Art. 10 of the Civil Code of the Russian Federation with comments. The practice of applying Art. 10 Civil Code of the Russian Federation

Throughout history, people have tried to find the best means of social regulation. Initially, this was violence. It was at the expense of his use of the empire and the kingdom that they coordinated the activities of their subjects. Later it became clear that violence does not provide true control, but only intimidates the society, making it embittered. Thus, this method of regulation has gradually been supplanted by law. The latter has a number of unique advantages. The main thing is the fact that people can realize their own interests without any dictates. Therefore today, law is the main way to regulate social relations in any state.

It should also be noted that the presented institute was so developed that it became necessary to separate it into several elements or branches. One of them is civil law, which regulates the most important relations of human life in the sphere of private life. This industry has a rich history, a sufficiently developed structure and a lot of additional institutions. In addition, in the exercise of their rights in this industry, actors often abuse their competencies. Therefore, it is simply necessary to investigate the concept of "abuse" and its negative impact.

History of the emergence of civil law

Before considering the subject of this article, which is set forth in Art. 10 of the Civil Code of the Russian Federation, it is necessary to get acquainted with the history of the emergence of the civil law branch. Its immediate roots civil law takes from the most ancient and developed part of the Roman - civil law. Initially, this industry was understood as the sphere of law and order of the quirits, that is, the citizens of Rome. In this case, the word "citizens" is understood by people who were born within the walls of the city of Rome. Thus, the civil law regulated relations exclusively between them. Later, Roman law began to develop and enter a new, more professional, if I may say so, level. Therefore civil law has completely entered the private sector, or rather, it has become its basis.

Sources of Roman law

Today, among legal scholars, there are ongoing discussions about the sources of Roman law. In this issue, there are many controversial points. Nevertheless, this fact did not prevent to reveal the most classical sources, namely: customs, practice of magistrates, normative acts of rulers. It should be noted that the split and subsequent defeat of the Roman Empire influenced the right of this state in an absolutely unimaginable way. It did not disappear, but, on the contrary, it developed even more, taking the features of neighboring peoples. The very development of Roman law took place on the basis of receptions and territorial ramifications. One part of the right "went" to Europe with the conquering barbarians, the other - to the East with the help of Byzantium. An important role played by monuments of Roman private law.

Monuments of the Roman industry

Roman private law has evolved and evolved throughout human history through key monuments of the practice of legal practitioners. First, it is necessary to note the code of laws of the XII tables. This peculiar normative act was the starting point for the development of Roman private law. It was in him that the basic principles of this industry were formed. Of course, in addition to the code of laws, there were also all sorts of various codifications and normative acts of private law. However, the most famous was Corpus juris civilus. On the basis of this particular codification, the reception of Roman law was made. The provisions of this normative act are still used in the legal systems of various states.

Civil law: concept

Thus, having analyzed all the above-mentioned stages of historical development of the prototype of civil law (Roman law), one can single out the concept of this branch. In scientific literature, civil scientists argue that civil law is a set of legal norms governing property and directly related to them personal non-property relations. The industry is based on equality of the parties, their property independence and disposability. Civil law is one of the guarantors of the development of normal and stable economic relations in the Russian Federation.

But as already mentioned earlier, civil law, like other industries, has a certain scope of its operation. In simple terms, the sphere of application of the norms of this branch is limited. This principle is most vividly displayed in art. 10 of the Civil Code of the Russian Federation. It should be taken into account the fact that going beyond the limits authorized by law entails a phenomenon called "abuse of law", which in turn has negative consequences.

The concept of abuse of right

Exit the existing framework of civil law provided for art. 10 of the Civil Code of the Russian Federation. Abuse of the law is a legal construction that was known in the times of Ancient Rome. Lawyers of that far time were sure that the implementation of any legal capacity should have its own framework. Any kind of going beyond these limits is "the highest injustice." As to Art. 10 of the Civil Code, it establishes restrictions on the activities of citizens, as well as legal persons, carried out with the purpose of causing harm to other persons. In this case, the prohibition of abuse of the right and its inadmissibility due to the possibility of causing harm is fully manifested. The presented norm is perfectly used in practice, although at first glance its applied nature is practically not visible. Nevertheless, Art. 10 of the Civil Code of the Russian Federation in many situations allows you to observe the principle of reasonableness, justice, disposability, etc.

The question of the application of the norm presented for a long time remained a stop. But Art. 10 of the Civil Code of the Russian Federation with comments to date is increasingly appearing in the editions of scientific and practical additions to the Civil Code of the Russian Federation. Clarification of the provisions of this rule is necessary, in practice, lawyers had an idea of the ways and possibilities of its direct application. It should be noted that understanding this or that article is a scientific field of activity, which practitioners often do not have enough time for. Therefore quite often lawyers incorrectly implement the provisions of Art. 10 of the Civil Code of the Russian Federation, the practice of which is complicated by doctrinal "misunderstandings".

Commentary on the first part of Article 10 of the Civil Code of the Russian Federation

Application art. 10 of the Civil Code of the Russian Federation is based entirely on the fact that civil law is based on the idea of justice and a fair judicial decision. These consequences can exist only if the legality and disposition of legal relations of the civil sector are observed. These factors allow achieving balance and distribution of risks between the parties of public relations of a certain type. However, despite the fact that in the process of exercising their rights, the parties use the principles of autonomy of will, it does not allow them to carry out their activities to the detriment of others. It should be noted that Part 1 of Art. 10 Civil Code includes the following types of manifestation of a negative institution of abuse of law:

- the exercise of rights for the purpose of causing harm to other persons;

- the use of civil rights in order to exclude competition from other persons;

- abuse of dominant position in a particular market;

Thus, the first part of the article shows the very essence of the institution of abuse. It should be noted that in addition to the species presented, there are many other ways of abuse of the law that are periodically used by people to achieve certain goals.

The response of courts to the fact of abuse

It should be noted that in paragraph 2 of Art. 10 of the Civil Code of the Russian Federation, the legislator ensured the proper response of individual courts (courts, arbitration courts, arbitration courts) to the fact of abuse of law. According to this part of the norm, courts refuse to protect the law if facts of abuse have been revealed. In this case, the principle of good faith in the implementation of judicial activities is used. It is on its basis that the courts evaluate the activities of the parties and other persons in the process of resolving certain disputes.

It should also be noted that the jurisprudence in this field has proved not just the reality of the use of art. 10 of the Civil Code of the Russian Federation, but also its effectiveness in the process of protecting violated rights and disputed interests.

Commentary to the third part of Article 10

Before describing paragraph 3 of Art. 10 of the Civil Code, it should be noted that abuse of law can be carried out in many forms. In this case, we are not talking about direct injury to another person. After all, abuse is expressed in the implementation of various actions. Nevertheless, such acts almost always have a property benefit for the person who commits them. However, abuse of the law in all cases has a negative impact on third parties. The problem is only that the legislator can not take into account absolutely all possible forms of abuse, since this is in principle unrealistic. Therefore, paragraph 3 of Art. 10 established the same actions of the courts as paragraph 2. On the other hand, the existence of this item does not correspond in many respects to the principles of fairness and conscientiousness, but this is no longer the topic of this article.

Possibility of third parties to claim compensation

In all cases of abuse, the affected persons have the right to demand compensation for the losses caused to them. However, in order to use this rule, a clear qualification of abuse of the right is necessary, otherwise it will be impossible to relate the fact of the abuse to the existing losses. Of course, paragraph 1 of Art. 10 of the Civil Code gives an approximate list of possible methods of abuse, but this norm does not provide a mechanism for determining this negative phenomenon. In practice, it is difficult to prove not only the very fact of illegal use of norms, but also to link them to the damage caused. Therefore in many cases the realization of compensation is practically impossible, despite the effectiveness of art. 10 of the Civil Code of the Russian Federation. Judicial practice in this matter also does not give a clear answer. In many cases, judges use the provisions of a commentary article with the aim of correctly qualifying certain actions as abuse of law. Also, courts' precedent decisions play a big role, although they are not a source of law in general.

Conscientiousness and reasonableness of actions of the parties in civil law

It is worth noting that paragraph 5 of Art. 10 of the Civil Code shows a presumption of good faith and reasonableness of actions of participants in civil legal relations. In theory, this norm is quite acceptable and understandable, since the main principles of civil law are dispositiveness and autonomy of the will of the participants. However, in the practical sphere, paragraph 5 complicates the identification of facts of abuse of law. In most cases, the parties refer precisely to the conscientiousness and reasonableness of their actions, completely denying the fact of abuse.

Highlights of abuse

Taking into account all the above-mentioned points, as well as comments on all points of Art. 10, it is necessary to say that the abuse of law is the key institution and subject of this article. When analyzing the existing legislation and judicial practice, the following peculiarities of abuse can be distinguished:

1) Abuse of the law can only be the person who directly owns it.

2) The exercise of the right is aimed at causing harm to other persons, which makes the implementation process illegal.

3) One of the consequences of the abuse of the right is the refusal to the person who committed it, in judicial protection.

4) Also the consequence of abuse may be the recognition of the transaction as invalid.

5) Unfair competition is a specific form of abuse.

It should be noted that abuse can take quite a variety of forms. Because the evolution of social intelligence is almost constant. Therefore, the legislator does not fix a strict list of existing and possible forms of this negative phenomenon.

In conclusion, it should be noted that the practice of applying Art. 10 of the Civil Code of the Russian Federation should not be limited only by the legislative norm due to the existing principle of disposability. In addition, the development of theoretical provisions in this field is necessary, because people are inclined to create various methods of breaking the law. Therefore, the author tried to penetrate as deeply as possible the essence of the presented issue with a view to its practical application not only in judicial but also in legal practice. For this, the provisions of Art. 10 of the Civil Code of the Russian Federation with comments.