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THE CONCLUSION

The system of ways of maintenance of execution of obligations as a result of reforming of the civil legislation of Russia has replenished new obespechitelnym with means – obespechitelnym payment.

Relative standard novelty obespechitelnogo payment causes initial level of its theoretical knowledge of the civil doctrine. Thus standard fastening obespechitelnogo payment became law of its wide application in business and obshchegrazhdanskoj to practice as not named (not typified) way of maintenance of execution of obligations. For a moment legitimizatsii the big empirical material about similar obespechitelnomu to payment ways of maintenance of execution of obligations has been saved up.

The analysis of signs already revealed in a science obespechitelnogo payment (aktsessornost, convention, strict formality, a reality and others) has allowed to draw a conclusion on impossibility of transfer of all signs obespechitelnogo payment in one conceptual number, with reference to one generic characteristic. In particular, such sign as the reality characterises transactions, and such sign, as aktsessornost – obligations. In this connection in work the methodological approach, allowed to characterise obespechitelnyj payment from a foreshortening of two generic characteristics – as civil-law transaction and as obespechitelnogo obligations has been chosen.

On the basis of such approach the conclusion that obespechitelnyj payment is a way of maintenance of execution of obligations which simultaneously is has been drawn:

– As the accessory debt relationship, which subject the sum of money expressed in roubles or expressed in roubles in the sum, the equivalent determinate sum in a foreign currency or in conditional monetary units (ekju, źthe special rights of loan╗ and others), transferred in the cash or non-cash form with rule observance about restriction of clearing settlements between legal bodies, or under condition of identity of subjects of the core and obespechitelnogo obligations any things, generic, transferred in possession of the creditor acts; which basis of occurrence is only the contract and as which object of maintenance any liability acts;

– obespechitelnoj "procreditor", conditional (made under suspensive condition which is actions of participants of the transaction), the gratuitous, real, strictly formal transaction, which essential conditions except a subject (including the size) obespechitelnogo payment, it is necessary to carry also and circumstances at which approach the sum obespechitelnogo payment is set off on account of execution of the corresponding obligation.

In work functions obespechitelnogo payment as which it is necessary to understand the basic directions of influence of the rules of law regulating obespechitelnyj payment, on corresponding debt relationships are considered. Taking into account the used functional campaign it is established, that features of realisation of functions obespechitelnogo payment consist in the following:

– If the circumstances provided by the contract, come: during the period before the circumstances established by the contract, obespechitelnyj payment is directed on performance obespechitelnoj, evidentiary and insurance function, and during the period after approach of the specified circumstances there is a transformation of the named functions in the compensatory;

– If the circumstances provided by the contract, do not come: during the period before the expiration of the term established by the contract for approach of the circumstances provided by the contract, obespechitelnyj payment is directed on performance obespechitelnoj, evidentiary and insurance function, and after the expiration of the term established by the contract for approach of circumstances and under condition of their failure of consideration – the specified functions obespechitelnogo payment are transformed to the period in payment if it is provided by the agreement of the parties.

The offered list of the functions which are carried out obespechitelnym by payment, in certain degree has conditional character since actually all functions are interconnected and co-operate among themselves.

Comparative method of research widely used in work has allowed to reveal criteria otgranichenija obespechitelnogo payment from adjacent, including obespechitelnyh, legal designs.

It is established, that distinctions obespechitelnogo payment and the deposit consist in the following:

(1) subject obespechitelnogo payment is a sum of money or under condition of identity of subjects of the core and obespechitelnogo obligations any things, generic, transferred in possession of the creditor; a deposit subject – only a sum of money, transferred to the possession the creditor;

(2) object obespechitelnogo obligations: obespechitelnym payment provides any liability, including under the existing obligation with the delayed time of performance and under the future obligation, and the deposit – only the existing monetary contractual obligation and never the future;

(3) obespechitelnyj payment is "procreditor" obespechitelnoj the transaction, and the deposit – "parity" obespechitelnoj the transaction;

(4) obespechitelnyj payment, unlike the deposit, under the general rule, is not directed on performance of payment function and carries out it only under condition of the termination obespechitelnoj functions and in a case when such rule is provided by the agreement of the parties.

It is proved, that obespechitelnyj payment should be delimited and from the penalty:

(1) unlike the penalty, obespechitelnyj payment is not a civil responsibility measure since does not impose on the debtor of additional legal obligations;

(2) subject obespechitelnogo payment – a sum of money or under condition of identity of subjects of the core and obespechitelnogo obligations any things, generic, a penalty subject – only a sum of money;

(3) unlike the penalty, obespechitelnyj payment cannot arise owing to the law as arises only on a contractual basis;

(4) obespechitelnym payment provides only the liability, and the penalty – any obligation;

(5) agreement about obespechitelnom payment is the real transaction, and the agreement on the penalty – konsensualnoj the transaction;

(6) obespechitelnyj payment is brought in advance, prior to the beginning of obligation execution, and the penalty is paid only after its infringement.

It is established, that obespechitelnyj payment differs from pledge by following criteria:

(1) subject obespechitelnogo payment – a sum of money or under condition of identity of subjects of the core and obespechitelnogo obligations any things, generic, and a pledge subject – any property, except for property on which the collecting reference is not supposed, including money resources;

(2) unlike pledge, obespechitelnyj payment cannot arise owing to the law as arises only on a contractual basis;

(3) agreement about obespechitelnom payment is the real transaction, and the agreement on pledge – konsensualnoj the transaction;

(4) subject obespechitelnogo payment is always transferred in possession to the creditor, and the pledge subject can both to remain with the depositor, and to be transferred to the pawnbroker in possession.

Comparison obespechitelnogo payment with the separate not named ways of maintenance in which result following conclusions are drawn is spent.

Guarantee deduction differs from obespechitelnogo payment on object: unlike obespechitelnogo the payment the liability can be which object only, guarantee deduction assumes not monetary object of maintenance (a duty on performance of works in time, a duty on end of works, a duty on qualitative performance of works, etc.).

Fiduciary pledge differs from obespechitelnogo payment in a subject: (1) subject of fiduciary pledge carries over the creditor prior to the beginning of execution of the basic obligation, and the subject obespechitelnogo payment takes over the creditor before the circumstances provided by the contract if other is not established by the agreement of the parties; (2) subject of fiduciary pledge – any property, except for property on which the collecting reference is not supposed, including money resources, and a subject obespechitelnogo payment – a sum of money or under condition of identity of subjects of the core and obespechitelnogo obligations any things, generic.

Irreguljarnyj pledge differs from obespechitelnogo payment in a subject: (1) subject obespechitelnogo payment is transferred to the creditor in possession, and a subject irreguljarnogo pledge in the property; (2) subject obespechitelnogo payment, under the general rule, the sum of money, however under condition of identity of subjects of the core and obespechitelnogo obligations, any things, generic, and a subject irreguljarnogo pledge – any things, generic without dependence from identity of subjects of the core and obespechitelnogo obligations acts.

The payment for refusal of the contract differs from obespechitelnogo payment on object: unlike obespechitelnogo the payment the liability can be which object only, the payment for refusal of the contract assumes not monetary object of maintenance (a duty not to terminate the contract). In work the sphere of possible use obespechitelnogo payment is defined and is shown it obespechitelnyj potential in the future obligations, in the obligation arising from the preliminary contract, in contractual brave and non-contractual guarding obligations.

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A source: Akinfieva Victoria Vadimovna. Security PAYMENT AS the WAY of MAINTENANCE of OBLIGATIONS In the RUSSIAN CIVIL LAW. The dissertation on competition of a scientific degree of the master of laws. Perm.

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