Право/9.Гражданское право

Akhtyshkhan Y.

Karaganda Economical Unibersity, Republic of Kazakhstan

IMPROVEMENT OF THE BASIC CONCEPTS OF CIVIL LIABILITY

The article covers theoretic issues of researching the basic concepts for civil liability, legal and factual basic concepts for civil liability relations, civil law specialists’ opinions regarding the questions: “What is the basic concept for civil liability: either an offence or its corpus delicti?”. The article also studies the application of the term ‘corpus delicti of civil offence’ in civil law.

Civil liability occupies in system of protection of the rights and legitimate interests of participants of a civil circulation a special place thanks to that provides it with the universal way of protection of the civil rights applicable to the majority of cases of their violations.

Efficiency of its application depends on a number of the factors characterizing in general the system of the right of this or that state. Among these factors important value has identification and confirmation in the law of set of circumstances which with inevitability attract emergence of civil liability, called as the basic concepts of civil liability.

In spite of the fact that the concept "basic concept of civil liability" is actively used in scientific legal literature and is enshrined in the Civil code of RK (Art. 359), the content of it is a subject of scientific discussions that causes need of systematization of already available scientific knowledge of this legal category, and also further search of answers to the questions raised by authors of the scientific works devoted to civil liability. We will consider the main theoretical problems arising when determining the concept "basic concept of civil liability".

In civil literature in the analysis of the basic concepts of civil liability there are two aspects of this phenomenon: legal and actual. A legislative basis of liability is its confirmation in the law [1, p. 29, 33]. Quite often authors consider it the only and sufficient basis of civil liability [2].

Nevertheless, as V.A. Belov fairly notes, violation of civil norm in itself can't be the basis for recognition of actions of the violator illegal if only such actions didn't violate the subjective private rights and (or) interests of the specific subject of private law protected by the law [3, p. 32]. Therefore crucial importance for assignment of civil liability has its actual basis which is mediated by behavior of the subjects provided, first of all, with objective and real existence, subject to laws of the nature and factors of interaction with each other and only in the second turn – the abstract properties attributed and ordered by the law [4, p. 174].

As the legal and actual basic concepts generate emergence of the relation of civil liability not everyone in itself, and only being in indissoluble unity, it gives the chance on the basis of the analysis of processes of interference and interaction of real behavior of the subjects entering the actual relations and legal regulation of these relations to allocate other basic concepts of civil liability which are the prime causes of its establishment and providing its existence. So, A.A. Lukyantsev pays attention to the moral and ethical, social and economic, political basic concepts of civil liability as legal institute as which it is understood not only part of a matter of the objective right, but also corresponding law-enforcement practice [5, p. 165].

A.A. Lukyantsev included to the open list of such basic concepts, in particular, an orientation of rule-making activity of a source of precepts of law on achievement at their application of standard legal and actual result; the developed public ideas of justice influencing rule-making process and qualification by the law enforcement official of behavior of specific subjects; existence in society of a legitimate legal mechanism of assignment of civil liability penalty on the person which allowed illegal behavior; the entitlement by the law of participants of the civil relations for the appeal to jurisdictional bodies for protection of the rights by assignment of liability for contractors and obligation of the specified bodies to render such protection [6, p. 171-172].

Allocation of the called factors as the basic concepts of civil liability is valuable that allows to understand more deeply its essence, and also the mechanism of establishment and realization. Nevertheless for practical application of civil liability, namely – at establishment in each case of existence of possibility of assignment of liability on the participant of the civil relations only two of named liability basic concepts matter: provisionness by objective right of liability for violation of the subjective right of one person by other person and real violation of this right.

Thus civilians disagree that, actually, is the basis of civil liability: offense or corpus delicti. Traditional is the point of view that the general and, as a rule, the only basis of civil liability is existence of corpus delicti [7] which includes, by the general rule, four elements: illegality, property or non-property damage, a causal relationship between the fact of violation and the damage, fault of the violator.

However recently more and more widespread is a position rejecting application in civil law of the term "corpus delicti" immanently inherent in criminal and administrative law. Thus it is claimed that the basis of civil liability is violation of the subjective civil rights, both property, and personal non-property [8]. M.I. Braginskiy and V.V. Vitryanskiy note that at application of civil liability have no legal value "harmful consequences" from the point of view of negative influence of the allowed violation of the civil rights for public interests, the "objective" and "subjective" parties of corpus delicti. Violation of the right of the subject of civil legal relationship attracts need of restoration of the violated right including by application of civil liability, and, respectively, is the basis of such liability [9, with. 705].

It is necessary to agree with this opinion in that part in which the leading role of illegality in system of conditions of civil liability is shown. Civil liability arises from actions as the legal facts conducting to violation of the subjective rights of citizens, legal entities, other legal entities provided by the law and other legal acts and also from actions of the subjects of civil law generating civil liability owing to the general beginnings and sense of the civil legislation [10]. Owing to this fact confirmation in the law of a priority orientation of precepts of law on protection of the violated subjective right of the injured persons, but not on behavioural aspect of the actions made by the causer of damage, gets importance, especially for the obligations arising owing to infliction of harm of the identity of the citizen [11].

Nevertheless, it is represented that character and the extent of the harm done by an offense and existence or absence of fault of the offender nevertheless matter at an assessment of "extent" of violation of public interests that is expressed in most cases in recognition by their indispensable conditions of civil liability.

As for application in civil law of the term "corpus delicti", the value of this legal structure consists not only in its use for theoretical justification of system of conditions of civil liability. The specified concept has also important applied value as those circumstances which are subject to proof when considering the case about assignment of liability for a perfect offense decide on its help by the law enforcement official. The concept of corpus delicti is actively used by courts at permission of civil disputes that is reflected in contents of the judicial decrees [12] issued by results of their consideration. Therefore to refuse use of this concept, in our opinion, it is inexpedient.

It is necessary to clarify the following question also: whether is the offense the only basis of civil liability or assignment of liability without offense is possible. So, E.A.Sukhanov considers that as the basic concepts of civil liability it is necessary to consider not only offenses, but also other circumstances which are directly provided by the law or the contract. It refers to the last, in particular, liability for actions of the third parties (for example, vicarious liability for violation by the obliged person of the contract provided with the guarantee) [13, p. 452].

Meanwhile, it is represented that the specified duty of the guarantor, though is named in Art. 332 of Civil Code of the RK, that in fact isn't. Payment of the guarantor is made by it in pursuance of own obligations which arose from the contract of guarantee, and at all not in repayment of obligations of other persons (the debtor of the main obligation) [14].

By consideration of the theoretical problems arising at research of the basic concepts of civil liability it is necessary to mention also the discussion existing in science of civil law concerning a ratio of the content of the concepts "basis" and "condition" of civil liability. In legal literature they mix quite often up and used as identical. Meanwhile, it is represented that these concepts have distinction not only semantic, but also legal. The basis is that generates any phenomenon, the base on which the last leans and which defines its nature [15, p.56]. Respectively, the basis of civil liability is the legal fact generating emergence of certain legal relationship, their change or the termination or from what there is a duty of the person on whom civil liability is conferred.

Conditions mean the signs which characterize the basis and without which existence the phenomenon can't arise [16]. Conditions of civil liability are the signs of acts of natural and legal entities which are by law immediate causes of assignment by jurisdictional bodies on specified persons of measures of civil liability or assignment by specified persons on themselves of the appropriate measures in a voluntary order [17, p. 173].

Thus, in our opinion, the concept of the basic concepts of civil liability has various contents depending on the purpose of its use. By consideration of category of "the basis of civil liability" as the most important element of the institute of civil liability which is constantly developing, following change of requirements of a modern civil ciculation, the state and society in general it is expedient to use the broad understanding of the basic concepts of civil liability defined by use of the open list of stable fundamental factors which existence in society (society, state) predetermines emergence (allocation) and provides existence of the institute of civil liability [18, p. 170-171]. For the purpose of application of civil liability it is necessary to understand the basis as violation of the subjective civil rights (offense). Thus it isn't necessary to refuse completely use in civil law of the concept "corpus delicti" which also has important theoretical and applied value.

It is represented also that corpus delicti (in narrow view) is the only basis of civil liability. It includes legal and actual components of this legal phenomenon which, for emergence of civil liability, have to coincide on existence and structure of certain signs (liability conditions) characterizing concrete violation of the civil rights.

Literature

1. Tarkhov V.A. Liability on the Soviet civil law. Saratov. 1973.

2. Agarkov M.M. Obligation for the Soviet civil law. M, 1940. Page 140; Civil law of Russia. Second part. Liability law. A course of lectures / under the editorship of O. N. Sadikov. M, 1997.

3. Belov V.A. Civil law: The general and Special parts: Textbook. M.: JSC Center Yurinfor, 2003.

4. Lukyantsev A.A. Application of civil liability at implementation of business activity: theory and jurisprudence. Rostov-on-Don: Publishing house of the Rostov university, 2005.

5. In the same place.

6. In the same place.

7. Ioffe O. S. Liability on the Soviet civil law. Leningrad, 1955. Page 94; Krasavchikov O.A. The legal facts in the Soviet civil law. M, 1958. Page 57; Matveev G. K. Basic concepts of civil liability. M, 1970. Page 5.

8. Braginsky M. I., Vitryansky V. V. Contract law. The first book: General provisions: Edit. 4th. M.: Statute, 2001. Page 705; Khokhlova G. V. Concept of civil liability / Actual problems of civil law: Collection of articles. Issue 5 / Under the editorship of V. V. Vitryansky; Research center of private law. Russian School of Private Law. M.: Statute, 2002. Page 81; Minkina L.Sh. Conditions of civil liability: general provisions//Justice in the Volga region. 2008. N 6. System Guarantor; Civil law: textbook: in 3 v. V.1. / E.N. Abramova, N. N. Averchenko, Yu.V. Baygushev, etc.; under the editorship of A.P. Sergev. M.: RG-Press, 2011. Page 963.

9. Braginsky M. I., Vitryansky V. V. Decree.

10. Mozolin V.P. Civil liability in system of Russian law//the Magazine of Russian law. 2012. N 1. System Guarantor.

11. In the same place.

12. Practice of application of the Civil code of the Russian Federation, part one / Under a general edition of V.A. Belov. - 2nd edit., process. and added. M.: Publishing house Yurayt; Yurayt-Izdat, 2011.//System Guarantor.

13. Russian civil law: Textbook: In 2 v. V. I: General part. Real right. Law of succession. Intellectual rights. Personal non-property rights / Edition Sukhanov E.A.. M.: Statute, 2010.

14. Belov V.A. Liabilities. M.: JSC Novaya pravovaya kultura, 2007. System Guarantor.

15. Smirnov V. T., Sobchak A.A. The general doctrine about delictual obligations in the Soviet civil law. Leningrad, 1983.

16. In the same place.

17. M. K. Suleymenov "Actual problems of the civil legislation" Private law of the Republic of Kazakhstan: history and the present, Volume 2, 2011. See more on: http://zangerlf .com/ru/publications/200

18. In the same place