SECURITY (GUARANTEE) PAYMENT AS AN INNOMINATED ENFORCEMENT OF OBLIGATIONS

Abstract

The article is devoted to clarifying the features of a security (guarantee) payment as an innominated method of securing the enforcement of an obligation. As a result of the study, there are provisions that can serve as a basis for constructing a sub-institution of a security (guarantee) payment in the obligation law of Ukraine. The conclusion is justified that a security (guarantee) payment is possible only when the material objects of the main and accounting obligations are homogeneous. Homogeneity in security payments is that the subject matter and mode of performance of the principal obligation can be replaced by the same performance, but at the expense of reserved funds. A monetary security payment cannot provide non-monetary obligations in an obligation, since their fulfillment cannot be replaced by a monetary provision. It is proved that the security (guarantee) payment must have separate characteristics of the deposit, pledge, and predetermined losses. A distinctive feature of a security (guarantee) payment, in comparison with other methods of securing the performance of the obligation, is the weakened emphasis, which manifests itself at the stage of the occurrence of the obligation, allows to ensure obligations arising in the future. The regulatory fixation of a security payment in the Civil Code of Ukraine, of course, will be a logical result of its application in practice as an innominated method of ensuring the fulfillment of an obligation. The conclusion is justified that a security (guarantee) payment can perform a punitive function only indirectly: through the application of civil liability measures. In other words, a security payment is only a financial source of satisfaction for claims for forfeiture or damages, but unlike the mentioned measures of liability, a security payment does not have a punitive mechanism in its structure. A security payment is characterized by the existence of a compensation function that aims to restore the property sphere of the creditor, and not acting as a means of punishing the debtor. Attention is drawn to the need to introduce a certain mechanism for allocating funds from the estate of the person to whom they are transferred as a security payment. This mechanism will balance the interests of participants in civil traffic, leveling the risk of their non-return for the person who transferred money as a security payment.