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THE CONCLUSION

As it has already been noted, the commercial turn is mediated by civil-law treaty obligations. It is possible to approve, that dogovory with participation of businessmen as physical persons, and the commercial legal bodies, directed on achievement of economically significant results, are commercial.

The obligations following from commercial contracts, also are commercial inherently. The legislator allocates in the Civil code some commercial contracts: delivery, retail purchase and sale, contracting, leasing, transportation, faktoring, commercial concession, the credit, insurance, building successively, household successively, the commission, warehousing, etc.

specified dogovory have All, at least, one general sign - one of the parties in the obligation is the businessman for whom similar activity is the basic and is directed on reception of the constant income.

Apparently, it is necessary to allocate commercial obligations, as special legal relations with special subjects and special set of rights and duties. Acknowledgement of this argument can be found that item 401 GK provides possibility of responsibility of businessmen irrespective of fault. In some cases the Law establishes additional duties of the businessman in comparison with the usual subject, for example, in storage obligations. Normal functioning of market economy probably only at an optimum parity private and the public law [202] . Private and public interests coincide that development of economy and increase of level of incomes of the population is favourable to a society and the separate person. At the same time, the society as a whole is interested in certain restrictions of freedom predprinimatelst -

va, redistribution of incomes in favour of deprived, protection of interests of consumers. Arising coincidence and, partly, opposition of private and public valuable interests is considered or should be considered at normotvorcheskoj activity., in process

legislations should be considered in an equal measure both interests of the separate person (businessman), and requirement of a society. Such parity arises at steady observance of main principles of the commercial law: freedom of the contract, property independence, equality, compensatory character of contractual responsibility. However, regulating commercial relations, the legislator quite often breaks the specified principles, operating in interests weak, in its opinion, participants of a commercial turn - citizens, selhozproizvoditelej, and also forcedly - in favour of monopolists, public structures.

participating in obligations, businessmen are interested in their appropriate execution. As certain guarantee of appropriate execution of commercial obligations statutory ways of their maintenance and a responsibility measure serve. We investigate a problem of application of the penalty in commercial obligations as a way of their maintenance and the form of property responsibility.

within the limits of the carried out research we consider problems of legal essence of the penalty, as institute civil and the commercial law. Dual character of the penalty is investigated in historical aspect, penalty evolution in the Russian right is shown.

the problematics of application by vessels of norm of item 333 GK about reduction of the size of the penalty, legal essence of the percent provided by item 395 GK is investigated.

The parity of the penalty and losses, as responsibility measures under commercial obligations, and also a parity of the penalty with other ways of maintenance of obligations is defined.

the Problems arising in connection with application of the penalty for maintenance of commercial treaty obligations and as a measure otvetst -

vennosti on them, were investigated in D.M.Meyer, K.P.pobedonostseva, I.A.Pokrovsk, G.F.Shershenevicha's works. These scientists had been put in pawn theoretical bases of formation of modern legal concept of the penalty.

the majority of the scientific researches which have defined practical approaches by consideration of problems of application of the penalty in a commercial turn, have been published in 60-70th of the past century by S.N.Bratusem,

O.S.Ioffe, V.K.Rajherom, R.O.Halfinoj.

Modern sights of scientists at the legal nature of the penalty as a way of maintenance of obligations and a responsibility measure are not uniform. We investigate the various points of view on the penalty, containing in publications of last time. The greatest value during research N.A.Barinov's works represented, M. And. Braginsky, V.V. Vitrjanskogo, V.A.Grishin, B.M.Gongalo, J.H.Kalmykova, D.G.Lavrova, V.F.Popondopulo, M.G.Rosenberg, A.P.Sergeeva, E.A.Sukhanov, JU.K.Tolstoy, V.F.Jakovleva, V.F.Jakovlevoj.

at the same time, conclusions and the positions containing in works of specified scientists, have not been accepted without reserve. In some cases we have come to independent conclusions and have formulated own offers on legislation perfection.

during research following general conclusions are drawn:

- the penalty in the Russian right traditionally existed in the form of the sanction (penalty) for default and was collected irrespective of losses;

- the Russian right has tested strong influence West European (German and French) the rights therefore the penalty has gradually turned to a kind of indemnification of losses and in the modern Russian law and order carries out simultaneously compensatory and penal function;

- the penalty can be not only the liability: the things (property) which has been not withdrawn from a turn can be a penalty subject;

- with the commodity penalty commercial obligations can be provided only;

- the penalty obligation changes the object at the moment of detection of the fact of unlawful conduct of the debtor and turns from obespechitelnogo obligations to the responsibility obligation;

- the percent provided by item 395 GK on the legal nature by the penalty are not, however their nature demands an explanation at legislative level;

- considering the tendency to occurrence of Russia in the European market, it is required to change some the approach to penalty application in commercial obligations: the penalty cannot represent itself as the property sanction essentially worsening a property status of participants of commercial obligations and should not be beyond the indemnification;

- reduction of the size of the penalty should not be a court duty: thus followed accurately to define borders of harmony of the penalty and losses under commercial obligations;

- test, alternative and exclusive penalties are, in essence, by indemnification of losses and cannot be considered as an independent measure of property responsibility;

- the legislator insufficiently accurately defines a parity of the penalty and losses owing to what courts not always obosnovanno define the size of property responsibility of participants of commercial contracts;

the Offers containing in work, are directed on legislation perfection. It is offered to make changes to norms GK defining concepts of the penalty (item 330 GK), losses (item 15 GK). Other offers concern cancellations of the norms installing penal lawful penalties under commercial contracts where businessmen participate only. The analysis of application by vessels of norm of item 333 PS has allowed to make the offer on changes in the text of article, directed on a concrete definition of concept of "disproportion". The complex of offers concerns applications of norm of item 395 GK to the liabilities arising from commercial contracts.

the further development commercial and civil law will lead to acceptance by the legislator of the norms corresponding to principles of an autonomy of will, freedom of will and the contract, legal equality of subjects of enterprise activity and equal property responsibility.

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A source: Konovalov Alexander Ivanovich. the PENALTY In the COMMERCIAL TURN. The dissertation on competition of a scientific degree of the master of laws. St.-Petersburg 2003. 2003

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