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FEATURES OF PLEDGE OF THE LAW OF OBLIGATIONS
被引:0
|作者:
Zatsepin, Denis E.
[1
]
机构:
[1] Tomsk State Univ, Tomsk, Russia
来源:
关键词:
pledge of law of obligations;
pledgor;
pledge holder;
innovations of the Civil Code of the Russian Federation;
D O I:
10.17223/15617793/412/26
中图分类号:
O [数理科学和化学];
P [天文学、地球科学];
Q [生物科学];
N [自然科学总论];
学科分类号:
07 ;
0710 ;
09 ;
摘要:
Federal law 367-FL of December 21, 2013 introduced significant changes in the legal regulation of pledge of the law of obligations. As with all innovations, they have mixed effects and need a comprehensive analysis, for it is very important to make this method of securing obligations attractive for citizens. Based on this, the topic of the article is relevant in our time. The purpose of the research is to identify the strengths and weaknesses of the existing provisions of the RF Civil Code in terms of the status of the pledge holder. The author used the general research methods of logical analysis and synthesis, and the formal-legal specific scientific method in the research. The object of the research is the rules of the RF Civil Code regulating pledge of the law of obligations. The subject of the research is the legal position in the situation of pledge of the law of obligations. The theoretical basis of the research is works of Russian scholars in the field of civil law (V.A. Belov, A.A. Makovskaya, V.V. Vitryansky). The empirical basis of the research is the resolution of the Ninth Arbitration Court of Appeal. The newly introduced norm of Para. 4 Art. 358.2 of the RF Civil Code improves the legal position of the pledge holder. It holds the right holder liable to the debtor in the order of Para. 4 Art. 358.2 of the RF Civil Code for his violation of the restrictions on the pledge of right (claim). The pledge is valid, that is, the negative effects do not affect directly the pledge holder. Some innovations have worsened the position of the pledge holder. Thus, according to Art. 358.4, the procedure for notification of the debtor is determined by the rules of Art. 385 of the RF Civil Code, according to which the notice may be given both by the original and the new creditor. The author believes that the debtor should be informed that the right to claim for his obligations was pledged by the pledgor, not the pledge holder who does not participate in the relevant obligations. Article 358.4 of the RF Civil Code should fix the obligation of the pledgor to give a written notice to the debtor that the right to claim for his obligations was pledged to the pledge holder within a specified period, and establish a mechanism to protect the rights of the pledge holder, analogous to the one enshrined in Para. 1 Art. 358.7 of the RF Civil Code, if the pledgor fails to do it. Innovations of Para. 3 Art. 358.8 of the RF Civil Code are negative for the pledge hoder. They state that in the foreclosure on the pledged right out of court, the possibility to exercise the pledged right by the pledgor's assignment of the right to the pledge holder or a specified person may be provided for by the contract of pledge of the rights or by a separate agreement between the pledgor and the pledge holder. For more efficient use of pledge of the law of obligations as a way to ensure liability, Art. 358.8 of the RF Civil Code should provide the possibility of the out of court foreclosure on the pledged right by the pledge holder unilaterally.
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页码:159 / 161
页数:3
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