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Реферат: The transactions in civil law
The transactions in civil law
Introduction
1.The concept and characteristics of the transaction
2.Classification of transactions
3. The conditions of validity of transactions
Conclusion
Bibliography
Civil law - a system of rules governing social relations in the field of civilian traffic.
Through the transactions carried out by the regulatory process of property relations in society: citizens enjoy the services of consumer services, retail trade, transport, dispose of their property. Different organizations will enter into a relationship to the supply of goods, construction, transport of goods, procurement of necessary materials, etc. Citizens and legal persons that perform a variety of actions, which arise as a result, modified and terminated the rights and responsibilities.
Civil law is the regulation of commodity-money relations and other participants who are equal, separate and independent from each other. The primary legal tool string and determine the content of the relations between these actors is the deal. The relevance is that the deal - the legal means by which the socially and economically equal and independent actors establish their rights and responsibilities, ie legal limits of freedom of behavior.
Transactions play in public life, multifaceted role. Therefore, the principle of civil law, admissibility of - validity of any transaction not prohibited by law, ie triggered the principle of freedom of transactions.
The purpose of the work - to the notion of a transaction, to show its importance at the present stage of development of our country, consider the types of transactions and their powers, as well as to consider the grounds voidability transactions.
To achieve the goal, we use the following tasks:
1. Search and explore the relevant topic literature;
2. Give the notion of transactions in civil law;
3. Consider the types and conditions for the validity of transactions;
4. Expand the general conditions of the invalidity of transactions and the consequences of recognition of the transaction null and void;
5. Explore the grounds negligibility (absolute invalidity) and the grounds voidability (relative invalidity) transactions.
When you write a paper used in various research and normitivnaya literature. References such authors as Vitryansky V., Kheifets FS, Tomilin AF and many others.
1.The concept and characteristics of the transaction
Legal definition of the transaction is provided in article 153 of the Civil Code Civil Code of the Russian Federation.
Transactions recognized actions of citizens and legal persons to establish, change or termination of the civil rights and obligations». And in this article does not indicate that the subjects of transactions can not be foreign nationals, stateless persons or entities. Analyzing the legal definition of a transaction, it can highlight the following signs:
· The deal - it is always a volitional act, that is, effect of an entity.
· The transaction is always specially designed to achieve a certain legal purposes, ie the emergence, change or termination of civil legal relations.
· The deal - it is lawful act.
Trades always are a willed act. They are committed to the will of the participants of civil turnover, and are acts of conscious, purposeful, strong-willed action by natural and legal persons who have committed that they seek to achieve certain legal effects. The essence of the transaction will constitute the inner and the will of the parties. [1]
Inside the will can be defined as the intent of a person to produce certain legal rights and responsibilities. However, the internal will to commit the transaction is not enough, it is necessary to bring the attention of others. The ways in which the interior will be expressed outside, called the will. The mere expression of will, in turn, is divided into 3 groups:
Direct - committed, either orally or in writing.
Indirect (conclusive) - from the person who wants to commit the transaction, such actions come from the contents of which show his intent to commit the transaction. A feature of this mode of expression is that it can be done only for transactions that may be committed verbally (p.2 st.158 CC).
Through the silence - is allowed only in cases directly provided for by law or by agreement of the parties. The parties may agree that the silence of both parties to the contract after its expiry date means the extension of the treaty.
In order to deal critically important to full compliance with the will and the will, otherwise the transaction may lead to disputes between the parties.
To understand the essence of the transaction also needs to understand the term base transaction. This term refers to a legal result to be achieved execution of the transaction. That is reason the transaction - this is what it is.
Motive - another element of mental attitudes to the committed actions, which may be relevant to the transaction. As a general rule, the reason for which is the transaction, its purpose, has no effect on its validity. However, the legislation provides for some exceptions to this general rule: st.169 CC contains the definition of invalid transactions, done with a view, obviously opposing the rule of law and morality. That is, the transaction will be void.[2]
2. Classification of transactions
Classification of transactions on the various types can be made on different grounds.
Depending on the number of parties involved in the transaction (art. 154 CC) transactions can be unilateral, bilateral and multilateral. The basis for this division put the number of expression of the will which is necessary and sufficient for the transaction. If you start from the principle of recovery (Art. 423 CC), the transaction can be divided into compensatory (where a party must receive a fee or other compensation for the performance of their duties under the contract) and grants (where a party to the treaty undertakes to perform its duties without any a counterclaim of having property) Pilyaeva VV Comments to the Civil Code of the Russian Federation (itemized). Part 1 and 2. - M.: PBOYUL Grigoryan, AF, 2006.
. Based on the time in which the occurrence of a transaction in conjunction, the latter can be divided into real (which occur if and when the transfer of things, the time of the conclusion of the real deals are always coincides with the moment of their execution), and consensual (ie transactions for the commission which enough to reach agreement on the commission of the parties). As the value of the deal for reasons of their validity distinguish causal (for which the authority is mandatory) and abstract (reason of such transactions is legally indifferent). Transactions can also be divided on the basis of their urgency: urgent - a transaction in which the specified time of their entry into force, the time of termination of the time, or both together; undated - a transaction which does not specify any time of their entry into force, nor the time of termination. Transactions can also be categorized according to offensive or not certain events: the conditional (that is concluded after a certain event) and unconditional (in which there is no indication any of the events).
In theory, civil law, there are other classifications of transactions on various grounds, but this work and its subject matter does not allow more than dwell on this issue.[3]
3. The conditions of validity of transactions
The validity of the transaction is recognized for it as a legal fact, creating a legal result sought by the subjects of the transaction. The validity of the transaction is determined by the law through the following system of civil law.
The legality of the deal means its compliance with the requirements of the legislation. The contents of the transaction must comply with the requirements of the Civil Code, adopted in accordance with federal laws, decrees of the President of the Russian Federation and other legal acts adopted in accordance with established procedure. In cases of conflict between the rules contained in the above-mentioned legal acts, the legality of the transaction shall be determined taking into account the hierarchical subordination of the legal acts established by Art. 3 CC. The legality of the transaction suggests that it corresponds not only to civil law, but his principles.
In addressing the question of the legality of the transaction should be kept in mind that modern civil legislation of the Russian Federation allows for a comparison of law and analogy of law (Article 6 of the Civil Code). Legal action recognized transactions similar law, give rise to civil and legal consequences because their content did not contradict the essence of civil legislation regulating similar relations. Legal action recognized transactions similar law, subject to legal protection because of their content corresponds to the beginning and the meaning of the general civil law, the requirements of good faith, reasonableness and fairness. In other words, the substance of transactions, recognized as such similar law or similar law is also legal, as authorized by the general rules of civil law.
Since the deal - strong-willed action, it can only commit capable citizens. Those with partial or limited capacity, is free to perform only those transactions that are permitted by law. Legal persons of the total capacity, can perform any transaction not prohibited by law. Legal persons of special legal standing, can perform any transaction not prohibited by law, except contrary to the statutory objectives of their activities. Certain types of transactions can be committed by legal entities with a special permit (license).
Will the legal entity under the deal is his body. At the same time as a general rule the legal consequences arising from the legal person, if the agency acted within the powers granted him under the law, other legal acts. Some exceptions to this rule are provided for by law, such as norms Art. 173, 174 Civil Code. (This is more detail, see § 4 of this chapter.)
The validity of the transaction involves a convergence of will and expression. The discrepancy between the real wishes and intentions of persons outside of their expression is the basis of recognition transaction void. It should be borne in mind that before a court of this mismatch detection is a presumption of convergence will and expression. The discrepancy between the will and wishes of the subject may be the result of errors or significant misconceptions about the subject and the conditions of the transaction. [4]
From the inconsistency of will and expression should be distinguished cases of defect of will. In marked cases will coincide with the subject will, but the content will not reflect the true wishes and aspirations of the subject, as it emerged he had under the influence of fraud, violence, threats, a combination difficult circumstances or distorted as a result of malicious entity representative agreement with another party. Bad (defects) will also constitute grounds for the recognition of the invalidity of transactions.
The transaction gives rise to rights and duties, subject to the required shape. Transactions can be committed either orally, in writing (simple or notarial), through conclusive acts, silence (inaction).
The law (Clause 3, Article. 159 Civil Code) provides for the use of transactions made, either orally, in pursuance of a contract concluded in writing if it is not contrary to law, other legal acts and the treaty. This occurs when, in accordance with a written contract for the supply throughout the year will be holiday goods to the extent of the needs of the buyer on the basis of his oral application.
Execution of transactions made orally, may be accompanied by the issuance of the document certifying their performance (cash receipts, certificates of purchase of commodity-material values, etc.) as well as issuing legitimatsionnyh signs (номерков, tokens, etc.). But this does not alter the substance orally.
The transaction, which can be taken orally, may also occur through a conclusive action (Clause 2, Article. 158 CC). Conclusive action (from Lat. Sonchjdere - to) - the behavior by which a person is found to engage in a transaction. Thus, descending into the machine money, a person has manifested a will to purchase the goods contained in the machine.
Silence may be pravoobrazuyuschuyu force if the law or by agreement of the parties it is attached to the property. Only in these cases, silence indicates terms will give rise to the subject or prevent the legal implications. For example, if a tenant continues to use the property after the expiry of the contract in the absence of objection by the landlord, the contract shall be renewed under the same conditions for an indefinite period. This example is interesting and the fact that the will of the landlord to continue the lease relationship is expressed by silence, as tenant at will is expressed through conclusive action (a continuation of the use of rented property).
Writing allows the most appropriate, document the will of the subjects of the transaction and thus provide evidence of the actual focus of their intentions. Under the agreement, actors can take in writing any transaction, even though by law, this form and not necessarily for her.
Easy writing for transactions required to lawmakers in two ways.
The first method is implemented establishing rules that should be made in simple written form, with the exception of transactions requiring notarial certification:
a) the transaction entities among themselves and with citizens;
b) a transaction between a citizen in an amount not less than ten times the statutory minimum wage.
Because this rule makes an exception for transactions that can occur orally, regardless of subject and the amount of the transaction (art. 159 CC).
The second way is sold direct by law the need for a simple writing of a transaction, regardless of its subject and the amount of the transaction. For example, directly by law for such transactions as contracts for commercial representation, mortgage, guarantee, deposit, purchase and sale of real estate, bank loan, etc., in all cases as a simple written form.[5]
Invalidity transaction means that the act committed in a transaction, does not possess the quality of legal fact that can give rise to those civil and legal consequences, of which the desired entities.
The latest Russian civil law as the legal definition enshrined in the legal literature, the prevailing division of invalid transactions in the null and voidable.
However, the classification of invalid transactions in the null and voidable logically vulnerable. «The juxtaposition of void transactions rebuttable transactions does not lie as a matter of principle: if the challenge is carried out, it leads to a« negligibility »transaction, while not challenging since, as a general rule, the date of the transaction, ie with retroactive effect », - wrote a prominent Russian civilian IB Novitskiy. In order to avoid logical errors observed in the course work was offered for the classification of invalid transactions are invalid (negligible) and on invalid (voidable). The proposed classification is more correct, because it is based on objective criteria, namely varying degrees of illegal acts committed in the form of invalid transactions. However, this classification allows the use of the term «negligibility» as the term is identical «absolute nullity», and the term «voidability» - as the identity term «relative validity».
Nullity (absolute invalidity) of the transaction means that the act committed in a transaction does not raise and could not produce desired for its participants because of the legal consequences of non-compliance with law. Buying stolen goods, purchase of valuable things from the incompetent can not give rise to ownership of the acquirer; notarially not certified mortgage may not give rise to rights of mortgagee, etc. Void transaction, as a wrongful act gives rise to only those consequences which the law in this case as a reaction to the offense. The requirement for the application of the consequences of the invalidity of the transaction null and void may be any interested person. The court is entitled to apply such effects on their own initiative (p. 1 art. 166 CC).
The general rule of nullity of transactions is formulated as follows. The deal is not meeting the requirements of law or other legal acts, negligible, if the law does not establish that the transaction is rebuttable, or no other consequences of a breach (Art. 168 CC). The existence of the law of the general rule is objectively necessary. Despite the fact that the legislature always seeks the most complete way to describe the specific types (compositions) negligible transaction, objectively, he can not anticipate all types and possible cases of negligible transactions. Therefore, a direct reference to the above general rule, enshrined in Art. 168 CC, should take place only in cases where the recognition as invalid the transaction is not void a special reason. [6]
Wrongfulness of an absolute majority of acts performed in a negligible transactions, it is obvious, as in the case of a transaction with a citizen recognized incompetent because of mental disorder. Therefore, the functions of the court in such cases are required by law to use the consequences of the invalidity of transactions.
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2. Civil law. / Ed. AG Калпина, AI Масляева. - M., 2004, Part 1, 2.
3. Civil law in Russia. / Ed. ZI Tsybulenko. - M., 2004, Part 1, 2.
4. Pilyaeva VV Comments to the Civil Code of the Russian Federation (itemized). Part 1 and 2. - M.: PBOYUL Grigoryan, AF, 2006.
5. Tomilin AF Null and voidable transactions. 2 nd ed., M.: mirror, 2002.
6. Heifets FS Invalidity of transactions under Russian civil law. - M., 2007
[1] Civil law. In 3 volumes. 4-e izd. / Ed. AP Sergeyeva and JK Tolstoy, pereizd. - M.: 2006, Vol.1 ..
[2] Civil law. In 3 volumes. 4-e izd. / Ed. AP Sergeyeva and JK Tolstoy, pereizd. - M.: 2006, Vol.1 ..
[3] Civil law. In 3 volumes. 4-e izd. / Ed. AP Sergeyeva and JK Tolstoy, pereizd. - M.: 2006, Vol.1 ..
[4] Civil law. In 3 volumes. 4-e izd. / Ed. AP Sergeyeva and JK Tolstoy, pereizd. - M.: 2006, Vol.1 ..
[5] Civil law. In 3 volumes. 4-e izd. / Ed. AP Sergeyeva and JK Tolstoy, pereizd. - M.: 2006, Vol.1 ..
[6] Civil law. In 3 volumes. 4-e izd. / Ed. AP Sergeyeva and JK Tolstoy, pereizd. - M.: 2006, Vol.1 ..