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3.1. The penalty as a way of protection of the right in system of ways of protection of the civil rights

Ways of protection of the civil rights usually are understood as the means provided by the legislation with which help can be reached suppression, prevention, elimination of breaches of law, its restoration and indemnification of the losses caused by breach of law.

In the literature a lot of attention has been given the maintenance of means and ways of protection, classification of ways of protection by various criteria [107].

The maintenance of protection of the right includes such activity on application of rules of law which is directed on right restoration, realisation of interests, rendering of corresponding influence on the offender, including application to it of measures of responsibility which can be carried out corresponding bodies, and also carried out by the authorised person [108]. Differently, any right comes under to protection, and the carrier of this right possesses corresponding competence to its protection by means of the means provided by the legislation.

Civil code article 12 names eleven ways of protection of the broken right, the penalty is named also.

For definition of a role and a penalty place in system of ways of protection of the broken rights it is necessary to establish: whether the penalty as an independent way of protection of the broken right separately without application simultaneously any other way of protection can be applied or the penalty is applicable only in aggregate from in another way protection; whether the penalty in this or that situation with any of listed in the law in the way of the protection concerning debt relationships (including with the different ways which do not have universal character can be applied, and primenjae -

• mymi for service of the certain civil rights), or the penalty is applied only with certain ways of protection; whether has value for application of the penalty character and duration of infringement of the obligation, character applied by the creditor to the infringer of statutory measures, the presence fact between the parties of contractual relations to the moment of application of the penalty, or cancellation of contractual relations in statutory cases the creditor.

Depending on object, character of infringement and the nature of the protected right different ways of protection are applied.

The penalty as a way of protection serves debt relationships in this connection the penalty cannot be applied in common with ways of protection of the property right, for example, with negatornym and vindikatsionnym claims. It is caused by that the parties - the proprietor of property and other person breaking it the property right - do not consist in any contractual relations or in other legal bond.

In judicial-arbitration practice presentation cases took place sob -

stvennikom the claim about return of property by the person with which the proprietor was in debt relationship concerning disputable property (for example, the claim about return of property by the tenant after the rent contract expiry of the term).

Meanwhile, the claim of the proprietor about return of property by the person with which the proprietor is in debt relationship apropos dispute - nogo property, comes under to the permission according to the legislation regulating given правоотношение1.

Judicial-arbitration practice has developed a uniform position on the given question according to which the tenant occupying a premise on the basis of the rent contract after the expiry of the term of rent is obliged to return property, and the requirement of the proprietor about eviction cannot be qualified court as vindikatsionnyj иск2.

In a considered case it is necessary to make claims about eviction and penalty for delay of return of the leasehold if that has been adjusted in the contract.

As one of ways of protection of the broken right the law names annulment of the certificate of the state body or local government, "... Having not standard character and mismatching laws and other normative acts breaking the rights and legitimate interests of the organisations and citizens..." 3. As the given way of protection is not connected with infringements of interests of the parties following from civil-law obligations, and not based on the civil-law contract, the penalty cannot be applied simultaneously with this way of protection.

Other situation can develop at application of such way of protection as non-use by court of the certificate of the state body or the local government contradicting the law.

At the moment some penalties in the contradiction from item 332 GK the Russian Federation are established not by federal acts, and the Governmental orders of the Russian Federation. For example, according to point 37 "Rules of rendering of services (performance ra -

1 See: item 23 of the Decision of Plenum YOU the Russian Federation from February, 25th, 1998 № 8 źAbout some questions of practice of the resolution of disputes, connected with protection of the property right and other real rights//the Collection of Decisions of Plenums of the Supreme Court and the Supreme Arbitration Court of the Russian Federation on civil cases. - M., 1999. - with. 169.

2 See: item 17 the Letter of Presidium YOU the Russian Federation from February, 28th, 1997 № 13 "the Review of practice of the resolution of disputes, connected with protection of the property right and other real rights"//the Collection of decisions of the Supreme Court and the Supreme Arbitration Court of the Russian Federation. - M., 1999. - with. 179.

3 See: item 22 of the Arbitrazhno-code of practice of the Russian Federation.

Boat) on maintenance service and repair avtomototransportnyh means ", the Russian Federations approved by the Governmental order from June, 24th 1998г. № 639, for infringement of target dates of the beginning and (or) the terminations of rendering of service the executor should pay to the consumer the penalty (peni) at a rate of 3 percent of the price of service [109].

It is represented, that at a presentation the requirement consumer about collecting of the specified penalty for infringement of the obligation by the executor, last has the right to bring an attention to the question on non-use of the given penalty as it is established not by the federal act as it is provided by the Civil code, and the normative act not having the status of the law and contradicting regarding an establishment of the lawful penalty to the Civil code court.

In a considered case the penalty adjoins from in such a way protection, as non-use of the certificate of the state body contradicting the law. Simultaneous application of two these ways of protection by one party (claimant) is impossible owing to the nature of the penalty and relations protected by it.

The penalty as a way of protection of the broken right is closely connected with such ways of protection, as a recognition of the voidable contract void and application of its consequences, application of consequences of the void void contract; change or the obligation termination. It is caused by that the penalty inseparably linked with the basic debt relationship based on the contract, urged to carry out interests of the parties under the given contract. In case of a contract recognition to mismatching requirements of the law and void and, depending on the legal effects applied by court, the penalty as a way of protection of the broken right under the challenged contract is applied cannot be. The penalty, being lawful way of protection of the broken interests of the parties, urged to provide only

Those legal relations and obligations following from them which under the maintenance, and the contract under the legal form and a way of fastening do not contradict the law.

The analysis of judicial-arbitration practice shows, that in the widespread way of protection against the penalty recovery suit for infringement of the obligation of the promisor is or the counterclaim about a recognition of it # contracts void, or statements of defence under the basic claim about

Negligibility of the contract [110]. However the told does not mean, that the penalty as a way of protection can be applied simultaneously with the claim about a recognition of the contract the void. Instead of the claim about application of consequences of the void void contract in the form of return can be made to the claimant of all before received by the respondent under the transaction, including including and earlier paid penalty for obligation infringement under this contract.

The parity of the penalty with such new for законові datelstva in the way of protection of the broken right, as self-defence civil is interesting

The rights (item 14 GK the Russian Federation) for which possibility to protect the rights without the reference to court (for example, item 359 item, 712 GK the Russian Federation) is characteristic.

As self-defence of the civil rights understand supposed by the law or the contract of action of the authorised person, a condition of which lawful realisation are requirements that protection is come under only by the valid right [111].

That self-defence cannot be recognised by lawful is characteristic, whether the EC - ^ it obviously mismatches a way and character of infringement.

The penalty and self-defence cannot be applied the party in interest simultaneously by the claim statement in court, as their communication among themselves mediated: on the one hand, the penalty recovery suit for infringement of the contractual obligation can be declared the creditor keeping a thing, coming under to transfer (for example, the contractor keeps at itself result of the executed works till the moment of payment by the customer of cost of works, and also asks to collect the penalty for infringement of treaty provisions about terms of payment of works); on the other hand, the penalty recovery suit for infringement of treaty provisions can be declared other contestant who keeps a thing which is coming under to transfer to the claimant.

In both cases before application of the penalty as a way of protection it is right it is necessary to establish, who nenadlezhashche executes the obligation and whose right first of all is broken: the parties which keeps a thing which is coming under to transfer, or other contestant; whether on the lawful bases the thing is kept.

Directly the question on application of the penalty as a way of protection of the broken right depends on the fact of existence of the contractual obligation between the parties.

It is known, that the law allows to change or terminate the contract under the agreement of parties (item 1 of item 450 GK the Russian Federation); on request of one of the parties by a reference to the court; in cases, directly statutory or the contract - odnostoronne to change or terminate the contract or odnostoronne to refuse execution of a contract (item 2 of item 450 GK the Russian Federation).

In the literature the attention to available distinctions in the specified ways of cancellation of the contract, accordingly, generating distinctions in coming legal effects of cancellation of the contract [112] is fairly paid.

At occurrence between the parties of dispute on cancellation or change of the contract the question on application possibility to the infringer of the contract of the penalty is connected with a legal estimation of conditions of existence of this contract, term

Its action, fulfilment by the party (parties) of necessary, statutory obligatory actions to the termination or contract change.

Material breach of one of the parties of the contractual obligations taken up is the basis for contract cancellation, and also for penalty application - judicially.

In case of a presentation simultaneously the rescissory action of the contract and application for infringement of the obligation of the penalty (if it is the lasting penalty, it, as a rule, is charged for the period before contract cancellation) the ultimate fact on such affairs includes the fact of default of the contractual obligation because of one or both parties, term establishments from which it is considered, that the contract will be terminated, the period of infringement of the obligation [113]. Such cases meet at execution by the parties of rent contracts (item 619 item, 620 GK the Russian Federation).

A little bit other situation develops at unilateral refusal of the party of execution of a contract and application possibility thus penalties.

In Civil code article 310 the general principle nerastorzhimosti contracts in the form of inadmissibility of unilateral refusal of execution of a contract, except the cases specified in the law (item 806 item, item 821 item 2, item 1003 item 1, item 732 item 2, item 475 item 2, item 480 item 2, item 2 of item 482 GK the Russian Federation and a number other) is expressed.

Feature of the given situation consists that the party can take advantage of this right in an independent order without a reference to the court. These are so-called other measures of protection, including so-called measures of operative influence.

In a civil law science measures of operative influence are understood as statutory unilateral actions of the creditor on change or the termination of the obligation which can be broken on podgrup -

py: the right of the creditor to unilateral refusal of execution of a contract (item 2 of item 715 GK the Russian Federation); obligation stay of execution (item 328 item 2, item 1 of item 719 GK the Russian Federation); the right to refuse the goods given by the debtor, works, services, etc. According to scientists, these measures can appear more effectively, rather than the indemnification, penalty payment, from the point of view of compulsion of the debtor to appropriate execution of the obligation and protection of the rights kredito - * ра1.

By consideration of the dispute following, for example, from the contract of delivery on which refusal of obligation execution has been declared, the court in all cases should estimate arguments of the parties about legality of such refusal if it concerns to claim требованиям2.

The ultimate fact on such affairs includes finding of fact of presence at the party of the legitimate right for refusal of execution of a contract (i.e. presence of material breach of the contract by other contestant); the finishing fact the party to data of the counterpart on infringement of treaty provisions (item 483 GK

The Russian Federation) and desire to terminate the contract in statutory terms.

In a considered case the penalty is applied by this way of protection not directly - by a reference to the court with the claim about the termination of legal relation and penalty, and oposredovanno, initially - by fulfilment of some consecutive actions by the buyer regarding fixing of the infringement of treaty provisions admitted by the seller and the message to the last about it and refusal of the contract, in the subsequent — by suing about a cart - ^ vrate the sum of money paid for the goods and penalty.

The penalty can be collected or in the form of unitary applied penalty for the admitted infringement by the party in the transaction, or - in the form of lasting peni, charged till the moment of a termination of the contract.

1 See: Braginsky M. I, Vitrjansky V.V. Ukaz. soch. - S.564-567.

2 See: item 20 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.

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As a whole application of the penalty as a way of protection of the broken right under the obligation following from contractual legal relationship which in the subsequent or is terminated unilaterally (for example, item 2 of item 610 GK the Russian Federation), or took place unilateral refusal of execution of a contract (see, for example, item 2 of item 475 GK the Russian Federation), or the contract will terminate on request of one of the parties judicially, depends on above specified factors.

F Besides, at contract cancellation judicially it is necessary

Obligatory observance of requirements of the law on a pre-judicial order of darraigning (item 2 of item 452 GK the Russian Federation).

The right to penalty application as way of protection of the right, is available in the presence of the fact of infringement of the obligation at any stage of relations of the parties including after a termination of the contract. However it does not mean, that the penalty can be added during infringement after a termination of the contract as obligations of the parties after contract cancellation stop. Jt differently, the right of action about penalty at the creditor (to process

alnoe the right) is available and after the fact of cancellation of the contract, and the right to application penalties (substantive law) is available for the creditor during the period only for the infringement admitted by the debtor within action of the contract and till the moment of its cancellation and the termination.

For example, the rent contract concluded between the parties for term since January, 1st 1998г. On December, 31st 2000г., has been terminated on the basis of the decree on January, 1st 2000г. On request of the lessor. The lessor has a right on ^ a reference to the court with the requirement about penalty for infringement of conditions

Contracts and after the fact of cancellation of the contract, that is after January, 1st 2000г. However the penalty for obligation infringement can be added only during the currency of the contract and till the moment of its cancellation, that is with L01.1998r.no 1.01.2000г.

In the literature other point of view, according to which has been stated after

Contract cancellation the right to application of responsibility in the form of the losses caused by breach of contract, and the lawful penalty remains. At the contractual penalty transaction cancellation leads to disappearance of those local standard bases on which the scheme of definition of the size of responsibility [114] was based.

It is thought, that two concepts - application of measures of responsibility from the point of view of the law of procedure in this case mix up (the right to judicial protection, suing which can be limited by nobody and cannot be limited by certain terms except the cases provided by item 2 stl 99 GK Russian Federation), the right from financially-legal point of view, and also erroneous interpretation of a legal regime of the lawful and contractual penalty is given.

In our opinion, there are no distinctions either with remedial, or from financially-legal point of view in application of the contractual or lawful penalty in case of contract cancellation. Both in that and in other case at cancellation of the contract the substantive law to penalty application for infringement of the contractual obligation is always connected with the period of infringement of the obligation and with the moment of cancellation of the contract. The contractual penalty for the period after contract cancellation cannot be added neither lawful, nor.

The Civil code of the Russian Federation allocates creditors with the right to unilateral stay of execution of the obligation in case of infringement of the obligation by the debtor, including what appear in position of subjects of counter-execution (see, for example, item 328 item 2, item 1 of item 719 GK the Russian Federation). For example, the contractor has the right not to start to work, and the begun work to suspend in cases when infringement by the customer of the duties under the contract, in particular non-presentation of materials, the equipment, the engineering specifications, interferes with execution of a contract by the contractor.

In a considered case possibility of application of the penalty as a way of protection of the right this or that party in contractual legal relationship it is caused by presence of counter obligations of the parties and the fact of their mutual execution.

In our case the customer does not have legal grounds for application to the contractor of the penalty for infringement of terms of performance of works as last has taken advantage of the legitimate right for stay of execution of the obligations taken up under the contract owing to infringement of counter obligations by the customer.

In the Civil code of the Russian Federation the set of norms about consequences of infringement of the duties one of counterparts under the contract (the item of item 475,486,723, etc.) which concern not only measures of property responsibility (indemnification), but also consequences of other sort contains: some can be carried to number of the measures forcing the infringer to appropriate execution of the obligation (for example, elimination of lacks of the goods, replacement of the substandard goods), others represent measures of operative influence (for example, refusal of the goods) [115].

The parity of these measures is considered in the given paragraph from the point of view of a parity of ways of protection of the broken right with the penalty, possibilities of their simultaneous application, the period and duration of application of the penalty, dependence on a kind of infringement of the obligation and its duration, and also from presence of the contractual obligation or the fact of its termination.

The penalty can be applied with any of the listed measures of protection. However legal effects of application of various ways of protection different. For example, at award to discharge of duty in nature the creditor is interested in execution by the debtor of the duty taken up under the contract (goods transfer, performance of works, payment of money, etc.). The penalty in this case is applied by the creditor with a view of stimulation of the debtor to discharge of duty in that kind and in such a way as it has been provided by the contract. Accordingly, the granted way of protection of the broken right - award to discharge of duty in nature, and also the penalty can be applied at a stage before the obligation termination.

It is known, that exists ten ways of the termination of the obligation (obligation execution, a compensation, offset etc. - chapter 26 GK the Russian Federation). In cases, statutory or the contract, the obligation termination is possible on request of one of the parties (item 310, 450 GK the Russian Federation).

Under the general rule the obligation which has arisen from the contract irrespective of contract term expiration continues to operate before the termination of the time of performance of the obligation defined by the parties if by the law or the contract it is not provided, that the termination of period of validity attracts a discharge of the parties of the contract (item 425 GK the Russian Federation). At the same time position of the law that the termination of the currency of the contract does not relieve from the party of responsibility for its infringement is basic. Definition of the period of action of the contract, presence of a duty of the debtor to execute the period obligation during which application of responsibility in the form of the penalty is possible, is rather important at a choice of a way of protection of the broken right as the law defines different legal effects of contract term expiration, inadequate execution of the obligation.

In the literature the attention that in practice quite often separate elements of structures of various offences coincide in this connection it is necessary for vessels to solve was paid, whether obosnovanno the victim has taken advantage of that or a different way of protection for restoration of the property [116]. Ha -

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The example, under delivery contracts inadequate execution by the supplier of the obligations taken up on delivery generates application from the buyer of such measures, as a reference to the court with the claim about compulsion of the supplier dopostavit the goods and penalty for short shipment.

At the same time it is necessary to notice, that the law defines a duty of the supplier to fill the outstood quantity of the goods in a following period (periods) only within the currency of the contract if other is not provided by the delivery contract (item 511 GK the Russian Federation). Hence, the claim about award of discharge of duty in nature under the contract of delivery and, accordingly, penalty for short shipment can be declared only within the delivery currency of the contract, that is presence of a duty of the supplier on goods delivery if other is not established by the contract. The given principle has found reflexion and in judicial-arbitration практике1.

Compulsion of the infringer properly execute obligation L can to be connected with such claim, as replacement of the substandard goods

Or elimination of lacks of the goods or the executed works, and also a requirement presentation about penalty for infringement of treaty provisions about quality of the goods (the executed works). Possibility of a presentation of similar claims is not connected with the contract term expiration fact. Their presentation is caused by terms of detection of lacks of the goods (item 477, 724 GK the Russian Federation).

The correct choice of a way of protection has the important legal effect for

The creditor.

Л1

For example, in case of default by the buyer of a duty to pay the accepted goods the seller has the right to sue about collecting of cost of the transferred goods, and also penalties for unpaid amount (in practice such claims are the most widespread) and can be estimated as

1 See: the Decision № 781/98 from July, 7th 1998г.//the Bulletin YOU the Russian Federation. 1998. - № 10. - С.38; the decision № 6088/99 from May, 30th 2000//the Bulletin YOU the Russian Federation. 2000. - № 9. - С.29.

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Compulsion to execute the contract in nature.

At the same time, is a widespread error in practice collecting by the creditor of cost of the unpaid goods (the executed works), as losses with the reference in the statement of claim on item 393 GK РФ1. In these cases the court should investigate a question on a parity of the sums of penal actions and losses by rules of item 394 GK the Russian Federation.

(fc In the favorable relation the creditor will appear only in case not

ustojka on the size will be above the sum of losses, and that only when the court will collect it in such size.

On the contrary, at collecting of cost of the unpaid goods and registration of this requirement as such way of protection as award to obligation execution in nature, the creditor has the right to count on collecting of all sum zadolzhnosti, and also the penalty for payment delay in the declared sum.

* However it does not mean, that any protection of the rights under the monetary requirement to the debtor can be issued in the form of the claim about award to obligation execution in nature. For example, the buyer under the contract of purchase has made the advance payment on account of the subsequent reception of the goods which has not been transferred it, collecting of the sum before the advance payment listed by the buyer cannot be regarded as the requirement about award to discharge of duty of the seller in nature. The presentation the buyer of the recovery suit before the listed advance payment for the goods is in essence otka -

* zom from execution of a contract and collecting of losses. In this case the size of losses should be combined with the size of the penalty according to the law or treaty provisions, the penalty can be added for the period till the moment of refusal of execution of a contract, i.e. its unilateral cancellation.

1 See: the Decision of Presidium YOU the Russian Federation № 2633/00 from May, 30th 2000г.//the Bulletin YOU the Russian Federation. 2000. - № 9. - S.47 - 48.

*

Meanwhile the structure of losses can be expressed not only the size of the broken obligation.

So, for example, the customer under the turnkey contract in case of lacks of work has the right to demand compensation of the expenses on elimination of lacks, when this right of the customer is provided in the contract (item 723 item 1, 397 GK the Russian Federation) [117]. In a considered case the penalty provided on a case of infringement by the contractor statutory or the contract of term on compensation of specified expenses to the customer (for example, item 31 item, item 5 of item 28 of the Law "About protection of the rights of consumers") can be applied as a way of protection of the broken right.

The law differently solves a question on the reimbursement for elimination of lacks of property under different contracts.

For example, under the rent contract the tenant has the right to demand compensation of the expenses on elimination of lacks of the leased property. C the recovery suit of the specified losses the tenant has the right to demand and the penalty for infringement of this obligation by the lessor. However thus has no value, whether possibility of the tenant to eliminate lacks at the expense of own means or the third parties in the contract is provided. The general rule provided in article 397 GK the Russian Federation in this case operates.

At the same time, possibility of application of the specified ways of protection including penalties under the rent contract depends on, whether the specified lacks have been reserved at making contract of rent either were in advance known to the tenant, or should be found out during property survey at assignation (item 2 of item 612 GK the Russian Federation).

The penalty is applicable both with the requirement about collecting of losses, and with the requirement about award to obligation execution in nature.

Whether the creditor however has the right to declare the penalty recovery suit for infringement of the obligation in the form of its default independently, without application of other measures of protection, somehow: award to obligation execution in nature or collecting of losses or other statutory measures in a situation when any of the parties did not start obligation execution from its part.

For example, under the goods contract of purchase on credit the seller does not execute a duty on transfer of the goods to the term caused by the contract, accordingly, the buyer does not execute a duty on its payment.

In practice of the permission of affairs cases of a presentation buyers of requirements about collecting from sellers of the penalty for failure to meet a date of transfer of the goods - without a presentation of requirements about award to discharge of duty in nature (objazanie the seller to transfer the goods) or losses, for example, take place. Thus frequently the creditor addresses with the penalty recovery suit on a deadline of the expiration of periods of limitation and charges the penalty during "delay" (3 years).

Meanwhile such circumstances testifies to absence of interest to execution of this contract outside of the obligation or currency of the contract time of performance; the fact of a non-presentation of statutory losses can testify to their absence.

Therefore, in our opinion, to the permission of a question on the penalty the question on consequences of default of the contractual obligation the parties should be solved.

The law directly regulates a question on protection of the civil rights arising from treaty obligations, having counter bilateral character, by stay of execution of the obligation or refusal of its execution and the claim for damages (item 328, item 2 of item 488 GK the Russian Federation). At such kind of infringement as obligation default, payment of the penalty and collecting of losses ceases the basic obligation. From close interpretation of item 2 of item 396 of the Code follows: the debtor only then will be released from any burden before the creditor when last will receive summirovanno both the penalty and losses. Hence, in case of default by the debtor of the obligation and at absence at the creditor of intention to receive from the debtor of execution of the obligation in nature, the law suggests the creditor to use simultaneously two ways of protection of the broken rights: penalty and losses.

In our case, not demanding obligation execution on transfer of the goods from the seller, not having paid money for the goods, the buyer has actually refused execution of a contract. It, in turn, testifies to the unilateral termination of the obligation from the buyer. Accordingly, the penalty as a way of protection of the broken right in this case can be applied as an additional protection frame in relation to unilateral refusal of the contract.

Hence, it can be applied only for the period before the obligation termination, instead of for everything any way taken by the buyer the period - since the moment of occurrence of the obligation on transfer of the goods and till the suing moment, that is after a year, two and three years after the expiry of the term of execution of the obligation.

Otherwise it contradicts obespechitelnoj and the accessory nature of the penalty; serves as means of enrichment for the creditor; the established Civil code of the Russian Federation to principles of a rationality and conscientiousness of realisation of the civil rights assuming bar of claim by lapse of time of misuse of right at use of the civil rights, including at protection of the broken rights.

Therefore in the literature not unreasonably was the point of view that in a situation when any of the parties does not execute the obligations, the conclusion the parties of the agreement on voluntary payment of penal actions in the form of the contractual penalty on outwardly quite lawful basises, in essence means gratuitous transfer of money resources or property one commercial organisation another is stated, that is forbidden by the law (item 575 GK the Russian Federation) [118 [119].

So, the sphere of application of the penalty as a way of protection of the broken right under the contract is various. Practice of the permission of arbitration affairs shows wide application of the penalty as a way of protection of the broken right.

It is necessary to agree with the point of view existing in the literature that the penalty, being way of protection of the broken rights of the creditor in the obligation, represents one of legal means of maintenance of realisation of the rights and interests of participants of a property turn.

Research of a question on the penalty as a way of protection of the broken civil rights allows to draw following conclusions.

The penalty as a way of protection of the right is applicable not with all ways of protection of the civil rights listed in the Civil code. It is connected by that the penalty inherently urged to provide only the debt relationships arising on the basis of the contract. Behind sphere of action of the penalty there are the legal relations connected with protection of the property right and other real rights (absolute powers); with a recognition void certificates of the state bodies or local governments; indemnifications of moral harm.

Being the additional obligation in relation to the basic obligation following from the contract, the penalty as a way of protection is applied directly with such ways, as award to obligation execution in nature and collecting of losses. Thus, in case of penalty application together with the requirement about compulsion to execute the obligation in nature, the penalty serves as a stimulant of the debtor to appropriate execution of the obligation, means of maintenance of the obligation (for example, the penalty for goods short shipment). Penalty application serves In other cases as the means allowing the creditor to correct the obligation broken by the debtor (for example, the penalty for infringement of treaty provisions about quality). And at last, the penalty in a combination to the requirement about the reimbursement on elimination of lacks can serve as means of indemnification of property losses of the creditor.

The penalty directly can be declared, besides, and with such requirements, as contract cancellation, i.e. with way of protection in the form of the termination or legal relation change.

Before application of the penalty as a way of protection of the right in each concrete case it is necessary to establish: whether there corresponds the contract under the form and the maintenance to law requirements; whether have obligations of the parties under the contract counter character; whether the contractual obligation from its part is executed by the creditor or it has taken advantage of positions of the law on possibility of unilateral stay of execution of the obligation or refusal of obligation execution; what infringement of the obligation is admitted by the debtor in the form of its inadequate execution or default; duration of infringement of the obligation; the time of performance of the obligation and currencies of the contract; whether the obligation unilaterally is ceased by the creditor; what legal effects of infringement of the obligation are statutory to the given legal relations and by what ways are sewn up the broken right the creditor has taken advantage.

Depending on it the penalty can be applied in aggregate and with protection different ways, statutory, or can be used separately from other ways of protection.

Penalty use together with other ways of protection, as - that: unilateral refusal of the creditor of execution of a contract, etc., has no direct character in the sense that simultaneous application of these ways of protection cannot be realised through courts of justice. Communication between them exists, as is caused by necessity of a legal estimation of the fact of presence of contractual relations, the bases and the moment of their termination.

Possibility of application of the penalty as a way of protection of the right is connected with an estimation of the arisen legal relations of the parties, contract legal effects - and at application of such way of protection, as a recognition of the voidable contract void and application of consequences of invalidity of the void contract.

However these two ways of protection cannot be applied simultaneously court.

There is a mediated communication between the penalty and self-defence of the broken right. Possibility of application of the penalty in this case depends on presence of lawful basises for application of self-defence of the broken right, is connected with an estimation of execution by the parties of the counter obligations taken up.

The penalty as a way of protection can be used separately from other ways of protection of the civil rights. It is caused by the fact of execution by the creditor of the counter obligations taken up on bilateral legal relations and the fact of inadequate execution of the obligation the debtor; at default of obligations by the debtor - the fact of use by the creditor of other, additional ways of protection of the broken rights in the form of stay or refusal of execution of counter contractual obligations. Thus lasting penalty can be applied in the first case - till the moment of execution of the obligation from the debtor; in the second case - till the moment when under the law the obligation is considered ceased owing to unilateral refusal of execution of a contract. The law establishes possibility of application of the penalty established as a compensation, in a case, when the creditor has the right to refusal of execution, if owing to delay of the debtor execution has lost interest of the creditor (the item Z item 396, item 2 of item 405 GK the Russian Federation).

Communication of the penalty with in such a way protection of the broken right, as non-use by court of the certificate of the state body or the local government contradicting the law regarding an establishment of any penalty is indirect. The given way of protection can be applied the debtor against the recovery suit of the penalty established not by the federal act, and the state body any normative act.

3.2.

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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

More on topic 3.1. The penalty as a way of protection of the right in system of ways of protection of the civil rights:

  1. 2.2.1. Veshchno-legal ways in system of protection of the civil rights
  2. ž 3. A negative recognition in system of ways of protection of the civil rights
  3. 3.1. Civil-law ways of protection of the rights of minor patients
  4. the Chapter V. Institutsionalnye (ways) of civil-law protection (protection) of legitimate interests of proprietors
  5. ž 2. Protection of the subjective civil rights in system legal Activity
  6. Chapter 3. Protection and protection of the civil rights it is unknown the absent The citizen
  7. ž4.3. System of intracorporate protection and protection of the rights minoritarnyh shareholders.
  8. ž2.2. Civil-law ways of protection of a trade secret
  9. ž 3. Objazatelstvenno-legal ways institutsionalnoj Civil-law protection of legitimate interests of proprietors
  10. ž 2. The characteristic of civil-law ways of protection of business reputation of the legal person
  11. Ways of protection and protection of laws of succession of the child.
  12. ž 1.2. Forms and ways of protection of the rights of citizens in social security sphere
  13. ž 4. The ways of protection directed on indemnification of harm, caused by belittling of business reputation of legal bodies, as a civil responsibility measure
  14. ž 3. Ways of protection against infringement of the rights and interests minoritarnyh participants of not public society in Russia
  15. ž3. Protection and features of civil responsibility for infringement of the intellectual rights to databases
  16. Chapter 4. Forms and ways of protection and protection of laws of succession of the child in the Russian Federation.
  17. Chapter 2. SEPARATE WAYS of CIVIL-LAW PROTECTION of BUSINESS REPUTATION of LEGAL BODIES
  18. 1.2. Protection of the civil rights and interests on insurance means