The general principle of good faith in civil law

The principle of conscientiousness in civil law was fixed by the legislation from 01.02.2013. On that day, relevant amendments to the Civil Code came into force. From that moment, the principle of conscientiousness in Russian civil law acts as one of the most important guidelines for the behavior of subjects. Key provisions are set in article 1, paragraphs 3, 4. Let us further consider how the principle of conscientiousness operates in Russian civil law (briefly).

Characteristic

The principle of good faith in civil law is a requirement, according to which it is not allowed to derive an advantage from one's conduct if it violates the interests of other entities. 10 amendments were partially made to the amendments adopted by the Civil Code. The new edition significantly specifies the limits of the implementation of civil rights. At the same time, the forbidden actions were extended to circumvent normative provisions, regarded as the highest form of abuse of legal capacity. The updated norms correspond with the requirement set forth in Article 1 of the Code.

Identity of positions

Considering the content of the principles of good faith in civil law in correspondence with the requirement of the inadmissibility of the abuse of legal possibilities, it is necessary to answer a number of questions. This need is associated with some ambiguity in the practical application of norms. In particular, the principle of good faith in civil law is enshrined in Art. 1 of the Code. This fact speaks of the "seniority" of the norm. At the same time, the reference to paragraph 1 of Article 10 of the Civil Code indicates the equality of the principles of the inadmissibility of abuse and conscientiousness. In this regard, it is necessary to find out whether the first rule is included in the second. If the answer is positive, then at the next stage it is important to understand how far the requirement of inadmissibility of abuse in the principle of good faith in civil law is included. Briefly, the first rule can act as the back of the second in this case. It is also necessary to find out whether the position of art. 1 private rule, proceeding from the requirement of inadmissibility of abuse. The emergence of this issue is due to the fact that the norms of Art. 10 were introduced before the principle of good faith in civil law. Judicial practice, developed in the application of the requirement of inadmissibility of abuses, at the same time became the basis for using the provisions of Art. 1 GK. Finally, it should be determined whether these categories are relevant to different legal institutions.

Explained

The requirement of inadmissibility of abuses and the principle of good faith in civil law primarily determine the essence and reflect the direction of development of the entire system of norms of the Civil Code. They ensure the strengthening of the unity of the provisions and relations regulated by them. In fact, they act as internal laws for the use and improvement of civil law matter. Moreover, these categories assume the functions of reserve rules, educating the subjects of the legal culture of interaction. And the requirement of inadmissibility of abuse, and the principle of good faith in civil law stem from the quality of equilibrium. It indicates the equality of all participants in the relationship. This model reflects the focus of the legal system on equivalence, proportionality, fairness when using subjects of their capabilities and responsibilities. With this, of course, the principle of reasonableness and conscientiousness is consistent. In civil law, legal equality manifests itself not only in the form of independence, freedom of will and contract, inviolability of property. It is expressed primarily in the coordination of behavior in accordance with the interests of equal subjects.

General principles of good faith in civil law

From the equilibrium comes three positions. These include the principles of justice, discretion and conscientiousness. Each of them includes the relevant elements. For example, in principle, equity is:

1. A combination of public and private interest.
2. Restorative nature of law.
3. Protection as ensuring the restoration of violated interests.

Disposability suggests:

1. Freedom of contract.
2. Inviolability of property.
3. Inadmissibility of unjustified interference in private and public affairs.
4. The need to implement legal possibilities without any obstacles.
5. Initiative and independence.

The implementation of the principle of good faith in civil law is based on the normative establishment, implementation, protection of legal capacity, proper performance of duties, as well as the prohibition on extracting any advantages from conflicting prescriptions of conduct. Thus, its key task is the establishment of boundaries of disposability.

Hierarchy of norms

The principle of good faith in civil law works under conditions of legal uncertainty. Similarly, the requirement of inadmissibility of abuse of opportunity. Meanwhile, according to a number of authors, Art. 10 GK is located on the upper hierarchical level. This position is due to the fact that this provision ensures the suppression of the anti-system application of legal provisions. In its interpretation, the authors are based on common philosophical categories, among which there is the principle of reasonableness and conscientiousness. In civil law, abuse, like inappropriate actions, is a form of implementation, the use of norms. Although their character is outwardly legal, but inherently ineffective, they are inadmissible.

Spreading norms on responsibilities

The principle of good faith in modern civil law does not only apply to legal opportunities. In the provisions of articles 1 and 10 of the Civil Code there is a prohibition on abuse of duties. In this case, the integrity of civil law is violated by the subject's failure to fulfill the established system requirement. It consists in not using its legal capabilities to harm other participants in the turnover. This duty relates directly to the bearer of law. It is aimed at restraining the egoistic intentions of the subject.

Explanations

The demand directed at the actions of another person forms the essence of individual duties. They, inseparably linked with subjective rights, constitute an element of legal relationship. In the definition of duty, there is an indication that it is a measure and a kind of proper behavior. This model is prescribed to the person by a contract or legal norm. In this case, the term "species" refers to the qualitative characteristics of behavioral acts, their content and form, "measure", in turn, defines certain limits within which the subject must perform any actions in favor of another participant in the relationship. These boundaries can be spatial, temporal, and so on. In this case, even in the narrowest framework, there is always the possibility of the subject to perform the duty assigned to him in a certain way, at any time, in this or that place or under specific conditions. The principle of good faith in civil law provides for the requirement to take appropriate actions. In their duties, in turn, there is a legal opportunity to comply with the requirements. It is this "micro-right" that can act as a means of improper conduct. In its essence, it will not differ in this case from the "traditional" abuse of law.

Inadequate use of advocacy

There are many areas that are concerned with the principle of good faith. In the civil law of Russia various ways of protection of interests are provided. They are given in Article 12 of the Civil Code. The abuse of the opportunity to exercise protection is today considered to be one of the most widespread and at the same time the most complex forms of improper conduct. It refers to the sphere to which the principle of conscientiousness applies. In the civil law of Russia, the subject's ability to appeal to the competent authorities has been established. Often, the creditor who filed the claims receives a counter claim from the debtor. The latter seeks to delay the proceedings or at all escape responsibility. For example, when presenting monetary claims, the debtor (defendant) sends a claim for recognizing the agreement, on which he received and has already used the goods, invalid. An unfair applicant in this case has already accepted performance under the contract, but only for one known reason does he not want to make a counter-presentation. The subject, thus, seeks to gain time, taking advantage of other people's property. He can try to persuade a counterparty to conclude an amicable agreement, return compensation instead of a disputed object without payment of a penalty, and so on.

Special cases

Some subjects abuse the right to defense using the very 10 article of the Civil Code. Theoretically, with the help of this rule, any subjective legal possibility can be annulled. Thus the interested person can declare, that the carrier of the right leaves beyond the limits established by the law. In this situation, there will be a formalism of norms in the highest form. However, it must be overcome with the help of systemic civil law mechanisms that do not allow the dominance of legal matter over its content, and in particular - with the use of art. 1 Civil Code of the principle of good faith.

Specificity of action and inaction

The principle of conscientiousness in civil law limits the behavioral acts of subjects to a certain scope. At the same time, there is no clear understanding of how the mechanism of prohibition of actions and omissions acts separately. In particular, it is not entirely clear whether the latter is a form of abuse or it refers to a different pattern of good faith behavior. In science, inaction, as a rule, is considered as a way of exercising a legal opportunity, if it is fixed in such status by a treaty or norms. Directly within the framework of relations such a right arises, if there are prerequisites for:

1. Non-receipt of property.
2. Non-provision of material values.
3. Non-accomplishment of personal actions not related to the transfer / receipt of property.

Similarly, the possibility of inaction appears when there is a legal obligation:

1. Do not receive property.
2. Do not provide material values.
3. Do not take actions that do not involve obtaining / transferring property.

From the above, it follows that inaction can occur in six conditional forms. The ability to use them, as well as the duty, can be used by subjects improperly. Accordingly, inaction in its various forms should be subject to the principle of bad faith. In civil law, it is often included in the structure of the concept of "action".

Limits of legal possibilities

Art. 10 of the Code defines the boundaries of the exercise of rights. The rule prohibits specific - abusive behavior. In contrast to this, the principle of conscientiousness is somewhat "blurred". In Art. 10 provides for a special restrictor of their own discretion when using their legal capabilities. In particular, the norm does not allow actions of citizens committed solely with the intention to harm other people, bypassing the established regulations. It is prohibited to use legal opportunities to restrict competition, abuse of dominant positions in the market. Here it should be noted some complexity of the application of restrictions. It consists in the fact that the ban itself is derived from the initial civil law principles. However, along with this, it acts not as the nearest, but as a separate basis, with which it is necessary to be considered to prevent a systemic contradiction between the normative position and its base.

An Important Moment

It is necessary to pay attention that in principle of good faith there is no indication of intentionality of actions. In this case, it is present in art. 10. In the subjective sense, the use of the right "for evil" indicates some kind of reproach of the person. Accidental harm in the exercise of their legal capabilities should be considered in the order of tort obligations. With intentional circumvention of claims and in some other form of abuse, persons are considered to be intentional and must be proven. In other words, responsibility for the subject comes only for the results of actions that were present in his intent. For all that is added to the consequences from outside, it can not be punished. The guilt of the offender at the same time is given as the formed motive, with the chosen means, but, in fact, until the end of the unintelligible motive. It, in the opinion of lawmakers, acts as an integral component of the offense and constitutes a subjective part of the abuse. The perpetrator abolishes for himself the personally accepted meaning of the existing legal prescriptions, covering them, masking in each individual case his own interpretation. Guided by selfish intent, the subject ignores the compulsion of norms.

Recognition of bad faith

This process, in fact, means assessing the behavior of a person as improper. Meanwhile, punishment for unlawfulness in terms of dishonesty is not applied. Responsibility involves milder sanctions. For example, it may be the blocking of the emergence of duties and rights (Article 157), the provision of property in property (Articles 220 and 302), compensation for harm (Article 1103), income reimbursement (Article 303), restitution and so on. The sanctions referred to concern the willful or negligent exercise by a person of his legal capabilities.

Conclusion

The scope of the principle of good faith can be determined by the method of exclusion. In particular, it regulates not only situations in which abuse takes place, but also in which it is absent. In addition, the principle of good faith extends to cases where the provisions of Art. 10 in their content can not cope with the incident. One such situation, for example, is given in Article 6 of the Code. It provides for the use of principles of good faith in the analogy of norms. Also the provisions of Art. 1 can be used in cases where Art. 10 itself becomes an instrument of abuse. In this case, the principle of good faith in such situations should be used in conjunction with industry-wide provisions of civil law.