests of the creditor (pledge, deduction) [229]. It is remarkable, that GK the Russian Federation directly specifies in not exhaustive character of the resulted list: maintenance different ways can be statutory or the contract that means possibility of creation of supplementary measures of protection of the creditor.

Some other norms of the general part of a liability law also should be considered as reflexion of a principle of protection of the rights of the creditor, in particular positions about subsidiary and a joint liability, counter-execution of obligations [230]. As One more effective remedy of protection of interests of creditors position of item 2 of item 317 GK the Russian Federation that in the liability can be provided that it comes under to payment in roubles in the sum equivalent to the determinate sum in a foreign currency or in conditional monetary units serves. A similar rule in a condition to secure the creditor against negative consequences of inflation [231].

The principle of protection of the rights of the creditor finds the reflexion and in the norms, concerning non-contractual obligations, in particular, the obligations arising from the public promise of the award (item 1055 GK the Russian Federation), public competition (item 1057 GK the Russian Federation). The similar conclusion can be made at the analysis gl. 59 GK the Russian Federation, regulating obligations owing to injury. The specified rules, in bolshej to a measure protect interests of the victim which is the creditor, instead of prichinitelja harm or other debtor.

The idea of protection of the creditor is applied and to the decision of concrete practical problems by vessels, for example, for argument strengthening on business. So, the Federal tax service has addressed in Arbitration court with the statement for discharge of citizen S and for a recognition inadequate execution of duties by it competitive operating the debtor, in particular, the conclusions with citizen CH of the employment contract with a monthly rate of commission of 17 300 roubles, and also about a recognition unreasonable and unliable to compensation at the expense of property of the debtor in full the expenses of citizen S suffered in procedure of bankruptcy proceedings of the debtor and constituting compensation of citizen CH under the specified contract. The arbitration court has satisfied the specified statement. The given decree is upheld by higher instances, and the Supreme Arbitration Court of the Russian Federation has specified, such decision is directed on protection of creditors against probability of causing of losses in the form of stimulating payments to the worker in this connection does not contradict the law and explanations of the higher degrees of jurisdiction [232].

That fact, that norms of a liability law protect, first of all, interests of the creditor, is used by vessels at interpretation GK the Russian Federation, revealing of true sense of the law. For example, according to item 330 GK the Russian Federation the penalty as the measure of maintenance of the obligation, urged to stimulate the debtor to appropriate execution of the obligation. From this position the court has drawn a conclusion, that the size of the penalty collected by court should not reduce level of guarantees of civil-law protection of the creditor, promote impunity of the debtor in case of its evasion from execution of the obligation [233]. In an another matter the court has come in a conclusion, that the obligations which have arisen within the currency of the contract of the guarantee on the basis of corresponding requirements of the creditor, do not stop with the contract expiry of the term as other would mean impossibility of protection by the creditor of the rights in connection with breaches of contract [234].

The principle of protection of the rights of the creditor is applied and in pravotvorcheskoj activity. A number of positions of the Concept of development of the civil legislation the Russian Federations with a view of protection of interests of the creditor contain instructions on necessity of modernisation of separate norms GK. In particular, owing to item 4.1.11 with a view of protection of the rights of the creditor who has superficially lost the incorporeal right, followed define, with what help of ways of protection the creditor can restore the rights if a number of consecutive concessions took place.

Norms in which the principle of protection of the rights of the creditor is realised, are directed, more often, and on achievement of stability of the obligation. However there are exceptions. In these cases the legislator should choose the most rational approach to a parity of the specified principles.

So, on protection of interests of creditors the rule of item 562 GK the Russian Federation which gives the additional rights to creditors under the obligations included in structure of the sold enterprise is directed. The creditor who in writing has not informed the seller or the buyer on the consent to delegation, has the right within three months from the date of reception of the notice on sale of the enterprise to demand or the termination or preschedule execution of the obligation and compensation by the seller of the losses caused to it, or a recognition of the sale contract of the enterprise void completely or in a corresponding part. Obviously, in the specified case of the right of the creditor should be properly provided. Nevertheless, position that the creditor can demand a recognition of the sale contract of the enterprise the void is represented disputable. In the given situation restriction of a principle of stability of the obligation is not to the full proved.

From the point of view of protection of the creditor and sufficient the right of the last to demand the termination or preschedule execution of the obligation and compensation by the seller of the losses caused to it sees necessary, that, in turn, is provided with joint and several liability of the seller and the buyer under the enterprise sale contract (item 4 of item 562 GK the Russian Federation) [235]. In the literature it was noticed, that «the requirement about a transaction recognition entirely void item 562 under item 2 GK the Russian Federation zloupotrebitelno is used by creditors for blackmail as seller, and the buyer» [236]. Thus, would be correct to exclude from item 2 of item 562 GK the Russian Federation the right of the creditor to demand a recognition of the sale contract of the enterprise the void.

In the literature it has been proved it is noticed, that «from the theoretical and practical point of view the question consists in what circumstances can form the basis for a recognition of the sale contract of the enterprise void under the claim of the creditor of the seller of this enterprise» [237 [238] [239]. Affirms, that as that basis that fact can serve, that the buyer deliberately promoted the debtor to avoid the collecting reference on a transferred property complex. However and in the specified case the joint liability of the seller and the buyer of the enterprise properly protects interests of the creditor. Last has the right to demand the indemnification from any of the specified persons, including, by the collecting reference on the transferred enterprise.

Despite all aforesaid the legislation analysis allows to approve, that besides a principle of protection of the rights of the creditor there is a principle of protection of the debtor in the obligation. It at first sight the paradoxical statement will be adjusted with the assumption stated in a science of a sou -

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shchestvovanii so-called pair principles.

The principle of protection of the debtor in the obligation is reflexion of separate branch principles, in particular, conscientiousness, and also the general rule about inadmissibility of misuse of right. In this connection it is indicative, that E.V.Vavilin, opening concept of the term «weakness in the obligation», specifies, that its nominative value assumes, that weakness in the obligation is the debtor as it is charged to make certain actions, bears risk of impossibility of execution of a duty laying on it, etc. »[240 [241] [242]. The conclusion that« the debtor is indisputable

Should have the necessary (fair) and rational mechanism real

lizatsii subjective civil duties ». It is necessary for development of the effective and balanced turn.

The idea of necessity of protection of the debtor has arisen in the Roman Law. It is possible to find examples from which it is visible in its sources, that lawyers of that time paid attention to circumstances at which presence it is necessary to render protection to the debtor. These circumstances if they were worthy also respect, justified behaviour of the debtor in a full or partial measure. They could be provided in norms of the substantive law, and

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Also to be established in litigation.

The modern civil legislation, on the one hand, has inherited the given traditions, and, on the other hand, has improved the mechanism of protection of the rights of the debtor. So, there are the norms guaranteeing protection of interests of the debtor when the creditor evades from acceptance of appropriate execution under the obligation., In particular, it is necessary to carry rules to them about possibility of execution of the obligation in the deposit (item 327 GK the Russian Federation), about delay of the creditor (item 406 GK the Russian Federation). Among other the debtor has the right to the indemnification, caused by delay of the creditor. Rules about delay the acceptances of execution giving the additional rights to the debtor, contain and in norms about separate kinds of obligations (for example, in item 2 of item 705 GK the Russian Federation with reference to the turnkey contract).

The concept of development of the civil legislation suggests to expand the rights of the debtor, concerning compulsions of the creditor to acceptance of execution. It is offered to establish, that at unjustified a requirement long absence about the obligation execution which time of performance is not established, the debtor has the right to demand from the creditor to accept execution in reasonable term (item 2.4).

A number of norms protect debtors from excessively raised responsibility for inadequate execution of obligations. For example, according to item 1 of item 400 GK the Russian Federation by separate kinds of obligations is supposed restriction of the right of the creditor on the full indemnification of losses (it is applied in property insurance relations, on pledge of things in a pawnshop and others).

Realisation of the purpose of an establishment of fair responsibility is served also by norm of item 333 GK the Russian Federation establishing the right vessels to reduce the size to coming under payment of the penalty. It is indicative, that at the decision of a question on decrease in the size of the penalty in view of its obvious disproportion to consequences of infringement of the obligation by vessels the circumstances which do not have the direct relation to consequences of infringement of the credit obligation (for example, presence of the persons, a dependent debtor) [243] can be taken into consideration even.

The principle of protection of the debtor finds the reflexion as well in rules about a concession of the rights of requirements. So, the debtor has the right to put forward against requirements of the new creditor of objection which it had against pervona - chalnogo the creditor (item 386 GK the Russian Federation). On the basis of it and other positions in the domestic doctrine it is constantly underlined, that change of the creditor cannot worsen position of the debtor at all. This principle is apprehended also by judiciary practice. It is shown and in international law.

One more sphere of legal regulation which contains a number of the norms directed on protection of interests of the debtor - bankruptcy. The law establishes special procedures (supervision, financial improvement, external management, the agreement of lawsuit) which purpose is, first of all, restoration of solvency of the debtor. Only in the event that there is no possibility of realisation of the specified purpose arbitration court the bankrupt and the decision on a recognition of the debtor makes on bankruptcy proceedings opening. In the legal doctrine of the USA that fact is conventional, that sense of a policy of bankruptcy - to rehabilitate the debtor on purpose to give the chance to it of "new start» and to provide fair distribution of actives

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The debtor among creditors.

It is necessary to notice, that the parity of principles of protection of the rights of the creditor and the debtor in the civil-law obligation should be established by the legislator, and also court taking into account general principles, system interpretation, sense of the civil legislation. In particular, in one of decisions of the Supreme Arbitration Court of the Russian Federation it is specified, that «by the current legislation are provided not only guarantees vzyskatelja on full and timely execution of requirements, but also protection of the debtor from repeated spisa - [244 [245] nija money resources» 1. That is the emphasis is placed on observance of reasonable balance of interests of the parties, that with reference to regulation of obligations relations means a fair parity between principles of protection of the creditor and the debtor.

Depending on methodology, the purpose, problems of this or that research allocation of other principles of a liability law is possible. So, G.A.Sverdlyk carries a principle of observance of treaty obligations which being includes the following requirements taken in interrelation to principles of the conventional law: inadmissibility of unilateral refusal of execution of contracts, economic and appropriate execution contractual обязательств2. Allocation of the given principle probably from the methodological point of view, but in this case its studying will be reduced to the analysis of separate elements: inadmissibility of unilateral refusal of execution, economic and appropriate execution. At the same time, we believe, that the named phenomena are necessary for considering as independent principles of execution of obligations, as it is made in our work.

V.J.Bogdanov allocates a principle of qualitative definiteness objaza -

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telstvennyh relations. Fairly following statement: «without the subject maintenance of the transaction there is no qualitative definiteness of obligations without which are impossible either their specific performance, or a legal protection of creditors» [246 [247] [248] [249]. Certainly, konkretizirovannost maintenances - one of discriminating lines of obligations relations. However the essence of a principle as basic beginning is expressed that it finds the reflexion in aggregate norms, and also in judiciary practice. Unfortunately, the author does not specify, in what legislative and-or pravoprimenitelnoe value of the resulted phenomenon as principle. In this connection, it is represented, that qualitative definiteness acts exclusively as property, a discriminating sign of the obligation, but not a principle.

Among group of the principles connected with obligations relations, M.A.Egorov the principle of equivalence of relations and a principle of impossibility of transfer bolshego allocates quantities of the rights, than is available [250].

Concerning a principle of impossibility of transfer bolshego quantities of the rights, than is available we will note the following. The given rule is general provisions of a liability law which are applicable under the relation to all separate kinds of obligations, however does not find the reflexion in aggregate separate norms, therefore hardly it is necessary to allocate it as a liability law principle.

We consider necessary in detail to stop on an equivalence principle in a kind of that in the literature there was no concrete understanding of the named category. From the point of view of lexicon "equivalence" means an equivalence to something, equivalence, equivalence. Foreign dictionaries understand as the specified term, in particular, conformity between group of various objects, persons, processes or circumstances which have the same qualities, at least, in one aspect, but not in everything, with distinctions in others. The emphasis that equivalence should be distinguished from identity [251] is placed. In civil researches the considered phenomenon is understood as «the comparative estimated concept of the right reflecting the relation between any compared objects, identical in relation to one sign, but not identical on otnoshe - niju to other sign» [252 [253] [254]. As we see, the understanding of equivalence primenitelno in civil law corresponds to its lexical value.

In civil law equivalence carries out various functions

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(Estimated concept, the civil law beginning, others). The similar phenomenon with reference to a liability law can have some values. First, probably narrow understanding of equivalence at which its essence is identified to the general rule of item 3 of item 423 GK the Russian Federation that the contract is supposed vozmezdnym if from the law, the maintenance or a contract being other does not follow. Moreover, the idea about principle existence vozmezdnosti objazatelstvenno-legal relations formally proves to be true judiciary practice. So, by the Supreme Arbitration Court of the Russian Federation it is specified, that as one of liability law principles the principle vozmezdnosti representations acts. It is represented, that some discrepancy of application of the term "principle" in this case is admitted.

Really, the rule of item 3 of item 423 GK the Russian Federation extends on all conventional law, acts as its general provisions. It is the assumption that any civil-law agreement vozmezdno, will not be established yet other. Thus, the similar norm is not a principle, and other legal phenomenon - a presumption [255]. Any legal principle reveals in aggregate various norms, in particular, in norms-presumptions, but the in itself norm-presumption cannot be a principle as represents an independent unique rule behaviour that is characteristic and for position of item 3 of item 423 GK the Russian Federation [256 [257] [258]. In this connection it is difficult to agree with allocation of such principle of a liability law as vozmezdnost.

Secondly, equivalence can be considered as property, discriminating line of obligations relations. The matter is that in the majority of obligations, first of all contractual, there are passers, sootnosimye the rights and duties of the parties. For example, under the contract of purchase the seller undertakes to transfer a thing, and the buyer - to accept it and to pay the established price. In this case it is impossible to speak about identity of the rights of the parties of the agreement, namely about them sootnosimosti, conformity, equivalence.

Many jurists specified in a similar sign of the obligation. For example, still R.O.Halfinoj was marked is equivalent-vozmezdnyj character

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Property relations of a bourgeois society. However, as fairly approved V.F.Jakovlev, equivalence is inherent exclusively objaza -

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telstvennym to relations. Their feature is that «pravonadelenie has here, on a general law, bilateral character» [259].

The modern civil law adheres to a similar position, the truth with some reservations. In particular, V.V. Kulakov, making definition to the absolute obligation, has specified, that it includes two objects acting rather each other as counter granting [260]. However the author approves, that «equivalence is not inherent in obligations from gratuitous transactions, and vozmezdnym there can be only a contract, instead of the obligation from the unilateral contract that calls into question the specified sign» [261]. That is ekvivalentost, according to the jurist, is not an unconditional sign of the obligation.

Argumentativeness of the resulted position consists that the author identifies equivalence and vozmezdnost. Meanwhile in wide interpretation equivalence should be understood as sootnosimost, conformity of the rights. In such value the equivalence sign is peculiar also to non-contractual obligations. For example, the essence of tort liabilities consists in compensation of the caused harm in full. In other words, the specified obligation consists in transfers of a certain sum of money or in fulfilment of other actions which will be sootnosimy with the caused harm or, it is possible to tell, equivalents to it.

And, at last, it is possible to understand a liability law principle according to which the rights of the parties of the contract sootnosimy among themselves, and the right of the party of the non-contractual obligation has certain conformity to the bound party actions as equivalence, become basis of occurrence of obligations. The given basic idea finds the reflexion in norms of the civil legislation, judiciary practice, tsi - vilisticheskoj to the doctrine. So, the equivalence principle is shown in following positions GK the Russian Federation:

- Presumptions vozmezdnosti contracts (item 423 item 3);

- Rule about possibility of change or contract cancellation in connection with essential change of the circumstances, one of which conditions that fact is, that execution of a contract without change of its conditions so would break a parity of valuable interests of the parties corresponding to the contract and would entail such damage for the party in interest, that it substantially would lose that, on what had the right to count at making contract (item 451 GK the Russian Federation);

- The general rule about compensation of the caused harm in full;

- To duty to return in full unjust enrichment (item 1102 GK the Russian Federation);

- Rule of definition of the size of indemnification of moral harm which should be equivalent to physical and moral sufferings of the victim, fault degrees prichinitelja harm, etc. (item 1101 GK the Russian Federation);

- Recognition possibilities on occasion (error in essentia, adverse circumstances, etc.) void nonequivalent transactions;

- Other positions.

Judiciary practice confirms existence of a principle of equivalence: quite often courts specify in it in the decisions, more often, for the argument of the position on business and interpretation of separate rules of law [262]. In separate researches also it was specified in existence in civil law of a principle of equivalence [263].

The equivalence principle is shown, in bolshej degrees, in treaty obligations. For example, under the contract of commercial concession the legal owner, having the right to compensation reception, bears a duty not on simple granting to the user of the right of use of a complex of exclusive rights, but also on maintenance to the last of the real conditions necessary for use of a subject of the contract in the enterprise activity. So, the legal owner is obliged to transfer to the user the technical and commercial documentation and to give other information necessary for the user for realisation of the rights, given to it under the contract of commercial concession, and also to instruct the user and its workers. In this connection it is necessary to agree, that the equivalence principle reflects «representations of the legislator about a regulation of relations of subjects of civil law as mutually advantageous and equivalent» [264].

Besides told, it is necessary to stop separately on positions GK of Ukraine, it agree ch. 3 which items 509 the obligation should be based on the beginnings of conscientiousness, a rationality and justice. The Ukrainian authors, being based on the resulted norm of the law, names the listed categories podotraslevymi principles of a liability law [265 [266]. Undoubtedly, conscientiousness, a rationality and justice are a basis of regulation of obligations. However, not clearly, why they concern to podotraslevym to principles. There are no the arguments, capable to confirm that fact, that, for example, the real right or intellectual property right should not be guided by the specified principles. We consider, more correct is consideration of conscientiousness, a rationality and justice as branch principles of civil law, which osoben -

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nym in the image refract in norms of a liability law.

Proceeding from told, stability is economic-legal principle, providing an invariance of the obligation, its maintenance and conditions. It is necessary to understand basic idea as a principle of protection of the rights of the creditor, according to which main objective of action of norms of a liability law creation of real mechanisms of protection of the rights of the authorised person is. Owing to a principle of protection of the debtor interests of a party liable, and in cases, directly statutory are guaranteed, the rights of the creditor are limited.

The equivalence category with reference to a liability law can have some values. First, probably narrow understanding of equivalence at which its essence is identified presumptions vozmezdnosti the civil-law contract. Secondly, equivalence can be considered as property, discriminating line of obligations relations. And, at last, it is possible to understand a liability law principle according to which the rights of the parties of the contract sootnosimy among themselves, and the right of the party of the non-contractual obligation has certain conformity to the bound party actions as equivalence, become basis of occurrence of obligations.

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A source: Volos Alexey Aleksandrovich. LIABILITY LAW PRINCIPLES. The dissertation on competition of a scientific degree of the master of laws. Saratov -.
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More on topic §3. Other principles of a liability law:

  1. §2. A parity of principles of civil law and liability law principles
  2. §1. Concept and aksiologija liability law principles
  3. CHAPTER 2. SEPARATE PRINCIPLES of the LIABILITY LAW
  4. CHAPTER 1. The GENERAL CHARACTERISTIC of PRINCIPLES of the LIABILITY LAW
  5. Hair Alexey Aleksandrovich. LIABILITY LAW PRINCIPLES. The dissertation on competition of a scientific degree of the master of laws. Saratov -,
  6. THE CHAPTER THE SECOND THE PRINCIPLES REFLECTED BY THE CONCEPT OF HARMONIZATION OF THE CONVENTIONAL LAW OF THE LATIN AMERICAN COUNTRIES, AND THEIR PARITY WITH INSTITUTSIONALNYMI PRINCIPLES OF OPERATING CIVIL LAW OF BRAZIL
  7. § 2. Principles of an administrative liability of infringement of the legislation on labour migration
  8. § 3. A parity of concepts «civil-law principles» and «principles of realisation of the rights and discharge of duties»
  9. § 3. The state contract on delivery of the goods for law-enforcement bodies of the Russian Federation and its place in liability law system
  10. THE CHAPTER I CONCEPT, THE PLACE AND THE ROLE OF THE OBLIGATIONS ARISING FROM THE CONTRACT OF DELIVERY FOR LAW-ENFORCEMENT BODIES, IN LIABILITY LAW SYSTEM
  11. § 1. Concept of the conventional principles and norms of international law and its value for civil law
  12. §3. The Liability law
  13. Chapter 2. The Criminal liability for crimes in transport in criminal law of the countries of the Continental law
  14. the Third parties in a liability law
  15. the Roman statute of the International criminal court and the general principles of the criminal liability for criminal infringements of human rights
  16. § 1. The conventional principles and norms of international law and civil-law norms as raznosistemnye the legal Regulators
  17. § 3. A place of obligations with participation of the third parties in a liability law.
  18. § 2. The Criminal liability kombatantov for infringement of norms of the international humanitarian law
  19. §4. Otgranichenie indemnities against liability under the contract from indemnity against liability for injury