Responsibility acts as an integral component of law, of any of its sectors. It belongs to the category of coercive means. Without it, the right loses its regulatory properties.
Modern realities
Specialists are forced to state that the liability mechanism that is in force in Russia today is ineffective. This means of coercion in the form in which it is currently acting does not have the necessary effect on the state of affairs in the economic sectors. This situation is explained by miscalculations in the legislative regulation and in the organization of the use of responsibility. The reasons for this situation are also the continuing collapse of economic ties in the state and a reduced level of contractual discipline.
The meaning of measures
By increasing the accuracy of the fulfillment of the obligations assumed, which is ensured by the liability mechanism, it is possible to significantly increase the production volumes of the main business sectors without foreign loans and additional investments. The clarity of regulation of compliance with requirements contains large reserves to strengthen the economy. Due to strict adherence to the terms of the contracts, it is possible, among other things, to significantly improve the quality of domestic products. All types of legal liability help the economy. The accuracy and conscientiousness of participants in economic relations, brought up on compliance with the requirements and norms, themselves begin to act as sources of profit.
Concept and types of responsibility
First of all, it is necessary to distinguish between the conditions and sources of application of measures of influence. These or other types of liability act on the basis of regulations or contract. Since subjects can determine mutual opportunities and requirements by agreements, they can also provide for punishment for failure to fulfill the established conditions. Civil liability involves four main measures of influence:
- Indemnification.
- Forfeit.
- Confiscation sanctions.
- Atypical measures.
The latter act as a relatively independent category. Some types of liability apply to other industries. Measures are also classified according to their volume. So, there are such types of responsibilities as limited and full. The latter is used, as a rule, in the appointment indemnification. Rather tough measures are prescribed in the Criminal Code of the Russian Federation. The following types of criminal liability:
- Deprivation of the ability to carry out any activity or occupy a specific position.
- Fine.
- Deprivation of an honorary or military rank, state award, rank.
- Correctional or obligatory work.
- Arrest.
- Restriction of freedom.
- Content in a military disciplinary unit.
- Imprisonment for a specific term or life.
- Restriction in military service.
These or other types of criminal liability are assigned in accordance with the gravity of the crime. In addition, mitigating or aggravating circumstances are of importance. There are also certain types of administrative responsibility. These include:
- Fine.
- A warning.
- Compensated seizure of the subject that acted as an instrument of commission or direct object of the crime.
- Deprivation of special right.
- Confiscation of the subject, acting as a tool for the commission or direct object of the crime.
More stringent administrative responsibilities are as follows:
- Arrest for up to 15 days.
- Correctional work for 2 months.
Regulatory rationale
Responsibility that occurs in commercial or civil relations is established by different legislative branches. These or other measures are designed to influence various aspects of entrepreneurial and ordinary activities. However, due to the fact that commercial law acts as a sub-sector of civil, it is necessary to consider measures that are permissible in the regulation of trade.
Functions
What is legal liability? The concept and types of such a method of influencing subjects provide for the occurrence of adverse consequences of a property nature. These coercive measures are used in the assumption of default, infringement of the interests of another person. Legal responsibility, the concept and types of which are based on the state mechanism of influence, performs several functions:
- Compensatory. Her task is to recover the losses suffered by the victim.
- Warning. It consists in preventing the subject from committing unlawful actions.
- Stimulating. It provides for the incentive of the debtor to eliminate the violation committed by him, and to the actual implementation of the obligations undertaken.
- Informational. It consists in the analysis of information about the types of violations that are committed, their dynamics and the subsequent application of these data in the development of measures to eliminate the causes of crimes and prevent losses.
It should be noted that the performance of the above functions is carried out today in Russia is extremely unsatisfactory. Legal publications clearly outline the tasks, but there are no recommendations regarding methods for their implementation.
Contractual regulation
Civil liability can be established directly by the participants in the relationship. In the framework of the contract, in many cases, these or other measures of influence for non-fulfillment of obligations are prescribed. Through agreements, subjects can also increase the amount of punishment in comparison with established legislation. The restriction of this possibility is established only for certain types of obligations, for example, for the fulfillment of the terms of the contract of carriage. At the discretion of the participants in the relationship, the ratio of losses and forfeit may be determined if it is not spelled out in regulatory enactments. Subjects are able to reduce certain types of liability. This, in particular, relates to losses, interest rates, and other monetary obligations.
General categories: conditions of occurrence
In accordance with the reason distinguish types of liability: regardless of the presence of guilt, and directly for guilt. In the first case, exemption from punishment is possible in the presence of certain circumstances - their circle is quite limited. In particular, these include the creditor’s fault or force majeure. This responsibility is called "innocent" or objective. In the second case, the debtor is released from punishment in the absence of guilt. He must prove it. In accordance with the general rule, certain types of responsibility take place in the presence of guilt, which is presumed (provided). This provision is reflected in paragraphs. 1 and 2 of the 401st article of the Civil Code.
It is expressed in this way: a person who has not fulfilled an obligation or has not fully performed it must be held liable in the presence of fault. An exception is cases in which other acts are established by regulatory acts or by agreement. The subsequent provision - paragraph 3 of the 401st article of the Civil Code - provides for other, more stringent conditions under which certain types of liability for offenses are assumed. The debtor must prove in this case the presence of force majeure.This means an objective responsibility. Nevertheless, a regulatory act or an agreement may establish otherwise. Some provisions provide for a derogation in favor of the culpable liability.
Subjective separation
Such classification implies the following types of liability for violation of the law or the terms of the contract:
- Subsidiary.
- Share.
- Jointly.
The latter is established by law to provide the lender with higher legal protection. It applies to:
- Of the participants full partnership.
- Subsidiaries and main business entities.
- Persons issuing and endorsing a security.
- Debtor and guarantor.
- Persons who harmed jointly.
- Heirs for the obligations of the testator.
Also, this kind of responsibility can be applied to an agreement with a plurality of debtors. The creditor may make claims both to all participants jointly, and to any of them separately. The main conditions for the possibility of applying measures are the indivisibility of the subject of obligations, the agreement of the parties or other cases provided for by regulatory enactments. Under shared responsibility understand the recovery from each debtor in an equal share. This is a general rule and is considered a fair decision. In this case, each participant in the relationship is responsible for their own actions.
Subsidiary liabilities
This responsibility implies the presence of one (main) debtor. However, under the terms of the contract or in accordance with the regulatory enactment, another person may fulfill the creditor’s claim for it. In this case, the lender is given great guarantees, his legal protection is strengthened. In the new Civil Code, the scope of these measures has been significantly expanded. This greatly contributes to ensuring reliability in property turnover. There are more than 15 articles in the Civil Code governing the use of subsidiary liability. In accordance with regulatory enactments, it applies to:
- Russian Federation on obligations of state enterprises.
- Members of the cooperative.
- Owner - for the obligations of the institution.
To implement subsidiary liability the creditor should first contact the principal (original) debtor. If the requirement is not satisfied, he transfers the obligations to the additional person. It, in turn, may raise objections in its defense. As they are used, those presented by the main debtor. In the event that an additional person nevertheless has been liable, he has the right to put forward a recourse claim. This opportunity is used if the main debtor continues to operate.
Volume classification
As mentioned above, there are such types of liability as full and limited. In some cases, it is necessary (or justified) to use the latter category. Responsibility of this kind takes place in two cases, in accordance with applicable regulations:
- If the lender malfunctions, which may affect the performance of the obligation, when the scope of the punishment is determined in court.
- In the presence of the terms of the contract or the relevant regulatory act, by which the scope of liability is limited in advance by a specific monetary limit.
If the failure of the debtor to comply with the improper actions of the other party, there is a situation called the fault of the creditor. It is expressed in non-fulfillment and failure to take measures to reduce the amount of losses caused to him. In both cases, by decision of the court, the debtor is partially exempted from liability. Reduction of requirements is carried out taking into account the fault of the creditor. Similar situations occur both when fulfilling the terms of the contract and in the sphere of tort liability, and belong to the mixed category.Quite numerous situations of restriction on the size of requirements. They can be provided for both by law and by contract. In the latter case, for example, the agreement may contain conditions for an exceptional penalty. The regulatory act, in turn, provides for limited liability for the carrier.
Indemnification
This measure is considered general. It applies to any violation, unless otherwise provided by law or contract. This type of collection most fully performs the compensatory task. The debtor returns to the victim as much as the damage they suffered. Such responsibility is also capable of fulfilling a precautionary function. Those organizations that have managed to recover damages may seek to fulfill obligations from counterparties. However, in this case, there are certain nuances. In particular, the difficulty is documentary evidence and evidence during the trial of the amount of losses. For this it is necessary to prepare a sufficiently large number of documents. They are compiled by different services of the organization. A prerequisite is the consistency of all information.
Forfeit
Its varieties include a penalty and a fine. In accordance with the interpretation provided by the law, forfeit is the amount of money determined by a regulatory act or an agreement, which is payable by the debtor in case of failure to fulfill or improper fulfillment of obligations. A fine is traditionally regarded as a single penalty in a percentage or a fixed amount equal to the sum of the outstanding claim. A penalty is a liability that is established for an ongoing and continuous violation. There are many situations in which the penalty acts as the only effective measure of influence. To recover losses for these violations can be very problematic due to the complexity of their fixation and calculation of sizes. Because of this, lenders have to use the possibility of establishing contractual penalties.
Atypical measures
They have features that do not allow you to attribute them to any particular category. For example, in accordance with the law on the protection of consumer rights, the manufacturer is obliged to pay 10% of the costs of the enterprise that received low-quality products from it. In Art. 395 CC provides a single measure for non-fulfillment of monetary obligations. It is presented as payment of interest on the amount of debt.
