Services as a type of activity. Legal regulation of paid rendering of services
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Shukovskaya Olga Mikhailovna Legal regulation of activities for the provision of legal services: Dis. ... cand. legal Sciences: 12.00.03: St. Petersburg, 2001 213 p. RSL OD, 61:01-12/748-0
Introduction
Chapter I. The concept of service and the obligation to provide services 11-55
1.1. Service as an economic and legal category 11-29
1.2. Obligations to provide services (delimitation from obligations to perform work, legal and actual services, place of obligations to provide services in the system of civil law obligations) 29-55
Chapter II. Legislation governing the provision of legal services 56
2.1. Legislation on persons engaged in the provision of legal services 57-81
2.2. Law on legal advisers 81-90
Chapter III. Legal forms of activity for the provision of legal services 91-161
3.1. Organizational, legal and other forms of activity for the provision of legal services 91
3.2. Contractual forms of activity for the provision of legal services and their classification 114
3.3. Features of contracts for the provision of legal services 124-161
Chapter IV. Responsibility and protection of the parties in obligations to provide legal services 162
4.1. Features of the responsibility of a lawyer-service provider 162-175
4.2. Substantive and procedural legal ways to protect the rights and interests of the client-recipient 175-188
Conclusion 189-190
Introduction to work
Relevance of the research topic. In a broad sense, the activity of providing legal services is a certain area of economic and social activity of subjects, it is an activity of a legal nature that serves to protect the rights and protect the interests of citizens and organizations, implemented through various legal relations - civil, labor, administrative. Of scientific interest, in this case, are the problems of legal regulation of activities for the provision of legal services from the standpoint of clarifying its content, streamlining the procedure for its implementation and improving the contractual relations that are developing on this occasion.
Assessing the current state of legislation and conceptual developments in this area, it is necessary to recognize, first of all, the value of scientific ideas about the nature of the service and the features of legal obligations, the subject of which is the provision of services, which have been developed and reflected in the Civil Code of the Russian Federation. At the same time, the insufficiency of both the theoretical and practical bases in this matter reveals itself: despite the regulatory prerequisites, relations for the provision of services continue to be unreasonably mixed with others, in particular, contract ones; the place of obligations to provide services in the system of civil law obligations remains debatable; in contractual regulation, they do not receive a proper assessment of the peculiarities of relations that develop regarding the provision of legal services; outside the legislative regulation was the regime for the implementation of activities for the provision of legal services.
This state of affairs does not correspond to the role that the activities of entities engaged in the provision of legal services to participants in civil circulation are called upon to play in society, which does not contribute to the fullest possible realization of their subjective rights. There are no independent scientific works on the designated range of issues, the problem has not been studied earlier at the system level. Meanwhile, the relevance of the topic is obvious.
Firstly, legal services, like law in general, are capable of exerting a controlling influence on the state of public relations of subjects, and the relations that develop regarding the provision of legal services cover both the private and public law spheres. Secondly, the activities for the provision of legal services are heterogeneous both in terms of the content of legal relations that mediate it, and in terms of the status of professional participants in such relations. Thirdly, the development of legal obligations structures leads to an enrichment of understanding of the category of service and emerging contractual relationships regarding the provision of legal services. Fourthly, the provision of legal services requires legal regulation based on the use of normative and non-normative means of streamlining the relations that develop in this case.
Object and subject of research. The factors listed above individualize both in the scientific and in the practical sense the activity for the provision of legal services, distinguish it from other objects of legal regulation. This gives grounds to take the activity of providing legal services as an object, and the legal regulation of relations that develop during the implementation of such activities as the subject of research.
The purpose of this study is to identify the problems and features of the legal regulation of activities for the provision of legal services, as well as the specifics of the activities of legal advisers; in assessing the content of the current legislation for its adequacy for effective regulatory impact on these relations, in developing ways and means of its improvement; in a comparative analysis of the legal regulation of activities for the provision of legal services in Russia and in the United States on the procedure for carrying out such activities, the legal forms of its organization, contractual regulation of legal relations, liability and protection of the rights of participants.
To achieve this goal, the following are put forward as the main tasks: analysis of the service phenomenon and obligations to provide services; development of a legislative approach to the regulation of activities for the provision of legal services; study of organizational and contractual forms of such activities; identifying the features of responsibility and ways to protect the rights of participants in relations arising from the provision of legal services.
Methodological and theoretical basis research. To reveal the research topic, general scientific methods (epistemological, historical, dialectical, system-structural, formal-logical and method of comparative analysis) and private scientific methods (comparative-legal, technical-legal) were used. The theoretical basis of the work was the works of modern and pre-revolutionary scientists in the field of general theory of law, the theory of legal obligations, works devoted to service contracts; in addition, foreign legal and economic literature was used. The work was based on the works of such legal scientists as M.I. Braginsky, A.P. Vershinin, V.V. Vitryansky, G. Dernburg, B.D. Zavidov, N.P. Indyukov, O.S. Ioffe , A.Yu.Kabalkin, Yu.Kh.Kalmykov, A.V.Kligman, M.V.Krotov, K.K.Lebedev, M.V. V. Rovny, D. N. Safiullin, E. A. Sukhanov, I. V. Zhereshevsky, G. F. Shershenevich, E. D. Sheshenin and others. judicial practice, as well as the legal practice of entities engaged in the provision of legal services.
The scientific novelty of the work lies in the fact that the dissertation for the first time carried out a comprehensive study of the legal regulation of activities for the provision of legal services, it substantiated and formulated a number of theoretical provisions, conclusions and legislative proposals for improving the legal regulation of activities for the provision of legal services.
The following conclusions are submitted for defense:
1. In the economic sense, a service is a commodity to be sold by exchange for value, but at the same time, it has special properties, and therefore services are considered as independent objects of trade. The service in the legal sense is an independent object of civil legal obligations, different from the relations that develop regarding the transfer of property and the performance of work. As a result of the study of the characteristics of the service, the concept of a service as an object of civil rights is given: a service is a kind of good that serves as a means of satisfying needs through the implementation of activities (through actions) by one subject, in useful properties which constitutes the subjective interest of another subject and to which the latter has the right to claim.
2. An analysis of the development of obligations consisting in the provision of services allows us to conclude that it is necessary to single out a contract for the provision of services as an independent type. The provisions of this agreement should play the role of general rules in relation to the types of contracts for the provision of services (orders, commissions, transportation, storage, insurance, etc.), which would form a system of general and special rules on obligations of this type and, at the same time, would determine the place of obligations to provide services in the system of civil law obligations.
3. Features of the activity for the provision of legal services give grounds to apply a permit regime to it. Such a regime should be based on a special procedure for acquiring the right to engage in private legal practice: accreditation of lawyers as subjects of the constitutional institution of legal assistance, and licensing of other persons engaged in the provision of legal services.
4. The objectives of the activity for the provision of legal services determine its legal regime: entrepreneurial or non-commercial, which corresponds to the corresponding organizational and legal and other forms, among which the organizational and legal form of the bar associations stands out as not coinciding with any of the forms provided for by law. It is proposed, firstly, to recognize, at the level of law, the bar associations as an independent organizational and legal form of non-profit organizations; secondly, to establish for all legal entities engaged in the provision of legal services and created in any organizational and legal forms of commercial and non-commercial organizations, the regime of special legal capacity; thirdly, to extend the requirements for accreditation and licensing to the founders of these persons.
5. Contracts for the provision of legal services serve as a legal form for organizing relations between participants in relations arising from the provision of legal services. On such grounds as the nature of the relations served, the legal regime of the subjects of activity for the provision of legal services and the content of legal services, a classification of the characterized relations is given. Among the legal structures that can mediate relations regarding the provision of legal services, there are contracts for the provision of services for a fee (as the most acceptable and flexible form), commissions (for cases of representation), agency services (by type of commission) and trust management of property (in connection with legal protection of the object of management). The conclusion is substantiated that all types of contracts for the provision of legal services are united by the fiduciary, personally-confidential nature of emerging legally binding ties, which is manifested in the features of the emergence, change and termination of legal relations, in the rights and obligations, responsibilities of the parties, in the personal method of fulfilling obligations to provide legal services.
6. The study of the reasons for the refusal of the lawyer-service provider to conclude and execute the contract leads to the conclusion that there is a special legitimate basis for refusing a conflict of interest; its essence is revealed, the need for a legislative settlement of this issue is substantiated, norms on the conflict of interest are formulated: the concept, the procedure for overcoming, the grounds for refusing to conclude and execute the contract are listed.
7. Identification of the features of the rights and obligations, the responsibility of the parties allows us to conclude that the lawyer-service provider is a strong party under the contract, capable of more to influence its execution by the party, which is entrusted with a greater burden of obligations, including obligations related to the primary opportunity to determine the nature and number of actions necessary for the performance of the contract.
8. As a basis for the liability of a lawyer-service provider, the harm caused to the client-service recipient as a result of the provision of legal services is recognized. It is proposed to interpret the harm as caused to life, health, property and entailed the deprivation or significant violation of the property and personal non-property rights of individuals or legal entities, or/and the unlawful imposition of duties on them; concludes that it is advisable to extend the rules on liability from causing harm to services (as well as goods, works) used for business purposes.
9. For the full restoration of the violated right of the client-service recipient, for the purposes of calculating the amount of losses, it is necessary to proceed not only from the price specified in the contract, the place and moment of fulfillment of the obligation to indemnify (bringing a claim, making a decision), but, at the same time, rules on the price normally charged for similar services under comparable circumstances, which would allow the client-recipient to turn to others for a qualified legal service.
10. For real recovery financial situation client-service recipient, violated as a result of the provision of legal services, you must enter compulsory insurance risks of professional property liability of lawyers and other persons engaged in the provision of legal services, as an integral part of the regime of this type of activity.
11. Based on the above study of the forms and content of activities for the provision of legal services, it is concluded that such activities should become an independent object of legal regulation at the level of a special law.
The theoretical and practical significance of the study lies in the fact that the work sums up certain results of theoretical and practical knowledge in the field of activities for the provision of legal services. The work is designed for the attention of lawyers, including those involved in practical jurisprudence, in terms of understanding the conclusions of the work, critically evaluating its results and applying them in the practice of concluding and executing contracts for the provision of legal services and resolving disputes, as well as in the sense of further development of relations arising in the process of carrying out activities for the provision of legal services, in general. The provisions, conclusions and proposals submitted for defense can be used to improve the current legislation in the preparation of new regulatory and methodological documents. The content of this dissertation research can form the basis for compiling curricula and special courses practical exercises in the relevant civil and commercial law disciplines, as well as be the subject of independent attention of specialists.
Approbation of work. The study was carried out at the Department of Commercial Law of St. Petersburg State University, where it was reviewed and discussed. A number of provisions of the work are reflected in the author's publications in special all-Russian and regional legal publications.
Work structure. The work consists of an introduction, four chapters and nine paragraphs, a conclusion and a bibliography.
Service as an economic and legal category
At the ordinary level, it is customary to equate services with the provision of some good. In the economic sense, the concept of service covers all relations arising from the consumption of the results of unproductive labor and, from this point of view, the essence of the service is manifested in "a special form of equivalent exchange of the results of labor, qualified as a" service ", which is different from the form of exchange of goods, things" . In a special, legal sense, "service" is a narrower concept. So, from a public law standpoint, a service is a type of economic service aimed at creating benefits, meeting the needs of others, with the exception of activities carried out on the basis of labor relations, and the results of which do not have a material expression, are realized and consumed in the course of this activity. In the private legal sense, the service appears as an object of civil law and, thanks to this, the relations for the provision of services become the subject of regulation of the law of obligations and this issue is reflected in the works of such authors as E.D. Shesheniy, O.S. Ioffe , M.V. Krotov, A.Yu. M.V. Krotov undertook a monographic study of obligations to provide services, having considered a wide range of problems: from the concept of a service and analysis of the legal relationship of obligations for the provision of services, to their classification. In this paper, the service will be considered as an object of civil rights and as a type of civil obligation.
The current Civil Code of the Russian Federation classifies services as objects of civil rights (Article 128 of the Civil Code of the Russian Federation), but, unlike others in this list of objects (for example, securities - Article 142 of the Civil Code of the Russian Federation), does not contain their legal definition. Nevertheless, by giving services such a status, the legislator is already showing his principled position in relation to services. In addition, in Article 2 of the Civil Code of the Russian Federation, giving the concept of entrepreneurial activity, it includes the thesis on the provision of services by persons engaged in it.
The complexity of the concept of service reveals itself. Article 779 of the Civil Code of the Russian Federation describes a service, or rather, the subject of a contractual obligation for the provision of services for a fee, using the categories of action and activity (to provide a service means "to perform actions", to carry out an activity "). The essence of a service can be clarified through its characterization as some kind of intangible economic good, which came out of the expanded concept of a thing that was formed in Roman law, and which began to embrace not only bodily and objects, but also the actions of other persons: with the development and complication of economic turnover, the share and importance of such unknown goods grows so much that legal and technical abstractions even begin to to push bodily things (such a broad understanding of things is also characteristic of foreign legal science).
Legislation on persons engaged in the provision of legal services
The range of entities engaged in the provision of legal services is limited to persons who are not burdened, at the same time, with official, administrative or other duties, official and other subordination, namely: a) lawyers and b) other persons - private practicing lawyers and law firms.
Being the main normative document regulating the activities of lawyers, the Regulations on the Bar of 1980 fixes, firstly, the status of the institutions of the bar - the bar associations and their bodies, the rights and obligations of their members (lawyers), material, organizational and procedural guarantees of their activities; secondly, it determines the organizational forms of lawyers' activity - legal consultations; thirdly, it contains an open list of types of legal assistance to citizens and organizations provided by lawyers (including: giving advice, explanations and information on legal issues, drafting legal documents, representing the interests of civil plaintiffs, defendants, victims in judicial arbitration and other bodies, defense in criminal cases, implementation of defense in criminal proceedings by appointment at the expense of the state (Article 49 of the Code of Criminal Procedure), provision of free legal assistance in certain categories of cases and provision of legal assistance at minimum rates to low-income citizens).
The following concepts underlie the legislative regulation of the activities of the bar in its current state. First, the task of the bar is to provide legal assistance to citizens and organizations; this constitutes its subject of activity and, at the same time, its public duty (Article 1 of the Regulations on the Bar), which, unlike the court and the notary, is not connected with the performance of administrative functions. Secondly, the composition of the bar is formed from persons who voluntarily joined and accepted members of the institutions of the bar (bar associations) - lawyers whose professional activity as specialists in the field of law is to provide legal assistance to citizens and organizations. As a consequence, - the third - only a citizen of the Russian Federation who is a member of the relevant bar association can carry out professional advocacy, thereby acquiring a status that allows him to provide all types of legal assistance in all courts, state and other bodies and organizations throughout the territory of the Russian Federation and use the rights granted to him for this. Fourth, by joining the bar, the lawyer submits himself to the order of control and the norms of responsibility (disciplinary) that exist in the bar. Fifth, the state, mainly through its executive body- The Ministry of Justice, reserves control powers on the activities of the bar through general and methodological guidance: establishes the specifics of the organization and activities of bar associations, the procedure for paying for legal assistance, gives consent to the creation of new boards, issues instructions and recommendations on these issues, etc. P. (Articles 3,31,32 of the Regulations on the Bar).
Organizational, legal and other forms of activity for the provision of legal services
The legal regime of activity is determined by the goals laid down in it, which, in turn, determines the organizational and legal status of the subject. If from the standpoint of fiscal legislation, the commercial or non-commercial status of a person is of fundamental importance, then for the creditor-service recipient, the question of the quality of the services provided and the limits of the responsibility of the service provider will be decisive here, therefore, the legal form goes beyond the external streamlining of the activities of service providers, and also affects the area of relations, the subjects of which are the lawyer-service provider and the client-service recipient.
On the basis of the law in the mode of non-commercial activity there are bar associations - bar associations, the public function of which necessitates the application of a mode of activity to it, which cannot depend on the accidents that lie in wait for any other private activity, and the very existence of the bar is a guarantee of the exercise by persons of their constitutional right to qualified legal assistance. In other words, the need for the stability of the system of legal assistance guaranteed by Article 48 of the Constitution of the Russian Federation (see Chapters I and II) makes it necessary to apply to the legal services provided by lawyers (and to the institution of the legal profession as a whole) a different legal regime of activity than to other subjects of private law.
The activities of lawyers are not classified as commercial, both by virtue of its content (fulfillment of a constitutional obligation), and by virtue of the procedure for distributing funds from payment for the provision of legal assistance and legal services directed to the remuneration of lawyers, the maintenance of legal consultations, deductions to collegiums and, consequently, the lawyer does not make a profit from his activities and the regime of his property is different from that of the entrepreneur; in addition, the form of organization of the activities of lawyers and the internal structure is also determined by law, respectively, the bar associations and legal consultations.
Through the provision of legal services, the right of a person to activities of a non-commercial and entrepreneurial nature can be realized - to entrepreneurial activities systematically pursuing the goal of making profit (or entrepreneurial income), which represents for the subject of such legal service relations a direct subjective interest protected by law. When providing legal services in the mode of entrepreneurial activity, by definition of the law, for the subject such activity is independent, free, not burdened by either public or public or official duty, and the representation and protection of the interests of third parties constitute here the subject and content of a certain type of entrepreneurial activity. carried out at your own risk, aimed at making a profit (entrepreneurial income), according to paragraph 1 of article 2 of the Civil Code of the Russian Federation.
Legal regulation and provision of a legislative framework are part of the administrative method of regulation on the part of the state and are not associated with the creation of an additional financial incentive or the risk of financial damage. This regulation is based on the power state power and includes measures of prohibition, permission and obligations. The legal framework limits the freedom of economic choice of economic entities.
There are many legal acts regulating the activities of the service sector by providing a legislative framework and monitoring its implementation:
1. Constitution Russian Federation- the highest regulatory legal act of the Russian Federation, which "regulates the provision and provision of social services to the population on a gratuitous basis." For example, Art. 41 paragraph 1, which states that "everyone has the right to free medical care in state and municipal health care institutions, which is provided to citizens at the expense of the relevant budget." For commercial activities, the Constitution of the Russian Federation does not carry a regulatory burden, that is, it is not its regulator.
2. Civil Code of the Russian Federation - the code of federal laws of the Russian Federation, which effectively regulates entrepreneurial commercial activities, and in particular the service sector. For example:
Chapter 1 (Article 1) which states that “all goods, services and financial resources move freely throughout the territory of the Russian Federation”;
Chapter 6 (Article 128), which spells out the objects of civil rights. Whence it follows that the objects of civil rights, in addition to things (cash and documentary securities), non-documentary securities, property rights, the results of work also include the provision of services;
Chapter 25 (Articles 393 - 406), which refers to the obligation to "compensate for damages if the service was performed poorly or was not provided at all." It also determines the method and amount of damages;
Chapter 27 (Art. 424. Price, Art. 426. Public contract, Art. 429. Preliminary contract). This chapter defines the concept of a service contract, what should be spelled out in it, various types of contracts, their conditions for execution and termination, as well as the obligations and rights of the parties;
Chapter 39. Compensatory provision of services, consisting of five articles:
1) art.779. Contract for the provision of services;
2) Art.780. Execution of the contract for the provision of services;
3) art.781. Payment for services;
4) art.782. Unilateral refusal to execute the contract for the provision of services for compensation;
5) Art.783. Legal regulation of the contract for the provision of services.
From these articles follow the rules for drawing up a contract for the provision of services for a fee, execution by both parties-participants, the process of regulating relations between them.
3. the federal law Russian Federation - a federal legislative act of the Russian Federation, which also has a direct impact on the service sector. There are two main laws governing this area in general terms:
Federal Law of the Russian Federation of 07.02.1992 N 2300-1 "On the Protection of Consumer Rights in the Russian Federation";
The most important law of the Russian Federation, “governing relations between consumers and contractors in the provision of services”, establishing the rights of consumers to purchase services of adequate quality and safe for life, health, property and environment, obtaining complete information about the services and their performers.
Federal Law of the Russian Federation of December 27, 2002 N 184 "On technical regulation".
This Federal Law "governs relations arising in the course of production, installation, transportation and provision of services." It also regulates the performance mandatory requirements and compliance with the required quality assessment.
There are federal laws that regulate specific types and industries that are characterized by the provision of services. For example, the Federal Law of the Russian Federation of December 2, 1990 N 395-1 "On banks and banking activities."
4. Interstate standard (GOST) or national standard (GOST R) - standards adopted respectively by an interstate or national standardization body and available to a wide range of users. Two main standards governing the service sector should be distinguished:
GOST R 50646-2012 Public services. Terms and Definitions;
GOST ISO 9000-2011 Quality management systems. Fundamentals and vocabulary.
There are many different types and subtypes of standards for the provision of services. For example, GOST R 51108-97. Household services. Chemical cleaning. General specifications, GOST R 51006-96 Transport services. Terms and Definitions. And for others: funeral services, public services, hairdressing, fitness club services, cleaning services, repair services, and so on.
5. The Tax Code of the Russian Federation is a codified legislative act that establishes a system of taxes and fees in the Russian Federation, affecting the scope of the provision of services:
Art. 39. Sale of goods, works or services;
Art. 40. Principles for determining the price of goods, works or services for taxation purposes;
Art. 148. Place of implementation of works (services).
In these articles you can find information about the rules for determining the price of the services provided, as well as about the established general principles taxation of persons engaged in the provision of services to the population.
The service sector is of great importance for the Russian economy, its expansion and complexity leads to the emergence of an increasing number of new laws regulating contractual relations in this area. That is why civilists unanimously consider services one of the leading categories in the system of objects of civil rights and note its high importance. With the development of science and society, a wide variety of types of services are included in civil circulation, which are already in great demand and are becoming the object of research by legal scholars, including cellular communication services, audit services, various types of medical services, etc.
At first glance, the domestic civil legislation contains few norms and rules on the provision of paid services: the Civil Code of the Russian Federation has a separate chapter. 39, but it is short and contains only five articles. With a more detailed study of the Civil Code of the Russian Federation, it becomes clear that this impression is misleading, since the Civil Code of the Russian Federation includes a number of articles and chapters regulating the procedure for concluding, amending and terminating contracts arising from services, and in addition, separate laws and by-laws are devoted to these issues. (for example, tourism services). Finally, Art. 783 of the Civil Code of the Russian Federation provides for the possibility of applying the rules on contracting and provisions on domestic contracting to the paid provision of services, this once again emphasizes the difference between a contract and the provision of services.
In the theory of civil law, the contract for the provision of services, its individual elements and types are the subject of careful research by scientists. One of the most controversial points is the concept of "service". A service is a certain activity or action of one person, performed to meet the needs of another person, which is not related to the creation or improvement of a thing. The service is distinguished from other objects of civil rights the absence of a materialized form, which, for example, is inherent in the results of the work. That is why the service is inseparable from its performer and cannot exist separately from its producer.
An important feature of a service is its instant consumption . This means that at the moment when it appears, it is consumed. Thus, the receipt (acceptance) of it by the customer and the process of providing the service by the contractor go simultaneously. According to the criterion of compensation, services are divided into paid and non-paid, and the former form the subject of special legal regulation.
By contract for the provision of services the contractor undertakes to provide services on the instructions of the customer, and the customer undertakes to pay for these services.
Subject contracts can be a wide variety of services, including communication services, medical, veterinary, auditing, consulting, information services, training and tourism services, etc. In accordance with paragraph 2 of Art. 779 of the Civil Code of the Russian Federation, the norms devoted to the provision of services for a fee and concentrated in Ch. 39 of the Civil Code of the Russian Federation, are not applicable to relations for transportation, contracting, transport expedition, bank deposit and bank account agreements, settlement relations, storage, trust management and suretyship.
The legal nature of this agreement consensual, compensated, bilateral.
His essential conditions are the subject and indication of the obligation of the customer to pay for the service. The need for an accurate and correct definition of the subject matter in contracts for the provision of services is indicated by the Presidium of the Supreme Arbitration Court of the Russian Federation in an information letter dated September 29, 1999 No. 48 "On some issues of judicial practice arising from the consideration of disputes related to contracts for the provision of legal services."
An agreement for the provision of legal services (which is subject to Chapter 39 of the Civil Code of the Russian Federation) can be considered concluded if it describes the actions that the contractor is obliged to perform, or indicates his specific activities. This clarification shows that the condition on the subject should be provided in the most clear and understandable wording. In addition, in some cases, the content of the service is fixed in the law or by-law. For example, in Art. 2 of the Federal Law of July 7, 2003 No. 126-FZ "On Communications", a communication service means the activity of receiving, processing, storing, transmitting, delivering telecommunication messages or mail.
The issue of classifying the price as an essential condition of a service agreement is debatable in the legal literature. The position of the courts is also ambiguous. Thus, the FAS of the East Siberian District indicated that the price is an essential condition of the contract for the provision of services for a fee (see the decision of the FAS of the East Siberian District of August 1, 2001 in case No. A19-8660 / 00-25-Ф02-1734 / 01- C2). The opposite opinion on this issue was expressed by the FAS of the Moscow District, which came to the conclusion that the cost of services is not an essential condition of the said contract (see the decision of the FAS of the Moscow District of August 5, 2004 in case No. KG-A41 / 6380-04) . In our opinion, one of the essential terms of the contract for the provision of services for compensation is not the price of the service, but an indication of the customer's obligation to pay for this service (see the decision of the Federal Antimonopoly Service of the Moscow District of September 12, 2003 in case No. KG-A40 / 6582-03).
The term in the contract may not be provided, in connection with which it is not an essential condition of the contract.
An important role in the field of legal regulation of the provision of paid services is played by the Law of the Russian Federation of February 7, 1992 No. 2300-1 "On the Protection of Consumer Rights" and the Resolution of the Plenum of the Supreme Court of the Russian Federation of June 28, 2012 No. 17 "On Consideration by Courts of Civil Cases on Disputes on consumer protection". The content of these documents indicates that the legislator and the court have taken the position of comprehensive protection of consumer rights as the weakest party in the contract compared to the service provider.
Let us consider in more detail certain types of contracts for the provision of services.
- Drozdova A. V. Concept and content of service as an object of civil rights // Siberian Legal Bulletin. 2003. No. 1. S. 52.
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Ministry of Education and Science of the Russian Federation
Federal State Budgetary Educational Institution of Higher vocational education
Moscow State Engineering University (MAMI)
Faculty of Law
Abstract on the topic:
Legal regulation of the provision of Internet services
group student 124432
Purtskhvanidze S.R.
Moscow 2016
Introduction
1. general characteristics obligations to provide Internet services
1.1 Concept of the Internet
1.2 Place of provision of Internet services
1.3 Principles of public policy in the field of activities for the provision of Internet services
2 Establishing common approaches to licensing in the field of Internet services
Conclusion
Bibliography
INTRODUCTION
The relevance of this topic is very high, because. the transition to the third millennium is associated by a number of specialists in the field of philosophy, computer science, economics, jurisprudence and other sciences with the transition to the information society, which has a new structure, in which industries related to the receipt, dissemination and processing of information play a decisive role.
In legal science, the relations associated with the use of the Internet have been studied fragmentarily. Most of the authors devote their works to certain problems of legal protection of copyright objects available to users of telecommunication networks, they also touch upon the rights to a domain name that identifies a network information resource (website), the relationship of these rights with the rights to a trademark and trade name, issues of personal data protection , ensuring the right of citizens to receive information from the Internet, including legal information and information about the activities of state bodies, issues of preventing the dissemination via the Internet of information that does not correspond to reality, discrediting the honor, dignity or business reputation of citizens or legal entities, offensive and slanderous information, as well as propaganda aimed at inciting ethnic, racial and religious hatred, violent change in the constitutional order, issues of electronic document management, electronic signature and conclusion of transactions in electronic form e, regulation of relations regarding the implementation of non-cash payments using telecommunications networks.
internet service obligation licensing
1. GENERAL DESCRIPTION OF OBLIGATIONS TO PROVIDE INTERNET SERVICES
According to a number of scientists, service obligations are distinguished by the absence of a materialized result of the contractor's activities.
In obligations, the ultimate goal of which is to provide the service recipient with information, such a materialized result can be a material carrier of information.
At the same time, as Sherstobitov A.E. quite rightly noted, “... far from all cases, the material carrier of information is of a real nature.”
So, in the case of transmission of scanning results via the Internet, the material result of the activity will be present in the form of a change in the magnetic characteristics of the information storage device (hard disk) in the customer's computer system after receiving the order. Such a material result has no signs of a thing, so in this case it will be possible to talk about the provision of a service, and not the performance of work.
1.1 The concept of "Internet"
Net is a system that allows the exchange of information, i.e. a set of computers interconnected by a physical data transmission channel through which information is transmitted.
The local network represents several computers and peripheral devices connected to each other by a cable and located in one place. In such a system, computers can share peripherals. For example, a network allows all connected users to use the printer, not just the one to whose machine the device is connected.
Global network- a set of local networks interconnected by communication channels. The Internet is an example of a global network.
The Internet is an international global network formed by computers and local computer networks using various hardware and system tools.
The Internet can be considered in two senses - physical and logical.
The Internet in the physical sense is a collection of interconnected computers and computer networks, united by physical connections and common standards.
In a logical sense, the "Internet" is a global information system- huge information space.
1.2 Location of internet services
The place of activity is the territory of the Russian Federation in the event of the actual presence of the persons specified in this subparagraph on the territory of the Russian Federation on the basis of state registration of an organization or individual entrepreneur, and in its absence - on the basis of the place indicated in the constituent documents of the organization, the place of management of the organization, the location of its permanent executive body, the location of the permanent representative office (if services are provided through this permanent representative office), the place of residence of the individual. The actual location of the equipment for using the Internet or providing Internet services (server, communication means) does not affect the determination of the place of business.
If the provision of Internet services is of an auxiliary nature in relation to the implementation of the main works (services), then the place of provision of auxiliary services is the place of implementation of the main works (services).
At the request of the data sender or addressee, the telecom operator issues a free receipt or other confirmation of the receipt or sending of data in the form established by law, and in the absence of a duly approved form, in any form indicating the available data details that allow them to be identified (message subject, its sender and addressee, date of sending or receiving, other information), the name and legal form of the telecom operator, the number of its license for the provision of communication services, the date of issue of a receipt or other document, the name and position of the person who issued the confirmation, as well as affixing it signatures and seals of the organization - telecom operator.
1.3 Principles of state policy in the field of activities for the provision of Internet services
The state policy in the field of Internet services is based on the priority of generally recognized norms and principles of international law, compliance with international treaties and other acts of international law ratified in the Russian Federation in the manner prescribed by the Federal Law, and also taking into account the need to ensure information security and protection legitimate interests of the Russian Federation and its subjects, municipalities, the rights of individuals and legal entities in the provision of Internet services.
The main directions of state policy in the field of activities for the provision of Internet services are:
· ensuring the information security of the state, municipalities, individuals and legal entities in the process of providing Internet services;
· ensuring universal and equal access to Internet connection services by creating and supporting the infrastructure of state, municipal and public centers that provide on a non-commercial basis for use computer devices connected to the Internet and other Internet connection services;
· provision of benefits in the provision of Internet services to socially unprotected segments of the population;
· development of infrastructure for Internet connection services in rural, remote and hard-to-reach areas;
· Ensuring the minimum requirements for the quality of Internet connection services established in legal acts through their state certification and licensing of the activities of persons providing them;
· creation of conditions for the development of distance learning with an emphasis on the dissemination of basic knowledge and skills necessary for the consumption of Internet services;
· inclusion of the basic knowledge and skills necessary for the consumption of Internet services in the mandatory state standards of secondary education;
· promotion of remote forms of employment of workers for a more complete realization of the right of everyone to work, to eliminate the shortage or excess of personnel in certain areas, as well as the participation in labor processes of persons with limited ability to work;
· formation and integration into the Internet of networks and information resources of state bodies, educational and library institutions to provide them with universal access for citizens.
· timely improvement of the mechanism of legal regulation of activities for the provision of Internet services, taking into account changes in technology and public relations regarding their use.
2. INSTALLATIONOF GENERAL APPROACHES TO LICENSING IN THE FIELD OF INTERNET SERVICES
Excessive state interference in the development of new industries based on Internet technologies has a detrimental effect on their growth rates, however, the absence of any control can lead to massive violations of citizens' rights, a threat to the information security of the Russian Federation. Accordingly, in the case when a person provides Internet services based on equipment provided to him under an agreement with a licensed telecom operator, additional licensing appears to be an excessive administrative barrier.
In the event of a disputable situation regarding the transfer of any documents or other computer data over telecommunication networks, a number of issues are not regulated by the legislation of the Russian Federation. Among them, the issues of the procedure for establishing requirements for the form of transmitted data and the consequences of non-compliance with the requirements of this form, as well as determining the moment when the obligation to transmit data is considered fulfilled, are of the greatest practical importance.
Currently, one of the main problems in the field of Internet services is the difficulty of proving the facts of the transfer of any data, since the transmitted data is not recorded anywhere and telecom operators are not required to save them.
However, a continuous recording of all e-mails seems to be inappropriate, since most of the items do not belong to official correspondence and confirmation of the fact of their sending or receiving, as a rule, is not required.
CONCLUSION
The category "Internet" has been used in Russian legislation since 1997. The foundation of the legal regulation of relations related to its use, the provision of Internet services, was laid by the Constitution, securing such fundamental provisions as the right of everyone to freely seek, receive, transmit, produce and distribute information in any legal way (part 4 of article 29), etc.
The fundamental norms are also contained in the international treaties of the Russian Federation.
Legal regulation of relations regarding the provision of Internet services is carried out on the basis of federal laws, in particular, the Civil Code of the Russian Federation, the Federal Law "On Communications", the Federal Law "On Participation in International Information Exchange", the Federal Law "On Information, Informatization and Information Protection" and other laws and regulations.
After analyzing the features of the Internet that are essential for determining the legal status of its use, we can conclude that Internet is an international public telecommunications network, that is, an international public telecommunication network for the exchange of data. Machine-readable messages (data) are understood as messages containing information about the surrounding world, its objects, processes and phenomena, objectified in a form that allows their direct machine processing.
LISTLITERATURE
1. See for example: Civil law. Textbook. Part III / Ed. Sergeeva A.P., Tolstoy Yu.K. - M.: Prospekt, 1998. S. 540; Krotov M.V. Decree. op. S. 59 and others.
2. Sherstobitov A.E. Civil law regulation of obligations to transfer information: Dis. cand. legal Sciences. M., 1980. S. 29
3. Malakhov S.V. Civil law regulation of relations in the global computer network Internet.
4. Melyukhin I.S. Internet and legal relations.
5. Federal Law "On the legal regulation of the provision of Internet services" dated January 30, 2001
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However, it should be noted that today this direction is not well studied. The reason for this is that, until recently, the main forms of organizing legal assistance were the bar, notaries and legal (or legal advisory) services, which were created at enterprises, organizations and public associations to provide assistance to these enterprises, organizations or associations, respectively. Now a field has been created for new forms of legal activity, these are the notorious “other forms of legal assistance”. This is how textbooks call all other forms of legal services that do not belong to the bar and notaries. Unfortunately, a more precise definition of these forms cannot be given, since they represent a great variety of different forms of legal services, and their list is open. This brings confusion to the understanding of legal aid.
This work is a modest attempt to systematize the forms of legal assistance, to understand their meaning and functions, and to bring at least some clarity to the concept of legal assistance and its significance in modern society. This is a very urgent problem, from my point of view, because, despite the novelty of many principles and forms of legal assistance, it (legal assistance) has taken root well in our country and now in any city you can find some form: a notary office , or the bar, or private legal consulting firms, or even private detective agencies and detectives who also provide legal services.
The need for legal assistance arises constantly and everywhere. There is practically no such sphere of life or human activity in which every person, and not just a lawyer, needs to know and be able to apply certain legal norms. Whether we are talking about work or study, the purchase or sale of goods, obtaining services, the need to apply to government or other bodies, participation in the activities of public organizations, parliamentary elections, and so on - everywhere you may need qualified legal assistance. For this, there is legal assistance, which assists the population in understanding, comprehending the legislation and helps to use it for the benefit of a person who needs this assistance.
1. Concepts of legal services and activities for their provision
Legal services are services to assist individuals with legal matters. Activities for the provision of legal services is one of the types of legal practice that is objectively necessary in any society with a state structure.
Legal activity is on a par with other types of service activities, such as: audit, consulting, marketing, information, monitoring, evaluation and real estate activities. All these activities satisfy the public demand for certain types of services that accompany the main - production - types of economic activity.
Legal activity is: state, non-state or private (commercial) activity of professional lawyers to provide qualified assistance to individuals and legal entities in understanding, correct use and compliance with the law, advice on legal issues and legal issues, which is aimed at protecting and promoting the exercise of rights and legal interests of citizens.
The issue of the need for strict state control over private legal practice is controversial. State control can be carried out in various ways, primarily through licensing and accreditation. Among lawyers, both scientists and practitioners, there are both supporters and opponents of the licensing of legal activities. At present, a license is not required to practice law, including the provision of paid legal services, since the current Federal Law of August 8, 2001 No. 128-FZ “On Licensing Certain Types of Activities” does not included in the list of activities subject to licensing.
The main professional participants in the legal services market are: lawyers and bar associations; law firms, other organizations specializing in the provision of legal services; individual practicing lawyers. Legal services are also provided by organizations that are not law firms, but in accordance with their statutory goals and objectives, provide legal assistance to their members and other persons. Close to the activity of providing legal services is the activity of notaries, which contributes to the proper execution of transactions and other acts. Many commercial organizations have a full-time legal service, thanks to which the organization's needs for legal services are met.
There is no unified general law, which would contain the norms regulating relations for the provision of legal services, in the legislative system of Russia. In the resolution of the Constitutional Court of the Russian Federation of January 23, 2007 No. 1-P “On the case of checking the constitutionality of the provisions of paragraph 1 of Article 779 and paragraph 1 of Article 7XI of the Civil Code of the Russian Federation in connection with complaints from the company with limited liability"Corporate Security Agency" and citizen V. V. Makeev" it is noted that "public relations regarding the provision of legal assistance as a separate subject of legal regulation in the current legislation are not singled out - they are regulated by a number of regulatory legal acts, the system of which includes the norms of the Civil of the Code of the Russian Federation, in particular its Chapter 39, concerning obligations under a contract for the provision of services for a fee” (clause 3) In principle, it would be possible to raise the question of adopting a general Law on the basics of state regulation of the provision of legal services, similar in its focus to the current Laws “On Appraisal Activities in the Russian Federation” and “On Auditing Activities”, but it seems that this is not necessary, at least at present. In addition, the activities of some participants in the legal services market are based on special laws: Federal Law of May 31, 2002 No. 63-FZ “On Advocacy and the Bar in the Russian Federation” (hereinafter referred to as the Law on the Bar) and the Law of the Russian Federation of February 11, 1993 No. 44621 "Fundamentals of the legislation of the Russian Federation on notaries" .
Importance of legal services for entrepreneurs. Entrepreneurial activity is carried out on a certain legal basis. Compliance with legal regulations gives entrepreneurs the opportunity to successfully develop their business. On the contrary, violation of the requirements of legal norms entails undesirable consequences for entrepreneurs in the form, for example, liability for obligations, and repeated or gross violations of the law can lead to the forced liquidation of an entrepreneur - a legal entity in the manner provided for in paragraph 2 of Art. 61 of the Civil Code of the Russian Federation, to administrative and criminal liability of individual entrepreneurs and officials of commercial organizations.
In order to avoid violations and follow the requirements of the law in everything, entrepreneurs turn to specialists with legal knowledge, i.e. practicing lawyers. Legal service for business is a natural, objectively determined phenomenon, one of constituent parts legal activity.
Legal assistance provided by lawyers to entrepreneurs is also called legal support, legal support, legal support. All of the above terms are close in meaning and can be used in different contexts in the same semantic meaning: the provision of consulting and other services by professional lawyers to entrepreneurs on the legal issues of doing business. In a broader aspect, the term "legal service" is also used, which refers to the provision of various legal services to interested parties - clients, customers - on a contractual basis, involving constant or periodic interaction and cooperation between the contractor and the client.
The concept of legal support for entrepreneurial activity includes the focus of lawyers' actions on:
Compliance with the legality of the customer's business activities;
Realization of the rights that make up the content of the legal capacity of the entrepreneur, and his subjective rights;
Protection of the rights and legally protected interests of entrepreneurs from violations by any third parties;
Restoration of the rights of entrepreneurs affected by violations.
These tasks, which could be called legal tasks, are closely related to the goals of entrepreneurial activity: the satisfaction of various social needs and the systematic extraction of profit.
These tasks correspond to the specifics of the subject of legal activity, determine the range of professional functional duties of lawyers serving entrepreneurs. At the same time, the content of legal support cannot include tasks of a different nature, for example, economic, production-technological, managerial-organizational. Lawyers are not engaged in solving economic or production and technological problems, but contribute to their solution, providing the necessary legal support for the entrepreneur's activities in their implementation. For example, when the question is raised about the adoption of a particular scheme for the transportation of goods, lawyers analyze the proposed scheme from a legal point of view, evaluate its legality, and ensure that appropriate conditions are included in the content of the agreements (contracts) being concluded.
2. Legal status participants in the legal services market
2.1 Lawyers and bar associations
Advocacy is a type of private legal practice, the originality of which is that the tasks of lawyers include not only legal services for organizations and citizens, but also protection in criminal cases initiated against citizens. Due to the great social role of the legal profession in civil society, advocacy is not recognized as entrepreneurial activity. Advocacy is carried out only by lawyers, i.e. lawyers with a special legal status of a lawyer. The rights of lawyers, arising from the peculiarities of their legal status, and the legal status of lawyers' formations are provided for by the Law on the Bar.
The status of a lawyer can be acquired by citizens who have a higher legal education obtained at a state-accredited educational institution of higher professional education and at least two years of work experience in the legal specialty. A lawyer who does not have the necessary experience to obtain the status of a lawyer must complete an internship lasting from one to two years. The internship ends with the admission of the trainee to pass the qualifying exam. After successfully passing the qualification exam, the applicant takes an oath (clause 1, article 13 of the Law on the Bar). From the date of taking the oath, the applicant receives the status of a lawyer and becomes a member of the Chamber of Lawyers.
Forms of lawyer formations are the Bar Association, Law Office, Law Office and Legal Advice. The activities of lawyers and lawyers' associations are governed by lawyers' chambers, which are formed by constituent assemblies (conferences) of lawyers throughout the Russian Federation (Federal Bar Association) and in each constituent entity of the Russian Federation.
The Bar Association is recognized as a legal entity and is one of the types, one of the original organizational and legal forms of a non-profit organization, since the goal of advocacy is not to make a profit, but to provide legal assistance in civil and criminal cases, the provision of legal services, legal protection of rights, freedoms and interests citizens and organizations.
The members of the bar association are dispersed among its structural subdivisions, which are called bar associations. All work with clients is carried out in consultations. Since the consultations are not legal entities, the head of the consultation, elected by the lawyers and approved by the Presidium of the Bar Association, acts on the basis of an annual general power of attorney, which allows him to conclude contracts on behalf of the Bar Association that ensure the activities of the consultation.
Lawyers themselves conclude agreements with clients; the terms of the agreements: the subject matter, the amount of the fee, the validity period, etc. - are determined by the lawyer by agreement with the client. The concluded agreements are subject to registration in the documentation of the consultation.
In the economic aspect, the bar associations carry out their activities on the basis of the principles of self-financing and self-sufficiency. All expenses of the bar and lawyer consultations are covered from the funds earned by lawyers. Taking into account the fact that lawyers receive at least part of their remuneration from individual clients, the state provides lawyers with tax benefits: bar associations are not payers of income tax; legal services provided by lawyers are not subject to value added tax; for lawyers, reduced tariffs for payments for the unified social tax (contribution) as a whole and for payments to individual extra-budgetary social funds are established; bar associations are exempted from paying taxes to the local budget.
Law offices are established by two or more lawyers on the basis of a partnership agreement, which provides for the conditions for the activities of the office as a legal entity and the procedure for concluding and executing contracts with clients.
A lawyer who has decided to practice law individually must establish a lawyer's office that is not a legal entity.
In areas where there is not a sufficient number of lawyers, the Chamber of Lawyers, on the proposal of the executive authority of the constituent entity of the Russian Federation, establishes legal consultation offices that are legal entities.
2.2 Law firms and other specialized legal organizations
Specifically for the legal service of the business sphere, legal entities are established, the main subject of which is the provision of paid legal services to business entities.
The procedure for the creation and operation of such (let's call them conditionally legal) organizations is not currently subject to special legal regulation. Therefore, legal organizations fall under the general legal regime established by the current legislation for social entities established as legal entities.
If the founders (participants) legal organization set themselves the goal of systematically extracting profits and then distributing it among themselves, then the organization is created as a commercial one in any of the organizational and legal forms that are provided for in paragraph 2 of Art. 50 of the Civil Code of the Russian Federation for commercial organizations.
Created as commercial organizations, law firms have, by virtue of Part 2, Clause 1, Art. 49 of the Civil Code of the Russian Federation with general legal capacity, that is, they can carry out any type of activity not prohibited by law. Along with the provision of legal services, law firms may carry out some other activities closely related to legal services, for example, information and analytical services, the provision of intermediary and marketing services, assistance in the registration of legal entities and changes in their constituent documents (so-called drafting) , services for registration of rights to real estate and transactions with it, commercial representation, visa support, legal training, etc.
Law firms that provide legal support for real estate transactions work closely with real estate firms and organizations of appraisers. Some law firms establish partnerships with audit firms, together with them they participate as co-executors in conducting audits, analyzing and evaluating the state of the audited organizations from a legal standpoint. Such services are called due diligence.
In international legal practice, the legal analysis of the history and condition of a commercial organization - a customer is called the phrase Due Diligence; such legal studies are carried out by law firms commissioned by organizations intending to make a major asset acquisition transaction, take part in an investment project, carry out a merger or takeover of another company (Mergers and acquisitions), etc.
There are law firms specializing in the conduct of cases of commercial organizations in arbitration and arbitration courts, dealing with tax issues, specializing in bankruptcy cases.
Foreign legal entities and individuals may also practice law on the territory of the Russian Federation. By virtue of what is stipulated in Art. 4 of the Federal Law of July 9, 1999 No. 160-FZ "On Foreign Investments in the Russian Federation" of the principle of the equal legal regime of activities of foreign investors with Russian residents - foreign lawyers have the right to use various forms and methods of organizing their activities in Russia: to participate together with Russian persons in the creation and operation of law firms as commercial organizations in the form of a business company, in the authorized capital of which there is a share of a foreign investor; create law firms in which all 100% of the authorized capital belongs to a foreign investor; open branches of law firms operating abroad.
Specialized legal organizations can also be created as non-profit organizations. To the main goals that can be set for a non-profit organization, in accordance with paragraph 2 of Art. 2 of the Federal Law of January 12, 1996 No. 7-FZ “On Non-Commercial Organizations” includes the protection of the rights and legitimate interests of citizens and organizations, the resolution of disputes and conflicts, and the provision of legal assistance. It follows that in cases where the founders of a legal organization do not set as their goal the extraction of profit and its distribution among themselves, the legal organization is established as a non-commercial one.
In cases where non-profit organizations provide paid legal services, their activities are entrepreneurial and are subject to legal norms establishing the mode of entrepreneurial activity. At the same time, the conditions for the operation of non-profit organizations differ from the conditions for the operation of law firms that are commercial organizations. Non-profit organizations, under certain circumstances, can enjoy tax benefits, pay for non-residential premises rented for office at reduced rates, and receive other assistance from regional bodies and municipalities. For example, by virtue of Art. 333.37 of the Tax Code of the Russian Federation, benefits for the payment of state fees in cases considered in arbitration courts are provided to public organizations of the disabled.
Close in content to the activities of law firms serving commercial structures is the activity of audit and consulting organizations. Many specialized firms, whose main activity is the provision of audit and consulting services, create legal divisions that are entrusted with the tasks of legal services to clients. In such organizations, the provision of legal services becomes one of the areas that complement the leading areas of activity: audit, consulting, marketing, monitoring, engineering, and contribute to their effective implementation.
Interaction of specialists in accounting, taxation and finance with lawyers within one organization provides a high level of both audit and consulting and legal services.
Law firms are taxpayers and payers of mandatory payments to off-budget social funds. Small law firms, like other small businesses, can apply a special tax regime - a simplified taxation system.
Internal relations in law firms can be organized on the principle of joint conduct of legal business. This means that the lawyers who founded a law firm are not only its founders (shareholders, participants), but also deal with a specific practical work as executors of orders and instructions accepted by the firm under contracts with clients. In world practice, such relationships within the company are usually called partnerships, and the participants in the company, who are at the same time direct executors, are called partners.
The partners bear the risk of possible adverse consequences of the company's activities, the costs of maintaining the company are distributed among them, they are paid dividends from the profits received by the company. Partners jointly manage the affairs of the firm; The sole executive body of the firm is, as a rule, one of the lawyers-participants (managing partner), who is elected for a period stipulated by the firm's charter.
Lawyers hired by the law firm under a contract are given the opportunity to join the number of partner participants over time. The main condition for the realization of this opportunity is an impeccable reliable work in the company for a number of years. The procedure for joining the company is regulated by constituent documents and local acts of law firms.
2.3 Individual practitioners
The provision by citizens of legal services to other persons systematically and for a fee is, in accordance with Part 3, Clause 1, Art. 2 of the Civil Code of the Russian Federation entrepreneurial activity. Engaging in entrepreneurial activity without forming a legal entity is possible only subject to state registration of a citizen as an individual entrepreneur (clause 1, article 23 of the Civil Code of the Russian Federation). This fully applies to individual practicing lawyers.
The systematic provision of paid legal services to citizens and organizations by an individual practicing lawyer without state registration as an individual entrepreneur is an offense and certain conditions may entail administrative liability under Art. 14.1 of the Code of Administrative Offenses of the Russian Federation or even the criminal liability of a lawyer under Art. 171 of the Criminal Code of the Russian Federation "Illegal business".
The legal form of cooperation between two or more individual practicing lawyers is a simple partnership agreement, which allows lawyers to work together without forming a legal entity. In order to individualize a simple partnership, lawyers have the right to use any name or designation that can be registered as a service mark in the name of one or more or all participants in a simple partnership agreement.
In cases where, according to a simple partnership agreement, agreements with clients are concluded separately by each participant-lawyer on their own behalf, a simple partnership may be unspoken, i.e. its existence is not disclosed to clients and all third parties. Nevertheless, in such cases, as established in paragraph 3 of Art. 1054 of the Civil Code of the Russian Federation, "in relations between partners, obligations arising in the course of their joint activities are considered general."
A sole practitioner's source of income is the fees paid to him by his clients.
2.4 Notaries
The notary is called upon to ensure the protection of the rights and legitimate interests of citizens and legal entities by performing by notaries the notarial actions provided for by legislative acts on behalf of the Russian Federation (Article 1 of the Fundamentals of Legislation on Notaries).
Notarial acts are quite diverse; they are listed in Art. 35 Fundamentals of legislation on notaries for notaries engaged in private practice, and additionally in Art. 36 - for notaries working in state notary offices.
The significance of the notary lies in the fact that the notarial actions performed by the notary are, in essence, documentary evidence of various circumstances and facts that entail legal consequences. By virtue of the powers vested in the notary by law, the notarial certification of a legal fact puts it in a certain written form, confirms its legitimacy and thereby ensures the recognition of this fact by the interested, and all third parties. In cases of disputes, notarial certification of facts and documents contributes to the protection of violated or disputed rights by a participant in civil circulation.
Among a wide range of various notarial actions, one can single out the most typical and often performed in relation to entrepreneurs: certification of documents submitted to state authorities, certification of transactions and contracts, issuance of an executive inscription, protest of a bill.
Notarial certification of transactions and contracts is of great practical importance for an entrepreneur, since it provides additional guarantees for the legality and validity of transactions. This is especially important when establishing contacts, concluding agreements with counterparties with whom we have not yet had to cooperate, making transactions for large amounts or regarding expensive objects.
Enforcement of an obligation can be carried out not only in a judicial proceeding, but also on the basis of an executive inscription of a notary. The list of documents for which debt collection is carried out in an indisputable manner on the basis of executive inscriptions of bodies performing notarial acts is established by the Government of the Russian Federation. However, a notarial inscription does not always ensure the legitimacy of the enforcement of obligations without a trial. Especially a lot of disputes arise in such an area of entrepreneurial activity as credit and settlement legal relations. Therefore, by Decree of the Government of the Russian Federation of June 19, 1996 No. 710, changes were made to the specified List by the document, and an executive inscription for collecting debts on grounds arising from credit and settlement relations cannot currently be issued by notaries.
It is necessary to support the opinions expressed in the literature about the need to significantly narrow the list of documents on the basis of which a notarial executive inscription is made: instead of an executive inscription, debt collection proceedings should be developed in indisputable cases on the basis of a court order; the competence of notaries should have left the clarification of the executive inscription on debt collection only for transactions certified by the notaries themselves - “in this case, the rules for making and executing notarial transactions would make it possible to preserve the guarantees of the parties in the course of debt collection” .
In the field of business legal relations related to the use of bills of exchange and promissory notes, the competence of a notary is to certify the refusal of a person obligated under a bill to pay, accept or date a bill. This notarial action is called a protest of a bill. A promissory note protest provides the promissory note holder with a reason to file claims for payment on a promissory note not only against the main debtors: the acceptor of a bill of exchange and the drawer of a promissory note, but also against persons secondarily obligated under the promissory note - endorsers. The procedure for protesting a bill of exchange is regulated by the Regulations on a transferable and promissory note dated August 7, 1937, which is applied on the territory of the Russian Federation in accordance with Federal Law No. 48-FZ dated March 11, 1997 "On a transferable and promissory note".
A notarial protest may also be used to certify the payer's refusal to pay for a check used as a form of non-cash payments and recognized as one of the types of securities. If the refusal is protested, the check holder in accordance with paragraph 1 of Art. 885 of the Civil Code of the Russian Federation "has the right, at its choice, to bring a claim against one, several or all persons liable for a check (drawer, availists, endorsers), who are jointly and severally liable to him."
Notaries can also provide entrepreneurs with other legal services, in particular draft contracts and contractual documents.
When appointing a notary, the length of service in the specialty is taken into account: a prerequisite for appointing a lawyer to the position of a notary is an internship in a state notary's office or with a notary engaged in private practice. By general rule the period of internship must be at least one year, however, as indicated in Part 2 of Art. 2 of the Fundamentals of Legislation on Notaries, the period of internship for persons who have at least three years of experience in the legal profession may be reduced by a joint decision of the body of justice and the notarial chamber, but even in this case, the duration of the internship of a lawyer with a notary cannot be less than six months.
Notarial activity is one of the licensed ones. Licenses for the right to notarial activities are issued in the constituent entities of the Russian Federation by justice bodies to citizens who have a higher legal education, who have completed an internship at a state notary's office or with a notary engaged in private practice, and who have successfully passed the qualification exam. The period of validity of the license for the right to notarial activities is not limited by the Fundamentals of Legislation on Notaries.
Upon taking office, notaries take an oath to the state) (Article 14 of the Fundamentals of Legislation on Notaries).
Notarial activities do not pursue the goal of making a profit and therefore are not entrepreneurial (part 6 of article 1 of the Fundamentals of Legislation on Notaries).
3. Legal service in commercial organizations
3.1 Legal service as structural subdivision commercial organization
The current legislation does not regulate the internal structure of legal entities. Organizations themselves have the right to determine their own structure - both production and administrative and managerial. Therefore, the question of creating your own legal service depends entirely on the organization itself. With a large amount of legal work, the presence of a full-time legal service is more preferable than service on a contractual basis by third-party lawyers.
There is currently no general legal regulation of the organization and activities of a full-time legal service. Adopted in the Soviet period, the General Regulations on the legal department (bureau), chief (senior) legal adviser, legal adviser of the ministry, department, organization, institution, approved by the Decree of the Council of Ministers of the USSR of June 22, 1972 No. 467, is practically not applied in Russia. The model regulation on the legal service of the federal executive body, approved by Decree of the Government of the Russian Federation of April 2, 2002 No. 207, is not designed for commercial organizations. So commercial organizations themselves determine the local legal status of their in-house lawyers.
The legal service may be represented by a single lawyer, or may consist of several full-time lawyers. As a rule, the legal service is formed as an internal structural unit of the administrative and managerial apparatus of the organization. In most commercial organizations, the legal service is called a legal bureau or legal department, in large organizations with more than ten full-time lawyers - a legal department, directorate, department.
The position of the head of the legal service is named in accordance with the name of the unit: head of the legal bureau, department, department; director of the legal department. Sometimes the head of the legal service is at the same time the deputy for legal issues of the general director or other sole executive body of the organization or is included in the composition of the collegial executive body: board, directorate.
According to the current Qualification Directory for the positions of managers, specialists and other employees, approved by the Decree of the Ministry of Labor of Russia dated August 21, 1998 No. 37, full-time lawyers of organizations are officially referred to as legal advisers. Since in-house lawyers have to devote a lot of attention to the internal corporate issues of their organization, in commercial practice, in-house lawyers are commonly referred to as corporate lawyers.
The official position and remuneration of lawyers, as well as other full-time specialists and employees, depend on their qualifications and work experience. For those working in organizations financed from the state budget, wage categories and categories of specialists and employees are established.
Taking into account the main areas of legal work in an organization, various specialized divisions can be formed within the legal service: contractual legal, claim, reclamation bureaus, departments.
As a rule, the legal service reports directly to the first person - the head of the organization: director, general director, chairman of the board, etc., which ensures the independence of the legal service from other administrative and management units of the organization.
3.2 Responsibilities of the Organization's Legal Adviser
The duties of the head of the legal service and, accordingly, the legal adviser of the organization are listed in the Qualification Handbook. Summing them up by areas, we can distinguish two main groups of functional duties of full-time lawyers:
Responsibilities for legal support of internal organizational and managerial (administrative, corporate, production and technological, labor) relations;
Responsibilities for the legal support of the external relations of the organization, i.e. its relations with partners, contractors, state and municipal bodies of representative and executive power, and other persons.
The legal support of internal relations also includes such functional duties of legal advisers as:
Participation in the preparation of local acts adopted by the bodies of the organization;
Advising employees of administrative and managerial personnel on legal issues;
Systematization of legislation and judicial and arbitration practice, selection of legal literature.
Legal advisers do not always act as drafters of local acts. It depends on the procedure for the preparation, approval and adoption of local acts established in the organization. As a rule, draft local documents are prepared in the organization by interested departments, and the legal adviser is assigned the role of an expert who must evaluate the project in terms of its compliance with its legislation and, if necessary, make adjustments. The legal adviser wraps the content of the document in legally competent formulations, supplements it with references to specific legal norms. A visa of a legal adviser on a draft local document means that the document complies with the law. For this compliance, if, of course, the document is endorsed by a legal adviser, he bears official (disciplinary) responsibility.
One cannot but agree that the main part of the working time of a legal adviser is spent on checking, preparing and processing various kinds of documents. Therefore, a legal adviser must be able to draw up a variety of documents: charters, regulations, instructions, contracts, orders, acts, protocols, claims, lawsuits, etc. It is necessary to develop the ability to work with documents in the process of studying at a law school.
The legal service pays special attention to the constituent documents of the organization. They should be developed on the basis of laws that determine the legal status of organizations of this type. At the same time, it is necessary to take into account the changes and additions made to legislative acts, and immediately bring the constituent documents in line with them.
The legal support of the external relations of the organization includes the following functional duties of legal advisers:
Represent the interests of the organization in relations with third parties;
Participate in the work on the conclusion, amendment and termination of contracts;
Represent the interests of the organization when considering disputes in court, arbitration court, arbitration courts.
In relations with third parties, the legal adviser ensures the implementation of the rights of his organization, the protection of its interests. The legal adviser performs his functions by working out the legal issues of bilateral or multilateral relations, participating in meetings and negotiations, entering into business contacts with colleagues - lawyers of partners and counterparties, substantiating his recommendations on the application of legal forms that most adequately reflect the interests of the organization.
The powers of a legal adviser acting as a representative of the organization are fixed in a power of attorney signed by the head of the organization. As a rule, a legal adviser is issued a special power of attorney with a certain set of powers: to represent the interests of the organization in relations with all third parties, to conduct the affairs of the organization in court, to exercise procedural powers (usually with the exception of such powers as admitting a claim or, conversely, refusing a claim, signing amicable agreement and subordination). A special power of attorney is issued with a validity period of up to three years, more often - for one year. A one-time power of attorney may also be issued to the legal adviser for the performance of certain assignments.
Contractual legal work covers the entire process of the organization's participation in legal relations with its counterparties, starting with pre-contractual contacts and concluding an agreement and ending with the moment of termination of contractual obligations. Regardless of which party submitted the draft agreement and which department of the organization prepared it, it is the responsibility of the legal adviser to work out the content of the agreement. The legal adviser must ensure, firstly, the full compliance of the concluded contract with the requirements of legal norms and, secondly, the reflection in the contract of the interests of his organization.
For many types of civil law contracts, there are draft exemplary contracts published in the press. The legal service maintains a register of contracts concluded by the organization, creates a computer database “Accounting for concluded contracts”. The accounting system records amendments and additions to contracts, fulfillment and termination of contractual obligations, prolongation of the contract for a new calendar period.
In case of disputes with partners, contractors or other third parties, the legal service takes measures to resolve disagreements, pre-trial resolution of the conflict. If it is not possible to overcome disagreements without a trial, the legal service prepares to conduct the case in court.
The range of functional responsibilities of the full-time legal service is fixed in the local corporate (regulatory) documents of the organization: the regulation on the legal service and job descriptions legal advisers. When hiring a lawyer to work in an organization, it is concluded with him labor contract, in which his official duties, subordination, the size of the monthly salary, the system of remuneration should be fixed.
4. Contracts for legal services and provision of legal services
4.1 Qualification of contracts for the provision of legal services
The provision of legal services, as well as other various services, can be mediated by civil law contracts of several types: work contracts, paid services, commissions, commissions, agency services, as well as mixed contracts.
The legislator does not draw hard insurmountable boundaries between various contractual types that mediate the provision of services and the performance of work. This gives lawyers the opportunity, based on the principle of freedom of contract, provided for in Art. 421 of the Civil Code of the Russian Federation, apply the contractual type that most adequately reflects the features of the obligations assumed.
For example, a client turns to a lawyer with a request to take his case to court. Having accepted the assignment, the lawyer will be forced to carry out some work to study the case materials, collect evidence, search for regulatory legal acts, prepare for participation in the court session, and draw up procedural documents. In addition, the lawyer will have to advise the client on all legal issues related to the trial, give him a report on the work done. It would be possible to recognize such a contract as a mixed one, which is allowed by law as a special contractual legal structure (clause 3, article 421 of the Civil Code of the Russian Federation). In the above example, the content of the contract contains elements of work contracts and assignments.
However, there is no particular need to use the structure of a mixed contract, since the institution of a paid services contract (Chapter 39 of the Civil Code of the Russian Federation) is built by the legislator so flexibly that it covers all possible nuances of the relationship between the client and the legal service provider. The provision of legal services may be accompanied by the appearance of any embodied results of the actions of the executing lawyer, but since the main thing in relations between the client and the lawyer is not the form, but the content of the service - consulting, information, representative services, etc., insofar as the condition of the investment agreement services in the form of any written document does not change the qualification of the agreement between a lawyer and his client as a contract for the provision of paid legal services.
In addition to the contract for the provision of services, other types of contracts can be applied. For example, some law firms specialize in the sale of foreclosed debtor property or the collection of the property awarded and its transfer to the recovering client. Such obligations of law firms can be formalized either by a commission agreement or an agency agreement. In cases where a lawyer or law firm assumes obligations for commercial representation (Article 184 of the Civil Code), an agency agreement can be concluded with a client.
It is significant that in the original version of paragraph 2 of Art. 25 of the Law on the Bar, it was stated that the relationship between a lawyer and a principal is formalized by contracts of agency and paid services. Subsequently, the Federal Law of December 20, 2004 No. 163-FZ "On Amendments to the Federal Law "On Advocacy and the Bar in the Russian Federation"" recognized this provision as invalid, and now the qualification of contracts concluded by lawyers with their clients, in The Law on Advocacy does not contain.
4.2 Types of contracts concluded by lawyers with clients
Taking into account the specifics of the subject of the contract, the following types of contract for the provision of legal services for compensation used in legal practice can be distinguished:
1) a contract for the provision of legal services, which are of a one-time or episodic nature. Since the legal relationship between a lawyer and a client under a contract does not go beyond a single action, such services and contracts could be called discrete;
2) a contract, the subject of which makes it necessary for a lawyer to perform a number of different actions in the interests of the client, for example, contracts for the conduct of cases in court. Since the main point for the client under these contracts is to achieve a certain legal result, or, in other words, the goal set, such services and contracts that mediate them could be called targeted;
3) an agreement for comprehensive legal services for a client. Under this agreement, the executing lawyer assumes obligations that, in terms of responsibilities, cover all the functional duties that are usually performed by the full-time legal service in those organizations in which it is formed. Bearing in mind that clients served on a permanent contractual basis are usually called subscribers, contracts for comprehensive legal services could be called subscription contracts.
For example, a lawyer's office, on behalf of the bar association, entered into a legal service agreement with an association that united 11 small publishing firms. None of these publishing houses had full-time legal advisers. The lawyers of the consultation, who were instructed to serve the publishing houses that were members of the association, had to draw up contracts for the use of works, act in court to protect the interests of publishers in their disputes with authors, printing houses, and tax authorities. Gradually contract lawyers became experts in copyright and publishing law.
The subject of the contract is the action or set of actions that the performer undertakes to perform on the instructions of the client. In discrete contracts, this can be one or more one-time actions that complete the provision of services: consultation, drawing up a document, giving an expert opinion. In target and subscription agreements, this is the activity of the performer, which consists of his individual actions.
Other conditions of the contract depend on the subject: the terms of execution, the amount of remuneration, the procedure for its payment.
In cases where it is difficult or impossible to determine the deadline for completing an order when concluding a contract, it is advisable to break the estimated time period into stages and first conclude an agreement for the first stage, followed by its prolongation or renegotiation, i.e., the conclusion of a new contract for the next stage or stages.
Taking into account the uncertainty of the prospects of the case at the time of concluding an agreement with a client, it is most expedient to limit the scope of work to the first stage - from preparing and filing a claim to the court making a decision on the merits of the dispute and its entry into force. In this case, the subject of the contract will cover the work of a lawyer only in the first and appeal instances of the arbitration court.
In the event that the decision will be reviewed after it has entered into force, i.e. in a cassation or supervisory procedure, a clause can be made in the contract with the client that the working conditions of the contractor in the subsequent phases of the judicial and arbitration proceedings will be agreed upon additionally. The legal form of such coordination may be an additional agreement to an already concluded and valid agreement or a new agreement, the subject of which will cover the work of a lawyer in the conduct of the same case in higher instances of the arbitration court.
In all those cases when the executing lawyer has new obligations or the conditions for the execution of the assignment change, changes or additions to the contract should be made by concluding an additional agreement.
Like other professional participants in market relations, practicing lawyers themselves develop drafts of various options for contracts for the provision of legal services. The repeated practice leads to the fact that the content of various contractual options becomes standard, and the contracts themselves can be qualified in accordance with the rules of Art. 428 of the Civil Code of the Russian Federation as accession agreements. Specifying the terms of the concluded contract, taking into account the specifics of the order, as a rule, concerns the subject of the contract, the timing of the fulfillment of the obligation and payment for services. The rest of the terms of standard contracts, such as confidentiality, liability of the parties, the procedure for settling disputes, remain unchanged in most cases.
In cases where the contract is concluded on behalf of a law firm, the contract or a special appendix to it may indicate the specific lawyer who will work directly with the client-customer. Usually he is called the responsible executor. The person of the responsible executor is agreed with the client-customer. The agreement on the appointment of the responsible executor is signed by the general director of the law firm, the client-customer and the responsible executor himself.
Law firms and bar associations keep records of contracts concluded with clients. The accounting system reflects the main stages of the fulfillment of a contractual obligation, and its termination is recorded.
4.4 Legal fees
According to paragraph 1 of Art. 781 of the Civil Code of the Russian Federation "the customer is obliged to pay for the services rendered to him on time and in the manner specified in the contract for the provision of services for compensation." This implies, firstly, that the amount of remuneration and the procedure for its payment are among the essential terms of the contract for the provision of services for compensation and must be provided for in the contract. Secondly, the amount of remuneration is determined by the agreement of the parties.
When setting prices for legal services, lawyers-service providers take into account the volume of their labor costs for fulfilling orders, overhead costs, the percentage of profitability included in the estimate (financial plan) for the maintenance of a consultation or a law firm. However, the level of payment for legal services is greatly influenced by market circumstances and essential factors.
Market conditions, i.e. the ratio of supply and demand in this market segment, and the competition of professional service providers among themselves lead to the fact that prices are set on the market, which, in the language of the legislator (clause 3 of article 424 of the Civil Code of the Russian Federation), "under comparable circumstances generally charged for similar services." It is these market prices, known from advertising and other available information, that potential customers who choose a service provider are guided by. Taking into account the market, the fees for their services are also set by the executing lawyers.
However, the peculiarities of pricing in the legal services market include the fact that legal services are much less susceptible to typing and standardization than many other types of services (audit, information, appraisal, recruiting, travel, etc.). Almost any legal task that the customer sets before the legal executor has unique individual characteristics. Therefore, legal services in their essence are individual and unique.
These reasons determine the inexpediency of normative regulation of fees for legal services. The previous price lists of the justice authorities have not been used for a long time due to their complete archaism, and local documents adopted by the bar associations are advisory in nature and are not mandatory for lawyers' consultations and lawyers.
Depending on the nature of the tasks assigned to the lawyer, various systems of payment for legal services are used. The most common are the following options: one-time in a fixed amount of money, time-based (hourly, daily, monthly, staged) payment, taking into account the final result.
A one-time payment in a fixed amount of money is used in the provision of discrete services that take a short period of time and are expressed in a set of specific actions necessary to achieve a given result: preparation of constituent documents and ensuring state registration of new legal entities; documenting issue of securities and provision of state registration of the issue and report on the results of placement of securities; drawing up contracts and other documents, writing expert opinions.
Time-based hourly payment is applied in consultation, as well as in all cases where the amount of work performed by a lawyer to provide a service is most accurately expressed in hours: for example, payment for participating in negotiations, meetings as a legal adviser or consultant, for preparing information on legislation , for participating as a speaker in a paid seminar or other educational event.
Time-based daily (daily) pay is less common than fixed-currency and time-based hourly pay. This system is used mainly in cases where it is advisable to measure the volume of work performed in working days. On weekdays, for example, work is paid for the provision of such legal services as legal audit (due diligence) of the customer's business activities; taking into account the number of court sessions on the case (court days), the amount of remuneration for conducting the case in court may be determined.
Time-based step-by-step payment is used in cases of long-term work of the contractor with the client, for example, in relations for comprehensive legal services for commercial organizations and individual entrepreneurs on the basis of subscription agreements. As a paid period, as a rule, either a month or a quarter (three months) is taken, although payment periods can be longer (four months, half a year) or, conversely, shorter (half a month, a decade).
Each wage system has its own characteristics. For example, pay-by-time options require implementing lawyers to maintain strict records and timekeeping of all work performed for the client, and the client-client should have the right to exercise control over this accounting by reviewing the reports of the contractor and invoices issued for payment. Time-based payment encourages clients-customers to save the time of executing lawyers.
Payment for the services of lawyers in conducting civil and criminal cases in court has the greatest specificity. It is impossible to foresee how the case will turn out in court. Therefore, it is impossible to calculate and estimate in advance the amount of work that lawyers will have to perform in the conduct of a case. In practice, various options for the system of payment for conducting cases in court are used: payment in a fixed amount of money, payment for each day of the court session, payment for the final result, etc. typical for civil cases in courts of general jurisdiction), time-based monthly payment can also be applied.
In cases where the work of a lawyer in litigation is paid according to the final result and the so-called “success fee” is paid, the question arises of the legality of such a system of payment. Is it possible to make the payment of a lawyer's services dependent on the outcome of a court case? Well-known Russian lawyer G.M. Reznik states: “It is strictly forbidden to carry out paktum de quota litis, i.e., an agreement with a client, on the basis of which the fee is made dependent on the results of the case, excluding property disputes, where there is a claim value. (Of course, this does not prevent the client, satisfied with the result, from additionally thanking the lawyer, but this is solely of his own free will.) ".
With the categorical judgments of the respected G.M. Reznik can only agree on the payment for the services of a lawyer in criminal cases. Determining the amount of a lawyer's fee, taking into account the court's verdict, deforms the relationship between a lawyer and his client, distorts the functions of legal protection, and exaggerates the role of a lawyer in the process. The situation is different in civil proceedings. This is obviously acknowledged by G.M. Reznik, making a reservation about property disputes, where there is a claim price.
In property disputes, where there is a claim value, in relations between practicing lawyers and clientele, it has become a practice to determine the amount of remuneration to the performer as a percentage of the amount recovered in court - for the representative of the plaintiff or, conversely, to the amount denied by the court decision in recovery - for representatives defendant. Such a payment system has always seemed quite acceptable and consistent with popular beliefs regarding the laws of a market economy: a lawyer is paid a part of the amount that an entrepreneur, thanks to a lawyer, recovered from his faulty counterparty (in the opposite situation, he saved thanks to a lawyer). But the “success fee” can also be provided for other categories of cases, for example, claims for recognition of ownership of real estate, applications for contesting acts of state bodies, etc.
The Supreme Arbitration Court of the Russian Federation reacted extremely negatively to the option of paying for legal services according to the final result. The above information letter dated September 29, 1999 No. 48 “On some issues of judicial practice arising in the consideration of disputes related to contracts for the provision of legal services” states: “... the contractor’s claim for payment of remuneration is not subject to satisfaction if this the plaintiff's claim is substantiated by the terms of the contract, making the amount of payment for services dependent on the decision of the court or state body, which will be adopted in the future. And further: “In this case, the amount of remuneration should be determined in the manner prescribed by Article 424 of the Civil Code of the Russian Federation, taking into account the actions (activities) actually performed by the performer.”
A similar position is taken by the Constitutional Court of the Russian Federation, which considered the issue of "success fee" in conjunction with the issue of compliance with the Constitution of the Russian Federation of the provisions of Art. 779 (n. 1) and 781 (n. I) ch. 39 of the Civil Code of the Russian Federation. In the aforementioned decision of January 23, 2007 No. 1-P on the case of checking the constitutionality of the provisions of paragraph I of Article 779 and paragraph 1 of Article 781 of the Civil Code of the Russian Federation, the Constitutional Court of the Russian Federation drew attention to the fact that public principles play an important role in the nature of relations for the provision of legal assistance which are due to the fact that “arising in connection with the realization of the right to judicial protection, they proceed in conjunction with the functioning of the institutions of the judiciary. Accordingly, the right to receive qualified legal assistance, acting as a guarantee of the protection of rights, freedoms and legitimate interests, is at the same time one of the prerequisites for the proper administration of justice, ensuring its adversarial nature and equality of the parties (Article 123, Part 3, of the Constitution of the Russian Federation).”
In the event of a dispute between the contractor and the customer, the amount of remuneration will be established by the court based not on the terms of the agreement, but on the prices and tariffs prevailing in the legal services market. If, under the terms of the agreement with the client, the lawyer is entitled to additional remuneration as a result of the court resolution of the dispute, it should not be paid, since the amount of payment for services is made dependent on the decision of the court in the agreement.
4.5 Responsibility of the parties under the contract for the provision of legal services
The most significant deformations of the contractual obligation for the provision of services for compensation that may occur are the impossibility of performance and the unilateral refusal to perform. The consequences of these violations are provided for by the rules of Ch. 39 of the Civil Code of the Russian Federation. And in Art. 781 only two out of three abstractly possible situations of impossibility of execution are named: 1) the impossibility of execution arose due to circumstances for which neither party is responsible; 2) the impossibility of performance arose due to the fault of the customer. The third option - the impossibility of performance arose through the fault of the performer - in Art. 781 of the Civil Code of the Russian Federation is not provided; therefore, in this case, the general provisions on liability for breach of obligations apply: the contractor is obliged to compensate the client for all losses incurred as a result of this.
As set out in Art. 783 of the Civil Code of the Russian Federation, the subsidiary application of the general provisions on the contract (Article 702-729) and the provisions on household contracting (Article 730-739) is allowed for relations for the provision of services for a fee, if this does not contradict the special rules on the provision of services (Article 779). -782) and features of the subject of the contract for the provision of services for compensation. But if we turn to the rules providing for the responsibility of the parties to a work contract and a household contract (Articles 714, 715, 719, 723 and, respectively, Articles 732, 737, 739), then we will identify in them any special regulatory sanctions that could be applied to the parties to the contract for the provision of services is very difficult, at least not indisputably. So there are no sanctions for improper fulfillment of the obligation to provide services for compensation in the norms of the Civil Code of the Russian Federation.
Therefore, sanctions for violation of the terms of the contract must be provided for in the contract itself.
The structure of contractual sanctions is predetermined by the specifics of the contract for the provision of legal services for compensation, more precisely, by the features of its subject matter. As mentioned above, the subject of the contract is reduced to the actions of the contractor, which he must perform in order to fulfill the task of the customer. The main thing for the customer is that the contractor performs the actions that are necessary to achieve the result. The main thing for the contractor is that the customer pays for the services rendered. If the contract provides for the deadlines for the fulfillment of the mutual obligations of the parties, then it is advisable to provide for a penalty in the form of a percentage penalty for violation of these deadlines, for example, to the price of the contract for each day of delay without limiting the total amount of the penalty.
The penalty, no matter how high its size, is not always effective tool, encouraging the customer to properly fulfill the obligations to pay for the services of the contractor. In addition to the forfeit, in the practice of concluding contracts for the provision of legal services, other methods of securing obligations are also used, for example, a bank guarantee, a pledge of any valuables, a guarantee, a deposit. The non-inclusion in the contract of methods of security leads to the fact that lawyers-executors often have to apply to the arbitration court in order to receive the remuneration due.
In turn, an effective means of influencing an unscrupulous contractor is the possibility of a unilateral withdrawal of the client from the contract. As provided in paragraph 1 of Art. 782 of the Civil Code of the Russian Federation, in case of refusal to fulfill the contract, the customer is obliged to compensate the contractor for the expenses actually incurred by him, but is not obliged to pay the cost of services under the contract. Such possible consequences do not suit the service providers who are interested in receiving the contractual remuneration in full. Therefore, even if the contract does not provide for any sanctions in relation to the contractor, the performers always have incentives for the proper performance of their obligations. Positive incentive - remuneration for services rendered; negative - losses of the customer, which will have to be compensated for improper performance of the obligation.
Conclusion
In recent years, the demand for legal services has noticeably increased in the country. This is connected with all the Great Changes that have taken place in our country lately. A significant change was the introduction of market relations in social and economic life. This change has had a major impact on legal aid. With the emergence and development of market relations, many new private property and civil relations appeared, which were regulated by law, respectively, the participants in these relations needed help in explaining this legislation to them. On the other hand, all legislation in just a few years was radically changed or at least partially edited. government bodies different levels, and already every citizen needed legal assistance under the new, still unfamiliar and incomprehensible legislation. The state system of legal services has ceased to cope with the needs of new market relations in society. This contributed to the emergence of commercial structures, the main or auxiliary function of which was the provision of various legal services to organizations and citizens. Some entrepreneurial lawyers have also begun to engage in private business in this field. The legal services market has become more efficient and diverse. It has become profitable and popular, and now it is already an integral part of our lives. Appeared great amount new forms of organization of legal assistance, and this is due not only to changes in the state system, but also to technical innovations. For example, law firms have appeared that are engaged in the systematization and publication of the regulatory framework on computer media, publication and the opportunity to assist in the search for the necessary regulatory legal act on the Global Internet, etc. Rapidly bursting into our lives, legal assistance, and in particular paid legal services, immediately became a familiar and even self-evident phenomenon.
In fact, all new forms of legal assistance could not but arise in the new conditions, since there was a niche for them, and they were in demand by the population.
It's no secret that a lot has changed in Russia over the past ten years. For better or for worse, it's not up to me and not all of us to decide. However, we can still say with certainty about some things. I believe that, despite all the current shortcomings of legal assistance (legislative and theoretical imperfection), now it is a much more progressive and democratic type of legal assistance than it was before, under Soviet rule. Even now it does not work as well as it did then, because this is a matter of time, and not a question of backwardness or anti-democratic ideas. The very fact that, for the first time in many years, law firms were allowed to be set up on a commercial basis to help people in need, that firms were allowed to represent these people in court, that lawyers who did not want to join bar associations were allowed to form their own - all this cannot be regarded in any other way than progress, movement forward, towards a better and perfect arrangement of the state and society, organizations and communities, towards the full feasibility of unshakable democratic principles: freedom, equality of people, inviolability of the individual, justice!..
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