DOI: 10.7256/2454-0706.2019.3.29071

Abstract: The object of this research is the bank guarantee within contract system. The subject is the quality of an independent bank guarantee in contract system used in the process of realization of the provisions of civil law and Law on the Contract System. Particular attention is given to the correlation between the norms of private and public law, as well as the characteristics of accessory nature of obligations and independent bank guarantee. The author analyzes case law and issues emerging in legal enforcement of the independent bank guarantee, as well as gives recommendations to public (municipal) procurers. The main conclusion lies in the fact that despite the extension of independent guarantee through introducing amendments to Clause 6 of the Chapter 23 of the Civil Code of the Russian Federation, absolutization of obligations of a guarantor is impossible. The author emphasizes the elements of ties between the guarantee and primary obligation, as well as concludes on its substantial manifestation within contract system.

DOI: 10.7256/2454-0706.2019.3.43220

Abstract: The object of this research is the bank guarantee within contract system. The subject is the quality of an independent bank guarantee in contract system used in the process of realization of the provisions of civil law and Law on the Contract System. Particular attention is given to the correlation between the norms of private and public law, as well as the characteristics of accessory nature of obligations and independent bank guarantee. The author analyzes case law and issues emerging in legal enforcement of the independent bank guarantee, as well as gives recommendations to public (municipal) procurers. The main conclusion lies in the fact that despite the extension of independent guarantee through introducing amendments to Clause 6 of the Chapter 23 of the Civil Code of the Russian Federation, absolutization of obligations of a guarantor is impossible. The author emphasizes the elements of ties between the guarantee and primary obligation, as well as concludes on its substantial manifestation within contract system.

DOI: 10.25136/2409-7136.2018.1.25136

Abstract: The article is devoted to the problem of realizing the rights of the creditor that is based on the requirement of the beneficiary to pay out money on a bank guarantee and forfeit if the principal obligation is violated. The author investigates the rules of law governing the procedure for securing contractual obligations with the help of penalty and bank guarantee as well as their correlation in the implementation of the claims of the creditor (beneficiary). In the author's opinion, the bank guarantee can not be a measure of property liability, therefore, it is a way of compensation for losses, and the amount collected at the request of the beneficiary can not be changed and depends on the amount of the penalty to be paid. The article also considers the problem of the impact of penalty and bank guarantee on the rights of the beneficiary to demand the fulfillment of the main obligation after satisfying the requirement under the bank guarantee. The scientific novelty of the research is that the author first identified the problem of the ratio of forfeit and bank guarantee in contractual obligations and their impact on the fate of the main obligation. The author comes to the conclusion about fundamentally different legal relations that arise when forfeit and bank guarantee are simultaneously used as well as the rights and obligations of the creditor (beneficiary) arising on their basis.