Inadmissible Refusals in the Russian Civil Law

Abstract

The paper provides systematization of inadmissible refusals in civil law enshrined in civil legislation and clarification of court practice. The author analyzes the reasons for fixing the inadmissibility of refusal through civil law cases, which include situations of protection of the weaker party in civil law relations. A specific characteristic of inadmissible refusals according to the way of their expression is proposed: with the presence or absence of legal consequences of inadmissible refusals. The “doctrine of the nullity of refusal” prevailing in modern Russian science and court practice is criticized as contradicting the fundamental principles of civil law (in particular, the principles of freedom of contract, inadmissibility of arbitrary interference in private affairs, etc.) and generally acceptable type of legal regulation peculiar to civil law. Some ways to overcome it are proposed. It is concluded that the resolution of the issue of recognizing a refusal as valid or invalid should be based on the correct qualification of the relevant norms, which fix certain legal opportunities for participants in civil law relations as imperative or dispositive.