Civil rights may be limited on the basis of. Restrictions on civil rights

The Civil Code of the Russian Federation, along with the federal laws adopted in accordance with it, is the main source of civil legislation in the Russian Federation. Civil law norms contained in other normative legal acts cannot contradict the Civil Code. The Civil Code of the Russian Federation, work on which began at the end of 1992, and initially proceeded in parallel with work on the Russian Constitution of 1993, is a consolidated law consisting of four parts. Due to the huge volume of material that required inclusion in the Civil Code, it was decided to adopt it in parts.

The first part of the Civil Code of the Russian Federation, entered into force on January 1, 1995, (with the exception of certain provisions), includes three of the seven sections of the code (Section I “General Provisions”, Section II “Property Rights and Other Property Rights”, Section III “General part of the law of obligations”). This part of the Civil Code of the Russian Federation contains the fundamental norms of civil law and its terminology (about the subject and general principles of civil law, the status of its subjects (individuals and legal entities)), objects of civil law (various types of property and property rights), transactions, representation , limitation of actions, property rights, as well as the general principles of the law of obligations.

The second part of the Civil Code of the Russian Federation, which is a continuation and addition to the first part, came into force on March 1, 1996. It is entirely devoted to Section IV of the code “Certain types of obligations”. Based on the general principles of the new civil law of Russia, enshrined in the 1993 Constitution and part one of the Civil Code, part two establishes a detailed system of rules on individual obligations and contracts, obligations resulting from causing harm (torts) and unjust enrichment. In terms of its content and significance, part two of the Civil Code of the Russian Federation is a major stage in the creation of new civil legislation of the Russian Federation.

The third part of the Civil Code of the Russian Federation includes section V “Inheritance Law” and section VI “Private International Law”. Compared to the legislation in force before the entry into force of Part Three of the Civil Code of the Russian Federation on March 1, 2002, the rules on inheritance have undergone major changes: new forms of wills have been added, the circle of heirs has been expanded, as well as the range of objects that can be transferred in the order of hereditary succession; Detailed rules have been introduced regarding the protection and management of inheritance. Section VI of the Civil Code, dedicated to the regulation of civil law relations complicated by a foreign element, is a codification of the norms of private international law. This section, in particular, contains rules on the qualification of legal concepts when determining the applicable law, on the application of the law of a country with a plurality of legal systems, on reciprocity, retroactive reference, and establishing the content of norms of foreign law.

The fourth part of the Civil Code (entered into force on January 1, 2008) consists entirely of Section VII “Rights to the results of intellectual activity and means of individualization.” Its structure includes general provisions - norms that apply to all types of results of intellectual activity and means of individualization or to a significant number of their types. The inclusion of norms on intellectual property rights in the Civil Code of the Russian Federation made it possible to better coordinate these norms with the general norms of civil law, as well as to unify the terminology used in the field of intellectual property. The adoption of the fourth part of the Civil Code of the Russian Federation completed the codification of domestic civil legislation.

The Civil Code of the Russian Federation has passed the test of time and extensive application practice, however, economic offenses, often committed under the guise of civil law, have revealed the lack of completeness in the law of a number of classical civil law institutions, such as the invalidity of transactions, the creation, reorganization and liquidation of legal entities, assignment claims and transfer of debt, pledge, etc., which necessitated the need to introduce a number of systemic changes to the Civil Code of the Russian Federation. As noted by one of the initiators of making such changes, President of the Russian Federation D.A. Medvedev, “The existing system does not need to be restructured, fundamentally changed... but to be improved, to reveal its potential and to develop implementation mechanisms. The Civil Code has already become and should remain the basis for the formation and development of civilized market relations in the state, an effective mechanism for protecting all forms of property, as well as the rights and legitimate interests of citizens and legal entities. The Code does not require fundamental changes, but further improvement of civil legislation is necessary..."<1>.

On July 18, 2008, Decree of the President of the Russian Federation No. 1108 “On improving the Civil Code of the Russian Federation” was issued, which set the task of developing a concept for the development of civil legislation of the Russian Federation. On October 7, 2009, the Concept was approved by the decision of the Council for the Codification and Improvement of Russian Legislation and signed by the President of the Russian Federation.

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<1>See: Medvedev D.A. Civil Code of Russia - its role in the development of a market economy and the creation of a rule of law // Bulletin of Civil Law. 2007. N 2. T.7.

1. Civil legislation is based on the recognition of the equality of participants in the relations regulated by it, the inviolability of property, freedom of contract, the inadmissibility of arbitrary interference by anyone in private affairs, the need for the unhindered exercise of civil rights, ensuring the restoration of violated rights, and their judicial protection.

2. Citizens (individuals) and legal entities acquire and exercise their civil rights of their own will and in their own interest. They are free to establish their rights and obligations on the basis of the contract and to determine any terms of the contract that do not contradict the law.

Civil rights may be limited on the basis of federal law and only to the extent necessary in order to protect the foundations of the constitutional system, morality, health, rights and legitimate interests of other persons, ensuring the defense of the country and the security of the state.

3. When establishing, exercising and protecting civil rights and when performing civil duties, participants in civil legal relations must act in good faith.

4. No one has the right to take advantage of his illegal or dishonest conduct.

5. Goods, services and financial assets move freely throughout the Russian Federation.

Restrictions on the movement of goods and services may be introduced in accordance with federal law if this is necessary to ensure safety, protect the life and health of people, protect nature and cultural values.

Expert comment:

The Civil Code of the Russian Federation opens with an article that lists the main principles of legal regulation of civil proceedings. These are the fundamental principles of building social relations, which are not intended to prohibit, limit and establish responsibility, but declare an ideal example of the rule of law

Comments to Art. 1 Civil Code of the Russian Federation

The principles of civil law are the basic principles (ideas) determined by the objective needs of the development of economic relations and enshrined in legislation that determine the essence and content of civil law regulation.

It is these principles that are generally enshrined in Article 1 of the Civil Code of the Russian Federation. At the same time, the design of the commented norm allows us to say that the composition of the principles formulated in Article 1 is not exhaustive. At the same time, they have a system-forming importance for civil and related branches of legislation regulating property and personal non-property relations.

Equality of participants in civil relations is expressed in the recognition of equal legal capacity for all citizens (Article 17 of the Civil Code), and for all legal entities - legal capacity corresponding to the goals of their activities (Article 49 of the Civil Code). It is unacceptable to vest one of the participants in civil legal relations with authority over another. The Russian Federation, its constituent entities and municipalities act in relations regulated by civil legislation on an equal basis with other participants in these relations (clause 1 of Article 125 of the Civil Code).

The principle of equality of participants in civil legal relations, in addition to its enshrinement in general form in paragraph 1 of Art. 1 of the Civil Code, repeated in paragraph 1 of Art. 2 of the Civil Code and is specifically mentioned in many subsequent articles of the Civil Code when it comes to institutions where there is an increased danger of violating this principle (household contract - clause 1 of article 731, construction contract - clause 1 of article 748, transportation - clause 1 Art. 789, bank account - clause 3, Art. 845).

The equality of participants in civil legal relations does not exclude differences in the volume and content of their subjective civil rights. Such differences are inevitable due to the different property capabilities of individual subjects of civil law, due to the degree of their education and abilities, as well as the differences in their vital and economic interests.

The inviolability of property is enshrined in general form in Part 3 of Art. 35 of the Constitution, according to which “no one can be deprived of his property except by a court decision. Forced alienation of property for state purposes can only be carried out subject to prior and equivalent compensation.”

The Civil Code follows this important provision, but provides in Chapter. 15 “Termination of property rights” cases when, by a court decision, forced termination of property rights is allowed (Article 235 of the Civil Code and commentary thereto). Forced seizure of property from the owner is carried out with payment of compensation by court decision, and in the case of a crime or other serious offense - free of charge in the form of confiscation (Article 243 of the Civil Code).

Freedom of contract, meaning the ability to freely choose one’s partner and determine the terms of the contract, is more fully characterized in Art. 421 "Freedom of contract". A manifestation of freedom of contract is the presence in the Civil Code of a large number of dispositive norms, from which the parties, by mutual agreement, have the right to deviate.

However, freedom of contract does not exclude the establishment in certain cases of the obligation to conclude a contract, for example, if it is a public one (Article 426 of the Civil Code and commentary thereto), as well as when performing supplies and services for state needs (Article 445 of the Civil Code and commentary . To her). According to paragraphs 1 and 2 of Art. 445, the obligation to conclude an agreement can only be introduced by the Civil Code or other laws.

Likewise, some conditions of concluded contracts may be prescribed for the parties by mandatory (mandatory) norms of civil law (Article 422 of the Civil Code). The imperative nature of civil law norms can be determined both by public interests (clause 2 of article 1 of the Civil Code), and by the interests of third parties and the inadmissibility of cases of abuse of law in all its forms (clause 1 of article 10 of the Civil Code). Freedom of contract in market conditions is also subject to the general rule, according to which it is prohibited to use the right to limit competition and abuse a dominant position in the market (Clause 1 of Article 10 of the Civil Code).

The inadmissibility of arbitrary interference in private affairs is expressed in the recognition of the independence of entrepreneurial activity carried out at the risk of its subjects (clause 1, article 2 of the Civil Code), and in the consolidation in the Civil Code of privacy, personal and family secrets (clause 1, article 150 of the Civil Code) . Intangible benefits and personal non-property rights of citizens and legal entities are protected by means of civil law (Article 12 of the Civil Code), including the right to compensation for moral damage (Article 151 of the Civil Code and commentary thereto).

The unhindered exercise of civil rights is based on the provisions of Part 1 of Art. 34 of the Constitution, according to which everyone has the right to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law, as well as Part 1 of Art. 44 of the Constitution, by virtue of which everyone is guaranteed freedom of literary, artistic, scientific, technical and other types of creativity and teaching.

Nevertheless, the law provides certain frameworks and restrictions for the unhindered exercise of civil rights. In addition to the rules on the general limits of the exercise of civil rights (Article 10 of the Civil Code and commentary thereto), the Civil Code also provides for other prohibitions in relation to certain categories of civil rights (see paragraph 10 of this commentary).

Ensuring the restoration of violated rights is achieved using various methods of their protection, called in Art. 12 GK. Among such means are recognition of rights, awarding duties in kind, compensation for losses caused, etc. (see commentary to Article 12 of the Civil Code). Civil legislation strives to restore violated rights in kind (Articles 396, 1082 of the Civil Code), however, when this turns out to be impossible, it obliges the debtor to compensate for the losses caused (Articles 15, 393 of the Civil Code), including moral ones (Article 393 of the Civil Code). 151 of the Civil Code), which should ensure the restoration of the rights of the victim.

Most civil rights remedies are enforced by statute and do not require agreement between the parties. However, civil law also knows such methods of restoring violated rights, which are usually used in the presence of a mutual agreement (pledge, penalty, guarantee, deposit) and are regulated by the norms of Chapter. 23 Civil Code. In these cases, the parties themselves determine the form of security they have chosen and its amount or other expression.

In order to ensure the restoration of violated rights, the institution of property and personal insurance is also used (Chapter 48 of the Civil Code), which can be based on the requirements of the law or the terms of the insurance contract concluded by the parties. In this latter case, the scope of protection (amount of insurance compensation) is determined by the policyholder.

Judicial protection of civil rights is provided to citizens and legal entities as a universal way to protect their rights (Article 11 of the Civil Code and commentary thereto), which ensures the independence of decisions made in disputes and the transparency of the proceedings, and also allows citizens and legal entities to involve in the protection of their interests of lawyers. In cases where the protection of civil rights is carried out administratively, the decision made can be appealed to a court, the act of which is mandatory (clause 2 of Article 11 of the Civil Code).

In para. 1 item 2 art. 1 contains a new norm for our civil legislation, which defines in general form the significance for civil law regulation of the will and interests of subjects of civil law - citizens and legal entities. Their will and interests, says the Civil Code, are free, since they do not contradict the law. This is one of the necessary conditions for the expedient and fair functioning of the civil law mechanism.

Will, i.e. conscious and purposeful choice of certain behavior and its consequences is a necessary prerequisite for the emergence and implementation of civil rights. Lack of will (incapacity - Articles 171 - 177 of the Civil Code) or its distortion (Articles 178, 179 of the Civil Code) entail the invalidity of civil transactions. However, certain civil rights and obligations may arise in the absence of will, due to the occurrence of legal facts provided for by law, for example, a discovery (Article 227 of the Civil Code).

Interest, i.e. the desire to obtain a certain favorable result from one’s actions, and in market conditions - profit (Article 2 of the Civil Code), is also a necessary prerequisite for the emergence and exercise of civil rights. Interests are different and can be both property and non-property (protection of honor and dignity - Article 152 of the Civil Code). Incorrect definition of interest or its disappearance, unlike defects of will, are not grounds for the invalidity of civil transactions.

In cases provided for by law, legal consequences also give rise to actions of subjects of civil law performed in the interests of other persons (for example, actions of guardians and trustees (see Article 31 of the Civil Code and commentary thereto)), as well as actions in the interests of others (Chapter 50 “Actions in the interests of others without instructions”), when the interested person may be completely unknown.

In para. 2 clause 2 of the article repeats the provisions of part 3 of art. 55 of the Constitution, allowing restrictions on civil rights only on the basis of federal law and only for the purposes named in this norm, which, due to their significance, justify the introduction of appropriate restrictions. Consequently, the establishment of restrictions on civil rights by decrees of the President of the Russian Federation, decrees of the Government of the Russian Federation and laws of the constituent entities of the Russian Federation, as well as in others not mentioned in paragraph 2 of Art. 1 Civil Code purposes are not allowed.

The limitation of some civil rights is provided for by the Civil Code itself, which allows for the limitation of a citizen’s legal capacity (Articles 29, 30), inheritance rights (Article 531 of the Civil Code of 1964), and property rights as a result of the establishment of an easement (Articles 274, 277). To protect the interests of a person whose rights are being diminished, such restrictions, as a rule, are allowed with the participation of the court: either the relevant dispute is considered by the court, or a decision made by a state body to restrict the right can be appealed to the court (Clause 2 of Article 11 of the Civil Code).

Restriction of the rights of participants in civil legal relations should be distinguished from cases when, by virtue of the provisions of the law, the right itself is limited in its content. An example is the right of economic management (Article 295 of the Civil Code) and in particular the right of operational management (Article 296 of the Civil Code), the implementation of which is limited to a certain framework and, in addition, requires the consent of the owner of the relevant property.

Provided for in paragraph 3 of Art. 1 free movement of goods, services and financial resources across the territory of the Russian Federation, necessary for the development of market relations and healthy competition, corresponds to Part 1 of Art. 8 of the Constitution. The introduction of restrictions in this area should be distinguished from the negotiability of objects of civil rights, which, by virtue of Art. 129 of the Civil Code may be limited by law or in the manner established by it (see commentary to Article 129 of the Civil Code), and thereby to a certain extent influence the free movement of individual property objects.

Freedom of movement of goods, services and financial resources also does not exclude the establishment, in the manner prescribed by transport legislation, of restrictions or temporary prohibitions on the transportation of goods in certain directions, if this is caused by public interests (see Article 44 of the Ukrainian Railways). The movement of currency values ​​is determined by the Law on Currency Regulation (see Article 141 of the Civil Code and commentary thereto).

The basic principles of civil legislation are the conceptual postulates on which the entire sphere of civil law regulation on the territory of modern Russia rests. It is not for nothing that the Civil Code of the Russian Federation begins with a list of key principles of this branch of law. The code lists the fundamental principles and norms of civil legal relations, which represent the quintessence of global and domestic experience in regulation and legal control in various areas of public legal relations

The concept of civil law

Civil legislation (hereinafter referred to as Civil Law) is a set of legal acts that regulate the property and non-property legal relations of citizens of the Russian Federation. Civil legislation, if we turn to legal practice, turns out to be inextricably linked with other branches of law, including land, family, labor and even forestry.

However, it is worth remembering that GP and GP are two different concepts. In the first case we are talking about normative legal acts, in the second - about a set of legal norms. At the same time, civil legislation can be understood in two senses: broad and narrow.

In a narrow sense, the Civil Protection consists of:

• Civil Code of the Russian Federation;
• Federal Law, which regulates the legal relations enshrined in Art. 2 Civil Code of the Russian Federation.

In the broad sense of the word, civil law includes all sources of civil law without exception.

The subject and method of civil law are no less important foundations of this branch of law, as they allow us to understand what and how civil law is regulated.

The subject of GP is legal relations that are regulated by GP norms, and first of all, property and non-property legal relations.

The GP method is a set of methods and means by which the procedure for regulating legal relations that are the subject of GP takes place.

Many ordinary people confuse the method of civil procedural law and the civil procedure method, and this is considered a serious mistake in legal practice, since these mechanisms have different manifestations.

Basic principles of civil law

The fundamental principles of civil law and the entire civil law are disclosed in Art. 1 Civil Code of the Russian Federation. This legal act presents the in-depth content and meaning of each of the fundamental principles of the civil law.

The principles of civil procedural law, to the same extent as the principles of civil law, permeate the civil law, fully revealing themselves in numerous legal norms. In other words, the fundamental principles of civil procedural law can be applied in the process of regulating social relations that are included in the subject of civil law.

The principles of civil procedural law can find their application if there are legislative gaps and the need to apply an analogy of law has matured.

Thus, if certain relations of the participants are not regulated by a specific civil law norm, then the basic principles from the civil law, that is, the principles of civil procedural law, are embodied.

Legal sources and literature represent several points of view of scientists who interpret the principles of civil procedural law according to their own beliefs. In such cases, we are talking about a truncated presentation of the fundamental rules for regulating legal relations. To avoid legislative conflicts, the principles and functions of civil law should be considered from a generally recognized position.

The principle of equality of participants in relations regulated by civil law

The classification of the principles of civil procedural law begins with this category. And this is due to its dominant role in all civil legislation.

The principle of equality of participants allows us to conclude that all subjects of legal relations have the same rights enshrined in the norms of modern legislation. Persons do not have any advantages over each other. This principle of equality is reinforced by the fact that the rules of law apply equally to both ordinary citizens and legal organizations, constituent entities of the Russian Federation and the Russian state itself. This is enshrined in Article 142 of the Civil Code of the Russian Federation.

In addition, the principle of equality reinforces the constitutional principle of equality of all forms of property on the territory of Russia (Article 8, Part 2 of the Constitution of the Russian Federation). In other words, municipal, state, and private property are of equal importance.

But it is worth noting the fact that the principle of equality does not imply the absence of differences in the content of subjective civil law, which belongs to each of the participants in legal relations. This is because all participants have different backgrounds, abilities, interests and needs.

The principle of inviolability of property

The system of principles of civil procedural law highlights the second fundamental point - the principle of inviolability of property. This rule is based on Art. 35 clause 3 of the Constitution of the Russian Federation. Constitutional rights regarding property make it possible to ensure the stability of all relations relating to property, which is a reliable foundation for the functioning of the modern market mechanism.

Violation of the principle of inviolability of property is one of the most common problems in legal practice. In order for this principle to be implemented in practice, taking into account the legality, but at the same time the constitutional rights of the subjects are not truncated, Art. 235 of the Civil Code of the Russian Federation lists a complete list of situations when property can be seized for government purposes. These include

• Seizure of private property if it is necessary to destroy counterfeit goods (Article 1252 of the Civil Code of the Russian Federation).
• Confiscation of a land plot when a violation of the principle of legality was revealed (Article 285 of the Civil Code of the Russian Federation).
• Confiscation of property on the grounds listed in Art. 243 Civil Code of the Russian Federation.
• Circulation into state revenue of money, valuables, private property and income received from them, in respect of which, in accordance with the legislation of the Russian Federation on countering terrorism, the subject has not provided comprehensive information confirming the legality of their acquisition (Article 235 of the Civil Code of the Russian Federation).

Violation of the principle of inviolability of property is recognized as legal only after the announcement of a legal decision by a judicial authority. At the same time, in order to protect the interests of the owner, he is entitled to a monetary payment, unless otherwise provided by the legislation of the Russian Federation.

The principle of freedom of contract

Art. 421 of the Civil Code of the Russian Federation reveals the principle of freedom of contract. In other words, counterparties are free to enter into any type of legal agreement with various participants in civil legal relations, and change its terms taking into account the legality of the action.

The principle of freedom of legal contract officially prohibits the legislator from exerting any influence on the subjects of legal relations to perform actions to conclude a contract. This is necessary not only to protect the freedom of choice and interests of the citizen, but also to reduce administrative control over civil circulation.

The principle of the inadmissibility of arbitrary interference by anyone in private affairs

The principles, functions and system of civil law are designed to protect the private interests of persons who participate in civil transactions. The content of the enshrined rule allows us to derive the very principle of inadmissibility of government intervention in the affairs of citizens. In other words, government agencies and local self-government bodies do not have the right to interfere in the private affairs of ordinary people on the territory of the Russian Federation if they are carried out on the basis of the law.

However, if private life violates general interests or limits the freedom of third parties, then civil law provides for the possibility of intervention by regulatory authorities. In particular, according to Art. 49 of the Civil Code of the Russian Federation, some types of activities of legal entities require a licensing procedure.

The principle of the need for the unhindered exercise of civil rights and fulfillment of obligations

The principles of exercising civil rights and fulfilling duties are based on Art. 34 of the Constitution of the Russian Federation. The content of this norm implies the free use of one’s own abilities and opportunities for entrepreneurial or other economic activities that do not violate the general and sectoral norms of Russian legislation. In addition, according to Art. 44 of the Constitution of the Russian Federation, the principle of exercising civil rights and fulfilling obligations guarantees freedom of creative, artistic, scientific and literary activity, as well as teaching.

The fulfillment of obligations must take into account the principles of good faith, fairness and equality. In other words, the participant must properly approach the fulfillment of the obligations that are imposed on him by the rules of the Civil Code. The most telling example in this case is the principle of conscientious fulfillment of obligations by the borrower of loan funds, namely, the inadmissibility of unilateral refusal of the signed terms of the loan agreement.

Restrictions on civil rights allowed by the Civil Code

The principle of justice in civil law provides not only for the unhindered exercise of citizens' rights and fulfillment of obligations, but also for the limitation of certain rights, which is regulated by Art. 55 of the Constitution of the Russian Federation.
The content of this norm provides for the imposition of restrictions on a person’s legal capacity, his inheritance rights and property rights after the easement is declared. Restrictions on these rights can only be carried out on the basis of Federal laws, but not on Decrees of the President of the Russian Federation or Resolutions of the Government of the Russian Federation. Otherwise, a violation will be recorded.

The principle of ensuring the restoration of violated rights

The peculiarities of this principle are that in case of violation of a subjective or objective right, any citizen can appeal to a government agency in order to protect it. Sources of civil law, and in particular, Art. 12 of the Civil Code of the Russian Federation determine the legal mechanisms for protecting the interests of citizens.

The significance of this principle for GP is key. It allows you to restore the infringed constitutional interests of a person and, in most cases, in kind. However, general legal practice provides for the possibility of compensation for lost rights to a citizen by collecting from another subject of legal relations an amount for moral damage, as interpreted by the sources of law (Article 151 of the Civil Code of the Russian Federation).

The principle of judicial protection of violated rights

Art. 11 of the Civil Code of the Russian Federation guarantees citizens and legal entities the possibility of judicial protection. The concept of judicial protection implies the defense of civil rights, taking into account the procedural legislation of the Russian Federation. The overall role of the court in protecting the rights and interests of participants in legal relations is only increasing every year. In particular, this is due even if the subject has made a choice towards an administrative solution to his problem for which a violation was recorded. If dissatisfied, a citizen can appeal the decision in court.

The principle of dispositivity

The key features of the Civil Law are that many of the norms included in the legal acts are dispositive in nature. In other words, the rules of discretion begin to operate at the moment if the participants in legal relations cannot choose a different behavior option for themselves.

The dispositive nature of the rules is complementary in nature, since such actions are designed primarily to fulfill the will of the participants in legal relations, which may be due to various reasons.
The issue of manifestations of discretion deserves special attention from practicing lawyers, since it has many facets:

• Firstly, if we apply the principle of discretion to SOEs, then it represents a key feature of the regulation of civil legal relations of participants, which permeates the entire industry.
• Secondly, the dispositive nature of the rules is manifested in the very design of all legal norms in the process of regulating social relations.
• Thirdly, the manifestation of dispositivity of norms can be carried out at various stages of the mechanism for regulating civil law relations.
• Fourthly, the concept of dispositivity is a fundamental definition for civil legislation, therefore this phenomenon refers to an independent principle of civil law.

The principle of good faith

In addition, the protection, termination or challenge of rights must also be done in a manner consistent with good faith and fairness. If this principle is ignored by one or all participants in legal relations, then such a violation may lead to certain consequences, namely, the recognition of the transaction as invalid, and the persons as obligated, in accordance with the legislation of the Russian Federation.

The principle of good faith within the framework of modern legislation, one way or another, comes into contact with the principle of equality.

All citizens, without exception, regardless of their status and position, must comply with the rules of integrity in their actions.

Prohibition for all participants in civil transactions to take advantage of their illegal or dishonest behavior
Clause 4 art. 1 of the Civil Code of the Russian Federation implies this principle. The legislation interprets this rule as a general prohibition - a sanction for making profit from illegal or dishonest behavior. If violations of this subjective principle are detected, then certain consequences may occur for the person, in particular:

• A statement about the invalidity of a transaction from a citizen who carries out his actions in bad faith has no legal significance, as stated in Art. 166 of the Civil Code of the Russian Federation.
• The owner of property has the legal right to demand its return from the subject of the transaction who is acting in bad faith (Article 302 of the Civil Code of the Russian Federation).

Principle (provision) of free movement of goods, services and financial resources

The description of the principles of civil law would be incomplete without disclosing this provision. This rule is of key importance for a market economy in a federal state. This is due to the fact that the principle guarantees the existence of a single economic space within the state. Any restrictions on free movement can be imposed only by Federal laws of the Russian Federation.

Civil legislation is based on the recognition of the equality of participants in the relations regulated by it, the inviolability of property, freedom of contract, the inadmissibility of interference in someone’s private affairs, the need for the unhindered exercise of civil rights, ensuring the restoration of violated rights, and their judicial protection (Article 1 of the Civil Code of the Russian Federation).

Liabilities resulting from causing harm are otherwise called tortious obligations, the elements of which are:

- parties to the obligation(debtor and creditor);

- subject of obligation(an action by the debtor that ensures the most complete restoration of those benefits of the creditor that were damaged).

These obligations are characterized by the following signs:

The scope of their action extends to both property and personal non-property relations (although compensation for damage is of a property nature);

An obligation arises from a violation of rights that are absolute in nature;

The obligation is non-contractual;

The obligation is aimed at full compensation to the victim, as far as possible, for the harm caused, whatever the methods and forms of compensation;

The obligation to compensate for harm may be imposed not only on the harm-doer, but also on other persons (for example, on the person in whose interests the harm-doer acted).

Liability for a tortious obligation can only be borne by persons who are capable of managing their actions and correctly assessing their possible consequences. According to current legislation, this ability appears in citizens from the age of 14. Persons under this age (minors) are recognized by law ineffective. Nevertheless, the harm caused by minors is subject to compensation by their legal representatives (unless the complete absence of their guilt in causing the harm is proven).

The condition of responsibility of parents and guardians, as well as persons supervising children at the time of harm, is their own guilty behavior. At the same time, the concept of “fault of parents and guardians” is interpreted very broadly:

Failure to properly supervise minors;

Irresponsible attitude towards their upbringing (connivance, lack of attention to them, etc.);

Unlawful use of one’s rights in relation to children (encouraging mischief, hooliganism, etc.).

Only a very compelling reason can serve as a basis for the absence of parental guilt (severe long-term illness, forced long-term business trip, etc.).

Persons and institutions that only supervise children from 14 to 18 years of age are not subject to additional liability to the victim.

If harm is caused by the actions of two or more minors, they themselves are jointly and severally liable (Article 1080 of the Civil Code of the Russian Federation), and their parents bear shared liability in accordance with the degree of their guilt.

Liability for harm caused by a source of increased danger occurs regardless of the fault of its owner (Article 1079 of the Civil Code of the Russian Federation), in an amount determined on the basis of general rules (Article 15, 1064 of the Civil Code of the Russian Federation). In addition to compensation for property damage, when harm is caused to the life or health of a citizen, moral damage is subject to compensation, regardless of the guilt of the perpetrator (Article 1100 of the Civil Code of the Russian Federation).

Highlight four main groups of sources of increased danger:

Physical (mechanical, electrical, thermal);

Physico-chemical (radioactive materials);

Chemical (poisonous, explosive, flammable);

Biological (zoological – wild animals, microbiological).

As for the harm caused as a result of the interaction of sources of increased danger to the owner of this source, the harm is compensated on a general basis (clause 3 of Article 1079 of the Civil Code of the Russian Federation):

Damage caused to one of the owners through the fault of another is compensated by the perpetrator;

If there is only the fault of the owner who suffered the damage, he is not compensated for it;

If both owners are at fault, the amount of compensation is determined in proportion to the degree of guilt of each;

If there is no fault of the owners in mutually causing harm (regardless of its size), none of them has the right to compensation (clause 20 of the resolution of the Plenum of the Supreme Court of the Russian Federation of April 28, 1994).

TO grounds for release the owner of a source of increased danger from liability for the harm caused includes the gross negligence of the victim, the property status of the harm-doer and the infliction of harm in a state of extreme necessity (Article 1083 of the Civil Code of the Russian Federation).

Modern lawmaking does not have a reliable scientific basis. I will show this in the first paragraph of the first article of the Civil Code of the Russian Federation.

The first article of the Code is called not just “Fundamentals” and not just “Principles”, but “Basic principles of civil legislation”. From an article with such a title we have the right to expect the most concentrated concentration the meaning of the Code, a short and clear list of its principles. Let's see.

Here is the full text of the first paragraph of the first article of the Code:
“Civil legislation is based on the recognition of the equality of participants in the relations it regulates, the inviolability of property, freedom of contract, the inadmissibility of arbitrary interference by anyone in private affairs, the need for the unhindered exercise of civil rights, ensuring the restoration of violated rights, and their judicial protection.”

The first paragraph of the first article contains six “fundamental principles” or six principles of civil law:
1. Equality of participants.
2. Inviolability of property.
3. Freedom of contract.
4. Inadmissibility of arbitrary interference in private affairs.
5. The need for the unhindered exercise of civil rights.
6. Ensuring the restoration of violated rights, their judicial protection.
What is wrong with these principles recognized by the Code?

1. Equality of participants. In some ways, people can be equal to each other, and I would like to know what kind of equality the Code requires. But the Code does not specify in what ways the participants are equal to each other. Without such clarification, equality of participants is excessively strong, and therefore an unenforceable requirement of the law. The authority of the Code can push judges to unfair, illegal decisions: to equate the right and the wrong, the debtor and the creditor, the saboteur and the victim, in order to give everyone equally, and not everyone their right.
I see equality in the following: obligations between participants arise only from promises that they voluntarily make to each other, usually in contracts, and from torts, violations of rights. The participants cannot have any other responsibilities to each other. This is the only equality of participants. But the Code said nothing about such equality, and doubt arises: is this the kind of equality its authors had in mind?
Judges, guided by the Code, usually (but, alas, not always) ignore the requirement of equality and help collect money from the debtor, rather than equate him with the creditor. Judges usually, on a silent level, adhere to my understanding of rights as powers protected by boundaries. But this doesn't always happen. The words of the ceremonial articles of the Code are confusing, and the judges begin to think that rights are not simple everyday opportunities that some woman Klava lost as a result of a fire, but something complex and certainly certified by official seals. And they refuse Baba Klava’s demands to recover damages caused to her from those responsible for the fire, because they cannot see her violated rights in her lost opportunities. Rights for them are only what are called rights on paper with official seals.

2. Inviolability of property. Property is a polysemantic word, and therefore it is necessary to clarify what inviolability we are talking about.
If we are talking about the unconditional inviolability of someone else’s property, then we must agree with such an understanding; such an understanding protects rights. However, it is difficult to expect from the authors of the Code an unconditional recognition of the inviolability of others, since they allow interference in other people’s affairs, as follows from the fourth principle. And the inviolability of other people’s property interferes with the broadly understood principle of equality of participants.
If by property we mean boundaries, and not property, then there is excess in “recognition of the inviolability of property”; it is enough to say “recognition of property,” or better yet, “recognition of boundaries.” Recognition of boundaries already includes a ban on transgressing these boundaries and provides for liability for a crime.

3. Freedom of contract. Recognition of freedom of contract, as well as recognition of the equality of participants, is a frivolous, frivolous requirement. You can't make contracts about crimes. Contracts concerning crimes are themselves crimes, and therefore cannot be declared free. Only contracts that do not violate anyone’s rights can be declared free. These agreements can be called legal treaties. To announce freedom legal treaties, and then the demand for such freedom would be a working demand, and not a useless and even misleading legislative decoration. A sweeping statement about the freedom of any contracts interferes with the freedom of legal contracts.
Excessive, overlapping declaration of all kinds of “rights and freedoms” undermines respect for such “rights and freedoms.” “Rights” and “freedoms” that the legislator curtails due to their abuse become oxymorons rather than real opportunities. Such “rights and freedoms” make it impossible to have a meaningful conversation about rights and freedom.

4. Inadmissibility of arbitrary interference in private affairs. From the recognition of private affairs should follow the inadmissibility of interference in them, and the matters in which the law allows interference are not private, but public affairs. If private affairs are recognized, then any interference in them is arbitrary by definition. Arbitrary interference in private affairs is arbitrary arbitrariness, this is a tautology from which legislative oxymorons that are destructive to rights are easily born. Allowing legal interference in private affairs is an oxymoron: involuntary arbitrariness or lawful arbitrariness. Hidden tautologies of type arbitrary interference in private affairs provoke the creation of hidden oxymorons such as legal interference in private affairs and push the legislator to lawful arbitrariness.
Recognition of private affairs is, in essence, recognition of rights. When rights are recognized in a tautological form, such as recognition private property, or recognition inviolability of property, or a ban on arbitrary arbitrariness, one should not be surprised by laws that, instead of protecting rights, provoke their violation.
When the legislator allows legal interference in private affairs, he has little idea of ​​what private affairs are.

5. The need for the unhindered exercise of civil rights. Rights are capabilities that are usually freely exercised because they are protected capabilities. If someone interferes with your rights, then they are violating your rights. State the need unhindered exercise of rights is the same as declaring the need straightness straight or roundness of a circle. But even a statement about the need for the unimpeded exercise of rights does not prevent the legislator, in contradiction with this statement, from prohibiting the abuse of rights already in Article 10 of the Civil Code. It turns out that rights can interfere with the fight against evil, and such rights must be prohibited, although their prohibition contradicts the fifth principle of the “fundamental principles” of civil law.
When the legislator declares the need for the unhindered exercise of rights, he has little idea that rights in the norm are precisely what are unhindered. And the pleonasm “civil rights”, which was already stated in the “fundamental principles”, only aggravates the problem of understanding rights.

6. Ensuring the restoration of violated rights, their judicial protection. Some violated rights cannot be restored. For example, the right to communicate with a person who was killed by a criminal cannot be restored. You can only imprison the criminal. The legislator recalls such irreversible rights only in Article 150 of the Civil Code and calls them personal non-property rights or intangible benefits. But in the first lines of the Code, the legislator overly acknowledges: “ensuring the restoration of violated rights.” Only the cumbersome form of recognition masks its excessiveness. Rights that cannot be restored can only be partially compensated by property, in particular money.

So, from the first lines of the Code, the legislator creates difficulties for the protection of rights. The legislator does not specify in what respect the participants are equal. By proclaiming the inviolability of property, the legislator allows interference in private affairs, which is contrary to inviolability. The legislator overly proclaims freedom of contract and ensuring the restoration of violated rights, which raises doubts about the legislator’s adequate understanding of rights. It constructs the pleonasm “civil rights” and encourages the creation of oxymorons such as “prohibited rights,” which turns suspicion into certainty: the legislator does not have a consistent definition of the rights he is going to protect.