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THE CONCLUSION

The stated allows to come to following conclusions.

1. The penalty represents a way of maintenance of the obligation, the civil responsibility form, a way of protection of the broken right. Being way of maintenance of the obligation, the penalty serves at a stage of making contract and its execution by a stimulant of the debtor to appropriate execution of the contractual obligation, the means warning an offence.

Being the civil responsibility form, the penalty at a stage of infringement of the obligation, depending on other measures of protection applied with the penalty, serves as a stimulant of the debtor to execution of the obligation or prompting of the debtor to correction of the admitted infringements or means of compensation of property losses of the creditor. Being way of protection of the broken right, the penalty serves or means of suppression and infringement elimination, or means of prevention and restoration of the broken right, indemnification of losses.

2. C the points of view of the maintenance of the responsibility inherent in the penalty at a stage of infringement of the obligation, the penalty can represent or additional negative burden for the infringer, or putting on of new or additional duties (modification of initial legal relation) that depends on character of infringement, from the chosen way of protection of the broken right, a kind and the size of the penalty, a parity of the penalty with losses and structure of these losses (at a rate of the sum of the broken obligation; the sums of the broken obligation plus of the sum of not received incomes). So, for example, at penalty and award application to discharge of duty in nature the penalty represents an additional duty for the offender, expressed in negative property consequences (for example, penalty for short shipment induces the debtor only to execute the initial contractual obligation on goods transfer

In quantity, volumes and the terms established under the contract). Responsibility in the form of the test, alternative or exclusive penalty when their size is equal or less on the size to simultaneously declared losses which, in turn, do not exceed the sum of the core of the obligation broken by the debtor, alters initial legal relation, not bearing in itself additional negative consequences for the offender.

3. The creditor has the right regulated by the law to attraction of the debtor to responsibility. In this connection the parties in consent can make agreement about the penalty not only at a conclusion and execution of a contract stage, but also and at a stage of infringement of the obligation - "responsibility" stages in that case when the penalty has not been adjusted by the parties at a making contract stage.

4. Additional character of the penalty in relation to the provided obligation at an incorporeal right concession under the continuing covenant when the creditor has from its part executed contractual obligations, is shown in cases when the requirement concession is made: at a stage of counter-execution of the obligation the debtor when the obligation time of performance has not come yet; when the time of performance of the obligation from the debtor has already come, however it is not executed by the last; when the counter obligation is executed by the debtor in the inadequate image, it is accepted the creditor and it has a right to application to the debtor of a liability of infringement of the obligation to the debtor.

In the first and second cases transfer of the right to the penalty without incorporeal right transfer under the basic obligation in what additional character of the penalty is shown is impossible. In the latter case the initial creditor has the right to address as for protection of the broken right in court, and has the right to concede this right to application of responsibility in the form of the penalty to other person that does not contradict articles 382, 384 GK the Russian Federation. It is caused by that the right to the penalty at the creditor, and at

The debtor - a duty on its payment inseparably linked with the fact of infringement of the basic obligation.

5. Definition of principles of realisation of the penalty is caused by dual legal nature of the penalty, including, being form of civil responsibility, and in this connection submitting to basic principles of application of responsibility. One of the characteristic principles, to the penalty, unlike bank percent for using another's money resources, the principle of equality of a responsibility of the parties which is based on an estimation of the importance of each of counter obligations of the parties for enforcement of the treaty as a whole is inherent.

6. Classification of principles of realisation of the penalty probably to spend 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 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 in cases, statutory); 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 offence volume.

The purpose and principles of realisation of the penalty are closely interconnected and vzaimoobuslovleny. They follow 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 and their classification by the various bases has practical value in respect of an establishment of criteria razme - ra penalties, interest in application of the penalty of both parties and their equality thus.

7. Object of maintenance of the penalty in "wide sense" are property, the debt relationships connected with lawful transition of the property blessings from one persons to another, the contracts given the shape, corresponding on the form and the maintenance to the law. Thus the obligations of the parties following from the contract, concluded in the form of an exchange of letters, telegrammes, etc., instead of in the form of the uniform document signed by the parties, can be object of maintenance of only lawful penalty. It is caused by absence not only the written agreement on the contractual penalty, but also the contract in the form of one document which would regulate in full their mutual rights and duties.

Obligations of the parties under the verbal contract can be on occasion object of maintenance of the lawful penalty when such responsibility is statutory.

8. Object of maintenance of the penalty in "a narrow kind" are the kinds of debt relationships specified regarding second Code, and also legal relation which directly are not settled by the law, but correspond to general principles and sense of the civil legislation. Those are obligations of the parties on vozmezdnym, bilateral and unilateral, konsensualnym and to the real contracts concluded according to the law and with observance of the demanded form of the contract. Within the limits of cummutative contracts discriminate "exchange" and "brave" which as the general rule, do not come under to judicial protection, accordingly, are not objects of maintenance of the penalty. At the same time, there, where the law in the imperative form has assigned on separate persons (organizers of games and a bet - item 1063 GK) certain duties, is not excluded possibility of their maintenance by the penalty.

9. On a way of making contract the law has allocated preliminary to

Dialects. The obligation of the parties about making contract in the future is not object of maintenance of the penalty as the in itself preliminary contract with the specified obligation does not generate for the parties any counter obligations on thing transfer, fulfilment of works, rendering of services at a stage - to the conclusion of the basic contract. Under the preliminary contract which is not containing the counter obligation of the parties on transition of the property blessings, the penalty does not carry out of function of stimulation of appropriate execution of the obligation, indemnification of property losses, is not directed on obligation execution in nature.

10. The limited application of the penalty in gratuitous contracts is caused: first, a method of civil-law regulation; in - the second, character and a kind of the contractual obligation (unilateral or the bilateral contract). The penalty is applicable only there where the legislator uses an optional method for regulation of these relations. Under the unilateral treaty object of maintenance are obligations only a bound party; under the bilateral contract - party obligations in which interests the contract is made.

11. Direct object of maintenance of the penalty is the right of the authorised person which have arisen from concrete debt relationship. In this sense object of the penalty are two sorts of objects: as object of the first sort party liable actions serve; object of the second sort are things, other property rights and objects of exclusive rights which as a result of the actions provided by the obligation should be transferred. Objects of maintenance of the penalty of the first and second sort on contractual legal relationship are connected among themselves, based on internal unity, caused by the uniform purpose of any contract.

12. The legislation by each kind of the "named" contract provides legal effects of infringement of the obligation by the parties. The Cart -

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niknovenie direct object of maintenance of the penalty and possibility of application of the penalty by each kind of the contract are caused by these legal effects, namely: those ways of protection of the broken right which the creditor chooses depending on character of infringements. Thus the penalty can be expressed either in unitary applied penalty or in other firm sum of money (at unilateral refusal of the creditor of execution of the contract if it is permitted by the law or the contract), or in the form of lasting peni (at compulsion of the debtor to execute the contract).

13. The establishment of norms about lawful penalties on such actively applied by legal bodies and to significant legal relations in the civil circulation, as the contract of purchase (deliveries), podrjada, in particular, for infringement ustranimyh lacks as works (goods) (the penalty of 5 % for nekachestvennost works) is expedient; for infringement of terms of performance of works and terms of their delivery (penja 0,1 %).

14. The sphere of application of the penalty as a way of protection of the broken right under the contract is various. The penalty owing to the legal nature and mission is applicable not with all ways of protection of the civil rights listed in the Civil code of the Russian Federation. The penalty can be applied as a way of protection in aggregate with other ways of protection of the civil rights following from contractual debt relationships, that in practice happens more often as before application of the penalty it is necessary for creditor to be defined concerning applied consequences under the basic obligation.

Directly the penalty can be applied with such ways of protection of the right, as award to obligation execution in nature, collecting of losses, contract cancellation (a way of protection in the form of the termination or legal relation change).

In some cases penalty application can have is mediated - nuju the legal bond with different ways of protection of the right (for example, unilateral refusal of execution of a contract), right self-defence, a recognition of the voidable contract void and application of consequences of the void void contract. This communication of the penalty with the specified ways of protection has no direct character (meaning that the requirement about the penalty and application of other, established ways of protection, cannot be declared simultaneously in court). The penalty can be applied as an independent way of protection of the right. It is caused by the fact of execution by the creditor of the counter obligations taken up under the bilateral contract; the fact of use by the creditor of statutory other ways of protection of the broken rights - before penalty application.

15. The penalty and percent for using another's money resources are independent forms of civil responsibility, subordinates to general provisions of the civil legislation on responsibility. Difference of the penalty from annual interest rates on default of liabilities consists: in sphere of adjustable relations (the penalty serves as maintenance means only the contractual legal relationships having obligations character); on object of maintenance of the penalty; stimulation ought and obligation specific performance is inherent in the penalty; a principle of equality of a responsibility of the parties that is not characteristic for the annual interest rates applied under item 395 GK the Russian Federation; in the mechanism of definition of the size of the penalty, application of the penalty and on a mode of regulation of the lawful penalty (item 332 GK the Russian Federation).

16. A subject of wide discussion questions on efficiency of various kinds of the penalty, criteria and limits of decrease by court of the size of the penalty, giving to the penalty of line of a compensation, a parity of the penalty with bank percent continue to remain.

Collecting of losses over the penalty gives to last penal harak - rubbed - character of "punishment", the sum of the collectings, arrived to the creditor in the form of losses and the penalty, increases superficially property of the creditor that size in which the penalty is collected. Article 8 GK the Russian Federation establishing the bases of occurrence of the civil rights and duties, does not provide increase by subjects of civil law of the property sphere at the expense of use statutory or the contract of ways of maintenance of the obligation. Therefore in the law it is necessary to provide only the test penalty in relation to losses at which application principles of a rationality and justice in realisation of the civil rights are observed.

17. The legislator quite obosnovanno enters norm about the right of court to penalty reduction. In this connection there would be reasonable an establishment in the law: the separate (isolated) criteria for definition of limits of reduction of the penalty on separate, to most often repeating infringements; the minimum and maximum limit of reduction of the penalty; to establish as criteria of reduction of the penalty instead of concept "consequences of infringement of the obligation" (not having any legal loading) such indicators, as: the sum of the unsatisfied or broken obligation; character of infringement: whether the obligation completely (that on the consequences should attract more strict measures) is executed or the obligation is executed partially or with ustranimymi infringements, etc.; acceptance by the creditor of measures to prevention of the admitted infringement (that is organically entered in the penalty nature as the measure stimulating the debtor to appropriate execution of the obligation); The period of infringement of the obligation and inactivity of the debtor on infringement prevention, etc.; an establishment in the law as a limit of reduction of the penal sum of the determinate sum (indicator) of the collecting leaving for the sum obosnovanno of losses shown to collecting.

18. Disputes on penalty in a subject and the cause of action, coming under to proving in court, do not constitute a difficult category of disputes. As a rule, debtors on business recognise requirements of the claimant, declaring thus petitions for reduction of the callable penalty. By vessels are actively applied invested by the law with powers to settlement of disagreements of the parties and the termination has put the world, than often and litigations come to an end. Existing earlier (before introduction in 1995г. Arbitrazhnoprotsessualnogo the Code of the Russian Federation) practice of obligatory pre-judicial settlement of disputes by means of a presentation to the debtor to a reference to the court of the claim with the requirement about penalty payment promoted settlement of a certain part of arising disputes at a stage of pre-judicial trial. It is thought, that introduction of legislatively obligatory pre-judicial settlement of disputes about penalty or the simplified legal proceedings (correspondence consideration of indisputable claims) would reduce number of the specified disputes in court, and also would promote fast and operative acceptance by decision court.

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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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