FEATURES OF FOREIGN LEGAL PROVISIONS RECEPTION IN THE RUSSIAN LAW OF OBLIGATIONS ON EXAMPLE OF INDEMNITY INSTITUTE

Автор(и)

  • Ainur Demieva
  • Elena Bogdanova

DOI:

https://doi.org/10.32461/2226-3209.3.2018.171105

Ключові слова:

reception, socialization of civil law, honesty, indemnity, guilt, principle of dispositivity.

Анотація

Abstract. The article is devoted to some problems of foreign legal norm reception in the Russian law of
obligations. In this article, the authors note that the peculiarity of the Russian obligation law reform was the reception of individual institutions of other legal systems, including those based on other principles. Currently, there is the process of civil law socialization, accompanied by a curtailment of the positivist approach in law, the change of the legal paradigm per se, when the principles of conscientiousness, justice and reasonability, which are super-imperative in relation to the customary rule of law, take the first place in the legal understanding. A detailed study of the institute of indemnity adopted from the Anglo-American legal system made it possible to conclude that the introduction of a legal design with a rather contradictory application of borrowing in the country raises doubts about the effectiveness of its application in Russian Federation (for example, Article 406. 1 of RF Civil Code [1]). Summing up, the authors come to
the conclusion that the provisions on indemnity, despite their abstract, non-process nature, were not blocked from the application of good faith rules to them.
Key words: reception; socialization of civil law; honesty; indemnity; guilt; principle of dispositivity.

Посилання

The Civil Code of Russian Federation No. 51-FL issued on 30.11.1994 // The collection of RF legislation. 12/05/1994. № 32. Art. 3301.

Courtney W. The nature of contractual indemnities // Journal of Contract Law. 2001 Vol. 27 Nо. 1, 2 pp. 1-18.

Parker. P.L., Slavich J. Contractual Efforts to Allocate the Risk of Environmental Liability: Is There a Way to Make Indemnities Worth More Than the Paper They Are Written On // Southwestern Law Journal, 1991. P. 1351.

P.J. Booth Problems with contractual indemnities (and how to avoid them)/ Victorian Bar. March. 2015. P. 2.

Donohue J, Esq. and Koch E.M., Es. Indemnity: «Pass-Through Provisions» //www.whiteandwilliams.com. In this paper, the authors consider the following well-known precedent: Bernotas v. Super Fresh. Food Markets [2004] 863 A.2d 478.

The decree of the Arbitration Court of the Urals District № F09-5885/15 issued on August 31, 2015 on the case

№ А07-4379/2014//http://base.garant.ru/38715926/

Bogdanov D.E. Compensation of losses in Russian and foreign law // Lex Russica. 2017. № 5. p. 191.

P.J. Booth Problems with contractual indemnities (and how to avoid them)/ Victorian Bar. March. 2015.P. 7-8.

Abdulhakovich, T.I., Jur'evich, C.M., Auhatovich, H.R. Civil legal constructions in crime classification mechanism - Criminology Journal of Baikal National University of Economics and Law - (4). - pp. 72-80.

Rossiyskaya Gazeta № 70 issued on 04/04/2016 http://base.garant.ru/71360358/

The Canada SS rules were formulated in 1952 by Lord Morton on the following case: Canada Steamship Lines Ltd v The King//McDonald B. Contractual exclusions and indemnities of liability for negligence//Sydney Law School. Legal studies research paper № 08/61. June 2008.

McDonald B. Contractual exclusions and indemnities of liability for negligence//Sydney Law School. Legal studies research paper № 08/61. June 2008. P.14.

##submission.downloads##

Номер

Розділ

Мистецтвознавство