Right of retention as a way to protect the rights of entrepreneurs
Berladir Yu.V.1
1 АНО ВО «Институт деловой карьеры»
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Journal paper
Economics and society: contemporary models of development (РИНЦ)
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Volume 7, Number 1 (January-March 2017)
Indexed in Russian Science Citation Index: https://elibrary.ru/item.asp?id=30296449
Abstract:
The article deals with the legal positions of the higher courts of the Russian Federation on certain issues of applying the provisions of Article 359 of the Civil Code of the Russian Federation; the materials of the judicial practice of higher courts on disputes related to the protection of the rights of entrepreneurs are analyzed. The purpose of the article is to consider the social and legal aspects of protecting the rights of entrepreneurs: the right to withhold. Methodology. The research uses methods of qualitative analysis of profile regulatory legal documents and statistical data; factor, situational and comparative approaches to empirical material on the topic, as well as the possibility of expert assessment of emerging economic trends.
Results. Concerning the specifics of the satisfaction of the creditor’s claims from the value of the retained property of the Civil Code of the Russian Federation, reference to the norms on pledge. And if the requirements are satisfied in this way, the creditor’s appeal to the court is mandatory (Article 360 of the Civil Code of the Russian Federation). One of the consequences of such a reference is the application of the rules on pledge to the subject of withholding in the part of restricting the list of property to which retention can be applied. For example, the inability to withhold property belonging to the right of operational control. Thus, if the legislation on pledge does not allow reimbursement from the value of specific property out of court, then retention of this type of property can be recognized as illegal. Conclusions / significance. Despite the fact that in our country the judicial precedent has no force of normative act, the role of judicial practice in regulating business relations can not be underestimated. With respect to withholding as a way to protect the rights of entrepreneurs, it is the courts that have established a number of significant features of its application. For example, an extension of the ownership of a thing beyond the boundaries of the debtor’s property rights. Given the existence of disputes on this issue, it seems relevant to consolidate this provision in the text of Article 359 of the Civil Code of the Russian Federation.
Keywords: subjects of entrepreneurship, ways of protection, retention
References:
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