On the main purpose of the kinds of the security of the obligation execution

Abstract

In the article it is investigated the essence of the kinds of the security of the obligation fulfillment from the point view of their functional purpose. The understanding of the types of the security of the obligation execution is under doubt by the author, exclusively, asmeasures directed to the stimulation of the debtor to proper fulfillment of the contractual obligation. It is given grounds that the stimulation function of the execution which is traditionally attributed to the kinds of the security, is not the main function of the latter. The kinds of the security of the obligation execution stimulate of the debtor to the proper fulfillment of the contractual obligation by the very fact of its existence, passively. The implementation of these measures is solely related to the fact that the debtor secured a contractual obligation. Protective nature has all kinds of the security of the obligations fulfillment. Protective mechanism is the essence of the each of the kinds of the security of the obligations fulfillment. They are established in the case of a possible breach by the debtor of the secured contractual obligation, being by themselves a certain method of the protection that can be used by the creditor in the case of the breach by the debtor of the secured contractual obligation. It is given grounds that the kinds of the security, as to their essence, which is stipulated by their purpose, are the methods of the protection established by the contract or by law in the interests of the creditor in the case of a possible breach by the debtor of the contractual obligation. By this it is significantly decreased the emphasis of these institutions - from performing their function of ensuring of the proper performance of the debtor's obligations to securing the rights of the creditor by the way of giving him the obligation for the debtor's breach of obligation under order of protection his rights at the expense of the secured source - certain property (pledge and retain) or a third party's obligation to the creditor (surety and guarantee).