The concept of contractual obligations in private international law. Topic VIII. Non-contractual obligations in private international law. Topic IX. Marriage and family relations in the MPP
1. Outside contractual obligations in private international law
Scientific and technological progress, on the one hand, contributes to the expansion of the material and physical sphere of human activity (invention of new means of transport and communications, commercial exploration of space, the seabed, etc.), on the other hand, it gives modern cross-border practice an unprecedented scale, determines the intensity migration of the population and related processes, in this regard, gives rise to a variety of tort relations. At the same time, the consequences of a tort committed on the territory of one state often manifest themselves within the limits of another jurisdiction (the so-called "cross-border offenses").
In this area of private international law, there is a basic and very stable principle - collisions are considered at the place of harm, i.e. according to the law of the state on the territory of which the action was committed, which served as the basis for the presentation of the claim. In other words, it comes on the law of the place where the tort was committed - lex loci delicti commissii.
One of the first significant multilateral international treaties that resolved, along with other conflict issues of tort relations, was the Bustamante Code. True, being a product of its time, this act could not yet foresee the processes of such a rapid development of technology, science, technology, which determined the relevance of the problems of delimiting the categories of "place of action" and "place of harmful effect". Accordingly, the approaches enshrined in it were based on traditional and typical collisional bindings, which proceeded from the lex loci actus principle.
So, Art. 167 of the Code states: "Obligations arising from crimes or offenses are governed by the same law as the crime or offenses from which they arose." “Obligations arising from acts or omissions committed guilty or negligently, which are not punishable by law, are governed by the law of the place of origin of the negligence or fault that gave rise to obligations” (Art. 168). It should be noted the detailed nature of the regulation contained in the Code, in relation to various aspects of obligations from causing harm. In particular, it provides a framework for resolving conflicts as regards the nature and consequences of various types of obligations, as well as their termination, determining that all of this is subject to the law that governs the obligation itself; evidence for obligations in terms of their recognition and size are also determined by the law of the obligation itself; in an exception from the general rules on the subordination of a tort obligation to the legal order of the place of its commission Art. 170 of the Bustamante Code establishes that in cases where an obligation from causing harm must be extinguished by payment of monetary amounts, the law of the place of payment is applied to the conditions, as well as the currency of payment. The same law governs legal fees for enforcement of payment.
In modern practice, certain aspects of harm relations are increasingly regulated by international treaties.
Many bilateral treaties on legal assistance have been concluded between Russia and other states, which also reflect the conflict-of-law regulation of non-contractual relations. Most modern treaties contain rules governing what legislation should apply to appropriate treatment in the event of harm. They reflect current trends in the regulation of tort relations.
Among the international treaties in which the issues of civil liability due to harm are resolved, a large proportion are conventions dedicated to various types of transportation. At the same time, mention should be made of the Hague Convention of May 4, 1971 (entered into force on June 3, 1975) on the law applicable to road traffic accidents (RTA), in which 13 European states participate. Its main principle is lex loci delicti commissii (Art. 3). The Convention applies to non-contractual liability in connection with road accidents that occurred on the territory of the contracting states, as well as in cases where the applicable law is the law of a state that participates in the Convention (Art. 11). In situations defined by the Convention, the principle of reference to the law of the place where the tort was committed is replaced by another, which, in particular, should ensure its closer connection with the relevant legal order.
Civil liability issues are sometimes resolved with the help of special multilateral international treaties concluded in certain areas, thanks to the substantive legal norms contained in them.
Among such treaties in the present conditions, agreements are especially important, designed to regulate the liability of subjects of international economic turnover arising in connection with nuclear activities. These include the 1963 Vienna Convention on Civil Liability for Nuclear Damage, the 1971 Convention on Civil Liability in the Maritime Transport of Nuclear Materials, and the 1962 Convention on the Liability of Operators of Nuclear Ships. The norms contained in the aforementioned documents establish, in the interests of the victims (as a rule, individuals) the innocent liability of the harm-torturers (mostly owners of sources of increased danger). However, they also contain grounds excluding liability (force majeure, including military action, natural disasters etc.).
In a number of cases, the liability of the tortfeasor under some of the special international agreements arises even in the presence of force majeure circumstances. This, in particular, is the content of the norms of the 1952 Rome Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface (Russia, as the legal successor of the USSR, has been participating in it since 1982). The guilt of the victim, if proven by the inflictor of harm, reduces the amount of compensation.
The limits of liability in many conventions are determined by setting fixed amounts to which a person is entitled in the event of harm. In addition, the so-called interim measures are envisaged.
The so-called maritime conventions occupy a significant place among such international treaties. The Brussels Convention of September 23, 1910 is known, which unified some of the rules concerning collisions of ships on the high seas. However, it does not apply to tort treatment if both colliding vessels fly a common flag.
V in this case the dispute will be resolved on the basis of the law of the court or the rule of law, which has a closer connection with the relation in question, which is the law of the flag state.
It is impossible not to mention the Brussels Convention on Civil Liability for Damage from Marine Pollution by Oil 1969 (the USSR has been participating in it since 1975), which unified the substantive rules in special areas of tort relations. This Convention provides compensation to individuals and legal entities for losses incurred due to the leakage or discharge of oil from ships. The limits of the ship owner's liability for pollution are quite high. Liability is stricter than that based on the principles of guilt, if the owner does not prove that the losses were caused by military or similar actions or a natural disaster of an exceptional, inevitable and unavoidable nature; the behavior of third parties who had the intention to cause losses; negligence or other illegal actions of the state (authorities), as well as the fault of the victim.
In recent years, the international community has sought to expand the usual framework of the conventional regulation of tort relations by concluding multilateral agreements in non-traditional sectors (the UN Convention on the Liability of Operators of Transport Terminals in International Trade 1991, the Convention signed on February 1, 1990 on civil liability for damage, caused during the carriage of dangerous goods by road, rail and inland waterway (CRTD), the Basel Convention on the Control of the Transboundary Movements of Hazardous Wastes and Their Disposal of March 20-22, 1989, to which the Russian Federation also acceded).
Prior to the adoption of the third part of the Civil Code of the Russian Federation, the conflict-legal regulation of tort and some other non-contractual relations of an international nature was carried out by the norms of the Fundamentals of Civil Legislation of 1991. At the same time, the principle of conflict of laws lex loci delicti commissii was applied as the main one: harm, are determined by the law of the country where the action or other circumstance took place that served as the basis for the claim for compensation for harm ”(part 1 of article 167 of the Fundamentals). At the same time, the 1991 Foundations allowed for an exception from the lex loci delicti formula, which states that the law of the place where harm was caused does not apply if the action or other circumstance that served as the basis for the claim for compensation for harm is not illegal according to the Soviet (Russian ) legislation. Provisions included in the current Russian conflict of laws law sect. VI of the Civil Code of the Russian Federation does not contain such an institution - henceforth, the refusal to apply a foreign law cannot be due to discrepancies in the qualifications of an act committed abroad, on the part of the court law and the legal order of the place of harm, respectively. The construction of a "comparison" of the substantive legal norms of the place where the action was committed and the law of the place of consideration of the dispute was previously used mainly to justify the refusal to satisfy claims, the grounds for which were unknown to domestic law (in particular, on compensation for moral damage that was absent in Soviet law), which ceased be relevant after this institution has entered the Russian legal reality, providing in this part the agreement of our legal system with principles that are common to a significant number of countries in the world community.
Currently, Russian law distinguishes between tort relations and some other actions of a non-contractual nature, such as the conduct of other people's affairs without an order, unjust enrichment.
In the third part of the Civil Code of the Russian Federation, several articles are devoted to the issues of tort relations and other obligations of a non-contractual nature, which are an integral system of conflict-of-law regulation: Art. 1219-1221, affecting the actual obligations from causing harm, including liability for harm caused by goods, work or services, as well as Art. 1222 and 1223, regulating, respectively, obligations arising from unfair competition and unjust enrichment.
Section VI of the Civil Code partially retains the directions inherent in the previous regulation. Its distinctive features are, on the one hand, in the differentiation of the regulation of non-contractual relations, on the other, in the generalization of conflict formulas for their respective groups; the use of various combinations of types of conflict bindings: in some cases - attachment to the law of a certain state on the basis of the strict conflict principle of lex loci delicti commissii, widely used in the practice of states of the world; in other situations, alternative solutions are allowed. So, as a general principle of binding for tort relations, the application of the law of the country where the action or other circumstance took place, which served as the basis for the claim for compensation for harm, is enshrined (paragraph 1 of article 1219).
At the same time, this clause also provides otherwise: in the event that, as a result of an unlawful action or other circumstance, the harm occurred in another country, the law of that country may be applied if the harm-doer foresaw or should have foreseen the occurrence of harm in this country. Although the requirements of the above prescriptions provided for such situations are not entirely specific (sometimes it is very difficult to prove whether it was possible or should have foreseen harm in the appropriate case or not), which ultimately makes the use of such a conflict binding problematic, the very fact of their presence in applicable law rather symptomatic, since, of course, it means a departure from the system of legal regulation based on the singularity of the conflict of laws rule.
The 1969 Vienna Convention on the Law of Treaties contains no provisions regarding the means of securing treaties. Taking into account the relevant practice of states, the following definition of the means of securing international treaties can be given: this is special measures of a legal nature, taken by states in order to most effectively fulfill their international legal obligations. These measures can be consolidated both in the norms of international law and in the norms of the national legislation of the state. The adoption of special measures to ensure the fulfillment of international legal obligations is the legal law of states. Countries exercise this right depending on the needs of interstate cooperation, the degree of importance provided by special measures of the international legal norm for the security of peoples. Having such a right, states, as a rule, are not obliged to ensure any international legal norm, but the adoption of special, i.e. additional, measures to ensure the implementation of a certain rule of conduct increases the effectiveness of its action.
Object special measures to ensure the obligations assumed by the state is, first of all, the regulation of relations on the basis of an international treaty.
Thus, international legal instrument for the implementation of treaties and agreements is a system of measures agreed upon by states and enshrined by them with the help of the norms of international law, aimed at the effective fulfillment of international obligations.
At present, states use a variety of international legal means to ensure international obligations: international legal guarantees; international legal control; the formation and activities of special international bodies contributing to the implementation of the treaty; regular contact between the parties to the agreement in order to consult on its implementation; financial support of the contract, etc.
With this in mind, we can give the following definition of international legal guarantees.This is a special legal regime in which the guarantor states, on the basis of an international legal treaty (main or additional), assume obligations and responsibility for ensuring the actions or refraining from actions of a certain state by taking real measures (individually, mutually or collectively) to protect the rights and obligations of the state established by the agreement, which has been provided with a guarantee for the purpose of the established rule of conduct or legal status, a certain state of affairs.
Among the international legal guarantees of the security of states, there are organizational(for example, the organization of security measures in connection with international conflict) and material... The latter, in particular, include equal security in arms limitation.
International legal guarantees of international treaties can be divided into two categories of guarantees: general and special... What unites them is that they are negotiated, both bilaterally and multilaterally. The difference lies in the nature of the contracts governing the named guarantees. General international legal guarantees, fixed on a bilateral basis, contain mutual obligations of states to preserve a certain state of affairs, ensure each other's security, adhere to established principles in relations, etc.
A special guarantee provides for the protection of certain (special) rights or interests of states. In this case, the guarantor or guarantors, by concluding a main (special) guarantee agreement or an additional guarantee agreement, undertake to take the necessary measures to ensure the guaranteed agreement,including the impact on his violator. Therefore, the implementation of the warranty obligation in case of violation of the contract may be associated with the use of measures of diplomatic influence, for example, with a break in relations, a break in economic relations, providing assistance to the victim of aggression, participating in sanctions organized within the framework of the UN, etc.
Currently relevant as simple(individual) and complex(mutual, collective) guarantees.
With an individual guarantee, the guarantor state is obliged to come to the aid of the state, whose interests are guaranteed, unilaterally, regardless of other guarantors... An individual guarantee, formalized by a multilateral agreement with the state to which the guarantee is provided, is associated with a legal obligation to protect the rights of such a state independently, individually, without any obligation to act collectively.
In addition to individual guarantees, states can use complex guarantees. For example, the parties have the right to guarantee the inviolability of the borders existing between them.... Complex guarantees also include collective guarantees, where the guarantor states are legally obliged to defend the guaranteed rights jointly, which does not exclude their right to individual action.
In the Russian Federation, in accordance with Art. 32 Federal law"O international treaties Of the Russian Federation "the President of the Russian Federation as the head of state and the Government of the Russian Federation exercising executive power of the Russian Federation are authorized persons involved in ensuring the execution of contracts. They take measures aimed at ensuring the implementation of international treaties of the Russian Federation.
Introduction
Chapter 1. The essence of an international treaty in private international law
1 The concept of international treaties in private international law
2 International treaties-conventions as sources of private international law
Chapter 2. Features legal regulation international treaties
1 Features and types of international agreements-transactions
2 Law applicable to international treaties in private international law
Conclusion
List of sources and literature used
Introduction
V modern world the contract is the main means of regulating the economic relations of participants in civil turnover. The existence in each state of a separate system of contractual law complicates the process of establishing contractual relations between subjects of different states, thereby slowing down the pace of economic cooperation. The rapid development of international trade and the globalization of economic ties have received expression, in particular, in the intensification of the processes of international unification of the norms of private international law, especially widely and successfully developing in the field of treaty obligations.
The globalization process of international economic and cultural cooperation, the gradual recovery from the crisis and the growth of international trade, the establishment legal entities international in the field of activity, as well as in capital, joint economic activity actors from different countries, migration of the population determined certain trends in the development of international private law relations. At the same time, an international treaty acquires the role of the main source of private international law in the regulation of those international private law relations, in which it not only covers a wide range of issues, but also during the regulation of which its goal and objectives are achieved. It should be noted that in private international law there is no common understanding of an international treaty, which is considered not only as a convention, but also as a transaction, a contract complicated by a foreign element. Therefore, it is important to consider international treaties from different angles.
The purpose of the course work is to study the essence of international treaties as objects in relation to which different approaches are applied to determine the applicable law.
To achieve this goal, it is necessary to solve the following tasks of the course study:
give a definition of the concept and specifics of an international treaty;
to study international agreements-transactions and international agreements-conventions in private international law;
to reveal the essence of an international treaty;
explore the classification of international treaties;
to reveal the features of international treaties in private international law.
The object of the research is social relations that develop in the process of concluding and executing international treaties.
The subject of the research is the regulatory legal acts of the Russian Federation and other countries, the provisions of international treaties, as well as theoretical provisions related to the concept and essence of international treaties in private international law.
The methodological basis of the course research is dialectical materialism, as well as a set of scientific techniques and methods for studying phenomena and processes, including historical, systemic, logical, comparative legal methods.
Chapter 1. The essence of an international treaty in private international law
.1 The concept of international treaties in private international law
In the most general meaning, international treaties are agreements between states and other subjects of private international law, developed on the basis of the harmonization of their expressions of will in order to uniformly regulate certain varieties public relations... International treaties can also be defined as contracts, transactions based on private international law, contractual legal relations of subjects, complicated by a foreign element. Therefore, it is necessary to consider all the designated features in order to understand the essence of international treaties in private international law.
The concepts of "deal", "agreement" or "obligation of an international character", on the one hand, and "foreign economic", "foreign trade" transaction, on the other hand, must operate with their proper criteria. In this regard, it should be noted that in foreign countries as opposed to the concept of "deal", he often uses the category of civil law (private law) contracts ("international contracts", "export, import contracts", "international sale and purchase agreements", etc.). Be that as it may, an essential criterion for a transaction or, in appropriate cases, agreements of an international nature, as well as for private international law in general, is, first of all, the legal connection of relations with the legal order of various states.
The current Russian law does not use the term "international treaty" in the sense necessary for private international law, but its analogue is fixed - "foreign economic transaction". In the legislation, however, there is no concept of international and foreign economic transactions. The Federal Law of December 8, 2003 No. 164-FZ "On the Basics of State Regulation of Foreign Trade Activity" provides the concept of foreign trade, which is understood as the activity on the implementation of transactions in the field of foreign trade in goods, services, information and intellectual property.
Further, it should be noted that the rules governing contractual obligations occupy an important place in private international law. With the help of these norms, a wide range of civil law relations, complicated by a foreign element, is regulated: international sale and purchase, leasing of property, construction of production and other facilities abroad, international transportation of goods, passengers and luggage, international settlements and lending. In the doctrine and norms of private international law, two terms were used to denote contractual obligations: transactions and contracts. So, in the previous Russian legislation, the terms "foreign trade transaction" (Civil Code of the RSFSR 1964) and "foreign economic transaction" (Fundamentals civil law 1991). In both cases, both transactions and contracts were understood, and in Article 166 of the 1991 Fundamentals, about two dozen contracts covered by the term "foreign economic transaction" were directly listed. It is clear that "transactions" and "contracts" are not equivalent terms, but interrelated, since an agreement is a type of transaction.
The new Russian legislation on private international law (Section VI of the Civil Code of the Russian Federation) uses both terms: both transactions and contracts, and in full accordance with the difference in the content of these concepts. The term "transaction" is used in two cases: when it comes to all transactions, including contracts (Article 1209 of the Civil Code of the Russian Federation, which determines the form of transactions), and when it comes to unilateral transactions (Article 1217 of the Civil Code of the Russian Federation, which establishes the choice of law to the obligations arising from from unilateral transactions). In all other cases, the term "contract" is used, which really corresponds to the content of this concept.
Part three of the Civil Code of the Russian Federation also does not contain a legal definition of the term "international treaty". Russian legislation only defines the range of civil law relations governed by private international law. Nevertheless, the concept of "international treaty" has several variants of doctrinal definitions.
Some scientists (M.M.Boguslavsky, L.A. Lunts) paid attention to subjective composition participants. In their opinion, international agreements include treaties in which at least one of the parties is a foreigner. L.A. Lunts, examining the nature of international transactions, designates two signs for their qualification of a foreign trade transaction:
at least one of the parties to the transaction is a foreigner;
According to other scientists (L.P. Anufrieva, G.K.Dmitrieva, O.N.Sadikova), the qualification of an international transaction should be based on the location of the parties' commercial activities: it must be located in the territories different states, and the difference in the nationality of the counterparties is not essential for qualification.
Moreover, according to P.M. Sheludyakov, the difference in the legal nature of the categories "international" and "foreign economic" is deeper, which affects the concepts of public and private law. Branches of law, regulations and norms governing foreign economic activity belong to public law, since they protect public (public) interests, are built on the basis of power and subordination, and are imperative character.
International treaties can be defined as transactions complicated by a foreign element, including transactions not related to the movement of goods, works and services through state borders, for example, a will of a Russian citizen made outside the Russian Federation.
Thus, the Russian doctrine does not establish an unambiguous approach to the features of a foreign trade transaction and an international treaty.
Nevertheless, the separation of international transactions from the entire array of civil law transactions is of serious practical importance, since it is directly related to the peculiarities legal regulation... If the deal is "internal", i.e. does not have foreign elements, then it is entirely within the national legal field and is governed by Russian law. If the transaction is international, then it is related to the law of different states and the problem of choosing the law of one of them arises, the norms of which should be applied. First of all, it is necessary to determine which treaties are international, cross-border.
To do this, one should refer to Article 1186 of the Civil Code of the Russian Federation, which defines the range of civil law relations governed by private international law. Based on this article, international or cross-border transactions and agreements "with the participation of foreign citizens or foreign legal entities or ... complicated by another foreign element, including in cases where the object of civil rights is located abroad ..."
An international transaction, like any civil law transaction, can be unilateral, when the expression of the will of one party (for example, a power of attorney) is necessary and sufficient for its completion, and two or multilateral, when the expression of the agreed will of two or more parties is necessary for its completion. The latter are agreements (contracts). Examples of bilateral agreements are international sale and purchase agreements, barter agreements, commission agreements; examples of multilateral agreements can be financial leasing agreements, factoring agreements, agreements on joint activities, on cooperation.
For example, the international sale and purchase agreement occupies a central place among international treaties. Once it was the only form mediating international economic ties, which were reduced to trade. And until now, it remains the most common form. Therefore, both in practice and in doctrine, the term "international trade transaction" is often used as a collective one, covering all types of international commercial transactions. In any case, this term is not limited to buying and selling. All other international agreements are either directly related to the sale and purchase (related transactions, for example, transportation, insurance, settlements, etc.), or are a variety of it (license agreements, service agreements), or contain, to a greater or lesser extent, elements purchase and sale (for example, international financial leasing). Finally, the international sales contract is the most developed in international law. The unification of law has achieved the most tangible results in relation to this treaty. As a result, the rules intended to regulate the sale and purchase, by analogy, are usually applied to other international agreements. In particular, the concept of an international sale and purchase agreement, given in international legal acts, becomes the starting point for defining the concept of an international commercial transaction as a whole.
It should also be noted that the creator (subject) and addressee of the norms of international agreements in public international law is simultaneously the state itself, which creates the norms of international public law, addresses them to himself and makes himself responsible for their violation. The norms of international agreements governing relations in the field of public law, as a rule, are not self-executing. They are addressed to the state as a whole and cannot be applied in national law without the issuance of a special domestic act specifying such norms and adapting them for action in national law. The creator (subject) of the norms of international agreements governing the problems of private international law is also the state. At the same time, regardless of the subject of regulation, any interstate agreement is included in the sphere of public international law.
Thus, the essence of international treaties-transactions in private international law is that they are legal relations of the parties regulated by the norms of both national and international law, at least one of which does not have the status of a state, regarding a certain issue, the resolution of which in their national legislation lies in the civil law field. At the same time, international treaties-conventions are legal acts adopted by states, international organizations for the legal regulation of international treaties-transactions.
.2 International treaties-conventions as sources of private international law
As already indicated, international treaties can be considered not only as legal relations of the parties, complicated by a foreign element, but also as relevant international conventions, principles that provide legal regulation of the relevant transactions. In this regard, international treaties-conventions are of the greatest interest for international private law as its sources. Currently, under the sources of law in the legal and technical sense in general theory law, as a rule, is understood as a set of forms and means external expression and consolidation of legal norms. In modern world legal regulation the relationship of subjects of different nationalities can no longer be carried out exclusively through the national legislation of individual countries due to its fragmentation and inconsistency. Increasingly important in this process is attached to international treaties containing normative prescriptions of a unified nature. The specificity of such agreements consists, first of all, in the fact that, as a result of the harmonization of the will of the authorities - states, they, as a rule, contain rules of conduct that are directly addressed to participants in international non-interstate powerless relations (for example, individuals or legal entities). Therefore, many international legal sources of private international law are able, along with acts of domestic law, to act as direct sources of legal rights and obligations of subjects of specific legal relations.
One of the oldest international organizations involved in the development of draft agreements in the field of private international law is the Hague Conference on Private International Law. Its first session was held in 1893 in The Hague at the initiative of the Government of the Netherlands. For many years this organization did not have a permanent basis for functioning and was convened from time to time at the suggestion of various states. Significant work in the field of international legal codification of private international law is also carried out by International Institute unification of private law (UNIDROIT), founded in 1926 in Rome. More than 50 countries of the world, including Russia, take part in its work. The goals of the Institute are to study the ways of harmonization and harmonization of private law of groups of states or individual countries, development of its uniform norms. One of the goals of another international institutional body - the United Nations Commission on International Trade Law (UNCITRAL) - is to develop draft international conventions and model laws in the field of international trade law, commercial arbitration and payments, and international transport. Draft documents developed by the Commission are adopted either at conferences convened by the UN General Assembly, or directly at its plenary sessions.
International treaties are universal in nature and are designed for broad application. However, both significant differences in views on the doctrine and practice of private international law that exist in the countries of the Anglo-Saxon and continental legal systems, and the unwillingness of many states of the world to abandon the use of their own national legal acts in favor of unified norms international treaties.
Among the international treaties with the broadest scope of activity already functioning in this area, one can name, in particular:
1980 UN Vienna Convention on Contracts for the International Sale of Goods The specified document regulates the procedure for concluding an agreement for the international sale of goods, and also determines the rights and obligations of the seller and the buyer that arise from such an agreement;
Convention on limitation period in the international sale of goods in 1974 and the Protocol Additional thereto, 1980;
1986 Hague Convention on the Law Applicable to Contracts for the International Sale of Goods. It contains mainly conflict of laws rules governing the procedure for determining the law used in the execution of foreign trade transactions, and establishes the scope of its action.
In the field of international settlements, at present, the most significant sources of private international law are three Geneva Conventions on the unification of the law relating to bills of exchange of June 7, 1930 and three subsequent conventions, also signed at Geneva, on the unification of the law relating to checks, of March 19, 1931. Their provisions were recognized by most European countries (Russia joined only the convention on bills), Brazil and Japan.
The countries of the Anglo-Saxon legal system practically do not participate in these treaties.
A significant number of international agreements have been concluded in the field of transport, transportation of goods and passengers. Among the most significant of them are the International Convention for the Unification of Certain Rules on the Bill of Lading, 1924, as amended by the protocols signed in Brussels in 1968 and 1979; The Warsaw Convention for the Unification of Certain Rules Relating to International Carriage by Air, 1929, with an additional protocol to it, 1955; the Convention on the Contract for the International Carriage of Goods by Road, 1956; Agreement on the carriage of passengers and baggage by rail in direct international traffic, 1950; Agreement on International Freight Traffic 1951; The United Nations Convention on the Carriage of Goods by Sea (Hamburg Rules) 1978; 1980 Convention on the International Carriage of Goods, Passengers and Luggage by Rail; 1980 UN Convention on International Multimodal Transport of Goods
A fairly large group of international legal agreements on intellectual property issues, in most of which the Russian Federation participates, can also be distinguished as an independent one. These include one of the oldest sources of modern private international law - the Paris Conference on the Protection industrial property 1883, which is attended by more than 140 states of the world. Another important document in this area - the 1970 Patent Cooperation Treaty. Today it unites about 100 states of the world. Treaty aims to improve uniformity patent law states, reducing the cost of filing patent applications and conducting preliminary examination. They provide for the possibility of drafting and filing a so-called international patent application. A similar mechanism in relation to trademarks is provided for by the Madrid Convention Concerning the International Registration of Factory and Trademarks of 1891 and the Vienna Treaty on the Registration of Trademarks of 1973.
Active rule-making activity in the field of private international law is carried out not only on the universal, but also on regional level... Here, among the most important international legal sources, the Code of International Private Law (Bustamante Code) is traditionally highlighted, which was adopted in 1928 at the VI International American Conference in Havana. Currently, 15 Latin American states are parties to this treaty. The Bustamante Code is the clearest example of the successful interstate codification of conflict of laws rules.
As an important source of private international law, it is necessary to mention contracts for the provision of legal aid... Their main purpose is to ensure mutual observance and recognition of property, personal non-property and procedural rights of citizens of one state on the territory of another. The overwhelming majority of agreements on legal assistance also contain a set of norms that determine the types, forms and methods of cooperation of the justice bodies of different states in the field of civil, family or criminal law, as well as ensuring the mutual recognition of the acts of these bodies.
No less important role in the system of international legal sources of private international law, trade agreements play (on trade, on trade and economic cooperation, on trade and economic relations, on trade and navigation, etc.). They, as a rule, establish a general legal regime on the basis of which commercial relations of the parties and their subjects are carried out with each other, determine the legal status of legal entities and individuals of one party on the territory of the other, contain rules on the procedure for resolving trade disputes.
In the late 80s - early 90s, the USSR, and later - Russia, signed a significant number of bilateral agreements on the encouragement and mutual protection of investment. Today Russia is a party to treaties on the encouragement and mutual protection of investment, signed with dozens of modern states.
Among other types of bilateral agreements that are sources of private international law, it is necessary to mention, in particular, agreements on the protection of copyright and industrial property, agreements in the field of road, air and sea transport, agreements on international civil procedure and some others.
Consequently, international treaties are one of the main types of sources of private international law. Their value in different areas international cooperation not the same. In addition, the importance of a specific international treaty in the regulation of international private law relations is explained by many reasons and depends on a large number of factors. Of fundamental importance is the provision of Article 1186 of the Civil Code of the Russian Federation, which takes into account the specifics of determining the law to be applied.
Russia's participation in multilateral international treaties containing norms on issues of private international law inevitably led to bringing national legislation in line with the requirements of these treaties, and often improving legislation at the national level in the form of adopting new laws.
So, the main conventional sources of private international law are the UN Convention on Contracts for the International Sale of Goods 1980 (Vienna Convention), UNIDROIT Convention on International Financial Leasing 1988, Berne Convention for the Protection of Literary and Artistic Works of 1886, World Convention about copyright 1952, Agreement on Trade-Related Aspects of Intellectual Property Rights 1993, UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958, European Convention on Foreign Trade Arbitration 1961, Brussels Convention on Jurisdiction and Enforcement decisions in civil and commercial disputes 1968, Luhansk Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Disputes 1988. More modern sources are the UNIDROIT Principles of International Commercial Contracts 2004, Principles of European Contract Law, Principles of Transnational Civil Procedure adopted in 2004 and the Rules of Transnational Civil Procedure developed by the American Institute of Law and Unidroit, the UNCITRAL Legal Guide on International Counterparty Trade Transactions 1992, the UNCITRAL Model Law on International Commercial Arbitration 1985, and others.
Consequently, international treaties-conventions, other interstate legal acts and acts of international organizations are of great theoretical importance as sources of private international law, as well as practical importance as regulators of legal relations complicated by a foreign element.
international treaty convention transaction
Chapter 2. Features of legal regulation of international treaties
.1 Features and types of international agreements-transactions
An essential specific feature of international treaties is the association in unified system relations that are different in structure, which determine the use of various methods and means of legal regulation. There are two levels of this relationship:
firstly, relations between states and other subjects of international law (in particular, between the state and international organizations) of a universal, regional, local nature;
The former are governed by the norms of international (public) law, the latter - by the national law of each state, and above all by international private law. However, the norms of international law, regulating interstate relations in the foreign economic sphere, play an increasingly important role in the regulation of private law relations. Hence, the first distinguishing feature of the legal regulation of international treaties is the close interaction of legal norms of various systemic affiliation, that is, the norms of international and national law.
The second distinctive feature of the legal regulation of international treaties in private international law is the interaction of norms of various branches of national law. The state conducts its policy in the field of foreign economic activity mainly through the norms of public law. Although the private law consequences of the norms of public law are indisputable: in the implementation of obligations under an international transaction, the parties are obliged to be guided by the norms of public law. Violation of the norms of public law leads to the legal impossibility of executing a private law transaction.
The main regulator of international treaties is civil law. By its very nature, an international transaction is linked to the civil law of different states. Hence the special role of private international law. Despite the significant successes achieved by the world community in the unification of international trade law, the conflict-based way of regulating relations on international transactions, including through national conflict of laws rules, retains its position.
The third feature of the regulation of international transactions is the widespread use of forms of so-called non-state regulation. The main form of such regulation is "contractual terms": when concluding a deal, the parties are free to establish mutual rights and obligations under the deal. However, this freedom is not unlimited. It is limited, firstly, by the norms of public law, secondly, by the general dispositiveness of civil law (“what is not prohibited, is allowed”), and thirdly, by the peremptory norms of civil law.
In the Constitution of the Russian Federation of 1993, the will of the state in the issue of the relationship between international and national law is expressed as follows: “The generally recognized principles and norms of international law and international treaties of the Russian Federation are part of its legal system ”(paragraph 4 of article 15). Thus, the Basic Law Russian state resolved the issue of the legal force of international treaties in the legal system of Russia. At the same time, this does not mean at all that an international treaty turns into an act of national law and loses the quality of being a source of international and private international law. The only difference in the above plan is that in the field of private international law, treaties are mostly aimed at uniform regulation of certain relations of a private law nature and contain, as it were, guidelines for legal decisions for the national legal systems participating in the international legal agreement of the countries. In other words, such treaties "lay" the channel of national legal norms in the relevant issue, and the means of achieving this are ultimately established by the states themselves.
Features of international transactions can be summarized as follows:
the parties to the transaction are persons with different nationalities;
the purpose of the transaction is the movement of goods, works and services across state borders;
sources of regulation of legal relations arising from foreign economic transactions are international treaties, internal regulatory legal acts, international customs;
the law applicable to the transaction is determined in accordance with the principle of autonomy of will, as well as on the basis of conflict of laws rules;
written form of an international transaction;
the means of payment can be foreign currency;
the need to comply with customs regulations;
disputes arising from foreign economic transactions can be considered by agreement of the parties, in international commercial arbitration.
International treaties can be classified on various grounds. By the number of participants, international transactions are divided into:
one-sided;
bilateral agreements;
multilateral treaties;
Classification by subject is as follows:
property transfer agreements;
agreements on the transfer of property for use (possession and use);
contracts for the performance of work;
service contracts;
agreements on the transfer of rights to objects of intellectual activity;
simple partnership agreements;
Thus, the legal regulation of international treaties in private international law is a rather complex system, consisting of different in nature, but closely interrelated and interacting elements: norms of public international law, norms of national, primarily private international law, and norms of non-state regulation. ...
.2 Law Applicable to Treaties in Private International Law
For a full understanding of the essence of international treaties in private international law, as well as for resolving the issue of the interaction of international treaties, conventions and international treaties, transactions, it is necessary to consider the issue of law applicable to relations complicated by a foreign element.
The 1955 Hague Convention on the Law Applicable to the International Sale of Goods indirectly defined the international sale of goods - these are the cases when the seller and the buyer were located on the territory of different states. The 1964 Hague Convention on the Uniform Law on the International Sale of Goods and the 1964 Hague Convention on the Uniform Law on the Conclusion of Contracts for the International Sale of Goods for the first time introduced a legal definition of the concept of an international commercial contract. In order for a commercial contract to be recognized as international, it is necessary to have in the aggregate two characteristics - one basic and one of three additional ones. The main feature: the location of the seller and the buyer on the territory of different states. Additional sign: on the territory of different states there should be points:
) dispatch and destination of goods;
) making an offer and acceptance;
) the conclusion and execution of the contract.
The most important step in this direction can be considered the UN Convention on Contracts for the International Sale of Goods of 1980 (Vienna Convention 1980) and the UN Convention on the Law Applicable to Contracts for the International Sale of Goods of 1986, according to which the international character is inherent in sales contracts, the parties to which have their own commercial enterprises on the territory of different states.
Despite the main criterion of location commercial enterprises parties to the contract for the qualification of an international contract provided for in international agreements(Rome Convention on the Law Applicable to Contractual Obligations, 1980; UN Convention on Contracts for the International Sale of Goods, 1980), and they also assume that the existence of a choice by the parties of foreign law as applicable may also confirm the internationality of the treaty.
It should be noted that the binding statute of an international transaction is a law applicable to obligations arising from an international treaty. In the very general view a contract is an agreement between the parties to establish, change or terminate civil rights and obligations, therefore the rights and obligations fall within the scope of the statute of obligations. According to Russian law (Article 1215 of the Civil Code of the Russian Federation), the statute of obligations includes, in particular, such main elements of the contractual obligation as the interpretation of the contract, the rights and obligations of the parties, the performance of the contract, the consequences of non-performance or improper performance contract, termination of the contract, the consequences of the invalidity of the contract. According to Russian law, the consequences of the invalidity of an agreement also apply to the statute of obligations, since this element of the agreement also concerns rights and obligations: either new rights and obligations appear, or the rights and obligations provided for by the agreement change.
Common to all articles contained in both Russian legislation and international conventions is that they contain not an exhaustive, but an indicative list of issues falling within the scope of the statute of obligations, most of which coincide. Despite the provisions of paragraph 4 of Article 1210 of the Civil Code of the Russian Federation on the possibility of choosing the right to a part of the contract, from which it logically follows that the parties can also exclude the application of the law of individual countries to this part or subordinate various issues of their relationships to the law of different countries, Russian scientists differently consider the possibilities of choosing the applicable law to a part of the contract. Representatives of one direction (I.V. Eliseev, V.L. Tolstykh) negatively assess the described statutory provisions, believing that their application in practice will be extremely complicated and does not meet the interests of the parties to the international business turnover. Another group of scientists (G.K.Dmitrieva, E.V. Kabatova) positively perceives the direct consolidation of the possibility of choosing the applicable law for a part of the contract, explaining this by the legislator's desire to ensure a more complete and free expression of the will of the parties, which implies the ability to provide for the most thorough and convenient for the parties regulation of each aspect of the contractual relationship, as well as reaching a compromise in resolving a conflict of laws problem.
There are two approaches to determining the applicable law to contractual obligations: objective, according to which the settledness of a legal relationship is determined in a narrow sense at the place of performance of obligations, or in a broad sense, at the location of the object of the contract, place of registration valuable papers, according to the personal law of an individual or legal entity.
An objective approach is the doctrine of localizing transactions for objective signs which emerged from "statute theory". The German scientist Savigny, whose teachings are often referred to as the doctrine of "settled legal relations", developed an objective approach. For obligations arising from contracts that do not specify the competent legal order, it was necessary to proceed from the presumption in favor of the place of performance of obligations. Due to its certainty and predictability, the settledness of the legal relationship met the needs of the international trade activities of its period. Until the principle of autonomy of will appeared in the 16th century, the settled legal relationship prevailed in the treaties to determine the applicable law.
The subjective approach to determining the applicable law to contractual obligations is based on the doctrine of the autonomy of the will of the parties, which is that the starting point for resolving conflict issues in transactions with a foreign element is the will of the person who made the transaction. Due to its liberal and flexible nature, after the Second World War, the principle of autonomy of will became widespread in determining the applicable law to contractual obligations and supplanted the traditional approach to the localization of transactions on objective grounds in the context of the development of modern technical means communication.
As for the limitation of the use of autonomy of will, the general limitation of the freedom of choice of law by the parties is that with the help of such a choice it is impossible to exclude the application of peremptory norms to be applied to legal relations, and also the application of legal norms that are largely in the interests of the consumer or employee cannot be excluded. ... There are two aspects to limiting the use of autonomy of will:
the first is the choice of material or conflict norms;
the second is the choice of law that has or has no connection with contractual relations (localization of autonomy of will).
The regularity of legal regulation, which is that the law inherent in civil law relations with a foreign element is the law that has the closest connection with it, is institutionalized in the legal system in the form of the principle of the closest connection. As for the legal nature of "the closest connection", different views on its legal nature have been expressed in the literature. Some scientists (S.N. Lebedev, E.V. Kabatova) believe that the criterion "the closest connection" is not a binding of the conflict norm. On the contrary, other scientists (ON Sadikov, I.L. Kichigina and V.P. Zvekov) consider the criterion of the closest connection as a binding of the conflict norm. Khodykin R.M. considers that the criterion of "the closest connection" is of a twofold nature: on the one hand, it can act as a binding of a bilateral conflict of laws rule when it is used for direct application by a court or other law enforcement body and it indicates that the law most closely related to the contract is applied, on the other hand, it is the principle of formation of the content of a conflict of laws norm, when on its basis a new conflict of laws norm, or a system of norms, is created.
History shows that during the Soviet era, the USSR preferred an objective approach to determining the applicable law to international treaties. The objective approach was supplanted by the subjective approach after the collapse of the USSR, and at present the principle of the autonomy of the will of the parties dominates in Russia, and the principle of the closest connection plays an auxiliary role.
The reasons for the rare recourse of the parties to autonomy of will during the Soviet period were the following factors:
First, in Soviet times, the parties to the transaction rarely chose the legal order to which they subordinated their rights and obligations under the transaction;
Secondly, during the period of cooperation within the framework of the Council for Mutual Economic Assistance, the unification acts of the CMEA were mainly applied to foreign economic transactions. These acts were applied regardless of whether there was a reference to them in the contract, moreover, the participants in foreign trade transactions could not exclude their application or deviate from most of their mandatory norms, except for the cases provided for in the preambles of these documents.
The subjective approach, which consists in the autonomy of will as a way of determining the applicable law, has long been recognized in Russian law. Section VI of the Civil Code of the Russian Federation, along with the mention of it in a number of other articles, for the first time in Russian legislation is devoted to a separate article that regulates the relations associated with such a choice in more detail and in many ways. The fundamental provisions of this article are in line with the general principles of Russian civil law, enshrined in Articles 1 and 2 of the Civil Code, and are in line with the international trend in the growing normative recognition of the principle of autonomy of the will of the parties and the expansion of its scope.
In terms of the expression of the will of the parties, Russian legislation does not establish rules on how to express the parties' agreement on applicable law. At the same time, even in Soviet times, the arbitration practice of using will, expressed both directly and tacitly, developed.
For the first time, conflict regulation of contractual obligations based on the criterion of the closest connection was enshrined in Russian legislation on private international law in Article 1211 of the Civil Code of the Russian Federation, which formulates the general presumption of the closest connection applicable to any civil law contract. The new Russian legislation uses the well-known conflict of laws principle of the law of the seller's country both in a narrow meaning (for a sale and purchase agreement) and in a broad meaning (for all other contracts), as specific presumptions of the closest connection.
The new Russian legislation, in comparison with the old one, does not abandon the application of foreign law as a whole, but from the application of only individual norms of foreign law. To apply the clause publicly according to Civil Code Russia needs that the application of foreign law would lead to a clear (obvious, indisputable) violation of the foundations of the Russian legal order. The Civil Code allows a reference to public order only in cases where the consequences of the application of foreign law (and not the actual norms of such law) come into clear conflict with the foundations of the law and order of the Russian Federation.
CONCLUSION
So, international treaties in private international law can be considered in two main aspects - as transactions complicated by a foreign element, and also as legal acts of the international level governing the relevant legal relationship.
It should be noted that international agreements-conventions are one of the main sources of private international law, while international agreements-transactions are only the implementation of international conventions. At the same time, international agreements-transactions do not have a common understanding in theory and practice. Therefore, the generalization of the features and characteristics of transactions with a foreign element was relevant in the study of international treaties.
In this work, the main modern approaches to the definition of an international treaty in private international law were considered, and the features of transactions complicated by a foreign element were identified.
In addition, one of the key substantive issues related to the law applicable to international transactions in private international law was considered. Objective and subjective approaches were investigated related to the law applicable to a legal relationship complicated by a foreign element.
Thus, international treaties-conventions and agreements-transactions concluded on their basis are of great importance for international private law, are one of its main sources. The problem of international treaties in private international law can be considered based on other approaches, however, the option used in this course work for solving the problems posed in the introduction seems more appropriate, revealing the essence and features of international treaties.
LIST OF USED SOURCES AND REFERENCES
Regulatory Sources
1.Constitution of the Russian Federation. Adopted by popular vote 12.12.1993 // Rossiyskaya Gazeta. No. 237. 25.12.1993. 2.The Civil Code of the Russian Federation (Part One) dated 30.11.1994 No. 51-FZ as amended by dated 17.07.2009 No. 145-FZ // Collected Legislation of the Russian Federation. 05.12.1994. No. 32. Art. 3301. .The Civil Code of the Russian Federation (Part Two) dated 26.01.1996 No. 14-FZ as amended by dated 17.12.2009 No. 145-FZ // Collected Legislation of the Russian Federation. 01/29/1996. No. 5. Art. 410. .The Civil Code of the Russian Federation (Part Three) of November 26, 2001 No. 146-FZ as amended by from 30.12.2009 // Collected Legislation of the Russian Federation. 03.12.2001. No. 49. Art. 4552. .Civil procedural code Russian Federation dated November 14, 2002 No. 138-FZ as amended on June 28, 2009 // Collected Legislation of the Russian Federation. November 18, 2002. No. 46. Art. 4532. .Federal Law of 08.12.2003 No. 164-FZ as amended by from 02.07.2009 "On the foundations of state regulation of foreign trade" // Collected Legislation of the Russian Federation. 12/15/2003. No. 50. Art. 4850. .Code of International Private Law (Bustamante Code of 1928) (Adopted in Havana on 02.20.1928). International private law. Collection of documents. M .: BEK, 1997. .The UN Convention "On Contracts for the International Sale of Goods" was concluded in Vienna on 04/11/1980 // Bulletin of the Supreme Arbitration Court of the Russian Federation. No. 1. 1994. .The Convention "On the Limitation Period in the International Sale of Goods" concluded in New York on June 14, 1974) // Bulletin of the Supreme Arbitration Court of the Russian Federation. No. 9. 1993 .Convention "On the Law Applicable to Contracts for the International Sale of Goods" (Concluded in The Hague on December 22, 1986) // International Center for Financial and Economic Development. 1996. .Law of the RSFSR of 06/11/1964 "On the approval of the Civil Code of the RSFSR" // Vedomosti of the Supreme Soviet of the RSFSR. 1964. No. 24. Art. 406 - Invalid. .USSR Law of 08.12.1961 as amended by from 12.06.1990 "On approval of the Fundamentals of Civil Legislation USSR And Union republics "// Code of laws of the USSR. t. 2.s. 6. 1990. - Abolished. Literature 14.Anufrieva L.P. Private international law: In 3 volumes. Volume 1. General part: Textbook. M .: BEK, 2004. 15.Boguslavsky M.M. Private international law: Textbook. M .: Yurist, 2007. .Getman-Pavlova I.V. Private international law: Textbook. M .: Eksmo, 2005. .Getman-Pavlova I.V., Erpyleva N.Yu. Russian legislation on private international law: problems of improvement // International public and private law. 2009. No. 1. .Dmitrieva G.K. International private law. M .: Prospect, 2008. .Doronina N.G. Actual problems private international law // Journal of Russian law. 2010. No. 1. .Erpyleva N.Yu., Getman-Pavlova I.V. Establishing the content of the norms of foreign legislation in private international law // Advocate. 2008. No. 7. .V.P. Zvekov International private law. Lecture course. M .: Norma, 2007. .E.V. Kabatova Changing the role of the collision method in private international law // Private international law: modern practice. M., 2001. .E.V. Kabatova New conflict regulation in the draft Civil Code of the Russian Federation // ZhMCHP. 1996. No. 4. .I. L. Kichigina Collisions in private international law: a method of regulation // Bulletin of Moscow State University. Ser. 11. Right. 1987. № 6. Materials from the site # "justify">. V. V. Kudashkin Legal regulation of international private relations. Saint Petersburg: Center Press, 2004. .Lebedev S.N. On the nature of private international law. M., 1980. Materials from the site # "justify">. Lunts L.A. Private International Law Course: General Part. M. 1970. Materials from the site # "justify">. Lu Jing Application of the public policy clause in the legislation of the PRC // Actual problems of Russian law. 2008. No. 1. .Mazaev R.I. Invalidity of a treaty in international treaty law // International public and private law. 2006. No. 4. .T.V. Matveeva New in Russian conflict law // Journal of Private International Law. 2003. No. 2. .T.V. Matveeva On the issue of "soft law" in the regulation of international private law relations // State and Law. 2005. No. 3. .Ruzakova O.A. International private law. M .: MFPA, 2005. .Sadikov O.N., Lunts L.A., Marysheva N.I. International private law. M .: Jurid. lit., 1984. Materials from the site # "justify">. Sadikov O.N. International private law: modern problems. M., 2004. .Sergeev A.P., Tolstoy Yu.K. Commentary on the Civil Code of the Russian Federation. Part three (itemized). 3rd edition. M., 2007. .Khodykin R.M. Principles and factors of formation of the content of conflict of laws in private international law. M., 2005. .Sheludyakov P.M. On the legal nature of the transaction as a category of private international law // # "justify">. Shugurova I.V. International private law: interaction of science and practice // International public and private law. 2008. No. 5.Similar works to - Treaties in the system of private international law
private international law
1. Tort obligations in the MPP
Most often, non-contractual obligations are classified in two categories:
obligations arising from the infliction of harm, which are usually referred to as tort obligations;
obligations arising from unjust enrichment, also called condicional.
According to Yu.K. Tolstoy, harm can be expressed in the destruction or damage of cash property, loss of profit, deprivation or reduction of the victim's ability to work, death of the breadwinner, additional costs designed to ensure the life of the victim as a full-fledged person (care costs, for sanatorium treatment, prosthetics, purchase of motor-wheel, etc.), causing physical or mental suffering... Harm is not only the loss or reduction of what is, but also the non-receipt of what could have grown to property, spiritually enrich a person, raise his general educational and professional level, etc. An uncomfortable personality state caused by cause of physical or mental suffering, is also harm ( moral injury), which is compensable.
It is generally accepted that harm, caused to the person or property of an individual, as well as damage caused to the property of a legal entity, reimbursable in in full the person who caused this harm. In some cases, the law may impose an obligation compensation for harm and to a person who is not the cause of harm... And a law or an agreement may establish the obligation of the causer of harm to pay compensation to the survivors in excess of compensation for harm.Similar provisions are contained both in Russian legislation (Chapter 59 of the Civil Code of the Russian Federation) and in the legislation of many states. However, as in many other cases, each state has its own legal nuances,
In tort obligations complicated by a foreign element, the question arises as to whether the law of which country is to be applied. As a rule, it is applied here collision origin lex loci delicti commissi, that is, a reference to the place causing harm. But there are situations when a problem arises the duality of this formula attachments. This happens in cases where the place the cause of harm does not coincide with the place of occurrence of the harmful result. According to Russian law (clause 1 of Art. 1219 of the Civil Code of the Russian Federation), the law of the country where the action or other circumstance gave rise to the claim for compensation applies to the obligations arising from the infliction of harm. but , if the harmful result from such actions occurred in another country, the law of that country may be applied, if the wrongdoer (delinquent) foresaw or should have foreseen the onset of harm in this country .
Under site of harm, depending on the specific circumstances of the case, it should be understood location of the injured person at the time of harm if harm is caused to the victim's personality, or the location of his property at the time of the damage, if the damage was caused to the property.
"1. The law of the country where the action or other circumstance took place that served as the basis for the claim for compensation applies to the obligations arising from the infliction of harm. In the event that, as a result of such an action or other circumstance, harm occurred in another country, the law of that country may be applied if the harm-doer foresaw or should have foreseen the onset of harm in this country ”(Article 1219 of the Civil Code of the Russian Federation)
The wording of the commented norm allows us to conclude that in this case burden of proof foresaw or should have foreseen the onset of harm in this particular country, lies with the plaintiff if he asks the court to apply the law of the country where the harm occurred. Also, it should be noted that application of the law of the place of occurrence of harm in accordance with the commented point - the right, not the duty of the court. It appears that court can also apply the law of the country, on the territory of which the harm occurred, on their own initiative if it establishes that the tortfeasor foresaw or should have foreseen the occurrence of harm in this country.
Sometimes instead of lex loci delicti commissi the personal law of the parties to the tort obligation applies. So, according to and. 2 tbsp. 1219 of the Civil Code of the Russian Federation, the law of that country applies to obligations arising from harm if the parties are citizens or legal entities of the same country. And in the event that the parties to such an obligation are not citizens of the same country, but have place of residence in the same country, the law of that country applies. The priority of the common personal law of the parties in tort obligations is provided for by the legislation of many countries, both of the continental legal system and the countries of Anglo-American law.
"2. The law of that country shall apply to obligations arising from the infliction of harm abroad, if the parties are citizens or legal entities of the same country. In the event that the parties to such an obligation are not citizens of the same country, but have a place of residence in the same country, the law of that country shall apply ”. (Article 1219 of the Civil Code of the Russian Federation)
^ The principle of the autonomy of the will of the parties to a tort obligation allows the parties, after the commission of an action or the occurrence of another circumstance that caused the harm, to agree on the application of the law of the country of the court to such a tort obligation (lex fori).
Thus, limited choice of law in time, the choice of law is denied prior to committing a malicious act. Besides, the parties cannot choose any other law other than the law of the place of consideration of the dispute.
"3. After the commission of an action or the occurrence of any other circumstance that entailed the infliction of harm, the parties may agree on the application of the law of the country of the court to the obligation arising as a result of the infliction of harm. " (Article 1219 of the Civil Code of the Russian Federation)
According to Art. 1220 of the Civil Code of the Russian Federation on the basis of the law to be applied to tort obligations are determined, in particular:
the liability of the inflictor of harm;
the imposition of liability for harm on a person who is not a delinquent;
grounds for liability;
grounds for limited liability and exemption from it;
methods of compensation for harm;
the amount and amount of compensation for harm.
If the harm is caused due to defects in goods, work or services, or due to inaccurate or insufficient information about these goods, works, services, then the victim is given an alternative to choose:
the law of the country where the place of residence (domicile) or main place of business is the seller or manufacturer or other delinquent;
the law of the country where the victim has a place of residence or main place of business;
the law of the country where the work was performed, the service rendered, or the law of the country where the goods were purchased.
It should be noted that the analysis of the commented article gives no reason to assert that the victim, for the purpose of applying the conflict of laws rules of the commented article, must to be a consumer in the sense of Art. 1095 GK, those. the victim does not have to be a person who have purchased a product (service) for consumer purposes. Thus, the norms of the commented article will also be used if the goods are purchased and the service is provided for purposes related to the victim's entrepreneurial activity.
Commented article does not contain an indication of what time victims a choice of law can be made. It appears that the choice of law in accordance with the commented article can be made by the victim at any stage of the process prior to the issuance of a decision by the relevant court.
If the victim does not use the right of choice given to him applicable law is determined in accordance with general rules of law applicable to obligations due to harm, which are provided for in Art. 1219 CC.
Noteworthy is the fact that the above requirements may arise not only in connection with a defect in the product, but also due to the provision of incomplete or inaccurate information about it, such as an incorrect description of the product, its properties and method of use. In this regard, the norm of paragraph 3 of the commented article corresponds to the regulation, which is contained in paragraph 3 of Art. 1096 GK: the rules on the responsibility of the manufacturer (seller) apply to claims for compensation for damage caused as a result of inaccurate or insufficient information about a product, work or service.
"3. The rules of this article shall accordingly apply to claims for compensation for harm caused as a result of inaccurate or insufficient information about a product, work or service ”(Article 1221 of the Civil Code of the Russian Federation).
^ 2. Conditional obligations in the MPH
Obligations arising from unjust enrichment
Such obligations were already known to Roman law, where they received the general name condictio sine causa and therefore they often called condic.
"Article 1102. Obligation to return unjust enrichment
1. A person who, without the statutory, otherwise legal acts or by a transaction of grounds acquired or saved property (the acquirer) at the expense of another person (the victim), is obliged to return to the latter the unjustifiably acquired or saved property (unjust enrichment), except for the cases provided for in Article 1109 of this Code. "
Russian legislation (Article 1223 of the Civil Code of the Russian Federation) in relation to condicional obligations complicated by a foreign element, establishes the following rules.
"Article 1223. The law applicable to obligations arising from unjust enrichment
1. The law of the country where the enrichment took place shall apply to obligations arising from unjust enrichment.
The parties may agree on the application of the law of the country of the court to such obligations.
2. If unjust enrichment has arisen in connection with an existing or alleged legal relationship by which property was acquired or saved, the law of the country to which this relationship was or could have been subordinated to the obligations arising as a result of such unjust enrichment shall apply. "
The new legislation introduced the division of the article into two clauses, which reflects the fact that the institution of unjust enrichment serves to settle two types of cases.
The first- these are various variations of obtaining property as a result of an error or misunderstanding from a person with whom the enriched person did not or could not have contacts and relationships. An erroneous transfer of money, sending things to the wrong addressees are different types of so-called anomalous or accidental unjust enrichment, where such an action itself is the main and often the only legal fact in the relationship of the parties. In most cases, here the right of the place of unjust enrichment must be known to both the debtor and the creditor. Therefore, clause 1 of the commented article establishes a link to the place of enrichment. It is also contained in the relevant laws of Hungary, Cuba, Latvia, Lithuania, Peru.
^ Beneath the enrichment site apparently you need to understand place where the debtor took possession and actual possession of the property, including through a person considered to be a representative (for example, carrier, agent, freight forwarder). It could be the place of his bank account, the location of things at the time of their receipt, the place of the main activity of the debtor who acquired the right of claim unreasonably. In the case of savings, this is the location of the respective property. Thus, we believe that the place of enrichment should be the territory where the property, acquired or saved for the first time (i.e., regardless of subsequent actions), becomes a real asset of the debtor, i.e. de facto becomes or remains his property.
In many situations, this is the place from where the enriched person can directly transfer property to a third party by legal basis and in fact or where generic property is confused with the debtor's property. Note that the actual ability to dispose as a condition includes the knowledge of the debtor about the transfer of property to him.
At the same time, in a number of countries such as Poland, Tunisia, Egypt, Thailand, etc., the criterion of the place of action, which led to unjust enrichment, has been adopted.
Usually the so-called anomalous enrichment is related to the question of the size of the claims, and not about the satisfaction of the claim in general. The amount of the debt, not the fairness of the property claim, more often the subject of controversy, since it is determined depending on such factors as the intent of the enriched person, the conscientiousness of the parties, the fertility of the property, etc. In view of the foregoing, in paragraph 1 of the commented article such an unusual provision is introduced that the parties can alternatively choose the right of the court to settle their differences... This will enable the adjudicating authority to simplify and speed up the calculation of requirements, although it is known that in a state of dispute it is very difficult for the plaintiff to come to an agreement with the defending defendant on some kind of facilitation and simplification of the procedure and algorithm for resolving the dispute. Thus, we can talk about a limited dispositive norm in par. 2 p. 1, since the parties are given the right to choose only one specific legal order regulating their relations.
In the second case we are talking about contacts between the unjustifiably enriched person and the victim. These contacts can consist in preparatory actions for the conclusion of an agreement between them, or in already emerging contractual relationship.
Topic IX. Marriage and family relations in the MPP
^ Concept family relations with a foreign element and ways of their legal regulation
So, MPH regulates only those relations from the field of marriage and family, which are of a civil nature. When distinguishing relations of a private law (civil law) nature, they are guided by the following criteria: the presence of a property or personal non-property nature, discretion, equality of the parties. In the case when the relations of various institutions of family law meet the above criteria, we can talk about the object of regulation of the MPP. To marriage and family relations in private international law, the issues of the conclusion and dissolution of marriage, the recognition of marriage as invalid, the determination of the property regime between the spouses, the regulation of alimony obligations, adoption and related other issues (for example, the relationship of the adoptive family), are included, provided that these relations are international in nature.
In addition, in addition to having a civil law nature, it is necessary that relations were complicated by a foreign element, which allows us to characterize them as international.
In family law in the overwhelming majority of cases, the relationship of legal relations with a foreign state expressed in foreign characteristics of legal entities... Apparently, therefore, Section VII of the RF IC, dedicated to family relations with a foreign element, is called "Application of family legislation to family relations with the participation of foreign citizens and stateless persons."
Based on the interpretation of the norms of Section VII of the RF IC and taking into account the provisions of clause 1 of Art. 1186 of the Civil Code of the Russian Federation, a foreign element in family relations can be expressed, in particular, in:
1) foreign citizenship at least one of its participants;
2) lack of citizenship at least one of the participants;
3) residence of participants in a legal relationship abroad;
4) location of the object of rights abroad(for example, staying abroad of real estate owned by spouses);
5) localization abroad legal fact (for example, overseas marriage).
Characterizing the area of marriage and family relations, one cannot fail to note such its distinguishing feature, how prevalence of legal norms in each state having their own long historical and religious roots, the presence of customs, traditions that reflect the specifics of each nationality and a certain community of people. It is this circumstance that is an obstacle to the unification of material and even (albeit to a much lesser extent) conflict of laws rules in family law. Differences are manifested in almost all institutions of family law, while the set of institutions itself is largely the same.
In this regard, the international legal regulation of marriage and family relations, complicated by a foreign element, is of great importance.
Among the multilateral universal conventions in the field of family law, mention should be made of a number of conventions developed by the Hague Conference on Private International Law. These are the 1978 Convention on the Conclusion and Recognition of the Validity of Marriages; The Convention on the Law Applicable to the Regime of Spousal Property Relations, 1978; The 1970 Convention on the Recognition of Divorces and Separation Decisions The Convention on the Law Applicable to Maintenance Obligations, 1973 and many others.
^ Unfortunately, universal unification has not become an effective regulator of international marriage and family relations. Regional unification, carried out on different continents, turned out to be much more effective. One of the first was the unification of the countries of Latin America, culminating in the adoption in 1928 of the Codex Bustamante(known as the Convention on Private International Law). The Busta Mante Code is, first of all, the unification of conflicts of law. It contains special chapters on family law issues: "On marriage and divorce", "Paternity and establishment of paternity", "Alimony duties of relatives", "Paternal authority", "Adoption", "Guardianship", "Emancipation and majority", "Registration of acts of civil status."
Among the member states of the CIS, the unification of conflict-of-law norms of family law was carried out as a result of the adoption in 1993 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters... Like the Bustamante Code, the 1993 Convention has a special part “ Family matters". It formulates norms that secure principles of choice of law when regulating the following relations: material conditions of marriage; dissolution of marriage; invalidation of marriage; relations between spouses, between parents and children; establishment or contestation of paternity (motherhood), establishment or revocation of adoption, guardianship and trusteeship.
^ Family unification rights limited to mainly by creating conflict of laws rules. There are very few material international norms in the field of marriage and family relations. Conventions containing substantive rules include Convention on Consent to Marriage, Age of Marriage and Registration of Marriages, 1962 the city of which the Russian Federation is a member.
^ The norms of national legislation governing marriage and family relations with the participation of a foreign element include, first of all, the RF IC adopted in 1995, including sect. VII "Application of family legislation to family relations with the participation of foreign citizens and stateless persons", which formulates conflict of laws rules on marriage, invalidation, divorce, on personal non-property and property rights and obligations of spouses, on establishing and challenging paternity (motherhood) , rights and obligations of parents and children, alimony obligations of adult children and other family members, adoption.
Along with the RF IC rules relevant to the regulation of family relations are contained in federal laws of November 15, 1997 No. "On acts of civil status" dated May 31, 2002 "On citizenship of the Russian Federation", as well as in a number of other acts, in particular in Regulations on the Consular Office of the Russian Federation and approved by the Decree of the President of the Russian Federation on November 5, 1998.
^ 2. Conflicting issues of marriage in the Russian Federation
When entering into a marriage, both on the territory of Russia and abroad, it is possible two options for the "presence" of a foreign element. In Russia, a marriage can be concluded: 1) between citizens of foreign states - the so-called Foreign marriage and 2) between persons, one of whom has Russian citizenship, and the other is the citizenship of a foreign state, the so-called mixed marriage. A similar situation is possible with registration of marriage and on the territory of a foreign state: 1) the marriage can be concluded between only Russian citizens; 2) a marriage can be concluded between persons who have Russian and foreign citizenship.
In the Russian Federation, marriages are registered both between Russian citizens and foreigners, and between foreigners, including between citizens of different states.
When entering into marriages on the territory of Russia regardless of citizenship future spouses the form of marriage is determined by Russian law (clause 1 of article 156 of the RF IC). This means that the marriage must be entered into with the vital statistics office. Marriages committed in Russia after religious rites, as well as for ceremonies based on custom, do not give rise to legal consequences.
The choice of law, which determines the material conditions, acquires great importance in the regulation of marriage.
According to paragraph 2 of Art. 156 RF IC " conditions of marriage on the territory of the Russian Federation are determined for each of the persons entering into marriage, by the legislation of the state, by a citizen whose person is at the time of marriage, in compliance with the requirements of Article 14 of this Code in relation to the circumstances that prevent the conclusion of marriage. " This rule is a novelty; for the first time in Russian family law, it allows the use of foreign law in determining material conditions. Based on the provisions of Art. 156 SK RF d For both persons getting married, it also matters compliance with the requirements of Russian legislation on obstacles to marriage, Article 14 of the CK:
"Marriage is not allowed between:
Persons of whom at least one person is already in another registered marriage;
Close relatives (relatives in a direct ascending and descending line (parents and children, grandfather, grandmother and grandchildren), full and incomplete (having a common father or mother) brothers and sisters);
By adoptive parents and adopted children;
By persons of whom at least one person has been recognized by the court as incompetent due to a mental disorder. "
^ If the future spouse , who wants to marry in Russia, is already married, then even if the applicable law of his country allows for a second marriage, in Russia he is married on the basis of Art. 14 of the RF IC should be refused.
If the face is alongside with the citizenship of a foreign state has Russian citizenship, To the conditions of marriage are applied by the legislation of the Russian Federation. In this case, the general approach of Russian legislation to the problem of dual citizenship is applied, according to which a citizen of the Russian Federation who also has another citizenship, considered by the Russian Federation only as a citizen of the Russian Federation, with the exception of cases stipulated by an international treaty of the Russian Federation or federal law (Article 6 of the Federal Law on Citizenship of 2002).
^ If a person has the citizenship of several foreign states applied by choice of this person legislation of one of these states.
Conditions of confinement stateless marriage on the territory of Russia are determined the legislation of the state in which this person has a permanent residence.
Russian legislation allows the conclusion of so-called consular marriages on the territory of the Russian Federation, those. marriages registered at foreign diplomatic or consular missions.
Marriages between foreign citizens entered into in Russia at the embassies or consulates of foreign states, recognized as valid on the terms:
a) reciprocity, i.e. if in the relevant foreign state it is allowed registration of marriage at the Russian embassy or consulate;
b) if both persons getting married are citizens of the country who has appointed a diplomatic or consular representative.
^ Consular "mixed" marriages are generally not allowed ... However, some consular conventions expressly provide for the registration of "mixed" marriages by the consul.
Marriages of Russian citizens with foreigners entered into on the territory of the Russian Federation in a foreign diplomatic mission(embassy, consulate) are not legally binding.
^ Recognition of marriages concluded outside the territory of the Russian Federation.
Marriages of Russian citizens with foreigners can be concluded not only in Russia, but also abroad. ^ Marriages contracted abroad are recognized in Russia.
Russian family law in this case proceeds from the following provisions:
Russian citizens abroad can conclude with each other marriages both in the consulates of the Russian Federation and in the relevant authorities of any foreign state. Usually, marriages are concluded in these bodies due to the absence of a Russian embassy in a given country or a consulate in the area where they are located;
All such marriages (both between Russian citizens and "mixed" ones) will be recognized as valid in Russia subject to the legislation of the state of the place of marriage how about the form of marriage and the conditions for marriage;
The only condition for the recognition of marriages of Russian citizens concluded abroad as valid in Russia is is the absence of circumstances that prevent marriage, which are established by Art. 14 RF IC.
With regard to marriages registered between Russian citizens or with the participation of Russian citizens outside the "Russian Federation," the opinion is expressed in the legal literature that minor marriage RF (aged, for example, 12-16 years old) or minor citizen RF, in accordance with the legislation of the state where the marriage is registered, it will then be recognized in the Russian Federation, since in the 1995 IC, in contrast to the previously existing code of practice of 1969, there is only one requirement - on the fulfillment by the citizens of the Russian Federation of Art. 14 SK. Regarding the requirement for observance by citizens of the Russian Federation of marriageable age, then it is no longer enshrined in this article and, accordingly, may not be performed. However, due to public policy representing in the field of marriage and family relations on many issues of imperative beginnings, legal regulations Omutual consent persons getting marriedreaching marriageable age cannot be ignored by the spouses.
Marriages between foreign citizens prisoners outside the territory of the Russian Federation with compliance with state legislation in the territory of which they are imprisoned,
To what extent can this rule be limited in Russia by a disclaimer? about public policy? According to Art. 167 RF IC " the norms of foreign family law do not apply ifif such an application would be contrary to the foundations of law and order (public order) of the Russian Federation. In this case, the legislation of the Russian Federation applies. "
In connection with this rule on public policy, in particular, the question arises: can a polygamous marriage committed abroad in any state that allows such marriages, for example in Sudan or the United Arab Emirates, be recognized in Russia? Such a marriage cannot be declared invalid in Russia. There are cases when men from Syria or the United Arab Emirates, having already three wives, offered Russian citizens to become a fourth wife. It is impossible to enter into such a marriage in Russia, because the presence of a marriage is an obstacle to the conclusion of a new marriage in Russia. But this can be done in another country.
In Art. 167 RF IC it is not about the contradiction of a foreign norm, allowing polygamous marriage, the foundations of the law and order of the Russian Federation, but on the consequences of the application of such a rule in the Russian Federation. The norms themselves foreign law, admitting polygamy contradict the basic principles of Russian family law, but this does not mean that polygamous marriages concluded in the country where they are recognized cannot generate legal implications recognized in our country; one cannot, in particular, referring to the public policy clause, to object to the recognition in Russia of the alimony obligations of members of a polygamous family.
^ Nullity of marriage.
Invalidity of a Marriage Concluded on the Territory of Russia or beyond, is determined by legislation, which, in accordance with Art. 156 and 158 of the RF IC was used for marriage. So, if at the time of marriage in Russia it was subject application of Russian legislation(to the form and procedure for the conclusion of marriage, to the conditions for the marriage of a Russian citizen, to obstacles to the marriage of a foreign citizen), the invalidity of marriage in terms of the form and order, as well as the conditions for the marriage of a Russian citizen will be determined by Russian law.
^ If foreign legislation was applied when entering into a marriage on the territory of Russia , for example, the conditions for the conclusion of a marriage were determined for a spouse - a foreign citizen under the laws of the state of which he is a citizen, then the marriage may be invalidated in connection with a violation of the applicable rules of the relevant foreign legislation on the conditions of marriage.
^ When marriages are declared invalid in Russia imprisoned outside the Russian Federation, the decisive one is the legislation that was applied at the conclusion of the marriage.
If the marriage was contracted abroad by foreign citizens with the application of foreign legislation on the form and conditions of marriage, its invalidity is determined by this foreign legislation. If the marriage was contracted abroad with the application of Russian law (for example, due to the requirements of a foreign conflict of laws rule in relation to a spouse who is a Russian citizen, Russian law was applied to the conditions of marriage), the marriage may be invalidated for reasons of violation of the requirements Russian law on the conditions of marriage.
^
3. The relationship between spouses. Divorce.
In Russian legislation conflict of laws rule of law applicable to spousal relations, Until recently was absent... In this situation, the courts, regardless of the citizenship and place of residence of the spouses, applied Russian legislation... The gap in the legislation was filled in paragraph 1 of Art. 161 RF IC.
Circle of relationships, to which the conflict of laws rule of clause 1 of Art. 161 SK, - personal non-property and property rights and obligations of spouses.
According to the RF IC, "personal non-property and property rights and obligations of spouses must determined by the legislation of the state on the territory of which the spouses havea joint place of residence, and in its absence - by the legislation of the state on whose territory they had last joint place of residence"(Clause 1 of Art. 161).
Thus , the basic principle regulation of relations between spouses is territorial principle... Based on the foregoing, it follows that Russian legislation will be applied to the regulation of relations between foreign spouses if they live on the territory of Russia. Note that in European countries(Austria, Hungary, Poland) in these cases, the law of citizenship of the spouses is mainly applied, and only in the absence of common citizenship does the law of joint residence apply.
One of the most significant provisions that updated the conflict regulation of the relations in question is consolidation of the principle of "will autonomy". The principle of "autonomy of will" in private international law of the Russian Federation previously operated only in the regulation of international business transactions. With the introduction of the UK, it began to be used in marriage and family relations. However, the legislator limited the possibility of using "will autonomy" two situations - concluding a marriage contract and drawing up an agreement on the payment of alimony... Only when considering these issues can the parties use "autonomy of will" and choose the law to be applied to determine their rights and obligations. In addition, the choice of law in these circumstances is due to additionally with the following requirements : spouses should not have common citizenship or joint residence. In other cases, conflicts of interest established by the legislator are in effect. As for the form of the agreement on the choice of law, this issue is resolved on the basis of the general conflict of laws rule on the form of the transaction, that is, according to the law of the place of the transaction.
"2. At concluding a marriage contract or agreement on the payment of alimony to each other, spouses who do not have a common citizenship or joint residence may choose the legislation to be applied to determine their rights and obligations under a marriage contract or an agreement on the payment of alimony. If the spouses have not chosen the applicable legislation, the provisions of paragraph 1 of this article are applied to the marriage contract or their agreement on the payment of alimony "(Article 161 of the Civil Code of the Russian Federation).
Collisional issues of personal non-property and property relations between the spouses received consolidation in agreements on legal assistance. Similar to Russian legislation, in the 1993 CIS Convention as the main binding is enshrined in the law of the state of joint residence. Along with this, subsidiary norms are provided for in the case when the volume of the general norm is changed - the spouses do not have a common place of residence. One of such subsidiary norms is the rule that if one of the spouses lives in the territory of one state, and the second, in the territory of another, and at the same time they have the same citizenship, their personal non-property and property relations are determined by law their common citizenship.
^ Divorce.
According to Russian law, divorce is carried out either in judicial procedure, or in the registry office.
Dissolution of marriage between Russian and foreign citizens or stateless persons, as well as between foreign citizens on the territory of the Russian Federation occurs in accordance with the legislation of Russia(clause 1 of article 160 of the RF IC). In these cases application of the law of the country of citizenship of foreign spouses not provided.
"1. Dissolution of a marriage between citizens of the Russian Federation and foreign citizens or stateless persons, as well as a marriage between foreign citizens on the territory of the Russian Federation is carried out in accordance with the legislation of the Russian Federation "(160 Civil Code of the Russian Federation)
According to paragraph 2 of Art. 160 RF IC Russian citizen residing outside the territory of Russia, has the right dissolve a marriage with a spouse residing outside the territory of Russia, regardless of his citizenshipin the court of the Russian Federation. Thus, it is possible to dissolve the marriage of a Russian citizen with a foreigner living abroad, as well as Russian citizens in a Russian court, in cases where both of them live abroad. The only one problem, arising in practice in such situations, is the question of the choice of territorial jurisdiction. This the issue is currently not legally resolved. It is necessary to include an appropriate rule on jurisdiction in the civil procedural legislation so that the possibility of considering a claim for divorce for Russian citizens living outside the Russian Federation could be implemented in practice.
The courts consider cases of divorce in the presence of a foreign element for the same rules as for the dissolution of marriages between citizens living in Russia. Usually such cases are considered in the presence of both spouses.
When considering cases of divorce, the court applies Russian legislation, unless otherwise follows from international treaties concluded between the Russian Federation and foreign states.
If the marriage is between Russian citizens or a Russian citizen and a foreigner terminated abroad, the question arises of recognizing the validity of such a divorce in Russia.
^ For the recognition of such a divorce enough to the divorce was committed in accordance with the laws of their country of residence. Documents issued to foreigners in proof of divorce committed under the laws of the respective states, are recognized as valid in the Russian Federation.
"3. Dissolution of a marriage between citizens of the Russian Federation or dissolution of a marriage between citizens of the Russian Federation and foreign citizens or stateless persons, committed outside the territory of the Russian Federation in compliance with the legislation of the relevant foreign state on the competence of the bodies that made decisions on the dissolution of marriage, and the legislation applicable to dissolution of marriage , is recognized as valid in the Russian Federation. "
In cases where according to Russian law, a marriage can be dissolved by the registry office(the consent of the spouses in the absence of common minor children), abroad a divorce can also be filed by the consul. This provision is established by clause 2 of Art. 160 of the RF IC, according to which in these cases "the marriage can be dissolved in the diplomatic missions or consular offices of the Russian Federation."
Russian legislation establishes appropriate rules in relation to recognition of the dissolution of marriages between foreign citizens committed abroad. According to paragraph 4 of Art. 160 of the RF IC, dissolution of a marriage between foreign citizens committed outside the territory of Russia "in compliance with the legislation of the relevant foreign state on the competence of the authorities that made decisions on divorce, and the legislation applicable to dissolution of marriage, is recognized as valid in the Russian Federation."
Recognition of divorce does not always automatically entail recognition in the Russian Federation and the consequences of divorce. They cannot, for example, receive confessions established in a foreign judgment such consequences of divorce as deprivation of the party "guilty" of divorce, the right to remarry, deprive her of the right to raise children, etc.
^
4. The relationship between parents and children. Establishing and challenging paternity (motherhood). Adoption.
The rights and obligations of parents and children, including the obligation of parents to support children, are determined by the legislation of the state on the territory of which they have a joint place of residence. At lack of joint residence parents and children, their rights and obligations are determined by the legislation of the state,
... At the claim of the plaintiff for maintenance obligations and other relationships between parents and children can be applied state legislation,in the territory of which the child permanently resides.
At the same time, the court is not obliged to apply, at the request of the plaintiff, the legislation of the country of residence of the child. a is the right of the court. Within the meaning of the law, account must be taken of the fact that the legislation the child's country of residence is indeed more favorable for him. Here the following may be taken into account: the method of collecting alimony (as a percentage of wages the defendant or in a fixed amount of money), the terms of collection (until the age of 18 or until the achievement of economic independence, as is customary in a number of countries), etc.
^ Maintenance obligations for adult children v the benefit of the parents. In the UK of 1995, there is a special conflict of laws rule that enshrines the rule of choice of law when regulating the alimony obligations of adult children in favor of the parents, as well as the alimony obligations of other family members. According to Art. 164 SC alimony obligations of these persons are determined the legislation of the state on whose territory they have joint residence. In the absence of such, these relations are governed by the law of citizenship of the person(Art. 164 Alimony obligations of adult children in favor of parents, as well as alimony obligations of other family members are determined by the legislation of the state in whose territory they have a joint residence. In the absence of a joint residence, such obligations are determined by the legislation of the state of which the person applying for receiving alimony), claiming alimony... The range of issues resolved through the choice of law is quite wide: this is the amount of alimony, including a decrease or increase in the amounts recovered, and the determination of persons who are obliged to pay alimony, and the grounds for obtaining alimony. As for the procedure for the execution of decisions on the recovery of alimony, these relations are already governed by public law, which can be contained either in the national procedural legislation of the state, or in the relevant international treaties (they are, as a rule, treaties on legal aid).
^ Establishing and challenging paternity (maternity) is determined by the legislation of the state, of which the child is a citizenby birth (Clause 1 of Art. 162 of the RF IC). If, at the time of establishing paternity, the child has a citizenship of another state other than citizenship by birth, the law of original citizenship shall apply.
Procedure for Establishing or Disputing Paternity (Motherhood) on the territory of Russia is determined by Russian law.
^ In cases where, according to Russian law, it is allowed to establish paternity in a civil registry office parents of a child living outside the Russian Federation, of whom at least one is a citizen of the Russian Federation, have the right to apply for establishing paternity to diplomatic missions or consular offices of the Russian Federation (Article 162 of the RF IC).
^ Material relations for establishing and challenging paternity are inextricably linked with procedural issues -in order of establishing paternity. Considering that order is essentially a procedure and is regulated by each legislation in accordance with national procedural rules, this issue lies outside private international law.
^
The decision to establish paternity can be made by the relevant institution of a foreign state.
Such a decision will be recognized and enforced on the territory of Russia, as a rule, if it is provided for by an international treaty (it may be an agreement on legal assistance or on cooperation).
Adoption
In the Russian Federation, adoption, having an international character, it is governed by the conflict of laws rules enshrined in Art. 165 SK. At the same time, this article identifies different situations, each of which internationalizes adoption... Equally, the conflict of laws provisions of Art. 165 determine the choice of law and adoption. Adoption is considered international when it is carried out:
foreign citizens (or stateless persons) in relation to a child who is a citizen of the Russian Federation on the territory of the Russian Federation;
foreign citizens (or stateless persons) in relation to a child who is a citizen of the Russian Federation outside the territory of the Russian Federation;
Russian citizens in relation to a child who is a foreign citizen on the territory of the Russian Federation;
by Russian citizens in relation to a child who is a foreign citizen on the territory of a foreign state.
The application of the relevant foreign legislation on the requirements for adoption (in relation to age, financial situation, etc.) during adoption is intended to ensure the stability of adoption in a foreign country in the future, since usually a foreign adoptive parent takes the child back to his country.
In accordance with Art. 165 SK RF d The requirements of Art. 124 - 126, 129 - 132, proceeding primarily from the fact that adoption is allowed in relation to minor children and only in their interests. Only double protection from both foreign and national law will ensure the best interests of the child. According to paragraph 4 of Art. 124 adoption of children by foreign citizens or stateless persons is allowed only in cases where it is not possible to transfer these children to the families of Russian citizens permanently residing in the Russian Federation, or to be adopted by the relatives of children, regardless of the citizenship and place of residence of these relatives.
In accordance with Art. 166 of the RF IC, foreign adoptive parents themselves have the right to submit documents to the court confirming the content of the relevant rules of law of the state of which they are citizens. If such documents are not submitted by the applicant, information about foreign law may be requested by the court from the Ministry of Justice of the Russian Federation or from the consular office of Russia abroad. Information on foreign law can also be obtained through the involvement of experts - specialists in the field of foreign law. In case of failure to establish, despite the measures taken, foreign law, the court has the right to apply upon adoption the norms of Russian law, i.e. the relevant provisions of the RF IC.
When, if as a result of adoption the rights of the child may be violated established by the legislation of the Russian Federation and international treaties of the Russian Federation, adoption cannot be carried out regardless of the citizenship of the adoptive parent, and the adopted adoption is subject to cancellation in court.
Adoption by foreigners, married to Russian citizens, is performed in accordance with the procedure established by the Family Code RF for Russian citizens, unless otherwise provided by international treaties of the RF.
When adopting a child on the territory of the Russian Federation by citizens of the Russian Federation, a foreign citizen, necessary obtain the consent of the child's legal representative and the competent authority of the state of which the child is a citizen, and also, if it is required in accordance with the legislation of the said state, the child's consent to adoption.
^ Protection of the rights and legitimate interests of children who are Russian citizens and adopted foreigners , outside Russia carried out within the limits allowed by the norms of international law, by the consular offices of the Russian Federation in which these children are registered until they reach the age of majority. In 2000, the rules for registering children who are citizens of the Russian Federation and adopted by foreign citizens or stateless persons were also approved by the consular offices of the Russian Federation.
Private international law, like many branches of law, is divided into two parts: The general and A particular... The General Part deals with issues that are important for private international law as a whole, issues that can be, so to speak, taken out of the brackets when analyzing the norms and institutions that make up the content of individual topics of the Special Part. General part is a consideration of sources of private international law, a number general concepts and principles, first of all, methods of regulation, national treatment and most favored nation treatment, the principle of reciprocity, rules on the qualification of legal concepts, on the return and reference to the law of a third country, on the clause on public order, on the operation of the so-called superimperative norms in private international law ... The general part should also include consideration of the legal status of subjects of civil relations with a foreign element, the state as a special subject of such relations, foreign legal entities and foreign citizens.
Special part usually consists of the following sections: 1) ownership; 2) the law of obligations, and above all the contract of sale of goods and the contract of carriage; 3) credit and settlement relations; 4) obligations from offenses; 5) intellectual property right; 6) family law; 7) inheritance law; 8) labor relations; 9) international civil procedural law; 10) consideration of disputes in international arbitration courts. The issues of international procedural law, which include the problems of cross-border bankruptcy, as well as arbitration proceedings, are given great attention in the Special Part. These are the questions procedural situation parties, foreign citizens and stateless persons, legal entities of a foreign state, matters of jurisdiction, execution of letters rogatory, recognition and execution of foreign judgments.
The prevailing point of view does not classify the procedural rules governing the relations of the parties to the composition of the rules of private international law, since the court (meaning only state courts) is an organ of the state, and the relations of the court with the parties are relations of a public law nature. But in modern conditions, the adversarial principle and the principle of domination of the parties in a dispute are acquiring more and more significant importance (they often determine jurisdiction, play a significant role in the presentation of evidence). International treaties on legal assistance simultaneously regulate the application of law to the relevant relations (conflict of law issues) and issues of jurisdiction, i.e. determining which state court will consider the dispute. This is due to the fact that in practice, in the event of a dispute between the parties, the determination of the applicable law is always preceded by the solution of procedural issues, and above all the issue of jurisdiction. This is the manifestation of the connection between collisional and procedural rules in this area. This connection is especially clearly visible in the widespread in world practice, the appeal to the arbitration court as a body for considering a dispute. In this case, power relations generally fade into the background, since the body for considering the dispute and, accordingly, the procedure for considering the dispute is chosen by the parties.
An example of this trend is the conclusion by the member states of the Commonwealth of Independent States of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases of 1993 (Minsk Convention), as well as new edition of this Convention (Chisinau Convention 2002).
In these Conventions, sections and parts on the personal status of individuals, family matters, property legal relations, inheritance contain, first of all, provisions on the law applicable, and then on the court (or other body) of which state has jurisdiction in the relevant case.
| Previous |