МІСЦЕ ДОГОВОРУ ДОВІЧНОГО УТРИМАННЯ (ДОГЛЯДУ) У ЗОБОВ’ЯЗАЛЬНОМУ ПРАВІ

Abstract

The purpose of this article is to determine the place of the contract of lifelong support (care) in the law of obligation. It has been established that in modern civil legislation and doctrine, the approach to understanding the legal essence of an obligation, as a legal relationship between a creditor and a debtor, characteristic of Roman private law, has been preserved. As a result of the study of the doctrinal positions regarding the place of the contract of lifelong support (care) in the mandatory law, it was concluded that there are three positions of scientists: 1) the contract of lifelong support does not have the right to exist; 2) the lifetime maintenance contract is a type of other civil law contracts; 3) the lifetime maintenance contract is an independent civil law contract. It was established that the first position of the scientists was caused by the prevailing Soviet-era requirement for the rules of behavior of Soviet people, which expressed the essence of communist morality," therefore the contract of lifelong maintenance completely contradicted the rules of socialist coexistence. The second position of scientists is due to the fact that this contract was first legally regulated in the Central Committee of the Ukrainian SSR in 1963 within the scope of the contract of sale. It has been established that the life maintenance contract has received legal regulation as a type of annuity contract in many countries of the world (civil codes of France, Germany, Moldova, etc.). The position of scientists regarding the independent nature of the lifetime maintenance contract is explained on the basis of its characteristic features, which are determined by the legal nature of this contract: 1) the purpose of concluding the contract is the alienation of property rights and the provision of material maintenance (care); 2) retaliatory character; 3) real character; 4) bilateral; 5) fixed-term; 6) fiduciary (trust) character. To date, the debate about the place of a life-long maintenance (care) contract in the law of obligations was finally resolved in the Central Committee of Ukraine of January 16, 2003 by separating a separate chapter 57 "Lifelong maintenance (care)" in sub-section 1 "Contractual obligations" : obligation, right of obligation, lifetime maintenance (care) contract, legal nature, independent character.