Зобов'язання з множинністю суб'єктів у цивільному праві України

Abstract

Дисертація присвячена визначенню особливостей зобов’язальних відносин з множинністю суб’єктів у національній доктрині цивільного права. Виявлено дискусійні питання та запропоновано шляхи їх вирішення з метою вдосконалення законодавства і практики його застосування. Охарактеризовано науково-методологічні засади дослідження зобов’язань з множинністю суб’єктів. З’ясовано поняття та ознаки цивільно-правового зобов’язання. Досліджено ґенезу цивільно-правових зобов’язань з множинністю суб’єктів, їх правову природу. Здійснено класифікацію зобов’язань з множинністю суб’єктів. Значну увагу приділено загальній характеристиці зобов’язань з множинністю осіб (часткових, солідарних, субсидіарних), їх динаміці та правовим наслідкам у випадку порушення. Розглянуто теоретичні та практичні проблеми участі третіх осіб у зобов’язанні. Охарактеризовано підстави та правові наслідки заміни осіб у цивільно-правовому зобов’язанні. Розроблено конкретні пропозиції та рекомендації з питань удосконалення правового регулювання зобов’язань з множинністю суб’єктів в Україні. The thesis deals with the definition of the peculiarities of obligatory relations with the plurality of entities in the national doctrine of civil law. The scientific and methodological bases of research of obligations with a plurality of entities have been described. The concepts and features of civil liability are clarified. The genesis of civil law obligations with a plurality of entities, their legal nature has been studied. It has been set up the classification of liabilities with a plurality of entities. Considerable attention is paid to the general characteristics of obligations with a plurality of entities (partial, joint and several, subsidiary), their dynamics and legal consequences in case of violation. Theoretical and practical problems of third party participation in the obligation are considered. The grounds and legal consequences of the replacement of persons in a civil obligation are described. The paper substantiates the conclusion that it is necessary to distinguish between the content of the concepts of «obligations with a plurality of entities» and «obligations with a plurality of persons». An obligation with a plurality of entities is a type of complex binding legal relationship, which is characterized by a special legal relationship between its subjects (parties, other persons), which complicates the exercise of subjective civil rights and (or) performance responsibilities. An obligation with a plurality of persons is a single obligation where several persons participate on the part of the creditor and / or the debtor. This legal relationship, in addition to complicating the subject composition, is characterized by the unity of the object of obligation and the presence of internal and external legal ties between its participants. The criteria for classification of civil law obligations with a plurality of entities have been proposed: a) depending on the grounds for the obligation with a plurality of entities: contractual and non-contractual. Meanwhile, non-contractual obligations with a plurality of entities can be divided into those that arise from lawful acts and appear because of some damages; b) depending on the relationship between the entities that form the plurality: obligations with a plurality of entities and obligations involving third parties; c) depending on the moment of occurrence of the plurality, they are distinguished as those that arise at the moment of occurrence of the obligation; in the process of existence of the obligation; at the time of fulfillment of the obligation. It was concluded that obligations with a plurality of entities, being a separate type of civil obligations and having its own type of line (partial, joint and s everal and subsidiary), which is due to different qualifications (in partial obligations to each creditor (debtor) owns a share in the object, in the joint and several obligation there is a rule «one for all», and in the subsidiary obligation established t he order of its implementation by the principal and subsidiary debtors), not subject to a generalized model of behavior of their participants, which eliminates the possibility of modeling common legislative provisions for this type of obligation. Legal regulation of civil law obligations with a plurality of entities is defined as a regulated influence on such relations of the system of legal remedies that establish a model of actual behavior of their subjects, aimed at achieving a legal result due to involvement on the part of the creditor and / or debtor obligations of two or more entities, as well as third parties. It is substantiated that in a partial obligation several persons on the side of the debtor / creditor are the only subject i.e. the creditor / debtor, and not separate parties of the obligatory legal relationship. Such persons are parties to internal relations in obligations with a plurality of persons, which determines their mutual rights and obligations. The work defines that the plurality of entities on the side of the debtor and the creditor in joint and several obligations, the freedom of the creditor (creditors) to make claims and the principle of proper performance of obligations determine the legal relationship between debtors and persons who are creditors (internal legal relations) and the legal relationship between debtors and creditors (external legal relations). The content of the latter consists of the mutual rights and obligations of joint and several creditors and debtors, the dynami cs of which are aimed at fulfilling the joint and several obligations. The substantive burden of internal relations is due to the type of plurality and in the case of passive plurality, such relations mediate the recourse claims of each of the debtors who fulfilled the requirements of the creditor. As for the internal relations between creditors, they are designed to streamline the distribution of performance between creditors, in the event that the performance was received by one of them. In order to ensure the proper performance of a passive joint and several obligations in the event of the replacement of one of the joint and several debtors, it is necessary, in addition to the consent of the creditor, to obtain the consent of the other joint and several debtors. Such an agreement also guarantees the possibility of filing a recourse claim against the new debtor in the future. It is determined that the subsidiary obligation is distinguished from other types of participation on the debtor's side of two entities (main and additional debtors) and the possibility of the creditor to file a claim against them in the order established by law. The task of the additional debtor is to fulfill the obligation in the event that the principal debtor refused to satisfy the creditor's claim or the creditor did not receive from him within a reasonable time a response to the claim, which does not give grounds to consider the additional debtor as a person responsible for breach of obligations, the institution of a subsidiary obligation to associate with the peculiarities of civil liability in the case where the contract or law provides for the possibility of fulfillment of the obligation by another person. It is concluded that the legal model, according to which third parties par ticipate in a civil obligation, is designed to minimize the risks to which the parties to the obligation are exposed in the event of non-performance or proper performance. This model mediates the relationship between the parties to the obligation and the legal relationship between the parties and third parties, the content of which is due to the conclusion of an agreement in favor of a third party; ensuring the fulfillment of obligations by a third party (surety, guarantee, property surety); performance of an obligation by a third party or to a third party Specific proposals and recommendations for improving the legal regulation of obligations with a plurality of entities in Ukraine have been developed.