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Ways of perfection of application of rules of law about the penalty

Application of rules of law about the penalty is an activity of competent bodies on application of the penalty by means of use of compulsory force of the state concerning offenders. Thus, subjects of realisation (collecting) of the penalty are: the state bodies, the creditor and the debtor - the counterpart under the contract.

At the same time the questions settled by the legislation on penalty kinds on their parity with losses, 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 for using another's means continue to remain a subject of wide discussion in the literature.

Is not present in the literature of a common opinion concerning presence in the law of the penal sum and its necessity. Studying of development of the Russian legislation on the penalty testifies to the tendency of ceasing to be force of penal (retaliatory) function of penalty.

As is known, the basic lawful penalties operate now under relations on transportation; to the relations regulating delivery about -

♦ duktsii for the state needs, a bookmark of the goods in the state material reserve etc. Meanwhile, research of the Transport Charter of railways of the Russian Federation (Chapter 6), accepted by the Federal act from 19.12.1997г.1, the Federal act № 79-FZ from 23.11.1994г. "About the state material reserve" (Chapter 4 2), the Federal act № 53-FZ from 26.10.1994г. " About purchases and deliveries of agricultural production, raw materials and the foodstuffs for the state needs (article 8) and some other laws testifies to more and more increasing role of the penalty having test character in relation to losses. It follows from this, that in the specified laws or in general there are no instructions on a parity of the penalty and losses, or in the law is directly provided, that "the caused losses are compensated in the part which have been not covered with the penalty". On the contrary, some laws provide restriction of the size of responsibility. For example, according to item 2 of item 170 of the Maritime Code of the Russian Federation accepted by the Federal act of the Russian Federation № 81-FZ from 30.04.1999г.4, it is provided, that responsibility of a carrier for delay of delivery of the cargo accepted for transportation cannot exceed the size of the freight,

* V.

Coming under to payment, according to the cargo contract of affreightment.

The analysis of judicial-arbitration practice of the resolution of disputes also testifies to penalty application that the parties seldom enough apply in the contract responsibility in the form of the penalty having penal character.

1 See: Meeting of the legislation of the Russian Federation. 1998. - № 2. - С.218.

2 See: Meeting of the legislation of the Russian Federation. 1995. - № 1. - item Z.

3 See: Meeting of the legislation of the Russian Federation. 1994. - № 32. - Item 3303.

4 See: Meeting of the legislation of the Russian Federation. 1999. - № 18. - Item 2207.

So, practice of generalisation considered by Republic Bashkortostan Arbitration court in 2000г. 4780 affairs has shown, that on disputes on the penalty, established by the agreement of the parties, the penal sum has been established by the parties in the contract only on 12 affairs that constitutes insignificant percent from all considered affairs [145].

In this connection it is not casual in the civil literature there is an opinion that it is necessary to put collecting of penalties in dependence on presence of losses at which absence the counterpart should not bear responsibility before the creditor [146 [147]. At the same time, some scientists offer to expand, on the contrary, a circle of action of the penal sum, to levy it, for example, for delay in performance of economic contracts, either in general collecting exclusively or mainly the penal sum [148].

Some authors suggest to establish in the law only the test penalty as penalty over losses can lead to superficial increase in property of the creditor [149].

Really, collecting of losses over the penalty gives last penal character - character of "punishment". The sum of the collectings, arriving 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. Concluding the contract and counting on obligation execution properly, each of the parties intends to receive any profit as a result of this activity (income). In case of infringement of the obligation of one of the parties - another

The material loss (loss) which comes under to full restoration is caused. Receiving this compensation and, besides, over it is the penalty, the creditor increases the sum of the property, that is the creditor has an additional property right.

Owing to item 8 GK the Russian Federation the civil rights and duties arise from the bases, statutory (contracts, other transactions, etc.). The Current legislation 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, in particular penalties. Realisation by subjects of the civil circulation of the civil rights and duties should be based on principles of equality of the parties, justice and a rationality. Recently, as practice of application of the penalty shows, the tendency to a presentation of recovery suits of the penalty surpassing in the size all reasonable limits was outlined.

In this connection it is difficult to disagree with those authors who suggest to establish in the law only the penalty having in relation to losses test character. At such position valuable interests of the creditor having the right completely to restore broken right (either the penalty, or collecting of losses, or application of the specified measures of responsibility simultaneously - at own discretion depending on presence of losses and their size (or their absence in general) would be completely protected, that, in turn, would not give possibility to it superficially to increase the property over those losses which to it can be возмещены1. We consider, that the given question should be solved, basically, on legislative уровне2.

Meanwhile in the literature there is also other point of view. In a context of the given

1 See: the Decision of Presidium of the Supreme Arbitration Court of the Russian Federation from 05.11.96г. № 1951/96//the Bulletin YOU the Russian Federation. 1997. № 2.-with, 59.

2 See: the Circular of Presidium of the Supreme Arbitration Court of the Russian Federation from 14.07.97г. № 17 źthe Review of practice of application by arbitration courts of article 333 GK the Russian Federation╗//the Bulletin YOU the Russian Federation. 1997. - № 9. - С.75.

M.I.Braginsky and V.V.Vitrjansky's problems offer the following exit.

They write: źMore preferable and, we will add, completely corresponding to the legislation would be to estimate requirements of the creditor about penalty in the part exceeding possible losses in connection with the admitted debtor by infringement of the contractual obligation as misuse of right, as would serve as lawful basis to refusal of claims in a corresponding part╗ [150].

However such statement of a question requires a concrete definition.

Under the general rule at penalty the creditor is not obliged to prove neither causing to it losses, nor its size. In practice the demand about penalty simultaneously with requirements about collecting of the caused losses, in view of complexity of proving of losses is in rare instances made. Under such circumstances the court by consideration of dispute on penalty does not have any data on presence of losses, on its size in this connection it is practically impossible to define during this moment, in what part the penalty exceeds losses that in this part to give up in satisfaction of the claim with that motivation that misuse of right takes place in this part of the claim. It is impossible to estimate in advance the size of losses. Losses that have been estimated by court from the legal point of view, should be, at least, are declared by the creditor to collecting, further, there should be a fact in evidence of presence of losses and their size.

Thus, the arbitration court cannot give up to the creditor in the penalty recovery suit in a part exceeding the indemnification referring to misuse of right if the requirement is declared the penalty by the creditor only upon obligation infringement, instead of in connection with causing of losses as a result of an offence. Thus it is necessary to mean, that the law does not oblige the creditor to prove causing of losses and their size under requirements about penalty.

Besides, raise some doubts in legitimacy of application in the given situation of institute "misuse of right" and from the theoretical point of view. In the civil literature there is no in general a unity of opinions concerning the concept "misuse of right". Different authors the various relation to the maintenance of this concept expressed.

One authors completely denied this concept. Sharply critical relation to a problem of misuse of right has been stated by M.M.Agarkov, M.V.Samojlovoj, N.S.Maleinym which consider, that realisation be right cannot illegal [151] as the subject operates legally [152], źin borders of the right belonging to it╗ [153].

A number of authors had been expressed opposite opinion on the given problem [154]. In the literature discussion about opposition of the form to the maintenance of the right which can lead to legality infringement was developed, to superficial expansion of the judicial discretion and that in such opposition in general there is no necessity.

As we see, the given problem represents considerable difficulty and, first of all, because both the maintenance of the right, and limits of its realisation assume certain behaviour of the authorised person. Recently in the literature the problem of limits of realisation of the civil rights was quite often reduced only to a problem of realisation of the right according to its appointment. So, according to O.S.Ioffe, źunder limits of realisation of the civil rights it is necessary to understand the limits following from their special-purpose designation╗ [155]. Similarly solved this question and

M.V.Samoilov [156 [157].

We join opinion of those authors which consider, that the idea "misuse of right" in itself is inconsistent in this connection in it there is no necessity.

Therefore hardly the problem of unreasonably high penalties surpassing in the size possible losses, and also collecting by the creditor of losses in full over penalties (penal sum) should be solved by refusal to the creditor in protection of the broken right referring to misuse of right.

As truly marks T.E.Abova, each measure of responsibility should be adequate to the protected right [158].

Penalty over possible losses regarding excess of the penalty of the size of losses, and also collecting of double compensation of the penalty and losses (penal sum) is not adequate to the protected right of the creditor, on the contrary, promotes its unjust enrichment at the expense of property of the debtor. In this connection we suggest to exclude the penal sum as a separate kind of the penalty from the legislation.

C positions of completeness of restoration (protection) of the broken right raises some doubts and the exclusive penalty named some authors by the minimum measure of property responsibility [159].

The exclusive penalty very seldom meets, as before, in the legislation in the pure state. The legislation tendency about ssuzhenii spheres of application of the limited sanctions is traced. The exclusive penalty limits possibility of restoration of the broken right.

The exclusive penalty is established mainly in relations

Clients with transport and energosnabzhajushchimi the organisations. An example of the exclusive penalty in the legislation are item 137 of the Charter of motor transport of RSFSR approved by the Decision of Ministerial council of RSFSR № 12 from 08.01.1969г.1, 15 % providing payment provoznoj payments for every days delays of delivery of cargo. The similar norm contains in article 111 of the Transport Charter of railways Russian Федераті tsii.

At an estimation of action of the mechanism of the given kind of the penalty it is necessary to agree with opinion existing in a science on it неэффективности2.

As to the legal maintenance of the exclusive penalty in the literature attempts of its reference to a category of "in advance certain losses╗ were undertaken, that, in essence, is reanimirovaniem the estimated theory неустойки3.

I.S.Petersky, B.S.Antimonov gave to exclusive penalty M of line of a compensation as under such circumstances the creditor refuses from

The right to demand instead of the penalty убытков4, or with penalty payment all possible requirements of the sustained creditor as remaining with the creditor źthe execution requirement╗ cannot receive certain valid смысла5 are settled.

C such estimation of the exclusive penalty V.K.Rajher noticing disagreed, that at a compensation at the creditor is not present not only the rights to find losses, but there is no even a right to demand execution; meanwhile at исключи* telnoj the penalty does not have only the right to claim damages, and the right

To demand from the debtor of execution remains in силе6.

As is known, the exclusive penalty, as well as any other kind neus -

1 Meeting of the governmental orders of RSFSR. 1969. - № 2-3. - Item 8.

2 Sm: Petrov I.N.decree. soch. - with. 186-187.

3 See: Dashkov P. P, Bryzgalin A.B. The commercial contract: from the conclusion before execution. - M., 1997. - С.34.

4 Civil code of RSFSR. The scientific comment. - M., 1930. - S.83-84.

5 See: antimonov B.S.decree. soch. - S.93-94.

6 See: Rajher B.K. Legal questions of contractual discipline in the USSR. - with. 161.

tojki, has the purpose to provide appropriate execution of the obligation. Finally, any infringement of the obligation is reduced or to its default, or inadequate execution. Obligation default takes place when the debtor has not started execution of the obligation and when for date of execution of the contractual obligation of the party remain in the position existing before making contract.

Depending on it there come various legal effects for the creditor and the debtor. A question on a parity of a duty of the debtor to bear a liability of infringement of the obligations and its duty to execute this obligation in nature in a new fashion it is solved by operating Civil code (item 396). Novelty of these positions and their essence consists in the different approach to two various situations. The exclusive penalty can be collected at any of the named kinds of infringement of the obligation: 1) at inadequate execution of the obligation the debtor is not released from obligation execution in nature, in this case takes place a duty of the debtor to pay the penalty and to execute the obligation; 2) at default of the obligation the creditor has only a right to penalty. The debtor in this case is released from obligation execution. The stated allows to draw a conclusion that the design of the obligation in the form of a compensation and payment of the exclusive penalty in the second case really coincides. Clearing of the debtor of obligation execution (the obligation termination) payment of the penalty defined as a compensation (item 409 GK the Russian Federation), is fixed at legislative level (item Z item 396 GK the Russian Federation).

Hardly the similar norm of the law is justified.

Granting instead of execution of the obligation of a compensation is one of ways of the termination of the obligation. The penalty institute has the purpose appropriate execution and maintenance of the real-life obligation. Under such circumstances hardly it is expedient to mix these institutes of civil law in законодательстве1.

At the same time, in the civil legislation cases insufficiently accurate, in our opinion, regulations of separate questions of realisation of the penalty, in particular, questions of decrease by court of the size of the penalty in case of its disproportion to consequences of infringement of the obligation, limits and the bases of reduction of the penalty take place. Differently, the decision of a question on the sizes and limits of decrease in the penalty in the presence of the circumstances specified in the Law (item ZZZ GK the Russian Federation) (which, by the way, it is also insufficiently accurately defined), remains on judicial discretion.

In the literature the opinion of practical judicial workers on perfection of the remedial legislation and entering into the Arbitrazhno-code of practice of the Russian Federation of corresponding norms as the judicial discretion based only on norms of articles 10, 333 GK the Russian Federation, does not meet requirements of development Russian общества2 has been expressed.

The discretion pravoprimenitelja in a general view is characterised by that the law represents pravoprimenitelnym to bodies (court) possibility of individual regulation (discretion). There is an opinion that value of individual regulation consists that it allows to consider features of the given concrete situation, to include in legal regulation experience of participants of relations, to provide their activity and инициативу3.

Certainly, penalty in this or that size exceeding consequences of infringement of the obligation, demand the account court of concrete circumstances of business: the period of infringement of the obligation (delay), motives pove -

1 See: Decisions of Presidium of the Supreme Arbitration Court of the Russian Federation № 754/97

From 03.06.97г.//the Bulletin YOU the Russian Federation. 1997. № 9. S.39-40; № 2034/96 from 11.03.97г.//the Bulletin YOU the Russian Federation. - № 6.

- S.64-65; № 4931/96 from 20.05.97г.//the bulletin YOU the Russian Federation. 1997. - № 8. - S.38-39, etc.

2 See: Gromova N.V.problem of the judicial discretion at disposal of legal proceeding about bankruptcy//Arbitration practice. 2001. - № 3. - S.ZZ; Sulimov I.I.execution of turnkey contracts//Arbitration practice. 2001. - X2 3.-C.54.

3 Alexeys S.S.social value of the right in the Soviet society. - С143; theory of state and law. - M.,

1985.-S.300.

denija the parties, a property status of the parties, etc. At the same time as there are no accurate criteria of reduction of the penalty, specified in the law, penalty decrease can be made and on 1 %, and on 99 % - depending on the subjective discretion of due persons.

As follows from item ZZZ of the Code, the decision on penalty reduction is possible and should be taken out court in cases when the penalty coming under to payment is obviously disproportionate to consequences of infringement of the obligation. It means, that the court should have criteria for an estimation of its size and use these criteria with observance of remedial requirements.

As from sense of item ZZZ of the Code follows, that the decision on penalty reduction can be accepted court irrespective of the statement for it of the debtor so far as the duty of proving of disproportion of the penalty to consequences of infringement of the obligation cannot be assigned to the last. Meaning stated, some authors quite obosnovanno believe, that awarding judgement about penalty reduction at failure of evidence in business materials about discrepancy of the penalty to consequences of infringement of the obligation will lead to infringement by court of variety of rules of procedure: about decision-making only on those proofs which have been investigated in session (the proceeding principle of directness); about discrepancy of the decision to requirements of item 2 of item 127 of agrarian and industrial complex of the Russian Federation; about impossibility for the creditor, in the absence of the statement of the debtor for penalty reduction to present the objections against an argument about excessive size of the penalty [160].

Position about application by court of article 333 GK the Russian Federation and penalty reduction at presence to that of the bases irrespective of, whether such petition was declared by the respondent, has been confirmed in "the Review of practice of application by arbitration courts of article 333 of the Civil code of the Russian Federation",

The Presidium accepted by the Letter YOU the Russian Federation № 17 from July, 14th 1997г. (Point 1) see. In the decision of Plenum of the Supreme Court of the Russian Federation and YOU the Russian Federation № 6/8 it has been specified, that at an estimation of consequences of infringement of the obligation by court the circumstances which do not have the direct relation to consequences of infringement of the obligation (the price of the goods, works, services, the contract sum, etc.) can be taken into consideration, including.

Following the specified recommendations, courts frequently make of the decision on penalty reduction under the initiative, at absence in materials of business of proofs on obvious disproportion of the penalty to consequences of infringement of the obligation, only on the basis of an estimation of the sum of the penalty and to its comparison to the sum of the unsatisfied or broken obligation, the period of delay or infringement of the obligation, the size of the penalty provided by the contract, acceptance by the debtor of measures to debt repayment, etc. In the absence of the petition of the debtor for penalty reduction, having begun discussion of the given question in session of the court under the initiative with a research objective of counterplaintiff's cases on this question, the court is obviously forced to "protect" interests of one party in process, than in advance - before acceptance of the judicial certificate on business - anticipates the decision regarding penalty reduction. It breaks such principles of proceeding, as competitiveness and equality of the parties in litigation: The court cannot act as "lawyer" of the debtor.

Under such circumstances in absence of the petition of the debtor about penalty reduction, as a rule, the decision on application of article 333 GK the Russian Federation is accepted by court by an independent estimation of the bases for decrease in the penalty without research of documents on presence of disproportion of the penalty to consequences of infringement of the obligation and discussion of the given question by the parties in session of the court. Certainly, such practice is the basis for the subsequent complaints of creditors about reduction by penalty court.

Does not promote the correct resolution of disputes about penalty and reduction by their court and the vast formulation of the legislator about "consequences of infringement of the obligation". Not clearly, whether are these "consequences" losses of the creditor, if yes, in what their part and in what structure? If it is losses on demand about penalty the creditor is not obliged to prove causing to it of losses and their size (the item of item ZZO GK the Russian Federation). If it is "consequences" of other sort, what it for consequences both to what limits and in what size they should be considered, till what size the penalty can be reduced?

The legislator does not give the answer to the given question. In the literature there are different points of view in this respect. For example, according to I.I.Vorontsovoj, abundantly clear, that with reference to the liability the amount due on which the penalty is charged, cannot serve as criterion for an estimation of its normal amount as the obligation sum as that does not characterise consequences of default of the liability. It is represented to it, that soizmerenie penalties with consequences of infringement of the liability actually are represented by comparison of the rate established by the contract on which the penalty is charged, with the bank rate of refinancing [161].

However such statement of a question, first, does not answer on a question concerning harmony to consequences of infringement of the obligation of the penalty established for other kinds of contractual delinquencies (infringement of terms of performance of works, for short shipment, etc.); secondly, identifies such various measures of responsibility, as the penalty and bank percent for using money resources (in which relation, by the way to tell, a mode of application of item ZZZ GK the Russian Federation other - to reduction comes under the applied rate of refinancing, instead of the sum of percent).

It has been stated in the literature and other point of view. Investigating laws of application of norm of a part 1 items 333 GK the Russian Federation in the Russian arbitration practice depending on the sum of the basic obligation, the period of delay, the rate of the penalty and the sum of the declared and collected penalty, V.A.Belov has revealed such principle of reduction of the penalty: the more the delay period, the the penalty should be more strongly reduced. The given conclusion follows from this: the longer the creditor does not care of collecting of the compensatory penalty, the, it for it represents obviously, smaller interest. Thus it is offered to take the period during which the requirement is declared the penalty (three-six months as definition of criterion of the size of reduction of the penalty; six months - year; year - one and a half year; From ones and a half till three years from the date of an offence), and depending on it to establish the multiple size of an indicator of harmony of the penalty, established depending on the sum of the broken obligation, and also to establish the limiting size of reduction of the penalty: or 50 % from the sum of the declared penalty, or 50-100 % from the sum of the loss of profit estimated under the rate of refinancing, or the amount due [162].

Certainly, in connection with the big variety of various situations of infringements of conditions on various contracts; the features inherent in only concrete treaty obligations; impossibility in advance to foresee occurrence in the future of losses or other consequences as a result of infringement of the obligation and actions of the debtor on prevention of these consequences, etc., it is difficult to present uniform criteria (rules) of reduction of the penalty. However the establishment in the law of the separate (isolated) criteria for definition of limits of reduction of the penalty, for example, by separate kinds of infringements (would be possible correct at penalty for infringement of terms of performance of certain actions; for infringement of terms of correction of lacks; for payment delay, etc.) As legal effects as a result of the admitted infringements can be different in each concrete case. The offer that it is necessary to establish a certain minimum and maximum limit of reduction of the penalty in the law is thought, is quite reasonable. As it seems to us, at reduction of the penalty in case of its obvious disproportion to consequences of infringement of the obligation the sum of the unsatisfied or broken obligation should be considered among other criteria. As it is initially an indicator of that the party under the contract expected to receive at its appropriate execution. However the sum of the broken obligation, certainly, cannot serve as a unique indicator of consequences of infringement of the obligation. Considering that the creditor on demand about penalty should not prove the fact of causing to it of losses (not very well in the form of a real damage or the loss of profit) and their size, as criterion of disproportion of the penalty it was possible to accept such indicators, as: whether the obligation partially is executed or not executed not so; if the obligation is executed, in what its part - bolshej or smaller; whether are taken 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 - at the lasting penalty.

The legislator and the unequivocal answer to a question on does not give, whether any penalty (test, penal, exclusive, alternative) can be reduced court at presence to that of the bases. The given question also is not idle. In practice the creditor disagrees with the decree about decrease in the size of the penalty in its penal kind in case of its obvious disproportion to consequences of infringement of the obligation. There is in this respect an ambiguous interpretation of article 333 of the Code and in the literature.

So, some authors see sense, appointment and conditions of existence of institute of reduction of the penalty entirely dependent on functions and mission of the penalty, to be exact penalties. Proceeding from this parcel the conclusion that there where the legislator prezjumiruet the penalty test or estimated, i.e. assumes, that its collecting is intended for simplified indemnification of losses of the creditor becomes, there there is also an institute of reduction of the penalty. On the contrary, the legislation considering with the main function of penalty punishment of the offender (its collecting over losses and over obligation execution in nature), does not know institute of reduction of the penalty. Thus, the conclusion that the penalty which collecting is intended for simplification of indemnification of losses - test, alternative and exclusive, can be reduced in that concrete case when in practice its compensatory function outgrows in penal becomes, i.e. When collecting will lead to enrichment of the creditor. The penalty, which collecting it is initially intended for punishment of the offender (penal sum), to reduction basically does not come under. Never. Under no circumstances [163].

Hardly it is possible to recognise such position based on the law. From the literal sense of article 333 GK the Russian Federation the conclusion about impossibility of application of institute of reduction of the penalty to its penal kind is not seen. Possibility of reduction of the penalty in view of its obvious disproportion by consequences of infringement of the obligation, expressed in losses is not connected directly. The law does not contain obvious and the express prohibition on application of institute of reduction of the penalty concerning the penal sum. Unique criterion of possibility of reduction of the penalty is obvious disproportion of the penalty to consequences of infringement of the obligation. At such treatment of the law we consider, that the institute of reduction of the penalty can be applied at presence to that of the bases to penalty any kind, including to the penal sum. However together with it we consider, that would be possible correct and proved from the point of view of penal character of the penalty to define in the law as a limit of reduction of the penalty the determinate sum of the collecting leaving for the sum obosnovanno of losses shown to collecting.

As to penalty procedure, it is necessary to notice, that penalty is made in adversary proceeding and subordinated to general rules of the reference of the authorised person in court and to rules of consideration of these disputes judicially. Meanwhile practice of consideration of disputes on penalty shows, that this category of disputes constitutes the big share of the affairs considered by vessels.

Disputes on penalty in a subject, the cause of action which is 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 coming under 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. The Arbitrazhno-code of practice of the Russian Federation) practice of obligations 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 would reduce number of the specified disputes in court.

As a whole efficiency of realisation of the penalty depends on quality of rules of law (material, remedial), regulating the given legal relations. If the rule of law providing responsibility, effectively enough influences contractual relations, achieves the object preventions of infringements of obligations, it means is economically proved [164 [165]. It is necessary to notice, that a considerable quantity of disputes on the penalty, considered by vessels, testifies to infringement by the obligation parties, despite threats of realisation of the penalty, that, accordingly, confirms an inefficiency in many cases of the penalty and default of its basic function - functions of stimulation of appropriate execution of the obligation.

It is thought, that the reason for it are both objective factors, and factors of subjective character. Objective are an imperfection somewhat legislations (for example, item ZZZ GK the Russian Federation), a general crisis of non-payments and recession in economy. Subjective factors are expressed in unconscientiousness of counterparts of the contract, acceptance by competent bodies in some cases not absolutely fair decisions taking into account application of item ZZZ GK the Russian Federation and decrease in the penalty or to the scanty size, or in the insignificant size and collecting of unreasonably high sizes of the penalty, etc.

For last decade it was replaced both an economic situation in the country, and the civil legislation. Practice of consideration of economic communications and disputes what dispute on penalty for breach of contract is, gives the basis to consider, that the maintenance of the special provisions regulating those or other spheres of economic activities, in various systems of legal regulation of economic activities has tenden -

Ěu

tsiju to rapprochement, unification.

As a whole base of unification is transition from the economic legislation, basically self-supporting type, to the economic legislation, basically commercial type [166].

C introduction of the new Civil code by the legislator settles full enough and comprehensively practically the majority of economic debt relationships by various kinds of contracts.

Meanwhile the aggravation of a problem of maintenance of a public economic order demands attention strengthening to the economic right with which help it is possible to provide a combination public and private interests, to warn development of economic criminality [167].

Perfection of legal regulation of economic activities, and especially, ways of maintenance of that activity (penalty), can serve as the important means of strengthening of contractual discipline, overcoming of crisis of non-payments and disorganisation in economy.

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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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