Issue 4 (18) 2012

Kuznetsova APPLICATION OF CIVIL AND LEGAL LIABILITY

APPLICATION OF CIVIL AND LEGAL LIABILITY

O.A. Kuznetsova

Perm State National Research University

15, Bukirev st., Perm, 614990

E-mail: This email address is being protected from spambots. You need JavaScript enabled to view it.

The article is devoted to the least studied aspect of the civil and legal liability – to its application. The modern civil research of this sphere is mostly aimed at the problems of the liability notion, the list of liabilities, reasons and conditions of their application.

The realization of any liability passes through three principal phases. The first one is associated with settling the fact of the offence and its qualification (reasons, conditions of liability, circumstances excluding the illegality of the behavior). At the second phase, the amount of liability is defined (type and size of the penalty). The third phase is the direct assignment (application) of the legal liability.

With this, there is no theoretically justified concept of liability application in the civil law. The civil legislation norms on liability application are segmental, inconsistent and lacking general concept.

It is necessary to develop a single institute of the civil and legal liability application and complement it with the regulation of the liability amount definition principles, reasons for relieving from liability and liability post-application (reason for escaping the already awarded civil and legal liability).

When defining the amount of the liability it is necessary to keep in mind that it is based on the principle of full compensation of the caused negative effect, but it can be limited in sanction of the corresponding article for a separate offence.

In the civil law, there are the elements of the general legal institution of the mitigating circumstances and so as a consequence – circumstances influencing the amount of liability: the guilt of the complainant, the property status of the harm-doer, a vivid non-compliance of the forfeit and the consequences of breaking the obligation, the character of corporal and mental hurt of the complainant, as well as the extent of guilt of the mental harm-doer in case of bearing the liability for the guilt.

The reasons for relieving from the civil and legal liability are the expiry of the limitation periods with the corresponding claim of a party in an argue, low significance of the offence, refusal of the creditor to bring the offender to liability (forgiving a debt), conciliation with the offender.

In the civil law, the situations are possible when the offender is to compensate for the damage in accordance with the decision of the court, the official enforcement is activated, but with this subsequently he is relieved from this compensation partially or fully. As the size of the already defined amount is being changed, it is practicable to use term “post-application” of the civil and legal liability.

Keywords: civil and legal liability; civil and legal liability application; relieving from the civil and legal liability; limitation of the civil and legal liability; low significance of the civil offence

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