Legal regulation of the work contract. Work agreement. General provisions The concept of a work contract under Russian pre-revolutionary legislation
Construction contract
in Russian civil law
Plan:
Introduction
Chapter 1. General Provisions civil contract
1. The concept and types of work contract
2. Elements of a work contract
4. Responsibility for violation of the work contract
Chapter 2. Construction contract as a type of construction contract
1. General Provisions
2. Prerequisites and procedure for concluding a construction contract
3. Features of the content of the construction contract
4. Responsibility under a construction contract
Conclusion
List of used literature
Application
Introduction
Relevance of the topic thesis. The modern development of the domestic economy and entrepreneurial activity requires the production of an increasing volume of construction and installation work. Therefore, at present, in civil circulation based on market relations, the institution of the contract and construction contract, in particular, occupies a special place.
The complication of economic ties, the emergence of a significant number of business entities in the construction sector, the involvement of large capitals in this area, the dishonesty of some participants in the market of real estate, construction services make the problems of legal regulation of construction contracts very relevant for legal practice. Analysis of the theory of civil law, adopted legislation shows that the topic is relevant for the doctrine.
Contract issues in civil law and business literature have been considered by many authors. At the same time, in the science of civil law, there are not so many special works of a monographic nature devoted to the study of this institution; most of the existing modern works are rather informative in nature, rather than scientific.
The problems of legal regulation of contracting relations require today a comprehensive study, taking into account the practice of applying the latest legislation, including in the field of construction, and also taking into account the fact that many aspects have not yet received a proper legislative regulation. As for the existing legal solutions, in some cases they need to be developed and improved.
Construction contracts are concluded for the construction, reconstruction or overhaul of enterprises, buildings (including residential buildings), structures or other facilities, as well as for the performance of installation, commissioning and other work inextricably linked with the facility under construction. According to the previously effective legislation, the civil law relations arising in this case were mainly covered by contracts for capital construction, which occupied a prominent place in the system of economic contracts. The procedure for concluding these agreements, the rights and obligations of the parties, as well as their liability for violation of the assumed obligations were regulated in detail by the imperative norms of extensive legislation on capital construction. At the same time, primary attention was paid to the planning premises of these contracts, with which they were inextricably linked and which determined their main content.
The changes that have taken place in the socio-economic system of the country have made significant adjustments in the relationship between the customers of the facilities under construction (reconstructed) and the contractors performing the corresponding work. Volumes construction works, carried out at the expense of budgetary funds, especially in the field of housing construction, have decreased many times, and in some regions have practically disappeared. Investment investments in the field of capital construction are mainly of a non-state nature. As a result of privatization, most of the enterprises of the construction industry came out of the state's tutelage. Thus, by the mid-90s, private property relations clearly prevailed in the area under consideration, which required adequate legal regulation.
This need was realized in the course of the next codification of Russian civil legislation. With the adoption of the second part of the Civil Code in the Russian Federation, in essence, a new legal framework for relations in the field of capital construction was created.
The main core of the current legislation on capital construction is made up of the rules enshrined in Chapter 37 of the Civil Code. A fundamentally new point is that the overwhelming majority of general rules on work contracts are now in force in the area under consideration. At the same time, many rules that were previously applied mainly only in the field of capital construction, for example, on the general contracting system, acquired the meaning of general norms, and other issues, for example, about the risk of accidental destruction of the subject of the contract, which, in relation to ordinary contracts and contracts for capital construction was previously decided in different ways, now it is regulated in the same way.
The theoretical basis of the thesis served as the works of legal scholars of the pre-revolutionary, Soviet and post-Soviet periods. They were shot by the works of K.I. Annenkova, G.F. Shershenevich, Z.I. Shkundina, A.A. Karavaikina, V.F. Chigira, V.P. Gribanova, M. Ya. Chernyak, O.S. Ioffe, Ya.A. Kunik, Yu.K. Tolstoy, Z. Fatkundinova, I.L. Braude, V.V. Vitryansky, M.I. Braginsky and many others.
In addition, we in in full used the civil, business legislation of the Russian Federation, the legislation of its individual subjects, regulatory legal acts in the field of construction, materials of judicial and arbitration practice of courts at various levels.
The purpose of the work is an analysis of the problems of legal regulation of contract relations based on the norms of civil legislation in Russia.
Based on the designated goal, we set the following tasks:
1. Consider the concept, highlight the varieties of the work contract.
2. Analyze the elements of the work contract, disclose its content.
4. Consider the issues of liability for violation of the work contract.
5. Consider the features of a construction contract as a type of contract.
6. To identify the problems of legal regulation of construction contract relations, to determine the ways of their elimination.
In accordance with the set goal and objectives, it is determined and structure of thesis. It consists of an introduction, two chapters, eight paragraphs, a conclusion, a bibliography and an appendix.
Chapter 1. General provisions on the civil work contract
1. The concept and types of work contract
Contractual relations date back to Roman law, where this type of contractual obligations was considered in many aspects: both a type of contract for the employment of things, and a type of work and services. Since in those days almost all hard work and the main satisfaction in them was carried out, as a rule, by the forces of slaves, the work that they performed was considered a contract of employment of things. However, in the event that the performer was a free Roman citizen, then it was already a contract of employment of services or a contract. Proceeding from this, legal scholars point out that the difference between the latter consisted in the fact that a certain economic result (opus) was always achieved under the contract agreement, which was not in the service contract.
That is why, since the time of Roman law, a work contract has existed as an independent civil law contract. Moreover, its distinctive feature, which makes it possible to distinguish a work contract from a contract of employment or the provision of services, is the achievement of an economic result through labor costs on the part of the contractor. This idea belongs to the well-known Russian civilists of the beginning of this century G. Dernburg and I.A. Pokrovsky, who analyzed in detail the sources of Roman law.
The work contract is consensual, onerous, bilaterally binding (Article 702 of the Civil Code). Its parties are the contractor and the customer, which in a regular work contract can be any person. The subject of the work contract is the performance by the contractor of a certain work, which ends in a materialized result. The duty of the contractor is to perform such work on the instructions of the customer and hand over its result to the customer, the duty of the customer is to accept and pay for the result of the work.
The work contract is the content of Ch. 37 and, accordingly, Art. 702-768 of the Civil Code of the Russian Federation.
Following the Fundamentals of Civil Legislation in 1991, the new Civil Code of the Russian Federation has combined into a single type of contract "Contract" some of the previously recognized independent contracts. This applies to the contract for capital construction, as well as the contract for the production of design and survey work. Both of these contracts have now become a kind of contract. At the same time, the previously unified construction contract was divided into three independent contractual types: the contract itself, the contract for the performance of research, development and technological work, as well as the contract for the provision of services for compensation.
The chapter on the contract is among those six chapters of the Civil Code, which contain a general paragraph, and in parallel with it - a certain number of paragraphs, each of which is devoted to separate varieties of the corresponding contractual type. In the chapter "Contracting", general provisions on contracting (§ 1), household contracting (§ 2), construction contract (§ 3), design and survey work (§ 4), contract work for state needs (§ 5) are highlighted ...
Formation history. Economic value and scope. Delimitation from a service contract and an employment contract. Performance of work as a sign of contractual legal relationship.
1. The contract agreement in the history of Russian private law has come a long way of development: from personal recruitment and mixing it with a supply (purchase and sale) contract to its allocation in full independent view.
Initially, Russian law did not see the difference between personal employment and a contract for the performance of work, the latter was perceived precisely as a contract for the employment of labor, which was partly a consequence of the feudal worldview. The work contract in the form in which it exists now is a relatively young contract type.
From the history of civil law
1737. Contract or supply is a contract by virtue of which one of the parties entering into this undertakes the obligation to fulfill the enterprise with its own dependence or to supply famous kind things, and the other, in whose favor this is done, to make a monetary payment for that.
(Code of Laws of Civilians of the Russian Empire. Book Four)
1971. Under a work contract, the contractor undertakes to perform certain work for the contractor for a fee.
(Draft Civil Code Russian Empire)
220. Under a work contract, one party (the contractor) undertakes at its own risk to perform certain work on the assignment of the other party (the customer), and the latter undertakes to give remuneration for the performance of the assignment.
(Civil Code of the RSFSR 1922)
Art. 350 of the Civil Code of the RSFSR 1964
Initially, the need to complete the work was satisfied by hiring a number of performers, each of whom performed some part of the work. With the development of the economy, it was no longer possible to replace the construction of a contractual obligation with numerous "hirelings" (this is the term used by the sources of Russian law to designate a contractor under a personal hire contract, the customer was called "sovereign"). With the increasing complexity of work, the increased requirements for the professionalism of "hire", the need to use special methods of performing work (technologies), a work contract appeared, which, in fact, was a consequence of the need to establish one person responsible for the whole range of work, for the actions of each employee. Historically, the main impetus for the displacement of the contract of personal employment by the contract was primarily state contracts, which, even during the time of the Russian Empire, were concluded at auctions. It was practically impossible to conduct auctions among the crowds of artisans for the construction of, for example, the building of the council.
2. Having become the result of the evolution of the contract of personal employment, the contract of work is currently, perhaps, the second most common among all contracts, second only to the contract of sale. The scope of the contract is extremely wide, it mediates a variety of relationships and provides a variety of needs: from shoe repair to the construction of hydroelectric power plants. A work contract is the only contractual structure that formalizes the performance of work in the interests of the customer. Of course, almost any thing can be bought, but if we are talking about a unique product, be it jewelry or a building for the placement of an arbitration court, it is absolutely impossible to purchase them in a finished state, and it is economically inexpedient to create them in a random order in the hope of finding a buyer, almost the only form of organization of relations between the parties is a work contract in its various forms of manifestation.
3. Among all contracts regulated by civil law, a work contract is distinguished by subject matter.
The subject of a work contract is the performance of work and the transfer of their results to the customer, and the work contract itself, accordingly, refers to a variety of contracts aimed at performing work. It is according to this criterion that a work contract is delimited from a sales contract and a service contract.
Traditionally, the literature discusses the issue of delimiting work from services.
The issue of delimiting work from services is not idle, but has a purely practical orientation. So, if the activity for the provision of educational services is retrained into a contract, then any student who does not have educational institution diploma "with honors", can safely declare that the "work" was performed with inadequate quality, the final "product" did not reach the quality characteristics that it could have with due diligence of the "contractor". The situation will be similar with respect to all other types of services, so, as a result of the performance of the contract, all patients must be healthy (provision of medical services), all criminals must be at large (legal services of a lawyer), and all Catholics are confident that they will go to heaven (funeral services in terms of absolution).
The differentiation of work from services can be carried out according to various criteria. The first of them is an appeal to the unconditional authority of the legislator, in particular, paragraph 2 of Art. 779 of the Civil Code of the Russian Federation unambiguously indicates a number of contracts that should be qualified as contracts for the provision of services.
In some cases, the qualification of one or another relationship as contracting simply does not meet common sense. Thus, it is not possible to qualify the actions of a doctor as work. It may be that the result of obstetrics work is a born child, which, as a result of the work, is accepted according to the acceptance certificate indicating the quality claims, and the surgeon performs the work from the materials (flesh) of the customer.
At the same time, the legislator should not be made absolute. In some cases, the latter uses the term "service" in its literary meaning. So, the terms " utilities"(Clause 1 of Art. 153 of the Housing Code of the Russian Federation) and" financial services "(Clause 1 of Art. 18 of the Federal Law of the Russian Federation" On Protection of Competition "). by type of activity, as a collective designation of a certain group of contracts, most of which are contracts for the transfer of property.
From the point of view of law and the science of civil law, the distinction is made primarily on the basis of an analysis of the relations between the parties under a specific contract, the degree of significance and dependence on the properties of the customer of the result of the execution of the contract. So, for contracting relations, the result of the work is of decisive importance. The customer is not particularly interested in the way of performing the work, and therefore he may not take part in the execution of the contract at all. It is no coincidence that the legislator emphasizes that the customer has no right to interfere with the contractor's activities (clause 1 of article 715 of the Civil Code of the Russian Federation), the contractor independently chooses the method of completing the customer's task (clause 3 of article 703 of the Civil Code of the Russian Federation). As opposed to contracting for services, it is the process that is fundamental, the customer is interested in it and, as a rule, takes part. For services, the result is more of a random element than a mandatory one. The use of this criterion makes it possible to unambiguously determine the nature of the relationship between the customer and the barber (the customer is unlikely to be interested in the elegance of the comb movements and the virtuoso use of the hairdresser's scissors) as contractors. If the analysis of the relations between the parties to the contract does not allow one to come to a definite conclusion regarding the qualification of the relationship between the parties, a practical criterion should be used - the presence of the need to transfer the result of the performance of the contract. So, if the subject of the contract was really work, it means that the customer has something to take, what to inspect, what to admire, or, conversely, what to make claims to. If there is nothing to accept, it means that there were services that have already been consumed.
In accounting and tax legislation, there is a document called "act of acceptance and transfer of services rendered". The title of the document is irrelevant to its content. Naturally, no reception of the transmission of the "service provision process" occurs, the mentioned document is used for other purposes - it fixes the fact of completion of the provision of services and determines their cost. The title of the document should be ignored.
Traditionally, legal science raises the question of delimiting a work contract from an employment contract. The similarity of these contracts is understandable: the contract is obliged to originate from personal employment, which has now been transformed into an employment contract. Practical value such a distinction is primarily in determining the rules of law that are applicable to the relationship of the parties. Thus, the "performer" under an employment contract in accordance with the Labor Code of the Russian Federation is guaranteed annual paid leave and payment of temporary disability, which is not due to the contractor. The differentiation is carried out according to various criteria, among which the main one is the analysis of the relations between the parties to the relevant agreement for their compliance with clause 1 of Art. 715 and clause 3 of Art. 703 of the Civil Code of the Russian Federation. If it is established that the "contractor" under the contract obeys the instructions of the customer, the customer determines the methods and methods of performing the tasks, there is a working time schedule - of course, there are labor relations, which, for one reason or another, are veiled by the parties to the contract. If such data is not established, accordingly, there is a contractual relationship.
4. By its legal nature, a work contract is a contract for the performance of work, which has as its purpose the manufacture of an individually defined thing, the performance of other work with the transfer of rights to the result of the work to the customer. An essential feature of a work contract, which delimits it from other obligations, as a result of which one of the parties has a real right to property, is the presence of such an obligatory element as the performance of work aimed at making a thing or creating another material result precisely at the request of the customer. The presence or absence of work, the performance of which the customer has the right to claim, distinguishes the contract from the contract of purchase and sale and the contract for the sale of a thing that will appear with the seller in the future (clause 2 of article 455 of the Civil Code of the Russian Federation). It is permissible to conclude an agreement on the acquisition of a thing in ownership with the seller, realizing that the last thing will be created specifically for the buyer. However, in this case, both the customer and the contractor refuse a whole arsenal of ways to protect their rights in the event of improper performance of the duties of one of the parties. In particular, the customer will be deprived of the opportunity to check the progress of work on the creation of a thing, the right to involve an engineering organization. The contractor, in turn, is forced to perform the work exclusively at his own expense, while he will not be able to claim to change the price of the contract, upon completion of the creation of the thing, he will have to acquire ownership of the thing and only after that transfer it to the buyer.
An agreement under which one party (contractor) undertakes to perform a certain work on the instructions of the other party (customer) and hand over its results to the customer, and the customer undertakes to accept the result of the work and pay for it.
The assignment for large contract work is expressed in the form of design and technical documentation attached to the contract, in other cases - in the form of a contractual section or the terms of the contract itself on its subject.
Contract works are carried out from materials, forces and means of the contractor, who is responsible for the proper quality of the materials and equipment provided.
The contractor is not entitled to demand an increase in the price agreed with the customer.
The contractor can perform the work personally or with the involvement of subcontractors, acting as a general contractor, which is a citizen or an organization with the rights of a legal entity that has assumed the performance of work under a work contract and attracted other persons (subcontractors) to perform them.
Subcontractor - citizen or organization with rights legal entity attracted by the general contractor under a subcontract agreement to perform part of the work stipulated by the work contract.
Responsibilities and rights of contractors depend on the object of the contract. If it is indivisible, they are considered joint debtors and creditors; if it is divisible, the scope of obligations and rights is determined in accordance with its share specified in the contract.
In its absence, the shares of the co-contractors are considered equal.
The contract must contain a clear definition of the timing of the work. In the absence of the initial and final deadlines for the performance of work, the contract is considered not concluded.
The contract price can be approximate, at which the contractor asks the customer about a significant increase in price, and firm, which is not subject to revision. The parties may agree on discounts and surcharges to the price.
One of the ways to secure obligations is withholding, the right to which arises when the customer fails to pay the established contract price.
Unilateral refusal to fulfill an obligation is not allowed. On cancellation of the contract, the customer sends a notice to the contractor, the date of receipt of which affects the settlements between them, and pays part of the price in proportion to the work performed before the date of receipt of the notice, and also reimburses the losses caused.
When accepting the work performed, the customer is obliged to certify them with an act or other document that fixes the shortcomings of the work performed. The disadvantages are divided into:
- explicit, established by the usual method of acceptance;
- hidden, which, with such acceptance, cannot be installed.
The quality of work is determined by the contract, its appendix, or in reference to another document (standard, manual). It is possible to carry out a contract according to a sample (picture).
If the work is of poor quality and the deficiencies are not eliminated within a reasonable time, the customer has the right to withdraw from the contract and demand compensation for damages. In the absence of a warranty period in the contract, a period not exceeding two years is set for detecting defects.
INTRODUCTION ... 4
Chapter 1 DEFINITION OF THE CONTRACT CONTRACT ... 6
1.1 The history of the emergence and development of legal regulation of the work contract ... 6
1.2 The concept of a work contract ... 9
1.3 The difference between a work contract and other contracts ... 12
Chapter 2 ELEMENTS OF THE CONTRACTING AGREEMENT ... 22
2.1 The parties to the work contract ... 22
2.2 Terms of the work contract ... 27
3.1 Rights and obligations of the Contractor ... 41
3.2 Rights and obligations of the Customer ... 47
3.3 Responsibility of the parties for violation of the work contract ... 52
CONCLUSION ... 60
LIST OF USED SOURCES ... 62
INTRODUCTION
The construction contract is, along with the purchase and sale and supply contract, one of the most widespread, as well as the most significant in the field of commodity and money turnover. It affects relations directly in the field of production, since it is associated with the obligation of the party to the contract - the contractor to perform certain work in accordance with the customer's assignment and transfer the result of this work to the customer.
A work contract is one of the most detailed types of contracts regulated by civil law. A total of 67 articles of Chapter 37 of the Civil Code of the Russian Federation, which includes 5 paragraphs, are devoted to him.
Such attention of the legislator to the work contract is caused not only by the fact that this contract is quite common in practice, but also by the fact that the relations regulated by it are extremely diverse and therefore require the most complete consideration of all the features inherent in various types of work contract.
Despite such a detailed legislative regulation of contracting relations, when concluding contract contracts, the parties often make mistakes, among which the most typical are:
a)
incorrect qualification of the relationship of the parties as contractual, while in reality the contract being concluded may relate to a supply contract or an employment contract;
b)
misconception about the rules that govern the relationship of the parties;
v)
insufficient attention to the peculiarities of the subject composition of the emerging relations;
G)
non-observance of the rules on the form of the contract and incorrect determination of the moment of the conclusion of the contract;
e)
the absence or incorrect definition in the contract of its essential conditions, without which the contract cannot be considered concluded;
e)
the absence or incompleteness of the terms of the agreement on the price, quality and procedure for accepting the result of work, the distribution of risks between the parties;
g)
the absence in the contract of conditions on ensuring the fulfillment of contractual obligations and on responsibility for their violation.
Although not all of these errors lead to irreparable consequences, nevertheless, in order to avoid misunderstandings when concluding and executing work contracts, it is advisable to avoid them.
Thus, consideration of the features of legal regulation and the conclusion of contracts for the performance of work is relevant and necessary.
The object of the research is social relations arising in the field of work and services, regulated by a work contract.
The purpose of the study is to identify the main features of the legal regulation of the work contract. In the course of the work, the history of the development of legislation in relation to the contract will be studied, the most general approaches to the specifics of the legal regulation of contracts for the performance of work, their features will be analyzed, the rights, obligations and responsibilities of the parties under the contract will be determined.
As a theoretical basis for the thesis, normative legal acts, reference and methodological literature, periodical literature, Internet resources and the works of such legal scholars as M.I.Braginsky, V.V. Vitryansky, E.A. Sukhanov, A.P. Sergeev, Yu. K. Tolstoy, VA Tarkhov, ZI Tsybulenko and others.
When writing the work, the method of dialectical cognition, private scientific methods, methods of specific social research, analysis and a comprehensive study of the current legislation in the field of the application of the work contract were used.
Chapter 1 CONCEPT OF THE CONTRACT CONTRACT 1.1 History of the emergence and development of legal regulation of the contract
The contract occupies a significant place among business contracts and belongs to one of the most ancient types of contracts.
Contractual relations were already known to Roman law, in which the contract of work (locatio-conductio operis) was considered as a kind of contract of employment (locatio-conductio) of things, works or services. Such a combination of contracts was due to the fact that the main way to satisfy the needs for any work or services was the actions of slaves. If a slave was hired to carry out the work, a contract for the hiring of a thing was concluded, and if the executor was a free Roman citizen, then a contract or contract for the hiring of services. Hence the allocation of contracts for the employment of services and work. The difference between the latter was that a certain economic result (opus) was always achieved under the work contract, which was not in the service contract.
Thus, since the time of Roman private law, the contract has been distinguished by its potential to be used in a wide variety of relationships: both in the field of business turnover and in the field of personal, non-entrepreneurial relationships. Therefore, the characterization of the main features of the work contract, as a rule, required a comparison of it with other civil law contracts, with the help of which it would be possible to settle the relations developing between the parties. Possibility of application different kind contracts to relations related to the performance of work required precise wording of conditions in the contract in order to reflect distinctive features work contract. Depending on the terms of the contract, the relationship developing between the parties to the contract could be qualified as a contract of employment, and as a contract of sale, and as a contract for the provision of services, and as an agreement on joint activities.
In Roman private law, a relationship was usually not considered a contract if the master made the thing from his own material. “… If I have agreed with a jeweler to make me rings of a certain weight and a certain shape from his gold and receive, for example, 200 denarii, then a contract of sale or contract is concluded. Cassii says there is a sale and purchase agreement for the material and an employment agreement for the work. But the majority decided that a purchase and sale agreement had been concluded. " The same approach is adopted in modern law.
In Russian pre-revolutionary law, such a feature as the performance of a “single set of works” or “enterprise” in its own special, unusual understanding for the current practice, was distinguished as a special feature of a work contract. "Enterprise" is, according to the Russian legal pre-revolutionary doctrine, a characteristic feature of the contract. It implies "the integrity of the work performed under the contract," "the unification of the entire complex of works by the general plan of the contractor himself" and, finally, "the use of personal forces and material resources for a specific purpose."
This feature is reflected in the works of Soviet lawyers on work contracts regulated by civil law. According to O.S. Ioffe, the contractor acts as a work organizer.
The desire to improve the legal regulation of the work contract explains the expansion of the content of the chapter of the Civil Code, dedicated to the work contract, in comparison with the corresponding chapter in the previous Civil Code of 1964.
The Civil Code of the RSFSR in 1964 officially divided the contract into "Contract" (Ch. 30) and "Contract for capital construction" (Ch. 31). The contract was applied in legal relations between citizens, citizens with socialist organizations, as well as between socialist organizations. In those days, due to the general socialist planning of the "national" economy, the legislator unambiguously limited the scope of contract work by a citizen, that is, by a private person, allowing it only on condition that this work was done by his own labor (Article 351 of the Civil Code of the RSFSR), because the use of wage labor force represented the hidden exploitation of other people's labor.
However, with the development of market relations, already in the Fundamentals of Civil Legislation of 1991, where the contract for capital construction, although it returns to the composition of the contract, nevertheless, there is no longer a division of the concept of "contractor" according to the subject composition. Basically, it was allowed to expand the types of contract work:
Contract (Art. 91 - 94);
Capital construction contract (Art. 95);
The contract for the production of design and survey works. 96);
Agreement on the performance of research and development work (Art. 97);
Certain types of contract work (Art. 98).
It should be noted that already in the new Civil Code there is no legislative consolidation of the contract for capital construction. This is primarily due to the fact that several thousand legislative and regulatory acts were in force in the legislation on capital construction, which often contradicted not only each other, but also the Code itself. Often, these normative acts provided for payment for work not as the finished objects were handed over, but periodically, for the very fact of the work of the builders. This had a direct consequence of the loss of interest of the performers in the completion of objects, the development of "long-term construction", in the growth of the volume of unfinished construction. Secondly, the contract for capital construction artificially diminished the importance of construction contracts in general, construction and installation work and repair work.
Thus, in the modern civil law of Russia, as in the civil law of other states, based on Roman private law, a contract is considered as an independent type of contract. Specific traits contracts originating from the characteristics of the obligation of the locatio-conductio of Roman private law are retained. As in Roman private law, the contract agreement retains its ability to regulate relations in the most diverse spheres of civil turnover.
1.2 The concept of a work contract
The Civil Code defines a contract as a contract by virtue of which one party (contractor) undertakes to perform a certain work on the instructions of the other party (customer) and hand over its result to the customer, and the customer undertakes to accept the result of the work and pay for it (Article 702 of the Civil Code).
The inclusion of general provisions on the contract in the Civil Code is not accidental. This is necessary, first of all, because several types of contracts are used in commercial turnover, the features of which are very diverse and cannot, for reasons of a legal and technical nature, be reflected in all details and details in special regulations, and this is not necessary ... It is quite enough to have a well-developed general part of the contracting legislation in order to build on its basis, construct almost any specific contract-type contract.
Legislative regulation of any contract is reduced to the establishment of a special legal regime for a specific model. The condition of such a regime is precisely the fact that the specific agreement concluded by the parties has the characteristics inherent in the corresponding model.
Unlike obligations to transfer property, contract-type obligations govern economic relations for the provision of services. In other words, a contract refers to such obligations in which the debtor undertakes not to give anything, but to do something, that is, to perform certain work. The performance of work by a contractor is aimed at achieving a certain result, for example, making a thing, repairing it, improving or changing it consumer properties or getting some other result that has a concrete material expression that is separate from the performer. The latter is explained by the fact that the contractor is obliged to transfer the result of the work to the customer.
Thus, the constitutive features of the obligation established by the work contract are as follows:
The contractor performs work on the instructions of the customer in order to meet certain individual requests and requirements of the customer.
The contractor undertakes to perform certain work, the result of which is the creation of a new thing or restoration, improvement, change of an existing thing.
A thing created under a work contract belongs to the contractor by right of ownership until the customer accepts the work performed.
The contractor is independent in choosing the means and methods to achieve the result stipulated by the contract.
The contractor undertakes to perform the work at his own risk, that is, he performs the work as his dependents and can only receive remuneration if, in the course of performing the work, he achieves the result specified in the contract.
The contractor performs work for remuneration, the right to which he arises after the performance and delivery, as a rule, of all the work to the customer, except as otherwise provided by law or contract.
The last feature is predetermined by the nature of property relations regulated by civil law as commodity-money. If the work is performed free of charge, then the legal regulation of the relationship between the parties is limited only to the determination of the legal fate of the manufactured thing. The solution to the question of who owns the result of gratuitous work depends on the material from whose material this thing is made. There is no legal contractual relationship between the manufacturer of the thing and the owner of the material in the situation under consideration. At the same time, since in this case there is an exemption from the property obligation (from the obligation to pay remuneration for the work performed), these relations are subject to the rules on donation (see, for example, Articles 572 and 580 of the Civil Code).
The noted signs predetermine the characterization of the work contract as consensual, reimbursable and reciprocal.
Unlike other consensual contracts, a contract cannot be executed immediately at the time of the conclusion of the contract, since in order to achieve the required result, a certain amount of time should be spent on performing the work. It is impossible to carry out work for the future, "accumulate them", and then implement it under a work contract, because in this case, the already available individually defined result is realized, and not the work of the contractor. The consensual nature of the contract is retained even if the contractor starts to perform the work immediately after the conclusion of the contract or performs the work in the presence of the customer. The performance of the work, the performance of the obligations of the contractor is always preceded by the conclusion of a contract, which determines what exactly needs to be done.
Differentiation of contractual relations into certain types and subspecies depends on the nature of the work performed by the contractor and its result. So, depending on the result of the contractor's work, it is possible to differentiate contracting relations into obligations aimed at making new things, and obligations aimed at restoring, changing or improving the consumer properties of already available things (Article 703 of the Civil Code). In this regard, it is advisable to refer to contracts aimed at the creation of things as work contracts, and contracts aimed at changing the consumer properties of things - contracts for the performance of work.
The most significant for legal regulation are those types of work contracts, which have received relatively independent expression in the legislation. In paragraph 2 of Art. 702 of the Civil Code named such separate types of contract contracts as household contract, construction contract, contract for the performance of design and survey work, contract work for state needs. The allocation of the indicated varieties of the work contract is associated with the peculiarities of the application of general provisions on the work contract to them. They apply only if the rules of the Civil Code on certain types of work contracts do not provide for other rules than those contained in the general provisions on work contracts. In addition, contracts concluded by citizens for consumption purposes and work contracts for the performance of work for state needs are subject to a special legal regime. To the specified types of work, in addition to the general rules on work contracts provided for by the Civil Code, the legislation on the protection of consumer rights and on the supply of goods and the performance of work for state needs is applied respectively.
1.3 The difference between a work contract and other contracts
Based on the subject of the work contract, it can be concluded that this contract is similar to many civil law contracts, depending on the terms of the contract where the customer's interest is concentrated. In the literature, in different periods of time, a comparison was made between a work contract and various civil law contracts: a purchase and sale (supply) contract, an assignment contract, an employment contract, and a service contract.
The sign that brings the contract and the sale and purchase closer together is that the contractor is obliged to transfer the result of the work to the customer. In the work contract, as in the sale and purchase, the debtor transfers the thing into the ownership of the creditor, however, the work contract, although it may provide for the transfer of the thing as a result of the work performed to the ownership of the customer, is aimed at the manufacture of the thing, determined at the time of the conclusion of the contract by generic characteristics. On the contrary, the subject of the sales contract can already be individually determined at this moment. In addition, the contractor is obliged to transfer not any thing, but precisely the one that was the result of his work. Thus, the contract covers the relationship not only of commodity circulation, but also the production of material goods.
To distinguish between these contracts, two criteria are usually applied.
Firstly, contracts for work and sale (supply) are distinguished depending on the material from which the thing (goods) is to be made. It is considered that the thing, alienated under the contract of sale (supply), is always made from the materials of the seller, while in the contract, the contractor can make the thing, both from his own material and from the material of the customer. However, in practice, there are often cases when part of the materials is provided by the customer (buyer), and the other part belongs to the contractor (seller). Should, guided by the specified criterion, all contracts under which at least an insignificant part of the materials are provided by the customer (buyer), should be attributed to work contracts? When answering this question, paragraph 1 of Art. 3 of the Vienna Convention on Contracts for the International Sale of Goods, according to which contracts for the supply of goods to be manufactured or produced are considered contracts of sale, unless the party ordering the goods undertakes to supply a substantial part of the materials required for the manufacture or manufacture of such goods. Thus, if, according to the concluded contract, the bulk of the materials is provided by the buyer (customer), such an agreement can be attributed to work contracts. If the buyer (customer) supplies the seller (contractor) with an insignificant part of the materials, then this contract can be considered a sales contract.
However, even if, according to the terms of the contract, all the materials from which the goods are made belong to the contractor (seller), this is not yet an unconditional basis for classifying the contract as a work contract. The second criterion that makes it possible to distinguish between contracts for work and sale is the focus of the work contract primarily on the performance of certain work, while for a sale and purchase agreement the performance of the work itself is not essential, and the contract itself is primarily aimed at transferring things in the property of the buyer. Therefore, for a work contract great importance has the process of performing the work itself. If this process is reflected in the terms of the contract, then we can talk about contract relations. Otherwise, there is every reason to consider the concluded contract as a sales contract. It is characteristic that in this regard, in paragraph 2 of Art. 3 of the Vienna Convention on Contracts of Sale indicates that the convention does not apply to contracts in which the obligations of the party supplying the goods are mainly in the performance of work.
However, the criterion for opposing contract and delivery, proposed by the Vienna Convention, is very primitive. The position embodied in the Convention is entirely borrowed from Roman law. An agreement according to which the customer must transfer to the performer a significant amount of material for the manufacture of a thing cannot be a sale and purchase in any way. At the same time, an agreement according to which the customer does not have to transfer materials to the contractor will not at all be unambiguous a purchase and sale agreement, at least from the point of view of Russian law. In addition, the modern Russian Civil Code indicates that the work is carried out precisely by the contractor's dependency - from his materials, his forces and means.
As another possible criterion, the following is proposed: the process of performing the work itself is of great importance for the contract. If this process is reflected in the terms of the contract, it is regulated by it, then we can talk about contract relations. Otherwise, there is every reason to consider the concluded purchase and sale agreement. MI Braginsky describes this criterion as follows: although the contractor is the organizer of the work, the customer also actively participates in the process of performing the work. Thus, if the right of the customer to check the progress and quality of work is included in a specific contract, there is a contract. However, this criterion suffers from the same drawback as the previous one: it is not absolute, allows exceptions, and therefore can only be optional. It is far from always that the customer in the contract is interested in how the contractor makes the thing. Perhaps in most cases this is true, but exceptions are possible. For example, if I order furniture, I am completely indifferent to what technology the contractor will use, and I am not going to control him.
Article 715 of the Civil Code in clause 1 imperatively established that the customer has the right at any time to check the progress and quality of the work performed by the contractor without interfering with his activities. Thus, the failure to include in a specific agreement a clause on the customer's right to control the progress of work does not mean that we have a purchase and sale agreement in front of us. On the contrary, the inclusion of such a condition in the sales contract is also possible, and it will not turn the purchase into a contract. For example, a buyer of a batch of cars, mass-produced by a plant, can observe the assembly of this particular batch. Thus, use Art. 715 of the Civil Code, it is impossible to distinguish between contract and purchase and sale, since in a specific contract the right of control may not be stipulated at all, and then in order to establish whether the creditor has this right, we will first have to decide which contract we are dealing with. It will turn out to be a vicious circle.
The most logical, in my opinion, but still cannot be fully accepted, is the point of view of V.V. third parties. Therefore, V. V. Rovny proposes "de lege ferenda" regarding the thing - the subject of the contract of purchase and sale, to refuse the possibility of its creation by the seller, that is, to state paragraph 2 of Art. 455 of the Civil Code as follows: a sale and purchase agreement can be concluded in relation to goods that will be purchased by the seller in the future.
However, one cannot completely agree with V.V. Rovny either. The distinction between buying and selling and contracting is somewhat subtler. Let us compare the purchase of a batch of cars from a car manufacturer with an order for a destroyer from a shipyard. Both the cars and the destroyer do not yet exist at the time of the conclusion of the contract: they are yet to be manufactured. This circumstance may well be known to the customer-purchaser. Let us also assume that the ordering party of the destroyer does not care how the debtor will build the ship - he relies on the shipbuilder's honesty and experience. Of course, the car buyer is even less interested in the assembly process. In both contracts, of course, the deadlines for the execution of the contract are established. De lege lata, both obligations are the same. And yet there is a difference between them.
When concluding a contract for the purchase of mass-produced cars, the buyer will not even stipulate the seller's obligation to manufacture these cars. The plant churns them out regardless of the availability of orders, hoping to enter the market and sell them there. On the contrary, the contractor takes on the job only when an order is received. A priori, the subject of a work contract cannot be manufactured without an order. In a contract, a thing is initially made for a specific purchaser, including from his materials (which is excluded in the sale and purchase, where the thing is produced "on the market", that is, the purchaser is not yet known, and therefore cannot supply materials). The subject of the contract is not made on the market, not for trading, its acquirer is known in advance.
The purpose of the work contract is the manufacture of the thing, and the purchase and sale is only the transfer of ownership. That is, an indispensable element of the contractual relationship is the obligation of the contractor to manufacture the thing, while in the legal relationship of purchase and sale, the seller does not have such an obligation, even if the thing - the subject of the legal relationship - does not yet exist in nature. The manufacture of a thing here does not form part of a legal relationship.
And so, if a contract for the sale and purchase of a thing that is only to be made is concluded, then the very manufacture of this thing is not covered by the contract and does not become the obligation of the debtor. His counterparty is well aware that the debtor will make the thing without an order, and therefore he does not agree with the seller on this issue. It makes sense to come to an agreement only about what will not be done without an agreement. Since the content of the work contract becomes the obligation of the contractor to manufacture the thing, it follows that without the contract he would not have started manufacturing it.
VV Rovny is close to this position. He writes that the contract can be qualified on the basis of whether or not the acquirer of the thing knew about its manufacture by the seller: “So, in disputable cases, the knowledge of the acquirer that the seller of the future thing is its manufacturer could be decisive when referring to the rules of Ch. 37 of the Civil Code, while ignorance of this fact - to the rules of Ch. 30 GK ". However, the very fact of the creation of the thing by the debtor is not essential.
The only difference between contracting and buying and selling, thus, turns out to be the purpose for which it manufactures
Introduction
Chapter 1. Concept, signs and types of work contract
§1. The history of the development of the institute of the contract
§2. The concept and features of a work contract
§3. Types of work contract
Chapter 2. Subjects and object of the work contract
§1. Subjects of the work contract
§2. Contract object
Chapter 3. Rights and obligations of the parties to the work contract
§ 1. General characteristics of the rights and obligations of the parties to the contract
Section 2 basic rights and obligations of the parties to the contract
3. Additional rights and obligations aimed at satisfying the interests of the customer
§4. Additional rights and obligations aimed at satisfying the interests of the contractor
§5. Customer's Secondary Rights Aimed at Terminating a Work Contract
Used legal acts and other documents
Dissertation introduction (part of the abstract) on the topic "Construction contract in the civil law of the Russian Federation"
INTRODUCTION
Relevance of the research topic. The emergence of a market economy in the Russian Federation has caused not only the emergence of new types of contracts for the domestic legal order. The consequence of this has also become more intensive use in civil circulation of long-standing contractual structures, to which it is necessary to include a contract.
The expansion of the scope of the work contract is due to several factors. Firstly, this is due to the increase in the volume of construction activities observed in recent years, which has given particular relevance to such a variety of the named contract as a construction contract. At the same time, the problem of the quality of the results of work under the aforementioned contract arose especially acutely.
Secondly, the elimination of restrictions on access to the market entailed an increase in the number of entities performing various types of work on a professional basis. In this regard, in economic practice, another type of the mentioned contract, household contract, has become much more widespread.
The listed factors can be regarded as the economic aspect of the relevance of the chosen research topic. Other aspects of the relevance of this topic can also be noted.
The socio-political situation that has developed in Russia in recent years has demanded a reassessment of the attitude towards a civil contract that mediates the performance of work, that is, to a contract. The development of a market economy and entrepreneurship, a decrease in the role of public law entities in the economic life of society led to the inevitable revision of many approaches to this agreement that existed
in Soviet civil law and often caused by the planned economy (socio-political aspect).
Changes in the economic and socio-political situation could not but have an impact on the legislative approaches to the regulation of contract relations. However, part two of the Civil Code of the Russian Federation (hereinafter referred to as the "Civil Code of the Russian Federation" or "Civil Code of the Russian Federation"), which contains Chapter 37 "Contract", was put into effect on March 1, 1996, at the earliest stage of the formation of a market economy. ... It seems that for this reason, in the named Chapter of the Civil Code of the Russian Federation, the solution of many issues was traditional, that is, it was based on the previous approaches of the legislator and did not take into account new economic trends. In addition, as it became apparent later, not in all cases the legislator's desire to increase the discretion in the regulation of contractual relations was justified.
It seems that a long enough time has passed since the entry into force of part two of the Civil Code of the Russian Federation to re-examine the norms contained in Chapter 37 of the above-mentioned law on the basis of the development of new economic relations and propose ways to improve legislation (law-making aspect).
Advantages and disadvantages of regulatory legal acts can be identified only in the process of their application. The aforementioned expansion of the scope of the work contract has led to a significant number of disputes arising from the work contract in the courts. At the same time, it should be noted that in some cases there are no direct answers to many of the questions faced by the courts in resolving these disputes in the Civil Code of the Russian Federation and other regulatory legal acts. In addition, the wording of the existing rules is often not well defined. These factors determine different approaches to resolve controversial issues,
the consequence of which is contradictory judicial practice. In this regard, it is required to develop recommendations on the application of contract law in order to ensure uniform approaches to its interpretation (law enforcement aspect).
Finally, it should also be said that the science of civil law has not developed a single doctrinal definition of work as a type of social activity. At the same time, since a contract is a civil law contract that mediates the performance of work, it should be recognized that this definition is a necessary basis, in the absence of which it is difficult to solve any problems related to contracting relations (doctrinal aspect).
The listed prerequisites allow us to come to a conclusion about the relevance of the research topic.
The degree of scientific elaboration of the topic. Long existence
contract as a contractual structure and the above-mentioned expansion of the scope
the application of this treaty has led to a high degree of scientific
elaboration of the research topic. During the Soviet period, the greatest interest
civilists called a contract for capital construction,
considered by scientists as an independent contractual type.
Among the studies devoted to this agreement, it is necessary to
highlight (in chronological order) the works of E.D.Sheshenin, Yu.G. Basin, V.F. Chigir3, M.I.Braginsky4.
Likewise, most scientific research now also concerns building contracts. Related to this type of work contract
"- Sheshenin E. D. Contract for capital construction under Soviet civil law. Dissertation ... candidate of legal sciences. Sverdlovsk, 1952
2- Basin Yu.G. Contract for capital construction in Soviet civil law. Dis ... candidate of legal sciences. Moscow, 1954.
3- Chigir V.F. Contract for capital construction. Minsk, Lenin Belarusian State University Publishing House, 1958.
4- Braginsky M.I. Improvement of legislation on capital construction. M.: Stroyizdat, 1982.
Candidate dissertations of S.P. Yushkevich (2003), O. G. Ershov (2005), N.V. Kuramzhina (2005), S.N. Mokrov (2006), A.Kh. Berbekova (2007), O.E. Makhova (2008), G.M. Zayakhanova (2009) , A.E. Shcherbak (2012). At the same time, the interest of modern scientists is also aroused by other types of contract contracts - household contract (Ph.D. thesis by K.R. Nigmatullin, 2006) and a contract for the performance of exploration work (Ph.D. thesis by L.Yu. Alipova, 2010). The work contract as a whole is the topic of the candidate's research by E.L. Abramtsova (2005).
As follows from the above list of works, scientific research concerns mainly only the varieties of the contract. There is no doubt that such topics are highly relevant, but each of them has its own, due to its specifics, a range of issues. So, a construction contract requires consideration of the construction process itself, including the problems of developing technical documentation, contractual relations between participants in construction activities, the process of delivery and acceptance of the result of work, etc. It is difficult to imagine a scientific analysis of a consumer contract without researching the quality of the work performed and ways to protect the rights of the customer - consumer in case of its violation. In this regard, the named topics inevitably leave behind their framework a significant part of the issues related to the work contract as a whole.
With regard to the aforementioned dissertation research by E.L. Abramtsova, it can be noted that, despite the undoubtedly high scientific level, this work touched on only a part of the important issues concerning the work contract in general (in particular, the rights and obligations of the parties to the contract, their a responsibility).
All of the above factors make it necessary to revisit this topic at the level of dissertation research.
The purpose of this study was to comprehensively analyze the work contract as a legal fact, obligation and legal institution.
To achieve these goals, the following tasks have been set:
1) analyze doctrinal approaches to defining work as an object of legal obligations, including the problem of differentiating between works and services; based on the results of this analysis, propose your own definition of work;
2) consider the work contract as a legal fact in order to answer the question of what conditions, due to the peculiarities of this contract, should be recognized as necessary and therefore essential for it;
3) highlight the main and additional legal ties in the content of the contractual obligation and analyze these ties in the light of the proposed concept of the concept and features of the contract;
4) based on the findings, develop specific proposals for improving the current Russian legislation.
The methodological basis of this research was formed by general scientific (analysis, synthesis, induction, deduction, analogy, abstraction, ascent from the abstract to the concrete) and special (historical, system-structural, comparative-legal, functional) methods of scientific knowledge.
The theoretical basis of this study was the works of M.M. Agarkov, S.S. Alekseev, N.A. Barinov, M.I. Braginsky, S.N. Bratus, S.A. Verba, B.M. Gongalo, V.V. P. Gribanova, O. G. Ershova, O.S. Ioffe,
A.Yu. Kabalkina, A.G. Karapetova, D.N. Karhaleva, O.A. Krasavchikova, M.V. Krotova, D.V. Murzin, B.A. Patushinsky, A.G. Potyukova, M. P.Ring,
V.V. Rovny, Yu.V. Romanets, A.A. Ryabova, S.E. Ryabova, O. N. Sadikova, L. V. Sannikova, S. V. Sarbash, D. I. Stepanov, E. A. Sukhanov, V. S. Tolstoy,
Yu.K. Tolstoy, R.O. Khalfina, E.G. Shablova, E.D. Sheshenin, V.F. Yakovlev and other scientists.
In the process of writing this work, the achievements of Russian pre-revolutionary civilistic thought were also used, contained in the works of K.N. Annenkov, V.L. Isachenko, D.I. Meyer, K.P. Pobedonostsev, I.A. Pokrovsky, V.I. Sinaisky, G.F. Shershenevich and others.
A significant role for this work was played by research in the field of Roman private law by such scholars as J. Baron, M.Kh. Garcia Garrido, D. D. Grimm, I.B. Novitsky, I.S. Peretersky, I.A. Pokrovsky.
The normative basis of the study is the provisions of the Civil Code of the Russian Federation, as well as other legal acts of Russian legislation.
The empirical basis of the work was formed by various documents (regulations, newsletters, definitions, etc.) judiciary related to the topic of dissertation research.
The object of the research is the social relations that develop in the process of concluding and executing a work contract.
The subject of the research is a work contract, considered as a legal fact, as an obligation arising on the basis of such a legal fact and as a legal institution.
Scientific novelty is determined by the following provisions submitted to the defense:
1. The presence in the object of the contractual obligation of two inextricably linked elements (work and its result) determines that the main subjective right of the customer in the named contract consists of two powers - the ability to demand the performance of work and the ability to demand the delivery of the result of the work. However, since at the time of the conclusion of the work contract there is no work result, until the contractor receives this result, the customer has the right to demand its delivery only in an abstract
form. In the case of the normal development of the contractual relationship (when the contractor performs work with the achievement of an agreed result), the named authority is modified into a valid opportunity, that is, the customer has the right to demand the delivery of the result of the work. At the same time, after the contractor has achieved the result of the work, the right to demand the performance of the work should be recognized as terminated.
2. It is proposed to single out a special group of contractual relations in which the materials provided by the customer were mixed with similar materials from other customers. One of important points making such a selection desirable is the need to address the risk of accidental death or accidental damage to some of the materials that have been mixed. Due to the aforementioned confusion, it will be impossible to establish which customer's materials accidentally died (were damaged). Therefore, in such a situation, it would be reasonable that the said risk was distributed among all customers in proportions commensurate with the amount of materials provided by them.
In addition, the inability to determine the belonging of the mixed materials to a specific customer will also be important in a situation where one or more work contracts, pursuant to which the mixed materials were provided, will be terminated before the contractor receives the result of the work. In this case, the contractor will not be able to guarantee to the customer that he transfers to the latter exactly the materials that the customer provided him earlier. Therefore, it is advisable that in such a situation the customer has the right to demand from the contractor to provide him with the same amount of materials of the same quality.
3. On the basis of the analysis of the rights of the subcontractor and the customer under the general contractor agreement to make claims to each other related to the violation of the contract concluded by each of them with the general
contractor found that the said rights are included in the content of the right of the named subjects to protection, which exists within the framework of a special protective legal relationship.
In the named case, the specified protective legal relationship will represent a legal link between three subjects: the customer under the general contract, the general contractor and the subcontractor. In this case, the customer under the general contract (subcontractor) may declare a demand to eliminate the violation both to the general contractor and to the subcontractor (customer) that has violated the contract with the general contractor. In the latter case, the faulty subcontractor (the customer under the general contract), eliminating the violation, will have to perform the performance not in favor of the person who made the claim, but in favor of the general contractor. This feature allows us to speak about the special nature of the mentioned type of the right to protection, since, according to general rule, the person who has the right to defense has the right to demand the elimination of the committed violation only in his favor.
4. When the customer provides various technical means (equipment) for the performance of work between the parties to the work contract, a set of rights and obligations arises in connection with the use of the named things by the contractor. The paper substantiates the point of view that legal relations, the legal content of which includes these rights and obligations, are subject to qualification as independent (lease agreement or loan agreement). Therefore, the norms of the relevant institutions of contract law are subject to application to the named relations.
5. The study classifies the assistance provided by the customer to the contractor in the performance of work as necessary and optional and substantiates the point of view that these types of assistance require different ways protection of the contractor's rights when
non-fulfillment by the customer of the obligation to assist. Since the contractor cannot perform the work without the customer providing the necessary assistance, in case of failure to provide assistance of this type, the contractor must have special methods of protection, including the right to unilaterally terminate the contract. If we are talking about the optional assistance of the customer, then the existing general methods of protecting civil rights, in particular, compensation for damages, seem to be sufficient to protect the violated rights of the contractor.
6. The paper proposes to delimit the concept of "quality of work performed by the contractor" from the concept of "quality of work performed (quality of work result)". In order to avoid obtaining an inappropriate result of the work, the customer, already at the stage of performing the work, must have a reference point that allows him to determine the compliance of the process of the work performed with the terms of the contract or with the usual requirements. The concept of "quality of the work performed" can serve as such a reference point. The concept of “quality of the work performed” in its content must be recognized as identical to the concept of “quality of the work result”, since the result of the work reflects the entire process of the work performed by the contractor.
7. Economic relations for the performance of work aimed at creating new things, and work that do not have such a focus, have important differences that predetermine the different legal content of the corresponding legal relationship. One of the main such differences should be called the fact that usually the cost of work that is not aimed at creating new things is much lower than the cost of the things themselves, in relation to which the work is performed. In addition, as a rule, the result of such work cannot be separated from the thing in relation to which the work was performed.
Due to the presence of such features, it is proposed to develop the differentiation of legal regulation of the listed types of work. For this purpose, the law may indicate those general rules on work contracts that are not applicable to work contracts that do not provide for the creation of new things. For example, it seems that when performing work that is not aimed at creating new things, it is advisable for the contractor not to provide the opportunity to protect his violated right at the expense of the things in respect of which the work was performed. In this case, we are talking about both the possibility of retaining the named things by the contractor, and the possibility of selling them if the customer evades acceptance of the work performed.
Also, for work contracts that do not involve the creation of new things, a number of special provisions may be established (for example, rules regarding the result of work in progress).
8. On the basis of theoretical conclusions and analysis of the practice of applying civil law norms, amendments are formulated that are advisable to introduce into Articles 709, 711-714, 717-719, 720 of the Civil Code of the Russian Federation.
Approbation of research results. The work was prepared at the Department of Civil Law of the Ural State Law Academy, where it was reviewed and discussed. The main provisions are published by the author in scientific articles.
The theoretical and practical significance of the dissertation research.
The theoretical significance of the work lies in the fact that, on the basis of the formulated definition of work, the signs of a work contract are revealed, which make it possible to delimit the work contract from related contracts. Also, the study carried out a multidimensional consideration
contract, with special attention paid to the study of the contractual obligation. The conclusions drawn in the dissertation may have methodological significance for further development issues related to the work contract.
The proposals made in the study can be used in law-making activities when further development and improving the current legislation.
In addition, the practical significance of the dissertation is due to the fact that the conclusions, suggestions and recommendations contained in it can be used in law enforcement, as well as in educational and teaching activities during lectures and seminars in a number of academic disciplines.
The structure of the thesis is determined by the goals and objectives of the research. The work consists of an introduction and three chapters containing eleven paragraphs. There are also appendices in the form of a list of regulations and other documents, a list of used literature.
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List of used literature
1. Abramtsova E.L. Construction contract in the civil law of Russia. Dis .... Candidate of Legal Sciences. Volgograd, 2005.
2. Agarkov M.M. Obligation under Soviet civil law. M.: Yurizdat NKYu USSR, 1940.
3. Alexandrov N.G. Legal norm and legal relationship. M., 1947.
4. Alekseev S.S. Unilateral transactions in the mechanism of civil law regulation // Anthology of the Ural civil law. 1925-1989. M.: Statute, 2001.
5. Alekseev S.S. General theory of law. Textbook. M.: Prospect, 2008.
6. Alekseev S.S. The structure of Soviet law. M.: Legal Literature, 1975.
7. Alipova L.Yu. Contract agreement for the performance of survey work. Abstract of dis ... candidate of legal sciences. M., 2010.
8. Annenkov K.N. The system of Russian civil law. Volume IV: Selected Commitments. Saint Petersburg: Printing house of M.M. Stasyulevich, 1904.
9. Asknazy S.I. Some questions of civil liability // In the collection "Questions of Soviet law, scientific notes of Leningrad State University", issue 4. L., 1953.
10. Barinov N. A. Contents of the contract for household order // Soviet justice. 1972. # 12.
11. Baron Y. The system of Roman civil law. Obligations law. Third edition. Book IV. SPb, Printing house Yu.N. Erlikh, 1910.
12. Basin Yu.G. Contract for capital construction (training manual). Alma-Ata, 1961.
13. Berbekov A.Kh. Some issues of judicial and arbitration practice on the liability of the parties in a construction contract // Arbitration and civil procedure. 2006. No. 11.
14. Berbekov A.Kh. Responsibility of the parties under the construction contract. Abstract of a dissertation ... of a candidate of legal sciences. M., 2007.
15. Berbekov A.Kh. Problems of liability under a construction contract with a plurality of persons on the side of contractors // Legal issues of real estate. 2007. №2.
16. Bogacheva T.V. Construction contract // 3akon.2004.№8.
17. Braginsky M.I., Vitryansky V.V. Contract law. Book 3. Contracts for the performance of work and the provision of services. M.: Statute, 2005.
18. Braginsky M.I. Construction contract and similar contracts. M.: Statute, 1999.
19. Braginsky M.I. General doctrine of business contracts. Minsk, Science and Technology, 1967.
20. Braginsky M.I. Improvement of legislation on capital construction. M .: Stroyizdat, 1982.
21. Bratus S.N. Subjects of civil law. M.: Gosyurizdat, 1950.
22. Bratus S.N. Legal responsibility and legality. M.: Legal Literature, 1976.
23. Braude I.L. Agreements on capital construction in the USSR. M.: Gosyurizdat, 1952.
24. Bryukhov R.N. Dispositiveness in the civil law of Russia: Abstract of a thesis ... of a candidate of legal sciences. Yekaterinburg, 2006.
25. Vakulina G.A. On Secondary Rights in the Science of Civil Law in Russia // Fundamental Research. 2008. No. 11.
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