discordant word, but important rule of civil and international law - restitution.What is it and how it is used - the theme of this article.
restitution in the legal system of the ancient Romans
well known that the modern Western legal system is based on Roman law.It was in Rome for the first time identified the area of private and public law.The civil right - it is the rules governing civil legal relationships entered into by the Romans, including as a result of transactions.Restitution in Roman law was used as the norm, allowing the praetor to return the state of affairs on the situation as it was prior to the transaction.For this contract was recognized invalid.The term is translated from Latin means "restoration", a return to the original state.Thus, the direct consequence of the invalidity of the transaction in Rome was restitution.What does this mean in practice?Pretor in exceptional cases could come to the conclusion that a done deal is not fair, so recognize it as invalid, and each party received what possessed her.
Russian civil law
restitution in the civil law of the Russian Federation has got some changes in its content.The Court recognizes the invalidity of the transaction and then enter into force on the consequences of its invalidity.Based on the fact that the conclusion of the transaction from the outset did not have legal grounds, each party must return their property.
If we are talking about providing services, works, they should be compensated for in monetary terms.Thus, two mechanisms allocate return of the property under the transaction, which is recognized as invalid.The first is called the conditional restitution of ownership.Under him, each party gets what property, which had before signing the contract.This regulation comes into force, even if one of the parties does not have rights to the property which has been transferred by contract.For example, thirteen teenager sold his father's bike.During the restitution of property shall be returned to him, though he is not the real owner.
second mechanism - a compensatory restitution.It is characterized by the monetary compensation for the works, services or use of property that occurred as a result of any legal relations.Also, this provision comes into force, if the property has been transferred to a third party or destroyed, ruined.
unilateral and bilateral restitution in the civil law of the Russian Federation
Civil Code distinguishes the following types of restitution: one-way and two-way.The latter is used in the event that each of the parties entering into a legal relationship had no malicious intent, yet the offense occurred, such as: failure to form state registration rules, going beyond the legal capacity of the legal entity or limiting the powers to conclude the transaction.On this basis, a bilateral restitution involves a return to each participant of the transaction of its original property or compensation.
In the case where any legal relations on the part of one of the participants took place malice and using threats, deception or violence, comes into play unilateral restitution.It suggests that their property or receive compensation for only the victim, conscientious side.Values belonging to another party, become the property of the state or the state receives compensation for them in monetary terms.
Additional property consequences of transactions invalid
In some cases, during the restitution of the court are appointed by the additional property consequences.To put it simply, they refer to compensation for the possible loss of profits or losses incurred in the course of the transaction one of the parties.For example, the property can be in the hands of the company for some time, otherwise it would be handed over to rent.So, this amount of lost profits may be required to compensate for the court.
In particular this applies to transactions made by minors or incapacitated, that due to objective circumstances, could not calculate all the financial losses by engaging in legal sale, rent and so on.But at the same position can count others quite capable person submitting the claim in court.
cases in which restitution is not
We found that restitution - a restoration of property rights or compensation in cases where the transaction is declared invalid.The law provides for situations in which in respect of one or both sides can not be carried out restitution.What are these circumstances?If the transaction is invalidated, but also proved that one or both of the subject of legal order and violated the legal foundations of morality deliberately, by force or other illegal means, the whole property or financial compensation transferred to the state.That is, property relations are eliminated, but one of the parties, and is that both lose the property or funds that were used in these ways.
Limitations of the rules in the Civil Code restitution
There are legal precedents relating to the invalidation of the transaction, the consequences of which have affected the interests of many other people, or even the whole society.Often they concern economic relationships of commercial entities.For example, there is the illegal sale of the company.If it is unlawful and that all other legal relations that arose from his participation, are illegal.Thus, there is a tangle of contradictions, which are the subjects of many other organizations with their private economic interests.In such situations, it does not provide for restitution, because it would violate the rights of other participants of legal relations.
Limitation application of restitution
law establishes a period during which the claimant is entitled to apply to court for invalidation of the transaction and of restitution.If the transaction is concluded with a violation of the law or infirm persons had imaginary character - it is called the void.In the ten years since the start of its execution can sue invalidation and application of the consequences of this, that is restitution.If the plaintiff seeks to deem a contested transaction invalid, as it was concluded by pressure or fraud, he must apply within one year after the cessation of pressure on him or detect fraud in the contract.Violation of the statute of limitations makes it impossible to consideration of civil cases in court.
law on restitution in Eastern Europe
in Eastern Europe after the fall of the socialist system is almost universally adopted laws that provide for restitution.What does this mean in practice?Priority is recognized by illegal deprivation of all property of citizens in the period from 1917 to 1945.This allows the entry into force of the property consequences of invalidation of the transaction.In the Baltic states, the Czech Republic and Hungary was a wave of mass return of property illegally taken away the descendants of the former owners.So, in Riga, many residents of the old apartment buildings was surprised to learn that they are living in someone else's property and must pay rent their apartments to new owners, or even completely move out.And no period of limitation here is not taken into account.In light of recent events in Ukraine, many lawyers are very apprehensive about the big wave of restitution in this country.
