The institution of civil liability has generated the greatest amount of discussion throughout its existence. In civil law, several positions have been formed regarding the legal nature of civil liability.
According to the author, the most preferable position is the one set out in the legal literature, which defines civil liability as a sanction for an offense that causes negative consequences for the offender in the form of deprivation of subjective civil rights, or the imposition of new or additional civil obligations.
Compensation for losses allows you to most fully realize all the functions of responsibility, including compensatory, incentive, and preventive.
Traditionally, the general conditions for the onset of civil liability are identified. The set of listed conditions, which, as a general rule, are necessary to impose civil liability on a specific person, is called corpus delicti of a civil offence. The absence of at least one of the specified conditions of liability, as a rule, excludes its application. The person demanding compensation for losses must prove: the fact of unlawful behavior of the violator; the presence of a causal connection between the violation and the resulting losses; fact and amount of damages claimed; fact of guilt (in cases established by law).
Compensation for damages by the debtor must put the creditor in the position in which he would have been if the obligation had been properly performed by the debtor. This approach in the doctrine is usually called the protection of positive contractual interest. The implementation of this task, of course, requires compensation to the creditor for both real damage caused by the violation of the obligation and lost profits (Article 15 of the Civil Code of the Russian Federation).
In all legal systems, the damage subject to compensation includes, as a rule, as its constituent parts, firstly, positive damage, i.e. those real costs and losses that the creditor incurred due to failure of its counterparty to comply with its obligations, and secondly, lost profits (lost profits), i.e. those incomes that the creditor could receive if the contract was properly executed by the other party (Article 1149 of the Federal Civil Code; § 252 of the State Civil Code; clause 2 of Article 2-708 of the US Code of Labor Code). Civil law doctrine defines contractual and tortious liability separately.
We consider the obligation to indemnify a special type of monetary obligation, the content of which is civil liability. Failure to fulfill this monetary obligation allows the provisions for the payment of interest, provided for in Art. 395 of the Civil Code of the Russian Federation.
This circumstance is supported by the fact that when forming this obligation, there is a key feature for a monetary obligation - the obligation to pay money. At the same time, this attribute is not an exhaustive basis for changing the essence of this monetary obligation as a civil liability.
Qualifying losses as a monetary obligation entails a number of important legal consequences: the general rules of the law of obligations established by the Civil Code are applicable to the claim for losses. The claim for damages can be, depending on the right protected by it, either shared or joint (Article 322), transferred by assignment and delegation (Articles 382, 391), accompanied by methods of security (pledge, surety, guarantee), and also subordinated general rules on limitation of actions (Articles 195-208 of the Civil Code). Finally, it is possible to terminate the obligation to compensate losses due to a number of general grounds for termination of obligations provided for by the Civil Code: compensation (Article 409), set-off (Article 410), coincidence of debtor and creditor (Article 413), novation (Article 414), debt forgiveness (Art. 415). Since the claim for damages is usually monetary, the general rules of the Civil Code on monetary obligations are also applicable to it, in particular on the currency of a monetary obligation (Article 317) and liability for failure to fulfill a monetary obligation in case of delay when interest must be paid (Article 395).
Thus, in the obligation to compensate for losses, the primary role is played, first of all, by imposing an additional obligation on the offender, and The monetary form of payment for such a responsibility plays a secondary derivative role and depends entirely on the responsibility itself. The monetary nature of compensation does not change the content of losses as a measure of civil liability. It is responsibility that still influences the rules determined by the specifics of such payment.
The author believes that it is best to think of damages in contractual obligations as a secondary obligation generated by a primary one in connection with its violation, having in their essence typical, characteristic features namely civil liability. The emergence of such a secondary obligation (by changing the content of the original obligation or by terminating the original obligation and replacing it with a new one aimed at paying money) may be the result of an agreement of the parties, but may also arise from the law.
We consider the position according to which the obligation to compensate losses, from the moment it is determined on the basis of an agreement of the parties or a court decision, to be a new monetary debt, erroneous. The identification of debt with the responsibility of the debtor is unacceptable. The law clearly distinguishes between the fulfillment of an obligation and liability for non-fulfillment as independent, although related categories. In practice, mixing the civil law categories of monetary debt and losses creates nothing but confusion. The conceptual apparatus of civil law science is violated, since different phenomena, such as duty and responsibility, must be called differently.
Losses and monetary debt differ in substance. The peculiarities of such a measure of civil liability as compensation for losses are that its application presupposes additional burden on the faulty party, those. such an encumbrance that entails property losses for her, which she would have avoided if the obligation had been properly fulfilled. On the contrary, the amount of monetary debt is the equivalent of what the debtor will receive or received in return, therefore it acts as a benefit for him: as a result of its payment, the debtor seeks to increase his well-being, based on the fact that by giving a certain amount, he receives an economic benefit. In turn, the creditor receives this amount, fulfilling his obligation to transfer the thing, perform work, provide services, etc. The amount of money in a monetary debt is a means of payment for a certain value.
The difference between losses and the main monetary debt, carried out on the basis of their occurrence: the main monetary debt arises on the basis of an agreement, any other legal action, existing within the framework of regulatory obligations. The parties enter into regulatory legal relations of their own free will in order to satisfy their needs, mutually assuming rights and assigning responsibilities. Such relationships are beneficial to both parties and the turnover as a whole - they are encouraged by law. Losses arise as a result of unlawful actions (inaction) of one person violating the rights of another. Such actions are prohibited by law; their infliction entails the emergence of a protective legal relationship. Losses arising from non-fulfillment or improper fulfillment of a contractual obligation are derivative in nature from the main obligation and cannot in any way arise in the absence of the latter. Payment of the principal debt is fulfillment of the main obligation, compensation for damages is measure of responsibility and it may not arise at all if, as a result of the breach of obligation, the creditor did not suffer property losses.
The difference between losses and monetary debt is made by the peculiarities of proof. The obligation to compensate for losses is subject to special rules of evidence as a civil liability measure. The monetary debt must be established in a simplified manner. To collect a monetary debt, under no circumstances is it necessary to establish the illegality of the debtor’s behavior, his guilt, or causation. At the same time, to recover damages, it is necessary to have all the grounds and conditions required for imposing property liability, including the guilt of the debtor, if, according to the Civil Code, he is liable in the presence of guilt.
In modern civil circulation, legal regulation of methods for protecting civil rights is of paramount importance. The definition of the concept of ways to protect subjective rights is not formulated in legislation.
In the legal literature, methods of protecting subjective civil rights are understood as substantive and legal measures of a coercive nature, enshrined in law, through which restoration (recognition) of violated (contested) rights is carried out and influence on the offender.
A general list of the most common methods of protection is given in Art. 12 of the Civil Code of the Russian Federation.
In accordance with the classification proposed by V.P. Gribanov, collection of monetary debt belongs to the group of methods of protecting civil rights, which are directly aimed at protecting the property sphere of the authorized person. While compensation for damages refers to a group of methods for protecting civil rights, which have their specific purpose not only protection of the property sphere of the injured party, but also a corresponding material impact on the offender.
The claim for compensation for losses is often not differentiated from the claim for repayment of debt, since the subject of the claim is not replaced: in both cases it is money. Meanwhile, claims for debt collection and losses have different grounds. Collecting money owed and claiming damages are different ways to protect civil rights. The requirement to collect a monetary debt as a measure of protection of civil rights is always based on the rules regulating the procedure for the proper fulfillment of an obligation; the rules on bringing to civil liability are not applicable to such requirements. The legal basis for demanding the fulfillment of the principal monetary debt, including its collection in court, is Art. 309 of the Civil Code of the Russian Federation in conjunction with the rules established by Art. 317 of the Civil Code of the Russian Federation in relation to monetary obligations.
It seems obvious to the author that the line between duty and responsibility emerges quite clearly, which can be traced in legislation, and most importantly, in the practice of developed countries. The Anglo-American legal system provides an independent remedy - a claim in debt; debt action, different from a claim for damages. A claim for payment of a debt is a remedy for such obligations to pay a certain sum of money, which at common law are enforceable in kind. Courts of common law in such cases force the debtor to do what he has undertaken to do, namely to pay the agreed amount of money.
The legal literature rightly notes that the right of the party, for example, who supplied goods, provided services, performed work, provided a loan, paid an insurance premium (in the event of an insured event), to demand payment of money is indisputable and cannot be questioned .
This in turn presupposes a different subject of proof. Compensation for damages as liability occurs only if the creditor proves a violation of his right, the existence and extent of losses and the causal connection between the violation and the resulting losses. In addition, when considering a case for compensation of losses, taking into account subjective circumstances relating to the creditor himself, the court may reduce the amount of liability of the debtor or apply the principle of mixed guilt (clause 1 of Article 404, clauses 2, 3 of Article 1083 of the Civil Code of the Russian Federation). On the contrary, in order to force the fulfillment of the main obligation, it is sufficient to prove only the fact of non-fulfillment (improper fulfillment) by the debtor of his obligation and the fulfillment by the creditor of his own obligation.
Thus, we can conclude that in the practice of Russian civil circulation, the main way to protect violated civil rights to funds in the event of failure to fulfill a monetary obligation is demand for collection of a monetary debt. It is necessary to supplement Art. 12 of the Civil Code of the Russian Federation in such a way to protect civil rights as collecting a monetary debt.
Certain features of the legal regulation of monetary debt and losses are revealed in bankruptcy legal relations.
A drawback of the previously effective version of the Federal Law “On Insolvency (Bankruptcy)” dated September 27, 2002 No. 127-FZ (hereinafter referred to as the Bankruptcy Law) was the failure to include claims for compensation for real harm in the monetary claims taken into account when initiating a bankruptcy case. Meanwhile, the possibility of creditors participating with a claim for compensation for actual losses is the only way for this category of creditors to protect their subjective rights, which we noted earlier.
The adopted Federal Law of December 30, 2008 No. 296-FZ “On Amendments to the Federal Law “On Insolvency (Bankruptcy)”” changed the current situation, solving this problem. In the current version, the Bankruptcy Law equalizes creditors for the recovery of real damage and creditors for the recovery of monetary debt. This follows from the text of paragraph. 4 p. 2 tbsp. 4 of the Bankruptcy Law: if previously this paragraph provided that when determining the signs of bankruptcy, any monetary obligation to compensate for losses was not subject to consideration, then in the current version of the Law we are talking only about a monetary obligation to compensate for lost profits. The change in position is confirmed by paragraph. 2 p. 3 art. 12 of the Bankruptcy Law, which establishes that for the purposes of determining the number of votes at a meeting of creditors, losses in the form of lost profits are not taken into account (the previous version mentioned losses subject to compensation for failure to fulfill an obligation). The author believes that creditors seeking to recover lost profits should not use such rights also in order to avoid the possibility of abuse.
Currently, the problem has arisen of establishing the legal status of creditors whose demands are not to pay a sum of money, but to perform work, provide a service, or transfer property in kind.
Under German law, all property claims against the debtor are subject to conversion into monetary equivalents in amounts assessed at the time of initiation of insolvency proceedings (§ 45 of the Insolvency Regulations). German law (§ 45 of the Insolvency Regulations) provides that claims that are not expressed in monetary units or the monetary value of which is uncertain are presented in amounts that can be assessed at the time of commencement of insolvency proceedings.
Until now, Russian civil legislation and special provisions of paragraph 5 of Art. 4 of the Bankruptcy Act 2002 prevented a creditor of a non-monetary obligation from participating in a bankruptcy case and seeking satisfaction of claims in bankruptcy proceedings. At the same time, Russian legislation did not establish a mechanism for transferring property claims against the debtor into monetary ones from the moment the debtor was declared bankrupt, which was an omission of the legislator.
The author’s position on this issue is that since money in civil circulation is a universal equivalent, insofar as the transformation of any property claim into a monetary one is permissible, and in some cases even necessary, as the experience of the German legislator shows, since it does not allow in any other way to protect the violated subjective rights of creditors of an insolvent or insolvent debtor who has not fulfilled or improperly fulfilled his obligations.
Federal Law No. 210-FZ of July 12, 2011 “On Amendments to the Federal Law “On Insolvency (Bankruptcy)” and Articles 17 and 223 of the Arbitration Procedural Code of the Russian Federation in terms of establishing the features of bankruptcy of developers who raised funds from construction participants" amended the situation in this area. The law provided for maintaining a register of creditors' claims and a register of claims for the transfer of residential premises. Changes have been made to the insolvency legislation for creditors whose claims were not initially monetary, establishing the features of the bankruptcy of developers who raised funds from construction participants. The bankruptcy law in this area allows for the possibility of converting property claims into monetary ones, with the exception of damages due to lost profits. Creditors with transformed monetary claims were given the opportunity to participate in insolvency (bankruptcy) procedures as bankruptcy creditors.
It should be noted that the legislation needs to establish a clear procedure for considering the conversion claims of non-monetary creditors within the framework of proceedings to establish the amount of claims (Articles 71, 100 of the Bankruptcy Law). It is necessary to extend the mechanism for converting non-monetary obligations into monetary ones, provided for in the special provisions of the Bankruptcy Law in relation to creditors of developers who raised funds from construction participants, to all cases of bankruptcy of the debtor. Attention should be paid to improving the legal protection of creditors for non-monetary obligations, eliminating from the legislation contradictions that allow such creditors to be placed in an unequal position in relation to other bankruptcy creditors.
Non-monetary claims converted into monetary ones must be subject to the legal regime established by bankruptcy law for monetary debt and damages, depending on whether the converted claims are monetary debt or losses. This differentiation should be based on the factor of additional burden.
Characteristic signs of monetary debt and losses, which make it possible to distinguish them from each other, appear upon termination of the contract.
As a general rule, the parties do not have the right to demand the return of what they performed under the obligation before the change or termination of the contract (clause 4 of Article 453 of the Civil Code of the Russian Federation). However, in relation to situations where consideration was not provided by the party who received the performance (for example, the prepaid service was not provided) or it provided the other party with unequal performance, the literal interpretation of the rule in paragraph 4 of Art. 453 of the Civil Code of the Russian Federation is in conflict with the general principles of civil law of equivalence and fairness. The noted provisions are reflected in the Concept for the development of civil legislation of the Russian Federation, approved by the decision of the Council under the President of the Russian Federation for the codification and improvement of civil legislation dated October 7, 2009 (clause 9.2 of section V “Legislation on obligations (general provisions)”).
The legislation of foreign countries provides two options for resolving the issue of the legal nature of the claim for the return of what was provided after the termination of the contract: either the claim is in the nature of a special method of protecting the rights of the creditor within the framework of contract law, regulated by special rules for the return of a terminated contract, or it is a type of claim for the return of an unfounded enrichment. Therefore, it seems appropriate to establish in Russian civil legislation in relation to restitution in case of violation of the terms of contracts a special legal regulation that would fully take into account the specifics of these legal relations (such an attempt was made in the German Civil Code (GGU), where a special procedure for restitution is defined in Article 346 for terminated transactions). The current legal regulation by the rules on unjust enrichment cannot, as noted in the literature, be applied to restitution for a terminated transaction directly, without many reservations.
At the same time, the general norm of paragraph 4 of Art. 453 of the Civil Code of the Russian Federation is dispositive and can be canceled or amended by law or agreement of the parties. For this reason, judicial practice provides the opportunity for a party, when terminating a contract, to claim what was previously performed if the other party has unjustly enriched itself.
Norms of the Civil Code of the Russian Federation (clause 2 of Article 475, clause 3 of Article 495, clause 3 of Article 498, clause 5 of Article 565, etc.) and some laws (for example, Article 9 of the Federal Law of December 30, 2004 No. 214-FZ “On participation in shared construction of apartment buildings and other real estate and on amendments to certain legislative acts of the Russian Federation”) provide for the right of a party to demand the return of what it has performed under the contract until it is changed or terminated.
In case of unjust enrichment, the practical difficulty is the reimbursement of the monetary equivalent of a non-monetary debt (goods supplied, work performed, services rendered). The transformation of a non-monetary obligation into a monetary one is stipulated by Art. 1105 of the Civil Code of the Russian Federation in case of impossibility of returning what was performed in kind and by agreement of the parties.
From the moment when the creditor refused to accept the goods, work performed, services rendered and demanded the return of the advance payment, the debtor has a monetary obligation to return what was received, which is not civil liability in general and compensation for losses in particular.
Let us present the significant differences between losses and the return of what was executed in the form of a monetary debt upon termination of the contract.
Firstly, the return of what was performed when changing and terminating the contract is of an equivalent nature, which significantly distinguishes it from various types of liability, in particular losses, the main criterion of which is the “non-equivalent nature of the hardships suffered” by the person to whom liability measures are applied.
Secondly, if we recognize the nature of losses behind the return of what was paid, such a return could be carried out in certain cases only if the recipient of the funds is at fault. The construction of losses is extremely unfavorable for the creditor. It makes the right to collect this amount dependent on the conditions and grounds for bringing to civil liability (Article 401 of the Civil Code of the Russian Federation), and also creates the danger of applying other rules aimed at limiting liability (for example, Article 404 of the Civil Code of the Russian Federation), in while the injustice of applying these restrictions to a claim of a restitutionary nature is obvious. Meanwhile, the recipient of funds who has not provided reciprocity under a remunerative agreement can under no circumstances be exempt from their return, as is reasonably indicated in the literature.
Thirdly, by its legal nature, the return of what was provided is an independent way of protecting rights in the form of restoring the violated position of the parties. This is a measure of protection and not a measure of liability, unlike damages, since it does not contain additional encumbrances.
Fourthly, the claim for damages must be in addition to the claim for the return of what was provided in the form of a monetary debt. For example, the buyer, along with the right to demand the return of the prepayment, has the right to demand compensation for losses incurred in connection with the seller’s failure to fulfill an obligation (for example, in the amount of interest paid to the bank under the loan agreement).
Thus, in Russian civil law it is advisable to consolidate a special legal regulation of restitution upon termination of a contract, providing for “restitutionary elements” in relation to termination of a contract, securing detailed regulation of monetary debt and losses.
The legal regulation of issues of monetary debt and losses in case of invalid transactions deserves attention.
The general consequence of the invalidity of a transaction is bilateral restitution (clause 2 of Article 167 of the Civil Code of the Russian Federation), which means the return by the parties to an invalid transaction to each other of the property received by them under such a transaction or compensation for the value of the property received if it is impossible to return it in kind. In some cases (clause 1 of article 171, clause 1 of article 172, clause 1 of article 175, clause 1 of article 176, clause 3 of article 177, clause 2
Art. 178, paragraph 2 of Art. 179 of the Civil Code of the Russian Federation), the legislator stipulates an additional consequence of the invalidity of the transaction in the form of compensation for actual damage suffered by one of the parties.
The author believes that bilateral restitution should not be classified as a measure of liability, but rather as a broader concept of measures to protect civil rights, since the property sphere of the person transferring property to another person does not tolerate additional encumbrances. The liability of participants in an invalid transaction can only be discussed when other consequences of declaring a transaction invalid are applied: unilateral restitution and recovery of damages.
Some scientists considered liability in the form of compensation for damages in case of invalidity of a contractual transaction (O. S. Ioffe), or tortious (N.V. Rabinovich), or simply liability for committing an unlawful action, which occurs when the behavior of the responsible person is faulty and damage is caused by this action (F.S. Heifetz). The author believes that the third position is more correct - it consolidates a broad understanding of this legal category, since liability in the form of compensation for damages in the event of invalidity of a transaction cannot be reduced to contractual or tortious.
The disadvantages of restitution of monetary debt as a way of protecting the buyer's rights are that the restitution claim allows the buyer to demand from the aliener the return of the price paid, but not compensation for losses in the event of the invalidity of the transaction. The latter can be significant: if the acquirer planned to use the purchased item (for example, a building) in the production process, purchased expensive equipment that is difficult to sell without additional losses, etc.
The author proposes, from a doctrinal point of view, to derive losses for invalid transactions as a separate method of protecting rights, which has distinctive features in its legal nature from the restitution of a monetary debt for an invalid transaction. The Civil Code of the Russian Federation does not contain general rules on losses in the event of invalid transactions, which is a serious drawback and was noted in the literature of the Soviet period.
It is difficult to find any meaning in limiting the amount of damages in case of invalidity of a transaction by real damage, and, based on the general principles of civil law, it is necessary to change civil legislation so that it is possible to recover from the guilty party also lost profits, which corresponds to the principle of compensation for damages in in full.
This proposal was adopted in separate rules devoted to the invalidity of transactions in the draft Civil Code of the Russian Federation (clause 4 of Article 178 of the Civil Code of the Russian Federation, clause 4 of Article 179 of the Civil Code of the Russian Federation).
Monetary debt and losses in case of invalidity of a transaction have a number of characteristic features that distinguish them from each other.
Firstly, compensation for losses in the form of actual damage is carried out in special cases expressly provided for in the law (clause 1 of article 171, clause 1 of article 172, clause 1 of article 175, clause 1 of article 176, clause 3 Article 177, paragraph 2 Article 178, paragraph 2 Article 179 of the Civil Code of the Russian Federation). At the same time, collection of monetary debt is carried out on the basis of the general, general norm provided for in Art. 167 Civil Code of the Russian Federation.
Secondly, compensation for actual damage is a measure of civil liability and consists of imposing an additional burden on the party to the invalid transaction. The return of what was executed in case of invalidity of the transaction is of an equivalent nature.
Thirdly, having analyzed the norms of domestic civil law on invalid transactions, we will see that the risk of incurring losses lies with the guilty party, while when collecting a monetary debt, guilt is not taken into account. Thus, when a transaction concluded with a citizen declared incompetent is declared invalid, the legally capable party, in addition to returning what was received under the transaction, must also compensate its counterparty for the actual damage suffered by it, if it knew or should have known about his incapacity (clause 1 of Article 171 GK). Similar additional property consequences in the form of compensation for actual damage are provided for in cases where transactions made by minors under the age of 14 are declared invalid; minors over the age of 14
up to 18 years old; a citizen with limited legal capacity; a citizen who is unable to understand the meaning of his actions (Articles 172, 175-177 of the Civil Code of the Russian Federation). In transactions made under the influence of a mistake, the risk of compensating the counterparty for losses in the form of actual damage lies with the mistaken party. However, if the erring party proves that the error arose through the fault of the other party, such risk is transferred to the latter (paragraph 2, paragraph 2, article 178 of the Civil Code of the Russian Federation).
Fourthly, the claim for damages must be in addition to the claim for the return of what was provided in the form of a monetary debt.
Thus, the current legislation and doctrine need a detailed analysis and consolidation of the category of monetary debt and losses in the event of invalid transactions. Monetary debt and losses in case of invalid transactions have a number of distinctive characteristics and are not subject to confusion in practice. The author believes that when making changes to civil legislation, it is necessary to raise the question of supplementing clause 2 of Art. 167 of the Civil Code of the Russian Federation, part two as follows: “In addition, the guilty party is obliged to compensate the other party for losses.”
The analysis of the application of civil law categories of monetary debt and damages for unjust enrichment is also worthy of attention.
Within the meaning of paragraph 1 of Art. 1105 of the Civil Code of the Russian Federation, the amount of compensation is determined by the actual value of the property at the time of its acquisition in the case of immediate (after awareness of the fact of unjust enrichment) compensation for the value of unjustly acquired property. If the acquirer, immediately after learning of the unjustification of his enrichment, does not compensate its value to the victim, he takes on the risk of a subsequent change in the value of the property, since he will be obliged to compensate the victim for the losses that he incurs in connection with the change in the price of the property. Moreover, the legislation talks about “subsequent changes in value.” The dissertation author believes that we are talking about any changes that occurred after the acquisition of property, including those caused by inflation.
The losses referred to in paragraph 1 of Art. 1105, as well as the liability provided for in paragraph 2 of Art. 1104 of the Civil Code of the Russian Federation, directly by unjust enrichment within the meaning of paragraph 1 of Art. 1102 (“unjustifiably acquired or saved property”) do not apply. In our opinion, we should agree that this is a kind of liability for the fact that the acquirer did not return what he received immediately after learning about the unjustification of his enrichment. But this responsibility is regulated by special rules of Chapter 60 of the Civil Code of the Russian Federation “Obligations due to unjust enrichment.”
From the meaning of paragraph 1 of Art. 1105 of the Civil Code of the Russian Federation it follows that it is necessary to prove, in addition to the fact of a change in the value of property, the main elements of losses: illegality, causation, harm, etc. It is also necessary to prove special conditions of liability - the difference between the value of the property at the time of foreclosure and the actual value at the time of acquisition of the property, i.e. subsequent change in the value of unjustly acquired property, if the acquirer did not reimburse its value immediately after learning of the unjustified enrichment.
In the absence of unjustifiably acquired property, it is impossible to recover losses caused by an increase in price and subsequent changes in the value of unjustifiably acquired property.
Taking into account inflation, the amount of damages subject to compensation largely depends on what prices are used as the basis for their calculation. The question arises, at what point in case of unjust enrichment is the monetary equivalent of a non-monetary debt subject to collection (Article 1105 of the Civil Code of the Russian Federation) plus losses from inflation (increase in price from inflation)? At the time of termination of the obligation, at the time of filing a claim for the return of the actual value of property and losses, or at the time of the court’s decision?
In order to additionally protect the rights of the injured party, when determining the moment of compensation for losses, courts should proceed from the moment at which the cost of the specified goods, works or services was the highest. According to paragraph 3 of Art. 393 of the Civil Code of the Russian Federation, based on the circumstances, the court may satisfy the claim for damages, taking into account the prices existing on the day the decision was made. Therefore, the general rule when collecting losses caused by a subsequent change in the value of property on the basis of clause 1 of Art. 1105 of the Civil Code of the Russian Federation should become compensation for losses at the time of the court decision, except for cases where in some other period before the decision the cost of the relevant goods, services, etc. was higher.
In judicial practice, questions also arise about the assignment of claims for monetary debt and losses.
Let us consider the question of the acceptability of the very principle of transferring the right to implement measures of property liability and the admissibility of transferring the right to demand property sanctions in isolation from the main obligation.
Until recently, judicial and arbitration practice did not recognize the possibility of assigning the right to claim contractual losses to another person, without assigning the principal debt, considering such a transaction to be void by virtue of Art. 168 Civil Code of the Russian Federation. However, this approach seems insufficiently justified, if only because the legislation does not contain mandatory provisions that would prohibit the transfer of these rights without a change in the persons in the main obligation.
Of course, one cannot help but see the problem that the transfer of a separate power to collect property sanctions can leave the main legal relationship without a protective mechanism: why should the debtor fulfill the terms of the agreement if he does not have to bear any adverse consequences for its violation to the creditor. Hence, apparently, comes the desire to affirm the indivisibility of the corresponding legal structure, to establish the subordination of one part of it to another.
However, the principle of freedom of disposal by the creditor of his right to claim compensation for losses must be implemented here. If this assignment is beneficial and acceptable for him, then all business risks should be borne by him without any reservations. The need to assign the right to claim damages may also be associated with the exercise of the right to restore the violated rights of the creditor in the shortest possible time. The purpose of applying civil liability measures is, first of all, to restore the property status of the victim. The victim, as a rule, does not care who exactly compensates him for the damage. For the debtor, the figure of the creditor is also often not significant, since it does not matter to him in whose favor his property will be alienated.
The admissibility of the assignment of a claim for damages was noted in one of the decisions of the Presidium of the Supreme Arbitration Court of the Russian Federation and was recently reaffirmed in the Review of Arbitration Practice dated October 30, 2007, which states that there is no reason to treat a claim for damages as an obligation in which the identity of the creditor is essential for debtor and, therefore, his assignment is possible.
The assignment of the right of claim for compensation for losses, both independently and in the case of transfer along with a monetary debt, must be specifically stipulated in the agreement on the assignment of the right of claim, since the right of claim for compensation for losses has an independent property value.
Questions also arise caused by the purely specific features of such a measure of civil liability as damages, the need to prove them, which can also be resolved if there is the will of the parties.
A transaction for the assignment of the right to claim compensation for damages should be considered concluded only when there is the ability to determine the right to receive a specific amount of money in compensation for losses, those. the right to claim damages must be definable.
Thus, losses determined by agreement of the parties or a court decision have an independent property value and therefore may be the subject of assignment of the right of claim and transfer of the obligation to pay them together with the monetary debt or separately from it, except for cases provided for by current legislation.
It is also interesting to consider the issue of calculating interest under Art. 395 for the amount of losses and monetary debt.
In the matter of calculating interest on the amount of losses, judicial practice has so far seen differences between contractual and non-contractual losses, drawing a line between them based on the reasons for their occurrence. Annual interest for failure to fulfill monetary obligations under Art. 395 of the Civil Code of the Russian Federation were accrued for non-contractual losses and were not subject to recovery in the event of non-payment of losses caused by a violation of the contract.
In accordance with paragraph 23 of Resolution No. 13/14, when courts resolve disputes related to the application of liability for causing harm, it is necessary to take into account that, on the basis of Art. 1082 of the Code, when satisfying a claim for compensation for harm, the court has the right to oblige the person responsible for causing the harm to compensate for the harm in kind (provide a thing of the same kind and quality, correct the damaged thing, etc.) or compensate for the losses caused (clause 2 of Art. 15 of the Code). In the event that the court imposes on a party the obligation to compensate for damage in money, the party causing the harm will have a monetary obligation to pay the amounts determined by the court. From the moment when the court decision came into force, unless otherwise specified in the law, on the amount determined in the decision if the debtor is late in paying it, the creditor has the right to charge interest on the basis of clause 1 of Art. 395 of the Code. Interest is also accrued in cases where the obligation to pay monetary compensation is established by agreement of the parties.
According to A.G. Karapetov, the law of many countries around the world recognizes the possibility of calculating annual interest on the amount of losses. This possibility is familiar to English case law, Dutch law (Article 207 of the Civil Code of the Netherlands), French legislation (Article 1153-1 of the Civil Code of France), etc. The grounds for recognizing this possibility are: (1) the monetary nature of the amount of damages awarded by the court; (2) the need to compensate the creditor for losses from the inability to use the funds due to him; (3) the desire to deprive the debtor of the corresponding income associated with the illegal use of other people's funds; (4) the incentive function of calculating interest, which organically complements the procedural tools for implementing a court decision.
Currently, Russian judicial practice on this issue has changed towards the possibility of charging interest on the amount of contractual losses.
The courts, when deciding on the accrual of interest under Art. 395 of the Civil Code of the Russian Federation for the amount of contractual losses, thereby restoring in full violated rights of the injured party, since there are two offenses. The first offense, which served as part of the application of civil liability, serves as the basis for the emergence of the right to compensation for damages. The second is a violation of the right to timely compensation for losses, which also entails liability in the form of interest accrual under Art. 395 of the Civil Code of the Russian Federation for the amount of contractual losses. And since the subjective civil right of the victim to compensation for damages was violated improperly, i.e. untimely compensation, this is a civil offense, which, according to the logic of civil law, entails the application of liability to the violator.
Thus, the principle of the inadmissibility of applying two measures of liability for one offense cannot be traced in this case, since the obligation to compensate for losses arises as a result of the debtor committing one offense, and the obligation to pay interest under Art. 395 of the Civil Code for the amount of these losses - due to something else.
We should also not forget that part of the legal system of the Russian Federation, by virtue of Art. 15 (part 4) of the Constitution of the Russian Federation is the Vienna Convention on Contracts for the International Sale of Goods (hereinafter referred to as the Vienna Convention), the provisions of which apply to the relations constituting its subject matter, preferentially before the norms of Russian national legislation (Article 1 of the Vienna Convention, Art. 7 of the Civil Code of the Russian Federation). In accordance with Art. 78 of the Vienna Convention, if a party is in default in payment of the price or other amount, the other party is entitled to interest on the overdue amount without prejudice to any claim for damages that may be recovered under Art. 74 Vienna Convention. The literal text of the Vienna Convention cannot give rise to any doubt: the requirements for the recovery of interest and compensation for damages are not mutually exclusive, they can be applied jointly.
Lunts L. A. Money and monetary obligations in civil law. M., 2004. P. 156. Regulations on insolvency (Law on regulating the procedure for insolvency proceedings) of October 5, 1994 // German law. Part Ill / Ed. R.I. Karimullina. M.: Statute, 1999 (hereinafter referred to as the Insolvency Regulations). Kheifets F. S. Invalidity of transactions under Russian civil law. M.: Yurayt, 1999. P. 139. Principles of international commercial agreements. Prepared by the International Institute for the Unification of Private Law (Rome, May 1994) // Principles of international commercial contracts / Transl. from English A. S. Komarova. M.: MCFR, 1996.
Topic 2.1.Moral foundations of service in internal affairs bodies. Professional ethics of an internal affairs officer. The essence and content of the civil duty of an employee of internal affairs bodies, which consists in serving the Fatherland and protecting noble social ideals: freedom, democracy, the triumph of law and order. The highest moral meaning of the official activity of an employee of internal affairs bodies to protect a person, his life and health, honor and personal dignity, inalienable rights and freedoms. The meaning and content of the fundamental moral values of service in the internal affairs bodies: citizenship, statehood, patriotism, as the basis of the morale of a police officer. Morality as a way of regulating the consciousness and behavior of people. The golden rule of morality. Basic functions of morality. The concept of moral norms and moral values. The concept of professional deontology. Sources of standards of professional morality for police officers. Good and evil in relation to the activities of internal affairs bodies. Justice as a key requirement for ensuring law and order. Professional duty and its strict fulfillment are the essence and content of an employee’s official activity. The concept of moral responsibility, its varieties. Moral responsibility of police officers. Conscience and forms of its manifestation in the activities of a police officer. Professional honor and personal dignity – their relationship and differences. The concepts of “honor of the team”, “man of honor”, “honor of the uniform”. Unity of morality and law in the life of society. The state as a mechanism for limiting violence in society. The fundamental difference between legal coercion and violence. Moral and legal foundations of legal coercion. The moral meaning of legal restrictions on the use of physical force, special means and firearms by police officers.Topic 2.2 . History of internal affairs bodies. Symbols, traditions and rituals of internal affairs bodies. The first state institutions of the Russian state performing police functions. Creation of the Russian police by Peter I. The police of the Russian Empire in the 18th–20th centuries in the law enforcement system of the state.
Police of the Provisional Government after the February Revolution. Workers' and Peasants' Militia of the First Years of Soviet Power: Formation and Development. Internal Affairs bodies in the pre-war period. The role and tasks of the police in the Great Patriotic War of 1941–1945. Soviet police of the post-war period in the history of the USSR.
Russian police in the post-Soviet period. Reforming the internal affairs bodies of the Russian Federation and creating a modern Russian police.
Heroic pages in the history of the internal affairs bodies: courage and loyalty to official duty of employees at all stages of the history of the Russian state - an example for the new generation of Russian police officers.
Banner and flag of the Ministry of Internal Affairs of the Russian Federation: symbols of honor and dignity, valor and glory of the internal affairs bodies.
The oath of an employee of the internal affairs bodies of the Russian Federation: meaning, meaning and ritual of acceptance.
The meaning and meaning of service traditions of internal affairs bodies. Tribute to the memory of employees who died defending the Fatherland and performing their official duty.
Service rituals. Days of military glory of Russia and memorable dates in the history of internal affairs bodies.
The appearance and uniform of an internal affairs officer, the procedure for wearing it. Relation to official identification. Special ranks and insignia of employees. State and departmental awards.
Topic 2.3. Service discipline in internal affairs bodies. The concept and essence of service discipline, methods of ensuring it. Responsibilities of police officers to observe and maintain official discipline. The concept and content of legality as one of the principles of the official activity of a police officer.
Unity of command in internal affairs bodies. Mandatory execution of orders and instructions of the manager (supervisor). The procedure for issuing an order.
Legal ways to strengthen official discipline. Incentive measures and the procedure for their application.
Legal liability of a police officer for offenses. The fact that the person guilty of an offense belongs to the internal affairs bodies as an aggravating circumstance. Types of legal liability of police officers.
Violation of official discipline (disciplinary offense) and disciplinary liability of police officers. Disciplinary sanctions and the procedure for their imposition and execution. Procedure for appealing disciplinary sanctions.
Topic 2.4 . Anti-corruption standard of conduct for police officers. The concept and causes of corruption. Types and elements of corruption offenses. Corrupt dangerous behavior of an employee that discredits internal affairs bodies.
State anti-corruption policy. Anti-corruption in the internal affairs bodies of the Russian Federation. Measures to prevent corruption.
Requirements for anti-corruption behavior of a police officer. Restrictions and prohibitions imposed on an employee in connection with service in internal affairs bodies.
The obligation of police officers to provide information on income, expenses, property and property-related liabilities. The obligation of police officers to notify of requests for the purpose of inducing the commission of corruption offenses.
Conflict of interest and its prevention. Attitude of a police officer towards undue benefit. The attitude of a police officer towards gifts and other signs of attention.
The essence of professional and moral deformation of a police officer, its causes, forms of manifestation. Problems of preventing and overcoming professional and moral deformation of police officers. The role of the social environment and the negative authority of informal leaders in the development and manifestation of professional deformation. Moral and business qualities of an employee of internal affairs bodies that help prevent professional deformation.
Topic 2.5. Official etiquette of an internal affairs officer.Etiquette as a set of rules of behavior. Specifics of official etiquette in internal affairs bodies. Etiquette of relations between superior and subordinate, senior and junior. Principles of office etiquette. Politeness as an etiquette norm. Etiquette requirements for the appearance and uniform of police officers. Police officers greeting each other is a mutual show of respect and courtesy.
The culture of oral and written speech of a police officer. Etiquette as a means of strengthening official discipline. Compliance with official etiquette is a necessary condition for team unity and the creation of a healthy moral and psychological atmosphere in it.
Basic norms of etiquette in the behavior of a police officer. Etiquette during official meetings. Etiquette standards at drill reviews, during briefing and separation of employees entering the service. Off-duty communication between police officers.
Etiquette standards of conduct for police officers when dealing with citizens. Making a visitor feel good in a business environment is the basis for effective communication. The inadmissibility of indifference, rudeness, arrogance, threatening actions or the threat of using physical violence, special means, firearms, unfounded moralizing, unfair accusations, reproaches, as well as other actions of a police officer that offend the dignity of a citizen.
Basic requirements for a police officer when he is on the street and in public transport. Peculiarities of employee behavior when on trains, airplanes and other long-distance vehicles.
Recommended reading
Regulatory acts:
Constitution of the Russian Federation (adopted by popular vote on December 12, 1993) (as amended on December 30, 2008) // Russian newspaper. 1993. December 25.
Federal Law of February 7, 2011 No. 3-FZ (as amended on April 5, 2013) “On the Police” // SZ RF. 2011. No. 7. Art. 900.
Federal Law of November 30, 2011 No. 342-FZ (as amended on May 7, 2013) “On service in the internal affairs bodies of the Russian Federation and amendments to certain legislative acts of the Russian Federation” // SZ RF. 2011. No. 30 (part 1). Art. 4595.
Federal Law of December 28, 2010 No. 390-FZ “On Security” // SZ RF. 2011. No. 1. Art. 2.
Decree of the President of the Russian Federation of November 22, 2012 No. 1377 “On the Disciplinary Charter of the Internal Affairs Bodies of the Russian Federation” // SPS “Consultant-Plus”.
Order of the Ministry of Internal Affairs of Russia dated May 6, 2013 No. 241 “On some issues of the application of incentive measures and the imposition of disciplinary sanctions in the internal affairs bodies of the Russian Federation” // SPS “Consultant-Plus”.
Model code of ethics and official conduct of civil servants of the Russian Federation and municipal employees (approved by the decision of the presidium of the Council under the President of the Russian Federation on combating corruption dated December 23, 2010 (protocol No. 21)) // Official documents in education. 2011. No. 36 (December).
Honor and duty of an employee of internal affairs bodies: Textbook // Ed. prof. V.Ya. Kikotya. – M.: TsOKR Ministry of Internal Affairs of Russia, 2009.
Fundamentals of professional ethics and office etiquette: A course of lectures. – M.: DGSK Ministry of Internal Affairs of Russia, 2012.
Grishin A.A., Pylev S.S., Rumyantsev N.V., Shcheglov A.V. Official etiquette of employees of internal affairs bodies: Textbook // Ed. S.S. Pyleva. – M., 2009.
SECTION 2. PSYCHOLOGICAL PREPARATION. PSYCHOLOGICAL PRACTICUM
Topic 2.6.
Psychological characteristics of various types of activities of internal affairs bodies.Professional and psychological requirements for the personality of an employee of internal affairs bodies. General psychological characteristics of law enforcement activities. Psychological analysis of operational investigative activities, activities related to the inquiry and investigation of crimes, and the protection of public order. Professionally important qualities of an internal affairs officer in areas of operational activity.
The psychological potential of an employee of internal affairs bodies, ensuring the effectiveness of his activities and the implementation of professional functions. The main structural components of psychological potential: moral and psychological qualities, cognitive and intellectual qualities, emotional and volitional qualities, communicative qualities.
Professional deformation of an employee of internal affairs bodies, its prevention and overcoming. The main manifestations of professional deformation and corrupt behavior.
Topic 2.7. Psychology of professional communication of an employee of internal affairs bodies. Features of preventing and resolving conflicts in professional activities. The concept of communication in psychology. Psychological features of professional communication of an employee of internal affairs bodies, normative regulation of communication. Stages of professional communication, taking into account the use of specific communication techniques.
The main methods of constructing a psychological portrait in the process of professional communication. Analysis of the structure of professional communication of an employee of internal affairs bodies: psychological “reading” of behavioral characteristics, external appearance, drawing up a primary psychological portrait of the interacting person; searching for prerequisites for effective communication and creating favorable conditions for interpersonal contact; interaction in the process of professional communication, methods of influencing other persons in order to solve operational and service problems; assessing the results of a specific act of communication and planning further contacts with certain individuals (offenders, citizens, law enforcement officers, managers).
Concept, essence and causes of office conflicts. Dynamics of conflict. Basic models of personality behavior in conflict. Conflict between the individual and the group. Features of interethnic conflicts.
Possibilities for conflict resolution. Ways and methods of resolving interpersonal conflicts: avoidance; smoothing; compulsion; compromise; solution to the problem. Algorithm of police actions to resolve conflict.
Topic 2.8. Psychological characteristics of extreme situations in the activities of internal affairs bodies.Techniques of mental self-regulation of a police officer. General characteristics of extreme situations. Extraordinary circumstances. Emergencies. Emergency incidents of a criminal nature. Their impact on the human psyche.
Psychological characteristics of deviant (deviant) behavior of an employee of internal affairs bodies. Analysis of psychological dependencies.
Causes and prevention of suicidal behavior among law enforcement officers.
Personal resistance to negative environmental influences. The basis of psychological stability of an internal affairs officer: analysis of specific situations.
Methods of self-regulation of emotional state: autogenic training, relaxation of facial muscles, breathing exercises, attention control, imagination techniques.
Topic 2.9. Psychological workshop. Development of professionally important qualities such as: concentration, stability, distribution, switching of attention; recognition of faces (objects) from a verbal portrait; recognition of faces (objects) in conditions of interference; the ability to foresee the consequences of people's behavior; the ability to understand the actions and actions of people based on non-verbal reactions (facial expressions, postures, gestures, gait, etc.); the ability to understand the logic of the development of interaction situations, the meaning of people’s behavior in these situations; memorization skills, visual-figurative thinking; the ability to implement a typology of observed behavior.
Psychology of recognizing lies and perjury. Modeling behavioral patterns of terrorist behavior (playing roles, showing video clips) and training skills in their profiling (detection, recognition).
Form of conducting classes: trainings, including solving situational problems. Role-playing games.
Recommended reading
Main:
Romanov V.V. Legal psychology: textbook/V.V. Romanov. - 4th ed., revised. and additional - M.: Yurayt Publishing House, 2011. – 525 p.
Legal psychology with the basics of general and social psychology: a textbook for university students, cadets and students of educational institutions of the Ministry of Internal Affairs of Russia with a legal profile // (I.B. Lebedev and others); edited by V.Ya. Kikotya, V.Yu. Rybnikov. – M.: UNITY-DANA: Law and Law, 2006. – 463 p.
Kopylova G.K. Psychology: Educational and methodological manual. – Kaliningrad: Kaliningrad Law Institute of the Ministry of Internal Affairs of Russia 2011.
Pryakhina M.V., Ustyuzhanin V.N. Psychology in the activities of police officers (in diagrams with explanations): textbook: additional Ministry of Internal Affairs of the Russian Federation//ed. A.T. Ivanitsky//– M.: DGSK Ministry of Internal Affairs of the Russian Federation, 2011 – 128 p.
BLOCK III. FIRST AID
Topic 3.1.
First aid for injuries, wounds and bleeding. The concept of trauma. Types of damage. Procedure and rules for first aid. Clinical signs of acute emergency conditions and first aid for them. The concept of injuries, their characteristics. Types of bandages and rules for their application. Concept and types of bleeding, their characteristics. Stop bleeding using available means. Features of first aid for penetrating wounds of the chest and abdomen. Rules and methods of transporting victims.
Topic 3.2 . First aid for exposure to high and low temperatures, electric shock, fainting, heat and sunstroke, functional damage. Resuscitation. Burns, frostbite and electrical trauma: classification, signs and first aid for them. Fainting and its causes. Heat and sunstroke. First aid for victims of fainting. Rules for first aid in case of poisoning. First aid for asphyxia and drowning. Closed traumatic brain injury. Rules for first aid for closed craniocerebral injury. Methods of carrying out resuscitation measures to the victim and their sequence. Methods of performing artificial respiration and external cardiac massage.
Topic 3.3.
First aid for road traffic accidents and injuries to the musculoskeletal system.
Signs of bruise, dislocation, sprain, ligament rupture. Long-term squeeze syndrome. First aid for them. Types of bone fractures. Immobilization of the hand, forearm, shoulder, foot, lower leg, thigh. First aid for a broken jaw, collarbone, ribs, spine, pelvic bones, fractured skull bones. The sequence of first aid if the victim has bleeding, fractures, shock, or breathing problems. Methods for removing a victim from a car, hole, ditch, etc. taking into account the injuries he has and the procedure for providing first aid. Rules for transporting a victim from the scene of a traffic accident.
Recommended reading
Main:
Tuzov A.I. Providing first aid to victims by internal affairs officers: Memo. – M.: DGSK Ministry of Internal Affairs of Russia, 2011.
Velichko N.N., Kudrin L.A. First aid. Textbook. Ed. 2nd, per. and additional − M., 2008.
BLOCK IV. OFFICE PROCESS AND SECRET REGIME
We are often told that a person has a civic duty to society. But what it is remains in silence. Those who use this concept seem to understand what the listener is talking about. However, not every person thinks about the essence of the concept of “civic duty.”
In everyday life it is simply not used, but when danger arises, then we’ll figure it out. This is approximately how citizens burdened with an unknown debt reason. There is a certain danger here, a circumstance used in the information war against the state. If you dig deeper, you will find out: understanding your responsibility means increasing the level of safety! Don't agree? Let's figure it out together.
Background
Man is a social being. The classics wrote about this, and everyone feels the indicated circumstance in their destiny. We unite into the state, at lower levels into parties, organizations, communities. And all members of these communities depend on the opinions of their comrades. After all, associations at any level have certain goals and try to realize them.
These aspirations are global in character by the standards of the individual, that is, they affect the foundations of her life. Let's take the state as an example. This education is engaged in organizing the life of society, improvement, caring for the weak, protecting the territory and its citizens. Therefore, it is created for one and all. And from this it is easy to understand that the individual also has his own part of responsibility to the state.
A person must take all possible participation, as determined by law, in the work of this formation or superstructure. To do this, citizens form a position on certain issues. Let's look at an example again.
About security
Civil duty is expressed in the fact that a person is obliged to contribute to the implementation of the functions of the state. The security system is a complex matter, unfortunately, we hear quite a lot about its work from the media, and sometimes we encounter it ourselves.
Government structures protect their citizens from danger. But they cannot know everything. The duty of a civically active individual is to inform the appropriate authority of his observations. You know, sometimes this is called denunciation, although the very fact of interaction with those structures that care about us is not such.
This was well understood earlier in border settlements. And now there are no safe zones throughout the entire territory. This is due to the global development of terrorism. In a village, for example, residents saw a stranger. We watched him, it’s natural, he behaves strangely. Law enforcement officers were informed about this. There are few residents in the villages, everyone is visible. This act is an example of how (civil) duty is realized. In essence, these people were concerned about their own safety, but behaved according to the law, that is, they did not investigate without law enforcement officers.
Civic duty - elections?
In democracies it is common to give people the opportunity to participate in government. This is done through the electoral system. Is participation in a plebiscite a privilege or a civic duty?
Elections are the process of forming legislative bodies. What these people write will determine our lives. You understand that escaping the law is difficult and dangerous. And at the stage of the election campaign, we have the opportunity to directly influence the personal composition of the body that determines the destinies of peoples.
For active individuals, this is a duty. And they are apparently right. In the voting process, people determine the political force that most fully reflects their views. There is a big difference between Social Democrats and Communists. Each party has its own goals and objectives. And they will build the state in different ways. The former loves the market, the latter are supporters of social programs. This will affect the life of a particular citizen. If you want your interests to be taken into account, then you have to vote. But this is only part of the debt, and not the most important one.
Civic duty and civic position
Here's what I suggest you think about. A person's civic duty is to vote. We seem to have already understood this. There is another nuance here. Simply going to the ballot box and casting a ballot is not the essence of duty, but a form of its implementation. To do this meaningfully, you need to understand which force (personality) you give your preference to. That is, it is necessary to understand what the parties and candidates offer.
Unfortunately, we are talking about undeclared values and positions, but even deeper. To be confident in your future, you should have a good understanding of who you are dealing with. An active civic position in this case consists of studying information about party programs, the personalities of their leaders, and the like.
This is a huge and painstaking job. But it is necessary to shape a positive future. Fulfilling your civic duty is, as you can see, not an easy task. Participation in public administration requires time, attention and effort.
Legislative framework
Such a concept as “civic duty” cannot exist, so to speak, on a public basis. Its essence is reflected in the Constitution - the fundamental law of any state. This is one of the principles of democracy.
Thus, the fundamental rights of Russia can be found in the text of the Constitution. For example, Article 59 states that every citizen is obliged to make an appropriate contribution to the defense of the Fatherland (see above about security). and duty, one of the parts of the inhabitants of the country. In addition, citizens, according to the basic law, respect the rights of other people, take care of the weak, and the like.
These are not simple words. They express the fundamental rights of Russia, evasion of which is condemned by society and prosecuted by law.
Financial issues
There is another duty in the Constitution that is not honored in society. Every citizen must participate in the financing of the state. This refers to paying taxes. These funds are used to organize the life of the country, implement projects, create a security system, and so on. That is, the superstructure, called the state, is created for people, but also at their expense.
By the way, we have come to one of the issues implicitly used in the information war. There are forces that want to “liberate” peoples from the state and appropriate its functions. To do this, they do not disdain any means from creating films and books to yellow propaganda.
The duty of a citizen is to identify these dangerous trends and neutralize them. To put it simply, you need to understand for yourself what thoughts the authors put into their content and explain it to others. Otherwise, as they say online, we will all become slaves.
Should I perform my civic duty?
And decide for yourself. The state and society exist only when people need them. Everyone participates in this process to one degree or another. If you don’t want to do this, then you are giving up your right to more active citizens. But you should understand that in this case it is they who decide your fate. Do you agree with this state of affairs?
Introduction
Goals and objectives:
Find out the essence of civic duty, understand what professional ethics are, and study the uniqueness of medical ethics.
Relevance:
In the modern world there are many problems related to professional ethics and civic duty. Since many doctors and scientists often face difficult moral choices.
Debt concept
The role of consciousness of duty in the life of the individual and society.
Debt and self-interest
The origin of the consciousness of duty and its structure.
Moral consciousness includes not only thinking about important issues of human existence, but also the impulse to feel, think and, of course, act in a certain direction, set by the highest moral values and moral norms. This motivating property of morality is especially clearly visible when referring to such a concept of moral consciousness as duty, which, as I. Kant wrote, “is the need to perform an act out of respect for the law.”
Of course, these actions are not committed under compulsion, but out of good will, consciously.
In everyday communication, we often say: the duty of a teacher, the duty of a leader, the duty of an officer and, finally, the duty of a Man. What is usually meant by this? Perhaps, the totality of responsibilities that society places on an individual. But moral behavior is not automatic. Therefore, duty necessarily includes awareness of one’s responsibility to other people, to society, and to oneself. In other words, in duty the relationship of the human person to others (near and far), to society, to Tire is comprehended and experienced through the prism of the highest moral values. Virtue, wrote V. Soloviev, is “a proper attitude towards everything.” And proper attitude is expressed, first of all, in the fact that the individual fulfills his duties in the most optimal way for a given situation, and not purely formally, “for show.” However, not only the individual has responsibilities to society, but society itself also has responsibilities to the individual, especially to orphans, the sick, and the elderly, who cannot protect themselves or satisfy their basic needs.
Consciousness of duty plays a very important role in social life. When feelings are lost or weakened, many social relationships deteriorate for a long time. However, the spiritual life of the individual also becomes impoverished. It is no coincidence that at all times the Man of Duty, a person who knows how to curb selfish aspirations, has enjoyed great respect.
An individual has not only moral needs, not only the desire to do good, but also a number of others (physiological, aesthetic, religious, political, etc.), which also stimulate certain actions. It is good when there are no serious contradictions between moral and other needs. But here the question arises: To what extent are such actions moral? To what extent does a person's kindness manifest itself in them?
For example, the salesperson provided attentive service to the customer. What does this mean? About his high morality? Or that it is simply beneficial for him? Kant called such actions not moral, but legal, i.e. they do not show respect for the moral law, the action is not carried out for the sake of respect for good, but such actions at the same time do not contradict moral norms. In a word, trying to preserve the “purity” of the moral motive, the German philosopher removed a huge number of actions from under moral evaluation. After all, even the love of a mother for a child and the love of a child for a mother is “burdened” by inclination, even by the hope of distant or immediate benefit. Such formalism did not take into account the fact that good deeds and goodness do not exist in their pure form, but are implemented in a wide variety of activities (economic, political, etc.), where other motives cannot but be present (to produce as much product as possible, to earn more money, etc.).
It must be emphasized that moral needs ennoble all other human drives.
What determines the obligation of debt claims? The answer to this question depends on the worldview of the individual. For a believer, this obligation is determined by the will of God himself, but for an unbeliever, the dependence of the individual on society, outside of which he simply cannot exist (not survive, but realize the fullness of being), comes to the fore. But no matter what positions we take, we still cannot admit that the consciousness of duty accumulated the demands that social institutions made on the individual on their own or in the name of God. As culture developed, these requirements turned into those demands that the individual places on himself. A similar process occurs during the formation of the human personality. The baby, of course, has no idea about his responsibilities. But as he grows up, the demands that adults make on him (the requirements are initially the simplest) become the demands that he makes on himself. Thus, the individual develops a consciousness of duty (corresponding feelings, ideas).
The significance of the consciousness of duty in moral life is indirectly confirmed by the fact that some thinkers (the Stoics, Kant, etc.) tried to rethink a lot in morality through the prism of what is proper.
Ministry of Education and Science of the Russian Federation
Yaroslavl State University
them. P.G. Demidova
Department of Civil Law and Procedure
Legal nature and essence of debt forgiveness
Coursework
Scientific supervisor
Candidate of Legal Sciences
Associate Professor of the Department of Civil Law and Procedure
Krasheninnikov Evgeniy Alekseevich
Yaroslavl 2010
Introduction
§ 1. The concept of debt forgiveness
§ 2. Distinguishing debt forgiveness from related legal phenomena
§ 3. Subject of debt forgiveness
§ 4. Form of debt forgiveness
§ 5. Debt forgiveness as a management transaction
§ 6. Debt forgiveness as an abstract transaction
§ 7. The effect of debt forgiveness
Conclusion
List of used literature
INTRODUCTION
In the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation), Chapter 26 is devoted to methods of terminating obligations. Forgiveness of debt, as one of the ways to terminate obligations, is devoted to Art. 415 of the Civil Code of the Russian Federation: “An obligation is terminated by the creditor releasing the debtor from his obligations, if this does not violate the rights of other persons in relation to the creditor’s property.”
Today, there are several controversial theoretical questions that arise among domestic civil society scholars regarding the application of the institution of debt forgiveness in practice.
In this regard, the goal of our work is a detailed study of the problems that exist in the theory of debt forgiveness, namely, we have to identify the most important controversial issues about debt forgiveness, study the main points of view of domestic civil scholars regarding emerging issues, consider the main elements of this institution of law, identify the main trends in the development of this rule of law, as well as draw certain conclusions based on the studied material.
To achieve our goal, we need to complete a number of tasks.
Firstly, we must trace the history of the emergence of the institution of debt forgiveness in modern civil circulation. We will consider this issue from two positions: the development of this institution of law in foreign law and in domestic legislation. When considering debt forgiveness in foreign law, we will turn our attention to the concept of this institution in Roman law and transfer our view to the understanding of this norm in the current sources of Western European civil law (French Civil Code, German Civil Code). Next, we will study the path of development of the institution of debt forgiveness in domestic legislation and draw a general conclusion about what characteristic features this institution had at the time of the adoption of the current Civil Code of the Russian Federation.
Secondly, we will move on to consider one of the controversial issues in the theory of debt forgiveness, namely the question of its legal nature. Many domestic civil experts (E.A. Krasheninnikov, O.Yu. Shilokhvost, A.A. Pavlov, etc.) express their opinion regarding the legal nature of debt forgiveness: some consider it a unilateral transaction, others – an agreement. Therefore, we need to study and analyze the arguments of both sides in favor of our point of view and select from them only those that correspond to reality and do not contradict the legal nature of things. Also in this chapter we will consider questions about the subject, form and effect of debt forgiveness.
Third, we will address the second important issue in the theoretical debate about debt forgiveness. This problem concerns the relationship between debt forgiveness and a gift agreement. In this matter, some scholars consider debt forgiveness as a type of gift agreement, while others do not. Therefore, here too we have to figure it out and draw our own conclusion on this problem. In addition, in this chapter we will consider the relationship between debt forgiveness and other similar transactions.
Finally, we will consider the issue of classifying debt forgiveness as a transaction on the most complex grounds and will try to justify our choice, as well as explain the practical problems arising in connection with this typology.
In conclusion, we will present the main theses and conclusions obtained as a result of the work done.
§ 1. THE CONCEPT OF DEBT FORGIVENESS
Methods for terminating obligations are discussed in Chapter 26 of the Civil Code of the Russian Federation. This chapter deals with debt forgiveness in Article 415: “The obligation is terminated by the creditor releasing the debtor from his obligations, if this does not violate the rights of other persons in relation to the creditor’s property.”
Some civil experts believe that debt forgiveness is a unilateral transaction (clause 2 of Article 154 of the Civil Code of the Russian Federation), that is, it does not require the consent of the other party - the debtor. However, in our opinion, such an interpretation is based on a not entirely correct interpretation of Art. 415 of the Civil Code of the Russian Federation and does not take into account a number of aspects of Russian civil legislation.
Firstly, to justify debt forgiveness as a unilateral transaction, only part of Art. 415 of the Civil Code of the Russian Federation: “the obligation is terminated by the release of the creditor from the debtor.” An interpretation made in this way is unlikely to lead to a reliable result. Following this logic, we would have to interpret the assignment of the claim as a unilateral transaction, since clause 1 of Art. 382 of the Civil Code of the Russian Federation says that a claim belonging to a creditor can be transferred by him to another person, although the contractual nature of the assignment is enshrined in paragraph 1 of Article 1216 of the Civil Code of the Russian Federation and does not raise any doubts about this.
Secondly, relations in civil circulation are built on the principle of equality of their participants (clause 1, article 1, paragraph 1, clause 1, article 2 of the Civil Code of the Russian Federation), and therefore the creditor cannot impose debt forgiveness on the debtor; it presupposes the agreement of the parties and, therefore, the consent of the debtor.
In addition, paragraph 2 of Art. 407 of the Civil Code of the Russian Federation stipulates: “Termination of an obligation at the request of one of the parties is permitted only in cases provided for by law or agreement.” This means that, due to the absence of the law indicating the unilateral nature of debt forgiveness, it can only be accomplished by agreement between the parties, unless otherwise follows from the agreement between them.
Generally, debt forgiveness results in an increase in the person's assets. However, if it were possible to increase a person’s property through a unilateral expression of will, then the gift agreement should also be recognized as a unilateral transaction. But the legislator, based on the idea of the impossibility of imposing property benefits on anyone, establishes donation as a bilateral transaction (clause 1 of Article 572 of the Civil Code of the Russian Federation). Therefore, following this logic, it is necessary to recognize debt forgiveness as an agreement.
However, debt forgiveness does not always result in a financial gain for the person concerned. For example, a customer under a contract, having paid in full the cost of work on the construction of a residential building, will, by his expression of will, release the contractor from the obligation to transfer the result of the work to the customer. But the contractor is unlikely to agree with such an expression of the will of the customer, since paying the price for the work performed does not exhaust all the additional problems that will fall on the contractor in such a case. In addition, debt forgiveness may have a negative impact on the debtor in the future, since other entities may perceive him as an insolvent debtor with whom they are unlikely to want to deal. Thus, in these situations too, debt forgiveness should be an agreement.
It is also important, in our opinion, that (as already noted in the first chapter) for many centuries, both in European and domestic civil circulation, debt forgiveness was perceived as a bilateral transaction. Therefore, consolidating this institution as a unilateral transaction in the Civil Code of the Russian Federation would look at least illogical.
And finally, it should be noted that the Concept for improving the general provisions of the law of obligations of Russia, developed by the Council under the President of the Russian Federation for the codification and improvement of civil legislation, establishes the following: “... the obligation is terminated by the creditor releasing the debtor from his obligations by sending a notice to the debtor. If the debtor does not object to his creditor within a reasonable period of time from the receipt of such notice, his consent to debt forgiveness should be assumed” (clause 3.10. Section VI), which once again confirms the contractual nature of debt forgiveness.
Thus, all of the above circumstances are quite sufficient to recognize the nature of debt forgiveness as contractual.
§ 2. LIMITATION OF DEBT FORGIVENESS FROM RELATED LEGAL PHENOMENA
No less controversial than the question of the legal nature of debt forgiveness is the question of its delimitation from donation. And here the opinions of domestic civil experts differ. Some believe, in particular E.A. Sukhanov, that debt forgiveness should be considered as a type of donation, while others believe that forgiveness and donation are different transactions. There is also a point of view that suggests that debt forgiveness is a type of gift only in the case when the issue of gratuitousness is positively resolved and with the clear intention of the creditor to gift the debtor without any reciprocal provision.
Proponents of the unilateral nature of debt forgiveness very easily justify the difference between debt forgiveness and donation: since donation is a bilateral transaction (paragraph 1, paragraph 1, article 572 of the Civil Code of the Russian Federation), debt forgiveness cannot be its variety, if only because it is a unilateral act .
However, as stated above, debt forgiveness is of a contractual nature, and therefore other evidence is required to establish the difference between an agreement to forgive and a gift.
Firstly, as noted by O.Yu. Pintail, the institution of debt forgiveness is enshrined in the “general part of the law of obligations,” and if it is a type of gift agreement, then it turns out that the rules about the institution enshrined in the “general part of the law of obligations” are contained in the “special part.” This is not consistent with the pandect system of codification of the Civil Code adopted by the legislator. In addition, all rules on other methods of terminating obligations are also presented in the “general part of the law of obligations”. Therefore, even if the legislator recognized forgiveness as a type of donation, this institution would have to be made a “general part” or, on the contrary, the rules on donation should be enshrined in the article on debt forgiveness.
Secondly, as noted above, some civilists believe that forgiveness is a gift when the issue of its gratuitousness is positively resolved. However, debt forgiveness is often conditional on a reciprocal provision, as a result of which it cannot be considered as gratuitous. The remuneration of debt forgiveness gives rise to the most difficult problem of distinguishing debt forgiveness from innovation and even from compensation. Indeed, in this interpretation, a party that releases a counterparty from any obligation to itself acquires the right to some kind of consideration, and this is a special case of novation of an obligation.
Thirdly, if the debt forgiveness agreement were a type of gift agreement, then it could not be concluded in pursuance of a compensated main transaction. Meanwhile, agreements on debt forgiveness with a compensated legal basis are known in practice. An example is an agreement by virtue of which the lessor undertakes to forgive the tenant the balance of the rent debt, and the lessee undertakes to return the leased property to the lessor by the date agreed upon by the parties.
Fourthly, in connection with the identification of an agreement to forgive a debt with a gift, many practical problems arise. If debt forgiveness is a type of donation, then the rules on the gift agreement are applicable to it, including the prohibition and limitation of the possibilities of donation (Articles 575, 576 of the Civil Code of the Russian Federation). In accordance with paragraph 4 of Art. 575 of the Civil Code of the Russian Federation prohibits donations in relations between commercial organizations. This ban makes it impossible to write off even the most bad debts, worsening the already difficult financial situation of many Russian entrepreneurs.
Fifthly, adhering to the view of E.A. Sukhanov, we will have to admit that forgiveness of part of the claim always presupposes the presence of an animus donandi in the creditor, while the creditor can forgive part of the debt not with the intention of bestowing, but in order to ensure the fulfillment of the rest.
And finally, even the legal nature of the two institutions under consideration is opposite: a consensual gift agreement creates an obligation, while debt forgiveness, on the contrary, terminates the obligation.
In addition to the above-mentioned main features that distinguish an agreement on debt forgiveness from a gift, we can highlight a lot of additional circumstances that further confirm our point of view. Thus, a donation, as a rule, is made in the interests of the donee, and debt forgiveness is most often made in the interests of the creditor himself; in addition, sometimes a debt is forgiven not with the goal of benefiting another person, but with the goal of avoiding much greater losses if the debt is hopeless.
Thus, there is enough evidence that, contrary to the opinion of some domestic civil experts, allows us to conclude that debt forgiveness is not a type of gift.
In addition to recognizing an agreement on debt forgiveness as a type of gift, some domestic civil scholars mistakenly identify debt forgiveness with other similar institutions of civil law.
As noted in the previous paragraph, debt forgiveness is a gratuitous transaction. However, some civilists, in particular V.V. Vitryansky, they assume his retribution. Such compensation for debt forgiveness gives rise to the most difficult problem of distinguishing debt forgiveness from novation (and, paradoxically, from compensation), since in such an interpretation the party that releases the counterparty from any obligation to itself acquires the right to some consideration, and this is a special case of novation of an obligation.
As is known, debt forgiveness is aimed at terminating the claim belonging to the creditor and the corresponding obligation of the debtor. On this basis, it is distinguished from a contrarius consensus, that is, an agreement to terminate a contract (in paragraph 1 of Article 452 of the Civil Code of the Russian Federation, this agreement is incorrectly called an “agreement to terminate a contract”), with the help of which the obligation relationship as a whole is terminated. If the obligation relationship consists of only one requirement and a corresponding obligation, then the agreement on debt forgiveness and the agreement on termination of the agreement coincide with each other.
One of the ways to get rid of debt back in ancient Rome was pactum de non petendo, that is, an agreement not to present a claim. However, it should be distinguished from the modern concept of debt forgiveness, since as a result of the conclusion of such an agreement, the debtor is not released from the obligation incumbent on him, but receives an exception (exception pacti), through which he can prevent the implementation of the creditor's claim.
But many more questions arise regarding the pactum de non petendo, which is not limited in time, since it comes close to debt forgiveness, but there are certain differences between them. First, this agreement does not affect the existence of the claim and does not exclude the emergence of a future right of set-off, while forgiveness of the debt leads to the termination of the claim. Secondly, with a pactum de non petendo in perpetuum, the debtor can oppose the demand presented to him with an objection in the substantive sense, whereas in an agreement on debt forgiveness, the debtor is entitled to an objection in the procedural sense.
Thus, an agreement on debt forgiveness has certain distinctive features from such methods of terminating obligations as novation and compensation, as well as from such agreements as contrarius consensus, pactum de non petendo and pactum de non petendo in perpetuum.
§ 3. SUBJECT OF DEBT FORGIVENESS
The subject of debt forgiveness can be almost any right of obligation (claim). In this case, the basis for its occurrence does not matter: you can forgive both a contractual claim (for example, a requirement to pay the purchase price - clause 1 of Article 454 of the Civil Code of the Russian Federation), and a claim arising from an offense (for example, a claim to pay a penalty - clause 1 article 330 of the Civil Code of the Russian Federation).
The nature of the demand being forgiven remains indifferent. In particular, there are no obstacles to the forgiveness of a claim that is opposed, a claim in respect of which the statute of limitations has expired, as well as a claim embodied in an obligatory security (for example, a bill or bond). In addition, it is permissible to forgive a conditional claim and a claim with a deadline, but when a suspensive claim is forgiven, the terminating effect of the forgiveness depends on the occurrence of the condition. The possibility of forgiveness of a future claim cannot be ruled out either.
There are no barriers to forgiveness of a debt that is the subject of litigation. This forgiveness is usually accomplished through a settlement agreement. Termination of an obligation by debt forgiveness is also possible at the stage of enforcement proceedings.
If the subject of the obligation is divisible, part of the claim may be forgiven. An agreement on partial forgiveness of a debt is usually concluded on the condition that the debtor pays the unforgiven part.
A difficult issue in this topic is the question of the possibility of forgiveness of a debt that exists within the framework of an obligation with a plurality of persons. Moreover, difficulties arise not in shared plurality, but in obligations with joint plurality.
So, I.B. Novitsky believes that debt forgiveness performed in relation to one of the co-debtors, as a general rule, does not apply to other debtors. Moreover, if the debtor has agreed with the creditor to forgive the debt, this does not mean that he is released from his obligations towards the co-debtors, since the creditor cannot influence the relationship between the co-debtors.
When solving this problem, you can also turn to foreign sources of civil law. Thus, § 423 of the German Civil Code prescribes that an agreement between a creditor and one of the joint debtors to release the latter from execution also releases the remaining debtors if the purpose of the agreement was to terminate the entire obligation. If the purpose of the agreement was to forgive the debt of only this specific debtor, then the remaining debtors will be liable to the creditor minus the amount that has already been forgiven to their co-debtor.
Thus, the subject of debt forgiveness can be almost any claim; if the object is divisible, only part of it can be forgiven, and if there are multiple persons in the obligation, an important circumstance, in our opinion, is the goal pursued by the creditor when forgiving the debt of one of the debtors.
Article 415 of the Civil Code of the Russian Federation does not establish a specific form for concluding an agreement on debt forgiveness. Consequently, if the law does not establish a specific form for contracts of this type, then the contract can be concluded in any form provided for transactions (paragraph 1, clause 1, article 434 of the Civil Code of the Russian Federation).
Since this agreement is not associated with a special form, it can be concluded through conclusive behavior (for example, by returning a promissory note to the debtor or destroying it in the presence of the debtor).
The form of the debt forgiveness agreement can also be a receipt from the creditor about the absence of claims, handed over to the debtor by him.
In the question of the form of debt forgiveness, the following conflict may also arise: the coincidence of the agreement on debt forgiveness and the agreement on termination of the agreement between Art. 415 of the Civil Code of the Russian Federation, which does not establish a specific form of debt forgiveness, and clause 1 of Art. 452 of the Civil Code of the Russian Federation, which stipulates that “an agreement ... to terminate a contract is made in the same form as the contract, unless otherwise follows from the law, other legal acts, contracts or business customs.” In this case, preference should be given to Art. 415 of the Civil Code of the Russian Federation as a more special norm.
Also, in accordance with paragraph 3 of Art. 158 of the Civil Code of the Russian Federation, it seems possible to forgive a debt through silence “in cases provided for by law or agreement of the parties.”
In addition, as noted above, the Concept for Improving the General Provisions of the Law of Obligations of Russia, developed by the Council under the President of the Russian Federation for the codification and improvement of civil legislation, establishes the following: “... the obligation is terminated by the creditor releasing the debtor from his obligations by sending a notice to the debtor. If, within a reasonable period of time from the receipt of such notice, the debtor does not object to his creditor, his consent to forgive the debt must be assumed” (clause 3.10. Section VI), that is, either the debtor’s response to the creditor is assumed, both in writing and orally form (depending on the form of notification), or concluding an agreement on debt forgiveness through silence.
Thus, the legislator does not establish regulations regarding the form for concluding an agreement on debt forgiveness, and the Concept for improving the general provisions of the law of obligations of Russia essentially also indicates various options for concluding an agreement on forgiveness, therefore this transaction can be concluded in any form provided for by the Civil Code of the Russian Federation for conclusion of an agreement.
§ 5. FORGIVENESS OF DEBT AS A DISPOSAL TRANSACTION
Based on the type of desired legal consequences, all transactions are divided into obligatory and administrative. Obligatory transactions are those through which one person (the debtor) undertakes to perform a certain action in favor of another person (the creditor). Dispositional transactions are transactions that are directly aimed at transferring, encumbering, changing or terminating rights. Orders presuppose that the person in charge has the power to dispose (the right to dispose).
Taking into account the above, we can conclude that debt forgiveness is a disposition transaction, since the forgiver has the right to dispose of the claim (the right to dispose of the claim).
Let us consider this right of the creditor and highlight its main features.
Firstly, this right is not an integral part of the demand itself, since this right mediates the disposal of the demand and, therefore, relates to it as a means of an external object to be disposed of.
Secondly, in contrast to a demand, which is a right to someone else’s behavior, the right to dispose of a demand is a right to someone else’s behavior, which corresponds to a regulatory obligation resting on the debtor. It should also be noted that the right to dispose of a claim and the claim itself may belong to different persons. So, for example, with the opening of a competition in relation to the property of a faulty debtor, the latter is deprived of the right to dispose of his claims; from now on, this right is due to the bankruptcy trustee (clause 1, article 101 of the Federal Law “On Insolvency (Bankruptcy)”), who is not a representative of the debtor and acts on his own behalf (clause 2, article 182 of the Civil Code of the Russian Federation).
Thirdly, despite the fact that this right is not an integral part of the requirement itself, it is still closely related to it, since it mediates an action that is associated with the transformation of the requirement and depends on this requirement in terms of its occurrence.
In practice, there are also cases where the right to dispose of a claim may be due to the legal representative, and not to the creditor of the claim. In this situation (by virtue of paragraph 1, paragraph 2, article 37), a debt forgiveness agreement concluded by a representative on behalf of the ward or with the consent of the legal representative by the ward himself requires prior permission from the guardianship and trusteeship authority.
Thus, debt forgiveness is a disposition transaction, but if the forgiver does not have the right to dispose of the claim, the debt forgiveness agreement is invalid.
§ 6. FORGIVENESS OF DEBT AS AN ABSTRACT TRANSACTION
Among all transactions, provisional transactions are included in a special group. Provisions whose validity depends on the presence of a cause are called causal; grants that are valid even in the absence of a legal basis are called abstract.
Taking into account the above, it can be assumed that the debt forgiveness agreement is an abstract transaction. This means that it is valid even in the absence or invalidity of the main transaction.
In this regard, some problems may arise in practice. In particular, an agreement to forgive a debt entails forgiveness even when the debtor unjustly enriches himself at the expense of the creditor. Therefore, the former creditor has a claim against the former debtor to restore the forgiven claim, which occurs through re-justification of the claim of the same content and with the same or equivalent security. This solution, although it follows from the current legislation (from the meaning of Article 1102 and Article 1104 of the Civil Code of the Russian Federation one can speak of a claim for the return of forgiveness), suffers from certain shortcomings (for example, it is impossible in cases where the enrichment of the debtor consists in forgiveness of the claim, arising from an offense).
Therefore, to resolve this dispute, one should accept the point of view of E.A. Krasheninnikova: “the legislator should abandon the concept of a “condition of forgiveness” by introducing a special norm into the Civil Code of the Russian Federation, which would provide the former creditor with an unjustifiably forgiven claim with a transformative claim, obliging the court to restore the forgiven claim with the security that existed at the time of its termination.”
Thus, the debt forgiveness agreement is an abstract transaction that is valid in the absence or invalidity of the main transaction. However, it should be noted that a debt forgiveness agreement can also be concluded subject to the validity of the main transaction. Then the invalidity of this transaction will lead to the invalidity of the debt forgiveness agreement.
§ 7. EFFECT OF DEBT FORGIVENESS
A debt forgiveness agreement is aimed at terminating the obligation existing between the parties, namely, terminating the claim belonging to the creditor and the corresponding obligation of the debtor. As a general rule, the validity of this agreement begins from the moment it is concluded by the parties.
However, as noted above, debt forgiveness is permissible in relation to a contingently conditioned claim, with the appointment of a deadline, as well as a future claim. In this case, the validity of the agreement on debt forgiveness will begin not from the moment of its conclusion, but from the moment the condition determined by the parties occurs, the expiration of the period specified in the agreement between them and the occurrence or acquisition of this future claim, respectively.
It would seem that such rules do not raise any doubts, but in the literature there is an opinion that pre-forgiven requirements do not arise at all. However, in this situation, the point of view of E.A. should be recognized as correct. Krasheninnikova: “A necessary prerequisite for the entry into force of the forgiveness agreement is that the claim being forgiven belongs to the creditor. When a future claim is forgiven, this prerequisite is fulfilled only at the moment the claim arises.” This means that the claim cannot be forgiven unless it arises.
Thus, the effect of debt forgiveness begins from the moment of conclusion of this agreement, with the exception of certain circumstances (conditions, time), in which the effect of forgiveness begins from the moment of their expiration, occurrence or acquisition.
forgiveness debt deal civil
CONCLUSION
So, having examined the institution of debt forgiveness from various angles, from various positions of domestic civil experts, we came to the following conclusions.
Firstly, the roots of this institution come from the era of Roman law, where it was a broader institution than today and had several varieties, but most of them came down to an agreement between the parties. A similar position has developed in Western European law, which, although it narrowed the institution of debt forgiveness, retained the most important features of debt forgiveness, namely, its contractual nature. A similar situation developed over several centuries in domestic law, that is, debt forgiveness was recognized as an agreement.
Secondly, after analyzing the views of scientists regarding the legal nature of debt forgiveness, we came to the unequivocal conclusion that the debt forgiveness deal is bilateral. This, as noted above, has developed over centuries, does not contradict the basic principles of modern civil legislation, etc. The opponents’ arguments turned out to be insufficient; they all had an ill-founded basis.
In addition, we have established that the subject of a debt forgiveness agreement can be almost any claim and that if the subject is divisible, only part of the claim can be forgiven.
The legislator does not establish regulations regarding the form for concluding a debt forgiveness agreement, so it can be very different.
The effect of debt forgiveness begins from the moment of conclusion of this agreement, with the exception of certain circumstances (conditions, time), in which the effect of forgiveness begins from the moment of their expiration, occurrence or acquisition.
Thirdly, we examined the problem of the relationship between an agreement on debt forgiveness and a gift agreement and, as in the previous controversial issue, we came to the unequivocal conclusion that an agreement on debt forgiveness is not a type of gift agreement. To substantiate this point of view and refute the opinion of E.A. Sukhanov, we found sufficient evidence.
We also presented the distinctive features of an agreement on debt forgiveness from other similar legal institutions (novation, compensation, etc.).
Fourth, we classified a debt forgiveness agreement as a transaction on the two most important grounds for debt forgiveness theory. And in the end they found that debt forgiveness is a management transaction, but if the forgiver does not have the right to dispose of the claim, the debt forgiveness agreement is invalid. In addition, we have established that the right to dispose of a claim is not an integral part of the claim itself.
We also established that the debt forgiveness agreement is an abstract transaction that is valid in the absence or invalidity of the main transaction. However, it should be noted that a debt forgiveness agreement can also be concluded subject to the validity of the main transaction. Then the invalidity of this transaction will lead to the invalidity of the debt forgiveness agreement.
Thus, we achieved our goals and objectives when studying the topic “Debt Forgiveness.”
LIST OF REFERENCES USED
Regulatory legal acts and other official materials
1. Civil Code of the Russian Federation. Parts one, two, three and four. – M., 2009. – 544 p.
2. Collection of decisions of the Plenums of the Supreme Court and the Supreme Arbitration Court of the Russian Federation on civil cases, comp. Doctor of Law sciences, prof. A.P. Sergeev. – 4th ed., revised. and additional – M., 2009. – 1216
Theoretical sources
3. Annenkov K. N. System of Russian civil law. St. Petersburg, 1901. P. 465.
