On March 8, 2015, the President of the Russian Federation signed Federal Law No. 42-FZ “On Amendments to Part One of the Civil Code of the Russian Federation” (hereinafter - Federal Law No. 42). This regulatory act significantly changes the basic provisions of the first part of the Civil Code of the Russian Federation. The document comes into force on June 1, 2015. Below are the main novelties in civil law introduced by the new law.

1. Introduces the norm on astrent (Article 308.3 of the Civil Code of the Russian Federation)

Previously enshrined in the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 04/04/2014 No. 22 "On some issues of awarding the recoverer funds for non-execution of a judicial act" the rule on awarding funds in favor of the plaintiff in case of non-execution of a judicial act by the defendant will be enshrined in Article 308.3 of the Civil Code. The amount of funds awarded when the debtor fails to fulfill the obligation in kind is determined by the court on the basis of the principles of fairness, proportionality and the inadmissibility of deriving benefit from its illegal or unfair behavior.

2. Introduces the rule on inter-credit agreements

Federal Law No. 42 establishes the possibility of concluding between the creditors of one debtor under homogeneous obligations an agreement on the procedure for satisfying their claims against the debtor, including on the order of their satisfaction and on the disproportionality of the distribution of execution. Under this agreement, the parties will have to refrain from actions aimed at obtaining performance from the debtor in violation of the terms of the agreement.

3. It becomes possible to establish a fee for a unilateral refusal to fulfill an obligation

In the new edition of the first part of the Civil Code, a provision will appear on the possibility of establishing by agreement of the parties payment of a certain sum of money to the counterparty under the contract in the event of unilateral refusal to fulfill the obligation related to the business activities of the parties or unilateral change of the conditions of such an obligation. Previously, the establishment of fees for such powers caused controversy in judicial practice.

4. The rule on the performance of obligations by a third party changes

In accordance with the rule enshrined in the Federal Law No. 42, a third person can fulfill such a duty as a debtor in two cases: the debtor has delayed the performance of the obligation, or the third person is in danger of losing his right to the property of the debtor. Earlier, article 313 of the Civil Code of the Russian Federation enshrined the possibility of a third party fulfilling an obligation without laying it on only if that person was in danger of losing his right to the debtor’s property.

5. The norm on the period of performance of the obligation changes

In accordance with the new edition of the Civil Code of the Russian Federation, the day of performance of the obligation, or the period during which the obligation must be discharged, may be calculated from the moment the obligation is fulfilled by the other party or other circumstances stipulated by law or contract.

6. Introduces a rule on the accrual of interest on a monetary obligation (legal interest)

The new article 317.1 of the Civil Code of the Russian Federation establishes the rule on the accrual of interest on the amount of debt on a monetary obligation, the parties to which are commercial organizations, for the period of use of funds. The parties independently determine the amount of interest (or indicate non-interest), in the absence of such a condition in the contract, the amount of interest is determined by the refinancing rate of the Bank of Russia in effect during the relevant periods.

7. The rule on the performance of obligations in a notary or court deposit is changed.

According to the new rule, enshrined in Federal Law No. 42, at any time before the creditor receives money or securities from a notary or court deposit, the debtor will be able to demand that such money or securities be returned to him, as well as income from it. In addition, the law indicates the renewal of the limitation period for this obligation after the implementation of the refund or securities.

8. The rule on court penalty reduction is changed.

The new edition of Article 333 of the Civil Code of the Russian Federation establishes the right of the court, at its own discretion, to reduce the amount of the penalty imposed by the parties if the penalty is disproportionate to the consequences of the breach of obligation. In case of violation of the obligation by a person engaged in entrepreneurial activity, the court may reduce the penalty only upon the application of the defendant.

9. Introduces an independent guarantee rule

Federal Law No. 42 provides for the possibility for the parties to agree on a new type of enforcement of the obligation — an independent guarantee. A similar guarantee may be issued by a bank or other credit organizations and other commercial organizations to secure a monetary obligation, an obligation to transfer shares, bonds, or things determined by a generic attribute. Earlier, the Civil Code provided for only the possibility of issuing a bank guarantee as an independent type of security.

10. The institution of payment of the security deposit is fixed.

The previously common practice of paying a security deposit to the counterparty for an obligation to secure a cash (including future) claim is now enshrined in Federal Law No. 42. When the circumstances specified in the agreement occur, this amount is counted towards the fulfillment of the obligation;

11. It is possible to secure a deposit of a preliminary contract.

In the new edition of the Civil Code, the obligation to enter into the main contract can be provided with a deposit. According to the current legislation, only monetary obligations can be secured by a deposit.

12. The norm on the procedure for determining the amount of damages by the court changes

In accordance with the new edition of the Civil Code of the Russian Federation, the court cannot refuse to satisfy the creditor’s claim for damages solely on the basis that the amount of damages cannot be established. In this case, the court will have to determine the amount of damages on the basis of the principle of fairness and proportionality. Previously, judicial practice held the position that a person claiming damages should have proved their size, otherwise a recovery could be refused.

13. Changed the rate of payment for the use of other people's money

The interest for using other people's funds under Article 395 of the Civil Code of the Russian Federation from June 1 will be determined by the Bank of Russia published and the average interest rates on individuals' deposits that occurred during the relevant periods. Earlier, the amount of interest was determined on the basis of the discount rate of bank interest.

14. There is a rule on compensation for losses upon the occurrence of certain circumstances.

The new edition of the Civil Code of the Russian Federation will provide for the right of the parties-entrepreneurs to conclude an agreement on compensation for losses incurred not in connection with the violation of the obligation by the party. At the same time, the court will not reduce the established amount, except in the case when it will be proved that the party intentionally contributed to the increase in losses.

15. Changing the provisional agreement

According to the new rules, in the event of a party evading the conclusion of the main contract, the counterparty has the right to bring an action for 6 months to compel the conclusion of the main contract. If the parties have disagreements regarding the terms of the main contract, such conditions are determined by the court.

16. Fixed the possibility of entering into framework agreements

Federal Law No. 42 provides for the right of the parties to enter into a framework agreement, specifying the general conditions of commitment relations. The conditions can be further specified and clarified by the parties when entering into certain types of contracts, filing applications or otherwise. Previously, the validity of such contracts was questioned by the courts.

17. Introduces the rate of subscription agreement

The new article 429.4 of the Civil Code of the Russian Federation directly indicates the possibility of concluding an agreement, according to which for payment or other consideration provided by one party, the other party is obliged to provide the contractual performance in the requested quantity.

18. The institutions of the option to conclude a contract and an option contract appear.

According to the option to conclude a contract, one party by means of an irrevocable offer for a fee grants the right to the other party the right to conclude one or more contracts under the conditions stipulated by the option. In accordance with the rules on an option contract, a party to such an agreement has the right to demand upon payment of a sum of money within the period specified in the contract for performing the stipulated actions from the other party. Both institutions have not previously been secured in the Civil Code.

19. Introduces the rule of invalidity of the contract

Previously, the first part of the Civil Code provided for the rules on the invalidity of transactions. The new edition will contain Article 431.1 of the Civil Code of the Russian Federation, which establishes the rules on invalidity of the contract. According to this article, the party will not have the right to demand that the contract be recognized as invalid in cases of acceptance of performance under the contract in the course of business, or if such party has fully or partially fulfilled the obligation.

20. The rule of "estoppel" is fixed

The new edition of Article 432 of the Civil Code of the Russian Federation will provide for a rule according to which a party accepting from the other party full or partial fulfillment of an obligation under a contract or otherwise confirming the validity of a contract will not have the right to demand recognition of this contract as not concluded if the statement of such a requirement contradicts the principle of good faith . Previously, this rule was enshrined at the level of judicial practice.

In addition, in accordance with the new article 450.1 of the Civil Code of the Russian Federation, if the party carrying out entrepreneurial activity upon the occurrence of certain circumstances that serve as the basis for exercising a certain right under the contract declares the refusal to exercise this right, the subsequent exercise of this right is not allowed for the same reasons. It will also be impossible to withdraw from the contract if the party, if there are grounds for refusing the contract, has previously confirmed its validity.

21. An assurance clause rule appears.

In accordance with the new provision of Article 431.2 of the Civil Code of the Russian Federation, if a party at the time of entering into a contract gave the counterparty inaccurate assurances about the circumstances relevant to the conclusion of the contract, its performance or termination, it would be obligated to compensate the counterparty for losses caused by the inaccuracy of the assurances to pay the penalty provided by the contract . A party relying on inaccurate information will have the right to withdraw from the contract, or demand recognition of the contract as invalid on the basis of articles 178, 179 of the Civil Code of the Russian Federation.

22. Introduces the rule on the negotiation of an agreement

According to the new article 434.1 of the Civil Code of the Russian Federation, when entering into negotiations on concluding an agreement, the parties will be obliged to act in good faith and not allow entering into negotiations or their continuation with the deliberate absence of the intention to reach an agreement with the other party. In the event of a breach of duty, the party will be obliged to compensate the other party for losses, or to pay the penalty stipulated by the agreement on the procedure for conducting negotiations.

The Civil Code is the most important regulatory act in force in the territory of the Russian Federation. This document establishes civil-law relations. The history of the creation and maintenance of the Civil and Civil Procedure Codes of the Russian Federation will be discussed in detail in this article.

About the adoption of the Civil Code

On October 21, 1994, the first version of the Russian Civil Code was formed and adopted by the State Duma. In the same year, it received approval from the upper chamber of the Federal Assembly and the president, who signed the document on November 30, 1994. The first edition of the Civil Code entered into force in 1995. After that, the considered normative act was repeatedly subjected to changes and modernization: in 1996, 2002 and 2008.

It is worth a little more to tell about the reform of the Civil Code, carried out on July 18, 2008. It was then that the head of state signed Decree No. 1108, in which the following objectives for improving the document were outlined:

• continuation of the development processes of the principles established by the Civil Code of the Russian Federation, corresponding to the level of continuous modernization of market relations;
• the document reflects the experience of its interpretation and application by the courts;
• approximation of the provisions of the Code with the norms of the European Union;
• the use in the Civil Code of the Russian Federation of the norms enshrined in the codes of European countries;
• reflection of support in the Civil Code of the CIS countries.

In the fall of 2010, all submitted changes were made to the Civil Code.

Part I of the Civil Code of the Russian Federation: general characteristics

It is necessary to tell about the content of the Civil Code. The document itself is divided into four parts, made to the information bank in the form of separate documents. Part One of the Civil Code is a set of rules indicating the emergence of civil rights and obligations, the concepts of power of attorney, representative office, legal entities, property rights, limitation of actions, security of transactions, real rights and much more. Simply put, the first volume of the considered normative act contains information about the so-called property law.

Section 1 of Part 1 of the Civil Code of the Russian Federation provides general provisions. It tells about individuals and legal entities, types of transactions, as well as the objects of such transactions. In the second part, the ownership is a little more detailed. Here are the rules on its acquisition, as well as the most important element of any real right - the obligation. Since the right of ownership is drawn up by law, the document lists the rules in accordance with which special contracts should be formed.

Part II of the Civil Code

The second volume of the Russian Civil Code establishes the rules according to which the obligations and powers of the parties entering into civil law contracts are established. Most of the norms fixed here are dispositive, that is, free in nature. Here are the types of obligations here to highlight:

• sales processes;
• barter agreement;
• donation;
• rent and life dependent maintenance processes;
• conclusion of a lease;
• rental of residential premises;
• use free of charge;
• contracting;
• providing services on a reimbursable basis;
• transportation;
• loans;
• transport expeditions;
• bank deposits and accounts;
• storage and insurance processes;
• commission, agency and property management on a trust basis;
• holding contests, games and betting;
• compensation of harm.

Thus, the second part of the Civil Code is a kind of list of obligations under a particular contract.

On Inheritance: Part III of the Civil Code of the Russian Federation

Inheritance is a very complex and extensive legal process, which must be regulated by law. There are no federal laws enshrining the rules that relate to this process. All the main provisions are presented in section 5 of part 3 of the Civil Code of the Russian Federation.

In chapter 62 of the considered normative act it is told about inheritance under the will, and in the next chapter - about inheritance in the order established by law. In the other norms, there are provisions on the lawful acquisition of property, on the inheritance of land, enterprises, farms, state awards and other "special" types of property.

On International Private Law: Part III of the Civil Code of the Russian Federation

Section 6, that is, in the second half of Part III of the document in question, speaks about the phenomenon. It regulates the legal status of foreign persons in the Russian Federation, resolves issues on concluding transactions with foreigners, determines conflicts (contradictions) between national and international types of rights.

Section 6 of the Civil Code of the Russian Federation describes the problems of transferring property to foreigners (Chapter 66 of the Civil Code, Art. 1188-1194), the procedure for implementing trade agreements, inheritance law at the international level and many other phenomena that could arise when interacting with individuals from other states.

Part Four of the Civil Code of the Russian Federation

What does the last volume of the document in question say? It contains rules and regulations that regulate related and copyright issues, intellectual property issues, exclusive rights to works, inventions, etc. In brief, Part IV of the Civil Code is a collection of property rules mainly intangible. So, here it is worth highlighting the rights:

• on the phonogram;
• cable and broadcasting;
• production of information database;
• the creation and publication of works of art, science and literature;
• obtaining and registering a patent;
• carrying out selection works;
• integrated circuit chip topology;
• know-how;
• individualization of work, etc.

The last Civil Code of the Russian Federation came into force in 2008.

At the moment, a version of the document has been prepared, which should enter into force in the near future. What changes are reflected here? It is worth noting that the new provisions are almost the same as those that were added to the document in 2008. It is still talking about cooperation with foreign countries, about the principles of combining modernization and stability, about borrowing European experience, etc.

The concept of the Code of Civil Procedure

Character should not be confused with the one described above. This document is a source of rules and regulations that are applied in the consideration and resolution of civil cases by courts of general jurisdiction of the Russian Federation. Simply put, the CCP establishes the rules for conducting the trial itself.

The Code of Civil Procedure of the Russian Federation was adopted in 2002 by the Parliament and the President, and in 2003 the document entered into force. At the moment, the regulation is often subject to the introduction of changes and additions, as a result of which the prerequisites for instability and inconsistency are created. Nevertheless, it is worth illustrating the content of the document.

The document consists of seven sections and 47 chapters. In the first part, the main legal provisions are given: concepts, goals of the law, tasks, legal status of the persons concerned, etc. The second and third sections establish the processes of production in the courts of the first and second (appellate) instances.

The fourth section talks about reviewing cases by way of cassation (when the court ruling has already entered into legal force), and the fifth section deals with the presence of foreign citizens. The last two chapters fix the rules on arbitration courts and rulings of other bodies, except judicial ones.

1. Civil law is based on recognizing the equality of participants in relations regulated by it, the inviolability of property, freedom of contract, the inadmissibility of arbitrary interference with anyone in private affairs, the need for unhindered exercise of civil rights, ensuring the restoration of violated rights, their judicial protection.

2. Citizens (individuals) and legal entities acquire and exercise their civil rights through their own will and in their interest. They are free to establish their rights and obligations on the basis of a contract and to determine any conditions of the contract that do not contradict the law.

Civil rights may be restricted on the basis of federal law and only to the extent necessary to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, to ensure the defense of the country and the security of the state.

3. In establishing, exercising and protecting civil rights and in the performance of civil obligations, participants in civil legal relations should act in good faith.

4. No one has the right to take advantage of their illegal or unfair behavior.

5. Goods, services and financial assets move freely throughout the Russian Federation.

Restrictions on the movement of goods and services may be imposed in accordance with federal law, if it is necessary to ensure safety, protect people's life and health, and protect nature and cultural values.

Commentary on Art. 1 of the Civil Code

1. The Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation) opens with the wording of the most significant postulates on which civil law regulation is based in modern Russia. These basic principles of civil law, often referred to in law science as the principles of the branch of law, are the most important conceptual provisions defining the content of legal regulation of civil law relations, taking into account their specifics.

The principles (basic principles) of law are a kind of quintessence of the centuries-old experience of legal regulation of a certain sphere of social relations. For civil law in this context, the legacy of Roman private law and its reception in medieval European legislation is most important; the evolution of the idea of ​​natural law as a kind of ideal sample of the rule of law that underlies every written (positive) law; development of the institution of human rights and a citizen in their optimal combination with public interests.

2. Acting as the basis for all norms of the Civil Code of the Russian Federation, the principles of civil law regulation in one way or another manifest themselves in all its particulars and details. They have independent significance in at least three aspects.

Firstly, the legislator leaves to the discretion of the courts the resolution of those situations in civilian circulation that have not been regulated by the current legislation. In such cases, the courts are recommended to be guided by the general principles and meaning of civil law (the so-called analogy of law, see the commentary to article 6 of the Civil Code on this).

Secondly, in certain specific situations, the legislator associates the legal consequences with compliance or discrepancy of the behavior of their participants with the principles of reasonableness and good faith (see the rules on processing or specification (Article 220 of the Civil Code), long-term ownership (Article 234 of the Civil Code), good faith ( articles 302 - 303 of the civil code), the term of fulfillment of obligations (art. 314 of the civil code), etc.).

Finally, thirdly, in accordance with the general principles of civil regulation, civil law norms are interpreted in necessary cases - identifying the meaning of a norm contained in a regulatory act in relation to specific situations requiring legal regulation, or to a group of similar situations. in which the norm can be understood in two ways or with a distortion of its true meaning.

The interpretation may be official in nature, on the basis of the authority that issued the interpreted norm (authentic), or the judicial authority (legal), and informal (scientific or doctrinal). Interpretations differ in the method: grammatical (in the literal sense of the normative text, taking into account the rules of spelling), historical (taking into account the specific historical circumstances in which the regulation was adopted and acted), systematic (taking into account the content and meaning of both the whole normative act and in its correlation with other regulatory legal acts, first of all - the same branch affiliation) and logical (taking into account the rules of formal logic and the specifics of the sectoral logical-conceptual toolkit) . However, in any case, the interpretation of the norms occurs in the context of sectoral principles.

3. The doctrine of sectoral principles is traditionally well developed in the domestic legal science. In this regard, it must be remembered that the doctrine formulates a wider range of basic principles of civil law than that given in the commented article. As a rule, the principles called by scientists reveal and specify the provisions of the Civil Code or correspond to the characteristics of the method of civil law regulation. Most often and consistently in the science of civil law, the autonomy of the will of the participants in civil law relations, their legal initiative and activity, propriety and dispositive norms as the method of the legislator’s action in the sphere of civil circulation are mentioned as his “additional” sectoral principles. One way or another, all these characteristics stem from the main principle of civil law mentioned in the Civil Code of the Russian Federation in its very first article, the principle of equality of participants in relations governed by this Code.

4. Unlike criminal, administrative law and some other branches of so-called public law, which primarily perform a protective function, civil law is a regulatory sector, i.e. calculated on not only permissible, but on the behavior of participants in public relations, encouraged by the rule of law, in the regulation of which the prohibitions and restrictions in comparison with protective branches are minimal. Equally, the method of civil law is different from the method of tax, labor, environmental law, where the role of the prescriptions of a particular model of legally significant behavior is high.

In civil circulation, not subordinated, but coordinated relations of its participants prevail, which implies the latter's activity in acquiring, exercising and protecting subjective civil rights, in acquiring and carrying out subjective civil obligations. For most models of civil law relations regulated by the Civil Code of the Russian Federation, the dictates of the legislator are not typical. The norms of the Code are dispositive, i.e. the choice of a particular behavior depends on the will of the participant relationship.

The principle of equality of participants in relations regulated by civil law consists in the equal status guaranteed by the participants in civil turnover, the absence of advantages for any of them regardless of personal qualities or social status and ensuring that they can freely mutual assessments of the motives and prerequisites for participation in civil law relations .

5. The principle of equality of participants in civil legal relations is manifested in a number of important features of the legal status of the latter. If in other branches of law, bodies vested with public jurisdiction are also endowed with the right to dictate their will to other subjects, in civil matters, public entities do not exercise their authority; this side of their legal personality remains, as it were, “behind the scenes”. In accordance with Art. 124 of the Civil Code of the Russian Federation, the Russian Federation, its subjects, as well as municipal entities act in relations regulated by civil law, on an equal footing with other participants in these relations - citizens and legal entities.

Another important manifestation of the principle of equality of participants in civil turnover is enshrined in Part 2 of Art. 8 of the Constitution of the Russian Federation and in paragraphs 3 and 4 of Art. 212 of the Civil Code of the Russian Federation a provision on equality in the Russian Federation of all forms of ownership. The private property provided for by law (citizens and legal entities), as well as state property (of the Russian Federation and its subjects) and municipal property, are declared absolutely identical in their significance.

Equality of forms of ownership is ensured, firstly, by the establishment of a general rule of a procedure for acquiring, exercising and terminating the right of ownership, which is the same for all civil turnover subjects, and secondly, equal protection of the rights of all owners (respectively, paragraphs 3 and 4 of Article 212 GK).

Uniformity in the protection of all forms of ownership is manifested, in particular, in the abandonment of the principle of the so-called unrestricted vindication of state property that existed in the relatively recent past. Article 90 of the Civil Code of 1964 referred claims for the recovery of state property from illegal possession to a range of claims that are not subject to limitation. In the current Civil Code of the Russian Federation, the same approach is ensured by the establishment of common and special periods of limitation for all subjects of civil circulation, as well as circumstances suspending and interrupting it.

6. Second in order, as by value, the commented article refers to the principle of the inviolability of property - an element of the constitutional legal status of a citizen and the legal capacity of organizations, consisting in the guaranteed ability to accumulate, isolate and protect their property in the manner prescribed by law. Initially, it is enshrined in Art. 35 of the Constitution of Russia, proclaiming that no one can be deprived of their property except by court order.

Despite the fact that the dynamics of civil turnover are mainly realized in legal relations of obligations, it is the real rights that ensure the stability of the economic status and social status of the subjects, and therefore the importance of guarantees of the inviolability of property cannot be overestimated. The tendencies of modern Russian law-making and judicial practice are the strengthening of the positions of owners, title owners and bona fide purchasers of property, the improvement of existing and the development of new effective mechanisms for the protection of property rights.

7. The principle of freedom of contract is specified in clause 2 of the article being commented on: citizens and legal entities are free to establish their rights and obligations on the basis of a contract and to determine any conditions of the contract that do not contradict the law. These provisions are further disclosed by the legislator in Art. 421 of the Civil Code of the Russian Federation and are implemented in the provision of civil turnover participants the opportunity to freely express their will at the conclusion of the contract, both provided and not provided for by law or other legal acts, and also contains elements of various contracts; to determine at its discretion the content of the terms of the contract, except when it is prescribed by an imperative norm of the law or other legal act, including changing the dispositive norms of the law. The specified norm also contains a ban on the compulsion to conclude a contract, with the exception of cases when the obligation to conclude a contract is provided for by the Civil Code of the Russian Federation, by other law or by a voluntary obligation.

8. The following three main principles of civil law, formulated in the Civil Code of the Russian Federation, are of a functional nature and are designed to ensure the full implementation of the first three principles. They are about the inadmissibility of arbitrary interference of anyone in private affairs, the need for unhindered exercise of civil rights and ensuring the restoration of violated rights and their judicial protection.

The principle of unhindered exercise of civil rights, due to its universal nature, occupies a central position in this triad and to a certain extent encompasses the other two. This most important postulate of civil law is disclosed in paragraph 2 of the commented article, in accordance with which individuals and legal entities acquire and exercise their civil rights on their own will and in their interest. In paragraph 1 of Art. 9 of the Civil Code of the Russian Federation states that subjective civil rights are exercised by citizens and legal entities at their discretion.

An additional guarantee of the implementation of the principle of unhindered exercise of civil rights are those enshrined in Art. 8 of the Civil Code of the Russian Federation on the pluralism of the grounds for the emergence of civil rights and obligations. These may arise from both legal acts and from the actions of citizens and legal entities generating rights and obligations by virtue of the general principles and meaning of civil law. The list of actions of citizens and legal entities, with which the rule of law connects the emergence of civil rights and obligations, is formulated by the legislator as open.

9. The general rule on the freedom to exercise acquired civil rights is exempted. Firstly, civil law knows situations when, by virtue of its special status, an authorized person does not have the ability to refuse to exercise the right or to exercise it without due diligence and prudence. We are talking about situations when these rights are exercised by their subject in the interests of another person - for example, a guardian in the interests of a ward, trustees in the interests of the founder of the administration, etc. Secondly, the full freedom to exercise civil rights through his own will, interest and discretion is limited to the universal institution of the prohibition of abuse of the right (see the commentary to article 10 of the Civil Code).

The implementation of subjective civil law is the process of implementation in specific actions of the reference model of social behavior. Just as the ideal interaction of its participants differs from the ideal model of civil legal relationship — the social relationship to be settled by the rule of law, so the actual implementation should be distinguished from the set of factors formed by the measure of the possible behavior of the empowered person.

The actions of subjects of rights aimed at the implementation of the latter may be externally within the boundaries of a measure of possible behavior, but at the same time the persons carrying them out may not comply with the above restrictions, i.e. go beyond the exercise of civil rights. In the structure of this concept, it is possible to single out the abuse of the right in the narrow sense as a behavior in which the limits of the exercise of the right are exceeded and harm is done to others, which is done with direct or indirect intent, i.e. proper use of the right for evil to another. A particular case of such an offense is chicane, i.e. the exercise of the right solely with the intent to cause harm to another person (clause 1 of Article 10 of the Civil Code).

In addition to chicane lawmaker calls in paragraph 1 of Art. 10 of the Civil Code of the Russian Federation are two more behaviors of participants in civilian traffic, which require qualification as an abuse of right: actions to restrict competition and abuse of dominant market position.

10. The supplementary guarantee contained in paragraph 3 of the article being commented on, the unhindered exercise of civil rights in the form of a rule on the free movement of goods, services and financial resources throughout the territory of the Russian Federation reproduces the provision of art. 8 of the Constitution of the Russian Federation and specified sub. 3 p. 1 Art. 15 of the Federal Law of July 26, 2006 No. 135-ФЗ “On Protection of Competition” (hereinafter - the Law on Protection of Competition). It is not allowed to establish by anyone any rules (in particular, in the framework of limited regional jurisdiction) that impede the free circulation of assets in the single economic space of the Russian Federation, which in any way restrict the sale, purchase, other acquisition, or exchange of goods.

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   Meeting of the legislation of the Russian Federation. 2006. N 31 (Part 1). Art. 3434.

11. The inadmissibility of arbitrary interference in private affairs is an important guarantee for the optimal balance of private and public interests necessary for any civilized society, determining the justified limits of law enforcement intrusion into the private sphere and good neighborly relations of individuals.

This warranty should be understood in two ways. On the one hand, it fixes the inviolability of the private sphere as the most important general rule. On the other hand, private initiative and private interests cannot extend unlimitedly, since at a certain stage they will inevitably begin to encroach on the initiative and the interests of others, as well as on public interests. Therefore, securing the inadmissibility of an arbitrary invasion of private affairs, the legislator retains the possibility of law-based and justified interference in them. In essence, this is the transposition of the well-known formula “my right ends where the right of another begins”.

The inadmissibility of arbitrary interference in private affairs is ensured by a number of important legislative provisions. First of all, these are provisions of the Constitution of the Russian Federation (in particular, its article 23), which form the so-called legal status of a citizen by listing the inalienable rights of his person (including the right to privacy, personal and family secrets, etc.).

A number of regulations (for example, part four of the Civil Code of the Russian Federation, Federal Law No. 149-ФЗ dated July 27, 2006 “On Information, Information Technologies and Information Protection” (hereinafter - the Law on Information), etc.) ensured the security of private information, industrial property, trade secrets, which, along with the rules on the inviolability of property, set certain barriers to any arbitrary interference in the private sphere.

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   Meeting of the legislation of the Russian Federation. 2006. N 31 (Part 1). Art. 3448.

All the possibilities for violation of private interests permitted by law are in the nature of exceptions in civil law. They, as a rule, are a reaction to unacceptable options for the realization of private interest, correspond to the norms of protective industries, and within civil legislation they are present in the rules on civil liability, forcing another subject to take certain actions or to refrain from certain actions, in which the authorized subject has the right to insist.

In addition to such cases, intervention in the private sphere can only be justified by the public interest of a high level of significance. The general rule about this is formulated in Part 2 of Section 2, Part 2 of Section 3 of the commented article, as well as in Art. 10 of the Civil Code of the Russian Federation - restrictions on civil rights and free movement of goods, services and financial resources are allowed solely on the basis of federal law and to a reasonable extent.

Examples of such restrictions established by federal law can serve as the norms contained in Art. 11 of the Federal Constitutional Law of May 30, 2001 N 3-FKZ “On the State of Emergency”, art. 1 of the Federal Constitutional Law of January 30, 2002 N 1-FKZ "On Martial Law", Art. 77 of the Code of Inland Water Transport of the Russian Federation, art. 29 of the Charter of railway transport of the Russian Federation.

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   Meeting of the legislation of the Russian Federation. 2001. N 23. Art. 2277.

Meeting of the legislation of the Russian Federation. 2002. N 5. Art. 375.

12. The principle of ensuring the restoration of violated rights and their judicial protection logically completes the set of functional tools for the full implementation of the basic principles of civil law. The ability to protect one’s violated civil rights is an essential element of civil legal personality.

The protection of civil rights is the actions of an authorized person permitted by law and order, aimed at restoring normal conditions for exercising his violated right and (or) restoring the original condition of his property sphere by compensating for the harm caused to him.

In the formulation of the commented principle, the legislator did not accidentally emphasize the restoration of violated rights. Protective measures in civil law are primarily compensatory and only then - disciplining.

The ability to take active steps to protect one’s violated rights as one of its powers is part of the subjective right as a measure of possible behavior. However, this possibility is not always updated, but only in cases where the subject as a result of the wrongful actions of other persons loses the ability to exercise the right belonging to him adequately.

The authorized subject is free to choose at his discretion the method of exercising the right. However, in some cases, even in the absence of visible violations of specific rights and interests of others, the method of exercising the right may be clearly inadequate to the norms of morality and ethics, the rules of public order and decency, and the customs of business. Such inadequacy may either fall under the signs of a criminal offense or an administrative offense, or be qualified as an abuse of the right.

One of the aspects of the universal rule of the inadmissibility of the exercise of one’s right to the detriment of another person is a consistently formed in judicial practice the idea of ​​the unconditional priority of the value of human life and health in comparison with material values. The consequence of this is the prohibition of the protection of rights, the subject of which is the material value, in ways that endanger the life and health of others (for example, fencing a land plot with high-voltage wire).

13. In spite of the fact that civil law allows for self-defense rights - actions in the state of necessary defense (article 1066 of the Civil Code), extreme necessity (article 1067 of the Civil Code) and so-called measures of operational impact (for example, article 359, paragraph 3 Article 715 of the Civil Code), a priority position in the developed system of law and order belongs to the jurisdictional forms of protection of rights. The most important among them is the judicial procedure for the protection of the right, which is most adequate to the current state of civil circulation and the specifics of civil legal relations. Judicial decision, made with regard to established and tested judicial practice, after becoming effective, becomes an important factor stabilizing both the development of a specific civil legal relationship, and (through a combination of such relations) the existence of the entire civil turnover.

Occurred in the 90s. In the 20th century, the transition of domestic legal proceedings from the so-called inquisitorial justice system to the adversarial system was a consistent step towards ensuring genuine equality of participants in civil law relations, encouraging the rule of law to be active in defending their rights and law-abiding.

A significant part of civil cases is allowed by the courts of general jurisdiction - world and federal. The judges of the peace are subject to disputes, the nature of which does not imply the handling of cases of great complexity (see Article 23 of the Code of Civil Procedure). Cases of indisputable penalties are considered by magistrates in a simplified and expedited manner of the so-called mandative proceedings (Chapter 11 of the Code of Civil Procedure).

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   Civil Procedure Code of the Russian Federation // collected legislation of the Russian Federation. 2002. N 46. Art. 4532.

Disputes arising in the course of business activities are resolved in the system of arbitration courts. A specific variant of the judicial protection of the violated right is an appeal to the Constitutional Court of the Russian Federation. Such appeal appeals either the content of the existing rule of law, or the established practice of its application by the courts of general or arbitration jurisdiction, by which the latter were denied protection of the right.

Unlike the Anglo-American legal system, the Russian judicial system does not use precedent technique, according to which a previous court decision may have the value of a source of legal regulation and be used to resolve another similar dispute. In this regard, the practice of Russian courts is contradictory in nature and needs to be improved in the study, synthesis and analysis undertaken both at the informal and at the official level. The uniformity of judicial practice is achieved through the publication of higher judicial instances (the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation), which are obligatory for execution by lower courts and therefore fulfill the role of models of interpretation of the law. At the same time, in giving the decisions of the higher courts the status of judicial precedents in the strict sense of this term, which has been talked about a lot lately, our legal order is hardly ready.

The decisions of the Constitutional Court of the Russian Federation can perform a dual role - both interpreting the law to identify its meaning and method of application that do not contradict the Constitution of the Russian Federation, and to terminate the norms, the discrepancy of which to the Constitution of the Russian Federation is revealed by the Court. In the second case, the decision of the Constitutional Court of the Russian Federation is essentially the meaning of the source of legislation.

It is noteworthy that in some decisions the Constitutional Court of the Russian Federation formulates the general principles of legislation. For example, in Definition of December 4, 2007 N 966-GO, one of the fundamental aspects of the rule of law requirement is the requirement of legal certainty.

14. Along with the basic principles of civil law listed in the commented article, they constitute its meaning and allow the application of the law by analogy, art. 6 of the Civil Code of the Russian Federation names three institutions comparable in their importance to the entire array of civil and legal regulation. This comparability allows us to consider the integrity, reasonableness and fairness of the behavior of participants in civil legal relations as principles of civil law, called in the legislation.