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ž2. A parity of principles of civil law and liability law principles

The essence and appointment of principles are caused not only their maintenance, but also a place in system of the basic beginnings which źassumes their interrelation, interconditionality, a coordination of the maintenance and realisation forms╗ [65].

Thus, it is represented actual to define a place of principles of a liability law in system of principles of the right.

First of all, civil law principles, principles of a liability law and principles of separate institutes of a liability law are separate elements of system of principles of the Russian right into which enter obshchepravovye, the interbranch, branch beginnings, and also bases podotraslej, institutes and subinstitutes. And important studying of principles of a liability law from the point of view of the system approach, that is the analysis of all system of principles of a liability law is actual. From the specified position it is necessary to consider not only podotraslevye the beginnings, but also obshchepravovye, interbranch, branch principles in connection with their influence on a liability law. Similar research is beyond the purpose of the present work, therefore will not be presented.

It is necessary to tell, that liability law principles are the integral component of system of principles of civil law. That fact is indisputable, that considered categories should be considered as a part and the general.

The basic part of branch principles of civil law is listed in item 1 GK the Russian Federation (for example, principles of equality of participants of civil matters, inviolability of the property, conscientiousness and others), but the list of the given beginnings is not settled by the specified article. So, it is necessary to recognise inadmissibility of misuse of right as the branch beginning of civil law [66 [67]. As obosnovanno approves E.G.Komissarova, there are źprinciples, header for all sphere of branch regulation, in the form of fundamental principles of the civil legislation and other civil-law principles (subprinciples)╗. On the basis of stated, the author the substantiated conclusion that principles of civil law and fundamental principles of the civil legislation correspond as the general and a part becomes.

At the same time the instructions the Russian Federation contract freedom are directed to item 1 GK on showing the special importance and importance of the specified principle for market economy and the domestic civil circulation. It is thought, it is a correct course of the legislator. The similar fact cannot be considered, how the unconditional basis for a recognition of freedom of the contract by a branch principle as it finds the reflexion exclusively in objazatel - stvennom the right, hence, is a liability law principle.

By consideration of a parity of principles of civil law and liability law principles it is necessary to reveal their general lines, first of all. The generality of various groups of principles is shown in uniform discriminating signs which are peculiar to all principles. In a science some characteristic lines of fundamental principles (for example, relative stability and stability, the objective and socially caused character, a generality of the maintenance and others) [68] will be allocated. The specified signs are shown under the relation to all considered principles: to principles of civil law, a liability law, separate institutes.

We consider, that from the practical point of view a parity and interrelation of principles of branch, podotrasli, institutes are caused, first of all, by their general aksiologiej. As it was already marked, the purpose of existence of principles is formation of a legal ideal in the most general, fundamental positions. Besides, fundamental principles have special theoretical, pravotvorcheskoe, pravoprimenitelnoe value, can carry out right functions. Told it is characteristic for all without an exception of principles. The difference consists only in a circle of public relations on which regulation those or other fundamental principles are directed.

It is represented, that for the fullest realisation of the mission (first of all, pravotvorcheskogo and pravoprimenitelnogo) principles should be applied in aggregate, that is it is necessary to use, whenever possible, the beginnings of different elements of the legal system. So, application by court simultaneously principles of civil law, a liability law, and also bases of separate institutes in one decision will make the last more proved, motivirovannym and lawful. Besides, use in concrete business the several beginnings will create at once the precondition for more correct and system interpretation of rules of law.

Application by vessels simultaneously principles of different level for the permission of concrete business and a decree substantiation for today not a rarity.

So, Open Society źInter-regional distributive network company of the Northwest╗ has addressed in arbitration court with the claim to Open Company źPKF Factory Remstrojmash╗ about the debt collection under the power supply and penalty contract. In session of the court it has been established, that the consumer has not paid the electric power. The requirement regarding the debt collection has been satisfied. However in penalty it has been given up whereas the agreement of the parties the size of the penalty is not defined, in it the reference to the size penej, provided by the contract of adhesion to trading system of the wholesale market only contains, and in the contract of adhesion there is no size of the penalty for unpaid amount. With the account of a principle of conscientiousness, and also, taking into consideration necessity of protection of weakness for the power supply contract, the court has drawn a conclusion that the consumer had no possibility accurately and unequivocally to define the size of the penalty [69].

In the considered example the court for a decision substantiation used principles of conscientiousness and weakness protection. Practice of application for adjudication simultaneous branch, podotraslevyh and institutsionnyh the beginnings is progressive, promotes correct interpretation and application of rules of law and should be used as it is possible is more often.

The special group of principles of a liability law is constituted by principles of obligations owing to injury which also can be applied by vessels in aggregate with branch principles. For example, on business about compensation of harm to health at definition of the size of compensation of a material damage the court has drawn the following conclusion. Definition within the limits of the current legislation of volume of compensation of the harm caused to health, proceeding from the lost earnings (income), which victim had or definitely could have, assumes necessity of completion of the losses objectively suffered to victims in connection with impossibility of realisation of labour (enterprise) activity as a result of wrongful acts of the third parties. The told follows from the compensatory nature of responsibility for the injury, caused concerning fundamental principles of the civil legislation a principle of maintenance of restoration of the broken rights, and also the requirement of compensation of harm in full, under the general rule, volume [70]. That is the court with a view of correct interpretation of rules of law has applied not only a principle of the full indemnification of harm, but also the branch beginning - a principle of maintenance of restoration of the broken rights.

Liability law principles have discriminating lines, are a separate element of system of principles. From this follows, that besides the general signs there is a number of aspects on which it is necessary to spend distinction between the beginnings civil and a liability law.

By consideration of a question on a parity raznourovnevyh principles interest is represented by the classification offered in the dissertation of K.S.Zaharovoj. She notices, that intersystem communications (that is communications in system of principles of the right which consideration is included into problems of the present research) źcan be classified on genetic, structural, coordination, subordinatsionnye and confrontational╗ [71 [72] [73]. We will open in detail as the specified kinds of communications find the reflexion at interaction of principles of civil law and liability law principles.

G eneticheskie communications are defined by an ideology and-or doctrine generality. The question that is the doctrine, is disputable and maloizuchen -

L

nym. Not pressing in an essence of the specified problem, we will designate, that źthe legal doctrine expresses essence, spirit, the basic values and sistemoobrazujushchie

-e

Directions of development of the right ╗. It is thought, that it is necessary to carry idea to such fundamental bases about lawful state building, a priority of the rights and freedom of the person and the citizen, garantirovannost uniform economic space, freedom of economic activities and others.

Specified above position to the full find the reflexion in all norms of civil law. They are basic and for principles. It is possible to tell with confidence, that the branch beginnings (conscientiousness, optionality, prohibition by misuse of right, etc.), basic positions of a liability law (for example, contract freedom, weakness protection), principles of separate institutes have the specified fundamental ideas of the national legal doctrine in the basis. In this plan the generality, a coordination of the maintenance of principles of civil law, their special place in the legal system is shown.

It is represented, that the basic ideas of the national legal doctrine are put in pawn in the Constitution of the Russian Federation. For this reason the special role at finding-out of a genetic relation of principles civil and a liability law is played by decisions of the Constitutional Court of the Russian Federation which gives Organic law official interpretation; checks, how much norms of the Russian right (including, principles civil and a liability law) correspond to the fundamental beginnings which have been put in pawn in the Constitution of the Russian Federation.

So, citizens have addressed in the Constitutional Court of the Russian Federation with the request to check up constitutionality of positions of the law allowing bank on the basis of the contract to reduce unilaterally interest rates under fixed deposits of citizens [74 [75]. Specifying in the contradiction of the given rules to the Organic law, the court has noted the following. Carrying out legal regulation of relations between banks and citizens - investors, the legislator should follow articles 2 and 18 Constitutions of the Russian Federation according to which a recognition, observance and protection of the rights and freedom of the person and the citizen is a state duty. Thus, proceeding from constitutional freedom of the contract, the legislator has not the right to be limited to a formal recognition of legal equality of the parties and should give certain advantages economically weak and dependent стороне2.

Thus, the Constitutional Court of the Russian Federation has drawn a conclusion that the essence of principles of equality of the parties, freedom of the contract, weakness protection in the obligation follows from the fundamental beginnings of the Russian right - a priority of the rights and freedom of the person and the citizen, equality of citizens before the law and court and others.

Structural interrelations (structure communication) right principles consist that źtheir maintenance reveals... Through a number of the judgements consolidated on sense╗ [76]. That is principles find the reflexion in aggregate norms, including principles of subordinate level. Told it is possible to track on an example of a parity of principles civil and a liability law.

As it has been more than once noted, liability law principles are private display of branch principles of civil law. It means, besides other, that branch principles reveal, find the reflexion in the basic beginnings podotrasli a liability law. For example, the principle of freedom of the contract is display of a branch principle of optionality [77]. Last means possibility of a choice the subject of civil law of the behaviour. In a liability law the choice is shown in freedom to conclude or not to conclude the contract, to choose treaty provisions, that is just in contract freedom. For example, in the law of succession the optionality principle is expressed basically will freedom etc. in others podotrasljah. A.L.Makovsky approves, that two basic displays of a principle of optionality

-e

Inviolability of the property and contract freedom are.

Let's consider one more example. According to GK the Russian Federations are not supposed realisation of the civil rights with intention to harm other person, actions bypassing the law with the illegal purpose, and also obviously unfair realisation of the civil rights. One of private displays of the specified principle is position that norms of a liability law should protect weakness in the obligation. In practice time and again there were cases when the court protected weakness, applying a principle of inadmissibility of misuse of right.

In particular, the Third arbitration appeal court in one of the decisions has specified, that infringement of terms of realisation of actions for technological joining of object of the subscriber to electric networks testify to an exit energosnabzhajushchej the organisations for admissible limits of realisation of the civil rights, about abusing it a leading position by unreasonable and wrongful restriction of the rights of the consumer on timely technological connection of its object, and also imposing on the consumer-citizen as economically more weakness under the contract on realisation of technological joining and not having possibility to address to other network organisation with a view of technological joining of object of the duties which have been not provided by the current legislation [78] belonging to it. That is the principle of protection of weakness in the obligation in certain cases can be considered as private display of a principle of inadmissibility of misuse of right.

To illustrate structure communications also it is possible on an example of a principle of conscientiousness. The given fundamental principle of the civil legislation with reference to a liability law is realised, in particular, in principles of profitability and assistance of the parties at execution of obligations. In practice it means, that courts consider in aggregate a principle of conscientiousness and a rule that the parties should operate, being guided, including reasons of cooperation [79].

Structural interrelations are shown and by comparison of principles of a liability law to the basic beginnings of its separate institutes. Liability law principles find the concrete expression and appointment in the specified positions.

So, contract freedom in detail reveals not only in item 421 GK the Russian Federation, but willows fundamental rules of separate institutes of a liability law, for example, in the following:

- In concept of appropriate execution (item 309 GK the Russian Federation), as one of basic principles of institute of execution of the obligations, treated, how execution according to obligation conditions (in the contractual obligation such conditions are established, first of all, the agreement of the parties);

- In possibility of an establishment the agreement of the parties of one of ways of maintenance of execution of the obligations established gl. 23 GK the Russian Federation (item 329 GK the Russian Federation);

- In possibility under the agreement of parties to cease the obligation with innovation use (item 414 GK the Russian Federation);

- In the right of the parties under the agreement to change or terminate the contract (item 1 of item 450 GK the Russian Federation);

- Many other things positions GK the Russian Federation.

Vivid example of structural communications of principles of a liability law is also the principle of protection of weakness. The specified beginning is not specified in general part GK the Russian Federation, but finds the reflexion in the various norms regulating separate kinds of obligations. For example, the additional rights citizens-consumers conformity with the Law of the Russian Federation from 07.02.1992 № 2300-1 źAbout protection of the rights of consumers╗ [80] possess. Owing to item 538 GK the Russian Federation the manufacturer of agricultural production who acts as weakness in the contracting contract, not executed the obligation or inadequate image executed the obligation, bears responsibility only in the presence of fault.

subordinatsionnye communications of principles consist in subordination of one principles another. Existence of similar communications is caused by hierarchy of the legal system.

Obviously, basic distinction of branch principles and principles separate podotrasli the rights consists in a circle of public relations on which regulation the specified fundamental principles are directed. Civil law principles are basic beginnings of all branch of law. They extend the action on real, hereditary, obligations, others podotrasli civil law.

So, the optionality principle means, that citizens (physical persons) and legal bodies get and carry out the civil rights the will and in the interest (item 2 of item 1 GK the Russian Federation). The given basic beginning extends on all civil law, is actual for application in any podotrasli. For example, the proprietor has the right to make at own discretion concerning property belonging to it any actions not contradicting the law and other legal acts both not breaking the rights and protected by the law interests of other persons (item 2 of item 209 GK the Russian Federation). The similar rule with reference to the exclusive right to result of intellectual activity or to individualization means is fixed in item 1 of item 1229 GK the Russian Federation. Similarly in all podotrasljah and civil law institutes find the reflexion and other branch principles: equalities of participants of civil relations, conscientiousness, inadmissibility of misuse of right and others.

Liability law principles extend only on norms of a liability law and differ from branch and other beginnings characteristic signs. That is liability law principles are an element of system of principles of civil law, occupy special level in their structure.

Civil law principles are the basic beginnings of all branch of law, therefore branch principles will have higher validity, than principles podotrasli a liability law. So, M.I.Braginsky and V.V. Vitrjansky allocate following bases of restriction of liberty of contract: protection of the weakest (weak) party, protection of interests of the creditor, protection of interests of the state [81]. It is thought, that the specified list not settling. However, anyhow restrictions of a principle of freedom of the contract are caused by action of principles of higher level, and as obshchepravovyh the beginnings (legality, a priority of the rights and freedom of the person and the citizen, protection of a competition and others), and branch (for example, conscientiousness, inadmissibility of misuse of right).

Conclusions about that liability law principles should not contradict civil law fundamental principles, contain and in decisions of vessels. So, Open Company "Консалтум" has addressed in court with the claim to official body about collecting of indemnification of the expenses suffered by a society in connection with execution of contractual obligations. Satisfying the claim, the trial court recognised as the claimant of expenses proved execution in connection with execution of a contract in the declared size. Having estimated the affairs of the proof presented to materials taking into account results of the carried out examinations, the court of appeal instance has come to conclusion that cost of the works executed by the third parties for establishment, actually constitutes 236 000 roubles with what the court of court of cassation has agreed, having specified thus, that the conclusion the claimant of contracts with the third parties under obviously overestimated price does not generate a duty of the respondent under indemnification of such expenses, as freedom of the contract does not exclude other principles of civil matters (it is allocated by us - A.V.), in particular, stated in item 10 GK the Russian Federation which are not supposing misuse of right [82]. In a number of decisions courts came to conclusion that the principle of freedom of the contract does not exclude at definition of its maintenance of observance of rules of a rationality and justice [83].

It is obvious, that fundamental principles podotrasli the rights will occupy higher position in hierarchy, than basic positions of institutes. Thus, liability law principles are more the general, have higher validity, the beginnings of separate institutes podotrasli a liability law are characterised bolshej abstraktnostju, than.

So, one of substantive provisions of institute of maintenance of execution of obligations (gl. 23 GK the Russian Federation) is possibility of a choice the parties of a way of maintenance. The similar rule should be considered as fundamental position of the specified institute as it is basic for all norms devoted to maintenance of execution. Nevertheless, item 333 GK the Russian Federation gives to court the right to reduce the penalty established by the contract if it is obviously disproportionate to consequences of infringement of the obligation. Thus, to court is accorded to protect a right weakness, that is to realise with reference to a concrete situation a principle of protection of weakness in the obligation.

That fact is indisputable also, that liability law fundamental principles are sistemoobrazujushchimi for all institutes given podotrasli. For example, the principle of freedom of the contract is basic for all norms regulating separate kinds of obligations. And the specified judgement is true primenitelno not only to the obligations, arising of the contract, but also in relation to non-contractual obligations (see, for example, item 3 of item 1085 GK the Russian Federation).

It is possible to draw a conclusion, that some norms of a liability law contradict contract freedom (for example, separate positions of item 428 GK the Russian Federation about the contract of adhesion). Similar exceptions of liability law fundamental principles are objectively necessary and caused by action of principles of higher level.

Coordination communications of principles are shown between the single-level basic beginnings [84]. The similar kind of relations does not find the reflexion at mutual relation of the beginnings civil and a liability law as analyzed principles are raznourovnevymi.

Confrontational communications are caused by the contradiction of principles. So, they are obvious by comparison of such basic beginnings, as legal equality of the parties of civil matter and weakness protection in the obligation. In the specified case of the second of principles formally is an exception of action of the first. It is thought, that similar restrictions of the basic beginnings are possible only in the event that put itself aim to realise more significant principle. So, the principle of protection of weakness in the obligation provides realisation of such fundamental beginnings of the domestic law, as ideas of justice, the social state, competition protection, etc.

On the basis of told, it is possible to draw a conclusion, that principles civil and a liability law correspond as the general and a part. The given conclusion causes the following. Liability law principles are an integral part of the beginnings of civil law, take a special place in system of principles of the right, are "intermediate link" between branch principles of civil law and other norms regulating the relations, arising of separate kinds of obligations.

The unity of various groups of principles consists in conterminous signs and identical aksiologii. Similar similarity is caused by an accessory of all considered categories to system of principles of the Russian right. Allocation of various kinds of communications between principles of civil law and liability law principles is possible: genetic, structural, subordinatsionnyh, confrontational. Presence of the named kinds of communications causes vzaimodopolnenie, interosculation, contradictions between principles of different level.

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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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