The analysis of proceedings, pravoprimenitelnoj experts, norms of the domestic legislation and civil law of the foreign states, concerning principles of a liability law has allowed the author to develop a theoretical basis of system of principles of the liability law which major positions consist in the following.

1. Sense of such phenomenon as "principle" consists that is certain idea which is the general for all norms regulating a concrete kind or a sort of public relations (depending on that with what we we deal: a branch principle, podotrasli, etc.). Modern development of civil law visually proves, that principles can be not only are directly fixed in legal acts, but also to be applied by judiciary practice on the basis of system interpretation of the legislation, to follow from sense, equity of statute.

Proceeding from the general and private characteristics, liability law principles are the fundamental positions containing in rules of law, and also the basic ideas applied in judiciary practice on the basis of system interpretation of the legislation which are sistemoobrazujushchimi for all podotrasli a liability law and in which find the reflexion signs of the obligations relation (a relativity, dynamism, imperativeness of the maintenance, purposefulness, konkretizirovannost).

It is necessary to carry the following to liability law principles: freedom of the contract, weakness protection in the obligation, stability of obligations, protection of the rights of the creditor, protection of the debtor, equivalence, and also principles of execution of obligations (ought, specific performance, profitability of execution, assistance of the parties).

2. It is possible to offer various criteria of classification of fundamental principles podotrasli a liability law: on the subject (the principles directed on maintenance of the rights and interests of all participants of an economic turn; the principles directed on maintenance of the rights and interests of separate participants of an economic turn); on fastening in the legislation (is standard fixed; not fixed in normativnopravovyh certificates, but applied by vessels, proceeding from sense and equity of statute); depending on character of carried out function (reguljativnye and guarding).

3. Researches aksiologii principles, that is not only their value, but also the purpose of existence, other valuable aspects can become actual. The purpose of principles of a liability law is a formation of a legal ideal in the most general, fundamental positions. Liability law principles have special theoretical, pravotvorcheskoe, pravoprimenitelnoe value, can carry out functions of rules of law.

4. Principles civil and a liability law correspond as the general and a part. The given conclusion causes the following. Liability law principles are an integral part of the beginnings of civil law, take a special place in system of principles of the right, are "intermediate link" between branch principles of civil law and other norms regulating the relations, arising of separate kinds of obligations. The unity of various groups of the considered beginnings consists in similar signs and identical aksiologii. Similar the generality is caused by an accessory of all considered categories to system of principles of the Russian right. Allocation of various kinds of communications between principles of civil law and liability law principles is possible: genetic, structural, subordinatsionnyh, confrontational.

5. In a science it was not generated uniform understanding of essence of a principle of freedom of the contract. The essence of the basic approaches on the specified problem consists in the following: 1) contract freedom includes itself three or other quantity of the elements, which list is settling; 2) the principle of freedom of the contract is identified to the right of subjects of civil law to contract freedom; 3) the essence of a principle of freedom of the contract reveals through its limits and restrictions; 4) contract freedom is shown in the big number of provisional rules; 5) understanding of freedom of the contract as contrasts of a principle of the planned character, which essence that questions of the introduction of subjects in contractual relations is defined by is administrative-planned certificates.

Having analysed the specified positions, having studied the legislation and judiciary practice, we have come to following conclusions: 1) the principle of freedom of the contract is a principle of a liability law; 2) its essence is expressed in granting to subjects of civil law of the competences connected, first of all, with making contract, and also with its change and cancellation; 3) action of a principle of freedom of the contract has limits and restrictions which can be established the federal act or in the order established by the federal act.

6. The principle of protection of weakness in the obligation is the basic idea of a liability law shown at interpretation of the legislation and in judiciary practice which essence consists in necessity of granting of special protection to subjects who have less possibilities for realisation and protection of the rights in comparison with the counterpart. Application of a principle of protection of weakness in the obligation is necessary in following cases: a specific order of the organisation of realisation of the rights and discharge of duties at a separate stage of realisation of the right, special subject structure and-or the maintenance of the concrete civil relation. Ways of realisation analizirue -

mogo a principle will be various at different stages of action of the mechanism of realisation of the civil rights and discharges of duties. Besides it the principle of protection of weakness acts as supervising beginning at regulation of some relations which specificity consists available in them of the strong subject (a monopolist, the state), or the counterpart, the rights and which interests demand special protection (citizens-consumers, manufacturers of agricultural production, carriers).

7. Stability is economic-legal principle, providing an invariance of the obligation, its maintenance and conditions. It is necessary to understand basic idea as a principle of protection of the rights of the creditor, according to which main objective of action of norms of a liability law creation of real mechanisms of protection of the rights of the authorised person is. Owing to a principle of protection of the debtor interests of a party liable, and in cases, directly statutory are guaranteed, the rights of the creditor are limited.

The equivalence category with reference to a liability law can have some values. First, probably narrow understanding of equivalence at which its essence is identified presumptions vozmezdnosti the civil-law contract. Secondly, equivalence can be considered as property, discriminating line of obligations relations. And, at last, it is possible to understand a liability law principle according to which the rights of the parties of the contract sootnosimy among themselves, and the right of the party of the non-contractual obligation has certain conformity to the bound party actions as equivalence, become basis of occurrence of obligations.

8. Owing to injury it is necessary to carry to principles of obligations: principles of inadmissibility of injury, inevitability of responsibility for damnified, the harm full indemnification. For the statement in the legal doctrine and practice of a principle of inadmissibility of injury we offer to add item 1 of item 1064 GK the Russian Federation with paragraph 1 of the following maintenance: źpersonal tort and to property of citizens, and also property of legal bodies, other subjects of the civil circulation is not supposed╗.

The major basis, the position, penetrating all body of rules gl. 59 GK the Russian Federation, is a principle of the full indemnification of harm. Its traditional understanding consists in necessity to restore the position existing before breach of law. However such treatment is possible only from purely theoretical point of view as in full to restore existing position very often it is impossible. It is necessary to speak about a duty of the debtor under the obligation owing to injury to give the most comparable indemnification in the given concrete conditions lost by sustained (creditor). The resulted treatment of a principle of the full indemnification approaches and to such cases in which, apparently, realisation of the specified fundamental idea is impossible: compensation of the harm caused to a life or health of the citizen, indemnification of moral harm, etc.

9. It is necessary to carry principles to principles of execution of obligations ought, specific performance, profitability of execution, and also assistance of the parties. The listed categories should be considered as liability law principles.

Principles ought and specific performance are a little different phenomena. The first expresses workmanship as certain action (the subject, term, a place, etc.), and the second - essence of action (obligation execution). Thus, certainly, ought and specific performance - the connected phenomena, which vzaimodopolnjajut each other. Execution of the obligation which can be recognised by normal, proceeding from sense and equity of statute, should correspond both to the first, and the second principle.

Principles of assistance of the parties and profitability of execution though are not fixed directly in the law, but follow from its sense. Their understanding and essence has changed in comparison with the Soviet period, but the urgency of the given categories from it is not lost. Moreover, it is possible to speak about indirect fastening of principles of assistance and profitability of execution through a conscientiousness principle.


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A source: Volos Alexey Aleksandrovich. LIABILITY LAW PRINCIPLES. The dissertation on competition of a scientific degree of the master of laws. Saratov -.
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More on topic THE CONCLUSION:

  1. the Conclusion
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  7. the Pathomorphologic conclusion
  13. the Conclusion