Roman law knew different ways of making formal transactions: the liberal form (mancipatio, nexum were made with its help), stipulatio, in jure cessio, and also the written form (contractus literalis). A feature of the forms of transactions of ancient Roman law is their complexity and symbolism. The visibility and figurativeness of the formalism of Roman law corresponded to the mentality of ancient man. The rituals and rituals used to formalize transactions were intended to materialize the abstract process of concluding an agreement, to publicize the legal action, and to clearly demonstrate the legal act being performed.
The forms of transactions developed in Roman private law, like many of its other institutions, were borrowed by other legal orders. So, in one of the normative acts of Spain, Seven Parts ( Siete Partiedas) of King Alphonse X the Wise, whose appearance dates back to about the middle of the 13th century AD, it was provided that some contracts of obligations should be made in the form of a stipulation, following the model of classical Roman private law.
However, the formal approach to the conclusion of transactions is not an exclusive feature of Roman private law. Formalism is characteristic of many legal orders at the dawn of their development. However, in each legal order, their own, peculiar forms were also known, fixing the fact of a legal action. So, in Germany during the early Middle Ages, in order to transfer ownership of a land plot, along with the consent of the alienator and acquirer, a special ceremony was required. First, the seller handed over to the buyer elements that personify the land: a handful of earth, a branch, a bunch of grass, then transferred the symbols of his power: a glove, a knife, a boiler hook. In conclusion, both parties to the transaction together walked around the boundaries of the land, after which the alienator formally left the land, and the acquirer performed a solemn ceremony of taking possession.
The law of Ancient Russia, in comparison with the Roman private law, was less developed, in this regard, only a few authors in their studies refer to the provisions of the Russian Truth, other normative acts of that time. At the same time, ancient Russian law has its own specific features. It reveals the features of the mentality and culture of Ancient Russia. Despite the fact that modern Russian law was largely formed under the influence of foreign legal orders, the origins of modern legal regulation still lie in ancient Russian normative acts. Therefore, their study is of interest not only from a historical point of view.
It is difficult to judge the development of the formalism of ancient Russian law due to the small number of sources of that time that have come down to us. The main monument of ancient Russian law is Russkaya Pravda. Three editions of Russkaya Pravda have survived, which are usually called Short, Long and Abbreviated. Each of the editions was created at different times, and therefore reflects the socio-economic relations in society in a certain period.
The most ancient edition of Russkaya Pravda, Brief Pravda, contains mainly the norms of criminal law and procedure, while civil law norms are practically absent. The originality of formalism in Russia is especially evident in the rules on the administration of justice and proof. To confirm their words, the parties were sworn in, referred to witnesses, a test of iron, fire (hordeals), a duel (field) was used. And if in the oath used as evidence in the process, one can see something similar to the solemn oath of sponsio known in Roman law, then the use of hordes and combat duel to establish the guilt of a person testify to the influence of pagan culture in the early stages of the formation of Russian law.
The formalism of ancient Russian law differs from the formal approach of Roman private law. Ancient Russian law knew fewer forms of transactions than they were known in Rome. In addition, those manifestations of formalism that abound in the private law of Rome, such as the pronunciation of solemn formulas, are poorly developed in the law of Ancient Russia. For example, the Brief Truth provided for the need to pronounce the oral formula in only one case. According to Art. 16 the owner, who recognized his missing servant, had to lead him “to the third” seller, from whom he could claim it, saying: “give me your servants, and you look for your cattle at the sight”, which meant “give me your servant, and you look for your money in front of a witness. The extensive truth consolidates already a greater number of oral formulas.
Civil law relations, which at first belonged to the sphere of customary law and were not regulated by written law, over time also began to fall into the field of view of the legislator. N. Duvernoy wrote about this: “From the sphere of offenses, dogma is gradually moving into the area of defining free property and personal relations. Next to the practice of the court for crimes, the practice of courts for transactions, for contracts, for inheritance is formed. The Spacious Truth already includes a significant number of provisions on transactions, the consequences of their non-fulfillment, inheritance by law and will, the procedure for implementing civil litigation.
Russian law has always been characterized by the performance of legally significant actions in public. For example, according to Art. 15 of the Short Truth, it was necessary to demand a debt from someone who “starts locking” (begins to unlock) in the presence of 12 husbands. Contracts were usually made orally. In the Spacious Truth, it is fixed that witnesses should now be invited to formalize the transaction. At the same time, as in Roman law, the participation of witnesses had not only evidentiary value, but was also a necessary, constitutive element of the form of the transaction. This is confirmed by Art. 52 of the Long Truth, which prohibits the collection of a debt, the amount of which exceeded 3 hryvnia kunas, if there were no witnesses at the time of the transaction: “you were pardoned, if you didn’t put rumors (it’s your own fault if you didn’t put witnesses when giving money)”. It was possible to swear an oath or give other evidence, however, "rumors are needed for a deal to be made."
Only free people, men, were allowed to testify. The legal capacity of the non-free population (serfs) in Russia, as in other feudal legal orders, was significantly limited. The serf could not act as a witness in court, he was not entitled to acquire real estate for himself, the rights and obligations under transactions concluded by the serf were borne by the owner, he was also responsible for the damage caused by the serf.
The meaning of the forms of transactions used in the early stages of the development of Russia was not only to fix the content of the transaction, which, of course, was of great importance in the event of a dispute, but also to make legal actions public, to bring their commission to the attention of other persons. As witnesses, neighbors and acquaintances were usually invited, who could confirm the conclusion of the transaction for third parties and at the same time were themselves notified of its completion.
In the later period of the development of Russian law, along with symbolic, ritual forms of transactions, others develop that have been preserved in modern civil law, such as the written form of transactions. Just as in Roman private law, the written form of transactions comes to Russian law from Greek culture. One of the first written agreements in Russia were the peace treaties of Oleg (911) and Igor (945) with the Greeks. Russkaya Pravda does not contain any instructions on the written form of civil law transactions or other legal actions, therefore, it is impossible to speak about the use of the written form during this period. However, we can say with certainty that in the XIV - XV centuries. along with the oral, the written form of concluding contracts began to be used. This is evidenced by the provisions of the Pskov Judicial Charter (1397 or 1462), which occupies a central place in a number of collections of local law of this time. The Pskov court charter already knows several types of written forms of transactions: a record and a board.
The record was a written document, a copy of which was transferred for storage to the archives of the Trinity Cathedral. In litigation, the record was official document, not subject to dispute . The special probative power of the record was based on the approval of this document by the princely authorities. As can be seen from Art. 82 of the Pskov Judicial Charter, the entry was usually made by the prince's scribe, and the prince's seal was attached to the document. A princely certificate of record was also required when a document was drawn up by another person, which was allowed in an exceptional case: if the scribe demanded a fee “beyond his strength”, i.e. in excess of the size determined by the Pskov charter.
The board was a simple household document written on the board, a copy of which was not deposited. Therefore, the board could be challenged in court and, in comparison with the recording, had less legal force. For example, according to Art. 14 Pskov charter if available spiritual testament, handed over to the archive, it was impossible to reclaim from the heirs the property transferred to the person before his death under a storage agreement, loan or on another basis, if the agreement on this was drawn up only by a board. The only exceptions were those cases when the board was provided with a mortgage.
The conclusion of a loan agreement when drawing it up on the board was allowed only if the loan amount did not exceed one ruble. With a larger loan amount, the record should have been executed. At the same time, the form was a condition for the validity of the contract.
In addition to the loan agreement, it was necessary to conclude a deposit (observance) agreement in writing (Article 19 of the Pskov Judicial Charter), exceptions were cases of transferring things for storage in emergency circumstances (Articles 16-17) .
In addition to the above written forms of transactions, the Pskov Judicial Charter mentions rows (receipts) that were issued to the debtor by the creditor upon performance of the obligation. Ryadnitsy did not affect the validity of the obligation in any way, but served in court as evidence of the fact of its fulfillment. The probative force of receipts, as well as the force of written forms of transactions, was determined by the fact of their transfer to storage in the archive. If the receipt was not handed over to the Trinity Cathedral, then the court did not accept it as evidence, and the party referring to it lost the dispute. At the same time, it did not matter how the contract from which the demand was made was drawn up. A receipt that was not archived was not evidence either against the record or against the board.
The Pskov Judicial Charter is the first legal act, firstly, to use writing to formalize transactions in Russia, and secondly, to make the validity of contracts dependent on compliance with the written form. The division of the written forms of transactions by legal force resembles the modern division of the written form into simple and qualified. During the period of the Pskov charter, public authorities for the first time in history Russian law began to be involved in the execution of written contracts, and its authority imparted a special probative force to a written document. The record is a prototype of the modern notarial form of transactions.
At the end of the 16th century, the written form of transactions began to acquire increasing importance and further development contractual formalism in Russia followed the path of spreading the written form for everything more contracts.
See: Roman private law: Textbook / Ed. I.B. Novitsky, I.S. Peretersky. - M.: Jurisprudence, 2001. - S. 294 et seq.; Pukhan I., Polenak-Akimovskaya M. Roman law: basic textbook: Per. from Macedonian / Ed. V.A. Tomsinova. - M.: Zertsalo, 2000. - S. 228.
See: Zagursky L.N. Elementary textbook of Roman law. A common part. - Kharkov: Printing house I.M. Varshavchik, 1897. - S. 260.
Zom R. Institutions. Textbook of the history and system of Roman civil law/ Per. from German G.A. Barkovsky. - St. Petersburg, 1908. - S. 58.
See: Pfaff V. On the formal contracts of ancient Roman law. - Odessa: Printing house of P. Frantsov, 1866. - S. 15, 39.
See: Kaser M. Römisches Privatrecht: Ein Studienbuch. - Berlin, Munich: C.H. Beck" sche Buchhandlung, 1962. - S. 32.
See: Ningelgen S. Formvorschriften im spanischen Recht. - Frankfurt a. Main: Deutsch-Spanische Juristenvereinigung, 1992. - S. 14; Heusch C.-A. Dei electronische Signatur. - Berlin: Tenea Verlag für Medien, 2004. - S. 4.
The name "Russian Truth" was established in the literature. Genuine listings ancient monument written Russian law are called longer, for example: “Court of Yaroslav Vladimirovich. Russian Pravda" or "Charter of the Grand Duke Yaroslav Vladimirovich on the courts. Murder Court. True Russian. See: Malinovsky J. Lectures on the history of Russian law. Tomsk: Typo-lithography of the Siberian Press Association, 1907. - Issue. 1 program. Introduction. Sources. - S. 208.
There is no consensus among historians regarding the legal force of Russkaya Pravda. Some - recognize it as the official code of princely law (See: Evers I. F. G. The oldest Russian law in its historical disclosure / Translated from German by I. Platonov. - St. Petersburg, 1835. - P. 302), others - consider that Russian truth is a mixed act, which includes both “primitive acts” (texts of princely statutes, charters, borrowed from Byzantine law) and recorded court decisions, customs that were combined into a written document by an “outsider” ( chronicler) and were used as a court guide. See: Malinovsky J. Decree. op. - S. 204 et seq.; Duvernoy N. Sources of law and court in ancient Russia. Experience in the history of Russian civil law. - M.: Univ. Printing house, 1869. - S. 44, 63; Klyuchevsky V.O. Brief guide to the history of Russia. - M., 1906. - S. 42.
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As we know, according to the methods of regulation, law is divided into private and public. The main difference is that private law is based on equality of rights; in public law, one of the parties has powers over the other. Civil law is perhaps one of the most striking (if not the only) example of private law. At the same time, it is interesting that the civil law of the countries of the Romano-Germanic legal system based almost entirely on Roman private law. Indeed, already in ancient Rome, such relevant institutions of law as mortgages, inheritance, and the like were developed today. It should be noted that civil law was transformed, but did not change. Nothing better than Roman private law has been invented for 1.5 millennia. Currently, there are many branches of law that have emerged from civil law and become independent. For example, joint-stock, housing, bill of exchange, entrepreneurial, etc. But let's go in order: first, consider the process of the emergence of law in Ancient Russia, and only then turn to the present. Ancient sources law in Russia The law among the Eastern Slavs arose simultaneously with the state, no so-called communal law existed before the emergence of the state. What are the sources of law in this period? First of all - customary law, the norms of which have not reached us. It is known that around the 9th century the so-called Russian Law was in force. Its text has not yet reached us. Most likely, it was a written collection in which there were rules of customary law. The first known written source of law is Oleg's treaty with Byzantium in 911. It also mentions the Russian Law, which contained some norms of the criminal law of Ancient Russia. One of the articles of this Law provided for liability for murder - the death penalty at the scene of the crime. The emergence of the Old Russian state was naturally accompanied by the formation of Old Russian law, historically the first source of which was legal customs - the norms of the customs of pre-class society, sanctioned by the emerging state. Among them you can find blood feud, the principle of talion - "equal for equal." The totality of these norms of the annals and other ancient documents is called the "Russian Law". The first written monuments of ancient Russian law that have come down to us were the agreements between Russia and Byzantium. Concluded after successful military campaigns, these treaties were of an international legal nature, but at the same time they reflected the norms of the Russian Law. (From these treaties, we, in fact, know about the main content of ancient Russian customary law). Treaties of 911, 944 and 971 contained norms of commercial law, for example, the rules for registering individual goods "pillowed". Princely legislation as a source of law appears in Russia in the tenth century. Of particular importance are the statutes of Vladimir Svyatoslavich, Yaroslav, who made changes to the current financial, family and criminal law. The charter of Vladimir determined the relationship of princely power with the church. He provided for the establishment of a tax in favor of the church (the so-called tithe). During the time of Vladimir, church land ownership had not yet developed, so then the tithe was the main source of income for the clergy. The Church, according to the Charter, received the right to judge against the clergy and all people subject to the church. In addition, cases were listed that were considered by the church court in relation to any person. The competence of the church included mainly matters in the field of family and marriage relations. The charter of Yaroslav was devoted mainly to family and marriage relations, crimes against the family and morality. There were punishments for these deeds, as it were, dual and from; prince and from the bishop. Almost all punishments are of a property nature. Only in one case was the death penalty envisaged - Art. 13 of the Charter. This article established the responsibility of the husband for bigamy. A punishment of 40 hryvnia was set in favor of the bishop, and an illegal wife (usually young) was confined to a monastery. If the husband did harm to his lawful wife (for example, he will kill annoyed that he was separated from a younger one), then in this case, perhaps, the death penalty was applied. In the Charter of Yaroslav there are articles that have a pronounced class character. For the rape and insult of a woman, a fine was established, the amount of which depended on the position of the victim. If the victim was the wife or daughter of a boyar, then the largest amount. If a small boyar, then less if common man, then even less. Russkaya Pravda The largest monument of ancient Russian law is Russkaya Pravda, which retained its significance in subsequent (beyond Kyiv) periods of Russian history. Russian Pravda was compiled over a long period of time (in the 11th-11th centuries), but some of its articles go back to pagan antiquity. For the first time, its text was discovered by V.N. Tatishchev in 1738. Now more than a hundred of its lists are known, which differ significantly from each other in terms of volume, structure, and content. The legal monument is usually divided into three editions (large groups of articles, united chronologically and semantic content): Short, Long and Abbreviated. The Brief Edition includes two components: the Truth of Yaroslav (or the Most Ancient) and the Truth of the Yaroslavichs - the sons of Yaroslav the Wise. Yaroslav's Truth includes the first 18 articles of the Brief Edition and is entirely devoted to criminal law. Most likely, it was compiled when there was a struggle for the throne of Kyiv between Yaroslav and his brother Svyatopolk (1015-1019). The mercenary Varangian squad of Yaroslav dealt with the Novgorodians, thereby laying the foundation for a protracted and unprofitable conflict for Yaroslav. In an effort to appease the Novgorodians, he "gave" them Pravda, commanding them to "walk according to her letter." The truth of the Yaroslavichs includes the following two dozen articles of the Brief Edition (the so-called Academic List). As it is clear from its title, the collection was developed by the three sons of Yaroslav the Wise with the participation of their closest associates. The composition of the text dates back to about the middle of the 11th century. From the second half of the same century, a lengthy edition began to take shape, which took shape in the final version in the 12th century. By level of development legal institutions it's already next stage in the development of Old Russian law, although along with the new regulations, the Long Truth also includes modified norms of the Brief Edition. It presents criminal and inheritance law, thoroughly developed the legal status of various categories of the population. By the XIII-XIV centuries. refers to the emergence of the Abridged Edition, which is a selection of the articles of the Long Truth, adapted to regulate the more developed social relations of the period of political fragmentation in Russia. In addition to Russkaya Pravda, which stood at the center of the legal system of the Old Russian state, in the era of Kievan Rus, church charters of princes Vladimir and Yaroslav the Wise were known from legal sources, from which the history of church legislation came, as well as articles from legal collections of other Slavic peoples. Used, for example, "Law Judgment people" from Bulgaria. The Pilot's Books, Byzantine collections of ecclesiastical and civil decrees, mostly related to the field of family and marriage law, were also important. The whole set of legal customs and laws that were in force in Russia created the basis for a fairly developed system of ancient Russian law. Like any feudal right, it was a right-privilege, i.e. the law provided for the inequality of people belonging to different social groups. So, the serf had almost no rights. The legal capacity of smerds, especially purchases, was very limited. But the law took the rights and privileges of the top of the feudal society under enhanced protection. Civil law in Russia Russkaya Pravda and other sources of ancient Russian law quite clearly distinguish between two main parts of civil law - the right to property and the law of obligations. The right of ownership arises with the establishment of feudalism and feudal ownership of land. Feudal property is formalized in the form of a princely domain (land property belonging to a given princely family), a boyar or monastic estate. In the Brief Edition of Russian Pravda, the inviolability of feudal land ownership is fixed. In addition to ownership of land, she also speaks of the ownership of other things - horses, draft animals, serfs, etc. As for the law of obligations, Russkaya Pravda knows obligations from contracts and obligations from causing harm. Moreover, the latter merge with the concept of crime and are called resentment. Old Russian law of obligations is characterized by foreclosure not only on property, but also on the person of the debtor, and sometimes even on his wife and children. The main types of contracts were contracts of exchange, purchase and sale, loan, luggage, personal hiring. Agreements were concluded orally, but in the presence of witnesses - rumors. The purchase and sale of land apparently required a written form. When selling a stolen item, the transaction was considered invalid, and the buyer had the right to claim damages. The loan agreement is most fully regulated in Russian Pravda. In 1113, there was an uprising of the lower classes of Kyiv against usurers, and Vladimir Monomakh, called by the boyars to save the situation, took measures to streamline the collection of interest on debts. The law in the form of an object of a loan names not only money, but also bread and honey. There are three types of loans: regular (household) loan; a loan made between merchants (with simplified formalities); self-mortgage loan - purchasing. viewed different kinds interest depending on the term of the loan. Interest collection period is limited to two years. If the debtor paid interest within three years, then he had the right not to return the amount owed to the creditor. The short-term loan entailed the highest interest rate. Modernity Now let's return to the present and consider civil law in more detail. The source of law is the external form of expression of law, that is, the set of normative acts that contain the rules of law. Legal norms find their official expression in legislation. Civil law finds its expression directly in the Civil Code and a number of special laws. The Civil Code is the main legislative act that unites the norms of civil law. There are also all sorts of special regulations (for example, Federal laws). But since the Civil Code is a fundamental document, we will consider it more carefully. Article 71 of the Constitution referred to the jurisdiction of Russian Federation civil, civil procedural and arbitration procedural legislation. Accordingly, paragraph 2 of Art. 3 of the Civil Code establishes that civil legislation consists of the Code and other federal laws adopted in accordance with it, regulating civil relations. The Civil Code is not among the federal constitutional laws, since it does not meet the requirements for such acts of Art. 108 of the Constitution of the Russian Federation. This means that a federal constitutional law is adopted, firstly, only on issues specified by the Constitution (the adoption of the Civil Code as a federal constitutional law is not provided for by the Constitution), and, secondly, in compliance with a special voting procedure that implies a qualified majority - 3/ 4 votes from the total number of members of the Federation Council and 2/3 votes from the total number of members of the Duma. In contrast, the Code was adopted by a simple majority of votes. At the same time, the Civil Code, in terms of its legal force, is to a certain extent equated with federal constitutional laws. This is expressed in the fact that, in relation to any other federal laws, it occupies the position of "first among equals." The practical significance of the noted special provision of the Civil Code is that in the event of a conflict of civil law norms contained in any normative act (including federal law) with the articles of the Civil Code, the court, like any other body applying the law, is obliged to be guided by the norms of the Civil Code. At the same time, it is important to emphasize that general principles the actions of laws that recognize that a subsequent act supersedes an earlier issued one, and a special one replaces a general act, in this case do not apply. Consequently, the primacy of the Civil Code is absolute, and therefore remains in relation to acts adopted after the entry into force of the Civil Code, and to various kinds of special acts, unless otherwise, that is, the possibility of derogation in such an act from the norms of the Code, in the Civil Code itself directly not expected. We are talking about the reservation available in many articles of the Civil Code: "unless otherwise provided by law." Contemporary Issues sources of civil law regulation. In part one of the Civil Code, a norm appeared that is of fundamental importance not only for civil law proper, but for all Russian legislation: we are talking about Art. 3 of the Civil Code of the Russian Federation, which establishes the following new provisions: 1. The concept of “civil law” now includes only the Code and federal laws adopted in accordance with it. Other regulations no longer apply here; 2. norms of civil law contained in other laws must comply with the provisions of the Civil Code; 3. Relationships covered by the Civil Code may be regulated by decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation, but if these acts contradict the provisions of the Code or other law, the Civil Code shall apply. None of the acts so detailed and clearly fixed the leading role of the Code in relation to other legal acts. According to Art. 3 of the Civil Code, civil legislation consists of "this Code and other Federal laws adopted in accordance with it." The definition given by the Code is “narrow”. The scientific doctrine gives a broader concept of civil legislation, which includes: decrees of the President of the Russian Federation, resolutions and orders of the Government of the Russian Federation, acts of ministries and departments, normative acts of the USSR and the CIS. Types of sources: Legal acts: the Constitution of the Russian Federation, the Civil Code of the Russian Federation, federal laws that constitute civil legislation; Decrees of the President, resolutions of the Government, which are created on the basis of and in pursuance of the law within the established competence. The Constitution of the Russian Federation establishes the most general provisions of civil law regulation, gives a reference to sectoral codified regulations that are designed to regulate all social relations that are part of the subject of civil law. These acts are the basis for the development of all civil legislation. The federal law. The issue of the Federal Law is poorly resolved in the Civil Code. The federal law regulates certain types of social relations, sometimes the question of which normative act to apply in the first place is decided not in favor of the Civil Code. Other acts include decrees of the President of the Russian Federation. These are by-laws. "Should not contradict the Civil Code." Decrees of the Government of the Russian Federation are adopted on the basis of and in pursuance of the Civil Code and other laws. In case of conflict, the Civil Code may be canceled. Acts of ministries and departments. Instruction “On registration of acts of ministries and departments of the Ministry of Justice”. Must be registered in the prescribed manner. Norms international law . Russia's integration into the world economy leads to the fact that international legal acts and treaties take an increasing place in Russian legislation. The norms of international law take precedence over the norms of the Civil Code. Complication of the system of sources of civil law by normative acts of the USSR and the Russian Federation. Their applications. Business practices. They are not sources of civil law, but are sources of civil law regulation. They are used exclusively in the field of business relations. The concept of sources of civil legislation in accordance with the Civil Code is “narrow” and does not include all sources of civil law regulation, the scientific doctrine gives a broader concept to legislation than the Code, due to the fact that civil legislation is in the development stage. The dominant role of the Civil Code in the system of civil legislation does not solve all the problems associated with the application of civil law, since the relations regulated by civil law are very voluminous and constantly changing and developing. In this regard, it is relevant to use other sources of civil law regulation, which in turn causes certain difficulties with their application. In addition, in a number of cases specified in the law, international treaties and foreign civil laws can be used as sources of civil law. Application of civil laws of foreign states and international treaties Russia is an active participant in international economic and cultural ties and cooperation. This means that relations with the participation of foreign entrepreneurs are expanding more and more. Due to the noted circumstance, Russian civil legislation, like the legislation of other countries, is forced to include many rules related to such relations. These norms determine the civil law status of foreign individuals and legal entities, the rights of foreigners to property found on the territory of the Russian Federation, the procedure for making and maintaining foreign economic transactions (contracts), the application of civil law consequences of causing harm to foreigners and foreigners on the territory of Russia, etc. In this regard, relations are regulated both by general norms of civil law and by special norms designed for relations "complicated by the participation of a foreign element." At the same time, international law plays an important role in regulating such relations. Appropriate instructions in this regard are contained in the Constitution of the Russian Federation itself. By virtue of paragraph 4 of Art. 15 of the Constitution "generally recognized principles and norms of international law and international treaties of the Russian Federation are an integral part of its legal system." The above provision is also reproduced in paragraph 1 of Art. 7 of the Code. Among international acts, a special place is occupied by multilateral treaties (conventions) that are directly related to the regulation of civil relations. First of all, we should point to the UN Convention on Contracts for the International Sale of Goods (Vienna Convention). The specified Convention consists of 101 articles. They are devoted to the procedure for concluding relevant contracts, the rights and obligations of counterparties, remedies applied in case of violation by the parties of their obligations, determining the moment of transfer of the risk of accidental loss of goods transferred under the contract, ensuring the supply of goods in separate batches, etc. Russia is a party to other similar acts, including, in particular, the Convention on the Contract for the International Carriage of Goods by Road (meaning road transport), the Warsaw Convention for the Unification of Certain Rules Concerning International Carriage by Air, the Athens Convention on the Carriage of Passengers and Their Luggage by Sea, conventions in the field of patent law (the Patent Convention on the Protection of Industrial Property, the Multilateral Treaty on Patent Cooperation, the Convention on the International Registration of Factory and Trademarks), a number of other conventions, including the Universal (Geneva) Convention on Copyright, the Geneva Bills of Exchange Convention, etc. Sun international treaties that have entered into force for the Russian Federation (except for treaties concluded between departments) are subject to official publication in the monthly Bulletin of International Treaties, and, if necessary, also in Rossiyskaya Gazeta. Code in paragraph 2 of Art. 7 prevents possible conflicts between international and national legislation. The issue is resolved in favor of the first: "if an international treaty of the Russian Federation establishes rules other than those provided for by civil law, the rules of the international treaty shall apply." Currently, the corresponding rule on the priority of an international treaty in relation not only to civil legal relations, but also to any other branch of law is included in the Constitution of the Russian Federation (clause 4, article 15). And last but not least, I want to laugh a little. After all, sometimes, guided by serious legal instruments, you can behave very strangely. Here are some examples from Russian history consideration of civil claims. Seventeen Years of the Plague In 1559, a dispute arose over a village near Moscow. Andrey Alexandrovich Kvashnin gave the village, his patrimony, to the monastery. Danilo and Vasily Grigoryevich Kvashnins claimed that they were "the same stepfathers as he was" and asked to be given the opportunity to redeem the village (to exercise the right of tribal redemption). New contenders intervened in the case - Novgorod relatives of Kvashnin Mitka Vasilyev son, Voinko, Mikhailo and Semyon Grigoriev children, and also wanted to redeem the patrimony. When asked by the judge why they “tolerated”, they did not go to court for 17 years (so much time has passed since the purchase of the village by A.A. Kvashnin), the plaintiffs replied that there was a “craze” in Novgorod and it was not allowed to travel to Moscow. The judge recognized the reason as disrespectful, since in Novgorod "there is a fad for a while." Kobrin V.B. Power and property in medieval Russia (XV - XVI centuries) - M .: Thought, 1985. S. 184, 194-195. Bad music makes living impossible It happened at the end of the 19th century. An elderly man rented the second floor of a country house as a dacha. The mistress of the house constantly turned on the gramophone on the balcony of the first floor. Music prevented the dacha resident from resting, and he moved out before the expiration of the term, but refused to pay the penalty. The case went to court. The magistrate decided that constantly sounding loud music is injurious to health and makes life impossible; the contract was terminated lawfully, the penalty is not payable. Vinogradov L.A. Renting apartments and other premises. (Collection of laws with clarifications of the Governing Senate on April 1, 1910, scientific interpretations and practice of government and public institutions). - M., 1910. S. 103-104. A horse without control In December 1921, Baulin, a resident of a village in the Moscow province, had his horse taken away, about which he declared to the criminal investigation department of Moscow. In March 1922, a horse exactly the same in terms of signs was stolen from Solovyov from the Kaluga province; Solovyov also turned to the Moscow Criminal Investigation Department. In May, the horse was discovered in the Moscow district and handed over to Baulin. Solovyov learned about the discovery of a horse, which, according to signs, coincided with the one he had lost, went to Baulin, saw his horse and appealed to the people's court. Solovyov's witnesses confirmed that the horse belonged to Solovyov, while Baulin's witnesses confirmed that the horse belonged to Baulin. A way out of the current impasse was found: the horse was taken to the village where Solovyov lived (a distance of more than 100 kilometers!). There, according to an eyewitness, “... the horse was let loose and it went first to a watering place, and then turned towards Solovyov’s house. .. The horse was set off several times without control, and each time it approached Solovyov’s house, never once entering other yards. "The experiment left no doubt: the horse belonged to Solovyov. Molchanov. An interesting judicial case. // Weekly Soviet Justice. 1922. No. 31 / 32. P. 22. References 1. The Constitution of the Russian Federation 2. The Civil Code of the Russian Federation (parts one and two) (as amended and supplemented on February 20, August 12, 1996, October 24, 1997, 8 July 1999) 3. Civil Code of the RSFSR of June 11, 1964 4. Commentary on part one of the Civil Code of the Russian Federation for entrepreneurs (under the general editorship of Braginsky M.I.) 5. Commentary on part two of the Civil Code of the Russian Federation for entrepreneurs (under the general editorship of Braginsky M.I.)
Russkaya Pravda and other sources of ancient Russian law quite clearly distinguish between two main parts of civil law - the right to property and the law of obligations. The right of ownership arises with the establishment of feudalism and feudal ownership of land. Feudal property is formalized in the form of a princely domain (land property belonging to a given princely family), a boyar or monastic estate. In the Brief Edition of Russian Pravda, the inviolability of feudal land ownership is fixed. In addition to ownership of land, it also speaks of the ownership of other things - horses, draft animals, serfs, etc.
As for the law of obligations, Russkaya Pravda knows obligations from contracts and obligations from causing harm. Moreover, the latter merge with the concept of crime and are called resentment.
Old Russian law of obligations is characterized by foreclosure not only on property, but also on the person of the debtor, and sometimes even on his wife and children. The main types of contracts were barter contracts, purchase and sale, loan, luggage, personal hire. Agreements were concluded orally, but in the presence of witnesses - rumors. The purchase and sale of land apparently required a written form. When selling a stolen item, the transaction was considered invalid, and the buyer had the right to claim damages.
The loan agreement is most fully regulated in Russian Pravda. There are three types of loans: regular (household) loan; a loan made between merchants (with simplified formalities); self-mortgage loan - purchasing.
There are different types of interest depending on the term of the loan. Interest collection period is limited to two years. If the debtor paid interest within three years, then he had the right not to return the amount owed to the creditor. The short-term loan entailed the highest interest rate.
Family and marriage law. The family is the union of married persons and persons descended from them. This is a union of people connected by blood ties. Before the emergence of the family, there was a tribal and even tribal "blood" union, and marriage, as such, did not exist: the women of the tribe were the property of the men of the entire tribe. The second stage in the development of this institution is polygamy, when the tribe begins to divide into separate blood groups headed by the mother, the progenitor of the clan. AT social order- this is the time of maternal law - matriarchy (everyone knows the mother, the father is unknown). The next step is a polygamous family under the rule of a patriarchal father - patriarchy (one father, many mothers). And only then, in the process of development of society, a monogamous family arises (one father and one mother).
Already in the pagan era, the Eastern Slavs knew marriage, i.e. such a union for the purpose of cohabitation of a man and a woman, which was based on mutual consent and was concluded in a prescribed form. The brides were either chosen at the games, or the parents, by prior agreement, brought them to the groom's house (near the glades), then receiving a payment (veno). There was also the kidnapping (kidnapping) of the bride. Before the adoption of Christianity and for some time after it, the Slavs allowed polygamy, as we know from the example of Vladimir the Baptist himself. The Christian chronicler, clearly disapproving of the pagan Slavs, writes about it this way: God's, but making the law for themselves."
In pagan times, marriage did not end with the death of the husband, who in some tribes had to be followed by a wife. This did not, however, contradict the full freedom of divorce.
The adoption of Christianity changed the marriage law. Marriage is strengthened and acquires the meaning of a certain sacrament. Influenced by Byzantine law Orthodox Church established the limits of freedom of termination of marriage bonds, eliminated polygamy, introduced the church form of marriage (wedding). True, all these innovations made their way with difficulty, for family and marriage relations form a very conservative side folk life. The sources contain numerous facts of complete disregard for church weddings; up to the 18th century. there are traces of free divorce by mutual agreement.
At the same time, under the influence of Roman law, in Russia they begin to give special meaning the betrothal of the bride and groom, which, having received religious illumination, becomes indissoluble and equal in strength to the wedding. In the language of customary law, it was called "collusion", but in fact it was an agreement between the parties on a future marriage, in particular, it determined the property consequences of a failed marriage. Now betrothal as a mandatory procedure certainly precedes marriage.
Conditions for marriage. 1. Age of marriage. According to Byzantine law, it was 15 years for men and 13 years for women. In Russia, these terms were not respected, marriages were made at a younger age (11 and 10 years). As for the extreme old age, beyond which marriage is impossible, Russian law did not know such an age limit. In any case, there is no data on this. 2. Free zero and parental consent. 3. Freedom of those who marry from another marriage. 4. It was not allowed to enter into a 3rd marriage. 5. Lack of close relationship. 6. Wedding (with the exceptions mentioned). Failure to comply with these conditions could cause the marriage to be declared invalid, with all the ensuing legal consequences.
Conditions for divorce. According to church teaching, marriage is terminated only by the physical death of one of the parties. However, due to important reasons, the marriage was subject to annulment. They could be adultery, the inability of the husband to married life, the inability of the wife to bear children, the entry of one of the spouses into monasticism (taking tonsure), a “contagious” disease, an attempt on life, etc.
The wife was under the control of her husband. His father's custom allowed him to punish his wife as he saw fit. Property rights spouses, unlike the moral ones, tended to be more equal. And in this respect, the rights of the wife were constantly growing. In addition to dowry rights, she. with the adoption of Christianity, she receives the right to common family property, remaining after the death of her husband either as his manager, or by acquiring a division on a par with her sons.
Relationships between parents and children were built on conditions of strict obedience last first. The father - the head of the family - enjoyed unlimited power over his children. Parents had the right to sell their children into slaves, disinherit and even kill without incurring any punishment for this. The first punishment in Russian legislation for the murder of children was established only in the Council Code of 1649, and this punishment was milder than for the murder of an outsider.
After the death of the father, the mother took care of the children, and in the event of her remarriage, a guardian was appointed. They could be a stepfather, but preference was given to one of the closest relatives. At the same time, the mother undertook to return to her children all the cash, and all the property she had spent in the process of managing. Guardianship was terminated with the achievement of maturity, when the wards "would be sad themselves." The age of maturity is not indicated by the sources. Perhaps it was equal to 15 years, as in later times.
ancient russia russian truth
Civil law.
Since ancient times, people have tried to streamline their lives and stabilize the order established in society. Attempts to publish some rules of conduct in society, we see in ancient Babylon, Egypt. Mesopotamia (pillar of Hammurabi - a set of laws in a casual form of presentation). In ancient Greece and, finally, in the Roman Empire, a certain coherent theory of the rules of behavior of a citizen in the state arises from everyday life and customs.
Jus gentium(yus gentsum; jus- law, authority, norms of law) - the Romans announced - the right of peoples (and not only the Roman people), of course, the right of free peoples (a slave is a thing, it is not a subject of law, but an object).
All rights are divided into jus publicum and jus privatum- public and private law. But jus publicum expresses the domination of the state, i.e. binding law and cannot be changed by agreement. AT jusprivatum- the area of private law - includes family relations, property, obligations, inheritance.
Concept introduced later jus civile(civil law) - a set of laws in force in the state - over time acquires precisely the concept of civil law (rights of citizens). Hence the name of the industry - civil law - civil law.
Civil law is a branch of Russian law that regulates property and related relations that develop between individuals, legal entities, public subjects on the basis of equality, autonomy of will, property independence and initiative of the participants in these relations.
Civil Law - this is a set of legal norms governing property and personal non-property relations in order to implement the legitimate interests of subjects of civil law and organizations economic relations in society.
Subject legal regulation of civil law are property and personal non-property related to property relations.
Property relations are relations for the use, possession and disposal of things. Most of the relations regulated by civil law are commodity-money.
History of the development of civil law
The emergence and development of civil law as an independent branch of law is associated with the development of commodity-money relations. Such relationships were first developed in Ancient Rome, where civil law was formed on the basis of customary law and judicial practice magistrates who resolved property disputes, and later on on the basis of legislatively adopted legal provisions formulated by Roman jurists. At that time, civil law was a branched system of legal institutions that regulated commodity relations (purchase and sale, property lease, contract, loan, etc.). Roman law was the most developed form of law in ancient times and it was in it that the main provisions of modern civil law were first formulated. With the fall of the Roman Empire and the accession of barbarian tribes to its territory, the application of Roman law ceased.
AT middle Ages in the conditions of a feudal society, the basis of which was a subsistence economy, civil law had a narrow scope and represented trade customs and local (local) legal norms of newly developing and emerging cities.
The revival of commodity production in the Renaissance led to an increase in interest in the institutions of Roman civil law, as the most perfect civil law for that period, which led to their introduction (mainly by commenting on glossators by schools) into civil circulation and further subsidiary (additional) application to customs and official rules of law (pandect law). The revival of Roman norms has been called the recession of Roman private law.
After the bourgeois revolutions of the 17th and 18th centuries, the norms of Roman civil law were incorporated in full or in a revised form, taking into account modern conditions of circulation, into the civil codes of France (1804 - the Napoleonic Civil Code), Austria (1811), Germany (1896 - the German Civil Code) and others. countries in the process of codifying civil law.
The main principles laid down at that time in the basis of the codified acts of the Civil Code were the principles of non-intervention of the state in the economy, freedom of disposal of private property and contractual terms, formal equality of partners in civil legal relations.
At the same time, in some countries from G.p. commercial law began to be singled out, the norms of which are specially adapted for the rapid processing of transactions in industry and commerce. Moreover, commercial codes in many countries (for example, Germany) were adopted before civil ones.
In the process of development of civil law after the Middle Ages, personal non-property relations fall into the sphere of interests and regulation of civil law, although not directly related to the protection of material interests, but ultimately determined by them (protection of business reputation and honor, inviolability of a company name, authorship, etc.). ). Later, such relations organically became part of civil law, since the methods of their regulation turned out to be extremely similar to those that regulated civil circulation (equality of participants in relations, optionality, inadmissibility of anyone interfering in private affairs, material compensation for damage caused, incl. moral).
The first incorporation of the norms of civil law in Russia was carried out by M. M. Speransky in the first half of the 19th century. (Code of laws Russian Empire).
By the end of the 19th century the obsolescence of the provisions of the Code of Laws in terms of civil law became so obvious that the development of a new law, the Civil Code, began. The first part of it was completed in 1913, but was never put into operation due to the outbreak of the First World War.
After the abolition in 1917 of all the laws of the Russian Empire, the land, factories, factories and other basic means of production and transport, and the housing stock were nationalized.
At the end civil war and in connection with the transition to the NEP policy in order to regulate commodity-money relations, the first Soviet Civil Code of 1922 was adopted.
With the curtailment of the NEP in 1926-28 and in connection with the development of the command economy, the scope of civil law was significantly narrowed, and loading became of great importance.
The next codification of civil law was completed with the adoption of the Fundamentals of Civil Legislation of the USSR and the Union Republics in 1961. The provisions of the Fundamentals were subsequently supplemented and specified to a small extent by the Civil Codes of the Union Republics.
The first part of the new Civil Code of the Russian Federation, currently in force, was adopted only in 1994.
Civil law governs relations between persons exercising entrepreneurial activity or with their participation. At the same time, entrepreneurial activity is understood as an activity that is carried out independently, at its own risk, aimed at systematic profit from the use of property, the sale of goods, the performance of work or the provision of services by persons registered in this capacity in the manner prescribed by law.
Non-property, related to property, relations are relations associated with commodity-money through its result.
The objects of this kind of relations are works of art, literature, etc.
Non-property relations that are not related to property relations are not regulated, but protected by civil law. These objects include the life and health of a citizen, the dignity of the individual and some other benefits.
Civil law is distinguished in the system of law both by the subject and by the method of legal regulation, which is expressed in the recognition of the legal equality of the parties. The implementation of equality is carried out through the independence and autonomy of the parties. Subjects of civil law act at will, guided by their own interest, can be entrepreneurial, perform any actions that do not contradict the law.
Thus, civil law is a system of legal norms regulating, on the basis of legal equality of the parties, property-value and personal non-property relations.
Civil law is distinguished from other branches of law by its tools, which have been honed over hundreds of years. Its place in the system of law is predetermined by a peculiar subject and method of legal regulation, which has long roots, and to a certain extent is transformed in the system of law.
Civil law needs to be separated from the public law sphere. In particular, civil law should not be confused with administrative, financial and other branches, which are based on power relations.
In the system of law, civil law is the core of private law. Civil legislation is closely connected with labor, family, housing, land and other sectors.
Civil law is closely related to labor law. However, the peculiarity of labor relations is based on the implementation of internal labor regulations. Relations between the administration and the worker (employee) are unequal due to the presence of the employer's power. Civil law interacts with family law, but does not merge with it. Yes, in family relationships priority are non-property relations, which reflect the moral, ethical side of the individual. These are the mutual care of family members, the provision of material assistance, education, etc. The interpenetration of these industries is carried out in the form of a marriage contract, the transition from the common property of the spouses to shared ownership.
Foreword
Introduction
I. Main sources
II. Main strongholds
Definition. Six bases. Possibility of modifications; work
Pernice; the futility of large crushing
III.Periods
Traces of an ancient state. Legislation of the XII tables
kvirite law. The Progress of Quirite Law in the 4th and 5th Centuries
Public law. Disintegration of community-clan relations;
imperial period. Chronology by Roman and Christian account
IV. Benefits
Esmarch. Ortolan. Walter. Pukhta. Rhine. Pandect law courses;
Baron. Yering. Pernice. Voigt
Chapter I
Chapter II. ancient history property rights and civil
turnover
Chapter III. The earliest history of civil justice
Chapter IV. Criminal nature of penalties
Chapter V. Legislation of the XII Tables and the Law of the Quirites
Chapter VI. Formalism
Chapter VII. Relation of Quirite Law to Peregrines
Chapter VIII. Pontifical jurisprudence (IV century and 1st half. V
table.)
Chapter IX. Development of debt relations (obligations) after laws
XII tables (IV, V and 1st half of the VI table.)
Chapter X. Development of property and inheritance law after publication
XII tables
Chapter XI. The heyday of praetor power (VI and VII centuries)
Chapter XII. Jurisprudence after the fall of the pontiffs (VI, VII
and the beginning of the 8th table.)
Chapter XIII. Consensual and real contracts (VI, VII and the beginning
VIII table.)
Chapter XIV. Progress of formal transactions (VII table)
Chapter XV. The beginning of radical transformations in civil law (the end
7th table.)
Chapter XVI. Fictions and exceptions
Chapter XVII. The transformation of the social order and the impact of this
transformations into the law and into the composition of civil society
Chapter XVIII. The transformation of the social order and the impact of this
transformations to civil law and to the composition
civil society (continued)
Chapter XIX. Imperial jurisprudence
Chapter XX. Individualism
Chapter XXbis. Auxiliary institutions of property law
Chapter XXI. Arbitrariness, revenge and formalism in imperial law
time
Chapter XXII. Personal and common possession
Chapter XXIII. Artificial view of law
Chapter XXIV. Termination of development
Chronological index
Foreword
Publishing my present work in the light, I believe that its appearance in the press is justified by the absence in Russian literature of a book that would set out the civil law of ancient Rome primarily from the point of view of its historical development, and, moreover, to the extent necessary in the interests of students of our legal faculties. While in Germany itself, with the elimination of the immediate practical effect of Roman law, they begin to realize that a separate dogmatic study of it has lost its former price. *(1) , - in Russia, where this right has never served as the current legislation, it would be unreasonable to support its "dogma". "Dogma" matters only in relation to the law in force, and therefore the "dogma" of Roman law has few conditions for independent development in Russian universities. Based on my own experience, I dare to assert that the historical exposition of Roman civil law is capable of covering, generally speaking, all the factual material that the Russian professor of Roman law has to convey to his listeners, and such a result has an invaluable advantage, if only because it eliminates coincidence of courses in content, which is inevitable - as soon as a professor of Roman law expounds "pandects" from his chair, and a professor of Russian civil law, who usually reads after the first, is forced, under the guise of general provisions of civil law, to repeat a good part of the same "pandects" ". If the present book seems far from exhausting the whole subject, then let it be attributed to the incompleteness of the book itself, and not to the impossibility of achieving the above goal by historical exposition. The interest of this latter requires that the actual civil law of Rome be clearly separated from that reworking of it (in the form of the creation of new institutions, the formation of those or other methods of literary development and judicial interpretation, and finally, in the form of the formulation of various "views" and "theories"), which was the product of later, non-Roman jurisprudence. The lectures that I am now publishing were devoted only to civil law, which actually existed in ancient rome. Let, while maintaining the same historical character of the presentation, in another course they will present the gradual course of the practical and scientific processing of the original Roman law, albeit not limited to one common characteristic schools and writers, expound their main teachings and views and bring them into a genetic connection with each other and to the surrounding conditions of their emergence - and then from among the "general concepts" of civil law there will hardly be anything essential and that, in the extreme case , could not be given by a professor of Russian civil law at a suitable place in his course. The historical exposition of Roman law is even of particular practical value. Only with such an exposition is it revealed to what an enormous extent the progress of civil law and its high state can depend on the wide development of the court according to conscience or conviction (trial by jury) - a result very instructive for all those countries that have not yet fully clarified their tasks in relation to civil justice.Returning now to my lectures, now published, I consider it necessary to note that in them I did not set out to present the history of all institutions and in all details.My task was only to h in order to shade to their listeners the main currents of the story told, and I thought that its fulfillment would prepare the listeners completely for the further study of our subject, no matter how they themselves look at their goals and no matter what views each other teacher may ultimately be guided in this respect.
The source quotations and literary indications that are made in this book are for the beginner's interest only. *(2) Quotations from sources should teach him the first handling of the main sources. In the same way, literary references are limited to references to the most important manuals and are intended only to facilitate the beginner's first step in his grandfather's independent study of the literature of the subject; turning first to the works indicated in this book, the reader will easily find with their help all the other indications that he may need for a detailed acquaintance with all the diversity scholarly opinions and research.
My first scholarly work: On the Conservatism of Roman Jurisprudence (M. 1875) has long been sold out. Having reviewed it now, I considered it most expedient, without republishing it again as a separate edition, to introduce into the content of this book that of the composition of the said work (wholly related to Roman law) deserved to be reproduced in the form of the original or corrected. This is the origin of the following paragraphs in this book: 23, 44, 70, 80, 81, 116, 144, 147-149, 155-157, 159-168.
Such an exposition of Roman civil law, which would especially emphasize its historical development, at the department of this subject at Moscow University, is not a special innovation; the author of this work did only what was due, dedicating it to the memory of the man whose work he was called to continue.
Sergei Muromtsev.