Особливості виконання субсидіарних зобов’язань

Abstract

Досліджено питання, пов’язані з виконанням субсидіарних зобов’язань. Охарактеризовано підстави, порядок залучення субсидіарного боржника до виконання зобов’язання, а також результати такого виконання для сторін зобов’язання. Проаналізовано погляди вчених на проблематику виконання субсидіарного зобов’язання, а також положення законодавства. The article is devoted to the study of issues related to the fulfillment of subsidiary obligations. The author describes the basis, procedure of involving the subsidiary debtor in the performance of the obligation, as well as the consequences of such performance for the parties to the obligation. The purpose of subsidiary obligations is to ensure the stability of civil legal relations, to protect the interests of their participants, as well as to share the risks in the event of non-performance or improper performance of obligations. There are two subjects on the debtor’s side in a subsidiary obligation to whom a claim can be made. The fulfillment of a subsidiary obligation must be carried out in accordance with a strict procedure established by law. However, individual terms and conditions may be agreed by the parties in a contractual manner. The creditor, demanding fulfillment of the obligation to the subsidiary debtor, must determine the amount of performance. At the same time, the amount of performance is limited by the amount of the principal debtor’s obligation in a subsidiary obligation. The subsidiary debtor has the right to raise against the creditor’s claims any objection that the principal debtor might have made to the creditor, in particular, to refer to the absence of his guilt in default. The subsidiary debtor who has fulfilled the obligation is entitled to recourse to the principal debtor. However, the right to recourse to a subsidiary debtor does not arise in all cases. In particular, in the case of parental responsibility for the harm caused by minors, the right to recourse against the parents does not arise. In performing a subsidiary obligation, the interests of both the creditor and the subsidiary debtor must be taken into account. The protection of the interests of the creditor is ensured by fulfilling his requirements by an additional debtor. With respect to the interests of the additional debtor, his obligations should be clearly defined either by the contract between him and the principal debtor or a legal act, and the rights are guaranteed by granting the right to recourse to the principal debtor whose obligation to the creditor fulfilled the additional debtor.