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§2. A principle of protection of weakness in the obligation

Following principle of a liability law is the principle of protection of weakness in the obligation. The specified basic beginning is direct in the legislation is not fixed, but shown at its interpretation, and also in pravoprimenitelnoj to practice.

In particular, Plenum of the Supreme Arbitration Court of the Russian Federation in the Decision «About freedom of the contract and its limits» has specified, that the purpose of norm of item 310 GK the Russian Federation is protection of weakness of the contract.

The legislation does not open essence of the term "weakness". Meanwhile in the doctrine there was a certain understanding of the given category. In the end of XIX century I.A.Pokrovsk, analyzing the Civil code project, noticed, that the law «should protect interests of all weak, helpless, say, all those who on personal or to a property status, requires special protection of the law, being able not with sufficient energy defends the rights» [145]. The similar thought was stated also by J.S.Gambarov. He approved, that quite often there are «especial laws which are established for this or that category of the persons isolated owing to any physical conditions, or belonging to a known tribe, creed, corporation or an occupation» [146 [147]. The jurist declared necessity «the strengthened protection of those categories of persons, which not mo -

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gut or can protect only in an insufficient measure itself ».

As we see, already on boundary XIX-XX centuries there is an understanding of that it is necessary to protect weakness. Private signs considered concepts (physical defects) are allocated as the general criteria (persons whom not in a condition to defend the rights, «cannot protect itself»), and. The resulted characteristics of weakness in the obligation can be used and a modern science.

During the Soviet period of domestic civil law in an urgency of protection of weakness specified P.I.Stuchka who noticed, that «in interests of the worker and in general weakness (it is allocated by us - A.V.), even besides will of the subject of law, the public prosecutor can demand contract cancellation» [148]. The interpretation of weakness offered by P.I.Stuchkoj, not to the full corresponds to its modern understanding. Allocation of "workers" and «in general weakness» visually illustrates, that last was defined from the point of view of the class approach that is characteristic for sotsialnopoliticheskoj situations of 20th years of the XX-th century. The resulted treatment hardly is proved from a position of regulation of an economic turn and mismatches modern lines of development of civil law.

For today most full to transfer essence of weakness in the obligation it is possible by transfer of some its signs. Some of them are presented in the scientific literature. In particular, D.V.Slavetsky offers following signs of weakness:

«) the raised interest of one of subjects of the contract in making contract in comparison with its counterpart;

Absence of the sufficient information concerning a subject of activity of the counterpart under the contract, the offered goods and services;

Absence of the sufficient information concerning the established rights, duties and responsibility of subjects of contractual relations;

Rashness of the decision on the making contract, accepted in the conditions obviously promoting acceptance of the rash decision and allowing to approve about absence of conformity of will of the subject who has made of the decision, to its will »[149].

As a whole with D.V.Slavetsky's opinion it is possible to agree with that reservation, that hardly the list of signs of weakness should be settling. The civil circulation constantly changes, therefore and weakness of one counterpart in relation to another can be expressed in the most various variants. Invariable there will be one: weakness has less possibilities for realisation and protection of the rights in comparison with the counterpart. Thus, in the scientific purposes the list of signs of the weakness, the offered D.V.Slavetsky, it is expedient to add with point: «and other objective circumstances which influence or can influence possibility of one of the obligation parties to carry out and protect the rights».

Through transfer of the above-stated signs of D.V.Slavetsky gives

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Definition to the term "weakness". The definition formulated by the author is represented unreasonably bulky. Besides, the list of signs of weakness should be opened, that it is necessary to reflect and in a definition. That is there can be some at its use.

Exists and some other approach. So, E.V.Vavilin allocates four positions from which it is possible to define weakness:

Lexical (nominative): as weakness the debtor in the obligation which bears burden of fulfilment of those or other designated actions in favour of other person acts;

Formal (standard): weakness is the creditor in legal relation which is allocated with corresponding competences on protection of the rights;

The contractual: weakness is the participant possessing smaller economic base, status possibilities in comparison with the counterpart;

The organizational: weakness that which has the right admits the obligation, however forms and ways of its realisation, and also the mechanism of realisation of this right provided by regulatory legal acts in concrete legal relation is imperfect [150].

It is necessary to agree, that weakness in the obligation is the subject who has less possibilities (resource, economic, organizational and other character) for realisation of the right, and also possesses a smaller set of resources for realisation and protection of the rights in comparison with the counterpart [151 [152]. Thus, the strength is that which has possibility to impose the conditions to other persons, to create for itself any advantages, etc.

From the told follows, that presence in this or that relation of weakness is caused by certain factors: economic, organizational, information, resource. The list of similar signs should be not settling. However all of them should have objective character. In particular, in a science the attention on «was paid potreb -

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nost protection of the party possessing low trunk-call force ». The similar point of view is characteristic and for foreign civil law [153].

Judiciary practice also allocates various criteria of a recognition of the concrete subject with weakness. So, in a number of the decisions the Constitutional Court of the Russian Federation defines a business factor as one of the bases for a recognition of any party in the obligation of weaker in relation to another. In one of the decisions the Court has noticed, that a number of positions of the legislation are directed «on protection of the rights of consumers as economically weaker and dependent party in civil-law relations with the organisations and individual businessmen» [154 [155] [156].

Besides economic aspect courts mark also others. For example, the Supreme Arbitration Court of the Russian Federation has noticed, that one of forms of abusing contract freedom is operation weak trunk-call probably -

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stej the debtor. The Supreme Court of the Russian Federation as the characteristic weak hundred -

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rony specifies in the subordinated position in public legal relation. Resulted and other criteria can be used at weakness definition in the obligation.

Thus, the list of signs of weakness both in the doctrine, and in judiciary practice has not exhaustive character. A basis for understanding of the given term is that weakness has less possibilities for realisation and protection of the rights in comparison with the counterpart.

In a science the point of view expressed existence of a principle of protection of weakness in civil matter. At the same time the question on its place in system of the basic beginnings to the full is not resolved. D.V.Slavetsky names idea of protection of weakness in the contract not named in the legislation, doktrinalnym, institutsionalnym a civil law principle, noticing, that its action is limited by legal institutions of the conventional law [157 [158]. Meanwhile, considering rules of law in which finds reflexion the given principle, the author allocates, besides other, the positions directed on protection of participants of lotteries, totes and other games organised by the state and municipal union or on them разрешению2. The given norms do not concern the conventional law, hence, action of a principle of protection of weakness extends and on other institutes of a liability law.

E.V.Vavilin, listing civil law principles, allocates among them a principle of protection of weakness, but adds, that it «projavlja -

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etsja in separate civil-law obligations ».

Agreeing in general with the resulted judgements, we will notice, that distribution of a principle of protection of weakness on separate obligations, testifies that the analyzed phenomenon is the basic beginning not all branch of civil law, and its separate institutes. We believe, the idea of protection of weakness in the obligation is a principle of a liability law. It is proved to that discriminating signs of bases of a liability law (a relativity, dynamism, imperativeness of the maintenance, purposefulness, konkretizirovannost) find in the specified basic beginning the reflexion. So, weakness presence means presence there is nobody the counterpart, a strength, therefore realisation of a considered principle is possible exclusively in relative relations i.e. when subjects are strictly defined. It is difficult to present, as the analyzed principle in absolute relations will be realised.

It is thought, realisation of discriminating lines of the obligations relation within the limits of a principle of protection of weakness has the features. They are caused by that the specified beginning is directed on a possibility of the concrete subject really to carry out and protect the rights. In particular, imperativeness of the maintenance as an obligation sign means possibility of the creditor to demand certain behaviour from the debtor. neustanovlenie separate rules about weakness protection (the consumer, the client of bank, etc.) Would lead to that the right of the creditor by separate kinds of obligations (assignation of appropriate quality under the contract of retail purchase and sale, rendering to the consumer of safe services and another) would turn to formality. It is caused by that the counterpart of weakness, having considerable volume of economic, organizational, material, information resources, would receive in such cases possibility to execute the duty only "for the sake of appearances". Such can occur when the weakness right not in a due measure is provided.

It is possible to draw a conclusion, that by means of action of a principle of protection of weakness in the obligation the basic discriminating signs of the obligations relation (the relativity, dynamism, imperativeness of the maintenance, purposefulness, konkretizirovannost) are filled opre - delennym with the maintenance. Besides, there are conditions not only for formal, but also real realisation of the rights of weakness.

On the basis of stated the principle of protection of weakness in the obligation is the basic idea of a liability law shown at interpretation of the legislation and reflected in judiciary practice which essence consists in necessity of granting of special protection to subjects who have less possibilities for realisation and protection of the rights in comparison with the counterpart.

There can be an assumption, that the principle of protection of weakness in the obligation contradicts one of the fundamental beginnings of civil law - to equality of participants of civil relations. In this connection it is necessary to consider a parity of the listed principles.

Equality of participants of civil relations is understood, first of all, as equality of legal possibilities of subjects of the civil law [159], equal possibility of acquisition of the rights and duties for all participants of a turn [160 [161], investment of all participants of a turn civil pra -

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vosposobnostju. The essence of the specified beginning reveals through equal possibilities at the introduction into legal relation, at realisation and protection of the rights, balance of valuable interests of subjects [162]. It is indicative, that O.A.Kuznetsova, characterising the given principle, notices, that «equality consists in bar of claim by lapse of time any unreasonable (it is allocated by us - A.V.) privileges and privileges for one of the parties» [163]. That is it is meant, that the proved privileges and privileges are possible. As fairly approves

E.V.Vavilin, «at observance of the given principle (equality - A.V.) distinctions in volume and the content of rights of subjects of legal relations» [164] are supposed. We believe, that similar distinctions are caused, first of all, by necessity of protection of weakness.

It is possible to approve, that a principle of protection of weakness in the obligation though and formally breaks equality of participants of civil matters, nevertheless, serves the purpose of alignment of the specified subjects, and, hence, to the fullest realisation of a principle of equality. We consider proved the point of view according to which the equality principle receives standard fastening, besides other, «in the form of the norms containing restrictions of the civil rights or rights of priority, with a view of alignment of position of the parties of civil matter» [165 [166]. The similar understanding of a principle of equality corresponds to its essence, system interpretation of the legislation and, that is especially important, finds the reflexion in judiciary practice.

So, according to one of Decisions of the Constitutional Court of the Russian Federation, the differentiated approach to an estimation of possibility of giving of the retroactive effect of a legal position in connection with inadmissibility of deterioration of position of the subordinated (weak) party in public legal relation is necessary. The similar conclusion is made, proceeding from the constitutional principles of equality and justice. The resulted legal position of the Constitutional Court of the Russian Federation is applied by various vessels at the permission concrete дел1.

Necessity realisation of a principle of protection of weakness in the obligation is caused by certain circumstances.

In particular, taking into account that on means of action of the analyzed beginning is provided not only legal, but also actual realisation of the rights of weakness, is represented actual to consider application of a principle from the point of view of the concept of the guaranteed realisation of the civil rights and the discharge of duties, the developed E.V.Vavilinym [167 [168] [169]. The matter is that the specified doctrine pays attention to an orientation of legal means, activity of bodies of machinery of state and other subjects of law on maintenance not only legal, but also fakti -

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cheskoj right realisations.

The mechanism of realisation of the civil rights and discharges of duties is understood «as legislatively authorised order of the organisation of actual and-or legally significant actions of participants of the civil matters providing the valid achievement by subjects of the legal purpose (blessing reception/granting)» [170]. The stage of action of the mechanism of realisation of the civil rights and discharges of duties is understood «by the person as an order of the organisation of realisation of the rights and discharge of duties during the concrete moment of time» [171]. There are following stages of action of the mechanism of realisation of the civil rights and discharge of duties [172]:

1) a preparatory stage;

2) right formation;

3) a stage of an establishment of the right and a duty;

4) a stage of procedural realisation of the granted right;

5) a stage of protection broken the rights (facultative);

6) a stage actual (reception of the required blessing) and legal realisation of the right and discharge of duty.

Let's consider, how the principle of protection of weakness finds the reflexion in the obligation at separate stages of action of the mechanism.

On the first (preparatory or prerealizable) a stage actually there is a formation of rules of law. In this case the legislator should provide directly in the law and other certificates concrete mechanisms of protection of the rights of weakness. So, according to M.I.Braginsky, «the civil law problem consists in« alignment »participants of a property turn by an establishment for weakness of the obligation of special conditions of participation in contractual relations» [173]. Similar "alignment" occurs in two forms: 1) recognitions behind weakness of the additional rights (and reduction of its responsibility is equal); 2) establishments for a strength of additional duties or strengthening its answer - stvennosti [174].

First of all, the principle of protection of weakness is reflected in rules which extend on all conventional law. Norms concern them about the public contract (item 426 GK the Russian Federation), the contract of adhesion (item 428 GK the Russian Federation), the positions, concerning protection of a competition and many other things. So, being based on rules of item 426 GK the Russian Federation, I.O.Kashirin allocates principles of inadmissibility of discrimination of consumers at the conclusion of public contracts: inadmissibility of refusal of making contract, unity of treaty provisions, inadmissibility of inclusion in the contract of discrimination conditions [175 [176] [177]. It is thought, the specified rules extend not only on agreements with participation of consumers, but also on all kinds of public contracts.

One more example of realisation of the analyzed beginning are norms about the contract of adhesion. Positions of item 428 GK the Russian Federation allow to consider weak that party which accepts standard treaty provisions in

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The whole. Operating GK the Russian Federation does not recognise as weakness in the contract of adhesion the person who is carrying out enterprise activity since the party which has joined the contract in connection with realisation of the enterprise activity, cannot terminate the contract if knew or should know, on what conditions concludes the contract (item 3 of item 428 GK the Russian Federation). It is thought, that Concept position about development of the civil legislation of the Russian Federation about an exception of last rule of the Code looks pertinent and correct. It is underlined, that similar change will be anticipatory image to influence a strength imposing conditions favourable to it by means of ispolzova -

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nija designs of the contract of adhesion.

On the further realisation of a principle of protection of weakness in the contractual relation the new offer concerning edition of item 3 of item 428 GK the Russian Federation is directed also. The draught federal law provides norm according to which the Russian Federation corrected item 2 of item 428 GK come under to application also in cases when at the making contract, not being the contract of adhesion, treaty provisions are defined by one of the parties, and other party is put in the position complicating the coordination of other maintenance of separate treaty provisions.

The law gives the special rights and to some subjects of separate contractual relations, for example, to citizens-addressees under the contract of perpetual maintenance with expense. It concerns establishments of the minimum cost of total amount of the maintenance in a month under the contract providing alienation of property is free (item 2 of item 602 GK the Russian Federation), features of cancellation of the contract in case of material breach by the payer of the rent of the obligations (item 2 of item 605 GK the Russian Federation) and some other rules. Describing legal regulation of the specified kind of public relations, A.V.Barkov specifies in presence in them the specific subject - the person who are in a difficult vital situation [178]. The given participant of relations, certainly, should admit weakness the obligations connected with rendering of social services.

Let's especially notice, that the analyzed principle finds the reflexion not only in norms of the conventional law, but also in the positions, concerning non-contractual obligations. So, item 3 of item 1089 GK the Russian Federations are established cases of recalculation of the size of compensation of harm in connection with death of the supporter at a birth of the child. Last cannot protect the rights in a payment establishment even through the representatives as during that moment yet was not the subject of civil law. Proceeding from it, the legislator has fairly established an exception of a rule of impossibility of recalculation of the established compensation.

Complexity of application of a principle of protection of weakness at the first stage of action of the mechanism of realisation of the civil rights and discharges of duties consists that it is necessary to reveal those legal relations at which there is a weakness, and also to create such mechanism of realisation and protection of its rights which will create desirable effect.

One of other stages of the mechanism of realisation of the rights and discharge of duties - procedural realisation of the right. At the given stage the subject makes the significant legal acts directed on reception of the blessing. The specified procedures are often registered in the law, other certificates.

Cases when the subject who is in legal relation stronger, offers weakness very difficult order for realisation of its right are meanwhile frequent. It is shown, for example, in legal relations of citizens with public authorities, local government, the state or municipal organisations. For example, for realisation of the right to habitation, utility reception it is necessary to issue a package of documents that can occupy long enough time.

So to execute, at first sight, not long work on gas metre replacement in Saratov it is necessary to make an application, on which it is applied: a copy of the warrant or the certificate on registration of the property right to a premise in which counter installation is supposed; the document proving the identity of the citizen; a copy of the house register or an extract from the personal account; copies of passports on the gas equipment for definition of its capacity; the contract on maintenance service of the intrahouse gas equipment with the specialised organisation; the inquiry on absence of debts on payment for gas and maintenance service [179].

Besides it are made out twice (before removal old and after statement of the new device of the account) the certificate of inspection (inventory) of a gas economy of the population; the dress on performance of works; the certificate on installation of seals on the account device; the certificate of the executed works; the receipt on payment of the executed works; the certificate of commissioning of the device of the account of the expense of gas [180].

It is important to understand, that citizens are not professionals in the specified sphere, not always can correctly define, how much this or that document is constituted legally competently and whether it breaks their rights. It is interesting, that one part specified above works is carried out Open Society «Sara - tovgaz», and another - Open Company «Gazprom mezhregiongaz Saratov». Thus, for counter replacement it is necessary to address simultaneously in two organisations. Such difficult order essentially reduces possibilities on the prompt and most effective realisation of the rights of citizens.

It is necessary to take concrete measures for the prevention and red tape elimination at registration of those or other documents. For example, in the case resulted above expedient it is represented to establish standard, that for replacement of the gas device of the account it is necessary to address once in one organisation. All moments of interaction of Open Society «Saratov - gas» and Open Company «Gazprom mezhregiongaz Saratov» should dare without participation of consumers of utilities. Thus the package of the documents applied on the statement, should be minimum.

(Facultative) the stage of protection of the broken right is following. On the one hand at the permission of concrete dispute the court is guided exclusively by the letter of the law. On the other hand, there are the fundamental principles, fundamental principles, leaning on which the court can (and should) to recede from the literal maintenance of norm. In this connection the tendency to protection of weakness by court by application of principles of the civil legislation (conscientiousness, inadmissibility of misuse of right) recently is observed. It is indicative, that the told is characteristic for the majority of legal systems of the present to what testifies, for example, practice of activity of the Dutch and English vessels [181].

The special relation of vessels to weakness is caused also by some other circumstances: active application of estimated terms in the conventional law (for example, practice by a recognition unfair contractual conditions), interpretation of disputable treaty provisions, the general paternalism shown by vessels in disputes with a consumer element and another [182].

The principle of protection of weakness in the obligation is reflected and in the Decision of Plenum of the Supreme Arbitration Court of the Russian Federation «About freedom of the contract and its limits». For example, the court can apply norms about separate kinds of contracts to not named contract under the legal analogy if it is necessary for protection of interests of weakness. In the document it is especially underlined, that weakness can be present not only at consumer contracts, but also in transactions between businessmen. The decision contains also a number of other positions directed on protection of weakness in the obligation. Realisation of separate positions of the specified document in practice will raise value of an analyzed principle at a stage of protection of the broken right, will positively affect small and average business, stimulates competition development.

As it has already been noted, weakness in the obligation is the subject who has less possibilities for realisation of the right in comparison with the counterpart. However, not to the full opened there was a question on how the principle of protection of weakness in the obligation depending on specificity of subject structure of legal relation is realised.

First of all, weakness in relations with the businessman (the professional subject of an economic turn) is the citizen-consumer. Necessity of protection of the rights of consumers was marked in works of many jurists. In particular, N.A.Barinov approved, that «the consumer rights are protected by various branches of law. The special place belongs to civil law» [183 [184] [185].

According to the Law of the Russian Federation «About protection of the rights of consumers» citizens have the right to education in the field of protection of the rights of consumers, on safety of the goods, on the information on the manufacturer (the executor, the seller) and about the goods (works, services) etc. Besides it, special position of consumers is defined by rules about retail purchase and sale (§2 gl. 30 GK the Russian Federation), about -

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kate (§2 gl. 34 GK the Russian Federation) and other norms.

Granting of special guarantees and the rights to consumers - the world practice applied by many legal systems of the present. So, the German legislation establishes a duty of concrete subjects to conclude the contract (Kontrahierungszwang). The similar rule is applied, for example, in sphere of maintenance of consumers by articles of prime necessity. Besides it, it agree § 138 German civil codes (further - GGU) insignificant admit dogovory, contradicting to kind customs. Owing to the given norm the point on the overestimated percent in the contract on extending credit [186] is not supposed, for example. In case of infringement of these or other requirements GGU the contract in whole or its separate positions will be recognised by insignificant.

Norms about protection of the rights of consumers, inadmissibility of inclusion in the agreement of unfair conditions contain in the legislation of the majority of the countries of the continental legal system (France, Italy, the Netherlands).

Necessity of similar norms unequivocally admits [187] the foreign literature.

In the Anglo-American right the doctrines, maintenances of the contract concerning to justice (content-oriented policing doctrines in equity) are conventional. Here it is possible to carry, for example, the doctrine «procedural unconsciornbility» according to which the contract should be nullified on the basis of its remedially-legal complication for one of the parties (for example, because of a foggy, not clear and confused statement of the text of the contract its maintenance is not clear to the average sane person; some essential treaty provisions "are hidden" by a small font in footnotes). Besides, there is a doctrine «careful viewing (strict check) cascade contract» (strict scrutiny of a rolling contract) according to which party, whose rights are restrained by essential conditions of the similar contract, has the right to sue with the requirement to recognise the contract void [188].

There are the international legal acts which purpose is protection of consumers. For example, at level of the European Union the Instruction № 93/13/EEC from April, 5th, 1993 «About unfair conditions in consumer contracts» [189], called to unify the legislation of the state-participants concerning protection of consumers against unfair conditions in standard contracts operates.

Meanwhile, it is impossible to tell, that the principle of protection of weakness acts as supervising beginning at regulation of exclusively consumer legal relations. On occasion the person who is carrying out enterprise activity (and both physical, and legal) becomes weakness. The similar position expressed also Presidium of the Supreme Arbitration Court of the Russian Federation which, for example, noticed, that in the leasing contract lizingopoluchatel is more weakness [190].

Certainly, the businessman becomes weakness not owing to the status, level of knowledge, abilities (as, for example, the consumer), and owing to the objective causes caused by specificity of concrete civil matters. It is necessary to carry special position of the strong counterpart, and also other factors to such reasons. The most actual for scientific studying are following cases of a recognition of the subject of enterprise activity by weakness in the obligation.

1) Dogovory with a monopolist (gas supply, power supply, rail transportation, etc.).

Realisation of an analyzed principle in this case consists that at regulation of the specified legal relations the legislation quite obosnovanno and correctly provides exceptions of a principle of freedom of the contract. So, FZ «About competition protection» it is forbidden economically either technologically not proved refusal or evasion of making contract with separate buyers if these actions are made by the person occupying a leading position in the market [191]. neustanovlenie similar rules could lead to essential restriction of a competition, decrease in efficiency of an economic turn.

2) Dogovory with public formation.

According to item 1 of item 124 GK the Russian Federation directly the Russian Federation, its subjects, municipal unions on the equal beginnings enter legal relations with legal and physical persons [192]. However in practice very often public formations create to themselves any advantages (for example, by acceptance of regulatory legal acts which limit their responsibility). As execution by public formations of the duties - unresolved a question which demands the prompt permission is correctly noted for today in the legal literature [193]. Advantages of the named subjects if they have no weighty substantiation, not only worsen position of the businessman, but also create soil for corruption and other crimes.

Thus, in this case weakness of the businessman is connected with an insufficient regulation of powers of the state as participant of private-law relations. It is necessary to register the mechanism which would allow to achieve appropriate execution of obligations from the public subject at legislative level.

3) the Agreements connected with granting of money resources.

In a considered case the subject of enterprise activity enters legal relations with the credit organisation. Last, as stronger subject, has possibility to impose the treaty provision, to handicap the counterpart, etc.

One more similar example - the leasing contract. As not unreasonably marks E.V.Vavilin, lessors define sellers of property necessary for the tenant, not incurring responsibility for this choice. Though under the general rule the lessor undertakes to get in the property the property specified by the tenant at the seller defined by it (paragraph 1 of item 665 GK the Russian Federation), but tenants actually have no possibility vozdej - stvovat on lessors and to fix in the contract of financial rent, that the choice of the seller is carried out by the lessor [194].

Speaking about the specified group of legal relations, it is necessary to notice, that it is necessary to create such legal mechanism which would reduce possibility of the credit organisation to impose to the counterpart unprofitable conditions for it credit or other similar contract.

4) Legal relations in which it is possible to recognise the businessman as weakness owing to specificity of its activity.

As has correctly noted J.V.Romanets, «weakness can be and the manufacturer who is engaged in a certain kind of enterprise activity» [195 [196]. The legislator it is absolutely proved gives special protection to such persons. It is expressed in granting of certain privileges, reduction of responsibility for inadequate execution of a contract, etc. For example, in force ch. 1 items 17 of the Federal act «About protection surrounding

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Environments »the enterprise activity which is carried out with a view of preservation of the environment, is supported by the state.

Vivid example of a recognition of the subject of business by weakness depending on a field of activity is the contracting contract on which the additional rights are given the manufacturer of agricultural production. So, owing to item 538 GK the Russian Federation the manufacturer of the agricultural production which has not executed the obligation or the inadequate image executed obligation, bears responsibility only in the presence of fault.

Activity on transportation of cargoes can be considered as one more similar sphere. So, K.M.Arslanov fairly writes about «aspiration of the legislator to protect a carrier from the raised enterprise responsibility» [197]. Thereupon the legal position of the Constitutional Court of the Russian Federation which has specified is indicative, that the principle of legal equality in sphere of enterprise and other activity does not exclude its various display in separate vital spheres. Limited liability as one of civil responsibility principles is supposed GK the Russian Federation (item 393-406) and it concerns activity on use of the vehicles, assuming the raised enterprise risk [198 [199].

In this case the problem of realisation of a principle of protection of weakness is reduced to revealing of those spheres of enterprise activity which demand additional support from the state.

The problem of a recognition of the businessman weakness in civil matter is actual and for the right of the foreign states. Foreign authors noticed, that exist dogovory between legal bodies in whom one party essentially is weaker другой3. Quite concrete example from practice of English court is resulted also: business AtlasExpressLtd against Kafco. At its permission the court has paid attention to that fact, that the respondent, with the big share of probability, would cease the activity if has disagreed on change of the contract which have been put forward by a national carrier, i.e. there was no real choice of treaty provisions. The party occupying weaker position under the contract, has been forced to accept them. Thus, in spite of the fact that concept of excessive influence is usually used concerning "unbusinesslike" contracting parties (for example, under contracts with consumer participation), on the given case the court has decided, that such concept can be used and in a considered case and has applied it to the resolution of dispute between the persons who are carrying out enterprise activity [200].

On the basis of stated, the principle of protection of weakness in the obligation is the basic idea of a liability law shown at interpretation of the legislation and in judiciary practice which essence consists in necessity of granting of special protection to subjects who have less possibilities for realisation and protection of the rights in comparison with the counterpart.

Application of a principle of protection of weakness in the obligation is necessary in following cases: a specific order of the organisation of realisation of the rights and discharge of duties at a separate stage of realisation of the right, special subject structure and-or the maintenance of the concrete civil relation. Besides it the principle of protection of weakness acts as supervising beginning at regulation of some legal relations which specificity consists available in them of the strong subject (a monopolist, the state), or the counterpart, the rights and which interests demand special protection (citizens-consumers, manufacturers of agricultural production, carriers).

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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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