PROBLEMS OF APPLICATION OF MENDATORY RULES IN THE NEGOTIATION AND EXECUTION OF A CONTRACT (FOR EXAMPLE CONTRACT TRANSPORT SERVICES)

The main method of regulation of civil law relations is a dispositive method. Subjects of civil legal relations express their will freely. One of the fundamental principles of civil law is the principle of freedom of contract. However, cases of mandatory regulation of the behavior of subjects of civil relations are provided in the civil code of the Russian Federation [3].

There are some questions. How do mandatory rules affect the relations between commercial enterprises? Is it necessary to apply mandatory regulation in commodity-money relations with the participation of commercial enterprises? On what occasions? How are the interests of the parties in these relations provided?

For example, the parties follow a normative legal act in the formation of the treaty provision. Act contains mandatory norms. later, the court finds this act invalid from the date of entry into force of the court decision. As a result, the situation of legal uncertainty arises. The normative legal act is declared invalid. The new act is not adopted. How to reconcile the relations between the parties? In this regard, court practice has various positions have appeared in judicial practice.

The order of the Ministry of transport of the Krasnoyarsk territory of 25.11.2014 № 5/184 (hereinafter – the order of 25.11.2014 № 5/184) [2] establishes the maximum tariffs for transport services provided on access railways tracks (hereinafter – tariffs, maximum tariffs). The parties of the relationship have the right to determine the price of the transport service, but not higher than the price set.

Order from 25.11.2014 № 5/184 recognized as invalid by the decision of Krasnoyarsk regional court from 04.04.2017. Krasnoyarsk regional court considered the case on the recognition of the act invalid in point of view that the order of 25.11.2014 № 5/184 is a normative legal act [6].

In 2017 the joint stock company «East Siberian industrial railway transport» (hereinafter – JSC «VSK») filed a lawsuit in the Arbitration court of Krasnoyarsk region. The lawsuit contained the requirement of collecting debt and percent under the contract of transport service from joint-stock company «Nazarovskaya GRES» (hereinafter – JSC «Nazarovskaya GRES»).

The Аrbitration court of Krasnoyarsk region 25.11.2017 in case № A33-17257/2017 decided to recover interest from the defendant for the use of other people's money; the defendant paid the debt at the time of the case. The subsequent payment is counted towards for previous payment obligation [4]. Consequently, the debt is not recoverable from the defendant.

The same joint stock companies participated in another similar case. The plaintiff was JSC «Nazarovskaya GRES», the defendant was JSC «VSK». The arbitration court of came to radical conclusions [5]. The subject of the second law suit is the plaintiff's claim for recovery of unjust enrichment from the defendant.

As a result, two different court decisions were adopted. The Arbitration court of Krasnoyarsk region in the case 2017 came to the conclusion that in legal disputes shall be applied by the order 25.11.2014 № 5/184, as it is invalid from the date of entry into force of the decision of Krasnoyarsk regional court (from 14.09.2017) [4]. In 2018, the arbitration court of the Krasnoyarsk territory decided that the order of the Ministry of transport of the Krasnoyarsk territory of 12.09.2013 № 5/128 (hereinafter – the order of 12.09.2013 № 5/128)is subject to application [5].The order of 12.09.2013 № 5/128 was declared invalid in connection with the adoption of the order of 25.11.2014 № 5/184. Consequently, there are grounds for recovery of unjust enrichment.

The Plenum of the Supreme Court of the Russian Federation in the resolution of 27.12.2016 № 63 notes that recognition of the normative act invalid from the date of entry into force of the court decision shall not prevent the person to restore completely the violated subjective right. He is obliged to make payments by illegal normative act. The person who is the recipient of payments should not receive them for the period until the entry into force of the decision on the recognition of the normative act as invalid [1]. In this case, the Supreme Court draws attention to the good faith principle in civil law relations.

There are several questions. What legal act should regulate the relationship of the parties? The party fulfilled its obligation to the other party on the basis of anvalid but illegal act. How can she protect her rights?

There are several answers to the first question. The first of the possible options is to apply a formally valid, but substantially illegal normative act. Another option is to apply the act that was in force before the issuance of the act, which was declared invalid. In the latter case, there is another problem – the parties to a civil relationship, concluding a contract, did not intend to apply to their contractual relations of this legal act, and the situation is possible, if they assumed it, they would not have concluded a contract at all.

The answer to the second question about how a party can protect it is rights, gives the Plenum of the Supreme Court of the Russian Federation in the resolution of 27.12.2016 № 63 [1]. The normative legal act was declared invalid by the court due to the inflated size of the resource price. The consumer paid the cost of the resource to the supplier in good faith. The consumer has the right to recover from the supplier overpayment (paragraph 1 of article 424, paragraph 3 of article 1103 of the civil code of the Russian Federation [3]), or to set off this requirement in respect of its obligations to the supplier (article 410 of the civil code of the Russian Federation [3]). Article 1103 of the civil code of the Russian Federation [3] is devoted to unjust enrichment. However, the problem also arises in the present case. In accordance with article 1102 of the civil code of the Russian Federation [3], a person is obliged to return all that he has acquired or saved in the absence of the grounds established by law or other legal act. A legal ground is order from 25.11.2014 №5/184, valid until 14.09.2017, and contract transport services. It existed when the contract between JSC «TCIS» and JSC «Nazarovskaya GRES» were enforceable.

In our opinion, the rule on the recognition of a normative legal act as invalid only from the moment of it is adoption and the assignment to the authorized body of power of the obligation to adopt a new normative legal act. This is the best solution to the problem. This will ensure that the regulation of the contractual relationship by the valid and the applicable legal normative act and will eliminate the legal uncertainty in the relationship of the parties.

Based on the above, it follows that at present the issue of the treaty provision established on the basis of a mandatory rules of a regulatory legal act remains unresolved. This act was declared invalid by the court. This need a theoretical analysis of the controversial decisions proposed by judicial practice.

References:

1. About consideration by courts of disputes on payment of energy in case of recognition invalid the regulatory legal act by which the regulated price is established [Electronic resource]: the resolution of Plenum of the Supreme Court of the Russian Federation of 27.12.2016 № 63. Аccess from the legal reference system «ConsultantPlus» (date of treatment: 05.04.2019).
2. About establishment of limit maximum rates for the transport services rendered on access railway tracks by open joint stock company «East Siberian industrial railway transport» (Nazarovsky branch) [Electronic resource]: the order of the Ministry of transport of Krasnoyarsk Krai of 25.11.2014 № 5/184. Аccess from the legal reference system «ConsultantPlus» (date of treatment: 05.04.2019).
3. Civil code of the Russian Federation. At 4 h. H. 1 [Electronic resource]: Federal law of 30.11.1994 № 51-FZ. Аccess from the legal reference system «ConsultantPlus» (date of treatment: 07.04.2019).
4. The decision of the Arbitration court of Krasnoyarsk region of 25.10.2017 in the case № A33-17257/2017 [Electronic resource]. URL: http://kad.arbitr.ru (date of treatment: 08.04.2019).
5. The decision of the Arbitration court of Krasnoyarsk region of 18.09.2018 in case no. A33-7825/2018 [Electronic resource]. URL: http://kad.arbitr.ru (date of treatment: 09.04.2019).
6. The decision of the Krasnoyarsk regional court of 04.04.2017 in the case № 3A-13/2017 [Electronic resource]. URL: https://kraevoy--krk.sudrf.ru (date of treatment: 09.04.2019).