Golovanov Civil law. N. M. GolovanovCivil law Foundations of civil legal relations
Diakonov V.V.
Civil law of the Russian Federation (General part): Textbook.
1. Civil law as a branch of law, science and academic discipline
1.2 Interaction of civil law with other branches of law.
1.3 Civil law system
1.4 Institutes and other structural units of civil law
2. Sources of civil law
2.1 Concepts of sources of civil law
2.2 Application of civil law.
2.3 Effect of civil legislation.
2.3.1 Effect of legislation over time.
2.3.2 Retroactive force of civil regulations.
2.3.3 Effect of legislation in space.
2.3.4 Effect of legislation on a circle of persons
3. Civil relations
3.1 The concept of civil legal relations
3.2 Exercise of civil rights
3.3 Legal facts - as grounds civil legal relations
4. Individuals as subjects of civil rights
4.1 Concept of legal personality
4.2 Face customization
4.3 Legal capacity of citizens
4.4 Guardianship and trusteeship
4.5 Unknown absence
4.6 Acts civil status
5. Legal entities as subjects of civil law
5.1 Concept and characteristics legal entity
5.2 Legal personality of a legal entity
5.3 Formation of a legal entity.
5.4 Constituent documents of a legal entity.
5.5 Individualization of a legal entity
5.6 Branches and representative offices of legal entities
5.7 Termination of activities of a legal entity
5.7.1 Reorganization of a legal entity
5.7.2 Liquidation of a legal entity
5.7.3 Classification of legal entities
5.8 Types of legal entities
5.8.1 Business partnerships and societies
5.8.2 Partnership of faith
5.8.3 Limited liability company
5.8.4 Company with additional liability
5.8.5 Joint stock company
5.8.6 Subsidiaries and dependent companies.
5.8.7 Producer cooperatives
5.8.8 Unitary enterprises
5.8.9 Non-profit organizations
5.8.10 Consumer cooperative
5.8.11 Public organization (association)
5.8.12 Religious organization
5.8.14 Establishment
5.8.15 Association of legal entities (union or association)
6. The state as a subject of civil law
7. Objects of civil rights
7.1 Definition of property
7.3 Intellectual property
7.4 Information
7.5 Money
7.6 Works and services
7.7. Securities
7.8 Intangible benefits
8.1 Concept of transaction
8.2 Types of transactions
8.3 Validity of transactions
8.4 Invalidity of transactions
9. Representation
9.1 Definition of representation
9.2 Subjects of representation
9.3 Reasons for the establishment of representative offices
10. Deadlines in civil law
10.1 Concept of deadline
10.2 Limitation period
11. Ownership and other property rights
11.1 Concept of property rights
11.2 Forms of ownership
11.3 Other real rights
11.4 Acquisition and loss of ownership
11.5 Common property
11.5.1 Concept of common ownership
11.5.2 Common shared ownership
11.5.3 Common joint ownership
11.6 Ownership and other proprietary rights to land
11.7 Ownership of residential premises
11.8 Right of economic management, right of operational management
12. Protection of property rights
13. Law of obligations
13.1 Concept of obligations
13.2 Commitment system
13.3 Parties to the obligation
13.4 Grounds for the occurrence of obligations
13.5 Fulfillment of obligations
13.5.1 The concept of fulfillment of an obligation
13.5.2 Method of fulfillment of the obligation
13.5.3 Deadline for fulfillment of obligation
13.5.4 Place of fulfillment of the obligation
13.5.5. Subject of fulfillment of obligation
13.5.6 Subjects of fulfillment of obligations
13.5.7 Counter-fulfillment of obligations
13.6 Ensuring the fulfillment of obligations
13.6.1 General provisions ensuring the fulfillment of obligations
13.6.2 Penalty
13.6.3 Deposit
13.6.4 Hold
13.6.5 Surety
13.6.6 Bank guarantee
13.6.7 Deposit
13.7 Change of persons in an obligation
13.8 Liability for breach of obligations
13.8.1 The concept of civil liability
13.8.2 Forms of liability
13.8.3 Types of liability
13.9 Termination of obligations
14. Contract law
14.1 Concept of contract
14.3 Types of contracts
14.4 Interpretation of the contract
14.5 Conclusion of the contract
14.6 Change and termination of the agreement
References
1.1 General concepts civil law as a branch and academic discipline
Civil law is a branch of law that regulates commodity-money and other property relations based on equality of participants, as well as personal non-property relations associated with property. Participants in regulated civil legal relations are citizens - individuals, legal entities, states, as well as autonomous and administrative-territorial entities. Civil law contains general provisions that are important for all civil relations, for example, on the limitation period, as well as rules on property rights, the law of obligations, copyright, right to invention, inheritance law.
Civil legislation - in a broad sense: a set of regulations that express the norms of civil law (Article 71 of the Constitution of the Russian Federation).
Civil legislation - in the narrow sense: the Civil Code of the Russian Federation and federal laws adopted in accordance with it (Article 3 of the Civil Code of the Russian Federation).
The science of civil morals - studies the patterns of civil legal regulation public relations. The subject of its study: the norms of civil law embodied in acts of civil legislation, their interaction with social relations, the practice of their application. Results of the study: doctrine of civil law, theories, concepts, ideas, concepts...
Academic discipline“Civil Law” teaches civil law and its science: definition of concepts, scientific generalizations and conclusions, domestic and foreign civil law doctrines, explanation of the norms of civil law and its application in practice.
The subject of a branch of law is the range of social relations that it regulates. The subject of civil law is property and associated personal non-property relations based on the legal equality of the parties, which are called civil relations.
Property relations are social relations arising in connection with various types of material goods (things, works, services and other property) of a value nature. A material good as an object of property relations must have a measure of value that reflects the social need for it and takes into account the labor expended on its implementation. Property relations regulated by civil law have dispositive character and imply the exchange, in principle, of equal value (in the legal sense) of material goods.
Personal non-property relations are social relations arising regarding intangible benefits that have a mutual assessment by the participants of each other’s individual personality traits (name, honor, dignity, business reputation, authorship, health). Associated with property relations through an individual assessment of the individual as a subject of civil legal relations from the point of view of the sustainability and effectiveness of its implementation.
The method of legal regulation is a set of techniques, ways of influencing the law on social relations, their legal features in this area of law.
The content of the textbook takes into account changes in the current civil legislation and the practice of its application as of September 1, 2009, and also uses a wide range of domestic scientific and practical literature on civil law. At the end of each chapter there is...
This textbook was prepared by the team of authors of the Department of Civil Law, Faculty of Law, Moscow State University. M.V. Lomonosov based on the civil law course program he developed, which fully complies state standard higher legal education. The full text of the updated program of this course is placed in Volume I of the textbook, the chapters of which reveal the content of the relevant specific topics of the program.
This civil law textbook is traditionally divided into two volumes. Volume I covers the institutions of the General Part of Civil Law, as well as real right, inheritance law, intellectual rights and personal non-property rights. Volume II is devoted to the law of obligations.
The content of the textbook takes into account changes in the current civil legislation and the practice of its application as of September 1, 2009, and also uses a wide range of domestic scientific and practical literature on civil law. At the end of each chapter there is a list of literature that is additionally recommended to students for an in-depth study of the relevant topic of the course. Each volume of the textbook is equipped with an alphabetical subject index.
The textbook can be used by both undergraduate and graduate students and teachers of law and economics universities, and also serve as a guide for advanced training and retraining of practicing lawyers.
4th edition, stereotypical.
The first volume covers issues of the General part of the civil law course.
In the new edition of the textbook, the authors took into account and used the Civil Code of the Russian Federation and other latest legislative acts, judicial and arbitration practice of their application, as well as a wide range of scientific and practical works of domestic civil experts. At the end of each chapter there is a list of additional literature.
Each volume of the textbook is equipped with an alphanumeric subject index. Recommended by the Ministry of Education and Science of the Russian Federation as a textbook for students of higher educational institutions studying in the direction 521400 “Jurisprudence” in the specialty 021100 “Jurisprudence”. Intended also for graduate students and teachers of law universities, employees of law enforcement agencies state power and management and law enforcement agencies, other legal practitioners wishing to update their knowledge.
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Content
Section I. INTRODUCTION TO CIVIL LAW
Chapter 1. CIVIL LAW AS PRIVATE LAW
§ 1. The concept of private law
1. The term "civil law"
2. Private and public law
3. Features of civil law as private law
4. Private law in Russia
§ 2. Private law system
1. Basic systems of private law
2. Development of the private law system in Russia
3. The problem of commercial and “entrepreneurial” law
Chapter 2. CIVIL LAW AS A BRANCH OF LAW
§ 1. Civil law in the system of legal branches
1. Features of the domestic law system
2. The place of civil law in the legal system
§ 2. Subject of civil law
1. Relations regulated by civil law
2. Property relations regulated by civil law
3. Civil forms of property relations
4. Personal non-property relations regulated by civil law
§ 3. Method, functions and principles of civil law
1. Civil law method
2. Functions of civil law
3. Principles of civil law
4. Definition of civil law
§ 4. Civil law system
1. Basic systems of continental civil law
2. Russian civil law system
Chapter 3. CIVIL LAW AS A SCIENCE AND TRAINING COURSE
§ 1. Science of civil law
1. Civil law as one of the branches of law
2. The concept and subject of civil law (civil law) science
3. Methodology of civil law science
4. Science of civil law and other social sciences
§ 2. Academic discipline of civil law
1. Subject and system of the civil law course
2. Main sections of the civil law course
3. Main objectives of the civil law course
Chapter 4. SOURCES OF CIVIL LAW
§ 1. Concept and types of sources of civil law
1. The concept of the source of civil law
2. Civil legislation
3. Legislation on economic activity
4. International treaties
5. Customs of property turnover
§ 2. Regulatory acts of civil law
1. System of normative acts of civil law
2. Civil Code
3. Other federal laws (civil legislation)
4. Other legal acts
5. Regulatory legal acts federal bodies executive branch
§ 3. Effect of civil legislation
1. Official publication and introduction normative act in force
2. Effect of civil legislation over time
3. Effect of civil legislation in space and among persons
4. Application of civil law by analogy
5. Interpretation of civil law rules
Section II. CIVIL RELATIONS
Chapter 5. CONCEPT, CONTENT AND TYPES OF CIVIL RELATIONS
§ 1. Concept and elements of civil legal relations
1. Signs and definition of civil legal relations
2. Features of civil legal relations
§ 2. Contents of civil legal relations
1. The concept of subjective civil law
2. The concept of subjective civic duty
3. Structure of the content of civil legal relations
§ 3. Subjects and objects of civil legal relations
1. The concept and content of civil personality
2. Composition of participants in civil legal relations
3. Objects of civil legal relations
§ 4. Types of civil legal relations
1. Classification of civil legal relations
2. Absolute and relative legal relations
3. Property and non-property legal relations
4. Property and obligatory legal relations
5. Corporate legal relations
6. Legal relations that include preferential rights
Chapter 6. CITIZENS (INDIVIDUALS) AS PARTICIPANTS OF CIVIL RELATIONS
§ 1. Citizens (individuals) and their civil legal individualization
1. Personality, man and civil personality
2. Citizen as an individual
3. Citizen as a subject of civil law
§ 2. Legal capacity of citizens (individuals)
1. The concept of legal capacity of citizens (individuals)
2. Legal capacity and subjective rights of a citizen
3. The content of the legal capacity of citizens and its limits
4. Equality of legal capacity of citizens
5. Origin and termination of legal capacity
6. Inalienability of legal capacity and the impossibility of limiting it
7. Civil legal capacity foreign citizens and stateless persons
§ 3. The concept and content of the legal capacity of citizens (individuals)
1. The concept of legal capacity of citizens and its meaning
2. Legal nature and content of citizens’ legal capacity
3. Types of legal capacity of citizens
4. Entrepreneurial activities of citizens
§ 4. Legal capacity of minor citizens
1. The concept and types of incomplete (partial) legal capacity of minors
2. Incomplete (partial) legal capacity of minors aged 14 to 18 years
3. Partial legal capacity of minors (minors aged 6 to 14 years)
§ 5. Restriction and deprivation of legal capacity of citizens
1. The concept of limiting the legal capacity of citizens
2. Limitation of incomplete (partial) legal capacity of minors
3. Limitation of the full legal capacity of citizens
4. Recognition of a citizen as incompetent
§ 6. Bankruptcy of a citizen
1. The concept of bankruptcy of a citizen
2. Signs of bankruptcy of a citizen
3. Procedures for bankruptcy of a citizen
4. Consequences of declaring a citizen bankrupt
5. Features of bankruptcy of an individual entrepreneur
6. Peculiarities of bankruptcy of a peasant (farm) enterprise
§ 7. Guardianship, trusteeship and patronage
1. Concept and purposes of guardianship and trusteeship
2. Guardianship and trusteeship authorities
3. Persons appointed as guardians and trustees
4. Rights and obligations of guardians and trustees
5. Termination of guardianship and trusteeship
6. Patronage of capable citizens
§ 8. Place of residence of citizens
1. The concept of residence
2. Choosing a place of residence
3. Place of residence of migrants and internally displaced persons
4. Place of residence of refugees
5. Legal significance of place of residence
§ 9. Unknown absence. Declaring a citizen dead
1. The concept and conditions for recognizing a citizen as missing
2. Consequences of recognizing a citizen as missing
3. Declaring a citizen dead
4. Consequences of the appearance of a citizen declared dead
§ 10. Civil status acts
1. The concept of civil status
2. Types of civil status acts and their registration
Chapter 7. LEGAL ENTITIES AS PARTICIPANTS IN CIVIL RELATIONS
§ 1. Concept and types of legal entities
1. Essence of a legal entity
2. Basic theories of the essence of a legal entity
3. Classification of legal entities
4. Types of legal entities
§ 2. Legal entity as a subject of civil law
1. Signs of a legal entity
2. Legal capacity of a legal entity
3. Bodies of a legal entity
4. Representative offices and branches
§ 3. Creation and termination of legal entities
1. Emergence (creation) of a legal entity
2. Termination of a legal entity through reorganization
3. Termination of a legal entity through liquidation
4. Termination of a legal entity in case of bankruptcy
5. Basic bankruptcy procedures
Chapter 8. LEGAL PERSONALITY OF COMMERCIAL ORGANIZATIONS
§ 1. Concept and types of business partnerships and companies
1. Business partnerships and societies as commercial organizations
2. Business partnerships as associations of persons
3. Business companies as associations of capital
§ 2. Business partnerships
1. General partnership
2. Rights and obligations of a general partner
3. Limited partnership
§ 3. Business companies
1. Limited liability company
2. Rights and obligations of a participant in a limited liability company
3. Additional liability company
4. Joint stock company
5. Types of joint stock companies; rights and obligations of shareholders
6. Joint stock companies workers (national enterprises)
7. Subsidiaries and dependent companies
§ 4. Production cooperative (artel)
1. Concept and types of production cooperatives
2. Bodies of the production cooperative
3. Rights and obligations of members of a production cooperative
§ 5. Unitary enterprise
1. Enterprise as an object and subject of law
2. Unitary enterprise as a legal entity
3. State unitary enterprise
Chapter 9. LEGAL PERSONALITY OF NON-PROFIT ORGANIZATIONS
§ 1. Concept and types of non-profit organizations
1. Non-profit organizations as legal entities
2. Types of non-profit organizations
§ 2. Consumer cooperative
1. The concept of a consumer cooperative
2. Rights and obligations of members of a consumer cooperative
3. Types of consumer cooperatives
§ 3. Non-profit partnership
1. Concept and types of non-profit partnerships
2. Rights and obligations of members of a non-profit partnership
§ 4. Non-profit partnership
1. Concept and types of non-profit partnerships
2. Rights and obligations of partnership participants
§ 5. Association of legal entities
1. The concept of an association of legal entities
2. Rights and obligations of participants in an association of legal entities
3. Types of associations of legal entities
§ 6. Association of employers
1. Concept and types of employers' associations
2. Rights and obligations of members of the association of employers
§ 7. Commodity exchange
1. The concept of a commodity exchange
2. Rights and obligations of the founders (members) of the commodity exchange
§ 8. Public associations
1. The concept of a public association
2. Management of a public association and the rights and obligations of its members
3. Types of public associations
§ 9. Foundation
1. Concept and types of funds
2. Foundation creation and management
§ 10. Autonomous non-profit organization
1. The concept of an autonomous non-profit organization
2. Creation and management of autonomous non-profit organization
§ 11. Establishment
1. The concept of an institution as a legal entity
2. Establishment and management of the institution
3. State corporation
Chapter 10. PUBLIC LEGAL ENTITIES AS PARTICIPANTS OF CIVIL RELATIONS
§ 1. Civil personality of public legal entities
1. The state and other public legal entities as subjects of civil law
2. Features of the civil legal personality of public legal entities
3. Differentiation of cases of participation in civil legal relations of public legal entities and their bodies
§ 2. Cases of participation of public legal entities in civil legal relations
1. Participation of public legal entities in property relations
2. Participation of public legal entities in corporate relations
3. Participation of public legal entities in obligations
4. The state as the subject of exclusive rights
5. State participation in foreign economic turnover
6. Judicial immunity of the state
Chapter 11. OBJECTS OF CIVIL RELATIONS
§ 1. Concept and types of objects of civil legal relations
1. The concept of the object of civil legal relations
2. Types of objects of civil legal relations
3. Objects of civil rights and civil legal relations
4. Property as an object of civil legal relations
§ 2. Things as objects of civil legal relations
1. Concept of a thing
2. Turnover of things
3. Movable and immovable things
4. Property complexes
5. Other types of things
6. Money
§ 3. Securities
1. Concept and characteristics (properties) of a security
2. Classification (types) of securities
3. The problem of uncertificated securities
Chapter 12. GROUNDS FOR THE ARISE, CHANGES AND TERMINATION OF CIVIL RELATIONS
§ 1. Legal facts and their composition
1. The concept of a legal fact
2. Legal facts - actions
3. Legal facts - events
4. Legal compositions
§ 2. Concept and types of transactions
1. Definition of a transaction
2. Deal - volitional action
3. Basis (purpose) of the transaction
4. Transaction as a legal action
§ 3. Types of transactions
1. Classifications of transactions
2. Unilateral, bilateral and multilateral transactions
3. Other types of transactions
4. Transactions made under conditions
§ 4. Conditions for the validity of transactions
1. General conditions for the validity of transactions
2. Legality of the content of the transaction
3. The ability of persons making a transaction to participate in it
4. Compliance with the will and expression of the participant in the transaction
§ 5. Form of transaction
1. General provisions on the form of transactions
2. Written form of the transaction
3. Details of the written form of the transaction
4. Analogue of a handwritten signature. Electronic digital signature
5. Consequences of failure to comply with the written form of the transaction
6. Notarial form of the transaction
7. State registration of transactions
Chapter 13. INVALIDITY OF TRANSACTIONS
§ 1. The concept and meaning of invalidity of a transaction
1. Concept and grounds for invalidity of a transaction
2. Nullity (absolute invalidity) of the transaction
3. Contestability (relative invalidity) of transactions
4. Invalidity of part of the transaction
§ 2. Grounds for nullity (absolute invalidity) of transactions
1. Types of grounds for nullity of transactions
2. Insignificance of transactions made for purposes contrary to the foundations of law and order and morality
3. Imaginary and feigned transactions
4. Transactions made by incapacitated and minor citizens
5. Deals with vices (disadvantages) of the form
6. Other (special) grounds for the nullity of transactions
§ 3. Grounds for disputability (relative invalidity) of transactions
1. General grounds contestability of transactions
2. Transactions made beyond the legal capacity of a legal entity
3. Transactions made beyond the scope of authority to make a transaction
4. Transactions made by minors aged 14 to 18 years
5. Transactions made by a citizen whose legal capacity has been limited by a court
6. A transaction made by a citizen incapable of understanding the meaning of his actions or managing them
7. Transactions made under the influence of delusion
8. Transaction made under the influence of deception
9. Transactions made under the influence of violence
10. Transaction made under the influence of a threat
11. Transactions made as a result of a malicious agreement between a representative of one party and the other
12. Bonded deals
13. Special grounds for contestability of transactions
§ 4. Legal consequences of recognizing transactions as invalid
1. The concept of restitution in Russian civil law
2. Restitution of possession
3. Compensatory restitution
4. Bilateral restitution
5. Unilateral restitution
6. Other property consequences of invalidity of the transaction
7. No restitution
8. Limitations of use general rules about the consequences of invalid transactions
9. Limitation period for claims to apply rules on the consequences of invalid transactions
Section III. IMPLEMENTATION AND PROTECTION OF CIVIL RIGHTS
Chapter 14. EXERCISE OF CIVIL RIGHTS AND PERFORMANCE OF OBLIGATIONS
§ 1. Concept and methods of exercising civil rights and fulfilling obligations
1. The concept of the implementation of subjective civil rights and the fulfillment of subjective civil obligations
2. Ways to exercise subjective civil rights
3. Methods and forms of fulfilling civil legal obligations
§ 2. Limits of the exercise of civil rights
1. The concept of the limits of the exercise of civil rights
2. The importance of moral norms and foundations in determining the limits of the exercise of subjective civil rights
3. The influence of reasonableness and good faith on determining the limits of the exercise of subjective civil rights
4. Exercising the right in accordance with its social purpose
§ 3. Concept and types of abuse of right
1. The principle of inadmissibility of abuse of rights
2. The concept of abuse of rights
§ 4. Exercising rights and fulfilling obligations through a representative
1. Concept and subjects of representation
2. Origin and types of representation
3. Concept and types of power of attorney
4. Power of attorney form
5. Reliance
Chapter 15. RIGHT TO DEFENSE
§ 1. Concept and content of the right to defense
1. The concept of the right to defense
2. Protection measures and liability measures
3. Reasons for applying protective measures
4. Forms of protection of civil rights
§ 2. Self-defense of civil rights
1. The concept of self-defense of civil rights
2. Necessary defense as a way of self-defense of civil rights
3. Actions in conditions of extreme necessity as a way of self-defense of civil rights
§ 3. Measures of operational influence on the violator of civil rights
1. Concept and features of operational measures
2. Types of operational measures
§ 4. State coercive law enforcement measures
1. The concept and types of state coercive law enforcement measures
3. Civil law state-coercive measures for the protection of civil rights that do not have signs of civil liability
Chapter 16. CIVIL LIABILITY
§ 1. Concept and types of civil liability
1. The concept of legal liability
3. Concept and functions of civil liability
4. Types of civil liability
§ 2. Conditions of civil liability
1. Concept and composition of a civil offense
2. Wrongfulness as a condition of civil liability
3. Harm (losses) as a condition of civil liability
4. Causality as a condition of civil liability
5. Guilt as a condition of civil liability
§ 3. Application of civil liability
1. Liability that occurs regardless of the guilt of the offender (objective liability)
2. Amount of civil liability
3. Features of liability for violation of monetary obligations
4. Objects of property liability
Chapter 17. TERMS IN CIVIL LAW
§ 1. Concept, calculation and types of terms in civil law
1. The concept of deadline
2. Calculation of deadlines
3. Types of deadlines
§ 2. Limitation period
1. Concept and types of limitation periods
2. Application of the limitation period
3. Calculation of limitation periods
4. Consequences of the expiration of the limitation period
ALPHABETIC SUBJECT INDEX
Section 1
BASIC PROVISIONS OF CIVIL LAW
1. THE CONCEPT OF CIVIL LAW AS A BRANCH OF LAW
Civil law differs from other branches of law in the subject and method of legal regulation. The subject of legal regulation is understood as social relations subject to regulation, and the method is a complex legal means and ways to influence these relationships.
The subject of civil law is property and personal non-property relations.
Property relations arise regarding the ownership of property by certain persons, the transfer of property from one person to another, the management of property, and the use of the results of creative activity.
Personal non-property relations arise regarding intangible benefits (life, health, honor, dignity, business reputation, the name of a citizen, the name of a legal entity, etc.).
The civil law method is characterized by the legal equality of the parties, the dispositive nature of legal regulations, the contractual and proactive procedure for establishing connections between counterparties, mainly judicial procedure protection of violated civil rights, property liability for the offense committed. The decisive significance in this combination of features belongs to the legal equality of the parties. It is legal equality that provides participants in civil legal relations with independence and independence, allows them to show initiative and entrepreneurship, and perform any actions not prohibited by law.
Thus, civil law can be defined as a system of legal norms regulating property and personal non-property relations on the basis of legal equality of the parties.
2. PRINCIPLES OF CIVIL LAW
The principles of civil law are understood as the guiding principles on which the regulation of civil law relations is based. They are directly enshrined in Art. 1 Civil Code Russian Federation(hereinafter referred to as the Civil Code), as well as in a number of other articles of the Civil Code (for example, in Articles 8-14, 22, 421) and therefore are generally binding. These principles include:
– the principle of permissive orientation of civil law regulation;
– the principle of equality of legal regime for all participants in civil transactions;
– the principle of inadmissibility of arbitrary interference in private affairs;
– the principle of inviolability of property;
– the principle of freedom of contract;
– the principle of free movement of goods, services and financial resources;
– the principle of prohibition of abuse of rights;
– the principle of comprehensive protection and judicial protection civil rights.
3. CIVIL LAW SYSTEM
The civil law system develops objectively, because it is based on real social relations that have certain specifics. This specificity allows us to distinguish the general part of civil law and its five sub-branches, each of which in turn is divided into legal institutions and sub-institutions.
The general part unites the rules applicable to regulate any relations included in the subject of civil law. Subjects of civil law are obliged to take these norms into account whenever they enter into relevant relations with each other.
Sub-branches of civil law include:
– property rights and other real rights (real rights);
– law of obligations;
– personal non-property rights;
– the right to the results of creative activity ( intellectual property);
- inheritance law.
The peculiarities of the relations included in the subject of one or another sub-branch of civil law predetermine their further differentiation into legal institutions and sub-institutions.
4. SOURCES OF CIVIL LAW
The norms of civil law are expressed in articles of various regulatory legal acts, which are usually called the sources of civil law.
The Constitution of the Russian Federation, which contains norms, has the highest legal force various industries law, including civil law.
Constitutional norms are specified and developed in civil legislation, and in particular in the Civil Code. Along with it, the system of civil legislation is formed by special laws that regulate certain types of social relations included in the subject of civil law.
Among the by-laws, the leading role belongs to legal acts issued by the President of the Russian Federation and the Government of the Russian Federation.
Civil law norms may also be contained in regulations of federal ministries and departments. However, these bodies can issue acts containing norms of civil law only in cases and within the limits provided for by the Civil Code, other laws and other legal acts.
Regulatory acts of the USSR and the RSFSR, adopted before the entry into force of the Civil Code, are also included in the system of civil legislation in parts not regulated Civil Code and not contradicting it.
Part legal system Russian Federation are generally recognized principles and norms international law, as well as international treaties of the Russian Federation regulating social relations included in the subject of civil law. At the same time, the Constitution of the Russian Federation gives these acts a higher legal force than the normative acts of Russian civil legislation.
Relations between participants in civil transactions are regulated not only by regulatory legal acts, but also by so-called business customs. They can be considered as an additional source of civil law, since only when the state sanctions them do they acquire the legal force of a legal norm and enter the system of civil legislation. The custom must be established, that is, sufficiently defined in its content and widely used in business.
5. EFFECT OF CIVIL LAW RULES
On the territory of the Russian Federation, only those civil laws and other civil legal acts that are officially published are in force. International treaties ratified by the Federal Assembly are published simultaneously with federal laws about their ratification.
Civil laws come into force simultaneously throughout the entire territory of the Russian Federation 10 days after the day of their official publication, unless the laws themselves establish a different procedure for their entry into force.
Decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation are published in the “Collection of Legislation of the Russian Federation” and “ Rossiyskaya newspaper" Regulatory decrees of the President of the Russian Federation and decrees of the Government of the Russian Federation, affecting the rights, freedoms and obligations of citizens and their associations, come into force throughout the Russian Federation simultaneously after 7 days after the day of their official publication, unless otherwise provided in the decrees and decrees themselves.
Regulatory acts of federal ministries and departments affecting the rights, freedoms and obligations of citizens, establishing the legal status of organizations or having an interdepartmental nature must undergo state registration with the Ministry of Justice of the Russian Federation. They are subject to official publication in the Rossiyskaya Gazeta within 10 days after the day of their registration, as well as in the Bulletin of regulatory acts of federal executive authorities. These acts come into force 10 days after the day of their official publication, unless the acts themselves establish a different procedure for their entry into force.
The moment of termination of a normative act is sometimes established in the normative act itself. In most cases, a normative act ceases to have effect either as a result of direct repeal, or in connection with the adoption of a new normative act that cancels or changes the content of the old one.
The effect of civil regulations extends to the entire territory of the Russian Federation. However, the authority that issued the act may limit the territory of its validity.
Civil legislation applies in exactly the same way to a circle of persons: according to the general rule, the effect of civil regulations applies to all persons located on the territory of the Russian Federation. If the effect of a civil legal act is limited to a certain territory, then it is valid only in relation to those persons who are located in this territory.
Sometimes there are cases when it is established in the act itself or from its meaning that it applies only to a certain group of persons.
6. ANALOGY OF LAW AND ANALOGY OF LAW
In cases where social relations included in the subject of civil law are not regulated by legislation or agreement of the parties and there is no business custom applied to them, civil legislation regulating similar relations (analogy of law) is applied to such relations, since this does not contradict their essence.
If it is impossible to use an analogy of law, the rights and obligations of the parties are determined based on the general principles and meaning of civil legislation (analogy of law) and the requirements of good faith, reasonableness, and fairness.
To apply the analogy of civil law, the following conditions are necessary.
1. There is a social relationship, which, by its characteristics, is included in the subject of civil law.
2. This social relationship is not regulated by civil law, agreement of the parties or business custom.
3. There is a rule of civil law that regulates similar social attitudes.
4. There is no contradiction between the applied norm and the essence of the relationship to be settled.
As for the analogy of law, it is permissible only on the condition that the legal situation cannot be resolved using the analogy of law.
7. CONCEPT AND TYPES OF CIVIL RELATIONS
A civil legal relationship is a property or personal non-property relationship regulated by civil law.
The interaction of participants in a legal relationship with each other is its content, and the subjective rights and obligations belonging to the participants in the interaction are its legal form.
Civil legal relations are divided:
– depending on the type of regulated social relations – property and personal non-property;
– depending on the structure of intersubjective communication – into relative and absolute;
– depending on the method of satisfying the interests of the authorized person – in rem and obligations;
– depending on the distribution of rights and responsibilities between participants in legal relations – simple and complex;
– depending on the period during which the legal relationship is valid – fixed-term and indefinite.
Outside of the above classification, corporate and preferential legal relations can be distinguished.
8. SUBJECTS OF CIVIL RELATIONS
Participants in civil legal relations are called their subjects. The subjects of civil legal relations are either individuals or certain groups of people.
Individuals are called citizens or individuals. Along with citizens of the Russian Federation, foreigners, as well as stateless persons, can be subjects of civil legal relations.
Organizations that participate in civil legal relations are called legal entities.
The Russian Federation, constituent entities of the Russian Federation and municipalities may also participate in relations regulated by civil legislation.
All subjects of civil legal relations are covered by the concept of “persons”, which is used in the Civil Code and other acts of civil legislation.
A participant in a civil legal relationship who is endowed with the right is called an authorized person (creditor), and a participant who bears an obligation is called obligated person(debtor). A participant in a civil legal relationship can simultaneously be both a debtor and a creditor.
9. OBJECT OF CIVIL RELATIONSHIP
The object of a legal relationship is understood as what it regulates. This can only be the behavior of people. Therefore, the object of a civil legal relationship is the behavior of its subjects, but not all, but aimed at various kinds of material and intangible benefits.
Material and intangible benefits include:
a) material goods (things, objects, values, property rights);
b) personal intangible benefits (life, honor, health, dignity, right to a name, human integrity, etc.);
c) human actions, various types of work and services, their results;
d) products of spiritual creativity, including exclusive rights on them;
d) securities, official documents (they can also be classified as things or material goods).
10. BASES OF CIVIL RELATIONS
For the emergence, change or termination of civil legal relations, the occurrence of the prescribed legal norms circumstances that are called civil legal facts. Since legal facts underlie civil legal relations, they are called the grounds of civil legal relations.
The basis of a civil legal relationship can be either a single legal fact or a combination of them, called a legal composition or a complex legal fact.
Legal facts are classified according to the following reasons.
– Depending on the nature of their occurrence, they are divided into events and actions.
– Depending on the legality of actions, they are divided into legal and illegal.
– Depending on the legal significance of lawful actions, legal actions and legal acts are distinguished.
Section 2
CITIZENS AS SUBJECTS OF CIVIL LAW
11. LEGAL CAPACITY AND CAPACITY OF CITIZENS
Legal capacity refers to the ability of a citizen to have civil rights and duties, under legal capacity - the ability of a citizen to exercise his rights and obligations through his actions.
Legal capacity is recognized equally for all citizens from the moment of their birth until death.
In contrast to legal capacity, legal capacity presupposes that a person has achieved a certain level of psychological maturity.
Full legal capacity is recognized for citizens who have reached the age of 18. Two exceptions to this rule are permitted. Full legal capacity may arise before adulthood:
– if a person under 18 years of age gets married;
- during emancipation.
Emancipation - declaring a minor who has reached the age of 16 fully capable if he works under employment contract or with the consent of parents, adoptive parents or guardian is engaged in entrepreneurial activity. Emancipation is carried out by decision of the guardianship and trusteeship authority with the consent of both parents, or by a court decision in the absence of such consent.
Persons under 6 years of age are completely incompetent. Minors aged 6 to 14 years (juveniles) have partial legal capacity. They have the right to independently:
– small household transactions;
– transactions aimed at obtaining benefits free of charge, which do not require notarization or state registration;
– transactions for the disposal of funds provided by a legal representative or with the consent of the latter by a third party for a specific purpose or for free disposal.
All other transactions for minors can only be made by their legal representatives. They are also responsible for the actions of minors, including transactions that minors make independently, as well as for harm caused by minors.
Minors aged 14 to 18 years have slightly greater legal capacity, which, however, remains partial. They have the right to independently:
– carry out small household and other transactions that minors under the age of 14 have the right to make;
– manage your earnings, scholarships and other income;
– make deposits in credit institutions and manage them.
All other transactions minors aged 14 to 18 years have the right to make only with written consent their legal representatives (Article 26 of the Civil Code). For transactions concluded by minors aged 14 to 18 years, as well as for damage caused, they are responsible independently. However, if minors do not have property or earnings sufficient to compensate for the harm, then the damage in the appropriate part must be compensated by their legal representatives, unless the latter prove that the harm arose not through their fault.
12. LEGAL BASES FOR LIMITING THE LEGAL CAPACITY AND CAPACITY OF A CITIZEN
Restriction of legal capacity or legal capacity is possible only in cases and in the manner prescribed by law. For example, in accordance with paragraph 4 of Art. 66 of the Civil Code may be prohibited or limited participation individual categories citizens in business partnerships and companies, with the exception of open joint-stock companies.
As for legal capacity, for example, according to Art. 29 of the Civil Code, the court may declare a person incompetent due to the presence of a mental disorder that does not allow him to understand the meaning of his actions or to manage them.
In accordance with Art. 30 of the Civil Code, a citizen who, due to the abuse of alcoholic beverages or drugs, puts his family in a difficult financial situation, may be limited by the court in his legal capacity. Guardianship is established over him, and from that moment on he has the right to independently carry out only small everyday transactions. Such a citizen can carry out all other transactions only with the written consent of the trustee, but he bears responsibility for the transactions made and for the damage caused independently.
The recovery of a person is the basis for a court to make a decision to recognize him as capable or to lift the restriction of legal capacity. Based on a court decision, guardianship and trusteeship are also cancelled.
Actions of citizens themselves aimed at complete or partial renunciation of legal personality, and other transactions limiting legal capacity and capacity, are void except in cases where such transactions are permitted by law.
13. CUSTODY AND CUSTODY
To protect the rights and interests of incapacitated or not fully capable citizens, institutions of guardianship and trusteeship have been introduced.
The guardianship and trusteeship authorities are the authorities local government Russian Federation.
Guardianship established over minors, as well as over citizens declared incompetent.
Guardianship established over minors aged 14 to 18 years and citizens limited in legal capacity due to abuse of alcoholic beverages or narcotic substances.
Only adults and capable citizens can be appointed as guardians and trustees.
Guardians and trustees of minors are obliged to take care of the maintenance of their wards, to provide them with care and treatment, to provide them with education and upbringing, as well as to protect their rights and interests. These responsibilities are not assigned to guardians of adult citizens whose legal capacity has been limited by the court.
Being the legal representatives of the ward, guardians and trustees have the right to dispose of his income, if these incomes are aimed at supporting the ward himself. In all other cases, they are required to obtain prior permission from the guardianship and trusteeship authorities. Guardians and trustees, as well as their spouses and close relatives, do not have the right to enter into transactions with wards, except for transferring a gift to the ward or providing him with the opportunity free use any property.
If the ward has real estate or valuable movable property, which requires special care and management, the guardianship and trusteeship body may appoint a manager and enter into an agreement with him on trust management of such property.
14. SIGNS THAT INDIVIDUALIZE A CITIZEN
Individualization of a citizen is carried out mainly by his name and place of residence.
The name is given to a person at birth and includes the surname, first name and patronymic. The patronymic may be absent if it is provided by law and follows from national custom. In cases and procedures established by law, a citizen has the right to use a pseudonym. However, he can acquire all civil rights only under his own name.
Acquiring rights and obligations under the name of another person is not permitted. Harm caused to a citizen as a result of the unlawful use of his name is subject to compensation in accordance with the Civil Code.
When distorting or using the name of a citizen in ways or in a form that affects his honor, dignity or business reputation, the rules provided for in Art. 152 of the Civil Code “Protection of honor, dignity and business reputation.”
Upon reaching 16 years of age, a citizen has the right to change his name, while all rights and obligations remain with him. In addition, he is obliged to notify creditors and debtors of the change of name.
Until a citizen reaches the age of 16, it is allowed to change his surname at the request of the parent with whom the child remained to live after the divorce, if this parent and the child have different surnames. Changing the last name, first name and patronymic of children under 18 years of age is also possible upon adoption.
A change of surname is possible in connection with marriage and upon its dissolution.
The place of residence of a citizen is understood to be a residential premises in which he permanently or predominantly (more than in other places) resides as the owner, under a lease (sublease), lease agreement or on other grounds provided for by the legislation of the Russian Federation. In this case, the registration of a citizen at the place of residence, the place of residence of his spouse, the location of his property and other similar facts do not matter.
The place of residence of minors, as well as citizens declared incompetent due to mental illness, is the place of residence of their legal representatives. Persons with partial legal capacity (from 14 to 18 years old), as well as citizens whose legal capacity is limited by the court, can choose their place of residence only with the consent of their parents, adoptive parents, or guardian.
It is necessary to distinguish the place of residence of a citizen from the place of residence, which means a hotel, sanatorium, rest home, boarding house, camping, tourist center, hospital, other similar institution, as well as residential premises in which the citizen lives temporarily.
