Abstract
Introduction: claims for recognition of a registered contract as terminated and the right of obligation as absent combine the following features: (1) they are declaratory; (2) belong to the category of negative ones; (3) are not explicitly stated in the law; (4) are recognized by judicial practice; (5) are aimed solely at eliminating legal uncertainty. The unity of features determines the need to analyze these types of claims within a single study. Purpose: to establish the reasons for the occurrence in practice of claims for recognition of a registered contract as terminated and the right of obligation as absent. Methods: general scientific (dialectical) method of cognition of scientific concepts of private law; special scientific methods of cognition: formal-legal method, historical-legal method, method of comparative legal studies, forecasting. Results: the transition of the claim for recognition of the right of obligation as absent to the category of remedies directly referred to in acts of official interpretation of law entails great risks. As soon as the emerging practice is recorded in an act of interpretation, the following will happen. Firstly, the number of cases of its use in practice will be likely to increase, which will entail an increased burden on courts. Secondly, there will appear the prerequisites for the full formal legalization of the phenomenon, as has already happened with the recognition of a contract as not concluded and the recognition of the right to a thing as absent. Should there be no registration actions in the Russian legal system, there would not be so many claims of a negative legal nature recognized by practice, including the claim for the recognition of a registered contract as terminated. Protective legal rules aimed at regulating claim-based relations that have the purpose of ensuring a more stable existence of regulatory relations are often formalized in the law, being widely applied in practice by the time changes are introduced into the law.
Highlights
The cases of negative recognition acknowledged by judicial practice and by acts of official interpretation include such a way of civil rights protection as recognition of a contract as terminated.It is noteworthy that the Supreme Commercial Court of the Russian Federation developed a more or less coherent system of provisions on the termination of contractual relationship only in the waning days of its existence: a plenary session shortly before its dissolution resulted in the Resolution of June 6, 2014 No 35 ‘On Consequences of Terminating a Contract’1
Para. 2 of Item 11 of the Resolution ‘On Consequences of Terminating a Contract’ gives explanations as follows: ‘If the contract provides for the right of a party to refuse contract execution without a reason, the party which exercises this right may unilaterally apply to the authority that registered the contract, with a request to register the contract termination, while presenting evidence of notifying the other party about the fact of the refusal to execute the contract (Article 165.1 of the Civil Code of the Russian Federation)’
Симметрия способов фиксации и способов защиты прав в национальном правопорядке Не будь в системе юридических фактов регистрационных действий, скорее всего, не существовало бы и необходимости называть в акте официального толкования права такой не поименованный в законе способ защиты, как признание договора прекратившимся
Summary
The cases of negative recognition acknowledged by judicial practice and by acts of official interpretation include such a way of civil rights protection as recognition of a contract as terminated. 63–64], то относительно возможности признания судом договора прекратившимся, а обязательственного права отсутствующим нормотворец продолжает хранить молчание Иски о признании регистрируемого договора прекратившимся и обязательственного права отсутствующим имеют следующие общие черты: 1) являются установительными, деклараторными; 2) относятся к числу негативных; 3) напрямую не названы в законе; 4) признаются судебной практикой; 5) направлены исключительно на устранение правовой неопределенности. The claims for recognition of a registered contract as terminated and the right of obligation as absent combine the following features: (1) they are declaratory; (2) belong to the category of negative ones; (3) are not explicitly stated in the law; (4) are recognized by judicial practice; (5) are aimed solely at eliminating legal uncertainty. We cannot yet conclude that the reception by the legislation of the practice being developed will be an inevitable result of the processes observed, but such a scenario appears to be possible
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