Contractual privileges and specifics of their protection: experience of Germany and prospect of reform of the Civil code of Russia

Article is devoted to a problem of admissibility of establishment of privileges by the contract and specifics of protection of such rights. With a support on the analysis of a system of privileges of Germany authors come to a conclusion about need of elimination of the Russian lawyers of doubts who took roots in consciousness concerning a possibility of establishment of privileges the contract and distribution on them the traditional mode of protection of the rights advantages by means of creation of the mechanism of giving of publicity to them. In the Russian civil law there are several approaches to justification of the widespread point of view according to which privileges can be established only by the law. Meanwhile, privilege establishment by the contract cannot be considered as violation of the above-stated principle as the relevant contract is signed by legally equal subjects and is result of consensus them will. Thus, it is represented that there are no obstacles for privilege establishment by the independent contract which is not named in the Civil Code of the Russian Federation, the preliminary contract or the contract under a suspensive condition. For the proof of this thesis it is necessary to address the system of privileges existing in Germany presented by both the public, and private rights advantages. These rights serve the purpose of preservation of a certain mode of use of the earth for the benefit of society and differ from privileges in favor of individuals on the establishment bases, the mechanism of implementation and an order of the termination. In spite of the fact that existence of public privileges creates the mode which is a little reminding the mechanism of withdrawal of property for the state needs, nevertheless, in the German civil law the specified institutes are differentiated: in case of establishment of the public right advantage the owner is not forced to sale of the land plot, and is limited only in the choice of the contractor. Private privileges which can arise on the basis of the law, the contract or the will serve the civil interests of individuals. The experience of Germany analysed in this article allows to perform with two main suggestions for improvement of the Russian institute of privileges. The first offer consists in elimination of the Russian lawyers of doubts who took roots in consciousness concerning a possibility of establishment of privilege the contract. The second offer consists in ensuring effective protection of the contractual rights advantages. For this purpose it is advisable to create the mechanism of giving of publicity of information on contractual privileges which will allow to exclude conscientiousness of the third parties who acquired property with violation of the privilege established in its relation and consequently to use though specific, but the most effective of the rights provided by the Russian civil legislation a way of its protection in the form of transfer on the authorized person and obligations of the third person interventionist for the contract with the obliged person.

Keywords

Authors

References