Korotkov D.B. Negative Obligations in the Context of the Reform of the Russian Civil Law

Dmitriy B. Korotkov
Candidate of Juridical Sciences, Associate Professor, Department of Civil Law
Perm State National Research University, Bukireva St., 15, 614990 Perm, Russian Federation,  This email address is being protected from spambots. You need JavaScript enabled to view it.  

Introduction. According to Section 6 of Article 393 of the Civil Code of the Russian Federation, in case of violation of obligations by the debtor on refraining from doing certain actions (negative obligation), the creditor, regardless of damages, is entitled to demand an appropriate preventive action if it does not contradict the essence of the obligation. In practice, there are questions about the relationship of this provision with Section 3 of Article 328 of the Civil Code. The purpose and objectives. The author aims to substantiate that the norm of Section 6 of Article 393 of the Civil Code of the Russian Federation should be applied taking into account Section 3 of Article 328, according to which none of the parties of obligations under which the counter performance provides no right to demand on court performance, without giving due obligation from it for the other party. Otherwise, the debtor is obliged to refrain from certain actions, even if the lender does not fulfill its reciprocal obligation. Methods. We used scientific methods of cognition and special legal methods. Results. The study analyzed the doctrinal and normative sources of domestic and foreign law. Application of results. The results of the study can be applied in the judicial interpretation of norms of Section 6 of Article 393 of the Civil Code. Conclusion. The right binding imposition of legal relations of the debtor’s unconditional obligation to refrain from certain actions, regardless of the performance or non-performance lender reciprocal obligation would be contrary to mutually binding obligations. The use of Section 6 of Article 393 of the Civil Code of the Russian Federation as a way to protect the violated rights of the creditor without examining the issue of the performance by the creditor of its reciprocal obligation will lead to infringement of the rights of the debtor in good faith and would deprive the latter method of self-defense rights under Articles 12, 14 of the Civil Code of the Russian Federation, as well as the possibility of failure to fulfill its reciprocal obligation to the moment of execution by the creditor of their obligations.

Key words: debtor, creditor, negative obligation, reciprocal obligation, improper performance of an obligation.

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