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INTRODUCTION

Urgency of a theme of dissertational research. It is impossible to present modern market economy without financing attraction. Its presence is key attribute for maintenance and business development in modern conditions.

By granting of extra means the creditor, as a rule, aspires to secure itself against risk of a non-return the debtor of a sum of money by means of an establishment in its advantage of real maintenance - pledge. However pledge as a way of maintenance of obligations represents special procedure of satisfaction of the rights of the creditor at default of the obligations by the debtor. As the given procedure can be long, is material zatratnoj and bearing in itself other risks for the creditor, in commercial practice, and subsequently and at legislative level the legal designs cutting all lines "inconvenient" for the creditor of pledge [1] were generated.

The transactions mediating these designs, consist usually in the form of purchase and sale or rent, but on the essence they are the transactions directed on maintenance of return of the sum of a loan. Last is given under a condition, that the property during crediting term will be in the property at the creditor. The creditor, as a rule, is the seller (the clause of reservation of title for the seller, conditional purchase and sale), the buyer (faktoring, REPO) or the lessor (financial rent, rent with the call future, sale and return rent) [2]. In each of the cases set forth above the creditor as the financing subject has the right of the property to the property serving by maintenance.

Title maintenance and pledge are very similar, however the first is much more convenient for the creditor: in pledge the pawnbroker at default by the debtor of the duty on return of the sum of a loan has is only right on satisfaction of the requirements from cost of a subject of pledge. In a case of title maintenance the creditor has the high-grade property right to property. The creditor as to the proprietor in case of default by the debtor of the obligations does not need to resort to special procedure of the reference of collecting about maintenance, it can, referring to the property right to reserve property on account of amount due payment.

As we see, available distinctions between two designs are connected with strengthening of a position of the creditor at use of title maintenance. Naturally, it occurs at the expense of infringement of the rights of the debtor and infringement of fair balance of interests of the parties of the obligation. From a position of interests of the creditor pledge at such comparison obviously loses to title maintenance.

In the Russian civil doctrine a design of title maintenance and together with it granting of special preferential position to the creditor though is not terra incognita, is mentioned only in several scientific works in Russian (A.V.Egor, S.V Sarbash, etc.). At the same time Russian doktrinalnye operating time basically are concentrated to separate kinds of title maintenance (JU.N.Alfyorov, S.A.thunder, O.V.Lanina, P.V.Hljustov, etc.) Carrying out the isolated analysis of contractual designs and only occasionally finding between them something the general. Such approach has an offer consequence on scrappy interpretation and reforming of positions of the civil legislation, absence of systematisation between them and nenahozhdenie the bases for application to them of uniform regulation.

It is obvious, that available doktrinalnaja the base is insufficient to draw definitive conclusions concerning application and regulation of institute of title maintenance, and there is a requirement for complex scientific researches which would consider modern lines of development of this institute in developed правопорядка*.

Many of the specified designs of title maintenance are legislatively fixed for a long time already in the Russian right. However all contractual designs falling under this concept, are dispersed under different heads GK the Russian Federation (about purchase and sale, rent, etc.) depending on contractual type. Norms are too laconic, have declarative character. The current legislation does not leave any bases for obespechitelnoj treatment. Thus, available legal fastening of institute of title maintenance does not reflect its legal essence and leads to its wrong understanding pravoprimenitelej. The given research can form a basis for respective alterations on the threshold of reforming of second part GK the Russian Federation.

At the same time title maintenance becomes especially actual in connection with development of contractual practice in Russia after transition to market system of market economy. Loan of new kinds of the contracts directed on title maintenance of execution of obligations, from foreign laws and orders, complication of contractual communications between the parties and consequently, and the increase in risks for the parties of such contracts causes occurrence of a considerable quantity of disputes between them.

The stated reasons cause a choice of a theme of dissertational research.

Object and object of research. Object of dissertational research are the public relations arising at title maintenance of obligations. The object of research includes the norms of the Russian civil law regulating title maintenance of obligations, and also practice of their application. Also in sravnitelnopravovyh the purposes the norms of the foreign right regulating title maintenance are considered.

The purpose and research problems. A main objective of the present research is the formulation of scientifically proved definition and approaches to regulation of title maintenance which could be used at reforming of the civil legislation and be applied by the Russian vessels at the decision of the disputes connected with title maintenance of obligations.

For achievement of the above-stated purpose following problems are put:

- To define preconditions for occurrence and use by participants of the civil circulation of title maintenance of obligations;

- To give a general characteristic of title maintenance of obligations in the Russian Federation and abroad;

- To define kinds of title maintenance, including already fixed in the current legislation;

- To define a parity of pledge and title maintenance;

- To open legislative approaches to regulation of title maintenance in domestic and foreign laws and orders.

By preparation of the present work for research limits adjacent themes, including conditional juristic acts, contract interpretation, invalidity of transactions, concept of maintenance of obligations, a principle of freedom of the contract have been taken out. The given questions mention a theme of title maintenance of civil-law obligations, however in view of independent theoretical value demand separate scientific judgement.

Methodological basis of research are the basic general scientific methods, in particular a dialectic method of knowledge, a method of the system analysis, a method of comparisons and analogies, methods of generalisation, synthesis, an induction and deduction. At the decision of tasks in view of dissertational research were used also chastnonauchnye methods in the field of legal science, such as, etc. it is necessary to specify legallistic, rather-legal, istoriko-legal methods in a special place of rather-legal method by preparation of the present dissertational research.

The theoretical basis of research was constituted by works of such domestic and foreign jurists, as JU.N.Alfyorov, J.V.Bajgusheva, R.S.Bevzenko, H.Veber, B.M.Gongalo, D.D. The Grimm, S.A.thunder, G.Dernburg, D.V.Dozhdev, G.F.Dormidontov, A.V.Egor, A.G.Karapetov, L.A.Kasso, E.A.Krasheninnikov, O.V.Lanina, L.A.Novoselova, I.A.Pokrovsk, N.J.Rasskazova, A.O.Rybalov, S.V.Sarbash, S.A.Sinitsyn, E.A.Sukhanov, P.V.Hljustov, G.F.Shershenevich, N Beale, M. Bridge, W.W. Buckland, J.H. Dalhuisen, L. Gullifer, E. - M. Kieninger, E. Lomnicka, G. McCormack, T. Tajti, A. Veneziano, P.R. Wood, etc.

Scientific novelty of dissertational research consists that in it the scientific approach to regulation of a special kind of maintenance of execution of civil-law obligations - the title maintenance which are carried out by means of conveyance of property or by means of deduction of the property right is offered, features of its legal nature, applicable remedies at law and directions of development of the domestic civil legislation on the basis of the analysis of legal approaches to the title maintenance, developed abroad are considered.

On the basis of the carried out dissertational research of institute of title maintenance by the author the following positions which are taken out on protection are formulated:

1. Title maintenance is way of maintenance of execution of liabilities of the debtor in which frameworks the property right to the property which is representing itself as a subject of maintenance, belongs to the creditor.

Such maintenance can be carried out by two ways: by means of conveyance of property or by means of property right deduction. Conveyance of property is used for reception of money resources which do not carry a special-purpose character. In this case with a view of maintenance of the basic obligation the property right is transferred from the debtor to the creditor, and after execution by the debtor of the basic obligation it is transferred back to the debtor. Property right deduction is used for property acquisition, and financing in this case has a special-purpose character: the property right to got property is primary at the creditor, and it is the proprietor till the moment of execution by the debtor of the basic obligation, and after execution of the basic obligation it is transferred by the creditor to the debtor.

2. Title maintenance is not a special kind of real right, and represents a contractual design in which frameworks the creditor and the debtor agree about conditions of alienation of the property right to the property which is representing itself as a subject of maintenance.

In case of execution by the debtor of the basic obligation and evasion by the creditor from transfer to the debtor of the property right to the property, representing itself as subject of maintenance, the requirement of the debtor about transfer to it the property rights has obligations character.

3. Title maintenance is the fiduciary contract. Fiduciary contracts are characterised by that the parties for registration of the relations intentionally use the contractual designs which legal effects go further the aim pursued by the parties.

Title maintenance completely corresponds to the given definition as the debtor in a design of title maintenance transfers more than the rights, rather than it is necessary for real maintenance of the liability. The creditor and the debtor could use pledge which assumes in case of default of the obligations by the debtor satisfaction of requirements of the creditor from cost of the put in pawn property. However the parties resort to title maintenance where interests of the creditor as the proprietor are much more protected, rather than if it was in position of the pawnbroker: the creditor as to the proprietor in case of default by the debtor of the obligations does not need to resort to special procedure of the reference of collecting about maintenance, it can, referring to the property right to reserve property on account of amount due payment.

In this connection in view of fiduciary character of title maintenance the creditor, despite the property right available for it is supposed, that, will not dispose of the property acting as a subject of maintenance, before the termination of the time of performance of the basic obligation. In case of alienation by the creditor of the specified property before the termination of the time of performance of the basic obligation or after that term when the debtor has executed the basic obligation, the debtor has the right to make to the creditor the demand about losses.

4. It is possible to carry to title maintenance dogovory purchase and sale with the clause of reservation of title for the seller, rent with the call future, financial rent, obespechitelnoj concessions of the incorporeal right and REPO.

In all listed contractual designs the subject of title maintenance acts as a guarantee of satisfaction of requirements of the creditor and during crediting term is in the property at the creditor.

5. For that definition, whether the transaction concerns title maintenance, it is necessary to use the functional approach, whether that is to analyse its maintenance and to find out the transaction is providing the extra obligation. Thus the choice the parties of this or that kind of the contract for registration of the legal relations has no value for definition obespechitelnogo character of the transaction.

6. Despite the open list of ways of maintenance and a principle of freedom of the contract, nepoimennovannye kinds of title maintenance should be qualified as pledge as as a result of their use there is a detour of norms of the legislation on the pledge, rights directed on protection and legitimate interests of the debtor and its creditors.

Offers on perfection of the civil legislation and pravoprimenitelnoj experts. The stated positions which are taken out on protection, allow to offer as a direction of development of the civil legislation application to transactions of title maintenance of rules about pledge, in particular, in case of default by the debtor of the obligations, and also at bankruptcy of the debtor or the creditor and fastening at level of explanations of the Supreme Court of the Russian Federation of application of the functional approach at the permission of the affairs connected with title maintenance.

«About an inconsistency (bankruptcy)» it is necessary to include the norms establishing application to transactions of title maintenance of norms about pledge in case of default by the debtor of the obligations in the Civil code of the Russian Federation and the Federal act, and also at bankruptcy of the debtor or the creditor.

In explanations of the Supreme Court of the Russian Federation it is necessary to pay attention of courts below, that at the permission vessels of disputes concerning transactions of title maintenance for qualification of the transaction as that the court should analyse its maintenance and circumstances of its conclusion, whether and also to find out the transaction is providing the extra obligation.

The theoretical and practical importance of research. The theoretical importance of work consists in definition of characteristics and an establishment of the basic approaches to regulation of title maintenance which has been a little studied before in the Russian doctrine. The important theoretical value has the functional approach formulated in work to regulation obespechitelnyh the rights. The scientific positions received within the limits of dissertational research and theoretical conclusions will promote the further development of the Russian civil jurisprudence.

The practical importance of work consists in possibility of application of substantive provisions and the conclusions containing in research, in pravoprimenitelnoj to practice and legislative activity, and also by preparation of explanations of the Supreme Court of the Russian Federation questions arising in judiciary practice.

The conclusions besides, formulated in research can be used in research activity and within the limits of teaching of a course of domestic and foreign civil law in higher educational institutions.

Approbation of results of research. Work on a theme

The master's thesis it has been begun in 2012 by preparation magisterskoj dissertations in federal state budgetary educational institution of the higher vocational training «the Russian school of private law (institute)».

The dissertation is executed and discussed at session of a department of the civil legislation and process and at session of section "Private law" of the Academic council of Institute of the legislation and comparative jurisprudence at the Government of the Russian Federation. Following the results of research articles on a theme of title maintenance in periodicals have been prepared and published.

Dissertation structure. Structure of a statement of a material,

Presented to the present work, it is caused by the maintenance

Questions investigated by the author and problems. The dissertation includes the introduction, three heads, the conclusion and the bibliographic list.

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A source: Usmanov Ekaterina Ravilevna. TITLE MAINTENANCE OF THE CIVIL-LAW OBLIGATIONS. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2017. 2017

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