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CONTRACTUAL FREEDOM IN APPLYING OF THE CONSEQUENCES OF ITS INVALIDITY: SEARCH FOR AN ACCEPTABLE PROCEDURAL FORM

THE FUTURE OF CIVIL PROCEDURE


V.A. GONCHAROVA

V.A. GONCHAROVA,
Postgraduate Student of the Department of Civil Law of the Law Institute
of Tomsk National Research State University

DOI: 10.24031/2226-0781-2019-9-5-205-229

One of the most important innovations of the civil law reform (2015) is the creation of
special legal rules about the consequences of invalidity of contract between the persons
conducting entrepreneurial activity (Paragraph 3, Article 431.1 of the Civil Code of the
Russian Federation). Despite positive view in Russian legal doctrine on this rule, the author
comes to conclusion that its content is inconsistent with both the economical nature of
invalid bargains (in terms of possibility of application of «other» consequences) and
actual civil and arbitration procedure (in terms of possibility of making agreement after
the rescission of contract). In this regard new wording of Paragraph 3, Article 431.1 of
the Civil Code of the Russian Federation in proposed in this article. According to a new
wording persons shall have the right to make a contract about the procedure of discharging
the obligations arising from a contract between them, but later invalidated. At the same
time, the settlement agreement (Article 173 of the Civil Procedure Code of the Russian
Federation, Chapter 15 of the Arbitration Procedure Code of the Russian Federation) is the
most acceptable procedural form of this contract. This settlement agreement is provided by
the parties to the court when it tries a case about invalid bargain and about the application
of the consequences of its invalidity. This settlement agreement can be approved by the
court decision about the invalidity of the bargain. The court decision is confirmed by the
ruling of the court.

Keywords: settlement agreement; consequences of invalid bargain; invalid bargain;
binding court decisions; optionality; freedom of contract; procedural form; enforcement
proceedings.

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Information about the author

Goncharova V.A. (Tomsk, Russia) – Postgraduate Student of the Department of
Civil Law of the Law Institute of Tomsk National Research State University (8 Moskovsky
trakt, Tomsk, 634050, Russia; e-mail: valeria.goncharova.93@bk.ru).

Recommended citation

Goncharova V.A. Contractual Freedom in Applying of the Consequences of Its Invalidity:
Search for an Acceptable Procedural Form. Herald of Civil Procedure, 2019, vol. 9,
no. 5, p. 205–229. (In Russian) https://doi.org/10.24031/2226-0781-2019-9-5-205-229

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