Understood as a dispositive norm. Dispositive conflict rules

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Dispositive norms are designed to fill gaps in the text of the treaty formed due to the lack of decisions on relevant issues in it.  

Dispositive norms have an advantage over not only imperative, but also optional norms. This is explained by the fact that, unlike dispositive rules, optional rules themselves are unable to eliminate uncertainty in the relationship between the parties in cases where gaps in the contract are discovered at the stage of its execution or during an arbitration dispute arising over a violation of the contract. In this regard, the replacement of optional norms with dispositive norms deserves support, which cannot be said about the reverse process - the replacement of dispositive norms with optional ones.  

Dispositive norms, which represent one of the guarantees of free expression assigned to a participant in civil transactions, at the same time have a very important feature legal and technical nature.  

Dispositive norms, undoubtedly, most closely correspond to the essence of the branch of civil law created to regulate market relations. At the same time, in the composition civil legislation- and this fully applies to its institutions, dedicated to treaties, - a lot of imperative norms.  

As a general rule, dispositive norms have certain advantages over optional norms. Unlike the former, the latter by themselves are not capable of eliminating uncertainty in the relationship between the parties in cases where gaps in the contract are discovered at the stage of its execution or consideration by the court of a dispute arising over a violation of the contract. In this regard, the replacement of optional norms with dispositive ones still (again, as a general rule) deserves support, which cannot be said about the reverse process - the replacement of dispositive norms with optional ones.  

The dispositive norm of the code gives the contractor the right to involve a third party in the performance of his obligations of his own free will. And only as an exception, due to the fact that the figure of the performer may be important for the customer, the contract or law may include a condition under which the contractor must personally fulfill the obligation.  

Dispositive norms are those that are intended to fill the gaps of the will of individuals in the acts they conclude. In cases where private individuals have acquired the right to freely regulate their relations, they can give these acts any content, as long as the requirements of coercive norms are not violated. But if the act drawn up by the parties contains gaps regarding any details that the parties did not provide for when concluding it, then these gaps are filled in by dispositive norms.  

Comparing dispositive norms with imperative ones, there is reason to come to the conclusion that the former, by their very essence, represent only a conditional version of the latter. This means that any dispositive norm turns into a mandatory one solely due to the fact that the parties did not express consent to deviate from it, having provided for some other option in the contract. Thus, both mandatory and dispositive norms (the latter due to the absence of otherwise in the contract) themselves automatically become rules of conduct for counterparties. From the moment of conclusion of the contract, the dispositive norm, unless otherwise provided in it, is the same absolute regulator of the parties’ behavior that knows no exceptions, as is the imperative norm.  

Taking advantage of the dispositive norm established by Art. 725 Civil Code of the Russian Federation, auditor ( audit firm) can regulate their occupational hazard, as well as the terms of professional risk insurance.  

Consequently, the dispositive rule applies only when private individuals have not ordered otherwise.  

Civil Codes are dispositive norms. This means, in particular, that the parties have the right to stipulate in the contract any other solution to the issue of the consequences of impossibility of performance.  

A common attribute of a dispositive norm is the formula: unless otherwise provided in the contract. The text of the norm usually begins or ends with it.  

Refusal of a dispositive norm can take only one form: fixed in law or other legal act in the form of a dispositive norm, the rules are replaced by others included in the contract. This means that if a particular provision is dispositive, the parties, as a general rule, have the right to exclude the effect of the corresponding provision altogether, except in cases where the latter is essential in nature. In addition, the norm does not apply even when it is tied to any condition of the contract, which may not be there.  

There is between a dispositive norm and custom business turnover and, if there is a direct reference to it, certain differences. One of them is that the dispositive norm itself contains the fallback option that the parties must keep in mind. In case of a custom of business practice, the rule, unless the corresponding custom is recorded in any document, must be found by the parties or the court in order to apply the relevant norm of the PS addressing the custom of business practice.  

Unlike dispositive norms, imperative norms do not have external attributes. The very way in which the rule is presented, and in particular the absence of reference to the possibility of stipulating otherwise in the contract, should indicate its unconditional binding force on counterparties. The last circumstance is very important, because the business contracts are often regulated by norms that cannot be classified as either imperative or dispositive.  

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 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. Examples of such provisions can be found in legislation, statutes and other frameworks.

General information

Dispositive legal norms are quite closely related to issues of reform social relations. So, legislative support Russian market economy provides for the formation of not only a powerful legal foundation. In this area, it is also expected to significantly strengthen the role of the agreement in the field of economic, many international, socio-political and other relations. By its legal nature, it is considered effective method regulation of relations that develop in conditions of free trade and production.

Definition problems

First of all, it should be noted that dispositive norms of law have been little studied today. There is currently not a single general theoretical monographic study that would be devoted to this topic. The nature of dispositive norms is also not entirely clear. It has also not been developed single definition concepts. Difficulties also arise with assessing the position taken by dispositive rules of law in other systems.

Terminology

In accordance with the method of regulation, mandatory and dispositive legal norms are distinguished. The first category involves strict, mandatory execution. This group is called mandatory norms. They are present in various spheres of relationships and regulate behavior in a particular discipline. Since they require strict implementation, the parties to the relationship cannot voluntarily deviate from their application. This, in fact, is the difference between imperative and dispositive norms. The latter provide for some deviations from the regulations. Dispositive norms are not strictly mandatory.

general characteristics

The division into imperative and dispositive norms is considered to have existed for a long time common property legal regulations. It is of no small importance in the process of lawmaking and subsequent application of provisions. Dispositive norms of civil law are of particular importance. This is due to the vastness of this legal field and the need to regulate the diversity of relationships. Also, these provisions are important in the process of forming property turnover within the market.

Dispositive conflict rules

This concept presupposes the independent choice by subjects of the scope and characteristics of their responsibilities and capabilities. If there is no agreement, the second requirement contained in the regulation comes into force. Dispositive norms in the Civil Code of the Russian Federation are actively used. So, in Art. 459, paragraph 2 states that the risk accidental damage or the destruction of the goods that were sold while in transit, from the moment of concluding the purchase and sale agreement passes to the buyer, unless otherwise provided for by such an agreement or customs of commercial turnover.

Signs of provisions

In civil legislation, certain formulations have been established that quite clearly or directly express the legal force of a particular norm or group of norms. M. Braginsky suggested calling them attributes. Such formulations may sound different. Dispositive norms are expressed through the following formula: since or unless the agreement or contract provides otherwise. In addition, other attributes are used. We are talking about the following formulation: the norm states that the parties have the right or can commit specific action, which deviates from the approved general rule. This is a relatively new technique in legislative technology.

Giving dispositivity may concern certain group normal In this case, a direct indication of the possibility of deviation is used: an agreement between the parties to the contrary is allowed. However, most provisions do not have a clear indication of whether they are mandatory or dispositive. It is considered traditional in in this case the view that in the absence of any clear guidelines to determine the nature of the act, it should be revealed by interpreting the provision. IN practical application this often leads to ambiguous understanding legal significance a number of important rules.

Features in individual institutes

Dispositive norms are considered integral part obligations. Their necessity is determined by a number of important factors:

• Differences between the needs and capabilities of the parties.
• The dynamics and diversity of property relationships acting as the subject of obligations.
• The use of agreements that are not directly regulated by the Civil Code.
• The desire to create conditions for the establishment of an economic entrepreneurial initiative, which is restrained by various prohibitions.

The last factor has special meaning in the process of formation of market relations. A reflection of the above circumstances is presented in the provisions of the law of obligations both in the general part (Section III), and in the chapters revealing the essence of its individual types (Section IV). In this case we're talking about O large quantities instructions containing a direct indication of the possibility of the contract to provide otherwise. Dispositive norms are considered the foundation of the core obligation system provisions - a mechanism of responsibility, the grounds of which may vary between the parties to the relationship. Through the terms of obligations, it can be introduced subsidiary liability; parties to the contract may limit the amount of damages recoverable. The parties also freely choose how to implement their obligations.

Current market conditions

As an expression of the beginning of dispositivity in law of obligations is considered to be the establishment of a corresponding general rule in the Merchant Shipping Code (MCC). This technique legislative technique that creates legal clarity can be applied in other areas of the obligation system. The number of prohibitions in the Railway Transport Charter has significantly decreased. These circumstances allow us to believe that in the law of obligations there is discretion in the absence of direct indications of the inadmissibility of an agreement between the parties on a different decision.

A different legal picture

It is noted in the provisions of civil law on real rights ah and property, persons, inheritance. In these areas, regulated interactions are considered more standardized, in legal control sustainability and stability are needed. The above factors that occur in the area of ​​obligations are manifested here to a significantly lesser extent. The discretion of norms is quite rare, although there are areas where it is necessary.

Legal entities

In relation to this category, some authors put forward the opinion that HA is being introduced extremely important for ensuring sustainability in civil circulation, the principle of a closed list of legal entities missing in previous legislation. According to it, they have the opportunity to form and carry out activities only in the form that is directly provided for by law. An agreement between the parties cannot create new types of real rights, although this circumstance is not clearly expressed in the wording of Art. 216, paragraph 1. A feature of the provisions on legal entities is the presence of regulations that derogations are allowed not by virtue of an agreement between the parties, but by decisions that are made in a certain form:

• By condition founding agreement(vv. 71, 72, paragraph 1).
• According to the charter legal entity(Article 93, paragraph 2, Article 100, paragraph 3).
• According to the decision taken at general meeting participants (Article 103, paragraph 3, Article 101, paragraph 1).

These provisions significantly limit dispositivity certain standards. In this regard, in the areas under consideration, it is necessary to proceed from the presumption of obligation and strict compliance with legal regulations, due to the fact that they do not have direct instructions on the admissibility of an agreement otherwise. When interpreting a norm, a conclusion is likely that it is dispositive. But this conclusion in accordance with the nature of the above institutions will appear infrequently.

Other Applications

The described provisions are used not only in legal field. The dispositive norms of the Russian language are considered quite widespread. They allow neutral or stylistically different options. Among them we can name: brown-brown, piece of cheese-piece of cheese, stack-stack, let's go three, let's go three, grade book and others. Dispositive norms of language involve the assessment of options of a non-prohibitive (categorical) nature.

Finally

Formulation in educational and scientific literature general conclusions about the absolute predominance of dispositive or, on the contrary, imperative norms should be recognized as inaccurate. It does not reflect the actual situation and the presence of a number of significant features in this issue within individual institutions. Due to the fact that direct indications of the nature of all or most provisions cannot be practically created, legal force must be determined through interpretation, taking into account all the circumstances and factors relating to a particular act.

This path is not easy, but it is inevitable. The final word in this case is the court's conclusion. Relatively legal force some important provisions It is desirable for the Civil Code to have clarifications. They can be presented in a resolution from the highest court. Clarifications would make it possible to bring some calm and clarity to contractual practice, which today is experiencing significant difficulties in understanding and subsequent application of many important provisions. Due to correct presentation about the essence of dispositive norms, there will be prerequisites for further deepening practical and theoretical knowledge concerning the operation of the legal settlement mechanism.

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. Application of civil law by analogy. Concept, features, structure and types 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 loss or accidental damage to goods sold while in transit passes 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 internal structure.

The norm is aimed at mandatory, established by the state implementation of rules showing the material requirements of society and its interests acting on public relations for the purpose of their regulation.

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, may in a significant way change the system for recording and preventing legal risks when applying regulations 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.

The difference between a mandatory norm and a dispositive norm

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 given word is defined as a certain opportunity to choose one or another procedural means protection. 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 carry out personal activities, 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.