How to terminate a public contract unilaterally. Grounds and procedure for termination of the contract
When regulating relations regarding unilateral termination, it was taken into account legal status participants.
Termination of a public contract unilaterally
Despite the identity legal consequences termination of the contract and refusal to fulfill the obligation that arose from, the grounds and procedure for committing necessary actions are different.Differences in the legal regulation of the basis and procedure for termination and refusal to fulfill an obligation lead to the fact that: a party that is mistaken in the interpretation of the terms of the contract or the rules of the law will choose the wrong path for its actions, including choosing the wrong method of protecting civil rights.
Termination of an agreement
But still, for all contracts there are general rules on termination.Cases of termination by agreement of the parties are dispositive in nature: that is, these agreements of the parties on various changes themselves can come into force at any time agreed upon by the parties.
Termination of the contract by mutual consent will not be considered in this article, because
its design and legal basis carrying out does not usually cause major problems.
22 Almost the only possibility of regulating changes and termination of a public contract for a commercial organization is the lack of a real opportunity to fulfill its obligations, also if a significant change in circumstances occurs, i.e. the public nature of the contract does not prevent the possibility of its termination.
23 In some cases, to regulate special contractual relations the legislator may grant the right to a commercial organization to unilateral termination contrary to the rule of Art.
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To terminate unilaterally.send a notification to in writing about your desire to the other party.
The notification can be drawn up in free form. But be careful with the wording, because in court they can play a decisive role for you. Draw up this document in two copies so that yours will be marked as having received the notification.
Or you can send it by mail.
Unilateral termination of the contract
— agreement of the parties; - a requirement to unilaterally terminate the contract if the terms of the transaction are violated by the other party, if this is provided for by law; - expression unilateral refusal from fulfilling the terms of the contract (in accordance with Article 450 of the Civil Code of the Russian Federation); - significant changes in circumstances. Let's look at the last reason in more detail.Law Club Conference
1. The Contractor has the right to refuse performance unilaterally if the Customer violates the terms of payment for services under the contract for more than one calendar month. Such a refusal is not a basis for the Customer’s failure to pay for the services provided.In the event of a unilateral refusal by the Contractor to fulfill the contract for the Customer no later than three calendar days.
The park stopped engaging in dialogue, only accepting money through the accounting department, because...
Accordingly, we sell their numbered tickets and hand over the weekly proceeds to their accounting department for their further placement on the R/S.
Civil Code of the Russian Federation Article 310. Inadmissibility of unilateral refusal to fulfill an obligation 1. Unilateral refusal to fulfill an obligation and unilateral change its terms are not permitted, except in cases provided for by this Code, other laws or other legal acts.
Notice of unilateral termination of the contract
The legal nature of any contract as an agreement of the parties implies that any actions are carried out by mutual consent (just as the conclusion and change of conditions also requires the agreed will of the participants). Unilateral termination of a contract is an exception to the rule of consent of the parties, therefore, although provided for by law, it must be based on compelling circumstances.Termination of a contract is one of the topics that gives rise to an inexhaustible variety of practical situations. There is enough material on it. However, this does not in any way reduce the number of interested parties in the professional judgments and assistance offered on the topic of termination of the contract. This conclusion is confirmed by the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated June 6, 2014 No. 35 “On the consequences of termination of the contract” (hereinafter referred to as the Resolution). I gave my comments on the draft of this act in detail elsewhere.
It is also logical that the relevance of the rules on termination of a contract to any contract allows them to be applied to those only if there are corresponding special norms(For example, ). This means that if there are no grounds or procedure for its termination in the relevant chapter of a specific type of civil law contract, then general rules will necessarily apply.
It is precisely in order to remember and correctly apply these general rules, and to get rid of a number of misconceptions associated with the termination of a contract, that I have prepared this material.
The law divides the termination of a contract () and refusal to fulfill an obligation(). Despite the identity of the legal consequences of termination of a contract and refusal to fulfill an obligation that arose from the contract, the grounds and procedure for performing the necessary actions differ.
Differences in the legal regulation of the basis and procedure for terminating a contract and refusing to fulfill an obligation lead to the fact that:
- a party that is mistaken in interpreting the terms of a contract or the norms of the law will choose the wrong path for its actions, including choosing the wrong method of protecting civil rights. The consequence of this will be both denial of protection of rights and financial losses. This will also be accompanied by unnecessary use of available time and material resources.
- the erring party will not receive the desired legal effect. Consequence - the contract, for example, will continue to be in force, and the counterparty to the contract will be able to demand fulfillment of the obligation, compensation for losses, or will choose other options.
Let me remind you here that the interpretation of the terms of the contract is carried out using. If, as a result of grammatical interpretation, it is not possible to understand the content of the terms of the agreement, then the actual will of the parties to the agreement must be clarified, taking into account the purpose of the agreement. Accordingly, the purpose of the contract must be determinable or determined in advance.
Termination of the contract is possible by agreement of the parties. Quite a "boring" foundation. The parties are united in their desires and, if they want, they can terminate all their obligations by agreeing to terminate the contract. But there are also some nuances here, which are also reflected in the Resolution. For example, a question regarding warranty obligations.
I would also like to draw your attention to the fact that this Resolution makes it possible to establish the consequences of termination of a contract other than those provided for by law within the limits of general restrictions on freedom of contract.
Termination of the contract is possible by court decision. This means that termination of the rights and obligations of the parties is impossible without going to court.
In my opinion, the terms of contracts regarding “unilateral termination of the contract” should be interpreted only as a statement of the possibility of filing a claim in court for termination of the contract. Stupidity or obvious machinations of enemies. Choose for yourself. But the error in choosing the correct condition must have Negative consequences(except for the case provided for in paragraph 11 of the Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation dated March 14, 2014 No. 16 "").
The legislator does not indicate that termination of a contract is precisely termination, and not the use of other legal institutions, can be done without going to court.
After one of the elements of the procedure for terminating a contract in the absence of agreement of the parties on this becomes clear, I will move on to the grounds themselves.
The grounds for termination of the contract are also specified in the Civil Code of the Russian Federation ( ). Termination of the contract is permissible in one of the following cases:
- in case of a significant breach of contract by the other party;
- in other cases provided for by the Civil Code of the Russian Federation, other laws or an agreement.
The definition of the materiality of a breach of contract is also given by law - a violation of the contract by one of the parties is considered material, which entails such damage for the other party that it is largely deprived of what it had the right to count on when concluding the contract ().
It is possible that when proving materiality, it will be easier and easier for the plaintiff if there is evidence that clearly and definitely indicates that each party understands what is received under this agreement (the party expected to receive it).
Also, a case provided for by the Civil Code of the Russian Federation is a significant change in circumstances (). We will post separate material on this basis in more detail in the future.
Accordingly, after determining the court as the only body with competence to terminate the contract and the cases when this can be done, let’s turn our attention to the procedure itself. indicated that filing a claim in court for termination of the contract can be made after sending a pre-trial demand to the counterparty and the expiration of a month, unless otherwise provided by the contract.
If the counterparty comes to court, bypassing what is set out in the law, then he can only wait for the case to be left without consideration (for example, paragraph 5 Information letter Presidium of the Supreme Arbitration Court of the Russian Federation dated February 11, 2002 No. 66 " " , paragraph 60 Resolution of the Plenum of the Armed Forces of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation of July 1, 1996 No. 6/8" ", FAS ZSO dated February 18, 2014 in case No. A70-5156/2013).
By the way, about the desired legal effect. According to the obligations of the parties will be terminated. But this does not mean that the party that submitted its performance to the counterparty and did not receive anything in response upon termination of the contract loses it. Absolutely not. She can get it back or receive a counter-execution (see paragraph 4 of the Resolution).
And I will end with a unilateral disclaimer.
As stated earlier, waiver of obligation is possible. Unilateral refusal of obligations arising in the sphere entrepreneurial activity, is allowed. But for obligations that are in no way related to entrepreneurship, this is impossible.
Therefore, if in an agreement between entrepreneurs the parties wish to indicate the termination of obligations under the agreement without going to court and unilaterally (with notification of the counterparty), then it is necessary to use and include a condition about unilateral waiver of the obligation.
My opinion:
- unilateral refusal of an obligation (contract) and unilateral termination of a contract are different things, although with the same consequences;
- differences in legal regulation lead to the recognition unlawful actions on unilateral termination of the contract without going to court;
- Differences in regulation give entrepreneurs the opportunity to include provisions for unilateral waiver of obligations in contracts.
In Resolution No. 4-P of February 23, 1999, the Constitutional Court of the Russian Federation indicated that the legislator must follow Art. Art. 2 and 18 of the Constitution of the Russian Federation, “according to which the recognition, observance and protection of the rights and freedoms of man and citizen are the responsibility of the state. Moreover, based on constitutional freedom of a contract, the legislator does not have the right to limit itself to formal recognition of the legal equality of the parties and must provide certain advantages to the economically weak and dependent party in order to prevent unfair competition... and actually guarantee in accordance with Art. 19 and 34 of the Constitution Russian Federation compliance with the principle of equality in the implementation of business and other activities not prohibited by law economic activity"Resolution Constitutional Court RF "In the case of verifying 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. Veselyashkina, A.Yu. Veselyashkin and N.P. Lazarenko" / / NW RF. 1999. N 10. Art. 1254..
The issue of limiting the right of a commercial organization to conclude a public contract is directly related to the provision or limitation for it of the possibility of changing and, especially, terminating such a contract. In development of the above legal position The Constitutional Court of the Russian Federation also indicated that the mandatory conclusion of a public contract if there is an opportunity to provide a person with the appropriate services also means the inadmissibility of the unilateral refusal of the contractor to fulfill obligations under the contract, since in otherwise requirement of the law on mandatory imprisonment the agreement would be deprived of any meaning and legal significance. Otherwise, it would mean an excessive restriction (derogation) of the constitutional freedom of contract for a citizen entering into a public contract, would create inequality that is unacceptable from the point of view of justice, and, therefore, would violate the provisions of Art. Art. 34, 35 and 55 (part 3) of the Constitution of the Russian Federation Determination of the Constitutional Court of the Russian Federation of June 6, 2002 N 115-O “On the refusal to accept for consideration the complaint of citizen Evgenia Zakharovna Martynova about the violation of her constitutional rights by paragraph 2 of Article 779 and paragraph 2 Article 782 of the Civil Code of the Russian Federation" // Bulletin of the Constitutional Court of the Russian Federation. 2003. N 1. P. 65.
In other words, if an agreement is classified as public, then the party obligated to conclude such an agreement does not have the right to unilaterally refuse to perform it.
The general rule that courts use when making decisions regarding the possibility of changing and terminating contracts of a public nature by commercial organizations comes down to the fact that the norms of the Civil Code of the Russian Federation do not provide for the possibility of any prohibition on terminating a public contract, but there is only an obligation to conclude it (Article 426 Civil Code of the Russian Federation). Therefore, the provisions of Chapter simply apply to public contracts. 29 of the Civil Code of the Russian Federation on amendment and termination of the contract. However, as mentioned above, the peculiarities of the legal nature of a public contract cannot but affect its regime legal regulation. In this regard, it is of interest to analyze the legal regulation of the amendment and termination of public contracts as an exception to the general rule of the principle of freedom of contract. The grounds for amending and terminating public contracts are legal facts established by the legislator in the form of an exclusive list in Art. 450 Civil Code of the Russian Federation.
Unilateral refusal to fulfill an agreement as an exception to the rule of the general prohibition of unilateral refusal to fulfill obligations (Article 310 of the Civil Code of the Russian Federation) can only be implemented in cases where established by law or a contract. The law does not directly prohibit a commercial organization from refusing to execute contracts that have public characteristics. However, by virtue of the Determination of the Constitutional Court of the Russian Federation, Determination of the Constitutional Court of the Russian Federation of June 6, 2002 N 115-O. a commercial organization cannot have such a right. A number of norms of part two of the Civil Code of the Russian Federation implement this rule.
An example would be an insurance contract. According to para. 2 p. 1 art. 927 of the Civil Code of the Russian Federation, a personal insurance contract is a public contract (Article 426 of the Civil Code of the Russian Federation). The party obligated to conclude this agreement in accordance with the meaning of Art. 426 of the Civil Code of the Russian Federation, is an insurer. Therefore, based on the above Determination of the Constitutional Court of the Russian Federation, the insurer should not have the right to unilaterally refuse to fulfill a personal insurance contract. This provision is confirmed by law, according to which only the policyholder has the right to unilaterally refuse the insurance contract, and he can refuse the contract at any time (clause 2 of Article 958 of the Civil Code of the Russian Federation). The Civil Code of the Russian Federation does not provide for the right of the insurer to unilaterally terminate or change contractual relations. Refusal to fulfill the insurance contract by the insurer is impossible; this is the prerogative of the insured as the “weak” party to the contract.
It should be emphasized that the rule prohibiting unilateral refusal of a public contract does not really apply to every public contract. The law contains a construction of a public contract, which provides, if certain conditions are met, for the possibility of unilateral refusal to perform the contract. In accordance with paragraph 1 of Art. 546 of the Civil Code of the Russian Federation, in the case where the subscriber under an energy supply agreement is a citizen who uses energy for domestic consumption, he has the right to terminate the agreement unilaterally, subject to notification of this to the energy supply organization and full payment for the energy used. Since the energy supply agreement is public (clause 1 of Article 426 of the Civil Code of the Russian Federation), in light of the above-mentioned Determination of the Constitutional Court of the Russian Federation, the energy supplying organization does not have the right to unilaterally refuse to execute it.
A commercial organization can also acquire the right to unilaterally refuse to fulfill a public contract if the counterparty does not respond to a demand for repayment of existing debt. For example, if the subscriber violates the requirements related to the provision of services telephone communication and established by the Federal Law “On Communications” Federal Law of July 7, 2003 N 126-FZ “On Communications” // SZ RF. 2003. N 28. Art. 2895. or a contract, including violation of payment terms for telephone services provided to the subscriber, the telecom operator has the right to suspend the provision of services until the violation is eliminated, notifying the subscriber of this in writing and using the communications equipment of the telecom operator (auto-informer). If such a violation is not eliminated within six months from the date the subscriber receives a notice from the telecom operator (in writing) of the intention to suspend the provision of telephone services, the telecom operator unilaterally has the right to terminate the contract Resolution of the Government of the Russian Federation of May 18, 2005 N 310 “On approval of the Rules for the provision of local, intrazonal, long-distance and international telephone services" // SZ RF. 2005. N 21. Art. 2030..
However, due to the fact that in Russian legislation judicial precedent is not a source of law; the position of the Constitutional Court is not fundamental for establishing the right to unilateral termination of a public contract by a commercial organization. Therefore, in some cases, the law, regulations, or the parties to the contract themselves in its text may establish such a right for a commercial organization based on the rules provided by law for specific types of contractual structures. For example, a telecom operator and a subscriber or broadcaster (i.e., both parties to the contract) have the right at any time, by agreement of the parties, to terminate the contract, subject to payment for communication services provided for the purposes of television and radio broadcasting (in accordance with Article 782 of the Civil Code of the Russian Federation). The agreement may also provide for cases and procedures for the unilateral refusal of the parties to fulfill the agreement Resolution of the Government of the Russian Federation of December 22, 2006 N 785 “On approval of the Rules for the provision of communication services for the purposes of television broadcasting and (or) radio broadcasting” // SZ RF. 2007. N 1 (2 hours). Art. 249..
Another problem in regulating the amendment and termination of public contracts is the question of the possibility of terminating a public contract in the event that a consumer violates its terms. In connection with the peculiarities of the nature of concluding public contracts, the essence of the emerging conflict comes down to the fact that if a commercial organization is obliged to conclude an agreement with any person who applies to it, then after the termination of the violated contract, the debtor who committed the violation can again turn with an offer to the affected commercial organization and force her through the court to conclude a new agreement for general conditions. This problem becomes most relevant in relation to ongoing contracts, where, when raising the question of termination of the contract, the creditor, as a rule, does not mean the termination of the obligation to pay for services already provided, work performed or goods shipped, but the termination contractual obligations parties exclusively for the future Karapetov A.G. Termination of a broken contract in Russian and foreign law. M.: Statute, 2007. P. 371..
Almost the only opportunity to terminate a concluded public contract for a commercial organization is to apply clause 2 of Art. 450 of the Civil Code of the Russian Federation with reference to the materiality of the violation by the consumer. The literature also expresses a similar opinion that the public nature of the contract does not prevent the possibility of its termination if the violation is significant. Braginsky M.I., Vitryansky V.V. Contract law. Book 2: Agreements on the transfer of property. M., 2003. P. 172; Karapetov A.G. Decree. op. P. 372.. On the other hand, the actions of a faulty consumer who demands the conclusion of a new contract before repaying the debt under the terminated contract must be qualified as an abuse of right (Article 10 of the Civil Code of the Russian Federation). However, unfortunately, solving this problem for a commercial organization in a non-jurisdictional manner today is impossible, and the introduction of a rule allowing it in such cases to refuse the consumer to enter into a new contract may create an unfavorable precedent for the abuse of this right by commercial organizations and thereby disavow the idea of a public contract.
Therefore, a way out of this situation may be an explanation from the highest courts its position for courts in similar situations. For example, courts may be advised in decisions in similar cases to limit the right of a defective consumer to re-enter into a new public contract with the same creditor until the debt under the terminated contract is repaid.
The legal regulation of amendment and termination of contracts in the event of a significant change in circumstances is based on two key principles contract law: pacta sunt servanda (contracts must be fulfilled) and clausula rebus sic stantibus (the contract remains in force if the general situation remains unchanged). In its own way legal nature a significant change in circumstances is very close to force majeure circumstances, differs from the latter in that the resulting change in circumstances does not make the fulfillment of an obligation impossible, but leads to unfavorable economic results of such fulfillment.
In most cases, courts have difficulty making decisions to amend or terminate contracts due to a significant change in circumstances. Moreover, existing precedents in this regard even lead in some cases to calling into question the constitutionality of the provision civil legislation on amendment and termination of the contract on this basis. Thus, in one of the cases, at the request of the bank, the court terminated the agreement on a numbered deposit with a citizen due to a significant change in circumstances. When a citizen appealed to the Constitutional Court of the Russian Federation with a complaint that the provisions of Art. 451 of the Civil Code of the Russian Federation affects his rights enshrined in Art. Art. 8, 19, 23, 34 and 46 of the Constitution of the Russian Federation, to the detriment of which the bank, as an economically strong party that developed the terms of the accession agreement, was given the right to terminate such an agreement, the Constitutional Court of the Russian Federation indicated that the mandatory conclusion of a public agreement, which, according to paragraph 2 of Art. . 834 of the Civil Code of the Russian Federation is a bank deposit agreement, which also means that the executor’s unilateral refusal to fulfill obligations under the agreement is inadmissible. At the same time, according to the Court, a commercial organization as a party to a public contract, in the absence of a real opportunity to fulfill its obligations, including due to a significant change in circumstances, cannot be deprived, taking into account the provisions of Art. 17 (part 3) of the Constitution of the Russian Federation, the right to protect one’s interests by presenting a demand for termination of a public contract. In this regard, the provisions of Art. 451 of the Civil Code of the Russian Federation, from the point of view of the Court, cannot be considered as violating the constitutional rights of a citizen. Determination of the Constitutional Court of the Russian Federation of October 14, 2004 N 391-O “On the refusal to accept for consideration the complaint of citizen Alexander Nikolaevich Dudnik about the violation of his constitutional rights by the provisions of Article 451 of the Civil Code of the Russian Federation" // SPS "ConsultantPlus"..
Perhaps in in this case The Constitutional Court identified the “lack of real possibility” of fulfilling the bank’s obligations with significantly changed circumstances, under which, as is known, fulfillment is still possible. In cases where circumstances change so much that performance becomes virtually impossible, it is rather necessary to use the protection of the rights and interests of the parties to the contract by applying the rules on termination of obligations due to impossibility of performance, especially since paragraph 1 of Art. 416 of the Civil Code of the Russian Federation indicates precisely the circumstance (event as legal fact), causing the impossibility of fulfilling an obligation for which neither party is responsible. However, in in this example due to the undoubted significance of the change in circumstances (reduction of the refinancing rate from 180% per annum at the time of concluding the contract to 16% per annum at the time of filing the claim) and taking into account the public nature of the obligation, the Constitutional Court of the Russian Federation supported the decision of the lower court regarding the possibility of terminating the contract on the basis Art. 451 Civil Code of the Russian Federation.
Freedom of contract in a civilized market is also subject to general rule, according to which it is prohibited to use the right to restrict competition and abuse of a dominant position.
In some cases, to regulate special contractual relations, the legislator may grant a commercial organization the right to unilaterally terminate a contract contrary to the rule of Art. 546 of the Civil Code of the Russian Federation. For example, if the buyer overconsumption of gas, the supplier, who is a subject natural monopoly, has the right to enforce a forced limitation of its supply to the established daily norm gas supplies after 24 hours from the moment of warning the buyer and authorities about this executive power subjects of the Russian Federation Decree of the Government of the Russian Federation of February 5, 1998 N 162 “On approval of the Rules for gas supply in the Russian Federation” // SZ RF. 1998. N 6. Art. 770.. Thus, the energy supplying organization has the right to suspend the operation of the energy supply contract in the event of non-payment by the subscriber ( an individual) electricity consumed for more than three billing periods by cutting off the electricity supply. This right of the energy supply organization is confirmed by the position of the RF Armed Forces Definition Supreme Court RF dated September 4, 2003 N KAS03-406 // SPS "ConsultantPlus"..
LEGAL SCIENCES
D. I. Gordeeva
3rd year student Tyumen State University, Tyumen, Russian Federation E-mail:ms. dariagordeeva@mail. ru
PROBLEMS OF CONCLUSION AND TERMINATION OF PUBLIC CONTRACTS
annotation
The article discusses topical problems that arise when concluding and terminating a public contract in the civil law of the Russian Federation. The issue of the controversial freedom of public contract and how this affects commercial organizations and contractors is also touched upon.
Public contract, civil law, consumer, commercial organization,
counterparty, freedom of contract.
As you know, a public contract is a fairly new institution for civil law, but, despite its novelty, this institution already occupies a significant niche in the field civil legal relations.
According to Art. 426 of the Civil Code of the Russian Federation, it can be said that an agreement concluded by a commercial organization and establishing its obligations to sell goods, perform work or provide services that such an organization, by the nature of its activities, must carry out in relation to all citizens who wish to contact it, is recognized as public.
At present, many issues regarding the public contract regime remain unresolved and cause difficulties both for the law enforcement officer when implementing them in practice, and for the ordinary person in everyday life.
Let's consider clause 2 of Art. 1 of the Civil Code of the Russian Federation: “Civil rights may be limited on the basis federal law and only to the extent necessary to protect the fundamentals constitutional order, morality, health, rights and legitimate interests other persons, ensuring the defense of the country and the security of the state.”
This provision is limited by the rules on public contract. A public contract restrains a certain category of entrepreneurs from freedom of contract. Namely, in freedom of choice and freedom to determine the terms of the contract.
By virtue of Parts 1 and 3 of Art. 426 of the Civil Code, a commercial organization is obliged to conclude an agreement with everyone who approaches it. From this we can draw the following conclusion: only the counterparty of a commercial organization that sells goods, performs work or provides services has the right to demand compulsion to conclude a public contract.
A public contract has a special goal - the protection of consumer rights; such a restriction on the freedom of contract for one party - the entrepreneur, as noted by the Constitutional Court of the Russian Federation, takes into account the significant actual inequality of the parties in an agreement of this type and is aimed "at protecting the interests of the citizen as an economically superior weak side in these legal relations."
We have already figured out that this type agreement gives rise to many discussions, and it is not surprising that many of them are resolved in judicial procedure. We are most interested in judicial practice concerning the consideration of complaints about coercion to enter into an agreement, issues of proving the absence or presence of the possibility of concluding an agreement, and compliance with equal terms of the agreement for all consumers.
SYMBOL OF SCIENCE ISSN 2410-700X No. 6 / 2018.
Having analyzed judicial practice behind last years, I made disappointing conclusions about the need to make adjustments to this provision, because there has been a tendency for consumers to abuse this right. For example, it happens that unscrupulous consumers refuse to pay for the services consumed, allegedly due to the lack of contractual relations with the relevant organization. A commercial organization obliged to supply consumers with electricity (water, gas, heat, other utilities) finds itself in a difficult situation.
I also found many examples different ways avoid the responsibility of consumers in the sphere of utilities, insurance, gas supply, etc.
Finally, in accordance with paragraph 3 of Art. 426 of the Civil Code, the consumer can, through the court, force the entrepreneur to conclude such an agreement or submit disagreements on its individual terms to the court for consideration.
Consequently, the institution of a public contract provides certain guarantees to consumers by establishing mandatory regulation of the procedure for concluding relevant contracts.
Another problem in this area of civil legal relations is the question of the possibility of terminating a public contract in the event that a consumer violates its terms.
The acute question is that if a commercial organization is obliged to conclude an agreement with any citizen who contacts it, then after termination of this agreement a debtor who has committed such a violation may again make an offer to the affected commercial organization and force it through the court to conclude a new agreement on general terms.
Almost the only option for terminating a concluded public contract for a commercial organization is to apply clause 2 of Art. 450 of the Civil Code of the Russian Federation with reference to the materiality of the violation by the consumer.
The problem reaches its greatest scale when it comes to ongoing contracts. As we already know, the creditor, speaking of termination of the contract, does not imply the termination of the obligation to pay for services and work already performed, but terminates the obligations of our parties (the commercial organization and the counterparty) for the sake of its prosperous future, which, it should be noted, is quite controversial .
The scientific literature also expresses a similar opinion that the public nature of the contract does not create obstacles to the possibility of its termination in the event of a material violation.
You can demand to change or terminate the contract when one of the parties refuses to do so or does not give a timely response (the deadlines are indicated in the proposal or established by law, usually 30 days).
Each of the parties must be well aware of the consequences of termination and changes associated with the legal component, since termination of the contract entails a complete termination of the relationship between the parties, and changes allow further cooperation (Article 453 of the Civil Code of the Russian Federation).
At the moment when the contract is terminated or its terms are changed, the circumstances are considered terminated or changed, unless another option is provided by law, act or agreement. One of the parties may demand compensation for damages in the event of termination or modification of the contract due to. significant changes This rule applies regardless of the fact that it is enshrined in a document (agreement). To satisfy claims
the following conditions must exist: when signing, the parties could not have foreseen this circumstance; the nature and conditions did not allow overcoming the circumstances that led to critical changes in the state of affairs of the interested party; further execution of the contract in accordance with all terms would lead to a violation of the relationship of property interests and damage; the interested party could lose the material benefit due to it under the terms of the contract; Traditionally, the essence of the contract does not provide for the risk of the interested party due to changes in circumstances. From the above, we can come to the conclusion that appealing the contract through the court is a fairly declarative guarantee due to the duration trial
SYMBOL OF SCIENCE ISSN 2410-700X No. 6 / 2018.
. In most cases, to
By the time the dispute is resolved, the relevance of the issue for the consumer will no longer be valid. Thus, having considered these problems, we can conclude that at present it is impossible to solve them for a commercial organization in a non-jurisdictional manner, and the introduction of rules allowing to limit the rights of the counterparty will make it possible to commercial organizations
1. Civil Code of the Russian Federation: Part one - four: [Adopted by the State. Duma on April 23, 1994, with amendments and additions as of January 1, 2018] // Collection of legislation of the Russian Federation. - 1994. - No. 22. P. 426.
2. Ruling of the Constitutional Court of the Russian Federation dated 06.06.2002 N 115-O “On the refusal to accept for consideration the complaint of citizen Martynova E.Z. for violation of her constitutional rights by paragraph 2 of Article 779 and paragraph 2 of Article 782 of the Civil Code of the Russian Federation" [Electronic resource] Access mode - http://www.consultant.ru
3. [Electronic resource]. Decision in case 2-760/2018 ~ M-554/2018 dated April 27, 2018; Decision in case 2-1660/2018 ~ M-852/2018 dated April 16, 2018; Decision in case 2-982/2018 ~ M-682/2018 dated April 17, 2018 // Website. - URL: https://rospravosudie.com/law/Article_426_Civil Code_RF (date of access: 05/20/2018).
4. Resolution of the Plenum of the Supreme Court of the Russian Federation and the Plenum of the Supreme Arbitration Court of the Russian Federation dated July 1, 1996 N 6/8 “On some issues related to the application of part one of the Civil Code of the Russian Federation.” Bulletin of the Supreme Arbitration Court of the Russian Federation. 1996. No. 9.
5. Civil law Russia. Lecture course. Part one / ed. HE. Sadikov. M., 1996. P. 290
© Gordeeva D. I., 2018
Yulia Nikolaevna Zamolotskikh,
assistant prosecutor, lawyer 3rd class, prosecutor's office of the Zheleznodorozhny district of Voronezh, Voronezh
Email: [email protected]
FOREIGN EXPERIENCE IN IMPLEMENTING ELECTRONIC INTERACTION BY EXECUTIVE BODIES
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Consideration of issues related to the implementation of interdepartmental interaction between executive authorities in foreign countries allows us to analyze modern forms of cooperation government agencies in other countries and highlight positive experience building an electronic interaction system that is widely used in practice.
Keywords:
interdepartmental interaction, cooperation, executive authorities, implementation
joint powers, foreign experience.
World experience shows that one of the ways to modernize the procedure for providing public services, is the creation of service centers based on the “one window” principle. Similar centers began to be successfully implemented in the provision of state and municipal