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“Dispositive and imperative regulation of contracts: analysis of legislation, doctrine and judicial practice (on the example of (non -) recognition of contractual terms as null and void)” — article by Tatyana Tereshchenko and Alexander Sergeev

Imperative regulation of private relations: the state of the problem

The Civil Code of the Russian Federation (hereinafter referred to as the CC RF) contains a fairly concise definition of the mandatory norm. So, in paragraph 1 of Article 422 of the CC RF, it is stated that the contract must comply with the rules mandatory for the parties, established by law and other legal acts (mandatory norms) in force at the time of its conclusion. Peculiarities of the effect of peremptory norms specified in paragraph 4 of article 421 of the civil code, according to which the terms of the contract at the discretion of the parties, except for cases when the content of the relevant conditions prescribed by law or other legal acts (article 422).

Cited articles in General allow us to conclude that mandatory rules are the limitation of the autonomy of will of the parties, including the principle of freedom of contract.

It can be added that civil legislation is based on the recognition of the equality of participants in the relations regulated by it, the inviolability of property, freedom of contract, the inadmissibility of arbitrary interference of anyone in private affairs, the need for unhindered exercise of civil rights, ensuring the restoration of violated rights, their judicial protection (paragraph 1 of paragraph 1 of Article 1 of the CC RF). Therefore, the imperative of the norm, like any prohibition, must be properly justified with the definition of the boundaries of its application. The above is confirmed by the fact that civil rights can be restricted on the basis of federal law and only to the extent necessary in order to protect the foundations of the constitutional system, morality, health, rights and legitimate interests of other persons, to ensure the defense of the country and the security of the state (paragraph 2 of paragraph 2 of Article 1 of the CC RF).

The imperativeness of a norm, like any prohibition, must be properly justified with the definition of the boundaries of its application.

However, there are no other substantive provisions in the CC RF that disclose the procedure for identifying mandatory norms in the regulation of private relations. This, of course, complicates the qualification in practice. It is also quite difficult to form a specific algorithm for identifying mandatory norms of civil legislation through the prism of the principles of private law without proper interpretation and specification. Of particular importance is not only the understanding that, by definition, there cannot be too many prohibitions in civil law, which is dispositive by nature, and the principle "everything that is not directly prohibited is possible" means that the presence or absence of a clause in the norm "unless otherwise ..." does not play a decisive role in answering the question whether the parties can change the rule or refuse it altogether (a dispositive norm).

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