The most important direction in the process of reforming the state-legal sphere of Russian society is considered to be a course towards the formation of a structure that would be able to ensure the rule of law in all areas of social life, strengthen guarantees for political, civil, economic and other freedoms and rights of the population. Different steps are being taken for this. One of them is the division of legal acts into dispositive and peremptory norms. Examples of such provisions can be found in legislation, charters and other foundations.
General information
Dispositive legal norms are closely related to issues of reforming social relations. So, the legislative support of the Russian market economy provides for the formation of not only a powerful legal foundation. A significant strengthening of the role of the treaty in the field of economic, many international, socio-political and other ties is also expected in this area. It, by its legal nature, is considered an effective method of regulating relations that take shape under conditions of free exchange of goods and production.
Definition Issues
First of all, it should be noted that dispositive norms of law have been little studied today. There is currently no general theoretical monographic study that would be devoted to this topic. Also not entirely clear is the nature of the dispositive norms. A single definition of the concept has also not been developed. Difficulties arise with the assessment of the position taken by the dispositive law in other systems.
Terminology
In accordance with the regulatory method, peremptory and dispositive legal norms are distinguished. The first category involves strict, mandatory execution. This group is called peremptory norms. They are present in various spheres of relations, regulate behavior in a particular discipline. Since they imply strict execution, the parties to the relationship cannot voluntarily depart from their use. This, in fact, is the difference between peremptory and dispositive norms. The second provides for some deviations from the requirements. Dispositive norms are not strictly binding.
general characteristics
The division into peremptory and dispositive norms is considered a long-existing common property of legal requirements. It is of great importance in the process of lawmaking and the subsequent application of the provisions. Of particular importance are the dispositive norms of civil law. This is due to the vastness of this legal sphere and the need to regulate the diversity of relations. Also, these provisions are important in the process of forming property turnover within the market.
Dispositive Conflict Norms
This concept implies an independent choice by subjects of the volume and characteristics of their duties and capabilities. In the absence of an agreement, the second order contained in the regulation shall enter into force. Dispositive norms are actively applied in the Civil Code of the Russian Federation. So, in Art. 459, p. 2 states that the risk of accidental damage or loss of goods, which was sold during its transit, from the moment of conclusion of the contract of sale is transferred to the buyer, unless otherwise provided by such an agreement or by the customs of commercial turnover.
Signs of provisions
In the civil law, certain formulations have been established that quite clearly or directly express the legal force of a particular norm or their group. M. Braginsky suggested calling them attributes. Such formulations may sound differently. Dispositive norms are expressed by the following formula: because either unless the agreement or contract provides otherwise. In addition, other attributes are also used. We are talking about this wording: the norm states that the parties have the right or can perform a certain action that deviates from the approved general rule. This is a relatively new technique in legislative technology.
Giving dispositiveness may relate to a certain group of norms. In this case, a direct indication of the possibility of rejection is used: the agreement of the parties on the other is allowed. However, most provisions do not have a clear indication of whether they are imperative or optional. In this case, the view is considered traditional that in the absence of any clear guidelines to determine the nature of the act, it should be identified by interpreting the situation. In practical application, this often leads to an ambiguous understanding of the legal significance of a number of important norms.
Features in individual institutes
Dispositive norms are considered an integral part of the obligatory provisions. Their need is determined by a number of important factors:
- The differences between the needs and capabilities of the parties.
- The dynamics and diversity of property relations, acting as the subject of obligations.
- Use of agreements that are not directly regulated by the Civil Code.
- The desire to create the conditions for the establishment of a business entrepreneurial initiative, which is constrained by a variety of prohibitions.
The latter factor is of particular importance in the formation of market relations. A reflection of the above circumstances is presented in the provisions of the law of obligations and in the general part (Section III), and in the chapters that reveal the essence of its individual types (Section IV). In this case, we are talking about a large number of regulations containing a direct indication of the possibility of a contract to provide otherwise. Dispositive norms are considered the foundation of the core of the obligatory system of provisions - a liability mechanism, the basis of which may vary by the parties to the relationship. Through the conditions of obligations, subsidiary liability may be introduced; parties to the contract may limit the amount of reimbursable losses. The parties also freely choose how to fulfill their obligations.
Current market conditions
The establishment of the corresponding general rule in the Merchant Shipping Code (KTM) is considered to be the expression of the beginning of dispositivity in the law of obligations. This technique of legislative technique, creating legal clarity, can be applied in other areas of the obligatory system. The number of prohibitions in the Railway Transport Charter significantly decreased. These circumstances allow us to consider that there is a dispositiveness in the law of obligations in the absence of direct indications of the inadmissibility of the agreement of the parties on another decision.
Different legal picture
It is noted in the provisions of civil law on property rights and property, persons, inheritance. In these areas, regulated interactions are considered to be more typed; in legal control, stability and stability are necessary. The above factors that occur in the area of obligations are manifested here to a much lesser extent. Dispositiveness of norms is quite rare, although there are areas where it is needed.
Legal entities
In relation to this category, some authors put forward the opinion that the Civil Code is being introduced which is extremely important for ensuring stability in civil circulation, the principle of a closed list of legal entities that is absent in previous legislation. According to him, they have the ability to form and carry out activities only in the form that is provided by law directly. New types of property rights cannot be formed by the agreement of the parties, although this circumstance is not clearly expressed in the wording of Art. 216, paragraph 1. As a feature of the provisions on legal entities, there are prescriptions that derogations are not allowed by virtue of an agreement between the parties, but by decisions that are taken in a certain form:
- By the terms of the memorandum of association (Articles 71, 72, paragraph 1).
- According to the charter of a legal entity (Art. 93, Clause 2, Clause 100, Clause 3).
- By decision adopted at the general meeting of participants (Article 103, paragraph 3, Article 101, paragraph 1).
These provisions significantly limit the dispositiveness of certain standards. In this regard, in the areas under consideration, it is necessary to proceed from the presumption of the obligation and strict enforcement of legal requirements, due to the fact that they do not have a direct indication of the admissibility of the contract otherwise. When interpreting a norm, a conclusion about its dispositivity is likely. But this conclusion, in accordance with the nature of the above institutions, will appear infrequently.
Other applications
The described provisions are used not only in the legal sphere. Dispositive norms of the Russian language are considered quite common. They allow neutral or stylistically different options. Among them are: brown-brown, a slice of cheese, a slice of cheese, a sird-sird, three went, three went, a test book, an offset, and others. Dispositive language norms imply an assessment of non-prohibitive (categorical) options.
Finally
The wording in the educational and scientific literature of the general conclusions about the absolute predominance of dispositive or, conversely, peremptory norms should be recognized as inaccurate. It does not reflect the actual situation and the presence of a number of significant features in this matter within individual institutions. Due to the fact that direct indications of the nature of all or most of the provisions cannot be created in practice, the legal force must be determined through interpretation, taking into account all circumstances and factors relating to a particular act.
This path is not easy, but it is inevitable. The decisive word in this case is the conclusion of the court. Regarding the legal force of some important provisions of the Civil Code, clarification is desirable. They can be presented in a ruling from the highest court. The clarifications would allow some reassurance and clarity to be introduced into contractual practice, which is currently experiencing significant difficulties in understanding and subsequently applying many important provisions. Due to the correct understanding of the essence of the dispositive norms, prerequisites will appear for further deepening practical and theoretical knowledge regarding the operation of the legal settlement mechanism.
