Regulatory legal regulation and provision legislative framework are part of the administrative method of regulation by the state and are not associated with the creation of an additional material incentive or the danger of financial damage. This regulation is based on force state power and includes measures of prohibition, permission and obligations. The legislative framework limits the freedom of economic choice of business entities.
There are many legal acts that regulate 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 free of charge.” For example, Art. 41 paragraph 1, which states that “everyone has the right to free medical care in state and municipal healthcare institutions, which is provided to citizens at the expense of the corresponding budget.” For commercial activities, the Constitution of the Russian Federation does not bear a normative burden, that is, it is not its regulator.
2. The Civil Code of the Russian Federation is a code of federal laws of the Russian Federation that 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 assets move freely throughout the Russian Federation”;
Chapter 6 (Article 128), which specifies the objects of civil rights. It follows that the objects of civil rights, in addition to things (cash and certified securities), uncertificated securities, property rights, and results of work, also include the provision of services;
Chapter 25 (Articles 393 - 406), which talks about the obligation “to compensate for losses if the service was performed poorly or was not provided at all.” It also determines the method and amount of compensation for damages;
Chapter 27 (Article 424. Price, Article 426. Public contract, Article 429. Preliminary agreement). This chapter defines the concept of a contract for the provision of services, what should be spelled out in it, various types of contracts, their terms of execution and termination, as well as the obligations and rights of the parties;
Chapter 39. Paid provision of services, consisting of five articles:
1) Article 779. Contract for paid services;
2) Art. 780. Execution of a contract for the provision of paid services;
3) Art. 781. Payment for services;
4) Art. 782. Unilateral refusal to execute a contract for the provision of paid services;
5) Article 783. Legal regulation of the contract for paid services.
From these articles follow the rules for drawing up a contract for the provision of services for a fee, execution by both participating parties, and the process of regulating relations between them.
3. 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 dated 02/07/1992 N 2300-1 “On the protection of consumer rights in the Russian Federation”;
The most important law of the Russian Federation, “regulating the relations that arise between consumers and providers during 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 services and their providers.
Federal Law of the Russian Federation dated December 27, 2002 N 184 “On technical regulation”.
This Federal Law “regulates relations arising during production, installation, transportation and the provision of services.” It also regulates the implementation of mandatory requirements and compliance with the required quality assessment.
There are Federal laws regulating specific types and industries that are characterized by the provision of services. For example, Federal Law of the Russian Federation dated 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. There are two main standards regulating the service sector:
GOST R 50646-2012 Services to the public. Terms and definitions;
GOST ISO 9000-2011 Quality management systems. Fundamentals and vocabulary.
There are many standards for the provision of services various types and subspecies. For example, GOST R 51108-97. Household services. Dry cleaning. General technical conditions, GOST R 51006-96 Transport services. Terms and definitions. And for others: funeral services, services to the population, hairdressing salons, fitness club services, cleaning services, repair services and so on.
5. Tax code Russian Federation - a codified legislative act establishing a system of taxes and fees in the Russian Federation, affecting the provision of services:
Art. 39. Sales of goods, works or services;
Art. 40. Principles for determining the price of goods, works or services for tax 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 service provided, as well as about established general principles taxation of persons engaged in the provision of services to the population.
Introduction
2. Legal status of market participants legal services
2.1Lawyers and legal entities
2.2Law firms and other specialized legal organizations
2.3Individually practicing lawyers
2.4Notaries
3. Legal service in commercial organizations
3.1 Legal service as a structural unit of a commercial organization
3.2 Functional responsibilities of the organization’s legal adviser
4. Agreements for legal services and provision of legal services
4.1 Qualification of contracts for the provision of legal services
4.2. Types of contracts concluded by lawyers with clients
4.4 Payment for legal services
4.5 Responsibility of the parties under the contract for the provision of legal services for a fee
Conclusion
List of used literature
Introduction
At the moment, legal assistance is a promising, fast-growing area in law enforcement. In addition, the right to legal assistance is an important constitutional principle enshrined in the Constitution of the Russian Federation. Article 48 of the Constitution of the Russian Federation states: “everyone is guaranteed the right to receive qualified legal assistance; in cases provided for by law, legal assistance is provided free of charge” (Article 48, paragraph 1).
However, it should be noted that to date this area has not been well studied. The reason for this is that until recently, the main forms of organizing legal assistance were the bar, the notary and legal (or legal advisory) services, which were created in enterprises, organizations and public associations to provide assistance, respectively, to these enterprises, organizations or associations. Now a field has been created for new forms of legal activity, these are the notorious “other forms of legal assistance.” This is what textbooks call all other forms of providing legal services that do not relate to the legal profession and notary office. Unfortunately, it is impossible to give a more precise definition of these forms, since they represent a great variety of different forms of providing legal services, and their list is open. This creates confusion in the understanding of legal assistance.
This work is a modest attempt to systematize the forms of legal assistance, understand their meaning and functions, and bring at least some clarity to the concept of legal assistance and its significance in modern society. This is a very relevant, from my point of view, problem, since, 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 advisory 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 area of life or human activity in which every person, not just a lawyer, needs to know and be able to apply certain legal norms. Whether we are talking about work or study, purchasing or selling goods, receiving services, the need to contact government or other authorities, participation in activities public organizations, parliamentary elections and so on - qualified assistance from a lawyer may be required everywhere. This is why legal assistance exists, which provides the population with assistance in understanding, comprehending the legislation and helping to use it for the benefit of the person who needs this help.
1. Concepts of legal services and activities for their provision
Legal services are services to assist individuals on legal issues. 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 auditing, consulting, marketing, information, monitoring, appraisal and real estate activities. All these types of activities satisfy public demand for certain types of services accompanying 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 legislation, consultation on legal issues and legal issues, which is aimed at protecting and promoting the implementation of the rights and legitimate interests of citizens.
The need for strict government control over private legal practice is controversial. State control can be exercised in various ways, primarily through licensing and accreditation. Among lawyers, both scientists and practitioners, there are both supporters and opponents of licensing legal activities. Currently, to engage in legal practice, including the provision of paid legal services, a license is not required, since the current Federal Law of August 8, 2001 No. 128-FZ “On Licensing” individual species activities" activities related to the provision of paid legal services are not included in the list of activities subject to licensing.
The main professional participants in the legal services market are: lawyers and legal entities; law firms and other organizations specializing in the provision of legal services; individually practicing lawyers. Activities to provide legal services are also carried out by organizations that are not law firms, but in accordance with their statutory goals and objectives, provide legal assistance to their participants and other persons. Close to the activity of providing legal services is the activity of notaries, which contributes to the proper registration 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 single general law in which the rules governing relations in the provision of legal services would be collected in the Russian legislative system. In the resolution of the Constitutional Court of the Russian Federation dated January 23, 2007 No. 1-P “In the case of verifying the constitutionality of the provisions of paragraph 1 of Article 779 and paragraph 1 of Article 7ХI of the Civil Code of the Russian Federation in connection with complaints from society 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 are not highlighted in the current legislation - they are regulated by a number of normative legal acts, the system of which includes the norms of the Civil Code of the Russian Federation, in particular its Chapter 39, relating to obligations under a contract for the provision of paid services" (clause 3) In principle, it would be possible to raise the question of adopting a general Law on the fundamentals of state regulation of activities in the provision of legal services, similar in its focus to the current Laws "About appraisal activities in the Russian Federation" and "On auditing activities", but it seems that this is not necessary, at least at the present time. 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 advocacy in the Russian Federation” (hereinafter referred to as the Law on Advocacy) and the Law of the Russian Federation of February 11, 1993 No. 44621 “Fundamentals of the legislation of the Russian Federation on notaries”.
The 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, of 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 services for business are a natural, objectively determined phenomenon, one of the components of legal activity.
Legal assistance provided by lawyers to entrepreneurs is also called legal support, legal support, legal support. All of the listed terms are close in meaning and can be used in different contexts with the same semantic meaning: provision of consulting and other services to entrepreneurs by professional lawyers legal issues carrying out business. In a broader aspect, the term “legal services” is also used, which means 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.
Service provision activities - This is an activity whose useful result is expressed in itself: for example, consulting services on legal issues. In this case, the result of the consultant’s actions is inseparable from the activity itself and is consumed by the interested party in the process of this activity. In ch. 39 of the Civil Code of the Russian Federation provides an approximate list of such services (medical, veterinary, auditing, consulting, information, educational, tourist, etc.), which are the subject of a contract for the provision of paid services.
In this narrow sense, the activity of providing services differs from the activity of producing work, aimed at achieving a tangible result to be transferred to the interested party. The result of the work in such cases can be separated from the actions themselves. Not only the process of carrying out these works, but also the material result of these works is subject to legal regulation. The legal form of work is a contract. The Civil Code of the Russian Federation, defining the list of objects of civil rights, distinguishes between the results of work and the provision of services (Article 128).
Sometimes the concept of “service” is used by the legislator in a broader sense. For example, clause 3 of Art. 1 of the Civil Code of the Russian Federation guarantees the free movement of goods, services and financial resources throughout Russia. The Law on the Protection of Consumer Rights also enshrines the concept of service in a broad sense - as any actions to serve consumers, including the sale of goods, performance of work, provision of services. Services in a broad sense are mediated not only by an agreement for the provision of services for a fee, but also by other agreements: purchase and sale, contract, insurance, etc.
Activities related to the paid provision of services are mediated by relationships that are different in nature: in the paid provision of services, which are the subject of civil law regulation, and in the public organization of the sphere of paid services ( government regulation and control), which are the subject of public law.
Relationships involving the provision of services for a fee can arise both in commercial transactions and outside of it. Those that arise between persons engaged in entrepreneurial activities or with their participation are entrepreneurial.
Sources of legal regulation of activities for the provision of paid services include Ch. 39 “Paid provision of services” of the Civil Code of the Russian Federation, the rules of which apply to relations for the provision of services not regulated by other chapters of the Civil Code of the Russian Federation (for example, Chapter 37
"Contract", ch. 38 “Performance of research, development and technological work”, Ch. 40 “Transportation”, etc.).
For the purpose of saving regulatory material, the Civil Code of the Russian Federation establishes that general provisions on contracts (Articles 702-729) and provisions on household contracts (Articles 730-739) apply to an agreement for the provision of services for a fee, unless this contradicts the rules on a contract for the provision of services for a fee. services (Articles 779-782), as well as the features of the subject of such an agreement (Article 783). This is explained by the single economic essence of relations for the production of work and the provision of services, mediated by different legal forms due to the characteristics of the subjects of the relevant contracts.
It is obvious that the system of contracts for the provision of services has not yet been established; its enshrinement in the Civil Code of the Russian Federation cannot be considered ideal. In our opinion, the rules of Ch. 39 of the Code on the provision of paid services could be common to all types of contracts for the provision of services, just as, for example, the rules of Ch. 30 “Purchase and sale” are general in relation to all types of sales contracts (retail purchase and sale, supply, etc.) 1.
Relations regarding the provision of paid services are also regulated by the federal laws “On Auditing”, “On Communications”, “On Veterinary Medicine”, dated November 24, 1996 No. 132-FZ “On the Fundamentals of Tourism Activities in the Russian Federation”, and some others. Subordinate legal regulation is widely used in this area.
The legal prerequisite for the development of the system of providing legal services was first the Law on Cooperation in the USSR, which provided for the right for cooperatives to provide paid legal services, and then the Law on Enterprises and Entrepreneurial Activities of 1990, which, before the adoption of the new Civil Code of the Russian Federation, was the main document that determined the status of the subject entrepreneurial activity, its organizational and legal forms, which enshrined the principle of freedom of enterprise, an element of which was the norm granting the entrepreneur the right to engage in any type of business activity not prohibited by law, among which legal services also took their place. 45
It should be noted that there is no licensing procedure for the implementation of legal activities by privately practicing lawyers. Due to the special social and legal significance of such a legal phenomenon, it is necessary that the procedure for carrying out activities for the provision of legal services is subject to special special regulation. Foreign experience shows that the licensing procedure for providing legal services is valid in almost all foreign countries. Thus, in the context of the US legal system, the regulation of this activity, due to historical traditions, is given by the state to the judicial branch of government, which, in turn, delegates these powers to private organizations - bar associations operating in each state and developing codes (rules) of professional conduct for lawyers serving the main document regulating their activities, including the acquisition of the right to provide these services. However, according to these rules, only the practice of law is considered eligible if it is carried out under a special permit (license, certificate, certificate), valid only in the territory of the state whose authority issued it. The conditions for obtaining the right to engage in the provision of legal services, and, therefore, acquiring the status of a lawyer, in force in each state, boil down to the fact that the candidate must demonstrate professional suitability based on educational qualifications (having a higher legal education, usually obtained from an accredited US educational institution), professional qualifications (formal testing of knowledge and professional skills) and personal moral character, reputation testing). 46
Currently, there is a draft Federal Law “On the provision of qualified legal assistance in the Russian Federation”. 47 According to Article 1 of this draft law: “... The Federal Law regulates public relations related to the provision of qualified legal assistance on the territory of the Russian Federation, and is aimed at ensuring the constitutional right to receive qualified legal assistance in accordance with Part 1 of Article 48 of the Constitution of the Russian Federation.” Article 2 of the draft Federal Law gives the following definition of the concept of legal assistance: “Qualified legal assistance is understood as any independent activity to provide legal services on an ongoing professional basis on the territory of the Russian Federation.”
The main purpose of the adoption of the law “On the provision of qualified legal assistance” is to eliminate the inconsistency of the current state of affairs in the provision of qualified legal assistance with global standards and, above all, the Constitution of the Russian Federation, which enshrines the right of everyone to judicial protection (Article 46), equality of all before the law and the court (Article 19) by implementing the rights of everyone to receive not just any, but qualified legal assistance (Article 48).
The draft Federal Law “On the provision of qualified legal assistance in the Russian Federation” can regulate the market for legal services. The adoption of this legislative act is necessary for the following reasons:
1. Individuals and legal entities who apply for legal services do not understand the value of the legal service itself and therefore are not ready to pay for it accordingly. This is due to the fact that in the minds of many citizens, law does not look like an unconditional regulator of social relations, hence anyone can provide legal services.
2. In Russia there is no legal definition of the concept of “qualified legal assistance,” as well as the types of entities that have the right to provide it and the procedure for its provision.
Today in Russia there is no regulation of the activities of law firms and privately practicing lawyers, which is undoubtedly a serious gap in the legislation. Lawyers, unlike privately practicing lawyers and lawyers in law firms, pass a qualification exam before starting to practice law, but unlike the latter, lawyers are monitored over their activities, which is at least some guarantee that they provide namely high-quality legal assistance. A lawyer must provide high-quality legal services. But, unfortunately, today it very often happens that both lawyers and private legal practitioners provide low-quality legal assistance 48 .
Article 3 of the bill proposes to narrow the circle of entities entitled to provide legal services, which mainly include: “... only individuals who, in accordance with the legislation of the Russian Federation, have the status of a lawyer, notary, patent attorney, and also in cases provided for by the legislation of the Russian Federation their professional education created in accordance with the legislation of the Russian Federation.”
Thus, the adoption of the Law “On the provision of qualified legal assistance” should resolve the following issues:
1. indication of persons who can provide qualified legal services (assistance) to a separate group, to a specific community.
2. The activities of lawyers should be regulated by the community itself, and the state should be involved only in exceptional cases (for example, when brought to criminal, administrative and other publicly established measures of responsibility). The functioning of the system of self-regulation of professional activities in a number of areas such as notaries has already proven its worth in practice.
3. the state should not interfere in the activities of persons providing legal services (assistance).
4. Qualified legal assistance cannot be provided free of charge, except in cases provided for by other legal acts.
5. compulsory professional liability insurance for persons providing qualified legal assistance.
6. limiting the circle of persons who can provide services in the field of judicial representation to persons who have the status of a lawyer.
Before the adoption of this law, the entities providing legal services were lawyers and other persons - privately practicing lawyers and law firms. Privately practicing lawyers provide legal services on the principle of freedom of expression and the relations that arise between the parties to the contract for the provision of legal services are subject to the permissible method of regulation. It should also be noted that if the activities of lawyers today are regulated by law, then there are no special laws on privately practicing lawyers and law firms, as well as on their status, the procedure for their activities in the provision of legal services.
It seems that at the present stage of development of Russia it is not a normal situation when the provision of animal treatment services (veterinary services) or parking services are regulated by the Russian Government by separate Resolutions, and the provision of legal services is not regulated at all. At the same time, it seems that the importance of the issue excludes the possibility of correcting the current situation by limiting it to a Resolution of the Government of Russia. It should also be noted that persons providing legal services are placed in unequal conditions, in some ways bordering on discrimination: lawyers bear many responsibilities, while persons who do not have the status of a lawyer, as well as a notary or patent attorney, but also provide legal services, the legislation does not establish any requirements or conditions for the implementation of such activities. Such persons, as a rule, do not want to go to the bar, reasoning as follows: why strive to go to the bar with its standards, responsibility, and restrictions, if you can get involved in the field of law without tying your hands? With the existing legal regulation, it turns out to be more profitable to engage in legal services without burdening oneself with obligations and compliance with qualification requirements. In addition, it is more profitable commercially, even if judged simply by taxation.
The proposed law is aimed at eliminating discrimination, in particular, between lawyers and other persons providing legal services, creating equal rights and obligations for them. Objections to the bill may be caused by the current state of the Russian legal profession, which still has shortcomings. However, in principle, these shortcomings are not a reason to refuse to correct the unsatisfactory situation that has developed in the field of legal assistance. There are shortcomings both in the army and in the pension system, but this cannot serve as a reason for refusing to improve the regulation affecting them.
The adoption of the federal law “On the provision of qualified legal assistance in the Russian Federation” will not require invalidation, suspension, amendment, addition or adoption of new laws or other regulatory legal acts of the Russian Federation.
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Shchukovskaya Olga Mikhailovna. Legal regulation of activities in 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 (distinction from obligations to perform work, legal and actual services, place of obligations to provide services in the system of civil obligations) 29-55
Chapter II. Legislation regulating the provision of legal services 56
2.1. Legislation on persons engaged in the provision of legal services 57-81
2.2. Legislation 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 parties in obligations to provide legal services 162
4.1. Features of the responsibility of a lawyer-service provider 162-175
4.2. Material and procedural legal methods of protecting the rights and interests of the client-service recipient 175-188
Conclusion 189-190
Introduction to the 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 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 in the provision of legal services from the standpoint of clarifying its content, streamlining the procedure for its implementation and improving the contractual relations emerging in this regard.
Evaluating current state legislation and conceptual developments in this area, it is necessary to recognize, first of all, the value of scientific ideas about the nature of services and the features of obligatory legal relations, the subject of which is the provision of services, which are developed and reflected in the Civil Code of the Russian Federation. At the same time, the insufficiency of both the theoretical and practical basis in this matter reveals itself: despite the regulatory prerequisites, relations for the provision of services continue to be unreasonably mixed with others, in particular, contractual ones; the place of obligations to provide services in the system of civil obligations remains debatable; in contractual regulation, the specifics of the relationships that arise regarding the provision of legal services are not properly assessed; The regime for the provision of legal services turned out to be outside of legislative regulation.
This state of affairs does not correspond to the role that the activities of entities engaged in providing legal services to participants in civil transactions are intended 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 previously 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 social relations of subjects, and the relations that develop regarding the provision of legal services cover both the private and public legal spheres. Secondly, the activity of providing legal services is 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 enriched understanding of the category of service and emerging contractual relationships regarding the provision of legal services. Fourthly, the activity of providing legal services requires legal regulation based on the use of normative and non-normative means of regulating the relations that arise in this case.
Object and subject of research. The factors listed above individualize both in a scientific and practical sense the activity of providing legal services and 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 research is to identify the problems and features of the legal regulation of activities in the provision of legal services, as well as the specifics of the activities of legal advisers; in assessing the content of current legislation for its adequacy for an effective regulatory impact on these relations, in developing ways and means of improving it; in a comparative analysis of the legal regulation of activities for the provision of legal services in Russia and the USA on issues of the procedure for carrying out this type of activity, legal forms of its organization, contractual regulation of legal relations, liability and protection of the rights of participants.
To achieve this goal, the main tasks are: analysis of the service phenomenon and obligations to provide services; development of a legislative approach to regulating the provision of legal services; study of organizational and contractual forms of such activities; identifying the characteristics of responsibility and ways to protect the rights of participants in relations arising in connection with the provision of legal services.
Methodological and theoretical foundations research. To reveal the research topic, general scientific methods (epistemological, historical, dialectical, system-structural, formal-logical and comparative analysis methods) and specific scientific methods (comparative legal, technical and legal) were used. The theoretical basis of the work was made up of the works of modern and pre-revolutionary scientists in the field of general theory of law, the theory of obligatory legal relations, works devoted to contracts for the provision of services; In addition, foreign legal and economic literature was used. The work is based on the works of such legal scholars 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.H.Kalmykov, A.V.Kligman, M.V.Krotov, K.K.Lebedev, M.V.Mints, V.F.Popondopulo, B.I.Putinsky, V V. Rovny, D. N. Safiullin, E. A. Sukhanov, I. V. Zhereshevsky, G. F. Shershenevich, E. D. Sheshenin and others. The work was carried out on the basis of Russian and foreign legislation, materials were used in it judicial practice, as well as legal practice of entities engaged in the provision of legal services.
The scientific novelty of the work lies in the fact that the dissertation is the first to conduct a comprehensive study of the legal regulation of activities in the provision of legal services; it substantively substantiates and formulates a number of theoretical provisions, conclusions and legislative proposals for improving the legal regulation of activities in the provision of legal services.
The following conclusions are made for the defense:
1. B economic sense A service is a product that can be sold through exchange for value, but at the same time has special properties, and therefore services are considered as independent objects of trade. In the legal sense, a service acts as an independent object of civil obligation legal relations, different from the relations that arise regarding the transfer of property and the performance of work. As a result of the study of the characteristics of a service, the concept of a service as an object of civil rights is given: a service is a type of benefit that serves as a means of satisfying needs through the implementation of activities (by performing actions) by one subject, in beneficial 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 involving the provision of services allows us to conclude that it is necessary to distinguish the contract for the provision of services into an independent type. The provisions of this treaty must play a role general norms 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 for the provision of services in system of civil obligations.
3. The specific features of the activity of providing legal services provide grounds for applying the licensing regime to it. This 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 goals of the activity for the provision of legal services determine its legal regime: entrepreneurial or non-profit, which corresponds to the corresponding organizational, legal and other forms, among which the organizational and legal form of bar associations is particularly highlighted as not coinciding with any of the forms provided for by law. It is proposed, firstly, to recognize at the legal level bar associations as an independent organizational and legal form of non-profit organizations; secondly, to establish a regime of special legal capacity for all legal entities engaged in the provision of legal services and created in any organizational and legal forms of commercial and non-profit organizations; thirdly, extend accreditation and licensing requirements to the founders of these entities.
5. Agreements for the provision of legal services serve as a legal form for organizing connections between participants in relations arising in connection with the provision of legal services. Based on such grounds as the nature of the relationships being served, the legal regime of the entities involved in the provision of legal services and the content of legal services, a classification of the characterized relationships is provided. Among the legal obligations structures that can mediate relations regarding the provision of legal services, there are agreements for the provision of paid services (as the most acceptable and flexible form), orders (for cases of representation), agency (by type of order) and trust management of property (in connection with legal protection control object). The conclusion is substantiated that all types of contracts for the provision of legal services are united by the fiduciary, personal trust nature of the emerging legally binding ties, which is manifested in the peculiarities of the emergence, change and termination of legal relations, in the rights and obligations, responsibility of the parties, in the personal way of fulfilling obligations to provide legal services.
6. A study of the grounds for the refusal of a lawyer-service provider to conclude and execute an agreement leads to the conclusion that there is a special legal basis for refusal of a conflict of interest; its essence is revealed, the need for legislative regulation of this issue is substantiated, rules on conflict of interests are formulated: the concept, the procedure for overcoming it, and the grounds for refusal to conclude and execute an agreement are listed.
7. Identification of the features of the rights and obligations, responsibilities of the parties allows us to conclude that the lawyer-service provider is a strong party under the contract, capable of having a greater influence on its execution, the party who bears a greater burden of responsibilities, including responsibilities, associated with the primary opportunity to determine the nature and number of actions necessary to fulfill the contract.
8. Harm caused to the client-service recipient as a result of the provision of legal services is recognized as the basis for the liability of the lawyer-service provider. It is proposed to interpret harm as caused to life, health, property and resulting in the deprivation or significant violation of property and personal non-property rights of individuals or legal entities, and/or the unlawful assignment of responsibilities to them; The conclusion is that it is advisable to extend the rules on liability for causing harm to services (as well as goods and works) used for business purposes.
9. For full recovery of the violated right of the client-service recipient, for the purpose of calculating the amount of damages, it is necessary to proceed not only from the price specified in the contract, the place and moment of fulfillment of the obligation to compensate for losses (filing a claim, making a decision), but, at the same time, the rules on price, usually charged for similar services under comparable circumstances, which will allow the client-service recipient to turn to other persons for qualified legal services.
10. For real recovery financial situation client-service recipient, violated as a result of the provision of legal services, it is necessary to introduce compulsory insurance of risks of professional property liability of lawyers and other persons engaged in the provision of legal services, as an integral part of the regime for 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.
Theoretical and practical significance The research consists in the fact that the work sums up certain results of theoretical and practical knowledge in the field of activities in the provision of legal services. The work is intended for the attention of legal scholars, including those involved in practical jurisprudence, in terms of their understanding of the conclusions of the work, critical assessment of its results and their application in the practice of concluding and executing contracts for the provision of legal services and dispute resolution, as well as, in the sense of further development of relations arising in the process of carrying out activities to provide legal services in general. The provisions, conclusions and proposals submitted for defense can be used to improve existing legislation in the preparation of new normative and methodological documents. The content of this dissertation research can form the basis for drawing up educational programs and special courses, practical classes in relevant civil and commercial legal disciplines, and also 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 identify services with the provision of some benefit. In an economic sense, the concept of service covers all relationships arising from the consumption of the results of unproductive labor and, from this point of view, the essence of a service is manifested in “a special form of equivalent exchange of the results of labor, qualified as a “service”, different from the form of exchange of goods and things” . In the special, legal sense, “service” is a narrower concept. Thus, from a public legal point of view, a service is a type of economic service aimed at creating benefits, satisfying the needs of other persons, with the exception of activities carried out on the basis of labor relations, and the results of which do not have material expression, are sold and consumed in the process of carrying out this activity. In the private legal sense, a service appears as an object of civil law and, thanks to this, relations for the provision of services become the subject of regulation by 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. Kabalkin, N.P. Indyukov and others. Moreover, it was E.D. Sheshenin who first studied the service as an independent civil law phenomenon at the level of the subject of the obligation to provide services. A monographic study of obligations to provide services was undertaken by M.V. Krotov, having examined a wide range of problems: from the concept of service and analysis of the obligatory legal relationship for the provision of services, to their classification. In this work, 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 other objects in this list (for example, securities - Article 142 of the Civil Code of the Russian Federation), it does not contain their legal definition. However, by giving services such a status, the legislator is already demonstrating 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 about the provision of services by the persons carrying out 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 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 a kind of intangible economic good, which came out of the expanded concept of a thing, 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 complexity of economic turnover, the relative weight and significance of such unknown goods grows so much that legal-technical abstractions even begin crowd out bodily things (such an expansive understanding of things is also typical for 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 with official, administrative or other responsibilities, official and other subordination, namely: a) lawyers and b) other persons - privately practicing lawyers and law firms.
Being the main regulatory document regulating the activities of lawyers, the Regulations on the Bar of 1980 establishes, firstly, the status of institutions of the Bar - 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 activity of lawyers - legal consultations; thirdly, it contains an open list of types of legal assistance to citizens and organizations provided by lawyers (including: giving consultations, explanations and certificates on legal issues, drawing up documents of a legal nature, representing the interests of civil plaintiffs, defendants, victims in judicial arbitration and other bodies, defense in criminal cases, providing defense in criminal proceedings as intended at the expense of the state (Article 49 of the Code of Criminal Procedure), providing free legal assistance in certain categories of cases and providing legal assistance at minimum rates to low-income citizens).
The legislative regulation of the activities of the legal profession in its current state is based on the following concepts. 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 related to the performance of administrative functions. Secondly, the composition of the Bar is formed from persons who voluntarily joined and were accepted as members of Bar institutions (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, thirdly, professional advocacy can only be carried out by a citizen of the Russian Federation who is a member of the relevant bar association, 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 Russian Federation and use the rights granted to him for this purpose. Fourth, by joining the collegium, a lawyer subjects himself to the control procedure and the norms of responsibility (disciplinary) that exist in the collegium. Fifth, the state, mainly represented by its executive body - the Ministry of Justice, reserves control powers on the activities of the legal profession through general and methodological guidance: it establishes the specifics of the procedure for organizing and operating bar associations, the procedure for paying for legal assistance, and gives consent to the creation of new collegiums, issues instructions and recommendations on these issues, etc. (Article 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 an activity is determined by the goals inherent in it, which, in turn, determines the organizational and legal position of the subject. If, from the position of fiscal legislation, the commercial or non-commercial status of a person is of fundamental importance, then for the creditor-service recipient, the determining factor here will be the quality of the services provided and the limits of responsibility of the service provider, therefore, the organizational and legal form goes beyond the external regulation of the activities of service providers, and also affects 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 non-commercial activity regime, there are legal associations - bar associations, the public function of which necessitates the application of an activity regime to it, which cannot depend on the accidents that await any other private activity, and the very existence of the legal profession is a guarantee of the exercise by persons of their constitutional right to qualified legal assistance. In other words, the need for stability of the legal aid system guaranteed by Article 48 of the Constitution of the Russian Federation (see Chapters I and II) forces us to apply a different legal regime to legal services provided by lawyers (and to the institution of the legal profession as a whole) than to other subjects of private law.
The activities of lawyers are not classified as commercial both due to their content (fulfillment of a constitutional obligation), and due to the procedure for distributing funds received from payments for the provision of legal assistance and legal services, allocated for remuneration of lawyers, the maintenance of legal consultations, for deductions to colleges and, therefore, the lawyer does not make a profit from his activities and the regime of his property is different from that of an entrepreneur; in addition, the form of organization of the activities of lawyers and the internal structure are also determined by law, respectively, bar associations and legal consultations.
Through the provision of legal services, a person’s right to activities of a non-commercial and entrepreneurial nature can be realized - to entrepreneurial activity that systematically pursues the goal of making a profit (or business 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, according to the definition of the law, for the subject such activity is independent, free, not burdened with any public, social, or official duties, and the representation and protection of the interests of third parties here constitute the subject and content of a certain type of entrepreneurial activity carried out at your own risk, aimed at generating profit (business income), according to clause 1 of article 2 of the Civil Code of the Russian Federation.
