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CIVIL AND FAMILY LAW
Bulletin of Omsk University. Series "Right". 2016. No. 2 (47). pp. 75-85. UDC 347
THE THEORY OF INTEGRITY IN THE RUSSIAN CIVIL LAW: FORMATION, DEVELOPMENT, PROSPECTS
THE THEORY OF INTEGRITY IN THE RUSSIAN CIVIL LAW: FORMATION, DEVELOPMENT, PROSPECTS
S. K. SOLOMIN
Theoretical approaches to the understanding of good faith in civil law are defined. A critical analysis of the modern discussion about the principle of good faith is offered. The author's approach to resolving the issue of the relationship between good faith and the principle of good faith is formulated. Keywords: good conscience; the principle of good faith; conscientious behavior.
In article theoretical approaches to understanding of integrity in civil law are defined. The critical analysis of modern discussion about the principle of integrity is offered. Author "s approach to the solution of a question of a ratio of integrity and the principle of integrity is formulated.
Key words: kind conscience; principle of integrity; integrity of behavior.
Introduction to the problem. The term "good faith" has firmly entered the sphere of civil law, which is explained by the nature of relations regulated by private law and the essence of the method of their legal regulation. This term in civil law refers to two legal phenomena. The first comes down to an understanding of good faith in an objective sense as a well-known external measure that is perceived by the law and the law enforcer and is recommended to participants in civil transactions in their relationships. The second is limited to understanding good faith in the subjective sense, i.e., as a person’s ignorance of the circumstances with the presence of which the law associates the occurrence of certain legal consequences. The connection between these legal phenomena can be traced in the fact that if, in an objective sense, conscientiousness through the norms of positive law reflects the essence of the conscientious behavior of the participant
kov civil circulation, then in a subjective sense, it manifests itself in the content of some norms of positive law, each of which is a particular case of the manifestation of conscientious behavior of subjects of civil law relations, expressed in excusable ignorance of the facts of reality. In other words, such a connection is manifested through those norms of the current legislation, the application of which makes it possible to fill in the missing legitimation: the legal effect (legal consequence) occurs, despite the presence of one or another defect in the conditions necessary for the onset of such an effect, but in the presence of an excusable ignorance of the person in certain facts. In particular, we are talking about the rules of property law that regulate relations with the participation of a bona fide owner, a bona fide purchaser, a bona fide specifier.
© Solomin S.K., 2016
Over the past two and a half decades, the controversy around bona fides has taken on different shades: from recognizing that good faith is solely the quality of a requirement used in the mechanism for filling gaps in civil law, to the perception of good faith as a legal principle “cementing” all civil law. At the same time, the dualistic concept of understanding bona fides was quite often carried out in the civilistic doctrine, the essence of which is reflected above. Today, it is this concept that can be recognized as reliable, which, in particular, is confirmed by the appearance in 2013 of a new edition of Art. 1 of the Civil Code of the Russian Federation, the norm of paragraph 3 of which reads: “When establishing, exercising and protecting civil rights and in the performance of civil obligations, participants in civil legal relations must act in good faith.” Now, with the advent of the principle of good faith among other basic principles of civil legislation, the question of its content, as well as the relationship between the concepts of “principle of good faith” and “good faith” (in the objective sense), is being updated.
Objectivist theories of conscientiousness. At the end of the 19th - beginning of the 20th century, a lot of work was carried out in Russia to prepare a draft Civil Code Russian Empire, within which issues related to the theory of good faith were widely discussed. In particular, they discussed the limits of judicial discretion, including the possibility of the court to restrict the operation of economic laws, the application of positive law in order to optimize the flow of civil turnover.
By the beginning of the 20th century, several approaches to understanding conscientiousness in an objective sense had been formed.
The theory of “love for fellow citizens” (L. I. Petrazhitsky) boils down to the fact that the foundation and foundations of a public building are crystallizations formed under the long influence of love and reason passing one into another. Accordingly, the goal of civil policy should be the pursuit of love.
The theory of the "social ideal" (Stammler, Steinbach): bona fides points to the court
the direction in which it is necessary to move, analyzing a specific disputable situation. In the course of consideration of the case, the court must strive for the highest goal of the entire legal order, which lies in the idea of such public life, in which any subjects of law would relate to each other in an impersonally correct way, the goals of one subject would become the goals of another (Stammler). At the same time, not in all situations, the same measure of good conscience is required to assess the behavior of participants in a legal relationship (Steinbach).
The theory of "moral foundations of turnover" (Endeman) involves the establishment of an objective scale based on the moral beliefs of society, as well as the honest way of thinking of each member of such a society.
The theory of “opposing economic interests” (Schneider): a judge, resolving a disputed situation in accordance with good conscience, must comply with the norms of the law and the terms of the contract, impartially weigh the opposite economic interests parties to the dispute.
The theory of “coordination of private and public interests” (I. B. Novitsky) is based on a combination of two principles - good conscience and customs of civil circulation: the principle of good conscience is the general boundary of identifying individualistic aspirations, within which the regulatory significance of customs of civil circulation is manifested; in turn, the customs of civil circulation provide assistance in a disputable situation in establishing the requirement of good conscience, and also supplement this requirement in those situations that cannot be assessed from the standpoint of good conscience. Given the above basis, bona fides acts as a means of reconciling private interests among themselves and with the public interest.
Good faith in Soviet civil law. A deep theoretical understanding of bona fides at the beginning of the 20th century should have served as a significant impetus for the formation of a domestic theory of good faith. However, with the change in the economic formation in 1917, the approach to the essence of judges fundamentally changed.
of discretion and its role in resolving civil disputes. The principle of good conscience as a relic of bourgeois legislation was excluded from the system of fundamental principles of Soviet civil law, which required a different theoretical understanding of the application of the mechanism of inadmissibility of abuse civil rights. Now the possibility of judicial discretion relied on Art. 1 of the Civil Code of the RSFSR of 1922, which reads: "Civil rights are protected by law, except when they are exercised in contradiction with their social and economic purpose." And if in the first years of the NEP, the courts resorted to this norm quite often, then by the end of the second half of the 1920s. the practice of judicial discretion in limiting certain civil rights gradually came to naught. The reason for this was the opinion of the Supreme Court of the RSFSR, which finally took shape by 1927. This court pointed to the incorrect use of Art. 1 of the Civil Code in cases where there were sufficient legal grounds provided for by the current legislation to resolve the dispute. Attempts by the Supreme Court of the RSFSR to determine the permissible scope for the application of Art. 1 in the absence of any reliable scientific substantiation of its application led to the fact that by 1930 it disappeared from the sphere of interests not only of the law enforcer, but also of civil science.
Later, namely in the second half of the 40s. of the last century, scientific works began to appear devoted to certain problems of the abuse of law in Soviet civil law. So, in particular, M. M. Agarkov, returning to the assessment of Art. 1 of the Civil Code of the RSFSR of 1922, came to the conclusion that its position should be considered as "an anachronism that does not correspond current state Soviet law". In a planned economy, in which the civil rights of business entities are a means of fulfilling the state national economic plan, the use of art. 1 of the Civil Code, according to M. M. Agarkov, is unacceptable as “imposing on the court and arbitration a function that does not belong to them ... they pre-
would revert from the bodies that resolve disputes to the bodies regulating the national economy. As a result, the quintessence of his reflections was reduced to the denial of the need to establish any boundaries for the exercise of civil rights (the only exception was the chicane as a form of abuse), and therefore to the exclusion of any activity related to judicial discretion.
The value of the work of M. M. Agarkov lies not so much in the limited understanding of abuse, but in the mention of good faith (in an objective sense) in the course of reasoning. The scientist, considering this category beyond the issues of the exercise of civil rights, nevertheless finds a place for it in Soviet civil law. He writes: “The beginning of a good conscience means fighting against direct or indirect deceit, using someone else's delusion or misunderstanding. That is not what we are talking about in the matter of abuse of the right.” “The beginning of a good conscience, put into proper framework, means nothing more than honesty in relations between people.” Such an approach to understanding conscientiousness in an objective sense can be called the theory of “honesty in relations between people”.
It should be noted that at the level of monographic works of the Soviet period, conscientiousness as an external measure in establishing the limits of the exercise of civil rights was not subject to consideration, and the principle of conscientiousness, which took root in developed foreign legislation, was forgotten by the domestic legislator for a long time. Even with the advent of Art. 5 of the Fundamentals of Civil Legislation of the USSR and the Union Republics of 1961 began to speak exclusively of a new stage in the development of the theory of abuse of civil rights. However, it was in part 2 of this article that a norm was contained that unambiguously indicated the need for conscientiousness of participants in civil circulation: “In the exercise of rights and the performance of duties, citizens and organizations must abide by the laws, respect the rules of a socialist community and the moral principles of a society building communism.” However, none of the scientific and practical
comments to the Fundamentals of Civil Legislation of 1961 (as well as to the Civil Code of the RSFSR of 1964) of that time, we will not find a reference to the principle of good faith.
Conscientiousness in transition. Only with the adoption of the Fundamentals of Civil Legislation of the USSR and the Republics in 1991, the requirement of conscientious behavior of participants in civil turnover begins to acquire some outlines of what in 2013 we will call the principle of good faith. So, paragraph 3 of Art. 6 of this codification prescribed: "Participants in civil legal relations are assumed to be in good faith, since the opposite has not been proven." Obviously, in this form, it is still impossible to recognize the quality of good faith as a guiding measure that can help the court in assessing the interests of the parties to the conflict, correlating them with each other, as well as with public interests. The legislator is still talking about good faith as a certain evaluation criterion, which the court is guided by only if one of the parties to the dispute proves the bad faith of the other side. In other words, bona fides (in the objective sense) was used exclusively in the mechanism of protection of civil rights, but did not yet act as a limit to the exercise of civil rights. This shortcoming was partly eliminated by the introduction of part one of the Civil Code of the Russian Federation, when the legislator made the protection of civil rights dependent on “whether these rights were exercised reasonably and in good faith” (clause 3, article 10 of the Civil Code of the Russian Federation).
The absence of theoretical developments affecting good faith as a guiding measure, as well as judicial practice on issues of judicial discretion in matters of restriction of civil rights, made the mechanism for determining the limits of the exercise of civil rights, provided for in Art. 10 of the Civil Code of the Russian Federation, unpopular. Only ten years later, the courts began to apply this mechanism, and by the end of 2008, an information letter appeared from the Presidium of the Supreme Arbitration Court of the Russian Federation “Review of the practice of applying Article 10 of the Civil Code by arbitration courts Russian Federation» .
At the same time, it is from the moment of the entry into force of the first part of the Civil Code of the Russian Federation that
to form a discussion around good faith in an objective sense, including from the standpoint of highlighting an independent principle of civil law - the principle of good faith. In fairness, we note that the term "principle of good faith" received legislative consolidation as early as 1996 with the introduction of part two of the Civil Code of the Russian Federation. So, for example, in paragraph 3 of Art. 02 of the Civil Code of the Russian Federation states: "When resolving a dispute between the parties about the amount of maintenance that is provided or should be provided to a citizen, the court must be guided by the principles of good faith and reasonableness." True, the semantic content of this term remained outside the Civil Code. It is possible that for the purpose of Art. 602 of the Civil Code of the Russian Federation, after all, we are not talking about a principle, but about the requirement of good faith (that is, as an assessment category).
Since 2009, the legislator initiated the so-called process of improving civil legislation, one of the first results of which (2013) was the legal consolidation of the principle of good faith among the basic principles of civil legislation. Thus, today we can talk about a new stage in the development of civil law doctrine regarding the understanding of good faith in an objective sense through the essence of good faith in the behavior of participants in civil circulation, revealing the essence of the principle of good faith.
Campaigns of modern civil law doctrine. In modern legal literature, good faith is not always viewed through the prism of the basic principles of civil law. So, for example, V. I. Emelyanov in his work of 2002 excludes the possibility of recognizing any signs of an objective category as conscientiousness. He writes: "The authors are wrong who claim that according to Russian legislation all rights and obligations must be exercised in good faith." This remark was addressed to V. A. Belov, who, as it turned out, looked ten years ahead and, in principle, said what is now perceived as an axiomatic position. V. I. Emelyanov himself points out
that "the definition of good faith coincides, in essence, with the definition of innocence" . Asking about the admissibility of identifying bad faith with guilt, he noted that in civil law, not all bad faith actions are covered by the concept of guilt, which means that the need to use the category of bad faith arises when the bad faith actions of participants in civil circulation are not covered by the concept of guilt. As a result, he came to the conclusion that the concept of "bad faith" in the broad sense includes the concept of "bad faith" in the narrow sense and the concept of "guilty".
The quintessence of V. I. Emelyanov’s thoughts generally corresponds to the conclusion of E. Bogdanov (1999) expressed a little earlier: “Only citizens and organizations that, while committing illegal actions or inaction, knew or should have known about the nature of these actions, can be recognized as unscrupulous and their consequences". When studying the above points of view, it is noteworthy that no matter how negatively their authors treat the perception of conscientiousness in the objective sense, they all somehow reflect one or another side of the understanding of conscientiousness in the subjective sense. Moreover, it is possible that under the influence of the legislative process, when some norms replace others, including because of their anachronism, the opinions of the same jurists can be transformed, introducing more and more shades into the domestic theory of good faith. An example of this is the scientific views of A.V. Volkov, who formed his own theory of abuse of civil rights, in which the scientist did not ignore the principle of good faith, which in his author's interpretation is often called the principle of good faith enforcement.
At the stage of validity of the initial wording of Art. 1 of the Civil Code of the Russian Federation (until March 1, 2013) A. V. Volkov derives the content of the principle of good faith from the content of another principle - the principle of equality of participants in civil relations: “Legal
The dignity consists not only in granting persons civil rights, but also in the obligation not to violate the rights of others. Violation of the principle of equality in case of abuse of the right is manifested in the arrogant, selfish use of one's civil rights to the detriment of the legitimate interests of other members of society. Based on the stated setting, A. V. Volkov introduces two synonymous terms - “the principle of conscientious enforcement of law” and “the principle of the inadmissibility of abuse of the right”, responsible “for ensuring that the legal regulatory norms of civil law do not turn into a“ victim ”of discretion (dispositivity) subjects of law". At the same time, the content of the principle of conscientious enforcement of law is revealed through two components: conscientious use of civil rights and conscientious performance of civil obligations.
So the scientist wrote in 2011, which generally corresponds to the updated version of Art. 1 of the Civil Code of the Russian Federation. However, already in 2013, A. V. Volkov abandoned a number of fundamental provisions of his theory of good faith and considered the principle of good faith (good faith enforcement) and the principle of inadmissibility of abuse of law as separate principles of civil law. At the same time, in his opinion, the principle of inadmissibility of abuse of the right, in contrast to the “vague” principle of good faith, is expressed in an absolutely specific, special in relation to Art. 1 of the Civil Code of the Russian Federation according to Art. 10 of the Civil Code of the Russian Federation and forms a structure of guilty enforcement with specific sanctions for the unfair use of the legal means provided to the subject. The principles indicated by him "work" only in a situation of legal uncertainty: either there is no special rule of law that allows resolving a specific case, or a special current rule of civil law is not capable, due to its legal content (formalism, errors, gaps), to qualitatively solve the problem facing it.
And even despite the fact that initially A. V. Volkov makes the content of the principle
conscientiousness is quite capacious, as a result, he comes to a very contradictory, even from the position of his teaching, conclusion that the principle of good faith regulates both cases of abuse of the right, and situations where such abuse is absent (including when Article 10 of the Civil Code of the Russian Federation with its content can't handle the situation). He refers to such cases the application of the principle of good faith in the analogy of law, as well as cases where Art. 10 of the Civil Code of the Russian Federation, despite its own barriers, will itself become an instrument of abuse. Ignoring some internal inconsistency of this conclusion, in general, the approach of A.V. Volkov in relation to conscientiousness in an objective sense can be called the theory of "checks and balances". This theory found its place in the improvement of Art. 1 of the Civil Code of the Russian Federation, when the principle of good faith was objectified according to its content.
So, even in the draft Concept for Improving the General Provisions of the Civil Code of the Russian Federation dated March 11, 2009 (hereinafter referred to as the Draft Concept), it was indicated that the principle of good faith should be legislatively formalized due to the fact that the rules on good faith are a natural counterbalance to the rules affirming freedom of contract and autonomy the will of the parties. At the same time, it seems to us that the developers of this document were able to abandon the limited perception of the principle of good faith as a natural limiter to the operation of other principles of civil law and tried to fill its essence as much as possible. In particular, they determined the scope of this principle, subordinating to it not only actions to exercise rights and fulfill obligations, but also an assessment of the content of the rights and obligations of the parties. In other words, the developers tried to make the principle of good faith not just a counterbalance to all other basic principles of civil legislation, but that “red thread” that was supposed to permeate all positive law, presenting itself in various guises - both as a limit to the exercise of civil rights, and as requirement to fill in the gaps in the law, and in the form of a presumption, to refute
only the applicant can, and in the form of a measure of excusable delusion in certain facts of reality and some others. Obviously, this is how we should perceive the legislative norm of paragraph 3 of Art. 1 of the Civil Code of the Russian Federation. However, some legal scholars find this state of affairs inappropriate.
In particular, T.V. Deryugina is very critical of this approach to the use of the category of conscientiousness. In an attempt to answer the question whether the category of good faith is a principle of law, a presumption or a limit to the exercise of law, it builds a chain of interesting arguments. On the one hand, her understanding of conscientiousness is similar to the theory of “honesty in relations between people” (M. M. Agarkov), since conscientiousness, among other things, is perceived by her as an internal state of a certain subject, his idea of honesty. However, if M. M. Agarkov considered this category beyond the issues of exercising civil rights, then T. V. Deryugina refers conscientiousness exclusively to the sphere of exercising civil rights and believes that it, in the form of a principle, should be placed in Art. 9 of the Civil Code of the Russian Federation.
On the other hand, speaking about the principle of conscientiousness, T. V. Deryugina points out that it "establishes a balance of interests, requires a certain attention to other people's interests", which undoubtedly brings her approach closer to the theory of "reconciliation of private and public interests" (I. B. Novitsky). But, unlike I. B. Novitsky, who found the application of his objectivist approach to a wide range of issues (and the restriction of freedom of contractual agreements, and the interpretation of the contract, and the fulfillment of obligations, and the boundaries of the exercise of rights), T. V. Deryugina reduces the principle of good faith not to an industry-wide principle, but to the principles of exercising the right, assigning it an auxiliary role: “... when the relations of the parties are regulated by law or an agreement, then the introduction of an additional category in the form of good faith is groundless. And only in cases where there are no special
nye, and general norms, and other sources regulating legal relations, we can refer to the principle of good faith, the content of which "should be limited to specific prohibitions" . As a result, the approach of this researcher can be characterized as the theory of "ignoring good faith", in which the principle of good faith has no place among the basic principles of civil law, named in Art. 1 of the Civil Code of the Russian Federation. Obviously, the scientist assigns the dominant (exclusive) role to the law and the contract, including in cases of assessing the behavior of participants in civil turnover, when a dispute flares up between them. This position is noteworthy in that T.V. Deryugina nullifies the perception of good faith not only in an objective, but also in a subjective sense (i.e., as a person’s ignorance of the circumstances with which the law associates the occurrence of certain legal consequences), in in particular, when assessing the integrity of the acquisition and possession of property in relation to the return of property from someone else's illegal possession. She points out: And Art. 302 of the Civil Code of the Russian Federation, and Art. 303 of the Civil Code of the Russian Federation contain specific criteria that should be followed by both the court and the subjects of the legal relationship: the person did not know and could not know; knew or should have known. The use of the concept of good faith / bad faith here is superfluous.
Without delving into the concept of a limited perception of good faith proposed by T. V. Deriugina, we note that it generally does not fit into the ideas existing in the domestic doctrine of civil law about the dispositive beginning of the legal regulation of civil relations, the essence of the principles of civil law and the role that is assigned court in the settlement of civil disputes. For this reason, it is hardly possible to recognize the theory of "ignoring good faith" as viable.
The scatter in theoretical approaches to understanding conscientiousness in an objective sense sometimes leads to the fact that the term "conscientiousness" begins to denote different concepts, thereby sliding into the problem of "diversity" of conscientiousness.
So, some authors argue that the category of conscientiousness is a complex concept that combines various shades of the meaning of "good conscience". Others talk about the need for a comprehensive understanding of the category of good faith, since good faith is not limited only to the application of the “knew - did not know” criterion characteristic of property law, but has a broader content and meaning for all types of civil legal relations. Still others say that “good faith is a collective concept that can be understood in different values reflect various phenomena of reality.
This circumstance has led to the fact that the task that jurists set themselves a hundred years ago, namely, to determine the essence of good faith in the objective and subjective senses, today has been reduced to a question like: in what case can the word “good faith” be used? (we are no longer talking about a term or concept), but in which one is it impossible?
Naturally, in a similar vein, it is impossible to talk about good faith in civil law, just as it is impossible to replace one concept with another. Today, truly scientific work on integrity issues is lost in an endless stream of pseudoscientific research. Sometimes, to get to the truth, you have to do the primary work aimed at filtering everything that has been written over the past two decades. Modern researchers of the issues of distinguishing between conscientiousness in the objective and subjective senses often take the semantic link “objective and subjective” as the basis of their conclusions and, according to this criterion, pull up to the theory of conscientiousness everything that can be characterized from an objective or subjective side. As a result, the category of conscientiousness (in the objective and subjective senses) is replaced by the semantic link "the representation of the subject of civil law about good faith according to objective and subjective criteria", is replaced by false concepts: "the principle of good faith in the objective and subjective sense", "objective side
the principle of good faith”, “the subjective side of a person’s behavior”, etc.
Good faith (in the objective sense), good faith (in the subjective sense), good faith behavior of participants in civil transactions, the principle of good faith - these are all separate categories of civil law, as well as other categories denoted by terms that have the word "good faith" in their structure (a bona fide purchaser , conscientious owner, etc.). Specified legal categories may intersect, complement each other, one legal category may reveal the essence of another, but these are always different legal categories, reflecting the main, most important features of a particular legal phenomenon. They cannot be generalized by one concept of "good faith", even in the broadest semantic sense. Behind the screen of "wide semantic meaning» any fundamental concept is not capable of reflecting the specific social needs for special legal forms behavior of subjects of civil law.
The principle of good faith as a fundamental principle of civil law regulation, permeating all civil law, objectifies itself in those norms that: establish the need for conscientious behavior of participants in civil turnover or suggest the need for such behavior; make the protection of the rights of subjects and the occurrence of certain consequences dependent on the presence or absence of conscientious behavior of persons participating in civil relations; fill the legal regulation of the relations of the parties, taking into account the requirement of good faith of their behavior.
The principle of good faith cannot act as a limiter or counterbalance to other principles of civil law. All the fundamental principles of civil legislation complement each other both in resolving a specific situation and in the process of improving civil law regulation, filling in the gaps and setting guidelines. further development civil law. Moreover, each of the principles can actualize various shades of implementation.
tions of another principle. So, for example, the installation of the principle of equality of participants in civil relations that none of the subjects of civil law has any advantages over other subjects of civil law corresponds to the installation of the inadmissibility of extracting benefits from one's illegal or dishonest behavior, which, in turn, , reflects one of the aspects of the manifestation of the principle of good faith. On the other hand, the requirement of the principle of good faith that participants in civil relations must act in good faith implies, among other things, taking into account the legal equality of such participants. A similar mechanism of interaction between the principle of good faith and the principle of legal equality of subjects of civil circulation as a whole characterizes the mechanism for implementing the principles of civil law.
Obviously, the principle of good faith has always been present in civil law: if earlier it was derived through the content of a huge number of civil law norms, today we can objectify it among the basic principles of civil law established by the legislator. Now the law directly states (clauses 3 and 4 of article 1 of the Civil Code of the Russian Federation): “In establishing, exercising and protecting civil rights and in the performance of civil obligations, participants in civil legal relations must act in good faith. No one has the right to take advantage of their illegal or dishonest behavior.”
This legislative wording reveals the main content of the principle of good faith. And further on the content of the norms of civil law, we see the manifestation of this principle, which reveals the features of civil law as a branch of law, acts as a system-forming factor, and allows us to fill in the gaps in the current legislation. Revealing the principle of good faith through the requirement of conscientious behavior of participants in civil circulation, we inevitably come to the need to evaluate any behavior of such participants in terms of a certain scale of this behavior, develop its standards that will
creates and uses the law, which can be guided by the law enforcer, which the participants in the civil turnover in their relationship should be aware of (i.e., from the point of view of good faith in an objective sense).
Naturally, the operation of any principle can only be detected in a situation of a defect in the course of civil circulation, in particular, in violation of the legitimate interests of participants in civil legal relations, violation of their subjective rights, when the participants raise the question of restoring or protecting their violated subjective right (interest). The task of establishing a certain scope of behavior as conscientious can be solved both by the participants in the disputed legal relationship and by the court. In the latter case, we are talking about judicial discretion, in which the judge evaluates the circumstances from the point of view of the norms of positive law and those specific standards of conscientious behavior, the application of which is due to a specific life situation. In this sense, the judge does not stand above the law, but in the process of his intellectual activity he chooses from all the possible tools for determining the extent of conscientious behavior only the one that can help make a just decision. In particular, this may be the construction “did not know and should not have known”, which is applicable to determining the status of a bona fide purchaser both in proprietary relations (for example, when establishing the boundaries of vindication) and in obligations (for example, when determining the amount of compensation according to the conditional obligation). And it is through this construction that we observe the establishment of the scale of behavior of participants in civil circulation through the perception of conscientiousness in the subjective sense. It is important to understand that this scale of behavior always has clear boundaries.
So, when clarifying the proper place of performance of an obligation in the event of a change in the location of the creditor, the behavior of the latter will be in good faith if he has notified the debtor of this fact, which means that the extent of the good faith of the creditor’s behavior will be determined through acceptable
means of notifying the debtor of a change in his location. If the creditor accepts the performance of the debtor’s obligation under a civil obligation from a third party, then the scale of the creditor’s behavior in good faith will be his actions aimed at establishing the legal basis on which the third party fulfills someone else’s obligation. Examples of establishing the scope of the conscientious behavior of participants in civil turnover (the standards of their conscientious behavior) can be cited as much as you like, because they permeate all institutions of civil law without exception. And in this sense, we can talk about the formation of the theory of "concrete life circumstances".
1. On amendments to chapters 1, 2, 3 and 4 of the first part of the Civil Code of the Russian Federation: Federal Law of December 30, 2012 No. 302-FE (as amended on March 4, 2013) // SZ RF. - 2012. - No. 53 (part 1). - Art. 7627.
2. In 1916, I. B. Novitsky presented a fairly complete picture of the state of the theory of good faith in the law of obligations. Despite the fact that I. B. Novitsky carried out this work in the light of the discussion of the draft Civil Code of the Russian Empire 100 years ago, it still has not lost its relevance. To date, those scientific positions that were voiced at the beginning of the 20th century have remained unshakable and are of high value. - See for more details: Novitsky I. B. The principle of good conscience in the draft law of obligations // Bulletin of Civil Law. - 2006. - No. 1. - S. 124-134.
3. The name of this and subsequent theories are copyrighted.
4. Novitsky I. B. Decree. op. - S. 127.
5. Ibid. - S. 128.
6. Ibid. - S. 129.
7. Ibid. - S. 130.
8. Ibid. - S. 132.
9. Gribanov V. P. Limits of the exercise of civil rights (Section I) // Implementation and protection of civil rights. - M.: Statute, 2000. - S. 73.
10. Agarkov M. M. The problem of abuse of law in Soviet civil law // Selected works on civil law: in 2 volumes - T. II. - M. : YurInfoR, 2002. - S. 382.
11. Ibid. - S. 381.
12. Ibid. - S. 376.
13. See: Gribanov V.P. Decree. op. - S. 20-103.
14. See, for example: Scientific and Practical Commentary on the Fundamentals of Civil Legislation of the USSR and Union Republics / ed. S. N. Bratusya, E. A. Fleishits. - M.: State publishing house of legal literature, 1962. - S. 48-52.
15. Review of the practice of application by arbitration courts of article 10 of the Civil Code of the Russian Federation: information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated November 25, 2008 No. 127 // Bulletin of the Supreme Arbitration Court of the Russian Federation. - 2009. - No. 2.
16. An indication of the principle of good faith (most likely, in the sense of the requirement of good faith) is also contained in Part 2 of Art. 662 of the Civil Code of the Russian Federation, which provides for the possibility for the lessor to be released by the court from the obligation to reimburse the lessee for the cost of the improvements made by him, if, in particular, the principles of good faith and reasonableness were violated in the implementation of the improvements by the lessee.
17. On introducing amendments to chapters 1, 2, 3 and 4 of the first part of the Civil Code of the Russian Federation.
18. Emelyanov V. I. Reasonableness, conscientiousness, non-abuse of civil rights. - M. : Lex-Kniga, 2002. - S. 108.
19. Belov V. A. Conscientiousness, reasonableness, justice as principles of civil law // Legislation. - 1998. - No. 8. -S. 49.
20. Emelyanov V. I. Decree. op. - S. 91.
21. Ibid. - S. 108.
23. Volkov A. V. Abuse of civil rights: problems of theory and practice: auto-ref. dis. ... Dr. jurid. Sciences. - M., 2010. - IKL: http://law.edu.ru (date of access: 15.02.2016). See also: Him. The principle of inadmissibility of abuse of civil rights in the legislation and judicial practice: analysis of more than 250 cases of abuse of law. - M. : Volters Klu-ver, 2011.
24. Date of entry into force of Federal Law No. 302-FZ of December 30, 2012 (as amended on March 4, 2013) “On Amendments to Chapters 1, 2, 3 and 4 of Part One of the Civil Code of the Russian Federation”.
25. Volkov A. V. The principle of inadmissibility of abuse of civil rights in legislation and judicial practice.
26. Ibid.
27. See: Volkov A.V. Correlation between the principle of good faith and the principle of inadmissibility of abuse of law in modern civil law // Bulletin of Volgogradsky state university. Series
"Jurisprudence". - 2013. - No. 3 (20). -WITH. 44-50.
28. Ibid. - S. 48.
29. Ibid. - S. 46.
30. The scientist writes that the principle of good faith includes: a) the conscientious establishment of civil rights; b) conscientious exercise of civil rights;
c) conscientious protection of civil rights;
d) conscientious performance of civic obligations; e) a ban on extracting any preferences from one's unfair behavior (see: Volkov A.V. Correlation between the principle of good faith and the principle of inadmissibility of abuse of law in modern civil law. - P. 46).
31. Ibid. - S. 49.
32. The concept of improving the general provisions of the Civil Code of the Russian Federation. - URL: http://www.center-bereg.ru/ b8740.html (date of access: 15.02.2016).
33. Let us pay attention to the fact that the theory of "checks and balances" to one degree or another is reflected in the works recent years. So, for example, G. V. Verdinyan considers the principle of good faith as one of the ways to limit the operation of the principle of freedom of contract (see: Verdinyan G. V. The place and role of the principle of good faith in civil legal relations in the context of reforming the Civil Code of the Russian Federation // Education and Law . - 2013. - No. 11).
34. In particular, the Concept stated that the interpretation of the terms of the contract should be based on the presumption of good faith of the parties. This proposal has not received legislative formalization in the framework of Art. 431 of the Civil Code of the Russian Federation.
35. Deryugina T. V. Conscientiousness of participants in civil legal relations as a limit and principle of law // Bulletin of the Volgograd State University. Series "Jurisprudence". - 2013. - No. 3 (20). - S. 51-55.
36. Ibid. - S. 52.
37. Ibid. - S. 53.
38. Ibid. - S. 54.
39. Ibid. - S. 55.
40. Ibid. Note that earlier in the legal literature there was a judgment about the complementary role of good faith. So, in particular, S. V. Sarbash noted that the requirement of conscientious behavior is necessary where and when positive law has missed the opportunity to regulate proper behavior (Sarbash S. V. Fulfillment of obligations // Economy and law. - 2009. - No. 3. - S. 26).
41. Deryugina T.V. Decree. op. - S. 53.
42. Gladkikh D. N. The principle of good faith in civil law // Legislation. -2012. - No. 1.
43. Mikhailov S.V. The value of the category of good faith for obligations and the consequences of the invalidity of assignment agreements. - M. : Statute, 2006. - URL: http://center-bereg. ru/b 14666. html (date of access: 02/17/2016).
44. Zhgulev A. A. Conscientiousness in the performance of obligations. - M. : Infotropic Media, 2011.
45. Deryugina T.V. Decree. op. - S. 52.
46. See: Zhgulev A.A. Decree. op. ; Gladkikh D.N. The concept and significance of the principle of good faith in contractual civil law // Legislation. - 2012. - No. 3.
47. Deryugina T.V. Decree. op. - S. 53.
48. Gladkikh D. N. The principle of good faith in civil law.
The legislation was fixed from 02/01/2013. On this day, the relevant amendments to the Civil Code came into force. From that moment on, the principle of good faith in Russian civil law acts as one of the most important guidelines for the behavior of subjects. The key provisions are established in article 1, paragraphs 3, 4. Let us further consider how the principle of good faith operates in the civil law of Russia (briefly).
Characteristic
The principle of good faith in civil law is a requirement according to which it is not allowed to take advantage of one's behavior if it violates the interests of other subjects. The amendments adopted in the Civil Code partially modernized Article 10. The new edition significantly specifies the limits of the implementation of civil rights. At the same time, prohibited actions have been expanded to circumvention of regulations, regarded as the highest form of abuse of legal power. The updated norms correspond to the requirement enshrined in Article 1 of the Code.
Identity of positions
Considering the content of the principles of good faith in civil law in correspondence with the requirement of the inadmissibility of abuse of legal opportunities, a number of questions should be answered. This need is associated with some ambiguities in practical application norms. In particular, the principle of good faith in civil law is enshrined in Art. 1 of the Code. This fact speaks of the "seniority" of the norm. At the same time, the reference to paragraph 1 10 of Article CC indicates the equality of the principles of inadmissibility of abuse and good faith. In this regard, it is necessary to find out whether the first rule is included in the second. If the answer is yes, then the next step is to understand how deeply the requirement of non-abuse is embedded in the principle of good faith in civil law. In short, the first norm can act as the reverse side of the second in this case. It is also necessary to find out whether the provision of Art. 1 private rule based on the requirement of the inadmissibility of abuse. The emergence of this issue is due to the fact that the norms of Art. 10 were introduced earlier than the principle of good faith in civil law. The judicial practice that has developed in the application of the requirement of the inadmissibility of abuse has become the basis for the use of the provisions of Art. 1 GK. And, finally, it should be determined whether these categories do not belong to different legal institutions?
clarification
The requirement of the inadmissibility of abuse and the principle of good faith in civil law primarily determine the essence and reflect the direction of development of the entire system of norms of the Civil Code. They ensure the strengthening of the unity of the provisions and relations regulated by them. In fact, they act as internal laws for the use and improvement of civil law matter. Moreover, these categories take on the functions of reserve rules, educating the subjects of a legal culture of interaction. Both the requirement of inadmissibility of abuses and the principle of good faith in civil law follow from the quality of balance. It indicates the equality of all participants in the relationship. This model reflects the focus of the legal system on equivalence, proportionality, fairness when subjects use their capabilities and fulfill their obligations. This, of course, is consistent with the principle of reasonableness and good faith. In civil law, legal equality is manifested not only in the form of independence, free will and contract, inviolability of property. It is expressed primarily in the coordination of behavior in accordance with the interests of equal subjects.
General principles of good faith in civil law
Three positions come from equilibrium. These include the principles of fairness, discretion and good faith. Each of them includes the corresponding elements. For example, the principle of justice states:
- Combination of public and private interest.
- restorative nature of law.
- Protection as ensuring the restoration of violated interests.
Disposition means:
The implementation of the principle of good faith in civil law is based on the normative establishment, implementation, protection of legal opportunities, proper performance of duties, as well as the prohibition on extracting any benefits from contrary to the prescriptions of behavior. Thus, its key task is to establish the boundaries of optionality.
Hierarchy of norms
The principle of good faith in civil law operates in conditions of legal uncertainty. Similarly, the requirement of the inadmissibility of abuse of power also applies. Meanwhile, according to a number of authors, Art. 10 GC is located at the top hierarchical level. This position is due to the fact that this rule ensures the suppression of the anti-systemic application of legal provisions. When interpreting it, the authors are based on common philosophical categories, among which there is the principle of reasonableness and conscientiousness. In civil law, abuse, like improper actions, is a form of implementation, use of norms. Although their character is outwardly legal, but in their inner essence they are invalid, unacceptable.
Extending the rules to duties
The principle of good faith in modern civil law operates not only in relation to legal possibilities. The provisions of Articles 1 and 10 of the Civil Code contain a prohibition on the abuse of duties. In this case, the integrity of civil law is violated by the failure of the subject to fulfill the established system requirement. It consists in not using one's legal possibilities to harm other participants in the turnover. This obligation concerns directly the bearer of the right. It is aimed at containing the selfish intentions of the subject.
Explanations
A demand directed at the actions of another person forms the essence of individual duties. They are inextricably linked with subjective rights, constitute an element of legal relationship. In the definition of duty, there is an indication that it is a measure and type of proper behavior. This model is prescribed to a person by a contract or a legal norm. In this case, the term "type" indicates the qualitative characteristics of behavioral acts, their content and form, "measure", in turn, determines certain limits within which the subject must perform any actions in favor of another participant in the relationship. These boundaries can be spatial, temporal, and so on. At the same time, even within the narrowest limits, there is always the possibility of the subject to fulfill the obligation assigned to him in a certain way, at any time, in one place or another, or under specific conditions. The principle of good faith in civil law provides for the requirement to perform appropriate actions. In the obligation, in turn, there is a legal possibility to fulfill the prescriptions. It is this "micro-law" that can act as a means of inappropriate behavior. In essence, it will not differ in this case from the "traditional"
Misuse of Advocacy
There are many areas to which the principle of good faith applies. Russian civil law provides for various ways to protect interests. They are given in Article 12 of the Civil Code. Abuse of the opportunity to exercise protection is considered today one of the most common and at the same time the most complex forms of inappropriate behavior. It belongs to the area to which the principle of good faith applies. The civil law of Russia establishes the possibility of a subject to file a claim with the competent authorities. Often, the creditor who submitted the claims receives a counterclaim from the debtor. The latter seeks to delay the process of proceedings or completely evade responsibility. For example, upon presentation of monetary claims, the debtor (defendant) sends a claim for which he received and has already used the goods, invalid. In this case, the unscrupulous applicant has already accepted performance under the contract, but for known reasons alone, he does not want to make a counter representation. The subject, thus, seeks to win time, while using other people's property. He may try to convince the counterparty to conclude a settlement agreement, return compensation instead of the disputed object without paying a penalty, and so on.
Special cases
Some subjects abuse the right to protection using Article 10 of the Civil Code itself. Theoretically, with the help of this norm, any subjective legal possibility can be annulled. In this case, the interested person may declare that the bearer of the right goes beyond the limits established by law. In such a situation, formalism of norms will take place in the highest form. However, it must also be overcome with the help of systemic civil law mechanisms that do not allow the dominance of legal matter over its content, and in particular - using the provisions enshrined in Art. 1 of the Civil Code of the principle of good faith.
The specifics of action and inaction
The principle of good faith in civil law limits the behavioral acts of subjects to certain limits. At the same time, there is no clear understanding of how the mechanism for prohibiting actions and inactions works separately. In particular, it is not entirely clear whether the latter is a form of abuse or whether it falls within a different framework of good faith conduct. In science, as a rule, inaction is considered as a way of exercising a legal possibility, if it is fixed in such a status by an agreement or norms. Directly within the framework of relations, such a right arises if there are prerequisites for:
- Failure to receive property.
- Failure to provide material values.
- Non-commitment of personal actions not related to the transfer / receipt of property.
Similarly, the possibility of inaction arises when there is a legal obligation:
It follows from the above that inaction can be carried out in six conditional forms. The ability to use them, as well as the obligation, can be used by subjects inappropriately. Accordingly, the principle of bad faith should apply to inaction in its various forms. In civil law, however, it is often included in the structure of the concept of "action".
Legal Limits
Art. 10 of the Code defines the boundaries of the exercise of rights. The norm prohibits specific - abusive behavior. In contrast, the principle of good faith seems to be somewhat "blurred". In Art. 10 provides for a special limiter of the subjects' own discretion when using their legal possibilities. In particular, the norm does not allow the actions of citizens committed solely with the intention to harm other people, bypassing the established regulations. It is forbidden to use legal opportunities to restrict competition, abuse of dominant positions in the market. It should be noted that there is some difficulty in applying restrictions. It lies in the fact that the prohibition itself follows from the original civil law principles. However, at the same time, it acts not as the nearest, but as a separate basis, which must be taken into account in order to prevent a systemic contradiction between the normative provision and its base.
Important point
It should be noted that in the principle of good faith there is no indication of intentional actions. However, it is present in Art. 10. Subjectively, the use of the right "for evil" indicates a certain reproach of the person. Accidental harm in the exercise of their legal capacity should be considered in the order of tort obligations. In case of intentional circumvention of requirements and other other form of abuse, the actions of a person are considered as intentional and must be proven. In other words, the responsibility for the subject comes only for those results of actions that were present in his intent. For everything that was added to the consequences from the outside, he cannot be punished. At the same time, the guilt of the violator is given as a formed, with the chosen means, but, in fact, not fully realized motive of intention. It, according to the rulemakers, acts as an integral component of the offense and constitutes the subjective part of the abuse. The guilty person cancels for himself the personally accepted meaning of the existing legal prescriptions, covering them up, masking them in each individual case. own interpretation. Guided by selfish intention, the subject ignores the obligatory norms.
Recognition of bad faith
This process essentially means evaluating a person's behavior as inappropriate. Meanwhile, for illegality in terms of bad faith, no punishment is applied. Responsibility implies softer sanctions. For example, it can be blocking the emergence of obligations and rights (Article 157), granting property to property (Articles 220 and 302), compensation for harm (Article 1103), compensation of income (Article 303), restitution, and so on. The above sanctions relate to the intentional or reckless exercise by a person of his legal possibilities.
Conclusion
The scope of the principle of good faith can be determined by the method of exclusion. In particular, it regulates not only situations in which there is abuse, but also in which it is absent. In addition, the principle of good faith also applies to cases where the provisions of Art. 10 in their content cannot cope with the incident that has arisen. One such situation, for example, is given in Article 6 of the Code. It provides for the use of the principles of good faith in the analogy of norms. Also, the provisions of Art. 1 can be applied in cases where Art. 10 itself becomes an instrument of abuse. At the same time, the principle of good faith in such situations should be used in conjunction with industry-wide provisions of civil law.
One of the stages of the reform of the Civil Code of the Russian Federation (hereinafter referred to as the Civil Code of the Russian Federation) was the adoption of Federal Law No. 302-FZ dated December 30, 2012 “On Amendments to Chapters 1, 2, 3 and 4 of Part One of the Civil Code of the Russian Federation”. By this federal law, the principle of good faith is enshrined in the text of the Civil Code; Art. 10 of the Civil Code of the Russian Federation.
In addition, various legislative acts have amended the provisions of the Code on obligations, on property, corporate law, aimed at "implanting" the principle of good faith in regulated legal relations.
The reform caused a mixed reaction from the legal community. Along with those who support these changes, there are voices opposed to introducing "rubber" norms into the country's economic constitution. Colleagues are frightened by the vagueness of the concepts enshrined in the text of the Code, the possibility of wide judicial discretion, which, in their opinion, should eventually lead to instability in circulation.
Enshrined in Art. 1 of the Civil Code of the Russian Federation, the principle of good faith is not new for Russian law. This principle is traditionally highlighted in the doctrine, good faith is also mentioned in paragraph 2 of Art. 6 of the Civil Code of the Russian Federation as a necessary requirement for determining the rights and obligations of the parties in the absence of direct regulation by the norm of the law and the impossibility of applying the analogy of the law.
Such consolidation of good faith in the Code was inadequate to the importance given to the principle. A literal reading gave the impression that good faith is used only to resolve gaps in the law and does not determine the meaning of the application of the norms of the Civil Code.
The novelties adopted in this area have restored the logic of the construction of the Code. The inclusion of good faith in Art. 1 of the Civil Code of the Russian Federation emphasized its importance as a principle that is important for the entire range of relations regulated by the Civil Code. In addition, such normative consolidation gave good faith a more concrete meaning for law enforcement practice, prone to positivism and a literal reading of the text of the Code. Being able to refer to a specific article will greatly facilitate the application of this principle. It is worth noting that even in countries that do not have a propensity for a mechanical, normative understanding of the law, the legislator considered it necessary to fix this principle in the texts of the codes. The function of paragraph 3 of Art. 1 of the Civil Code of the Russian Federation, for example, in Germany it fulfills paragraph 242 of the GGU, in Switzerland, Art. 2 ShGU.
Many researchers criticize the considered novel of the Civil Code of the Russian Federation due to the fact that the law does not define good faith, which creates room for judicial discretion. At one time, I.A. pointed out the same. Pokrovsky. Describing paragraph 242 of the GGU, he wrote "We find ourselves on an inclined plane, along which we will inevitably come to complete judicial control over the entire area of circulation from the point of view of completely subjective and arbitrary ideas about "justice", "social ideal", etc. Already now in In German literature, complaints are heard that in court decisions reference to Treu und Glauben is becoming the most favorite method of motivation, often covering up simple superficiality and lack of thought ... corroding civilian life ... And one cannot but agree that the assumption of such wide open space for judicial discretion, it would be a monstrous "moral hara-kiri" on the part of the law.
It is worth noting that the meaning of objective good faith is not disclosed in any of the Codes. The norms of good faith always remain open, enable the courts to clarify, supplement and modify the law, thus developing it in accordance with the pressing needs of our time. Bruno Geisinger called this rule in relation to Germany "a magic wand to prevent any difficulty in the world of private law." Swiss lawyers also recognize the great role of judicial discretion in the application of Art. 2 ShGU. That is, the growth of the influence of judicial interpretation is an objective trend characteristic of the entire continental family. Confirmation of this thesis can be found in the decisions, for example, of the Constitutional Court of Germany, which indicates that "The legitimate functions of the court now include the function of developing and improving the law, including the authority for law-making activities." The presence, along with stable and slowly changing normative law, of active judicial discretion creates the necessary balance between statics and dynamics, allowing the law to keep pace with the times.
It is worth noting that such evaluative norms not only create space for the development of law by law enforcement officers, but also place high demands on their professionalism. The complication of the legal system with "rubber" norms makes it insufficient to simply know the norms of the law. It requires an active, mature legal mindset. Law turns from a set of norms into art, and a lawyer from a mobile legal reference system into a thinking creator.
These prospects do not please everyone. Skepticism is caused by the low qualifications of judges, primarily of the first instance, who may not find the proper application of the evaluation category in a particular case, use it to cover up the superficiality and ill-conceived motivation, justify their own overly subjective opinion. However, these fears are not confirmed by the practice of introducing evaluative concepts in Russia. The appearance of a new rubber norm does not cause activism among the judges. This is due both to stable positivist thinking and to a large volume of cases. The judge prefers to find a rule that directly regulates disputed legal relations, rarely delving into detailed analysis subjective will of each party. As a result, such subtle legal instruments become a formidable weapon only in the hands of higher verification authorities.
Thus, for the active application of the evaluation category by the courts of first instance, it is necessary that the practice of its application in appeal and cassation be developed. These features of the judiciary, which can be attributed to its shortcomings, will nevertheless make it possible to smoothly introduce changes into the legal order, without unnecessarily shaking the stability of the turnover. An example of such an implementation of the rubber norm is the practice of applying Art. 428 of the Civil Code of the Russian Federation.
The complexity of the definition of conscientiousness is due to the fact that it carries a lot of things that are more felt and guessed than amenable to logical dissection (Wendt); what exactly is meant by it is easier to evaluate with a feeling than to grasp with reason and formulate as a specific concept (Ertman). It seems that in this case the right, as described by V.S. Solovyov becomes the lowest limit or some minimum of morality. This minimum limit exists because there is a society in which the interests of all its members must be taken into account and will restrain the manifestations of extreme forms of selfishness that impede the normal life of society.
Along with the considered objective conscientiousness, there is subjective conscientiousness. I.B. Novitsky wrote: "In some cases, a good conscience acts in an objective sense as a well-known external measure, which is taken into account by the law, by the court applying the law, and which is recommended to members of civil circulation in their mutual relations with each other; here we have a new source, in other cases, a good conscience is taken into account in the subjective sense, as a certain consciousness of this or that person, as ignorance of certain circumstances, with the presence of which the law considers it possible to associate certain legal consequences.
German lawyers not only distinguish between these meanings, but also designate objective and subjective good faith with different terms: Treu und Glauben and guter Glauben, respectively.
Subjective conscientiousness can be described as excusable ignorance. Moreover, such ignorance is not always one hundred percent subjective. Along with the words "did not know", the Code contains "and should not have known". Thus, the law in some situations imputes to knowledge certain legally significant facts that a person might not have known, requiring from the participant in the turnover the prudence inherent in any average person in the same conditions.
A similar meaning of subjective conscientiousness, for example, is directly fixed in sec. 2 tbsp. 3 SHGU: "No one can refer to his conscientiousness if it is incompatible with the diligence that circumstances allowed the person to demand." I.B. Novitsky proposed to include this norm of the ShGU in the pre-revolutionary Russian draft of the Civil Code. This norm would not interfere with the modern Russian Civil Code.
Along with the wording "did not know and should not have known", the Civil Code uses the same phrase with its reinforcement by the term "obviously". Any difference between these formulations is not noticed either by theory or practice.
Some articles also use the wording "didn't know and couldn't know". This phrase is more subjective than the one previously considered, it implies immersion in the subjective knowledge and capabilities of an individual, which is objectively impossible. Judicial practice therefore applies this wording more objectively, that is, also as "did not know and should not have known" (for example, the decision of the Plenum of the Supreme Court of the Russian Federation No. 10 and the Supreme Arbitration Court of the Russian Federation No. 22 of April 29, 2010 practice in resolving disputes related to the protection of property rights and other property rights"). These textual differences should be abolished, using the single wording "did not know and should not have known" in the Code.
Subjective conscientiousness, unlike objective conscientiousness, is aimed at stabilizing turnover. This feature is especially pronounced in Art. 302 of the Civil Code of the Russian Federation. Objective conscientiousness introduces a reasonable and justified instability, with the aim of the triumph of justice and the prevention of a "war of all against all." Creates the necessary balance between static and dynamic, allowing the law to overcome new challenges and develop.
The antipode of good faith is the abuse of the right. In the new edition of Art. 10 of the Civil Code of the Russian Federation are called three forms of this phenomenon: chicane, action bypassing the law and other deliberately dishonest behavior.
Shikana was previously present in the Codex and its presence there does not raise questions from any of the researchers. The novels consist of the introduction new form abuse - bypassing the law with an unlawful purpose, and replacing "abuse of the right in other forms" with "other obviously unfair exercise of civil rights."
Criticism fell on circumvention of the law with an unlawful purpose. The vagueness and even inconsistency of the concept, wide judicial discretion in its application, the strangeness of the ending "with an illegal purpose" (as if there is a circumvention of the law with a non-illegal purpose) were pointed out.
The available foreign experience has examples of both the direct fixing of circumvention of the law in the general part, and the denial of the independent significance of this institution of the general part.
Spain went first. In Art. 6 of the ISU states the following: "Actions taken on the basis of the literal meaning of the norm and aimed at a result that is prohibited by law or contrary to it, are considered to be committed in circumvention of the law and do not interfere with the proper execution of the norm to circumvent which they were aimed."
In Germany, the prevailing opinion is that such a general prohibition on circumvention of the law is not necessary, since a competent interpretation of the law, oriented towards the purpose of the legal norm that is being circumvented, generally helps to prevent attempts to circumvent the law. That is, in contrast to the formation of an independent institution aimed at preventing circumvention of the law, German lawyers put forward a teleological interpretation, the use of which, in their opinion, helps to achieve the same results.
In this regard, it should be emphasized that, in contrast to Russian law, the interpretation of civil law norms in German law is subject to different rules. In Russia, the interpretation of the text of the norm is relatively important. In Germany, however, the significance of the textual interpretation of the law is to a large extent limited in favor of other methods of interpretation, primarily teleological. It is believed that since the adoption of any norm is always an expression of the regulatory intention of the legislator, the goal pursued by the norm can be considered the main criterion in the search for its correct understanding.
This feature of the Russian legal interpretation predetermined the need to fix the circumvention of the law in the text of the Civil Code. The German approach is more flexible, natural, but currently difficult to implement in the Russian legal order. However, both of these approaches aim to achieve the same results.
The Code does not define circumvention of the law. This concept can be understood as an attempt to use the shortcomings of the wording of the norms of the law in order to circumvent the goal pursued by the legislator.
The circumvention of the law differs from the abuse of the right in that the abuse of the right is expressed in going beyond its actual content and meaning, and also contrary to its functional purpose, and when circumventing the law, on the contrary, there is a claim to substantiate a fully valid law, when through private efforts rights-establishing facts. But from the point of view of the rule of law, this justification is an artificial construction, and these facts cannot have the consequences that a prescribed rule of law should have endowed them with (Yu. Bazedov).
The difference between the circumvention of the law and the sham transaction is that in the circumvention of the law, the goal is an actual legal action, while the sham transaction is intended only to stage a real transaction.
Thus, we are not talking about an imaginary transaction if the result sought by the parties implies a real transaction. In particular, a deal with circumvention of the law is also not an imaginary deal, since the legal consequences of the deal, agreed by the parties, are desirable.
Fixing circumvention of the law in Art. 10 of the Civil Code of the Russian Federation raises some concerns. Circumvention of the law is applied only where imperative norms are circumvented. The fixing in Art. 10 of the Civil Code of the Russian Federation, the concept under consideration can be interpreted in such a way that it will serve to limit the discretion and freedom of contract in civil law, everything that is clearly not allowed is prohibited from returning to the principle. best place to secure such a construction is Art. 168 of the Civil Code of the Russian Federation.
Changes in paragraph 1 of Art. 10 of the Civil Code of the Russian Federation solved the problem of so-called other forms of abuse of the right. There was ambiguity as to what referred to such other forms. The new wording ("other knowingly unfair exercise of civil rights") clearly shows that Art. 10 is a continuation of good faith, enshrined in Art. 1 of the Civil Code of the Russian Federation, only with a minus sign.
Such a change will increase the effectiveness of combating the abuse of civil rights. The new wording makes it possible to deal with such abuses that do not fall under the chicane (rarely encountered in practice). At the same time, this wording is more understandable, it has a criterion of deliberate bad faith. The allocation of a certain criterion by which judicial practice should be guided, in this case, looks more reasonable than the expectation that the courts themselves isolate new forms of abuse.
Federal Law No. 302-FZ of December 30, 2012 “On Amendments to Chapters 1, 2, 3 and 4 of Part One of the Civil Code of the Russian Federation” expanded the list of adverse consequences for a person who abuses his rights. Previously, only one consequence was envisaged: the denial of protection of the right. After the adoption of the changes, the injured party has the right to demand compensation for the losses caused by abuse, as well as to apply other measures provided for by law.
It is not clear which measures apply to others. Since at present the special norms of the Civil Code do not contain specific consequences of the abuse of this or that right, it could be assumed that in this case, based on the nature and consequences of the abuse, the measures to protect the right enshrined in Art. 12 of the Civil Code of the Russian Federation. However, this is in conflict with the practice of recognizing transactions as invalid.
In addition, the application of other measures allows us to resolve the issue of the possibility of applying Art. 10 of the Civil Code of the Russian Federation in relation to the defendant, not only in judicial practice, but also at the legislative level.
Any person thinks and makes his own conclusions of his knowledge and feelings. Feelings, as you know, are purely individual. Even understanding such a simple feeling as different people diverges, which is reflected not only in everyday life, but also. Thus, the point of view of a person and his worldview is based on experienced experience. Despite the fact that the experience may be the same, its interpretation will be different for an individual, different from many others - it will be subjective.
It turns out that each person has his own subjective opinion and, practically, every day he encounters other subjective opinions of friends, acquaintances, etc. On the basis of this, disputes and discussions arise between people, science develops and progress moves.
Subjective opinion is something that is inherent in one person, an individual representation of the environment through their own emotions and thoughts.
Objectivity and objective opinion
Objective thinking is not characteristic of any person. Although it is believed that the broader a person's horizons, the more objectivity in his opinion, the very concept of "objectivity" is much broader. Objectivity is a property of an object independent of a person, his desires and opinions. Therefore, such a concept as "objective opinion" in the literal sense cannot exist.
What then do people mean when they use this expression? More often, the title of a person who has an objective opinion is given to someone who does not participate in any situation, and, being outside of it, can evaluate what is happening “from the outside”. But even this person sees the world through the prism of his personal ideas.
Also, an objective opinion can be attributed to a set of subjective opinions. But here, too, there are pitfalls. If you collect all the opinions together, you get a huge tangle of contradictions, from which it is impossible to deduce.
Contradictions and Absolute Truth
Science strives for objectivity. The laws of physics, mathematics, and other scientific fields exist regardless of human knowledge and experience. But who discovers these laws? Of course, scientists. And scientists are ordinary people, with a large stock of scientific knowledge based on the experience of other scientists, and so on. It turns out that the understanding of all the open laws of the Universe is an ordinary accumulation of subjective opinions. In philosophy, there is the concept of objectivity, as the sum of all possible subjective options. But no matter how many of these options exist, it is impossible to put them together.
Thus, the concept of absolute truth was born. Absolute truth is an exhaustive understanding of the existing, the most "objective objectivity" and it is impossible to achieve such an understanding, as philosophers say.
Therefore, when you hear the statement “from an objective point of view”, be critical of the following words and do not forget that you can find a dozen more objective objections to any “objective opinion” if you wish.
