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EFFECTIVENESS OF JUSTICE AND STABILITY OF CIVIL LAW SYSTEM FUNCTIONING
Russian jurists constantly focus attention on enhancement of effectiveness of public relations legal regulation[1]. In R.O. Halfina's opinion, there is enough knowledge to solve problems of effective regulation in economy, engineering, and other fields of science. The most effective way to use this knowledge for legal purposes is to develop a model of optimal conduct in a certain typical situation. Besides, the model should further determination of the legal status of parties, distribution of their rights and duties, establish consequences of exercising their rights, discharge of and default on duties. Various combinations of rights and duties and sanctions for violation thereof should inspire the conduct aimed at attainment of set objectives. Fixing of such model in law will affect the conduct motivation of governmental bodies, officials thereof, and persons representing private interests[2].
The first step of the systematic approach to analyses of the civil law functioning regularities is to restore the functional structure of the civil law. For the purpose, it is necessary to determine functioning units thereof on the basis of the Civil Code of RF (the CC RF). The central unit of the functional structure of the civil law system is the persons exercising private interests (para. 2, Art. 1 of the CC RF). The next unit performs functions of the current public control over actions of persons realizing private interests. The unit includes:
1. Civilian registry offices whose functions comprise registration of accrual, change, and termination of a civil status (para. 1, 2, Art. 47 of the CC RF).
2. Guardianship and trusteeship authorities whose functions include emancipation (part 2, para 1, Art. 27 of the CC RF), supervision of guardians' and trustees' activities (para. 3, Art. 34 of the CC RF), appointment of an assistant (patron) for a capable person (para. 2, Art. 41 of the CC RF).
3. The notariat whose functions comprise verification of lawfulness of consummated transactions, including legal capacity of the parties thereto (para. 3, Art. 160, Art. 163 of the CC RF).
4. Law enforcement agencies which are entrusted with the statutory registration of legal entities (Art. 51 of the CC RF) and real estate transactions (Art. 164 of the CC RF).
5. The court is another body performing functions of the extraordinary public control over results of persons' private interests realization, in particular: control over natural and legal persons' interests exercise with respect to their compliance with public interests (para 4, Art. 23, Art. 24, part 2, para 2, Art. 61 of the CC RF); recognizing a person as missing, his location unknown (articles 42, 44 of the CC RF); declaring a person demised (Art. 45, para. 1, Art. 46 of the CC RF); recognizing a person as legally incapable or capable (para. 1, 3, Art. 29; para 2, Art. 30 of the CC RF); incapacitation of an individual (para. 1, Art. 30 of the CC RF); informing guardianship and trusteeship authorities about recognition of a person as incapable or incapacitated (para. 2, Art. 34 of the CC RF). The unit implementing a function of restoration of violated private interests which are not contrary to public ones is the institute of court bailiffs.
6. The next unit performing a government function in the civil law system has several levels:
6.1. The highest government level is assigned to the legislator (part 2, para. 2, Art. 1 of the CC RF), which introduces regulatory restrictions, in favor of public interests, of persons' actions pursuing private interests.
6.2. The next hierarchical government level is assigned to the President of RF, who realizes this function through his decrees of the civil nature (para. 3, Art. 3 of the CC RF).
6.3. The third government level is assigned to the Government of RF, which realizes this function through its decrees (para. 4, Art. 3 of the CC RF).
6.4. The forth government level is assigned to ministries and other federal executive authorities which, pursuant to para. 7, Art. 3 of the CC RF, issue acts having civil content in pursuance of the Russian Government decrees.
It should be noted that at this last level the governmental bodies are assigned both the functions of government (para. 2, Art. 57 of the CC RF) and control (para. 3, Art. 57, para. 3, Art. 61 of the CC RF), and in some cases - the functions of an owner (para. 1, Art. 125 of the CC RF).
The aforementioned multi-functionality of a governmental body, for example, of the Ministry of Property Relations of the Russian Federation which is assigned the functions of units which are under control, controlling, and governing, brings about disruption of hierarchy in the functional structure of the civil law system which excludes existence of a body exercising public control over its own economic activities. L.I. Abalkin, A.V.Buzgalin, Yu.M.Osipov, L.I.Shevchenko, V.P.Shkredov are also of the opinion that it is necessary to divide controlling and economic functions between governmental bodies and business entities[3].
The functional units thus being determined, the civil law system may be sketched out as in Fig. 1. The arrows in the figure show functional connections between principal units of the system.
Figure1. Functional structure of the civil law.
The information obligatorily communicated by persons to the current control bodies (arrow 1) underlies the current control over persons' private interests realization. The bodies of the current control exert reverse influence on persons who realize private interests (arrow 2). This influence is exerted not only on the basis of the information communicated by persons under control (arrow 1), but also pursuant to normative acts of governmental bodies (arrow 3). A unit of extraordinary control whose functions are performed by the court is provided for the cases when realization of private interests is breached by the parties themselves (arrow 4). Sanctions against a lawbreaker in the principal unit are applied, following results of court proceedings, with the help of legal (arrow 5) and factual (arrow 6) means. To perform the last function, a judgment is transferred to a bailiff who carries out the executory process (arrow 7).
With a view to ensuring development of the civil law system, improving the structure of its units, a feedback between the unit of extraordinary control and the governing unit is provided for (arrow 8). The feedback is realized through the right of legislative initiative which is vested in the court and exercised by making suggestions to bills on the basis of generalization of court rulings delivered in civil cases.
It is important to note that the principal unit in the civil law system is governed indirectly through normative prescriptions mandatory for the units of the current and extraordinary control (arrows 3, 9).
Let us consider the stability of the civil law functional system.
For the purpose, it is necessary to consider peculiarities of its functioning in absence of some of the units. The principal unit of the civil law system is provided for realization of private interests. Its component composition may be pictured as follows.
Figure 2. Component composition of the unit of private interests realization.
The essence of functional connections between the principal unit components consists in that a person by his actions strives to gain or alienate a certain benefit. With that end in view he enters into legal relations with another person - alienator of the desired benefit or beneficiary. At that, the persons' actions have opposite directions.
By considering the outlined unit as a system, we will discover that consecutive nature of its components connection characterizes the system as disconnected, i.e. extremely unstable. In fact, as soon as one of the privies breaks its engagement to transfer the benefit to the other privy, the whole unit becomes inoperative, i.e. realization of lawful private interests will cease. That is why a unit of feedback - the court - is introduced, which performs the function of the extraordinary control over persons' actions, for example, by way of consideration of a person's claim against its counterpart's breach of engagements and delivery of a judgment. The institute of bailiffs as a unit performing the function of restoration of violated interests supplements the judicial unit. Together they make the system closed, i.e. stable to perturbations conditioned by internal processes in the principal unit.
It should be noted that the objective of the obtained three-unit system is to realize only private interests. If there are no conflicts between the parties, the principal unit of the system may function for a long period of time in detriment of public interests in the sphere of the civil law (ineffective use of socially important property, incomplete tax payments, etc.).
Just for this reason the obtained three-unit structure is supplemented by one more unit of the feedback represented by executive authorities who exercise the current control over persons' observance of statutory public interests in realization of their private ones. The resulting closed system acquires features of stability with respect to persons' disturbing effects in the principal unit aimed at violation of public interests, which are legally fixed for a certain span of the society life.
The society public interests evolve with time, which evolution is conditioned by both external - geopolitical factors and the evolution of individuals' interests. The individuals' interests evolution is generalized by the court practice in the form of proposals to bills sent to legislative bodies for evaluation of their compliance with the society public interests at the stage under consideration. A similar work is performed by executive and legislative authorities when studying the impact of economic interests of a foreign country and businessmen on the national civil law system.
The results of the analyses are expressed in rule-making which is a function of government and ensures realization of the principle of the civil law system development. In the civil law system under consideration all principles of the system approach to modeling of public relations are realized:
- Priority of the global objective (a public interest prevailing over a private one) is ensured by the extraordinary and current control over persons' private interests realization and rule-making function of governmental bodies.
- Effectiveness of the civil law system functioning may be evaluated only proceeding from the principle of its integrity, i.e. joint consideration of the system as a whole in aggregate of its components.
- Evaluation of functioning of any current system unit may be done only proceeding from the principle of interconnection, i.e. taking into account all connections thereof with the other units of the system.
- Application of the principle of hierarchy to the civil law system development allows, apart from the unit of private interests realization (lower level), to identify several public control units e and the governing unit in the system (upper level).
- Use of the principle of functionality allows to evaluate structural inaccuracies in controlling and governing units and to formulate criteria for their elimination.
- The principle of the civil law system development is ensured by existence of the governing unit and its necessary feedback with other units of the system.
- The principle of differentiation is realized on different levels in all the system units. Thus, on the lower level - the unit of private interests realization - decisions are made by the principle of decentralization, i.e. by persons' will within the framework established by the legislator's and controlling bodies' prescriptions. On the extraordinary control unit level - the court - judgments in contentious cases are also made independently of higher units but pursuant to the current regulatory base.
On the level of the current control unit (a ministry, a department), resolutions on terms and means of control within the purview of regulations are also independent. Administrative functions are divided between the Federal Assembly and the Government of RF in such a way that pursuant to current laws the Government is afforded an opportunity of discretion (within a legally provided scope) in adoption of administrative acts of civil law content.
- The principle of uncertainty allows to envisage mistakes in the work of the system with unclear structure as, for example, in combining of functions of administration, control, and realization of interests of an owner within the Ministry of Property Relations of the Russian Federation.
Let us now consider whether and to what extent the principles of the civil law fixed in the CC RF comply with the principles of a stable system development. The principles of the civil law are deemed as governing provisions, ideas, fundamentals of the civil law which express objective regularities of the tendency and needs of the social development, determine the essence of the sphere, are reflected and fixed in the rules of current laws, and are obligatory by virtue of their legal fixation[4].
This definition allows to pick out the criteria pursuant whereto the mentioned governing provisions taken for development of the civil law system will attach thereto an objective rather than a subjective character.
Since the matter is about development of a system (in our case - the civil law system), its principles are essentially the principles of any system development adjusted to the specific nature of the civil law system. General system principles express objective regularities of the civil law system development. Therefore, their general obligatory significance does not ensue from the fact of legal fixation; in some cases they may not coincide with the subjective will of the legislator. The fact they are not fixed in laws or fixed as guiding principles of other rules which do not coincide with objectively existing regularities of a system development, will, by all means, bring to contradiction between the objective set before the system and its functional capabilities which will prevent it from attaining the set objective using available means.
Let us compare the above-mentioned general principles of a system development with the principles of the civil law. For the purpose, it is necessary to determine at first the objective of this system development. When the system of the Soviet civil law was developed, its objective was directly stated in the Civil Code, for example, Article 1 of the CC RSFSR of 1964 determines the objective as "creation of material and technical resources of communism and still more complete satisfaction of material and spiritual needs of individuals". Developers of the civil law system of modern Russia has not pointed out the main objective thereof. Therefore, the objective of the system may be determined proceeding from the analyses of its functional designation and connections of its components. For the purpose let us consider correlation between the general principles of the system development and the principles of the Soviet civil law that was in force in the USSR. The Soviet civil law principles are worded as follows:
1. Intensified safeguard of the socialist property and the socialist system of economy.
This principle is a legal conception of the principle of an absolute priority of the global objective of the civil law socialist system where everything should be aimed at achievement of the global objective set forth in Art. 1 of the CC RSFSR of 1964: " The Civil Code of the Russian Soviet Socialist Republic regulates property and the connected non-property relations with a view to creating a material and technical resources of the communism and more complete satisfaction of material and spiritual needs of individuals. The socialist system of economy and the socialist ownership of instruments and means of production underlie property relations in the Soviet society".
2. Ensuring planned and contractual discipline.
This principle is fixed in part 2, Art. 1 of the CC RSFSR of 1964: "Economic life in RSFSR is determined and guided by the state plan of national economy[5]. In system categories it may be defined as a principle of complete centralization and is an antipode of the principle of decentralization. Lack of "internal activity" in such a system entails inflexibility, and with increasing complexity of economic tasks it brings about overcharging of the main component and delivery of wrong administrative solutions, which was attested by the last years of the socialist economy system practice.
3. Ensuring material interest in the results of work.
In conditions of planned economy, hourly work of employees, and strict tariffing of their remuneration this principle should be attributed to the labor law rather than to the civil law, since it regulates relations between an employee and an employer - the State. With due regard for the statistical data according to which no outgrowth of labor productivity with simultaneous labor process mechanization has been observed in the Soviet Union since middle fifties of XX-th century, realization of this principle was not widely ensured within the framework of labor law.
In the narrow sphere of civil relations where this principle was legally fixed (royalties for use of works of literature, science, art, inventions, and innovations), the Soviet art, science, and engineering were ones of the most advanced in the whole world. Within the framework of the civil law system this principle is one of the few examples of positive feedback between activities of subjects of the system's principal unit (a creative worker in relations with a public organization), when the initiative activity of the parties was not restricted but encouraged by additional material incentives for a creative worker.
4. Maintenance of the cost accounting and pursue of the policy of economy. In view of the fact that the cost accounting is a form of the planned economy carried out by socialist enterprises when prices are set by a central planning body (Art. 258 of the CC RSFSR), the above-mentioned principle is only a detailed elaboration of the principle of comprehensive centralization discussed above.
5. Combination of private and public interests in the civil law conveys the principle of hierarchy of the system according to which, in case of a conflict between private and public interests, the latter is given priority.
6. True equality of citizens is transformed within the framework of the civil law into recognition of all citizens' legal capacity. (Art. 9 of the CC RF). This principle cannot be attributed to the system as a whole, i.e. it cannot be extended arbitrarily to all subjects of the system under review. It is actual only within the principal unit where horizontal connections between subjects - the persons realizing private interests - are established.
In the system categories the principle of decentralization corresponds to the above principle, when resolutions within the principal unit are adopted on the basis of equal concerted wills of the parties.
Let us consider the principles underlying the CC RF of 1994.
1. The first principle "recognition of equality of privies in civil relations"[6] is a modification of the principle of equality of individuals' legal capacity.
Admission of the private entrepreneurial initiative to the national economic turnover brought about the necessity to extend this principle to all privies of civil relations pursuing the private interest, including both legal entities and governmental authorities consummating civil transactions. As mentioned in the analyses of the CC RSFSR of 1964, it is not a system but a private subsystem principle which operates within the principal unit of the civil law system, which is characterized by a horizontal type of connections between the subjects. Therefore, only by considering this unit as a relatively isolated system it is possible to correlate it with the system principle of decentralization underlying its functioning.
2. The second principle - "property inviolability"[7].
In terms of its content, the principle repeats the first one, but at the same time it constricts its operation by the framework of rights in rem. The wording as such is incorrect because it attaches a feudal content to the absolute relationship atypical in a bourgeois law: a proprietor or another subject of the substantive law is opposed, as a creditor, by all other indebted persons. The fact that the principle has no system, absolute character is confirmed by the priority of public interests over private ones in solution of the issue about forced termination of the property right not only in law of western capitalistic countries, but also in the national law (Art. 238, para. 1, Art. 239-247 of the CC RF).
3. The third principle - "freedom of agreement"[8] concerns the civil law system unit (Art. 422 of the CC RF) which within the law purview is vested with the autonomy of will in resolving whether to conclude an agreement (para. 1, Art. 1, Art. 421 of the CC RF). This principle reflects the system principle of decentralization as applicable to the principal unit of the system.
4. The forth principle - "prohibition from arbitrary interfering into private affairs"[9] is a general system principle and is aimed at decreasing the uncertainty level when the civil law system functions in the conditions of non-normative conduct of parties to the relations of all levels of the system under consideration (Chapter 8 of the CC RF).
5. The fifth principle - "necessity to exercise unhindered civil rights"[10] details the general system principle of uncertainty. With a view to decreasing the level of uncertainty of the civil law system, this principle prohibits both the local administration from restricting movement of goods within Russia if such movement is done within the framework of an entrepreneurial and another activity not prohibited by law (para. 1, Art. 1 of the CC RF), and the entrepreneurs from conducting the activity aimed at restricting the competition and abusing its predominant position in the market (Art. 10 of the CC RF). The principle of hierarchy of functions of the system separate units underlies application of this principle.
6. The sixth principle - "guarantee of rehabilitation of infringed rights" defines concretely the system principle of uncertainty. Pursuant thereto the uncertainty of the legal status of a person whose legal rights are infringed is eliminated by the system means in the manner and scope provided for in Articles 11-16 of the CC RF.
7. The seventh principle - "judicial protection of an infringed right"[11] highlights the priority of the extraordinary control unit (the court) over other remedies (Art. 11 of the CC RF), i.e. expresses the principle of hierarchy of the stability restoration means in the civil law system. Different authors also attribute a number of other provisions to the civil law principles.
8. The principle of option (Art. 9 of the CC RF) is revealed as follows:
8.1. Taking independent decisions on whether to join civil relations or not.
8.2. Requesting a counteragent to perform its obligations, including through a court, or abandoning protection of one's rights[12].
It should be noted that under close scrutiny the first part of this principle repeats the above- considered principle of "freedom of agreement", and the second part thereof cannot be attributed to the general system principles because it contradicts one of the main objectives of the civil law system - restoration of violated status by all available means. Abandonment of a privy in public relationship of exercise or protection of his right does not entail loss of the right concerned (para. 2, Art. 9 of the CC RF) and therefore it introduces additional uncertainty to the system of relations in which his counterpart can never be sure of finality of such decision. Besides, representatives of not only private but also public interests (civilian registry offices, a notariat, guardianship and trusteeship authorities, etc.) may be privies in civil relations, who do not come within this principle's purview.
9. The principle of permissible orientation of the civil regulation[13], which includes the general rule: "permitted is whatever is not prohibited by law". This principle is an expression of the system principle of decentralization according whereto persons may take independent decisions on joining civil relations within the legal framework.
The above-stated analysis of the principles defined as "basic fundamentals" of the Civil Codes of 1964 and 1994 in Russia allows to make the following conclusions:
1. Only three principles out of eight main system development principles are clearly worded in the civil law.
Those seven or nine provisions which are defined as general (basic) fundamentals of civil law turn out to be, under close consideration, either qualifying or duplicating rules incorporated in the three basic principles of the system development. Actually it does not mean that all the system principles which were not expressed in normative and doctrinal wordings were not reflected in the civil law system.
For example, realization of the principle of development of the civil law system is guaranteed by the rule-making system fixed in Articles 3-7 of the CC RF and the right of legislative initiative vested in judicial authorities of RF. Effect of the principle of functionality is revealed in rules related to rights in rem (Articles 266-270; Articles 294-300 of the CC RF). Pursuant to the above-mentioned normative prescriptions, property relations involve a public body as a proprietor and a person who receives the property for use. However, the functional analysis of the same rules shows that a public body in every case is vested only with the function of a public control over the user's acts, and the user is vested with every right of a proprietor in the scope determined by a law for the given property and relations with respect thereto.
With due regard for the priority of functions over a structure, this principle allows to extend the notion of the property right to the above-mentioned rights in rem. The operation of the principle of unity reveals itself in the civil law being studied within the framework of the whole law system on the basis of the principles unity, the state system, fundamental criteria, and conceptual machinery. The principle of connection finds its most vivid application in the analysis of legal relations, when the rights and duties of one party with respect to a subject are considered in inseparable connection with corresponding rights and duties of another party to the same relationship.
At the same time, there is a significant difference in application of the system principles in Russian civil laws of 1964 and 1994. The main difference consists in that there is no wording of the principle of global objective in the CC of 1994. The system development without clearly formulated objective loses any sense, but in the CC RF of 1994, being the system in force, an obscure objective may be revealed by determination of the tasks which are solved therewith. Thus, considering the scope of the principle of hierarchy in the above-mentioned two normative acts, we come to the conclusion that its application is restricted in the CC RF of 1994 at the expense of rejection of public and private interests hierarchy development in protection of various owners' rights (para. 2, Article 21 of the CC RF and Articles 90, 153 of the CC RSFSR).
Analyzing the use of the principle of decentralization (centralization) in the development of the civil law system, we find out that in both the codes this principle is stated four times in different versions of civil law principles. However, in the CC of 1964 it is used twice to enhance the centralization of administration (principles 2 and 5) and twice - to expand the scope of eventual decentralized solutions (principles 3 and 7).
In the CC of 1994 this principle is used only for increasing the degree of decentralization in the system functioning (principles 2, 3, 9). The novelty of the CC of 1994 consists in a wide use of the system principle of uncertainty for elimination of eventual uncertainties in the legal status of parties to legal relations (principles 4, 5, 6) and admission, as in the CC of 1964, of a party's option in exercising its rights (principle 8). As a result, it may be stated that the newly developed civil law system of the 1994 possesses greater stability, as compared to that of 1964, in respect of the perturbation effect due to a wide application of decentralization of governing resolutions adoption and decrease of uncertainty factors in the system itself.
The objective of the newly developed civil law system may be determined proceeding from the legislator applying two opposite regulation mechanisms of the property right to the results of the collective labor, depending on who owns the production facilities in the process of appropriation, i.e. new goods production. In case it is a matter of a wage-earner deprived of production facilities, the legislator refuses to recognize him as having a share corresponding to his contribution to the produced goods. The wage-earner is guaranteed only a right of remuneration in the amount not less than the minimal labor remuneration rate (para. 3, Art.. 37 of the Constitution of RF). When the matter is of a production facilities owner, the legislator vests him with the property right to the results, goods, and income generated by wage-earners' collective labor even in the event the production facilities owner takes no part in production of new goods. Thus, the main objective of this system does not consist in "a more complete satisfaction of material and spiritual needs of individuals".
2. Criteria of Stability of Normative Regulation of Civil Relations
Normative prescriptions in the civil law provide for certain sanctions for deviation of the parties' conduct from the actions set forth by a law rule. The aim of these sanctions is to make the parties fulfill their contractual obligations in kind or to perform a compensatory function if a breached obligation cannot be discharged in kind. In order to estimate effectiveness of applied sanctions, it is important to know the stability criteria of the civil regulation system. To determine these criteria it is suggested to use mathematical methods worked out for development of the automatic regulation system[14]. For the purpose, it is possible to use, as a formalized statement of the task to be solved, a graphical presentation of interaction of parties to civil relations proposed by R.O. Halfina for the case when an achieved result does not coincide with legal requirements, and an authoritative interference of the State is needed to transfer the parties to the final legal status established by the rule[15].
Figure 3
In Figure 3 A and Z are initial and accordingly ultimate legal statuses of the parties to the obligation set forth by the rule.
G is a position of the parties resulting from actions which do not coincide with the rule requirements.
Arrow 1 shows the direction of public control authorities influence on the parties to the obligation, which is aimed at the parties transfer to the ultimate legal status Z set forth by the rule.
To solve the problem, let us depict the required and actually existing legal statuses in the system of the civil law regulation as shown in Figure 4.
Here the civil law rule acts as a comparison element in that part of its sanction which contains description of the hypothesis for the parties to the breached relationship. In case there is a gap in the regulations related to the hypothesis of a sanction, the table of property statuses may be used as an additional element of comparison[16].
Figure 4
The part of the rule sanction which contains disposition of the parties' to breached relationship and determines the degree of liability for the legal offense acts as an element of intensification of the signal of mismatch between the set rule and the actual conduct of the parties.
The court acts as an executive element of the system affecting the faulty debtor as prescribed by a law rule.
Now let us determine the transfer functions of each element of the system obtained by depicting the latter as shown in Figure 5.
Figure 5
The transfer function of the element of comparison:
W1 (p) = K 1 = Y/D;
where Y - the creditor's losses incurred as a result of the debtor's default on its obligations;
D - difference between the scope of required and actually performed actions, expressed in the same indices as the damage;
p - the root of a characteristic equation, which determines the conduct (stability) of the system.
The transfer function of the element of intensification:
W2(p)=K2/(1+Ty p);
where K2 - the extent of a sanction;
(1+Ty p) - the creditor's damage.
Ty - the time constant (persistency) of the intensifier.
The law, as a rule, restrict W2(p)=1 and only in certain cases admits W2(p)>1.
The transfer function of the executive system:
W3(p)=K3/p(1+Tm p);
where K3 - the coefficient of the court transfer measured in terms of speed (the speed of court proceedings);
Tm - the time constant of the court (time of a case preparation for proceedings).
Since the chain of regulation is structurally successive, the transfer function of this disconnected chain will be as follows:
W(p)=W1(p) W2(p) W3(p)= K/p(1+Ty p)(1+Tm p);
Where K=K1 K2 K3 is the general rate of intensification of the disconnected chain.
The characteristic equation for the chain is as follows:
1+W(p)=0;
After substitution of W(p) we receive the following:
Ty Tm p3 + (Ty + Tm) p + p2 + K=0;
The condition of positivity of its coefficients necessary for a stable functioning of the system is met when K>0.
The additional condition a1 a2 > a0 a3 comes to the following: a0 = Ty Tm;
a1 = Ty+Tm;
a2 = 1;
a3 = K,
i.e. to the inequation K < (1/Ty + 1/Tm).
It follows from the inequation that the increase of each time constant (i.e. time of an offense identification Ty determined by law or by contract and the time of a case preparation for proceedings Tm) negatively affects the stability of the system, since the limit value of the general rate of intensification K, which keeps the system as stable yet, decreases.
3. Effect of Engrafting of International Law Rules on the Stability of the National System of Civil Relations Legal Regulation.
Engrafting of international law rules in the national civil law system is currently effected by providing reference rules in Russian civil law. From the position of the system regulation, engrafting a parallel element of the signal intensifying mismatch with K`2` coefficient different from the initially established K2coefficient, is equipollent to complication of the initial national system. At that the following ratios of the coefficients are possible:
K2 > K`2;
K2 = K`2;
K2 < K`2;
In the first case K2 > K`2 implies that the rules of the international law provide for less strict sanction for an unlawful conduct than the national law rules. In this case priority application of the international law rules entails reduction of stability of the national legal system functioning.
In the third case when K2< K`2, the liability pursuant to international rules is heavier than pursuant to national law. In this case it is preferable to apply international rules. In the second case when K2 = K`2 the liability both pursuant to international and national laws is equal. In this case the stability of the system does not change. The stated ratios are criteria of the estimate of the international law rules applicability to national legal relations from the viewpoint of the stable functioning of the national law system. International rules should be engrafted into national laws in the cases when K2 < K`2, since it furthers enhancement of the national legal system stability. Engrafting of international rules when K2 = K`2 does no harm to the stability of the national legal system. Finally, when K2 > K`2, it is undesirable to apply international rules, since it decreases the stability of legal regulation, i.e. contradicts public interests of the State.
Conclusions: The stability of the civil law system functioning increases in the following conditions:
- Decrease of the threshold degree of a legal offense whereto sanctions are applied pursuant to legal rules. In contractual relations this condition is ensured by splitting of an obligation fulfilment into maximal quantity of interim stages. The achieved minimization of time periods of separate stages performance allows to ensure the diagnostics of mismatch between the required and actually fulfilled scope of work at the earliest stages.
- Excess of a faulty debtor's property liability degree over the scope of damage inflicted to a creditor.
- Appointment of a vicarious debtor within the framework of contractual obligations.
- Reduction of the term of a case hearing with an extensive use of the measures of an action security by attaching the debtor's property.
REFERENCES:
[1] B.P. Kurashvili, Ocherk teorii gosudarstvennogo upravleniya (An Outline of the Theory of the State Administration), Nauka, M., 1987
[2] R.O. Halfina, Pravo kak sredstvo sotsialnogo upravleniya (Law as a Means of Socialist Administration), Nauka, M., 1988, pp. 72-74.
[3] L.I. Shevchenko, Problemy formirovaniya dogovornykh otnosheniy postavki v usloviyakh stanovleniya v Rossiiskoi Federatsii rynochnoi ekonomiki (Problems of Formation of Delivery Contractual Relations in the Situation of the Market Economy Formation in the Russian Federation). Thesis for a Doctor's degree, Tomsk, 2001, pp. 27-28.
[4] The Civil Law. Part 1, edited by A.G. Kalpina and A.I. Maslyaeva, M., Yurist, 2000, pp. 27-28.
[5] Soviet Civil Law, Part 1, edited by V.A. Ryasentseva, M., Yuridicheskaya Literatura, 1986, pp. 21-27.
[6] Commentarii chasti pervoi GK RF dlya predprinimatelei (Comments on the First Part of the CC RF for Entrepreneurs), M., Pravovaya Kultura, 1995, edited by V. Kuznetsov and T. Braginski, p.27.
[7] Ditto, p. 28
[8] Ditto, p. 28
[9] Ditto, p.29
[10] Ditto, p.30
[11] Ditto, p.30
[12] The Civil Law, vol.1, edited by E.A. Sukhanov, M., Bek, 1998, p. 40.
[13] Ditto, part.1, edited by Yu.K. Tolstoi and A.P. Sergeev, S-Petersburg., Teis, 1999, pp. 15-16.
[14] See, for ex., V.A. Besekorski, E.P. Panov, Teoriya sistem avtomaticheskogo regulirovaniya (The Theory of Automatic Regulation Systems), M., Nauka, 1972, pp. 133-167.
[15] R.O. Halfina, Obschee uchenie o pravootnoshenii (The General Theory of Legal Relashionship), M., Yuridicheskaya Literatura, 1974, Figure 2 on p. 309.
[16] V.P. Pavlov, Metod sistematizatsii imuschestvennykh pravootnosheniy v grazhdanskom prave (The Method of Systematization of Property Relations in the Civil Law) in: Gosudarstvo i pravo (State and Law), No. 1, 1999.
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