Up
Reform of the CC RF gave integrity of second life
22.03.2013
Anna Kotova-Smolenskaya, associated partner of the Law firm «YUST», lawyer, PhD in law New edition of the Civil code of the Russian Federation has expanded the list of principles of the civil law honesty. Despite some declaratory of principles that, in General, we can say about any branch of law), they receive an absolutely concrete application in practice. What consequences - positive or negative - will the unconditional presumption of good faith? Since the adoption of the Civil code of the Russian Federation and until the entry into force on 1 March 2013 changes in it questions the integrity of General regulated by only two provisions: p. 2 item 6 of the civil code of the Russian Federation, which determines the application of civil legislation by analogy, and paragraph 3 tbsp. 10 of the civil code, defining the limits of exercise of civil rights. Changes in the civil code constitute the most popular honesty Previously in force regulations categories integrity assigned the role of the reserve mechanism to establish the rights and duties of civil relations. That is, before the issue of good faith should apply when the related rights and obligations have not been expressly regulated by law. It should be recognized that in practice, in such a context, the principle of good faith is almost not used. In normal operating p. 3 tbsp. 10 of the civil code integrity of participants of civil relations connected with those cases, when by direct reference to the law the possibility of protection of civil rights was made dependent on the integrity of their implementation. Such cases are not so many. In this context, the principle of good faith, for example, was used for the assessment of the lawfulness of the actions of the persons acting on behalf of the legal person (article 53 of the civil code), as a basis for the acquisition of ownership by acquisitive prescription (article 234 of the civil code), and as a condition of protection of the rights of the owner of the vindication lawsuit (article 302 of the civil code). Thus, it turns out that formally integrity in both the standards was seen as subsidiary category, not as common for all participants of civil relations rule of conduct. The only doctrinal integrity has always been regarded as a basic principle of civil law, but not being specified as such in the law, is not seen properly by the courts in the resolution of specific disputes. Moreover, such an approach to the formulation of the principle of good faith has addressed in the courts of many disputes in which protested the actions of the parties in terms of their formal inconsistencies any requirements of the legislation, but completely ignoring the issues of integrity. That is why we have a lot of examples of judicial disputes on a recognition not concluded or invalidity of transactions on formal (conditionally, we can even say far-fetched) grounds, which by coincidence, one of the parties has lost interest, which, in turn, with its mass destabilizes the civil circulation in General. This fact, quite rightly, it was particularly emphasized in the Concept of development of civil legislation, appropriate amendments to legislation proposed in the amendment of the civil code and in the part of the General provisions already adopted as law (Federal law of 30.12.2012 № 302-FZ). It could also be noted that the question of good faith stands up in court disputes in recent times, the good trend of two-three previous years is that the answer to this question more and more depends on the resolution of a specific dispute. In the new edition of the civil code of the Russian Federation the integrity of the rule of conduct In the first package of amendments to the CCRF, which entered into force on March 1 of this year (except for certain provisions), the principle of good faith is established among the basic principles of the civil legislation in paragraphs 3 and 4 tbsp. 1 of the civil code (in new revision). Into force of these changes on the participants of civil relations is entrusted duties of the duty to act in good faith and in determining, and in the exercise and protection of civil rights, as well as prohibited to take advantage of their illegal or dishonest behaviour. Due held on the changes that have happened legal fixation of the principle of good faith, integrity behavior became the rule. Following the novelty is now in article 10 of the civil code, which underwent a significant change, it is now established: the integrity of participants of civil legal relations shall be conclusively presumed in all cases. That is eliminated previously existing conditionality assessment of actions by parties on the subject of good faith defined in law cases. In addition, it should be noted importance of the given regulations with the view that, since the integrity of the conduct of the parties, it is presumed that if a dispute arises party is not obliged to prove his honesty. The burden of proof of bad faith of his opponent lies on the other side. Obviously unfair exercise of the civil rights due to the new edition of the senior 10 of the civil code is defined as abuse of the law, the legal consequence of which is the failure to protect the rights or other measures envisaged by the law. Amendments to the law removed the vagueness of the notion of «honesty» Held-in-law changes of regulatory issues integrity clearly should lead to expansion of the application of this fundamental principle in practice. Meanwhile, in our opinion, the absence of the law still no exact criteria of good conduct opens a rather broad scope for judicial discretion in the interpretation of this term. Analysis of the current judicial practice shows that in every case the integrity of the contending parties was estimated along with a whole range of other circumstances occurring within their relationships. Thus, it turns out that each held a judicial act, which was reviewed by the honesty of the parties, in essence, on a set investigated the circumstances, as a rule, is unique, and therefore may not be suitable for use as a model for other situation, including in the preventive purposes. The existence of a statutory criteria of fairness in would help greatly to Orient themselves as participants of civil legal relations, and courts in the resolution of specific disputes. For example, as such a criterion can be seen awareness person for infringement of rights or interests protected by law of another entity as a result of certain actions (inaction). Based on this criterion, fair, it is suggested actions (inaction) of a person, if it is of the Commission is not aware and had no reasonable grounds to assume that their performance leads to violation of rights and legitimate interests of other persons. In particular, if we try to apply the criterion for a successful judicial acts, he seems to be quite versatile. The source of the publication - the newspaper "Economy and life", №11. 2013.
Anna Kotova-Smolenskaya, associated partner of the Law firm «YUST», lawyer, PhD in law New edition of the Civil code of the Russian Federation has expanded the list of principles of the civil law honesty. Despite some declaratory of principles that, in General, we can say about any branch of law), they receive an absolutely concrete application in practice. What consequences - positive or negative - will the unconditional presumption of good faith? Since the adoption of the Civil code of the Russian Federation and until the entry into force on 1 March 2013 changes in it questions the integrity of General regulated by only two provisions: p. 2 item 6 of the civil code of the Russian Federation, which determines the application of civil legislation by analogy, and paragraph 3 tbsp. 10 of the civil code, defining the limits of exercise of civil rights. Changes in the civil code constitute the most popular honesty Previously in force regulations categories integrity assigned the role of the reserve mechanism to establish the rights and duties of civil relations. That is, before the issue of good faith should apply when the related rights and obligations have not been expressly regulated by law. It should be recognized that in practice, in such a context, the principle of good faith is almost not used. In normal operating p. 3 tbsp. 10 of the civil code integrity of participants of civil relations connected with those cases, when by direct reference to the law the possibility of protection of civil rights was made dependent on the integrity of their implementation. Such cases are not so many. In this context, the principle of good faith, for example, was used for the assessment of the lawfulness of the actions of the persons acting on behalf of the legal person (article 53 of the civil code), as a basis for the acquisition of ownership by acquisitive prescription (article 234 of the civil code), and as a condition of protection of the rights of the owner of the vindication lawsuit (article 302 of the civil code). Thus, it turns out that formally integrity in both the standards was seen as subsidiary category, not as common for all participants of civil relations rule of conduct. The only doctrinal integrity has always been regarded as a basic principle of civil law, but not being specified as such in the law, is not seen properly by the courts in the resolution of specific disputes. Moreover, such an approach to the formulation of the principle of good faith has addressed in the courts of many disputes in which protested the actions of the parties in terms of their formal inconsistencies any requirements of the legislation, but completely ignoring the issues of integrity. That is why we have a lot of examples of judicial disputes on a recognition not concluded or invalidity of transactions on formal (conditionally, we can even say far-fetched) grounds, which by coincidence, one of the parties has lost interest, which, in turn, with its mass destabilizes the civil circulation in General. This fact, quite rightly, it was particularly emphasized in the Concept of development of civil legislation, appropriate amendments to legislation proposed in the amendment of the civil code and in the part of the General provisions already adopted as law (Federal law of 30.12.2012 № 302-FZ). It could also be noted that the question of good faith stands up in court disputes in recent times, the good trend of two-three previous years is that the answer to this question more and more depends on the resolution of a specific dispute. In the new edition of the civil code of the Russian Federation the integrity of the rule of conduct In the first package of amendments to the CCRF, which entered into force on March 1 of this year (except for certain provisions), the principle of good faith is established among the basic principles of the civil legislation in paragraphs 3 and 4 tbsp. 1 of the civil code (in new revision). Into force of these changes on the participants of civil relations is entrusted duties of the duty to act in good faith and in determining, and in the exercise and protection of civil rights, as well as prohibited to take advantage of their illegal or dishonest behaviour. Due held on the changes that have happened legal fixation of the principle of good faith, integrity behavior became the rule. Following the novelty is now in article 10 of the civil code, which underwent a significant change, it is now established: the integrity of participants of civil legal relations shall be conclusively presumed in all cases. That is eliminated previously existing conditionality assessment of actions by parties on the subject of good faith defined in law cases. In addition, it should be noted importance of the given regulations with the view that, since the integrity of the conduct of the parties, it is presumed that if a dispute arises party is not obliged to prove his honesty. The burden of proof of bad faith of his opponent lies on the other side. Obviously unfair exercise of the civil rights due to the new edition of the senior 10 of the civil code is defined as abuse of the law, the legal consequence of which is the failure to protect the rights or other measures envisaged by the law. Amendments to the law removed the vagueness of the notion of «honesty» Held-in-law changes of regulatory issues integrity clearly should lead to expansion of the application of this fundamental principle in practice. Meanwhile, in our opinion, the absence of the law still no exact criteria of good conduct opens a rather broad scope for judicial discretion in the interpretation of this term. Analysis of the current judicial practice shows that in every case the integrity of the contending parties was estimated along with a whole range of other circumstances occurring within their relationships. Thus, it turns out that each held a judicial act, which was reviewed by the honesty of the parties, in essence, on a set investigated the circumstances, as a rule, is unique, and therefore may not be suitable for use as a model for other situation, including in the preventive purposes. The existence of a statutory criteria of fairness in would help greatly to Orient themselves as participants of civil legal relations, and courts in the resolution of specific disputes. For example, as such a criterion can be seen awareness person for infringement of rights or interests protected by law of another entity as a result of certain actions (inaction). Based on this criterion, fair, it is suggested actions (inaction) of a person, if it is of the Commission is not aware and had no reasonable grounds to assume that their performance leads to violation of rights and legitimate interests of other persons. In particular, if we try to apply the criterion for a successful judicial acts, he seems to be quite versatile. The source of the publication - the newspaper "Economy and life", №11. 2013.
Rankings and Partners
