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principles of legal regulation of the penalty

In the civil law theory at definition of principles of the penalty there is no unity of sights.

One authors define quantity of principles of the penalty proceeding from property sanctions [42], and others - from penal actions [43], and the third - from a principle of inevitability of responsibility [44].

Besides, as principles of realisation of the penalty equivalence of the penalty to volume of the caused loss (a harmony principle), measures named economic validity property ответственности3 are called a specific performance principle обязательства1, economic interest of the creditor in reception неустойки2, and also.

Undoubtedly, all approaches are worthy. As a whole classification of principles of legal regulation of the penalty should be spent by four criteria: 1) under the relation of realisation of the penalty with general principles of putting on of responsibility in civil law (a principle of inevitability and equality of a responsibility of the parties); 2) in relation to object of maintenance of the penalty, i.e. the provided obligation (a principle of completeness of maintenance of the obligation and obligation specific performance); 3) in relation to subjects of debt relationship: to the creditor (a principle of interest of the creditor in application of the penalty, the debtor - a principle of fault of the offender at penalty realisation); 4) in relation to the penalty (a principle of differentiation of the size of the penalty and the bases of its application, and also a principle of equivalence of the penalty to volume of an offence (losses).

These conclusions prove to be true the penalty nature, as one of kinds of civil responsibility, subject structure of debt relationship and carried out by the penalty in the course of its realisation of functions.

Really, being property responsibility, the penalty is subordinated to the general principle of responsibility - to a principle of inevitability of application of responsibility. Inevitability of responsibility is provided, first, with exact is standard-legal definition of an order of its realisation: from revealing of the facts of offences and persons, their made, before realisation pravoogranicheny, applied within the sanction to pravonarushite -

1 See: Lejst O. E. The decree. soch. - with. 161-162.

2 See: Konstantinova B.C. The decree. soch. - with. 18.

3Cm.: there zhe.-with. 125-132.

lju. Secondly, it is provided with harmony, conformity of the sanction to character of a kind of an offence [45 [46].

That rules of law settle the bases of application of the penalty is characteristic, the form of the agreement on the penalty and other. At the same time, according to the current legislation penalty application, i.e. its realisation by collecting from the defaulter, is the right of the authorised party, instead of a duty. The question of realisation of the penalty is left by the legislator to the discretion of the creditor, whose interests are broken. It concerns both realisations contractual, and the lawful penalty that is final, does not promote efficiency of action of a principle of inevitability of responsibility.

In practice there are cases when the creditor "forgives" the defaulter, not addressing in court behind penalty for infringement of the contractual obligation from the debtor.

In this plan the affairs considered by Arbitration court of Republic Bashkortostan under claims of Open Society «Bashselhozteh - nika» to the counterparts-collective farms and the technological enterprises of Republic are indicative some. The analysis of the considered affairs has shown, that between the parties there were debt relationships on the basis of the concluded contract of delivery (purchase and sale). The party contract have established the penalty for unpaid amount of the received goods. On a number the claimant has put has addressed with the debts recovery suit for the transferred goods without penalty charge for unpaid amount of cost of the goods. In considered cases the claimant did not realise the legitimate right for penalty for infringement by the debtor of treaty provisions about payment for the received goods.

At the described situation the penalty has not reached the initial purpose - maintenance and stimulation of appropriate execution of the obligation,

The subsequent purposes - restoration of property sphere of the victim from a party offence, i.e. approach of responsibility of the debtor for obligation infringement.

The inefficiency of action of a principle of inevitability of responsibility in the form of the penalty in a considered case is obvious.

Not casually some authors mark an inefficiency of action of this principle in economic obligations. However the reason of such position of V.S.Konstantinova sees in absence of the debugged mechanism of action of this нормы1. Hardly the given conclusion is correct.

The general rule at infringement of the obligation of one of the parties is attraction by the authorised person of the offender to responsibility. In our opinion, the inefficiency of a principle of inevitability of responsibility in some special cases is caused only by that action of the rule of law with reference to the penalty does not contain the instruction about obligatory collecting by the creditor of the penalty from the defaulter. Under the current legislation the penalty is collected in favour of the creditor.

Therefore the principle of inevitability of responsibility at penalty application consists that the authorised party at infringement of its valuable interests has the right always and in any case to involve the offender in a civil liability with observance of statutory requirements (the period of limitation, etc.).

Let's in passing notice, that the former legislation provided penalty in some cases not in favour of the creditor, and in the budget income, for example, for delivery of the goods which shipment has been forbidden by the bodies which are carrying out the state supervision of introduction and observance of standards, specifications and the control over quality tova -

ров1.

Practice has shown, that measures applied by the state have not appeared effective on a number of objective causes. In particular, practice of collecting of penalties in the budget was an indicator existing before command system and planned conducting managing. The operating civil legislation which has proclaimed a principle of freedom of the contract, various patterns of ownership, all-round development of commodity-money (market) relations does not know norms-instructions about collecting of the sums of penalties due to the authorised party in the budget.

Because in bolshej the part arising debt relationships between subjects of law are not connected at all with the state plans, the state discipline, the principle of inevitability of responsibility in civil law at occurrence of debt relationships should be interconnected with such principles, as economic interest in reception of the penalty, specific performance of the obligation, differentiation of the size of responsibility. Only the creditor, whose property rights have been broken, can solve, it is favourable to it (from the economic, property point of view) or not to collect the penalty, considering thus procedure of disposal of legal proceeding in arbitration courts, procedure of execution of the decision on the collected penalties, State Tax payment on business.

The important principle of responsibility in civil law is the principle of specific performance by the obligation parties. Really, in the course of execution of the contractual obligation of each of the parties important in itself execution of a contract (thing transfer, performance and reception any

1 See: Position point 72 «About deliveries of the consumer goods», approved by Decision CM the USSR from July, 25th 1988г. № 888//the joint venture of the USSR. - Отд.1. 1988. - № 24-25. - Item 70.

The question on penalty for infringement of the contractual obligation in the budget income was a subject of wide discussion in the literature. See: whether SHmalts I.Strogi of the sanction?//the Truth. 1978. - on July, 21st; Economic sanctions and discipline of deliveries. - Kiev, 1976; Abova T.E. Protection of the economic rights of the enterprise. - M., 1975. - with. 135; Konstantinova V. S. The decree. soch. - S.17-18.

Services, etc.), thus the parties do not pursue reception first of all the penalty for obligation infringement. The penalty in itself is not a debt relationship subject. In this connection it is not casual in the literature it was noticed, that the duty to pay the penalty is not a component, an element of the maintenance of the basic obligations relation (the penalty has additional in relation to the basic obligation character) in this connection the penalty acts only as the guarantor of the obligation.

C the points of view of a principle of specific performance of obligations in economic relations all penalties, penalties, peni - not that other, as put in pawn in a standard design pravovosstanovitelnoj responsibility «additional sanctions», forcing to execution broken (broken) обязательства1.

Differently it is possible to name obligation specific performance obligation execution in nature.

Special sharpness this problem in a situation when as a responsibility measure the lasting penalty (penja) is applied differs.

Really, how to be in a case when the debtor who has admitted infringement of the obligation, has already paid for it the penalty? Whether the creditor can make the demands the second and third time, whether can demand thus obligation execution in nature (for example, goods short shipment takes place, it is added penja, the creditor demands thus dopostavit to it missing quantity of the goods, whether rights it?).

Essentially the given question in the new Civil code of the Russian Federation is in a new fashion solved. Novelty of these positions and their essence consists in different approaches to two various situations: defaults of the obligation or its inadequate execution.

According to item 396 GK the Russian Federation if payment of the penalty and the indemnification are caused by obligation default, the debtor is released from obligation execution in nature.

The principle of specific performance of the obligation at realisation of the right to the penalty, that is fulfilment by the debtor of those actions which constitute the obligation maintenance, has the value in cases of such infringement of the contractual obligation, as inadequate execution of the obligation.

This principle is how much important, it is possible to show on a following example. Joint-Stock Company "Инвит" has addressed in Arbitration court RB to Open Company «Building management - 4» Open Society of Building trust № 3 with the recovery suit of the penalty provided by the contract for delay of performance of one of stages of civil and erection works. Having investigated business materials, Arbitration court RB has established infringement by the contractor of the established schedule of performance of works on second stage CMP. By the moment of a legal investigation the respondent has not been finish works and on the subsequent periods. Joint-Stock Company "Инвит" claim has been considered by arbitration court RB on the substance of the declared requirements. Court owing to item 708 GK the Russian Federation the decision on penalty for infringement by the contractor of the treaty provision about terms of performance of works was accepted. Thus for the contractor the duty provided by the contract on execution of works under the contract in whole, the termination of building and object delivery заказчику1 has remained.

At the same time it is necessary to notice, that the principle of specific performance of the obligation has the value at a stage of execution of a contract. As a rule, in practice the authorised person addresses in arbitration court with the claim already at a stage of infringement of the obligation i.e. when obligations of the parties are executed (but with infringement) or when the obligation is not executed, but the creditor loses any interest to исполнению2.

1 Sm: the Award of Republic Bashkortostan from 15.10.1999г. On business Г-5703/MEM/H Archive of Arbitration court of Republic Bashkortostan.

2 See: for example, the Decision of Presidium of the Supreme Arbitration Court of the Russian Federation № 2951/96 from 08.10.96г. H the Bulletin YOU the Russian Federation. 1997. - I. - S.48-49.

The analysis of the economic disputes considered by Arbitration court RB following from inadequate execution of the obligation (grazhdanskopravovyh transactions), has shown, that the requirement in nature together with the requirement about penalty for inadequate execution has been declared obligation execution all under several claims that constitutes an insignificant share in total of the considered affairs. Are annually considered on this category over 8000 affairs. Probably, this results from the fact that the creditor after the come true fact of inadequate execution of other party of the contract does not hope to receive its execution and in the future, even after the taken place decree about compulsion of the respondent on business to obligation execution in nature, or the creditor behind the expiration of the terms established by the contract loses any interest to obligation execution.

At the same time the specified principle is connected with the subject of the obligation in this connection is a powerful guarantee of property rights of the creditor. It is connected with the basic function of the penalty - stimulation of appropriate execution and obligation maintenance.

Other important principle of realisation of the penalty is equality of a responsibility of the parties. The principle of equality of a responsibility of the parties is based on an estimation of the importance of each of counter obligations of the parties for enforcement of the treaty as a whole [47 [48].

For an illustration of application of the civil legislation and other normative acts regulating economic relations, pertinently to address to the Transport Charter of the iron operating now

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Roads of the Russian Federation.

According to article 105 of the Transport Charter of railways equal responsibility of counter obligations of the parties under the rail transportation contract is provided: for example, for default by the accepted railway of the shipping request of cargo - the railway is responsible for the default of pleading of cars (containers), and the consigner - for a cargo non-presentation, non-use of the submitted cars or refusal of the submitted cars - in the form of the penalty at a rate of 0,1 minimum wage rates for each ton of cargo (or 0,5 sizes of the minimum wage rate for each container and other).

It is necessary to notice, that the parties at an establishment in the contract of penalties under the agreement of parties for various kinds of infringements also actively apply a principle of equality of the parties. So, on 82 affairs considered by Arbitration court RB under claims of Open Company «Coca-Cola Ingkejp - Bashkortostan» to buyers of its production, treaty obligations of purchase and sale (delivery) following from inadequate execution, it has been established, that mutual relations of the parties have arisen on the basis of the contract of purchase. In all cases the parties in the contract had been adjusted penalties: on the one hand, for infringement by the seller of terms of delivery (transfer of the goods paid preliminary) - at a rate of 0,5 % from cost of not transferred goods, on the other hand, for infringement of terms of payment by the buyer of the received goods - at a rate of 0,5 % from cost of the unpaid goods [49].

Differently, at infringement by each of counterparts of the obligations in the contract the equal responsibility of the parties has been provided. Has found the fastening the given principle and in the operating Civil code of the Russian Federation by some kinds of the contract (the item st, 486 see, for example, 487).

At the same time it is necessary to notice, that in some laws by which the penalty is established, it is not to the full observed at definition of responsibility a principle of equality of the parties. For example, the Federal act of Russia -

skoj Federations from 10.11.94г. № 60-FZ «About deliveries of production for the state needs» responsibility in the form of the penalty only for infringement of the obligation from the supplier (Law item 5) is provided. The specified Law does not establish, for example, responsibility of the customer for untimely payment of the put goods.

However, other laws provide responsibility in the form of the lawful penalty for infringement of the obligation from both counterparts (see: item 8 of the Federal act of the Russian Federation from December, 2nd 1994г. № 53-FZ «About purchases and deliveries of agricultural production, raw materials and the foodstuffs for the state needs»; the chapter of IV Federal act of the Russian Federation from December, 29th 1994г. № 79-FZ «About the state material reserve»).

Other principle of realisation of the penalty, in the literature, the principle of completeness of maintenance of the obligation is named. The specified principle consists that penal actions should guarantee performance both the economic contract as a whole, and each of containing in it обязательств1. The principle of completeness of maintenance of the obligation is closely connected with a principle of specific performance of the obligation and turned, first of all, to object of maintenance of the penalty, the debt relationship.

The penalty, being means of maintenance of the obligation as a whole, mainly serves as the guarantor of maintenance of separate duties of the parties for which maintenance it is provided. Not casually law and the contract penalties for any offences - the facts of infringement of the obligation can be provided.

Ultimate goal of any obligation is its appropriate execution by the parties according to requirements of the law and treaty provisions.

Debt relationship execution in a kind of their big variety can be connected as with a certain thing (definition of its quantitative and qualitative characteristics), and with certain actions which should make the parties.

So, a principle of completeness of maintenance of the obligation the most strongly pronounced at an establishment the legislator of various penalties in the Law "About the state material reserve", the Transport Charter of railways of the Russian Federation (item 105-133 item). The specified acts establish penalties for various contractual delinquencies by the parties under the contract (contract).

Meanwhile some acts regarding an establishment of property responsibility carry otsylochnyj character, they do not establish absolutely not the concrete sizes of penalties [50]. Other acts, as for example, the Federal act of the Russian Federation from January, 10th 1994г. "About deliveries of production for federal state needs", the penalty by separate significant kinds of infringements is not established: for delivery of the poor-quality (not marked) goods, for delay of return of multiturnaround container and прочее2.

The similar situation takes place and on such significant contractual legal relationships actively used in the civil circulation, as successively.

In the operating civil legislation there are no norms about the lawful penalty for infringement of contractual obligations podrjada, for example by such kinds of obligations, as nekachestvennost works, infringement of terms of performance and delivery of works, carrying out of calculations etc.

Probably, in this connection in the literature some authors propose an establishment of the concrete list of the bases of responsibility,

1 See: item 37 of the Federal act of the Russian Federation from January, 20th 1995г. "About communication"//С3 the Russian Federation. 1995. - № 8. - Item 600;

1999. - № 2. - Item 235.

2 See: Law item 5 "About deliveries of production for federal state needs"//SZ the Russian Federation. 1994. - № 34.

- Item 3540.

Conditions of application of the penalty on various kinds civil правоотношений*.

The establishment in the legislation of norms on the lawful penalty under purchase and sale obligations, podrjada is represented justified: as to the penalty for infringement of quality of works in the form of the penalty at a rate of 5 % from cost of poor executed works; 0,1 % peni for infringement of terms on elimination of defects of works per every day of delay from the sum nenadlezhashche the executed obligation; 0,1 % peni for infringement of terms of performance and delivery of result of works. In the presence of counter responsibility in the form of the penalty for infringement by the customer of obligations on timely realisation of payments (contractual penja, actively applied by the parties), the specified kinds of penalties would serve as means of strengthening of such principle of realisation of the penalty, as completeness of maintenance of the obligation.

And besides, active use by subjects of the civil circulation with a view of protection of the rights of the contractual penalty as maintenance of appropriate execution of obligations by various kinds of infringements which are not provided by lawful penalties will be an optimum exit from this situation.

Meanwhile, the analysis considered in Republic Bashkortostan Arbitration court in 2000 of the disputes connected with penalty for inadequate execution of various kinds of obligations, has shown, that 87 % from all affairs constitute disputes on collecting of the contractual penalty connected with unpaid amount of a debt. The parties passively enough use in contracts the penalty for short shipment, infringement of quality of the goods (works, services), infringement of terms of elimination of defects, etc.

With reference to realisation of the penalty and collecting of last with dolzh - 1 nika as forms of property responsibility, the general principle of fault should operate. Last is fixed by the legislator as one of the bases of application of responsibility. At the same time, the Civil code of the Russian Federation has provided special cases of putting on of civil responsibility without fault presence, pursuing thus the aim of special protection of interests of some subjects of law, and also in legal relations with participation of businessmen.

In a science of civil law the problem of responsibility without fault presence remains debatable for, according to scientists, such responsibility is deprived stimulating value. Besides, it negatively affects the initiative предприятий1.

Judicial-arbitration practice recognises that absence of fault of the organisation in contractual delinquency can form the basis

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For condonation in the form of the penalty (item 401 GK the Russian Federation).

In the literature other principle of realisation of the penalty, directly to subjects of debt relationship economic interest of the creditor in penalty reception admits concerning. According to some authors, the creditor should be from the property and economic point of view is interested in attraction of the infringer to responsibility [51 [52] [53].

However no fact of attraction of the infringer to responsibility and penalty have in itself for the creditor of certain value. For the creditor is important first of all to eliminate the adverse consequences which have come as a result of infringement of the obligation. From the point of view of satisfaction of valuable interests of the creditor revealing of criteria of its interest in penalty reception in each concrete case is important. As those degree of execution of the contractual obligation of each of the parties, character of infringement, presence or absence of losses, the size and a kind of the provided penalty, statutory legal effects of infringement of a separate kind of the obligation of which the creditor can take advantage can be recognised. Only as a result of comparison of all these circumstances the creditor himself can define, whether collect to it the penalty for infringement of the obligation or apply different ways of protection of the broken right.

In the theory of civil law a point of issue was also the question on economic validity of norms property ответственности1 which in general was reduced to a question on the sizes of the penalty and an order of its definition, that is to a question on differentiation of penalties. Because the sizes of penalties are established by the strong-willed decision, the opinion that they cannot be economically обоснованными2 has been expressed in the literature.

It is unique a true exit from this situation carrying out of differentiation of penalties under the form, the size and a way of their calculation, reflecting features of a corresponding kind of breaches of contract and their importance is. Not casually theoretical and practical value of differentiation of penalties admits the majority of the jurists which necessity is dictated by a problem of harmony of responsibility to infringement consequences обязательства3.

In the literature of the size of penalties earlier there were different sights. One authors believed, that the operating sizes неустоек4 were to probelief -

1 See: Anisimov E.V. About the economic contract//Uch. zap. VNIISZ. 1966. - Вып.7. - С.15; A.G.system's Bulls and main principles of application of sanctions to the economic organisations//Owls. gos. And the right. 1967.

- № 2. - С.31.

2 See: Malein N.S.decree. soch. - С.125; M.P.Vystuplenie's ring at session of academic council VNIISZ//Uch. zap. VNIISZ. 1966. - Vyp. 7. - С.49; Braginsky M. I, Vitrjansky V.V. Ukaz. soch. - С.391.

3 See: Lazareva Etc. the Decree. soch. - with. 91; Alexeys S.S.civil law in the developed building of communism. - m „1962. - With. 164.

4 the sizes of penalties by Positions about deliveries of production and the goods 1959г Meant.

ny experience of many years, were notable enough for the enterprises and are real [54], corresponded to objective factors and the requirements shown to obligations relations, defining the size of responsibility [55 [56].

According to other authors, followed raise the size penal sank -

V> 3

tsii.

Confuting the given point of view, O.S.Ioffe has noticed in due time, that the increase in sanctions for obligation infringement is undesirable, as excessive sanctions on the size negatively would affect a financial position of the enterprises [57].

Now the situation has changed in comparison with that, that existed in 70-80th when by the legislator it has been provided over three thousand sanctions for infringement of obligations in economic activities [58].

The current legislation analysis allows to judge that the quantity of lawful penalties was sharply reduced. The decision of a question on putting on of responsibility in the form of the penalty is in most cases left by the legislator to the discretion of the parties which should differentiate in each concrete case the size of the penalty depending on character and the importance of infringement, duration of infringement, etc.

So, penalty realisation represents actual process of application by subjects of concrete legal relation of rules of law and treaty provisions about the penalty and its collecting in a statutory order from the offender. Process of realisation of the penalty is constructed, in our opinion, on the principles specified above: inevitability of responsibility, completeness of maintenance of the obligation, differentiation of the penalty on the various bases and equality of a responsibility of the parties, a fault principle. These principles of realisation of the penalty are closely interconnected and vzaimoobuslovleny: follow as from legal nature of the penalty, as one of responsibility forms, and functions carried out by the penalty, and from specificity of debt relationships and subjects of the given obligations. Definition of principles of realisation of the penalty has practical value in respect of an establishment of criteria of the size of the penalty, interest in application of the penalty of both parties and equality of a responsibility of the parties, penalty in the presence of fault of the offender in the civil matters which are not following from enterprise, and in other cases, statutory.

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A source: Malikova Elza Maratovna. penalty Legal regulation at the present stage. The dissertation on competition of a scientific degree of the master of laws. Kazan -. 2001

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