Книги

Basics of Russian Law. Textbook

Malko A.V., Subochev V.V., Fedorov G.V.

Возрастное ограничение:

Жанр:

Юридическая

Издательство:

Проспект

Дата размещения:

08.12.2016

ISBN:

9785392237647

Язык:

не указан

Объем текста:

179 стр.

Формат:

epub

Part 3. Basics of civil law

Chapter 15. Civil Law as a Branch of Russian Law

15.1. The Definition and the System of Civil Law

Civil law is of great importance not only in the system of basic legal sciences, but also within the branches of Russian law.

As a science, civil law is deeply rooted — it goes back to Roman private law. Originally, the term “civil law” (Lat. jus civile) emerged in ancient Rome and signified the law which encircled the dwellers of Rome as city-state at the time. Gradually, jus civile (civil law) occupied the sphere of private law and was identified as private law. Later, as a result of reception of Roman private law in European states, this term entrenched itself in many states’ legal systems.

The division of law into private and public also emerged in ancient Rome. According to the classic definition given by ancient Roman lawyer Ulpian, public law regards the position of the Roman state (i.e., public authority), whereas private law relates to individuals.

The main point of the said division lies in the fact that each system of law contains norms designed to ensure common (public) interests, i.e. society’s and state’s interests (constitutional law, criminal law, administrative law, etc.) and norms ensuring private interests (civil law, labour law, family law, etc.).

Public law is connected to public authority, which is borne by the state. Private law “attends to” private needs (individuals’ and entities’)?, who do not possess power and who act as free and equal proprietors.

Civil law is a branch of private law, governing initiative activity of participants of social relations and aimed at catering to their own (private) needs.

There are primary principles of civil law regulation, which allow one to deem civil law a part of private law. These include:

1) legal equality of the parties to civil law relations (there is no imperativeness);

2) autonomy of the parties’ will (they take decisions independently, at their own risk and at their own material liability);

3) material independence of the parties (they should have separate and isolated property which they incur personal liability for).

There are also other principles of civil law as a specific branch of law.

For instance, Article 1 of the Civil Code of the Russian Federation, apart from listing the above named principles, addresses the issues of inviolability of property, freedom of contract, inadmissibility of anybody’s arbitrary interference into private affairs, necessity to freely exercise the civil rights, guarantee of reinstatement of civil rights in case of their violation, and judicial remedies.

Subject matter of the civil law branch involves two groups of social relations:

1) material (property) relations which emerge between individuals in connection with property — material and other assets which appear in the form of goods and can be evaluated (land, subsoil, houses, money, negotiable instruments);

2) personal non-property relations which emerge in connection with non-material assets (name, dignity, goodwill, right of authorship to scientific, literary and artistic works, etc.). These are of non-property, non-tangible nature, but can be connected to property relations (invention rights) or not (one’s health, life, etc.).

The method of civil law is dispositive, i.e. it primarily uses authorisation of individuals to act at their sole discretion and initiative. The employment of this method is predetermined by the equality of parties in civil relations, their economic independence and autonomy. Therefore, one of the most important grounds for the origination of civil laws and obligations is contract (voluntary agreement between individuals).

Section 1 Article 2 of the Civil Code of the Russian Federation envisages that civil legislation governs property and personal non-property relations, based on equality, autonomy of will and property independence of the participants. It also means that other property relations (tax, financial, administrative) do not comprise subject matter of civil legislation.

Thus, civil law may be defined as a system of legal norms governing property and non-property relations connected thereto, which are based on equality and property independence of the participants, its main purpose being granting opportunities to individuals for full satisfaction of their needs and interests.

Pursuant to Article 2 of the Civil Code of the Russian Federation, civil law governs the relations between persons engaged in business activities.

The system of civil law of the Russian Federation is represented through the following elements.

General part of civil law includes norms dedicated to the nature of the branch, the subjects and objects of civil relations, the grounds for their coming into existence, the timeframes of exercising and protecting civil rights, etc.

Special part of civil law includes the majority of legal norms which can be grouped into sub-branches:

— law of things (including property rights and limited proprietary rights);

— law of obligations (certain types of contractual obligations to transfer the right to property, to perform works and render services);

— law of intellectual property (right of authorship, invention, patent law, etc.);

— law of succession.

15.2. Sources of Civil Law

Sources of civil law are those forms of expression of binding norms of civil law which are acknowledged by state.

There is a vast number of normative acts which contain norms of civil law. These include:

1. The Constitution of the Russian Federation;

2. The Civil Code of the Russian Federation and federal laws adopted in line therewith, designed to govern civil relations;

3. Decrees of the President of the Russian Federation;

4. Regulations of the Government of the Russian Federation;

5. Acts issued by ministries and other bodies of the executive branch of power (Article 3 of the Civil Code of the Russian Federation).

Section 1 Article 4 of the Civil Code of the Russian Federation sets forth a principle whereby acts of civil legislation are not retroactive and are applied to relations which arose after these acts entered into force.

Pursuant to Article 7 of the Civil Code of the Russian Federation, the generally recognised principles and norms of international law and international treaties of the Russian Federation are a component part of the Russian Federation legal system and are directly applicable to civil relations. The exception is where the treaty itself envisages that an intra-state act shall be issued for it to apply.

If an international treaty of the Russian Federation sets forth different rules than those stipulated by civil legislation, the former shall apply.

The content of Article 5 of the Civil Code of the Russian Federation illustrates that custom is also considered a source of civil law. A custom is a rule of behavior which has taken shape and is widely applied in a certain sphere of business activities, and which has not been stipulated by legislation, regardless of whether it has or has not been fixed in any document. However, section 2 Article 5 of the Civil Code of the Russian Federation expressly envisages that those customs which are contradictory to the provisions of legislation or agreement do not apply.

Academic writers note that the acknowledgment of custom as a source of law is risky, since customs are not formalised or fixed in a strict manner, which can lead to abuse of discretion of those who apply the law and to unrecoverable discrepancies when applicable law is identified. Therefore, ethical and moral norms cannot be deemed a source of law (although they do underlie law).

Customs should not be confused with business practices which are widespread but not obligatory. Business practices apply to parties’ relations if it is expressly stipulated.

Russian legal doctrine does not recognise legal precedent as source of law. However, clarifications in application of various normative acts issued by the Plenary of the Supreme Court of the Russian Federation do contain the official interpretation of legal norms and are binding on lower judicial bodies.

Test questions and tasks

1. Please describe the key principles of civil regulation of social relations.

2. What is the system of civil law?

3. Please list the primary sources of civil law.

Chapter 16. Civil Relations

16.1. Definition, Structure and Types of Civil Relations

In Russian legal doctrine, there is a twofold approach to the notion of “legal relation”. According to one approach, legal relation is a process of a legal norm influencing on and regulating already existing social relations, according to the second approach, legal relations are a specific type of social relations which arises only on the basis of a norm of law.

Nevertheless, despite the differences between the above two approaches, it is undoubted that any legal relation arises as a result of legal norms influencing social relations.

Civil relations are a type of legal relations arising between the participants of social relations, regulated by civil law. Civil relation is characterised by legal rights and obligations of its participants.

Civil relation is a system of interrelated elements which is called structure of civil relations. It includes the following elements:

1. Subjective element of legal relations denotes their participants (persons). The number of such participants is not limited, but there should be at least two of them — the creditor and the debtor.

Under Section 1 Article 2 of the Civil Code of the Russian Federation, citizens and legal persons may act as participants of civil relations. Besides, the Russian Federation, subjects of the Russian Federation and municipal entities may participate in some civil relations regulated by the civil legislation.

A participant of civil relations must have legal capacity, including the capacity to have rights and fulfill obligations in civil-law transactions (that is, passive and active legal capacity).

2. Subject matter of legal relations, which, as a rule, denotes material as well as immaterial goods which are capable of satisfying the needs of the individual and in regard of which a legal relation, legal rights and obligations arise.

3. Nature of legal relations denotes the interaction of their participants which is defined by their legal rights and obligations. In other words, the nature of a legal relation is the aggregate of legal rights and obligations of the participants of such relation.

4. Grounds for creation, alteration and cessation of legal relations, which are called juridical facts. Juridical facts are life circumstances connected with creation, alternation, and cessation of a legal relation.

Under Article 8 of the Civil Code of the Russian Federation, civil rights and obligations arise as a result of:

1) contracts and other transactions;

2) acts of state and municipal agencies;

3) judicial decision which establishes legal rights and obligations;

4) acquisition of property on any basis allowed by law;

5) creation of objects of art, science, literature, inventions or other intellectual property;

6) infliction of damage to another person;

7) unjust enrichment;

8) other actions of individuals or legal entities;

9) events which create civil relations according to the legislation.

The wide variety of juridical facts demands a classification. Juridical facts may be: a) events — circumstances which do not objectively depend on the will or mindset of individuals (e.g. natural disasters); b) deeds — facts which depend on the will of individuals since individuals commit them. Deeds, in their turn, may be classified into legal (contract execution, marriage registration) and illegal (all kinds of legal offences).

Legal deeds may be: а) legal actions — which lead to legal consequences regardless of the individual’s intent (e.g. creation of a scientific work authomatically leads to creation of copyright); b) legal acts — which are specifically committed to create, change or end a civil relation (sale and purchase, lease, donation, etc.).

There are the following types of civil relations:

1. pecuniary and non-pecuniary (depending on whether they have material goods as their subject matter);

2. absolute (an individual has a right which is relevant to all other individuals and entities — ownership rights, copyright) and relative (an individual’s right is relevant only to a certain obligee — sale and delivery, loan, etc.);

3. in rem (a property right belonging to an individual — ownership right, servitude, etc.) and in personam (dynamics of pecuniary legal relations which arise when an individual has the right to demand transfer of property, performance of works, etc. from another person).

16.2. Citizens (Individuals) as Participants of Legal Relations

16.2.1. Specific Features of a Citizen. Active and Passive Legal Capacity of a Citizen

Participants of civil relations are called persons. Civil law (as opposed to many other branches of Russian law) provides the same set of rights to all individuals regardless of their citizenship (whether they are Russian citizens or not). Therefore, the terms “citizen” and “man/individual” are used as synonyms in civil law.

An individual has a number of characteristics which concretize his or her legal status: name, age, sex, place of residence, etc.

Under Article 19 of the Civil Code of the Russian Federation an individual acquires and exercises rights and obligations under his or her name, which includes first name and last (family) name, as well as middle (paternal) name unless otherwise provided by law or national custom (the notion of paternal name is not known to some national customs).

In some cases provided by law an individual may use a pseudonym (an assumed name).

An individual may change their name in accordance with the procedure provided by law. Such a change does not give rise to cessation or alteration of their rights and obligations accrued under the former name (Paragraph 2 Article 19 of the Civil Code).

A place of residence is a place where an individual lives on a permanent basis or most of the time. A place of residence of a minor under fourteen years old or wards is the place of residence of their legal guardian, parent or adoptive parent. Only persons with full legal capacity may freely choose their place of residence. Minors aged fourteen to eighteen may choose their place of residence at the consent of their parents or legal guardians.

Other factors which are important for civil relations and which lead to creation and development of certain legal relations are sex, age, health condition and other factors. Reaching a certain age is necessary to fully exercise a number of rights and perform obligations; a sex of a person should be considered when providing housing on the basis of a lease, etc.

A citizen’s legal status is based on his legal capacity and competence, which consist of passive and active legal capacity.

Pursuant to Article 17 of the Civil Code of the Russian Federation, civil passive legal capacity is defined as the capability to possess the civil rights and to perform duties and is equally due to all the citizens. A citizen’s passive legal capacity arises at the moment of his birth and ceases with his death.

Therefore, passive legal capacity which is equally due to all citizens, represents his capability to possess civil rights and to perform obligations set forth by law. Passive legal capacity is intrinsic with the man, who possesses it from his birth and till death, regardless of age, state of health (mental included), and other characteristics. Law may set limits on the citizen exercising certain rights, but passive legal capacity may not be limited.

Civil active capacity is the citizen’s capability to acquire and exercise by his actions civil rights, to create for himself civil duties, and to discharge them. Active capacity arises in full volume with the citizen’s coming of age, i.e. upon reaching the age of 18 years. In case it is admitted by law to enter into marriage before the citizen’s reaching the age of 18 years, such citizen acquires the active capacity in full volume from the moment of his entering into marriage (Article 21 of the Civil Code of the Russian Federation).

Legal active capacity designates the citizen’s capability to perform various legally binding actions (transactions) independently — the capacity to contract (enter into a contract), acquire and dispose of property and be personally liable for property damage inflicted — delictual capacity (inflicting damage upon or destruction of other’s property).

As opposed to civil passive capacity which is equally attributable to all the citizens, civil active capacity is unequal, and its volume depends on one’s age. Based on this criterion, full and partial active capacity are distinguished.

Full active capacity arises from the moment of coming of age (reaching the age of 18 years), entering into marriage, or recognising a citizen fully capable (emancipation). Thus, pursuant to Article 27 of the Civil Code of the Russian Federation, a minor who has reached the age of 16 years may be declared to have full active capacity if he is employed under a labour contract, or if he engages in business activities upon the consent of his parents, adopters, or trustee. The minor is declared as having acquired full active capacity (is emancipated) by the decision of the guardianship and trusteeship body — upon the consent of both of his parents, adopters, or trustee, or, in the absence of such consent — by court decision.

Minors possess partial active capacity. The Civil Code of the Russian Federation distinguishes between the active capacity of minors aged 14 to 18 years and the active capacity of minors aged 6 to 14 years (active capacity of young minors).

Pursuant to Article 26 of the Civil Code of the Russian Federation, minors aged 14 to 18 years have the right to perform the following actions independently:

1) to dispose of their earnings, student’s allowance, or other incomes;

2) to exercise the author’s rights to a work of science, literature or art;

3) to make deposits into credit institutions and dispose of these;

4) to effect petty everyday deals and other deals as set forth by law.

In other cases, deals effected by such minors shall be effected upon the written consent of their legal representatives — parents, adopters, or trustee.

Minors aged 6 to 14 years (young minors) have the right to perform the following actions independently:

1) petty everyday deals;

2) deals aimed at deriving free profit, which are not subject to the notary’s certification or to state registration;

3) deals involving disposal of means provided by their legal representatives or, upon the latter’s consent, by a third person for a definite purpose or for free disposal.

In other cases, only young minors’ parents, adopters, or guardians may perform transactions on the formers’ behalf.

Article 30 of the Civil Code of the Russian Federation sets forth the possibility of restricting active capacity of citizens who, as a result of their abuse of alcohol or drug addiction have put their families into a precarious financial position. Trusteeship is established over such citizens. They are entitled to effect petty everyday deals independently, while other transactions may be effected upon the trustee’s consent. The trustee receives and spends wages, pension, and other incomes of the citizen restricted in active capacity by court.

A citizen who, as a result of a mental derangement, can neither realise the meaning of his actions nor control them, may also be recognised by court as legally incapable.

If the grounds, by force of which the citizen was recognised as legally incapable, have ceased to exist, the court shall repeal the restriction in active capacity (section 2 Article 30 of the Civil Code of the Russian Federation).

A citizen who, as a result of a mental derangement, can neither realise the meaning of his actions nor control them, may also be recognised by court as legally incapable. All the transactions on his behalf are effected by a guardian (Article 29 of the Civil Code of the Russian Federation). Should the citizen’s capability to understand the meaning of his actions and to control them, restore, the court shall recognise him as legally capable.

It is worth emphasising that a citizen may be exclusively recognised as legally incapable as a result of a mental derangement, and not any physical impairment, mutilation, illness, etc.

16.2.2. Business Activities of a Citizen

A citizen’s business activities are one of the elements of their civil capacity.

Business activity is an independent activity, performed at one’s own risk, aimed at systematically deriving a profit from the use of the property, the sale of commodities, the performance of work or the rendering of services by the persons, registered in this capacity in conformity with the law-established procedure (section 1 Article 2 of the Civil Code of the Russian Federation).

Any citizen is entitled to conduct business without forming a legal entity, starting from the moment of registration as individual entrepreneur.

Any legally binding actions an entrepreneur commits are on their behalf and at their own risk.

Pursuant to Article 8 of the Federal Law “On the state registration of legal entities and individual entrepreneurs”, state registration shall be effected within five business days upon submitting the necessary documents to the registering authority.

An individual entrepreneur who is unable to settle creditors’ claims arising from the former’s business activities may be deemed insolvent (bankrupt) by court. Once such a decision is taken by court, an individual entrepreneur’s state registration becomes invalid. During the implementation of bankruptcy proceeding, an individual entrepreneur’s creditors by obligations not related to his performance of business activities, are also entitled to file their claims (Article 25 of the Civil Code of the Russian Federation).

Pursuant to section 4 Article 134 of the Federal Law “On insolvency (bankruptcy)”, an individual entrepreneur’s creditors’ claims, should he be deemed bankrupt, are met with the property he owns according to the following priority ranking:

— the first priority ranking is for settlements relating to the claims of the citizens to whom the debtor is liable for a harm inflicted to life or health;

— the second priority ranking is for settlements relating to disbursement of severance benefits and remuneration for the labour of the persons who are working or have been working under a labour contract;

— the third priority ranking is for settlements with other creditors.

Article 24 of the Civil Code of the Russian Federation sets forth a principle whereby a citizen bears responsibility for his obligations with his entire property, with the exception of that property, upon which, in conformity with the law, no penalty may be imposed.

An individual entrepreneur has both personal property as well as property which is solely used for business purposes. However, the law does not distinguish between the two. It means that, regardless of the fact whether an individual entrepreneur uses his property for business purposes or personal affairs, he will bear responsibility with his entire property.

16.2.3. The Guardianship, the Trusteeship, the Patronage

Not every citizen is able to exercise their rights and perform obligations, due to partial capacity or incapacity. Therefore, guardianship and trusteeship are established to protect the rights and interests of legally incapable or partially capable citizens. Guardianship and trusteeship over minors are also established for educational purposes (Article 31 of the Civil Code of the Russian Federation).

Guardianship is established over minors (aged 6 to 14) and citizens who have been recognised by court as legally incapable as a result of mental derangement. Guardians are representatives of their wards by operation of law and effect all the necessary transactions on the latter’s behalf and in their interests and are liable for their actions.

Trusteeship is established over minors aged from 14 to 18, as well as citizens who have been restricted in their legal capacity. Trustees give their consent for effecting those transactions which the citizens under their trusteeship are not entitled to effect independently.

Trustees render assistance to their wards in their exercising their rights and duties, and protect them from possible maltreatment on the part of third persons. Trustees’ obligations are more limited in comparison with those of guardians.

Guardianship and trusteeship bodies are the executive bodies of subjects of the Russian Federation. A guardian or a trustee is appointed by the guardianship and trusteeship body by the place of residence of the person in need of guardianship or trusteeship, within one month from the moment when the said bodies have become aware of the need to establish guardianship or trusteeship over the citizen.

If no guardian or trustee is appointed for the person in need of guardianship or trusteeship, the execution of the duties of a guardian or a trustee is temporarily imposed upon the guardianship and trusteeship body (Article 35 of the Civil Code of the Russian Federation).

A guardian or a trustee can be only appointed upon such body’s consent, and their duties are executed free of charge.

Guardians, as well as trustees, are obliged to take care of the maintenance of their wards, to provide them all essential services and medical treatment, and to protect their rights and interests.

Pursuant to Article 37 of the Civil Code of the Russian Federation, a guardian or a trustee are entitled to dispose of the incomes of their ward, including the sums of social disbursements provided for their subsistence, except for income which the ward is entitled to dispose of on their own. Such disposal shall be effected exclusively in the interests of the ward and with preliminary consent of the body of guardianship and trusteeship.

On the contrary, patronage is a special form of guarding the interests of adult legally capable citizens, who cannot exercise their rights and perform their obligations on their own due to the state of their health (ill, elderly, handicapped).

An aid of such a person may be appointed on their consent, as well as on that person’s consent. The aid performs actions in the interests of the citizen who is under patronage, on the basis of a contract entered into by and between these two persons. Therefore, the aid’s and the citizen’s relations are of contractual nature.

16.2.4. Recognising the Citizen as Missing for an Unknown Reason and Declaring the Citizen as Dead

A citizen’s long-term absence in their place of residence or lack of any information on their whereabouts is not a matter of indifference for their family and counterparties (creditors, employer). Moreover, such citizen’s property is left unattended and may be damaged or embezzled.

In order to eliminate legal uncertainty, the lawmaker created the institute of missing for an unknown reason (absence in a place unknown).

Article 42 of the Civil Code of the Russian Federation sets forth that a citizen may be recognised as missing for an unknown reason if at the place of his residence there is no information on the place of his stay in the course of one year.

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