Perm University Herald. Juridical Sciences. 2018. Issue 3 (41)

V. G. Golubtsov, Perm State University

Introduction: dealing with scientific knowledge about obligations involves complicated and diligent work on comprehending the essence of the legislative changes, which is necessary to evaluate the sufficiency of the legislative decisions. The subject of the author’s attention are the relation between the general and special norms of the law of obligations and such a specific method of obligation fulfilment as taking over the debt. The author also addresses terminological issues of the branch of law in question by researching the legislative enshrinement of such normative constructions as the interest on the financial obligation and the right of the creditor to claim in court for the in-kind fulfilment of the obligation (astreinte). Analyzing changes and amendments in the system of obligations, the author touches upon the problems of fulfilling subsidiary obligations of regulatory nature and fulfilment of obligations by a third party. The task of the present research is to focus the attention of civil law scholars on the problems of the obligation law theory that are unresearched, little-researched or simply have not yet been noticed by the doctrine. Purpose: based on the backbone postulates on obligations, to targetedly address the certain issues of the law of obligations in its post-reform period. In the author’s opinion, a detailed analysis of specific innovations and reformed institutions can help to clarify the intentions of the legislator and the results of the introduced reform of the law of obligations. Methods: the methodological basis of the research is the general scientific (dialectical) method of cognition of the obligation law and its norms. Specific scientific methods (formal-juridical, logical, systematic approaches) were also used. Results: relative legal relations are heterogeneous and have their own system, which has not yet been studied by modern civil law science. Obligations are a part of this system. Its other parts are the corporate, restitutionary and secundarious relations. This classification is a methodological reference point for scientific judgements concerning the corresponding fragments of the general subject matter of obligations. The correct positioning of obligations in the system of all the relative relations is one of the necessary fundamentals for judgements about the correlation between general and special norms in the law of obligations. The author qualifies it as the substitutional one with the priority of special norms, which are a primary resource. And only after this resource is exhausted and after the lack of special norms is discovered, general norms on obligations are applied, those included into Chapters 21–26 of the Civil Code of the Russian Federation. As for the problem of using the term “obligation” in the financial law science and budget legislation, the author invokes the arguments of the representatives of terminological science (terminology studies) and comes to a conclusion that there are no grounds to speak about the inter-branch migration, borrowing and re-terminologization. “Obligation” is a universally used term. For civil law, the relevant term is “civil law obligation”, which implies the corresponding legal phenomenon and branch-specific notion. For finance law, it is “financial (tax, budget) obligation”. The author has also formulated a proposal to possibly use such a scientific notion as “regulatory subsidiary obligation”. Having researched the problem of the fulfilment of the obligation not personally by the debtor but by a third party, the author claims that the problem of entrusting a third party with a duty to perform the obligation falls within the sphere of relations between the third party and the debtor and does not affect the interests of the creditor. Thus, the provisions on imposing the fulfilment of the obligation on the third party by a debtor should be excluded from Item 1 of Article 31 of the Civil Code of the Russian Federation.