Suchergebnisse

Проводится анализ становления и развития институтов невозможности исполнения обязательства в Турции, Швейцарии, Германии и России. Исследование позволяет заключить: в гражданском законодательстве Турции нашла закрепление и продолжает развиваться заимствованная из швейцарского гражданского права и критикуемая современной европейской цивилистикой пандектная модель рассматриваемого института, от которой в 2002 г. отказался немецкий законодатель и лишь отдельные элементы которой реализованы в ГК РФ. ; The article is devoted to comparative analysis of creation and development of the institutions of impossibility of performance of an obligation in Turkish, Swiss, German and Russian law. Amendments to Russian Civil Code in relation to impossibility of performance which came into force on June, 1 2015 are estimated. Author gives the recommendations for the future development of Russian institution of impossibility of performance taking into consideration the results of the same institutions' reforms in Turkish and German law dated 2012 and 2002, respectively, and current reform of Swiss Code of Obligations. This research is relevant due to features of studies legal institution which can be called as a «field of struggle» between different legal traditions gradually taking the form of harmonization. It was created on the basis of the doctrine of the pandect law school in the end of XIX century. So called pandect model of impossibility of performance of an obligation by German civilest Friedrich Mommsen was adopted literally or with the minor modifications by most of the countries of the Romano-Germanic legal systems during the XIX century. For example, it was realized in Swiss Code of Obligations dated 1912 and by copying of the French version of the latter in Turkish Code of Obligations dated 1926. Currently the institution of impossibility of performance of the obligations are under the reform influenced by the such lex mercatoria as UNIDROIT Principles of International Commercial Contracts, Principles of European Contract Law and Draft Common Frame of Reference. These soft law acts were created taking into consideration of the approach of the Anglo-Saxon law to the regulation of private relationship. Thus, studied legal institution can be interesting for all those interested in the phenomenon of legal globalization. Research allows concluding that Swiss version of the Pandect model of the studied legal institution is adopted by Turkish legislator. However, if the latter keeps unchangeable from 1912, its Turkish analogue was developed in 2012. The scale of Turkish civil law reform was slight, but its character is very indicative. Inspite of the fact that the Pandect model of impossibility of performance of an obligation is sharply criticized by the modern European scientists, that is why some legal systems (in particular, German one) rejected it, Turkish legislator during its reform of civil law demonstrated adherence to the pandect model of this institute. This fact is confirmed, for example, by the norms of the Turkish Code of Obligations settled the legal consequences of the subsequent impossibility of performance of an obligation.

Проводится анализ становления и развития институтов невозможности исполнения обязательства в Турции, Швейцарии, Германии и России. Исследование позволяет заключить: в гражданском законодательстве Турции нашла закрепление и продолжает развиваться заимствованная из швейцарского гражданского права и критикуемая современной европейской цивилистикой пандектная модель рассматриваемого института, от которой в 2002 г. отказался немецкий законодатель и лишь отдельные элементы которой реализованы в ГК РФ. ; The article is devoted to comparative analysis of creation and development of the institution of impossibility of performance of an obligation in Turkish, Swiss, German and Russian law. Amendments to the Russian Civil Code in relation to impossibility of performance, which came into force on June, 1 2015, are estimated. Author gives the recommendations for the future development of the Russian institution of impossibility of performance, taking into consideration the results of the same institutions' reforms in Turkish and German law dated 2012 and 2002, respectively. This research is relevant due to features of studied legal institution which can be called as a «field of struggle» between different legal traditions, gradually taking the form of harmonization. It was created on the basis of the doctrine of the Pandect law school in the middle of the XIX century. So-called Pandect model of impossibility of performance of an obligation by German civilian Friedrich Mommsen was adopted literally or with the little modifications by most of the countries of the Romano-Germanic legal system during the second part of the XIX century first quarter of the XX century. For example, it was realized in the Swiss Code of Obligations dated 1912 and by copying of the French version of the latter in the Turkish Code of Obligations dated 1926. Currently the institution of impossibility of performance of an obligations are under the reform influenced by such lex mercatoria acts as UNIDROIT Principles of International Commercial Contracts, Principles of European Contract Law and Draft Common Frame of Reference. These soft law acts were created with regard to the approach of the Anglo-Saxon law to the mode of regulation of private relationship. Thus, studied legal institution should be interesting for all researchers of the phenomenon of legal globalization. Conducted analysis allows concluding that Swiss version of the Pandect model of the studied legal institution is adopted by Turkish legislator. However, if the latter keeps unchangeable from 1912, its Turkish analogue was amended in 2012. The scale of Turkish civil law reform was slight, but its character is very indicative. In spite of the fact that the Pandect model of impossibility of performance of an obligation is sharply criticized by the modern European civilians nowadays, that is why some legal systems (in particular, German one) rejected it, Turkish legislator during the reform of civil law demonstrated great adherence to it. This fact is confirmed, for example, by the norms of the Turkish Code of Obligations settled the legal consequences of the initial impossibility of performance of an obligation.