Comparative legal study of the application of a civil penalty as an interim measure in Russia and foreign countries
// Law and Politics. – 2023. – № 11.
– P. 35-50.
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Abstract: The subject of the study is a comparative legal analysis of Russian and foreign legislation in terms of the legal nature of the civil penalty as an interim measure in order to implement positive experience in Russian law enforcement practice.
The author examines in detail the legislative foundations of the civil penalty by the EU countries, the USA and England in terms of establishing a common and different legal essence, and legislative meaning in the formulation of provisions aimed at the implementation of this institution by subjects of property relations. The substitution of the security function of the civil penalty by a foreign legislator, its "sanction" essence, is noted, however, along with this, the unconditional observance by the US courts of the freedom of expression of the parties to the contract in terms of determining the rules for the application of the penalty is seen as a positive experience. The author believes that such an approach can be copied in Russia, where the courts take a slightly different position, reducing the penalty on the debtor's application in the vast majority of cases. The paper uses a comparative legal analysis of foreign practice of civil penalty regulation in order to formulate conclusions regarding the subject of the study. Through the application of this methodology, it was found that, in foreign countries, unlike Russia, a civil penalty is applied as a measure of civil liability, and not a security one, which does not affect the positive practice of its application. The main conclusions of the study, along with the definition of similarities and differences in the application of the civil penalty by Russian and foreign legislators, are: the predominance of the security function of the Russian model of penalty, stimulating contractual discipline of participants in property relations; a "rational" approach to establishing the right of the parties to reduce the size of the penalty, ensuring a balance of interests of the parties; determining the possible copying of positive American experience in terms of unconditional compliance with the freedom of expression of contractual regulation of the civil penalty by entrepreneurs by fixing in the Civil Code of the Russian Federation a written confirmation of the creditor's right to recover the penalty in case of delay of the obligation or its improper performance and acceptance of such performance by the creditor. Such a rule makes it possible to strengthen the security function of the penalty and act as a way to protect the interests of the creditor in the event of improper (defective) performance of the obligation by the debtor.
Keywords: freedom of contract, creditor rights, judicial discretion, downsizing, foreign practice, measures of responsibility, securing obligations, proportionality, penalty, arbitrage practice
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