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rights as direct objects of maintenance of the penalty

As is known, with introduction of the new Civil code many acts have lost the force, the laws regulating debt relationships in various fields of activity have been passed. In former years, before acceptance of the new Civil code of the Russian Federation, the regulation of contracts of delivery, retail purchase and sale, contracting, power supply, forwarding service, calculations - generally was carried out by the subordinate legislation or departmental instructions.

Now the Code or provides exhaustive regulation of these obligations, or contains the basic basic positions in a part of regulation of consequences of default or inadequate execution of separate conditions of contracts and an establishment of the bases, responsibility volume, or sends to federal acts.

In this connection a problem of research of direct object of the penalty as a way of maintenance of the obligation and a measure of a liability of infringement of the obligation on various legal relations, again has got the urgency. The establishment of direct object of the penalty by various kinds of contracts and definition of its specificity is connected with research of questions of regulation by the law of consequences of default or inadequate execution of separate kinds of obligations under these contracts. Besides, at research of the given question it is necessary to consider what norms (optional or imperative) regulate those or other relations, and also that the person who has admitted contractual delinquency, bears responsibility and when norms about consequences of default of separate conditions of contracts do not include position about a duty to pay damages and to pay the penalty.

In the Code in the form of the provisional rule the principle of summation of the obligation according to which statutory or the contract the penalty for short shipment, delay of delivery of the goods is collected from the supplier before actual execution of its obligation within it obja is reproduced known to earlier operating legislation on deliveries

zannosti to fill the outstood quantity of the goods in the subsequent periods of delivery if other order of payment of the penalty is not statutory or the contract (item 521 GK the Russian Federation).

For definition of direct object of maintenance of the penalty reaction of the creditor to infringement of treaty provisions by the debtor has the important practical value, in our opinion. The law in some cases obliges the creditor to inform the debtor on infringement of treaty provisions and performance of the obligations according to treaty provisions, in case of default of this rule the debtor can refuse performance of requirements of the creditor in connection with obligation infringement (articles 483, 619 see, 720 GK the Russian Federation).

So the goods in bolshem quantity, for example, can be transferred, the goods assortment, etc. - can be different: the buyer can disagree to accept such goods, then it should notify in due time on it the seller (item 483 GK the Russian Federation), the buyer can accept such goods then as it seems to us, it it can be regarded as the consent of the buyer to change of treaty provisions (item 450 item 1, item 452 GK the Russian Federation). If in the first case the object of the penalty can be object of maintenance of the obligation of the seller under the timely order of the goods transferred in excessive quantity in the second case application of this penalty is excluded, as at the buyer who has accepted the goods, there is a duty on its payment.

The regular analysis of norms of the operating civil legislation on contracts of purchase allows to judge that the law on - a miscellaneous solves a question on legal effects of infringement of those or other treaty provisions that matters for definition of specificity of object of the penalty.

According to an explanation of the Supreme Arbitration Court of the Russian Federation refusal of the goods mismatching a condition about assortment, and of all goods transferred simultaneously, is not considered refusal of execution of the obligation and not

Attracts contract cancellation. The buyer in this case has the right to demand as actually the penalty for infringement of treaty provisions about assortment, and the penalty for short shipment of all party товаров1. For penalty application for short shipment of the goods thus it is necessary to mean, whether the buyer has refused acceptance of the goods which have been laid down with infringement of a condition about assortment, or has accepted these goods. If the buyer has not refused the goods, not sootvetst - L vujushchih to a condition about assortment, and delivery of the given name agrees

To the contract it should be carried out during following periods of delivery the specified goods should be set off on account of volumes of these periods.

In a general view the object of maintenance of the penalty on various grazhdanskopravovym to obligations can be caused specificity:

1) character of a subject of the contract (for example, the law the property kinds which tenancy is not supposed or limited - item 1 of item 607 GK the Russian Federation can be established, or the specific order of transfer that is established

# vara - through the attached network under the power supply contract - item 546 GK

The Russian Federation, or it is connected with specificity of a subject of the real estate - item 550 GK the Russian Federation, or it is connected with the validity of the transferred monetary requirement - item 827 GK the Russian Federation).

2) the subject of these relations (for example, its proprietor or other authorised person - item 608 GK the Russian Federation can be the lessor of property only, consumers in sense of the Law of the Russian Federation źAbout protection of the rights of consumers╗ are

Only the physical persons entering the relations on purchase and sale of the goods,

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Rendering of services; to individual businessmen or the commercial organisation - under the contract of confidential management - item 1015 GK the Russian Federation).

3) the form and an order of making contract and its prolongation, registration (under the contract of purchase of the real estate the contract should be zaklju -

1 See: item 12 of the Decision of Plenum YOU the Russian Federation from October, 22nd 1997г. № 18 "About some questions connected with application of positions of the Civil code of the Russian Federation about the contract of delivery"//the Bulletin YOU the Russian Federation. 1998. - №3.

2 See: In the same place.

chen it is obligatory in writing in the form of the uniform document - item 550 GK the Russian Federation), presence of the state registration of the contract under the rent contract for term more than a year and real estate rent - item 609 GK the Russian Federation under the contract of commercial concession - item 1028 GK the Russian Federation).

4) presence at the subject of the statutory permission representing certain service - licences (for example, under contracts bank

The contribution and the bank account - chapters 44 and 45 GK the Russian Federation, under contracts of carriage -

Item 9 of the Air code of the Russian Federation, under the insurance contract - item 938 GK the Russian Federation, under the financing contract under a concession of the monetary requirement - item 825 GK the Russian Federation).

So, for example, under the real estate rent contract the state registration if other is not statutory is necessary. Since this moment the contract is considered concluded (item Z item 433 GK the Russian Federation). The Same order is provided concerning a site of wood fund [98]. Object of the penalty for breach of contract of rent of the real estate of property, a site of wood fund obu -

# It is caught by presence of the state registration of such contract. Otherwise the parties do not have a right to penalty application for infringement of contractual obligations.

In case of breach of contract which should be concluded about observance of statutory requirements on subject structure of privies, to object of the transaction, an order of making contract and its registration, the object of maintenance of the penalty under such obligations arises only at observance by the parties of these requirements of the law.

* C other party, there is a specificity of object of maintenance of the penalty having not the general character with reference to any debt relationships, and inherent in those or other concrete treaty obligations. For example, have an originality of the relation of the parties on power supply in the absence of written contractual relations with the organisation, whose tep

lopotrebljajushchie (energosnabzhajushchie) installations are attached to networks energosnabzhajushchej the organisations: these organisations in the presence of actual consumption are not released from a duty to compensate cost of the released energy [99].

On the contrary, the contract of power supply concluded by the parties with certain period of validity is considered extended for the same term and on the same conditions at passive behaviour of the parties that is if before the term termination any of the parties does not declare a termination of the contract or its change (item 2 of item 540 GK the Russian Federation). It means, that at infringement of the obligation by the parties there is an object of the penalty on the same conditions and that size which has been adjusted by the parties under earlier concluded contract.

Feature of financial rent (leasing), for example, is that the tenant is not in contractual relations with the seller of property, however is allocated in relation to it by a number of the rights and duties (item 668, 670 GK the Russian Federation) [100].

Specificity of object of maintenance of the penalty for infringement of conditions about quality and completeness of the property which is a subject of the contract of financial rent, delivery terms, and in other cases of inadequate execution of a contract by the seller, consists that the tenant has the rights and performs the duties provided for the buyer as though it was the party under the property contract of purchase. Differently, at inadequate execution by the seller of treaty provisions of purchase and sale under the contract of financial rent there is an object of maintenance of the penalty regarding a subject of rent, terms of its transfer, etc. It is caused by that in most cases responsibility for a choice of the seller lays on the tenant if other not predusmotre - but the contract of financial rent, the lessor does not answer before the tenant for default by the seller of its duty under the contract of purchase.

Specificity of object of maintenance of the penalty and possibility of its application in case of infringement of treaty provisions podrjada is caused by following circumstances: whose expense performs works (item 704 item, 713 GK the Russian Federation); necessity of the message the contractor of data on unfitness of the materials given by the customer, probably adverse consequences, other circumstances threatening to the validity of results of executed works (item 716 GK the Russian Federation); economy of the contractor with preservation behind the last of the right to payment of the price established by the contract if that has not affected quality of works (item 710 GK the Russian Federation); on nekachestvennosti works - for detection of inadequate quality of result of works (item 724 GK the Russian Federation); the fact of rendering by the customer of assistance in performance of works and execution of counter duties under the contract prior to the beginning of works as the contractor (item 718, 719 GK the Russian Federation) [101].

Legal regulation in the Civil code of the Russian Federation of the relations connected with transportation of cargoes, luggage and passengers, appreciably differs from a regulation of other kinds of contractual relations.

It is connected by that on transport earlier developed system of legislative regulation remains: the basic obligations of the parties on transportation, consequences of their infringement, a responsibility of the parties are regulated by transport charters, codes or the agreement of the parties.

The general principles, kinds and the sizes of responsibility under the contract of carriage are provided by the Transport Charter of railways of the Russian Federation from 19.12.97г. [102], the Air code of the Russian Federation from 19.02.97г. [103], the Maritime Code of the Russian Federation from

Code chapter 50 enters into civil law new, earlier not existing institute - action in another's interest without the commission which assumes absence between the parties of any in advance adjusted treaty obligations. It would Seem, there is no also an object of maintenance of the penalty.

Actions in another's interest are actions without the commission or other instructions or in advance promised consent of the person, in which interests these actions are made, since otherwise on them rules of contracts, with which these actions oposredstvujutsja (successively, rendering of services, storage, the commission, etc.) 2 extend.

At the same time the Code defines legal effects of approval by the interested person of actions in its interest (item 982 GK the Russian Federation): in this case to relations of the parties rules about the contract of agency or other contract corresponding to character of undertaken actions even if approval was oral are applied.

It is represented, that presence of object of maintenance of the penalty in this case should be caused following circumstances: what legal status participants of the given legal relation (have fulfilment of actions in another's interest without the commission) - whether they are legal or physical persons (item 161 GK the Russian Federation), approval and form presence in which approval (orally or in writing) has been expressed; presence for the interested person of positive result (item 985 GK the Russian Federation); absence of objection from the third party - the creditor in the transaction concluded in another's interest.

In case the interested person is the legal body and approval in connection with approach of positive result has been expressed

1 Meeting of the legislation of the Russian Federation. 1999. - № 18. - Item 2207.

2 See: the Comment to the Civil code of the Russian Federation of a part of the second / Under the editorship of d.ju.n., the prof.

O.N.Sadikova, - M., 1996. - С.571.

In writing, it has a duty on payment of compensation to the person which actions in another's interest have led to positive result if the such is statutory, the agreement of the parties or customs of a business turn. In this case there can be an object of maintenance of the penalty for infringement by the interested person of a duty on compensation payment. It is necessary to notice, that the object of maintenance of the penalty can arise, in the presence of specified above circumstances, for default of the obligation by the interested person and under the transaction made by the person, operating in another's interest, with the third party.

Certain originality the legal relations differ, one of the parties in which are citizens-consumers. Those relations arise under contracts of retail purchase and sale; rent, including hire; premises hiring, including social hiring, regarding performance of works, rendering of services in maintenance of appropriate operation of an apartment house; podrjada (household, building podrjada); transportations; the commissions; storages; contracts on rendering of the financial services directed on satisfaction of personal (household) needs of the consumer, not connected with extraction of profit [104].

With reference to a problem of the penalty the originality of the specified relations is caused by that owing to specificity of arising legal relations and in interests of protection of consumers the special law defining the rights of consumers in the field of purchase and sale of the goods operates, rendering of services, performance of works and the establishing mechanism of realisation and protection of these rights [105].

Specificity of object of maintenance of the penalty, possibility of its application and the charge period at infringement of civil matters with participation of consumers is caused: 1) way of protection of the broken right and that tre

bovaniem which is declared by the consumer to the seller (to the manufacturer, to the executor); 2) the requirement about payment of the penalty provided by this Law or the contract, come under to satisfaction the seller (the manufacturer, the executor) in a voluntary order; 3) payment of the penalty and the indemnification does not release the seller (the manufacturer, the executor) from execution of the obligations assigned to it in nature before the consumer (item 13) \

At definition of object of maintenance of the penalty on the specified legal relations it is necessary to be guided first of all by norms of the Civil code (item Z item 492, item Z item 730) and other normative acts, in particular, the Law of the Russian Federation źAbout protection of the rights of consumers╗ in a part which are not contradicting GK the Russian Federation and the special law.

Results of the comparative analysis of the legislation and operating judicial-arbitration practice allow to draw following conclusions.

Objects of maintenance of the penalty are only the obligations of the parties following from contractual debt relationships, corresponding on the maintenance and the form to the law. However it does not mean, that subjects of penalty always are the parties under the contract. In cases, directly statutory, the penalty can be collected from the third party (the direct executor of the obligation) or in favour of the third party which is not the direct participant of the contract.

By the penalty obligations of the parties both on "named" by the legislation, and under the "not named" and mixed contracts can be provided.

By the lawful or contractual penalty obligations of the parties under the contracts concluded in writing can be provided. Obligations under the oral contract can be objects of maintenance only lawful neus - [106] tojki, established to special legal relations, or contractual if there is a special agreement of the parties on the penalty in writing. In other cases the verbal contract is not provided by the penalty.

Obligations under cummutative contracts, certainly, are object of maintenance with the penalty. Those are also the obligations following from unilateral and the bilateral contract.

^ Obligations of the parties on real and to consensual contracts, bezus

lovno, are object of maintenance of the penalty.

In gratuitous debt relationships the sphere of application of the penalty is limited. It is caused by two factors: first, a method of civil-law regulation of these relations; secondly, a parity of the rights and duties of each of the parties, i.e. presence unilateral or the bilateral contract. From here follows two conclusions. The first: the penalty in the specified legal relations is applicable only there where the legislator uses in * quality of regulation of these relations an optional method. The second: on odes

nostoronnemu to the gratuitous contract object of maintenance of the penalty are only civil obligations of a bound party. In the bilateral gratuitous contract object of the penalty are party obligations in which interests the contract is made.

It is necessary to notice, that norms of the law on the penalty, established for special legal relations, cannot be applied to the obligations of the parties following from other legal relations even if they are similar to these от* „

Carrying, belong to one type legal relation or have one and

The same object of maintenance (for example, debt unpaid amount can take place by various kinds of contracts). Hence, possibility of application of the penalty within one type of debt relationships depends on specificity of this or that kind of legal relations, from subject structure and volume of the legal capacity of participants obligations pravootno -

shenija., that the object of the lawful and contractual penalty depending on the form from here follows, maintenances and specificity of debt relationship not always coincides.

Some civil matters regulated by the Code come under to judicial protection only in that part of obligations of the parties and when it is directly provided by the Code. Accordingly, object of maintenance of the penalty on such legal relations are only those obligations of the parties which performance is directly fixed by the Code to a bound party.

Possibility of application of this or that kind of the penalty on a method and the period of its charge (the penalty, penja) as legal effect of infringement of the obligation, specificity of object of maintenance of the penalty directly depends on the kind of infringement of the obligation admitted by the debtor (default or inadequate execution), and also from the way of protection of the broken right chosen by the authorised party.

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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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