TEMPORARY CHARACTERISTICS OF ENFORCEMENT RELATIONS

Abstract

This paper is devoted to the scientific analysis of the development and legal mediation of relations to ensure the fulfillment of civil obligations. The means established by law are considered in view of their purpose – as additional measures designed to guarantee the interests of the creditor in case of breach of obligations by the debtor. Thus, in the temporal dimension, they have two essential manifestations that de facto realize the dual purpose of collateral: as an incentive to perform their duties properly and in a timely manner and by enabling them to actually perform them from other sources, and sometimes even punish the offender. The doctrinal concepts concerning the use of means which, being directed against faulty executors and acting as an incentive to perform, would guarantee performance are considered. The question of the separation of protective and stimulating elements has been studied, taking into account the temporal delimitation of the moments of their occurrence and time of existence. The first stage begins from the time of concluding the security agreement as an accessory element of the regulatory relationship and lasts until the moment of violation of the secured subjective right. The second stage of security begins at the time of the offense, ie within the protection relationship. It provides for security measures, “included”, which is manifested in the occurrence of the relevant additional obligation of the defaulting debtor or a third party related to the elimination of violations of the basic (secured) substantive rights of the creditor. The author emphasizes the unjustified mixing of these functions by the legislator, which often leads to the substitution of the security nature of liability. The current normative summary in Chapter 49 of the CCU of all ways to ensure the fulfillment of obligations: those that are a means of civil liability (penalty, deposit), and those that are not (guarantee, surety, pledge) is a fairly simplified approach, not true in fact, because these functions are manifested in different periods of development of the legal relationship. It is proposed to exclude the penalty from the list of ways to ensure the fulfillment of the obligation, because it does not meet the program principles of the specified institution of civil law.