The dispositive nature of the regulation of relations is: Analysis of relations regulated by the dispositive method

Dispositive and imperative norms of civil law. Analogy of law and law.

1. The most important feature of the civil law method is the dispositivity of the normative legal regulation, expressed in the fact that the legal norms established by civil legislation often provide subjects with broad freedom in defining and implementing them property rights and contain big number dispositive rules.

Dispositive norm - ϶ᴛᴏ a norm that is applied insofar as the agreement of the parties does not establish otherwise (Article 391 of the Civil Code). The parties are given the right to determine the nature of the relationship between them completely or to a certain extent at their own discretion, and are also given a fairly wide opportunity to choose between several options for behavior, but within the limits established by law. The dispositive norm manifests the principle when the freedom of everyone is limited by the similar freedom of other persons.

The dispositive nature of legal norms is evidenced by the clauses they contain such as “unless otherwise provided by the agreement.” Examples of dispositive norms, ᴛ.ᴇ. norms that, by establishing a rule, allow the parties to a civil legal relationship to change it at their discretion in the contract, in particular, are: Art. 211, Art. 212, clause 1, 2, Article 221, clause 1, Article 224, clause. 1 article 238, article 251, paragraph 1 article 254, paragraph 2 article 257, article 455, paragraph 2 article 713, etc.

2. Mandatory norms civil law precisely defines the rights and obligations of subjects; they contain rules that the subjects of legal relations are obliged to strictly follow, without being able to change them in the agreement. The imperative nature of civil law norms is evidenced by the wording of the text, it contains an expression of obligation in a categorical form or a categorical prohibition. In particular, the mandatory nature of the norm is indicated by prohibitions such as “not allowed”, “cannot”, “invalid”, etc.

Thus, the norm of Article 21 of the Civil Code is imperative in nature, according to which “no one should be limited in legal capacity and legal capacity otherwise than in cases and in the manner established by law.” IN in this case the legislator directly indicates the imperative nature legal norm, especially drawing attention to the inadmissibility of an agreement between the parties on the issue of limiting the legal capacity and capacity of citizens. Mandatory norms are clause 3 of Article 163, clause 1 of Article 166, Article 199, Article 550, clause 2 of Article 603, Article 638, Article 1040 of the Civil Code, etc.

Exists significant amount legal norms that contain definitions legal concepts, as well as norms of a reference nature (blanket).

Thus, Article 19 of the Civil Code defines the concept of a citizen’s place of residence, which recognizes the locality where the citizen permanently or primarily resides. In accordance with Article 390 of the Civil Code, a contract is an agreement between two or more persons to establish, change or terminate civil rights and obligations.

Norm-concepts are contained in Article 3, Article 11, Article 63, Article 424, Article 476, Article 554, Article 643, etc.
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The norms of a reference nature (blanket) include clause 1 of Article 218; Part 2, Clause 1, Article 578; Clause 2 of Article 578; Art. 642; Clause 4 of Article 772, etc.

3. B law enforcement practice Sometimes situations arise when it is obvious that a controversial relationship requires legal permission However, this is not provided for by a specific rule of law. A situation arises when a law enforcement officer discovers a gap in the legislation. Gaps in legislation exist mainly due to two reasons: firstly, as a result of the emergence of new social relations that did not exist at the time the law was adopted and could not be taken into account by the legislator; secondly, due to omissions in the development of the law. It is obvious that until the identified gap is eliminated, the relationship cannot remain unresolved. In such cases, special techniques are usually used: analogy of law and analogy of law.

The analogy of law and the analogy of law were previously provided for by civil procedure legislation. The Civil Code of 1998 transformed this rule into the norm substantive law, establishing the universality of its application by all participants in legal relations and all law enforcement agencies.

Thus, Article 5 of the Civil Code establishes that in cases where the relations provided for in Article 1 of the Civil Code are not directly regulated by acts of legislation or agreement of the parties, the norm is applied to such relations, since this does not contradict their essence civil legislation regulating similar relationships (analogy of law).

The analogy of the law can be applied if there is following conditions:

1) public relation, which requires regulation, by its characteristics is included in the subject of civil law, ᴛ.ᴇ. is property or personal non-property; 2) public relations are not regulated by civil law or agreement of the parties; 3) there is a civil law norm regulating similar social relations, and this does not contradict the essence of the relations to be regulated. To apply the analogy of law, it is essential that specified conditions In total.

With the development and significant updating of civil legislation, the scope of application of the analogy of law is narrowing, since an obstacle to the application of analogy of law, as already mentioned, is the presence of a civil law norm regulating public relations, or an agreement of the parties.

In a number of cases, the law itself provides for the extension of the rules governing certain relations to other relations mentioned in it. Thus, based on Article 538 of the Civil Code of the Republic of Belarus, the rules on purchase and sale (Chapter 30) are applied to the exchange agreement accordingly, if this does not contradict the rules of Chapter 31 and the essence of the exchange.

In this case, we are not talking about an analogy of the law, we're talking about on the legal regulation of relations provided for by the Civil Code, by directly applying to them certain rules relating to similar relations regulated in the code. This technique was used by the legislator in order to avoid repetition in legal regulation when there are coinciding points in both respects that require uniform legal regulation.

Also, one should not confuse analogy of law with broad interpretation. The latter presupposes the existence of a norm that covers in its meaning a case not directly specified in the text of the norm.

4. If it is impossible to use in these cases analogies of law, rights and obligations of the parties are determined based on the basic principles and meaning of civil legislation (analogy of law) (clause 2 of article 5 of the Civil Code).

The use of an analogy of law is justified in the presence of two conditions: when a gap is detected in the legislation and in the absence of a norm regulating similar relations, which does not make it possible to use an analogy of law. General beginnings civil legislation, ᴛ.ᴇ. principles of civil law are formulated in Article 2 of the Civil Code. The “meaning of civil law” is usually understood as character traits enshrined in the subject of civil law.

The application by analogy of rules limiting civil rights and establishing liability is not permitted. The use of the analogy of law and the analogy of law is possible not only law enforcement agencies, in particular, by the courts, but also by other law enforcement entities, which significantly expands the range of their civil rights. In any case of application of a legislative norm by analogy, the law enforcement agency is obliged to justify this.

Interpretation of civil law– an important stage of law enforcement. Before applying a specific rule of law, it is extremely important to understand its true meaning, and in some cases, clarify it. Clarification of the content (meaning) of a civil law norm by eliminating the ambiguities found in it is achieved in the process of interpretation. The reasons for ambiguities can be both objective and subjective: the complexity of specific terminology, legal structures, system reference standards, abstract nature of the norm, etc.

Considering the dependence on the subject of interpretation and legal consequences, to which the explanation leads, a distinction is made between official and unofficial interpretation.

Official interpretation given by authorized entities - government agencies, officials. So, based on Article 70 of the Law of the Republic of Belarus dated January 10, 2000. ʼʼOn regulatory legal acts of the Republic of Belarusʼʼ in case of detection of ambiguities and differences in the content of a regulatory legal act, as well as contradictions in the practice of its application rule-making body(official), accepted (issued) this act, or, unless otherwise provided by the Constitution of the Republic of Belarus, the body authorized by it carries out the official interpretation of these norms by adopting (issuing) the corresponding normative legal act.

The official interpretation guides law enforcement officials towards an unambiguous understanding of legal norms and their uniform application. Authentic interpretation occurs when the meaning of a legal norm is explained by the same body that adopted the legal act. Casual interpretation is also official, but does not have a generally binding meaning, and comes down only to the interpretation of a legal norm, taking into account its application to a specific case. It is given in relation to the consideration of a specific case and is mandatory only for it.

Unofficial interpretation- ϶ᴛᴏ explanation of legal norms that is not legally significant. It should be professional, ordinary, doctrinal. In particular, scientific (doctrinal) interpretation occurs when the meaning of a legal norm is explained by scientists in literary sources, comments on laws and codes, at conferences, etc. Scientific interpretation is not generally binding, but its significance is great, since doctrinal interpretation influences the understanding of the meaning of regulatory legal acts by those bodies (officials) whose interpretation is binding.

2. There are main methods of interpretation: grammatical, logical, systematic, historical.

The grammatical (philological, linguistic) method of interpretation is an understanding of the meaning of a civil law norm based on an analysis of the text of a regulatory legal act, taking into account the rules of grammar, identifying the terminological meaning individual words. Thus, according to Article 203 of the Civil Code, as grounds for suspension of the term limitation period acts as a force majeure - an extraordinary and unavoidable circumstance under given conditions. The legislator in this case uses the connecting conjunction ʼʼandʼʼ, that is, recognition of a specific legal fact fact of action force majeure depends on whether it is characterized as both an emergency and at the same time an unavoidable circumstance under the given conditions.

With the logical method of interpretation, the meaning of the norms of civil legislation is revealed taking into account the provisions of formal logic. Thus, based on Article 521 of the Civil Code, the contract for the sale of real estate consists of writing by drawing up one document signed by the parties. The question arises, is it extremely important to notarize a home sale agreement? Direct answer art. Art. 521, 522 of the Civil Code, as well as rules on the form of transactions (Articles 159–166 of the Civil Code) do not contain. To answer the question posed, it is extremely important to resort to appropriate logical reasoning. Article 1147 of the Civil Code provides that before the entry into force of an act of legislation on registration of rights to real estate and transactions with him for contracts provided for in Article 522; 531; Clause 3 of Article 545 of the Civil Code, the rules on mandatory notarization of such agreements remain in force, established by law, which was in force before the Civil Code of 1998 came into force. It should be noted that according to Article 235 of the Civil Code of the Republic of Belarus, approved by the Law of the BSSR dated June 11, 1964, with amendments and additions dated March 3, 1994, the purchase and sale transaction of a house had to be notarized. Today, in connection with the entry into force of legislation on the registration of rights to real estate and transactions with it, this imperative norm has actually lost its meaning.

In systematic interpretation, the meaning of a norm is established through its comparison with other norms; identifying the general and special in separate standards on the same issue. This method is most clearly manifested when comparing the norms of the general and special parts of civil law.

For example, compensation for losses in the event of failure to fulfill an obligation and payment of a penalty for its failure to fulfill general rule Clause 2 of Article 367 of the Civil Code exempts the debtor from fulfilling the obligation in kind. At the same time, when deciding on the seller’s liability in the event of his failure to fulfill his obligations under the contract retail purchase and sale should be guided special norm Article 475 of the Civil Code, which contains an imperative by virtue of which compensation for losses and payment of penalties does not relieve the seller from fulfilling the obligation in kind.

Historical (historical-political) interpretation pursues the goal of establishing the meaning of legal norms based on the conditions of their emergence. Using this method of interpretation, the historical conditions for issuing a normative act are clarified, the socio-political goals pursued by the legislator. This method helps to identify legal norms that, although formally not abolished, are actually no longer in effect; that is public relations, which the norm regulated, have lost their meaning or have changed significantly. In the example that was analyzed earlier and concerned the answer to the question of obligation notarization house purchase and sale transactions, in particular, also used historical interpretation.

3. Taking into account the dependence of the result of interpretation of the norms, they distinguish literal, restrictive and expansive (extensive) interpretation.

Literal interpretation is the most typical and common type of interpretation, when the “spirit” and “letter” of the law coincide, ᴛ.ᴇ. the verbal expression of the norm and its actual meaning are identical. IN in some cases there is no such overlap, while the exception may be interpreted broadly or restrictively.

With expansion, the meaning and content of the norm is broader than its verbal expression. Thus, based on Article 154 of the Civil Code, transactions are recognized as actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations. In this case, the state must also be a party to the transactions, which follows from clause 1 of Article 124 of the Civil Code, according to which: “The Republic of Belarus, administrative-territorial units participate in relations regulated by civil law, on an equal basis with other participants in these relations - physical and legal entitiesʼʼ. However, systematic interpretation leads in this case to a broad understanding of Article 154 of the Civil Code.

Broad interpretation is not allowed if we are talking about an exception to the general rule, as well as when civil law norm given exhaustive list the circumstances under which it is applied. In a number of cases, the verbal formulation of a legal norm turns out to be broader than its true meaning. In this case, a restrictive interpretation is used.

For example, clause 3 of Article 226 of the Civil Code regulates the procedure for registering ownerless real estate and the conditions for recognizing the right of communal ownership to these things. And although in accordance with paragraph 1 of Article 130 of the Civil Code immovable things include, among other things, land, the norm of paragraph 3 of Article 226 of the Civil Code is not applicable to land, since land cannot be in communal ownership in accordance with land legislation. Termination of land ownership in the event of voluntary refusal from it, as well as in cases of its non-use (irrational use) is regulated by land legislation.

Usage in various ways interpretation of the norms of civil legislation contributes to the precise establishment of the meaning of the legal norm and its more effective application in practice.

Dispositive and imperative norms of civil law. Analogy of law and law. - concept and types. Classification and features of the category "Dispositive and imperative norms of civil law. Analogy of law and law." 2017, 2018.

Legal norms are the basis for all legal actions, thanks to them these actions can be carried out within the framework of the law. Any aspect of life cannot be solved without being guided by these instructions. Civil law rules allow regulate all relationships between citizens of the country legally correct in and economic disputes.

Their main characteristic is dispositivity, i.e. providing freedom of choice in the presence of many rules that control the relationships of citizens. However, there is also such a characteristic of law as imperativeness, i.e. clear instructions for action that must be followed by all participants in the relationship.

What are imperative and dispositive norms, their characteristics and differences will be discussed in this article.

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Methods of legal regulation

To begin with, it should be clarified that in this case rights are system of mandatory statutes and rules of conduct who are involved in regulating relations in society.

Any conflict between citizens is regulated by established legal rules. There are two main methods of regulation:

1. Imperative – this method extremely precise, it is he who requires the unconditional submission of subjects to the code of rules provided for a specific case. It accurately characterizes not only the rights, but also the obligations of subjects, as well as does not give them the opportunity to change anything in the agreement. An example of a method would be the punishment of a criminal by the state: strict measures are applied that the subject cannot change. In literature imperative method called authoritarian, subordinating and subordination method.
2. Dispositive is an equal method that speaks of equal legal rights of participating entities and their freedom of will. It is used in the areas of civil, labor, administrative, legal and family relationships. The regulatory basis is the agreement concluded by the parties, which specifies their capabilities and responsibilities. An example of a method would be the creation of contracts for purchase or sale, storage or lease. In the literature it may be called the autonomous method.

Important! Dispositive method always indicates the type of relationship between the participants.

These methods differ significantly from each other, since they are based on completely different legal regulations, despite the fact that they are equally aimed at managing subjective relationships.

Dispositive rule of law

What is a dispositive form of relationship? The concept of dispositivity comes from the Latin word dispositivus - disposing, and dispositive norms of civil law imply the presence of certain rules of behavior that are specified by the subject himself.

Simply put, in relationships, their participants independently determine responsibilities and opportunities for each other. This form of relationship is democratic and typical for the majority civil relations.

Besides established rules, these laws also include regulations in case of failure to comply with subsequent punishment (fines, penalties, etc.). Today Civil Code The Russian Federation contains mostly just such articles.

Dispositive legal ones include:

• having a disposition;
• allowing subjects to choose the manner of their behavior;
• defining and delimiting the positions of subjects on trial;
• defining responsibilities;
• excluding taking into account the positions of the parties in case of disputes about property.

Examples include Articles 211, 212, 455, 713 of the Civil Code of the Russian Federation. Any such article provides freedom of choice of the parties in determining their obligations and rights, the basic pattern of behavior and the nature of the relationship. It is quite easy to immediately determine that this is the method of settling relations that is being used - the phrases “unless the agreement provides otherwise” and similar ones are written in the agreement of the parties.

Mandatory rule of law

Mandatory norms of law differ significantly from dispositive norms, are their complete opposite and do not provide freedom of action. They are examples of authoritarian laws and established rules. Imperativeness is the absolute unconditionality of requirements and a fairly precise designation of the rights and obligations of each party to the dispute. This form of relationship completely excludes the right to choose and is the basis for many laws, for example, those prescribed in the Criminal Code.

Mandatory rules of law can be immediately determined by the written law - it will include expressions such as “inadmissible”, “cannot” or “void”, as well as other elements of the prohibition.

This type of prescription requires clear legal restriction for relationships, i.e. their subjects are severely limited in their choices and actions.

Their goal is to protect economic freedoms parties and provide protection important interests society and state.

• prevalence - they are an indicator of objectivity in any disputes between the parties, which makes them inherent in any legal field;
• status - they stand above dispositive forms and have a special influence on the regulation of relations in society;
• method of use - they are used only as limiters;
• external form– these are not vague explanations, but clearly defined principles and restrictions;
• functions - perform security, support, formation and regulatory work. At the same time, they are characterized by vesting the parties legal obligations and opportunities.

The imperative nature of the instructions allows guarantee respect for civil rights, highlighting the most important ones, and also ensures compliance with established legal requirements.

Classification

Any form of law is diverse and can therefore be characterized in different ways.

The imperative form can be classified primarily by the nature of the order:

• obligatory - such laws indicate to subjects the need to perform some action. For example, the third part of Article 91 of the Labor Code of the Russian Federation says that the employer is obliged to take into account the working time of each employee;
• authorizing – this category of laws gives freedom of choice regarding the nature of actions, i.e. the subject can independently choose to perform certain actions or not. For example, the second part of Article 295 of the Labor Code of the Russian Federation says that every employee can exercise the right to receive benefits from property that is in the economic use of the company;
• prohibiting - such laws clearly state prohibitions on certain actions. For example, the second part of Article 91 of the Labor Code of the Russian Federation prohibits labor activity workers over 40 hours a week.

In addition, they are also distinguished by:

1. Degrees of certainty are relatively certain (offer a choice from several options) and absolutely certain (offer only one option).
2. Position in the system - there are special ones that can only be applied to specific case, and general ones that apply to all situations.
3. Method of regulation - can be in the form prohibitions, principles or recommended regulations.
4. Action times are divided into permanent and temporary.
5. The order of behavior is static, which confirms the position of the parties and their capabilities, and dynamic, prescriptions for the position and capabilities of the parties change over time.

Based on the data given above, we can conclude that imperative and dispositive statutes have significant differences and are opposite to each other. Main difference imperative norm is that it does not allow the subject to make independent choices or make independent decisions. All it can provide to the subject is choice from several proposed options. And dispositive ones are applied only in cases where the parties did not foresee a different outcome of events, leaving them to decide and determine their responsibilities independently.

Important! Classification differences allow the use imperative articles relatively various situations and regulate the relations of subjects on various levels.

Useful video: what are the rules of law

Civil law rules cover and prescribe the actions of parties in any type of activity. These laws are completely different in their characteristics and provisions, but their knowledge makes it possible for subjects to follow them and competently formalize their activities from the point of view of current legislation.

The companies entered into a lease agreement for indefinite term. Is it permissible to include in it a condition that the tenant does not have the right to unjustifiably refuse the contract out of hand? judicial procedure, and may demand termination of the contract only in court and only if there is significant violations obligations on the part of the lessor?

The main task.

Dispositive norm as one of the basic legal norms

In a literal sense, this is the opportunity to choose. Regarding jurisprudence given word is defined as a certain opportunity to choose one or another procedural means protection. It can be:

Thus, discretion is a general legal category that is widely used in all sectors of private and public law. And the dispositive norm is legal freedom or the ability of a citizen to exercise personal, subjective rights, of course, within the law.

Disposition and dispositive norms should not be considered as one whole.

Dispositive and imperative norms of civil law

Elements of a rule of law: hypothesis, disposition and sanction; the relationship between the rule of law and the article of law. Principles of civil law. Features of the compilation and execution process testamentary disposition, requirements for witnesses, duties of the performer.

Mandatory and dispositive norms of law. Application of civil law by analogy. Concept, features, structure and types civil legal relations.

Dispositive norms

prescribe a course of behavior, but at the same time provide subjects with the opportunity, within the limits of legal means, to regulate relations at their own discretion. The essence of this broader legal autonomy, which is granted to participants in relations regulated by a dispositive norm, is that the parties are given the opportunity to agree on their mutual rights and obligations, and only in case they do not do this, a certain mandatory course of behavior is prescribed.

Mandatory and dispositive rules of law

A rule of law is a rule established by the state, a particle of law that is not the content and form of the law as a whole. A rule of law has its own content and form. Each rule of law is a part of the system and implies internal structure.

law is aimed at mandatory, established by the state implementation of rules showing the material requirements of the life of society and its interests acting on social relations in order to regulate them.

There are three types of regulatory rights: imperative, optional, optional.

Mandatory and dispositive norms

The most important direction in the process of reforming the state legal sphere Russian society is considered a course towards the formation of a structure that would be capable of ensuring the rule of law in all areas social life, strengthen guarantees of political, civil, economic and other freedoms and the population. Various steps are being taken for this. One of them is the division of legal acts into dispositive and imperative.

Mandatory norms

1. The contract must comply with the rules binding on the parties, established by law and others legal acts(imperative), in force at the time of its conclusion.

Imperative and dispositive methods of legal

But in essence, these norms are diametrically, polar opposite. The imperative method is built on relations of subordination. the subordination of some subjects of law to others (this is administrative, criminal, penal law). The dispositive method assumes the equality of the parties to legal relations (inherent in civil, labor, family legislation. ) Another difference: imperative norms are for the public, and dispositive norms are for the private.

For example, the Criminal Code is imperative norms, the Civil Code (civil code) is a set of (mostly) dispositive ones. So, Art.

News for a lawyer

The considered draft resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation on freedom of contract and its limits, if adopted, may in a significant way change the system for recording and preventing legal risks when applying contract law and in preparing various contractual terms and designs. OK of this project will also require revision legal assessment legal structures already developed in contractual practice.

Mandatory rules of law

RULES OF LAW IMPERATIVE RIGHTS IMPERATIVE (categorical) - norms. containing authoritative instructions, deviations from which are not allowed. An example would be labor law, indicating the inadmissibility of replacing vacation with monetary compensation.

Elements of a rule of law: hypothesis, disposition and sanction; the relationship between the rule of law and the article of law. Principles of civil law. Features of the process of drawing up and executing a testamentary disposition, requirements for witnesses, duties of the executor.

Mandatory and dispositive norms. Application of civil law by analogy. Concept, features, structure and types of civil legal relations.

Dispositive rules of law

DISPOSITIVE RULES OF LAW (from Late Latin dispositivus - disposing) - rules of law that provide subjects of law with the opportunity to decide for themselves the scope and nature of their rights and obligations. In the absence of such an agreement, the second requirement contained in them comes into force. As an example of a positive norm, one can cite clause 2 of Art. 459 of the Civil Code of the Russian Federation, according to which “the risk of accidental death or accidental damage goods sold while in transit are transferred to the buyer from the moment the purchase and sale agreement is concluded, unless otherwise provided by such an agreement or business customs.”

Contract law part 1 - The nature of the norms of contract law - regulators, dispositive and imperative norms

The behavior of counterparties is regulated both by the contract itself and by the regulations that apply to it. In the first case, regulators of the behavior of the parties are created by their by one's own will. In the second, the same regulator expresses exclusively the will of the body that adopted normative act. This is precisely the nature of imperative ones.

Regulators created as a result of joint will occupy an intermediate position competent authority power or control on the one hand, and the agreed will of the counterparties themselves, on the other.

Mandatory and dispositive rules of law

A rule of law is a rule that is established by the state, a particle that is not the content and form as a whole. A rule of law has its own content and form. Each rule of law is a part of the legal system and implies an internal structure.

The norm is aimed at the mandatory implementation of rules established by the state, showing the material requirements of the life of society and its interests, acting on social relations in order to regulate them.

There are three types of regulatory norms: imperative, dispositive, optional norms.

Mandatory and dispositive norms

The most important direction in the process of reforming the state-legal sphere of Russian society is considered to be the course towards the formation of a structure that would be able to ensure the rule of law in all areas of social life, strengthen guarantees of political, civil, economic and other freedoms and rights of the population. Various steps are being taken for this. One of them is the division of legal acts into dispositive and imperative norms.

Imperative and dispositive methods of legal

But in essence, these norms of law are diametrically, polar opposite. The imperative method is built on relations of subordination. the subordination of some subjects of law to others (this is administrative, criminal, penal law). The dispositive method assumes the equality of the parties to legal relations (inherent in civil law, labor, family .) Another difference: imperative norms are for public law, and dispositive - for the private.

For example, the Criminal Code is imperative norms, the Civil Code (civil code) is a set of (mostly) dispositive norms. So, Art.

Is it necessary to notify the landlord about early departure?

Article 687 part 1 Civil Code Russian Federation. TERMINATION OF THE RESIDENTIAL PREMISES LEASE AGREEMENT. 1. The tenant of a residential premises has the right to terminate the rental agreement with written warning landlord for three months. The law, as an exception to the general rule that unilateral refusal from fulfilling an obligation is unacceptable (Article 310 of the Civil Code), gives the tenant the right to withdraw from the rental agreement at any time.

News for a lawyer

The considered draft resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation on freedom of contract and its limits, if adopted, can significantly change the system of accounting and preventing legal risks when applying the norms of contract law and when preparing various contractual terms and structures. Approval of this project will also require a revision of the legal assessment of legal structures already developed in contractual practice.

The difference between a mandatory norm and a dispositive norm

A mandatory norm contains an order that is binding regardless of the will of the participants in civil legal relations, which cannot be changed.

Before becoming familiar with the concept of “dispositive norm”, it is necessary to understand what dispositivity itself is.

The concept of dispositivity

In a literal sense, this is the ability to choose. Regarding jurisprudence, this word is defined as a certain opportunity to choose certain procedural remedies. It can be:

• dispositivity of civil law;
• dispositivity;
• dispositivity of the criminal adversarial process;
• dispositivity legal settlement;
• dispositive rule of law;
• dispositivity as a form of legal regulation.

Thus, dispositiveness is a general legal category that is widely used in all sectors of the private sector, and a dispositive norm is legal freedom or the ability of a citizen to exercise personal interests, of course, within the framework of the law.

Disposition and dispositive norms should not be considered as one whole. “Dispositivity” is a more general concept, broader than “dispositive rule of law.” It is dispositive norms that are the means, the way of expressing and developing dispositivity in law.

Dispositive norm in examples

Civil law, for example, contains many norms thanks to which interested parties have the right to choose own orders. Thus, the owner of the property can, at his own discretion, decide in whose favor he will make a will and who will inherit the property he has acquired. The heir can be someone from the testator’s immediate circle, his blood or non-blood relatives, close or distant, friends, acquaintances or even strangers, and public organizations etc. But if no will, no deed of gift, or any other document on inheritance has been drawn up, the law will determine and establish the heirs itself. Such laws, which only apply in cases where the corresponding orders are not made, are dispositive, i.e. auxiliary, replenishing.

The dispositive norm enables citizens entering into legal relations, establish some boundaries and scope of mutual responsibilities and rights. Of course, these duties and rights do not go beyond the general framework. But if there are no such agreements, the dispositive norms themselves fill mutual relations its content. However, then they already accept mandatory form and require precise execution.

For example, during a divorce, if there is a child in the family, he remains with one of the parents. This parent may not officially file for child support if the other party has privately agreed to pay it. If an agreement is not reached, alimony is filed, and the court mandatory obliges a party, for example, a father, to pay alimony in the amount specified in court decision. Evasion of payment will be punished.

Or, getting divorced, ex-spouses they agree that the father will visit the child, spend as much time with him as he and the child want, and will continue to take a full part in his life. If the mother begins to interfere with this, the court will protect the interests of the father and force ex-wife do not interfere with meetings between father and children.

Dispositive norms are like two interconnected rules. One of them gives citizens and subjects the opportunity to act at their own discretion and enter into agreements of one kind or another. And the second will complement or make up for the first if there is no agreement and the parties cannot deal with mutual rights and responsibilities. Then they will be prescribed a certain course of action and behavior, and its implementation is strictly mandatory.