The principle of good faith in civil law has been enshrined in law since February 1, 2013. On that day, the relevant amendments to the Civil Code entered into force. From this moment on, the principle of good faith in Russian civil law acts as one of the most important guidelines for the behavior of entities. The key provisions are established in article 1, paragraphs 3, 4. Let us further consider how the principle of good faith in Russian civil law works (briefly).
Characteristic
The principle of good faith in civil law is a requirement in accordance with which it is not allowed to take advantage of one's behavior if it violates the interests of other entities. The amendments adopted by the Civil Code partially updated article 10. In the new edition, the limits on the realization of civil rights are substantially specified. At the same time, the prohibitions were expanded to circumvent regulatory provisions, regarded as the highest form of abuse of legal capacity. The updated standards correspond to the requirement enshrined in Article 1 of the Code.
Identity Provisions
Considering the content of the principles of good faith in civil law in correspondence with the requirement of inadmissibility of abuse of legal opportunities, a number of questions should be answered. This need is associated with some ambiguities in the practical application of the norms. In particular, the principle of good faith in civil law is enshrined in Art. 1 Code. This fact indicates the "seniority" of the norm. At the same time, the reference to Clause 1 10 of the Civil Code indicates the equality of the principles of inadmissibility of abuse and good faith. In this regard, it is necessary to find out whether the first norm is included in the second. If the answer is yes, then at the next stage it is important to understand how deeply the requirement of inadmissibility of abuse is included in the principle of good faith in civil law. In short, the first norm may be the other side of the second in this case. It is also necessary to find out whether the provision of Art. 1 a private rule based on the requirement of non-abuse. The emergence of this issue is due to the fact that the norms of Art. 10 were put into effect earlier than the principle of good faith in civil law. Judicial practice that has developed in the application of the requirement of inadmissibility of abuse, while this became the basis for the use of the provisions of Article 1 GK. And finally, it should be determined whether these categories belong to different legal institutions?
Explanation
The requirement of inadmissibility of abuse and the principle of good faith in civil law primarily determine the essence and reflect the directions of development of the entire system of civil code norms. 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, fostering a legal culture of interaction among subjects. Both the requirement of inadmissibility of abuse and the principle of good faith in civil law derive 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, justice when subjects use their capabilities and fulfill their responsibilities. With this, of course, consistent with the principle of reasonableness and integrity. In civil law, legal equality is manifested not only in the form of independence, free 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
Three positions come from equilibrium. These include the principles of justice, dispositiveness and good faith. Each of them includes corresponding elements. For example, in principle of justice are concluded:
- The combination of public and private interest.
- The restorative nature of law.
- Protection as ensuring the restoration of violated interests.
Dispositivity involves:
- Freedom of contract.
- Inviolability of the property.
- Inadmissibility of unjustified interference in private and public affairs.
- The need for legal opportunities without any obstacles.
- Initiative and independence.
The implementation of the principle of good faith in civil law is based on the normative establishment, implementation, protection of legal opportunities, proper performance of duties, as well as a ban on deriving any benefits from behavior that is contrary to the requirements. Thus, his key task is to establish the boundaries of dispositiveness.
Hierarchy of norms
The principle of good faith in civil law works in conditions of legal uncertainty. Similarly, the requirement of non-abuse of opportunities applies. Meanwhile, according to some authors, Art. 10 HA is located on the upper hierarchical level. This position is due to the fact that this norm ensures the suppression of the anti-systemic application of legal provisions. In its interpretation, the authors are based on widespread philosophical categories, among which there is the principle of rationality and integrity. In civil law, abuse, like improper actions, is a form of implementation, use of norms. Although their character is externally legal, but in their internal essence they are invalid, unacceptable.
Extension of norms to duties
The principle of good faith in modern civil law does not only apply to legal possibilities. The provisions of Articles 1 and 10 of the Civil Code prohibit the abuse of duties. In this case, the integrity of civil law is violated by the failure of the subject to comply with the established system requirements. It consists in not using its legal capabilities to harm the rest of the participants in the turnover. This obligation relates directly to the holder of the right. It is aimed at restraining the egoistic intentions of the subject.
Explanations
A requirement aimed at the actions of another person forms the essence of individual duties. They, inextricably linked with subjective rights, constitute an element of legal relationship. In the definition of obligation there is an indication that it represents a measure and a form of proper behavior. This model is prescribed to the person by the contract or legal norm. In this case, the term “view” indicates a qualitative characteristic of behavioral acts, their content and form, “measure”, in turn, determines 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. Moreover, even within the narrowest framework, there is always the possibility of the subject to fulfill the obligation assigned to him in a certain way, at any time, in one place or another or under specific conditions. The principle of good faith in civil law provides for the requirement to take appropriate action. The duty, in turn, has a legal opportunity to comply with the requirements. It is this "micro-law" that can act as a means of inappropriate behavior. At its core, it will not be any different in this case from the "traditional" abuse of law.
Misuse of advocacy
There are many areas that concern the principle of good faith. Russian civil law provides for different ways of protecting interests. They are given in article 12 of the Civil Code. Abuse of the ability to exercise protection is considered today one of the most common and at the same time the most complex forms of inappropriate behavior. It refers to the field covered by the principle of good faith. The civil law of Russia establishes the possibility of the subject to file a claim with the competent authorities. Often, the creditor who filed the claim receives a counterclaim from the debtor. The latter seeks to delay the process of the proceedings or to evade liability altogether. For example, upon presentation of monetary claims, the debtor (defendant) sends a claim for recognition of the agreement by which he received and has already used the goods, invalid. The unscrupulous applicant in this case has already accepted performance under the contract, but does not want to do a counter-presentation only for him alone. The subject, therefore, seeks to gain time while using other people's property. He may try to convince the counterparty to conclude an amicable agreement, return compensation instead of the disputed object without paying a penalty, and so on.
Special cases
Some entities abuse the right to protection using article 10 of the Civil Code itself. Theoretically, with the help of this rule, any subjective legal opportunity can be canceled. In this case, the person concerned may declare that the holder of the right goes beyond the statutory framework. In such a situation, formalism of norms in a higher form will take place. However, it is necessary to overcome it 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 CC of the principle of good faith.
The specifics of action and inaction
The principle of good faith in civil law limits the behavioral acts of subjects to a certain framework. However, there is no clear understanding of how the mechanism of prohibition of actions and inaction separately acts. In particular, it is not entirely clear whether the latter is a form of abuse or whether it refers to a different structure of good faith. In science, inaction, as a rule, is considered as a way to implement a legal opportunity, if it is fixed in such a status by an agreement or norms. Directly within the framework of relations, such a right arises if there are prerequisites for:
- Non-receipt of property.
- Failure to provide material values.
- Failure to perform personal actions not related to the transfer / receipt of property.
Similarly, the possibility of inaction arises when a legal obligation is present:
- Do not receive property.
- Do not provide material values.
- Do not perform actions not related to the receipt / transfer of property.
From the above it follows that inaction can be carried out in six conventional forms. The ability to use them, as well as the obligation, can be used by subjects inappropriately. Accordingly, the principle of dishonesty should extend to inaction in its various forms. In civil law, it is often included in the structure of the concept of "action".
Limits of Legal Opportunity
Art. 10 of the Code defines the boundaries for the exercise of rights. The norm prohibits specific - abusive behavior. In contrast, the principle of good faith appears to be somewhat "blurred." In Art. 10 provides for a special limiter of the subjects' own discretion when they use their legal capabilities. In particular, the norm does not allow actions of citizens committed solely with the intention of harming other people, bypassing the established requirements. It is forbidden to use legal opportunities to limit competition, abuse of dominant market positions. It should be noted here some difficulty in applying the restrictions. It lies in the fact that the prohibition itself follows from the original civil principles. However, at the same time, it does not appear as the nearest, but as a separate basis, which must be reckoned with in order to prevent a systemic contradiction between the normative position and its base.
Important point
It must be noted that in principle of good faith there is no indication of intentionality of actions. Moreover, it is present in Art. 10. In a subjective way, the use of the right "for evil" indicates a certain fault of the person. Accidental harm in the exercise of their legal capabilities should be considered in the order of tort obligations. In case of deliberate circumvention of claims and in another other form of abuse, the actions of a person are considered as intentional and must be proved. In other words, the responsibility for the subject comes only for those results of actions that were present in his intent. For everything that has been added to the consequences from without, it cannot be punished. At the same time, the fault of the offender is cited as being formed, with the chosen means, but, in fact, to the end of the unconscious motive of intention. It, according to the rulemakers, acts as an integral component of the offense and forms the subjective part of the abuse. The guilty person cancels for himself the personally accepted value of the existing legal requirements, covering them, masking in each individual case his own interpretation. Guided by a selfish intention, the subject ignores the binding norms.
Recognition of dishonesty
This process, in essence, means evaluating a person’s behavior as inappropriate. Meanwhile, punishment is not applied for illegality in terms of dishonesty. Responsibility implies more lenient sanctions. For example, it can be blocking the occurrence of duties and rights (Article 157), the provision of a thing into property (Articles 220 and 302), compensation for harm (Articles 1103), reimbursement of income (Articles 303), restitution and so on. These sanctions relate to the intentional or imprudent exercise by a person of his legal capabilities.
Conclusion
The scope of the good faith principle can be determined by exclusion. In particular, it regulates not only situations in which abuse occurs, but also in which it is absent. In addition, the principle of good faith applies 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 the principles of good faith with the analogy of norms. Also, the provisions of Art. 1 may be applied in cases when Art. 10 itself becomes an instrument of abuse. Moreover, the principle of good faith in such situations should be used in conjunction with industry-wide provisions of civil law.