Goods, services and financial assets move freely throughout the Russian Federation. The principle of free movement of goods, services and financial resources throughout the Russian Federation

1. Extremely important has a constitutional principle of free movement of goods, services and financial resources. In essence, it is aimed at creating a constitutional and legal regime for the stability of economic turnover.

Basics constitutional order The Russian Federation provides for the most important regulatory principles for organizing the structure of society and the state. One of them is the free movement of goods, services and financial resources (Part 1 of Article 8 of the Constitution). The legal regime, expressed through the word “free,” means that not only the state regulates property relations by adopting regulations, but also the participants in trade turnover themselves, by reaching an agreement among themselves, are able to regulate their relationships. From this point of view, the contract is a law emanating from the parties themselves who entered into it. The legal consequences of the contract occur precisely because its parties expressed their will and thereby bound themselves to the need to obey the rules that they themselves established for themselves. This is the main social value of commercial contracts. These agreements mediate entrepreneurial activity, which is built on the principles of unpredictability and risk.

Being a system of autonomous legal regulation, contracts should contribute to the fair distribution of risks from losses and damages possible in the course of business activities.

Autonomous legal regulation is one of those legal characteristics, by which the private law sphere can be determined, i.e. the sphere of social relations regulated by a system of private law norms.

I.A. Pokrovsky accurately noted that “every contract is the implementation of private autonomy, the implementation of that active freedom, which constitutes a necessary assumption of civil law itself. As a result, the supreme principle in this entire area is the principle of contractual freedom.” *(220) .

Consequently, the normative content of the constitutional principle of free movement of goods, services and financial resources also includes freedom of contract. The principle of freedom of contract is a principle of not only constitutional, but also civil law (Clause 1, Article 1 of the Civil Code of the Russian Federation).

Freedom of contract, formal legal equality of its participants, property liability for damage caused constitute those civil law principles on which the entire legal infrastructure of a market economy is based.

2. The new civil legislation, which enshrines the principle of inviolability of property, is entirely based and proceeds from the constitutional and legal regime of stability of economic turnover. In the field of civil legislation, the constitutional principle of stability of economic turnover is refracted in norms that establish, in particular, requirements for authorized capital and rules on the consequences that occur if its size is reduced (see Article 90 of the Civil Code of the Russian Federation).

Essentially, the constitutional and legal principle of stability of economic turnover expresses such a long-known requirement of the individual to the existing legal order as the requirement of not only certainty, but also the strength of the law, which I.A. wrote about. Pokrovsky.

In the light of the constitutional principle under consideration, the main idea underlying all civil legislation becomes quite clear - the idea of ​​optimal distribution of economic risks between participants in economic turnover.

Only by ensuring a fair distribution of business risks are stability and sustainability possible civil turnover.

The Constitutional Court of the Russian Federation first mentioned the constitutional and legal regime of stability of business conditions in the Determination of July 1, 1999 No. 111-O on the complaint of gr. Varganova V.V. *(221) .

Fable of the case

Citizen V.V. On March 10, 1999, Varganov was admitted to the Belgorod Regional Bar Association, in connection with which on March 19, 1999 he reported to tax office on termination of his entrepreneurial activity without forming a legal entity to provide paid legal services. However, the tax inspectorate notified V.V. Varganov on the need to pay a single tax on imputed income in the amount of 29,640 rubles. for the year, including for the first quarter - 7410 rubles.

In his complaint to the Constitutional Court of the Russian Federation, V.V. Varganov claims that in two months and ten days of the first quarter of 1999, he did not earn even a tenth of the income imputed for the first quarter. Requirement of the tax inspectorate, based on the provisions of the Federal Law of July 31, 1998 "On a single tax on imputed income for certain types of activities" *(222) and the Law Belgorod region of September 11, 1998 “On a single tax on imputed income for certain types of activities”, establishing imputed income and requiring the payment of a single tax before receiving income, i.e. in advance, according to the applicant, violates it constitutional rights, provided for in Art. 6 (part 2), 19, 34 and 55 (parts 2 and 3) of the Constitution of the Russian Federation. Thus, the applicant actually questions the constitutionality of the provisions of Art. 1 and 6 of the Federal Law and Art. 1 and 6 of the Law of the Belgorod Region on the introduction of a single tax on imputed income and on the procedure for its calculation and payment deadlines.

Checking the complaint from Mr. Varganova V.V. the constitutionality of the above-mentioned Federal Law and the Law of the Belgorod Region, the Constitutional Court established that from the date of entry into force of the Federal Law and the introduction of a single tax, the relevant regulatory acts of the legislative (representative) bodies of the constituent entities of the Russian Federation do not apply paragraph. 2 hours 1 tbsp. 9 of the Federal Law of June 14, 1995 "On state support for small businesses in the Russian Federation" *(223) , A the federal law dated December 29, 1995 "On a simplified system of taxation, accounting and reporting for small businesses in the Russian Federation" *(224) applies to the extent that does not contradict the analyzed Federal Law of July 31, 1998.

Paragraph 2, part 1, art. 9 of the Federal Law “On State Support of Small Business in the Russian Federation” provided that if, as a result of changes in tax legislation, less favorable conditions are created for small businesses compared to previously existing conditions, then during the first four years of their activity these entities will be subject to taxation in the same manner that was in effect at the time of their state registration.

The provision of the Federal Law “On the Unified Tax on Imputed Income for Certain Types of Activities” on the inadmissibility of further application of paragraph. 2 hours 1 tbsp. 9 of the Federal Law "On State Support of Small Business in the Russian Federation" cannot have retroactive effect and does not apply to ongoing legal relations that arose before the day of official publication of the new regulation, including the corresponding normative act of the legislative (representative) body of the subject of the Federation on the introduction of a single tax on its territory. Such an interpretation of this provision is due to the constitutional and legal regime of stability of business conditions, derived from Art. 8 (part 1), 34 (part 1) and 57 of the Constitution of the Russian Federation, noted the Constitutional Court of the Russian Federation in the Determination of July 1, 1999 on the complaint of gr. Varganova V.V.

Resolution of the Constitutional Court of the Russian Federation of February 23, 1999 N 4-P “On checking the constitutionality of the provisions of part two of Article 29 of the Federal Law of February 3, 1996 “On Banks and Banking Activities” in connection with complaints from citizens O.Yu. Velyashkina, A.Yu Veselyashkin and N.P. Lazarenko" allows us to deepen our understanding of the content of the constitutional principle of stability of economic turnover, derived from the principle of free movement of goods, money and financial resources (Part 1 of Article 8 of the Constitution of the Russian Federation) *(225) .

By virtue of this principle, the state is obliged to provide conditions for stable civil circulation and use legal regulation for this. State regulation of market relations is expressed in establishing the procedure for the creation and activities of their participants.

Legal regulation of the market should not violate the basic principles of a market economy: equality of participants in turnover, freedom of acceptance economic decisions and independent responsibility for their results, responsibility for the harm caused.

The relationship between depositors and the bank is part of civil transactions. The stability of these relations, in the opinion expressed by the Court, should be ensured by creating public law, mandatory rules limiting the formal freedom of contract.

That is why the reference in Art. 838 of the Civil Code of the Russian Federation to the law means the need to adopt a special Law for additional legal regulation of relations between citizen depositors and banks. The need for additional imperative norms is due to the fact that in conditions of an unstable ruble exchange rate, the interests of depositors require increased protection.

Only in this case will citizens be interested in making deposits, which will affect the sustainability of such a sector of civil turnover as borrowing operations.

This principle means:

· goods, services and financial assets move freely throughout the Russian Federation;

· subjects of the Russian Federation and other persons do not have the right to establish any local rules that impede the free movement of goods, services and financial resources in the single economic space of the Russian Federation;

· on the territory of the Russian Federation, the establishment of customs borders, duties, fees and other obstacles to the free movement of goods, services and financial resources is not allowed;

· restrictions on the movement of goods, services and financial resources may be introduced in accordance with federal law only in cases where this is necessary to ensure safety, protect life, health of people, protect nature and cultural values.

Sources civil law – These are ways of expressing and consolidating the rules of law.

SYSTEM OF SOURCES OF CIVIL LAW

1. Civil Code of the Russian Federation

The central, core act of civil legislation in Russia is the Civil Code. He owes this position not only general character rules contained therein, but also the requirement that all other civil laws, as well as laws containing civil law norms, even if adopted after the entry into force of the Civil Code, comply with its requirements (clause 2 of article 3). Consequently, in the event of a conflict between the provisions of the Civil Code and other federal civil laws, it is necessary to be guided by the rules of the Code.

2. Federal laws (civil legislation)

The subject of civil law consists of such diverse complex relationships that all of them necessary measure details cannot be regulated even by such a large, voluminous law as the Civil Code. This requires many other laws that develop and specify its rules and institutions. The Civil Code directly provided for in a number of its norms the need to adopt several dozen such legislative acts, as if thereby consolidating the basic structure of the entire branch of civil legislation. Some of these laws, mainly on the status of individual legal entities, has already been adopted, and some are under development and discussion by the legislator. It should be borne in mind that if there is a direct indication in the Civil Code, another federal law may regulate the corresponding relationship differently than provided for by the Code. The Code has significantly increased the role of laws in regulation property relations, establishing in its norms direct references to specific laws. Thereby,

firstly, regulation of relevant relations by by-laws is excluded, at least for the future;

secondly, the scope of direct legislative regulation has now been significantly expanded;

thirdly, it provides for the creation of a system of agreed upon specific laws based on a single legislative framework, which the legislator himself is obliged to adopt.

3. By-laws

The normative acts included in this group are of a subordinate nature. However, if there is a direct indication in the Civil Code (or in another federal law), the corresponding relationship may be regulated by them differently than provided for in the rules of the Code or other law.

The greatest legal force among the by-laws have presidential decrees. In an area not directly regulated by the rules of law, the rules of decrees in our country, in essence, have the same meaning as the law (of course, if they do not contain direct contradictions to it).

Many decrees of the President of the Russian Federation on economic development contain civil law norms. Those of them that were published before the adoption of the Civil Code or the laws provided for by it and contain rules that contradict them, can now be applied only to the extent that corresponds to the requirements of the Code. Presidential decrees issued on issues that, according to the Civil Code, can now be regulated only by laws, remain in effect until the relevant laws are adopted.

Government regulations, containing norms of civil law, must not only comply with the Civil Code, other federal laws and presidential decrees, but can now only be adopted “on the basis and in pursuance” of the listed acts more high strength(Clause 4, Article 3 of the Civil Code). If this restriction is not observed, they are not subject to application (Clause 5, Article 3 of the Civil Code). We are talking only about those government regulations that have civil legal significance.

In the field of economic activity federal government accepts a large number of normative acts, mainly of a complex nature, containing civil law norms. A number of government decrees have been adopted on issues that, according to the Civil Code, can only be regulated by laws. In this case, they, like presidential decrees, remain in force until the relevant law is adopted and to the extent that does not contradict the Code.

4. Regulatory acts federal bodies executive power

Regulatory acts federal ministries and departments in the field of civil law formally have the least legal power. Moreover, their very acceptance here is due to the presence of a direct indication of such a possibility in the act of more high level- law, or presidential decree, or government decree(Clause 7, Article 3 of the Civil Code), which simultaneously defines the limits of departmental rule-making. Therefore, all departmental regulations relating to the rights, freedoms and responsibilities of citizens, as well as all similar acts of an interdepartmental nature are subject to mandatory state registration Only normative acts are not subject to state registration in the Ministry of Justice of the Russian Federation Federal Commission on the securities market (a similar opportunity was given to her earlier as the Federal Commission for securities and the stock market). As a result, the vast majority of acts of this department has direct contradictions with the Civil Code or other laws.

The law also provides for the obligation to compensate for losses caused to citizens or legal entities as a result of the publication departmental act, which does not comply with the law or other legal act (Article 16 of the Civil Code). All these measures are designed to help establish proper order in departmental rule-making.

5. international treaties

It's about first of all, about various multilateral international treaties (conventions), to which Russia is a party. As a source of civil law, international treaties of the Russian Federation have priority over its civil legislation. In the event that such an international treaty provides for rules other than national civil legislation, the rules of this treaty are subject to application (part 4 of article 15 of the Constitution of the Russian Federation, paragraph 2 of clause 2 of article 7 of the Civil Code).

At the same time, international treaties apply directly to civil legal relations, unless the treaty itself implies the need to issue an internal act for its application. For example, the UN Convention on Treaties international sales goods 1980 ( Vienna Convention) is subject to direct application as Russian law (but not to relations Russian subjects, but to those situations to which it applies in accordance with its scope indicated in Art. 1, i.e. to those cases when Russian law is subject to application to international sales contracts).

6. Customs of property turnover

Russian civil law attaches importance to the source of law to the customs that have developed in the field obligations. When fulfilling contractual and other obligations, their parties are obliged to be guided by “usually imposed requirements” in the absence special requirements legislation or terms of the obligation (Article 309 of the Civil Code). These kinds of “usual requirements” essentially represent customs of property turnover, i.e., those that have developed in it due to repeated uniform application generally accepted rules behavior not expressly expressed in the law ( normative act), nor in the agreement of the parties, but not inconsistent with them. Customs, therefore, operate in cases where there are no direct requirements in a normative act or in a contract. The custom must be established, i.e., sufficiently defined in its content and widely used in property, especially business, circulation (for example, traditions of performing certain contractual obligations ). The law sometimes gives legal significance to other customs that have developed, for example, in the field property relations

(Article 221 of the Civil Code). At the same time, among the customs that stand out are customs business turnover (Articles 5 and 309 of the Civil Code) - customs that have developed and are widely used in the field of business activity, that is, trade customs in their classical, traditional understanding. Only such customs, as directed by civil law, are applied, essentially as

legal norm

, to the relations regulated by it (subject to the conditions provided for in paragraph 1 of Article 6 and paragraph 5 of Article 421 of the Civil Code), and must also be taken into account when the court interprets the terms of the agreement (Part 2 of Article 431 of the Civil Code). At the same time, business customs do not apply if they contradict mandatory (imperative) or supplementary (optional) provisions of the law or the terms of the contract (clause 2 of article 5, clause 5 of article 421 of the Civil Code). In their legal force, they are thus inferior to both the rule of law and the established order (the practice of relations between the parties). Trade and port customs accepted in the Russian Federation are certified by the Chamber of Commerce and Industry of the Russian Federation.

7. Standards of morality and ethics

Norms of morality and morality in themselves are not sources of civil law; these norms become a source of civil law if they are enshrined in any normative act. New edition of Art. 1 Civil Code of the Russian Federation 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, inadmissibility arbitrary interference someone in private affairs, necessity

unimpeded implementation civil rights, ensuring the restoration of violated rights, their judicial protection.) 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 contrary to law terms of the contract.

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 order, morality, health, rights and legitimate interests other persons, ensuring the country's defense and state security.

3. When establishing, exercising and protecting civil rights and performing civil duties, participants 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.

Commentary to Art. 1 Civil Code of the Russian Federation

1. The basic principles of civil law are the fundamental ideas (general principles) that determine the main content of civil law regulation as a whole, industry specifics norms of civil law and the practice of their application.

The significance of the basic principles of civil legislation is expressed in the fact that they:

a) are the determining line in the development and improvement of civil legislation;

b) act as a basic criterion in the interpretation of civil law norms;

c) are recognized as the most important basis for the application of civil law, including its application by analogy.

The basic principles are the basic, leading principles of civil law, i.e. its main ideas, fundamental provisions. At the same time, along with these principles, other principles also play a significant role in civil law, its understanding and practical application. Including the principles of a spiritual and ethical nature reflected in Art. 6 of the Civil Code of the Russian Federation when characterizing analogy. These are the following principles:

Integrity;

Reasonableness;

Justice.

No less important in civil law belongs to special legal principles individual institutions, legal structures, norms. Such, for example, as the “following principle” in relation to ownership, the principle of claiming a thing in kind ( vindication claim) when protecting property rights, etc. Scientific comprehension of the principles of civil law, and above all its basic principles, represents the highest “civil knowledge” - a deep understanding of the meaning and purpose of this branch of law, which largely predetermines a thorough training in civil law as a whole.

2. Civil rights, in accordance with basic principles, are high legal status. The Russian Civil Code defines the status and legal force of civil rights close to the status of constitutional rights. According to the Civil Code of the Russian Federation, civil rights can be limited in principle on the same grounds as constitutional rights - only on the basis of federal law and only in those exhaustive cases that are directly specified in the Code.

3. Paragraph 3 of the commented article contains the principle of a single commodity (economic) space. Civil legislation, in accordance with the Constitution of Russia, falls under federal jurisdiction. Subjects of the Russian Federation, municipalities, and other persons do not have the right to in any way interfere with free economic turnover. Stability and transparency of property relations ensure the most effective civil law regulation.

Arbitrage practice.

Thus, the provision of paragraph three of paragraph 2 of Article 77 of the Federal Law “On Insolvency (Bankruptcy)”, which gives the external manager the right to unilaterally refuse to fulfill the debtor's contracts on the sole basis that they are concluded for a period of more than one year... and thereby depriving counterparties of the opportunity to challenge such a unilateral refusal in court, introduces a disproportionate restriction of the freedoms guaranteed by the Constitution of the Russian Federation economic activity and, therefore, freedom of contract, as well as the right to free use of property for business activities, the rights to own, use and dispose of property and violates the principle of legal equality (Resolution of the Constitutional Court of the Russian Federation of 06.06.2000 N 9-P).

Another comment on Art. 1 of the Civil Code of the Russian Federation

1. Paragraph 1 of the commented article formulates the basic principles of civil legislation of the Russian Federation.

Under equality of participants civil relations the absence of relations of power and subordination between them is understood. At the same time, the scope of subjective rights belonging to a participant in such a relationship may vary.

The inviolability of property is not only one of the basic principles of civil legislation, but also the most important constitutional principle, formulated in Part 3 of Art. 35 of the Constitution of the Russian Federation.

The concept of “freedom of contract” is disclosed in the commentary to Art. 421 Civil Code.

The inadmissibility of arbitrary interference in private affairs means that any restriction on the discretion of subjects of civil legal relations in acquiring and exercising their civil rights or obtaining information about the private sphere of these subjects against their will is permissible only on the basis and in the manner established by law.

On the exercise and protection of civil rights, see the commentary to Art. Art. 9 - 16 GK.

2. The exercise by citizens and legal entities of their civil rights of their own will and in their own interest represents a general principle of civil law. Deviation from it is allowed when exercising the powers of a representative who, by his own will, exercises the civil rights of the person represented in the interests of the latter. On representation, see commentary to Art. Art. 182 - 184.

The rule regarding the freedom to determine any terms of the contract that do not contradict the law is specified in relation to contractual relations by the principle of freedom of discretion of participants in civil legal relations, their right to make transactions, both provided for and not provided for by law, but not contrary to it (see also the commentary on this to Art. 8 Civil Code).

3. Specified in paragraph 2 of Art. 1 of the Civil Code, permissible grounds for restricting civil rights reproduce the corresponding provisions of Part 3 of Art. 55 of the Constitution of the Russian Federation. At the same time, the limitation of the existing subjective law should not be identified with cases when the right itself, in its content, is initially limited by force of law in comparison with another similar, but more “strong” right, as is the case when comparing, for example, property rights with others derived from it real rights- right economic management(Article 294 of the Civil Code) and the right of operational management (Article 296 of the Civil Code).

4. Given in paragraph 3 of Art. 1, the list of grounds on which the law may introduce restrictions on the movement of goods and services is exhaustive and is not subject to broad interpretation. The freedom of movement of financial resources on the territory of the Russian Federation cannot be limited.

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The listed principles of civil law are equivalent and equally important for the branch of law under consideration. In their unity, together, they characterize the sectoral specificity of this branch as civil law, its place and role in the life of society.

AT 2. Commission agreement: concept, subject, content, termination.

A commission agreement is an agreement under which one person (commission agent) undertakes, on behalf of another person (the principal), for a fee, to carry out one or more transactions on his own behalf, but at the expense of the principal. This is a service agreement. The contract is considered concluded from the moment the parties reach an agreement in the required form on all essential terms of the contract and therefore is consensual. It is also compensated. It remains compensated even in the case when the amount of remuneration and the procedure for its payment are not specified in the contract or the amount of remuneration cannot be determined based on the terms of the contract. In this case, the remuneration is paid after completing the commission order in the amount determined in accordance with paragraph 3 of Art. 424 of the Civil Code of the Russian Federation, i.e. the amount that is usually charged for similar commission services under Article 991 of the Civil Code of the Russian Federation. The contract is mutual (synnalagmatic). This means that in a circumstance generated by the commission agent, both the commission agent and the principal are simultaneously a creditor and a debtor. The commission agreement is regulated by the Civil Code of the Russian Federation (Article 990-1004 of the Civil Code of the Russian Federation), as well as by separate regulations.

Subjects of the agreement: commission agent and principal. The commission agent and the principal are any subject of the state enterprise. However, in practice, the commission agent in most cases is a person who carries out entrepreneurial activities and is a professional commission agent (entrepreneur).

Essential terms of the contract: Conditions formulated by the parties to the contract and arising from the essence of the law. These conditions are divided into essential - that is, necessary and sufficient for its conclusion and ordinary, that is, the presence of which does not affect its conclusion. An essential condition is the subject (clause 1 of Article 432 of the Civil Code of the Russian Federation), i.e. actions of the commission agent as a party whose performance is decisive for the contract. To achieve the essence of the subject, it is required: 1. To reach an agreement that the commission agent makes only one transaction or several transactions. 2 the nature of the transaction must be specified. Eg. fulfillment of an obligation - unilateral transaction(public promise of reward), bilateral (purchase and sale), etc. 3. Coordination of the subject of the transaction (for example, the name and quantity of goods subject to the transaction) The subject is things defined by generic characteristics, individually defined can be, if this is not excluded by the characteristics of their legal regime. You cannot oblige a commission agent to buy or sell real estate for the committent. 4. The commission agent makes a transaction on his own behalf. The second essential condition: the amount of commission.

Normal conditions agreement: the procedure for paying commission, information about the person from whom the commission agent must purchase the property, the purchase price, etc. If such conditions are absent, then they are fulfilled relative to dispositive norms GP. Regarding any condition upon application of the parties, an agreement must be reached, then such a condition is essential.

Form of agreement: no specific form, therefore, general rules apply to the form of contracts (Article 434 of the Civil Code of the Russian Federation) and transactions (Articles 158-168 of the Civil Code of the Russian Federation). Since such agreements most often involve a legal entity on the part of the commission agent, the agreement is concluded in simple written form.

The content of the agreement is the rights and obligations of the parties. The main duty of a commission agent is to carry out provided for by the contract a transaction or series of transactions in one’s own name, but at the expense of the principal. He must take all possible measures to complete the said transaction and complete it if possible. The commission agent must take care of the interests of the principal. He is obliged to execute the transaction on the most favorable terms for the principal in accordance with his instructions, and in the absence of such instructions in the contract - in accordance with business customs or other usually imposed requirements. (Article 992 of the Civil Code of the Russian Federation) If the principal’s conditions are precise and subject to unconditional fulfillment, then the commission agent does not have the right to deviate from these conditions under threat of compensation for harm, even if he acted with the intention of achieving a greater benefit for the principal. The exact terms and conditions must be expressed in the contract. All deviations from the agreement in better side for the committent after execution they are divided in half. In case of deviation for the worse, the commission agent notifies the principal. Deviations are possible if the commission agent was unable to request the principal within a reasonable time or did not receive a response to the request. If the commission agent retreats in the absence of the above conditions, then he: having sold the property at a low price, is obliged to compensate the principal for the difference, unless he proves that he did not have the opportunity to sell the property at the agreed price and that the sale at a low price prevented large losses. If the commission agent bought at a higher price than the principal needs and the principal does not want to accept such a purchase, he must notify the commission agent about receiving notification from him about concluding a transaction with a third party, otherwise the transaction is considered accepted by the committent. If the commission agent said that he accepts the difference in price at his own expense, then the principal does not have the right to refuse the transaction. Since things acquired through a commission agent by the principal are the property of the latter, the commission agent is obliged to take measures to ensure the safety of these things. When fulfilling the duty, the commission agent is obliged to provide the principal with a report and deliver to him everything required under the contract. The principal who has objections to the report is obliged to present them within 30 days, unless another period is established, or unless otherwise provided, the report is considered accepted. By general rule The commission agent is not responsible for fulfilling the contract himself; he can enter into a subcommission agreement with another person, remaining responsible for the actions of the subcommission agent to the principal. Under a subcommission agreement, the commission agent acquires the rights of a principal in relation to the subcommission agent.

Responsibilities of the principal: Pay the commission agent Commission remuneration. The size and order are usually provided for in the contract. If not specified, it is established based on how they are paid for the provision of such services. If the transaction is executed by a third party, he is paid an additional reward. The amount and procedure for payment are provided for in the contract. If this is missing, the contract is considered not concluded. He is also obliged to reimburse the commission agent for the amounts spent on the execution of the commission order. Obliged to accept what is executed under the commission agreement, since the commission agent carries out all transactions at the expense of the principal, therefore the principal accepts, inspects and notifies of all the commission agent’s shortcomings. The commission agent ensures that the property belonging to and subject to transfer to the principal is retained until the obligation to compensate for all expenses incurred. If the principal is declared bankrupt, the right of lien is terminated and all claims are fulfilled in accordance with Article 360 ​​of the Civil Code of the Russian Federation. nothing specifically stated about the consequences Not proper execution obligations of the principal, therefore the general rules on compensation for losses and payment of penalties, etc., apply.

Termination of the contract: by proper performance. And also by agreement of the parties or at the request of one of the parties (for example: significant violation one party to the terms of the contract, etc.) The death of a commission agent, recognition of him as incompetent, partially capable, bankrupt, etc. entails termination of the commission agreement. A similar circumstance concerning the principal does not terminate the commission obligation. If the commission agent is declared bankrupt, all obligations under the transaction completed in the interests of the commission agent are transferred to the principal. It is also possible that one of the parties refuses to complete the transaction. The commission agent has the right to refuse to execute the transaction at any time, compensating all losses to the principal. If an agreement is concluded without specifying its validity period, the commission agent notifies of the refusal no later than 30 days, unless otherwise specified in the agreement. There are no specific deadlines for notifying the commission agent about the cancellation of an order. The commission agent does not have the right to refuse to fulfill the contract except in the following cases: 1. when the contract is concluded without specifying its validity period; 2. When the commission agent has reserved the right to refuse to perform the contract. Refusal to perform does not relieve the obligation to preserve property. The principal must dispose of the property held by the commission agent within 15 days from the date of receipt of the refusal to execute or another period. In case of non-fulfillment, the commission agent has the right to deposit the property at the expense of the principal or sell it at a price more favorable to the principal. The commission agent who refused the transaction has the right to remuneration and reimbursement of expenses incurred before the transaction was abandoned, however, this is not mandatory and can be canceled by the contract.

Related information.

3. 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.”

The rules of law contained in civil legislation are formulated on the basis of the general rule: “everything that is not prohibited by law is permitted.” Current legislature establishes appropriate limits for the exercise of civil rights. In accordance with Article 10 of the Civil Code of the Russian Federation, actions of citizens and legal entities carried out solely with the intention of causing harm to another person, as well as abuse of rights in other forms, are not allowed. Failure to comply with moral norms expressed in the use of law in contradiction with its purpose may entail a refusal to protect the right precisely because such consequences are specified in the law.

The norms of the Civil Code embody the principle of the inadmissibility of arbitrary interference in private affairs. This means that the organs state power And local government and any other persons do not have the right to interfere in the private affairs of subjects of civil law if they carry out their activities in accordance with the requirements of the law.

One of the fundamental principles of civil law is the principle of inviolability of property. Forced seizure the owner of the property is not allowed, except in cases provided for by law. For example, in cases where the owner of pets treats them in clear contradiction with the rules established by law and accepted norms in society humane treatment to animals, these animals can be seized from the owner by purchasing them by a person who has submitted a corresponding demand to the court (Article 241 of the Civil Code of the Russian Federation).

Another important provision of the Civil Code of the Russian Federation is the issue of invalidity of the transaction. In accordance with Article 169, “a transaction concluded with the purpose, knowingly against the basics law and order or morality, is insignificant.”

Family law norms have a close connection with generally accepted moral norms that have developed over centuries.

No matter how complex their content may be, in any case they include the idea of ​​good and evil, justice and injustice, honesty and dishonesty, which is directly related to the essence of the norms of family law. Thus, taking care of your family, fulfilling your duty to raise children, taking care of minors and disabled family members in need of help means being an honest family man. At the same time, family law influences the behavior of the person involved family relations with the help of its own arsenal of means, and moral norms have their own methods of influence. But if moral norms are capable of penetrating into all corners of family relations, then the scope of action of family law norms is clearly delineated by Art. 2 SK.

To the basic principles family law The IC includes: the need to strengthen the family, build family relationships on feelings of mutual love and respect, mutual assistance and responsibility to the family of all its members, the inadmissibility of arbitrary interference by anyone in family affairs. The exercise by family members of their rights and the performance of their duties should not entail a violation of the rights, freedoms and legitimate interests of other family members and other citizens (Clause 1, Article 7 of the Family Code). Otherwise there will be a clear injustice. Provided by clause 1 of Art. 11 IC possibility of marriage on the day of application, if available special circumstances(a woman’s pregnancy, the birth of a child, etc.) serves as an example of a humane attitude towards the feelings of those who decide to start a family. The same can be said regarding the rules on lowering the marriageable age (Clause 2, Article 13 of the UK). Protects a pregnant woman and her child Art. 17 of the Family Code, which prohibits a husband from initiating proceedings for divorce without the consent of his wife during his wife’s pregnancy and within a year after the birth of the child.

A differentiated approach to the procedure for divorce, depending on the desire (unwillingness) to end family relationships, the presence or absence of joint minor children, various types of disagreements related to the termination of marriage, etc., also meets the requirements of fairness. (Articles 19 – 23 SK). Recognition of marriage as invalid, its legal consequences, provided for in Art. 30 IC, there is a reaction of the state to deception (Article 30 IC). However, for the sake of fairness, the UK singles out conscientious spouse, which should not bear all the burdens of a deliberate violation by one of the parties of the requirements of family law relating to the conditions of marriage (clauses 4, 5 of Article 30 of the Family Code).

Fair ones also include family law norms that give the right to common property to the spouses of those who, during the marriage, ran a household, cared for children, or for other reasons. good reasons did not have independent income (clause 3 of article 34 of the IC). Possession, use and disposal of the common property of the spouses is carried out according to their mutual consent(Clause 1, Article 35 of the Family Code), definition of the principles and conditions for the division of the common property of the spouses as belonging to them on a parity basis (Articles 38, 39 of the Family Code), the possibility of concluding a marriage contract defining property rights and the responsibilities of spouses during marriage or in the event of its dissolution (from 40 SK).

In the area of ​​family relations concerning minor children, there is a legal formalization of norms of a purely moral order, whether we are talking about the child’s right to live and be raised in a family, to know his parents, or about the right to respect for his parents. human dignity, the right to communicate not only with parents, but also with other relatives, as well as the right to protect one’s rights and interests (clause 2 of article 54, clause 2 of article 56 of the SK).

Supporting your minor children, as well as disabled family members in need of help, is not only legal duty parents and other family members. There is one of the varieties of duties of a moral nature, the legal interpretation of which is reflected in the rules dedicated to alimony obligations parents, spouses, ex-spouses, other family members.

The rights and responsibilities of parents, do they affect family education, protection of the rights of the child or responsibility for his spiritual, moral development, are rooted in the field of morality. The stronger the moral foundation of parents’ caring attitude towards their minor children, the more reason to believe that with the fulfillment of both parental rights, so parental responsibilities things are going well. At the same time, the rules established in the UK regarding the exercise of parental rights are also based on the commandment “do no harm” - especially to a child.

Moral standards are also reflected in labor law, primarily in the principles of labor law.

In the chapter III Code labor laws of the Russian Federation enshrine the principles of prohibition of forced labor, freedom of labor, freedom employment contract. Chapter X of the Labor Code covers the right of workers to healthy and safe working conditions. It is very important to secure the right to rest as one of the fundamental human rights (Chapter V of the Labor Code). Workers need to be provided with rest time free from work to restore expended energy, improve their cultural and educational level, and thus ensure comprehensive development personality.

Special meaning have standards on labor protection for women, minors and persons with reduced ability to work.

According to Art. 19 of the Constitution of the Russian Federation, men and women have equal rights and freedom and equal opportunities for their implementation. In order to actually ensure the equality of women of the Labor Code in Ch. XI installs additional special norms for working women, taking into account the physical and physiological characteristics of the female body, social role women in the family and special labor protection in connection with maternity.

In accordance with Article 160 of the Labor Code, it is prohibited to employ women in heavy work and work with hazardous working conditions, and it is prohibited for women to carry and move heavy loads that exceed the maximum standards established for them. The involvement of women in night work is not allowed, with the exception of those sectors of the economy where this is caused by a special need and is permitted as a temporary measure (Article 161).

The rules on labor protection for women in connection with maternity are aimed at establishing easier working conditions, additional benefits and increased guarantees when hiring and firing. Lighter working conditions are expressed in the prohibition of involving women in night work, overtime work (from the date of pregnancy), work on weekends, sending pregnant women and women with children under three years of age on business trips (Article 162 of the Labor Code) , and women with children aged from three to 14 years (disabled children up to 16 years old) cannot be involved in overtime work or sent on business trips without their consent (Article 163 of the Labor Code).

Increased guarantees established for the hiring and dismissal of pregnant women and women with a child under the age of three, and for a single mother - a child under the age of 14 (a disabled child up to 16 years). The dismissal of such women at the initiative of the administration is not allowed.

Moral standards are also contained in provisions regarding the labor of minors. In the interests of labor protection for minors, it is prohibited to use their labor in jobs with hazardous or hazardous conditions labor, for underground works, as well as in work, the performance of which may harm their moral development (in gambling business, night cabarets and clubs, in the production, transportation and trade of alcoholic beverages, tobacco products, narcotic and toxic drugs). The list of such works is approved by the Government of the Russian Federation (Article 175 of the Labor Code). In addition, minors cannot be involved in work performed on a rotational basis and part-time.

First of all, apparently, it should be noted that the very structure of Russian criminal law, as well as criminal law in general, is built on legislative fixation as crimes of those acts that are simultaneously assessed by society as clearly negative, contrary to morality and ethics.

So, it is enough to list some of the provisions of legal norms section VII The Criminal Code of the Russian Federation, which considers crimes against the person, and includes murder, murder by the mother of a newborn child, incitement to suicide, intentional infliction grievous harm health, beatings, torture, threats of murder or infliction of grievous bodily harm, coercion to remove human organs or tissues for transplantation, other acts, to note that each of these acts is perceived by society as contrary to morality and ethics.

Thus, the very content of the legal norms of Russian legislation can be perceived as a refraction of moral and moral views legislators (who, in turn, must carry out the will of the voters, reflecting their moral moral standards), and therefore be entirely perceived as a reflection of the norms of morality and morality.

On the other hand, many general principles underlying the criminal legislation of the Russian Federation are a reflection of moral phenomena.

Thus, in particular, in the current Russian criminal legislation, it is with the use of such moral concepts as justice that the goals and nature of punishment are determined, which are as follows:

1. social and educational responsibility - restoration social justice, carried out both in relation to society as a whole and in relation to the person who suffered as a result crime committed;

2. preventive responsibility - correction of the convicted person, which consists not so much in real re-education, which is practically impossible with existing mechanisms and the conditions of punishment, as much as ensuring that the convicted person does not commit crimes in the future;

3. preventive-educational and punitive-repressive responsibility - prevention of the commission of a crime, divided into a special warning and a general warning and stipulating the fulfillment by punishment of the functions of ensuring conditions that exclude the possibility repeated commission crimes and functions of intimidation, both in relation to persons subject to punishment and in relation to other persons who have not previously committed crimes.

In general, it is convenient to consider the nature of responsibility and options for the prevalence of one of the forms of responsibility using the example of criminal responsibility, which is the most pronounced and grave degree responsibility. Responsibility in the form of punishment in legal practice is reflected in Part 2 of Article 43 of the Criminal Code of the Russian Federation, which states:

“Punishment is applied in order to restore social justice, as well as to correct the convicted person and prevent the commission of new crimes.”

It should be noted that such a goal of criminal punishment as the restoration of social justice was first recorded in Russian criminal law only in the new Criminal Code of the Russian Federation, since the category of justice was defined during the USSR from the point of view of Marxist theory, which reduced it to economic aspects that are not applicable in a wide area criminal law and inconsistency with established norms and views on justice as a moral category in society.

It must be said that a clear concept of justice (and especially the concept of justice fixed legally) in domestic law does not exist, therefore, when considering the restoration of social justice, as one of the expressed goals of punishment, one has to be guided by rather vague formulations describing the concept of justice as ethical category, characterizing the relationship between certain phenomena from the point of view of the distribution of good and evil between people, the relationship between an act and its consequences for the person who committed it (a special case of such a relationship is the relationship between crime and punishment).

At the same time, it should be noted that justice in the legal field can be described as a certain level of correlation between human rights and responsibilities, which makes it possible to consider any violation of law as a violation of justice.

The restoration of social justice by punishing the convicted person is carried out both in relation to society as a whole and in relation to a specific victim who suffered as a result of the crime. convicted crimes. At the same time, the mechanism for restoring social justice in society includes not only economic aspects (for example, partial compensation by the state for damage through a fine, confiscation of property, correctional labor, etc.), but also through socio-psychological aspects, manifested in that citizens are convinced of their ability government agencies to punish the criminal, and the punishment is carried out on the basis of the principles of legality.

However, it should be noted that the question of whether in this case the punitive content of punishment is only a means of achieving the goal of restoring justice, or can be regarded as one of the independent goals in determining punishment, as not fixed in the current Criminal Code of the Russian Federation, but implied with moral point from the point of view of the purpose of punishment - can still be considered not completely closed, since in the legal literature there are different views on this topic (for example, A.V. Naumov and I.I. Karpets expressed directly opposite points of view on this matter).

At the same time, the punishment applied to a person convicted of a crime, in order to comply with the goals specified in Part 2 of Article 43 of the Criminal Code of the Russian Federation, must have a moral and psychological impact on other persons, performing in this case, in addition to the function of restoring social justice, the function of intimidation .

This issue is, in principle, controversial, since the social effectiveness of punishment in terms of its general preventive function is most often assessed relatively low, and the compliance of punishment as a deterrent function with the principles of democracy and humanism (which can also be qualified as moral standards) is ambiguous.

At the same time, it should be noted that the data sociological research held in different time and in different states undoubtedly show that there is a fairly significant group of people who do not commit crimes precisely because they fear criminal punishment, that is, they do not perceive the moral component of legal norms, focusing only on their punitive and deterrent function.

Extremely interesting example reflection of the influence of moral standards in the norms of legislation is the separation of criminal acts from those that are not criminal on moral grounds in conditions where the physical component of the act itself is exactly the same.

In some cases, an act, although it has some formal features of criminality (for example, such an act in other circumstances may be prohibited by criminal law under threat of punishment), cannot be a crime due to the fact that the circumstances under which it was committed are provided for by criminal law, as acts that exclude criminality. At the same time, the reasons why such acts, although similar to crimes, are taken outside the scope of crimes, are, in fact, reasons moral character.

In the current Criminal Code of the Russian Federation, circumstances excluding the criminality of an act are listed in Chapter 8, where six different types of such circumstances are given (in the Criminal Code of the RSFSR, which preceded this Criminal Code, only two types of such circumstances were considered - necessary defense and extreme necessity).

First of all, the circumstance excluding the criminality of an act is, according to Article 37 of the Criminal Code of the Russian Federation, necessary defense:

"1. It is not a crime to cause harm to an attacker in a state of necessary defense, that is, when protecting the personality and rights of the defender or other persons, the legally protected interests of society or the state from a socially dangerous attack, if the limits of necessary defense were not exceeded.

2. All persons have the right to necessary defense equally, regardless of their professional or other special training and official position. This right belongs to a person regardless of the possibility of avoiding a socially dangerous attack or seeking help from other persons or authorities.

3. Deliberate actions that clearly do not correspond to the nature and degree of public danger of the attack are recognized as exceeding the limits of necessary defense.”

Definition of circumstance emergency given in Article 39:

"1. It is not a crime to cause harm to interests protected by criminal law in a state of extreme necessity, that is, to eliminate a danger that directly threatens the person and rights of this person or other lindens, legally protected interests of society or the state, if this danger could not be eliminated by other means and the limits of extreme necessity were not allowed to be exceeded."

Another circumstance excluding the criminality of an act considered by the Criminal Code of the Russian Federation is reasonable risk, a detailed and relatively detailed definition of which is given in Article 41:

"1. It is not a crime to cause harm to interests protected by criminal law at a reasonable risk to achieve a socially useful goal.

2. The risk is recognized as justified if the specified goal could not be achieved by actions (inactions) not related to the risk and the person who allowed the risk took sufficient measures to prevent harm to the interests protected by criminal law.

3. A risk is not considered justified if it was obviously associated with a threat to the lives of many people, with the threat of an environmental disaster or a social disaster."

It should be noted that, due to their socio-legal nature, these circumstances transform the corresponding act, even if it has the formal external features of a crime, into a socially useful one, since the infliction of certain harm is compensated by useful consequences for the individual, society and the state arising from the fact of the commission of this act, and therefore, they are moral from the point of view of society.

Thus, acts that satisfy the moral standards accepted in society, even if they are outwardly similar to crimes, can be recorded as lawful.

Another level of reflection of moral and ethical standards in Russian criminal legislation is the introduction into legal norms of provisions that reflect the positive moral standards of society, for example, such as showing leniency towards separate categories people due to their vulnerability and special life situation. An example of such a provision can be, in particular, Article 81 of the Criminal Code of the Russian Federation, according to which a person can be released from punishment due to illness:

"1. A person who, after committing a crime, has mental disorder, depriving him of the opportunity to realize the actual nature and social danger of his actions (inaction) or to direct them, is exempt from punishment, and the person serving the sentence is exempt from further serving it. The court may impose compulsory medical measures on such persons.

2. A person who, after committing a crime, falls ill with another serious illness that prevents him from serving his sentence, may be released by the court from serving his sentence...”

Since it is obvious that the fact of serious illness (clause 2) does not change the very fact of the commission illegal action and does not serve as a basis for removing responsibility, release from serving a sentence is apparently carried out for reasons of a moral nature, since it contradicts the principles of humanity, which are now perceived as one of the foundations of the entire system of morality and morality.

Finally, another level of reflection of morality and ethical standards in Russian criminal legislation are legal norms that directly reflect prevailing ideas in the field of morality and morality.

In the Criminal Code of the Russian Federation, such norms include those contained in Chapter 25 of the Criminal Code of the Russian Federation (“Crimes against public health and public morality”).

Relatively typical examples Such legal norms, which serve as a reflection of the moral views of society on a given subject, are, for example, Article 242 (“Illegal distribution of pornographic materials or objects”:

“Illegal production for the purpose of distribution or advertising, distribution, advertising of pornographic materials or objects, as well as illegal trade printed publications, film or video materials, images or other items of a pornographic nature - are punishable by a fine in the amount of five hundred to eight hundred minimum sizes wages or in the amount wages or other income of the convicted person for a period of five to eight months or imprisonment for a term of up to two years"), as well as Article 244 (“Desecration of the bodies of the dead and places of their burial”:

"1. Desecration of the bodies of the dead or destruction, damage or desecration of burial places, grave structures or cemetery buildings intended for ceremonies in connection with the burial of the dead or their commemoration, is punishable by a fine in the amount of fifty to one hundred times the minimum wage or in the amount of wages or other income of the convicted person for a period of up to one month, or compulsory work for a period of one hundred twenty to one hundred eighty hours, or correctional labor for a term of up to one year, or arrest for a term of up to three months...").

In this case, legal norms are directly devoted to moral protection moral aspects life of society, which means recognition by society of a possible real danger for its existence as a result of a serious violation of moral standards. It is unlikely that desecration of the bodies of the dead can cause any harm other than moral harm, however, such an act is recorded in the Criminal Code of the Russian Federation as a crime, that is, a socially dangerous act prohibited under threat of punishment. It seems that this situation serves as a good additional illustration of the special role of moral standards in the formation legal system, content legal provisions.

However, although such legal acts seem to be most directly related to the reflection of moral norms in legislation, they still seem to be only a special case when a legal norm prohibits causing harm to public morality in its “pure form” , that is, without correlation with other types of harm caused to society.

Also, moral standards are reflected in a number of federal laws, in particular in the Federal Law “On the status of a deputy of the Federation Council and the status of a deputy State Duma Federal Assembly of the Russian Federation” (Article 9 of this law is devoted to parliamentary ethics), in the Federal Law “On the Fundamentals of the Civil Service of the Russian Federation” (Article 5 – “On the Principles of Civil Service”, Article 10 – “Basic Duties of a Civil Servant”), in the Federal Law “On the Prosecutor’s Office” Russian Federation" (Article 40.1 is devoted to the requirements for persons appointed to the positions of prosecutors and investigators; Article 40.4 refers to the oath of the prosecutor (the text of the oath contains the lines: “I swear... to cherish my professional honor, to be an example of integrity, moral purity, modesty …"), and etc.

Conclusion

In conclusion, it seems necessary to additionally note the main points reflected in this work.

The concepts of “morality” and “morality” are difficult to define and, to a large extent, subjective, since both their content and the understanding themselves depend to a great extent on historical and cultural factors, traditions, as well as on the identification of sources. However, most legal norms ultimately represent the legislative consolidation of positive and negative norms of behavior that have a pronounced moral and ethical scene on the part of society, that is, legal norms can be considered as social and moral norms, in violation which society is not ready to put up with, while violation of moral standards, although it may cause a certain negative attitude of society, in general does not cause unambiguously prohibitive reactions. At the same time, no less important is the aspect concerning law, as the possibility of unambiguously consolidating the positive, from a moral point of view, behavior of an individual in situations where the isolation of such behavior on the basis of general moral principles becomes difficult.

In Russian legislation, moral and moral norms, in addition to their direct reflection in special legal acts, are reflected in the very general content legal norms of Russian legislation, which can be perceived as a refraction of the moral and moral views of legislators (who, in turn, must carry out the will of voters, reflecting their moral standards).

On the other hand, many general principles underlying the criminal legislation of the Russian Federation are also a reflection of moral phenomena.

Concluding the consideration of this topic, it seems necessary to once again emphasize that to consider this question V in full and in all the examples that he gives Russian legislation in this area it is simply not possible, and therefore the work reflects only certain aspects Topics.

List of sources and literature used Regulatory legal acts

1. The Constitution of the Russian Federation, adopted by popular vote on December 12, 1993 // Russian newspaper. 1993. December 25.

2. Code of Labor Laws of the RSFSR of December 9, 1971 // Vedomosti Supreme Council RSFSR. 1971. No. 50. Art. 1007.

3. Law of the Russian Federation “On the Prosecutor’s Office of the Russian Federation” dated January 17, 1992 // Gazette of the Congress of People's Deputies of the Russian Federation and the Supreme Council of the Russian Federation. 1992. No. 8. Art. 366.

4. Law of the Russian Federation “On the status of judges in the Russian Federation” dated June 26, 1992 // Gazette of the Congress of People's Deputies of the Russian Federation and the Supreme Council of the Russian Federation. 1992. No. 30. Art. 1792.

5. Federal Law “On the status of a deputy of the Federation Council and the status of a deputy of the State Duma of the Federal Assembly of the Russian Federation” of May 8, 1994 // SZ RF. 1994. No. 2. Art. 74.

6. Civil Code of the Russian Federation. Part one from October 21, 1994 // SZ RF. 1994. No. 32. Art. 3301.

7. Federal Law “On the Fundamentals of the Civil Service of the Russian Federation” of July 31, 1995

9. Civil Code of the Russian Federation. Part two of December 22, 1995 // SZ RF. 1996. No. 5. Art. 410.

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