Independent Security Rights under Russian Legislation

Author:Natalya Rasskazova
Position:Ph.D., Head of Civil Law Department Faculty of Law, Saint Petersburg State University
Pages:94-103
 
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Natalya Rasskazova
Ph.D., Head of Civil Law Department
Faculty of Law, Saint Petersburg State University
Independent Security Rights
under Russian Legislation
1. Introduction
Russian legislator places great emphasis on the development of security instruments. The primary trend for
a legal regulation involves gradual rejection of the strong link between the underlying and security obliga-
tions (the process of weakening of accessority).
This process is accompanied by using of non-accessory (independent) security rights in the economic
turnover.
Is accessority the essential feature of security instruments? How does that concept correlate with the
concept of independence? What are the differences between the regulation of independent obligations and
abstract ones? Experts argue about all of these questions, whose answers form the subject of this paper.
In addition, the reader may become familiar with features of independent security rights regulation under
Russian law.
1.1. The types of security instruments
Under clause 329 of the Civil Code of the Russian Federation (  
*1), security instruments include the forfeit, the advance, the pledge, the right of retention of
possession, the suretyship, the bank guarantee, and other security instruments established by the rule of
law or by agreement.
It should be emphasised that the forfeit and advance are not supposed to serve security purposes. This
idea is not new in the doctrine. For example, G.F. Shershenevich (.. ), one of the classic
voices in Russian civil law, wrote about the ephemeral nature of the forfeit’s security function: while the fear
of the forfeit encourages the performance, the effect of the forfeit depends essentially on the debtor’s ability
to perform the obligation per se.*2 M. Plyaniol (. ) claimed that the advance is now seen rather
more as a departure from a contract than as a remedy assisting in the ful lment of its terms.*3
Regardless, a tradition seems to have established itself in Russian law of classifying the forfeit (clause
330 of the Civil Code) and advance (clause 380 of the Civil Code) both as security instruments and as
types of remedies (liabilities arising from non-performance of the obligation), simultaneously. Meanwhile,
in practice, these instruments are unambiguously considered only as remedies. Nobody would think of
1 Hereinafter ‘the Civil Code’.
2 .. .   .  2001, pp. 384 ff.
3 . .   , . 2: . : . . .  1911, pp. 519 ff. The notions
of the advance under French law and Russian law coincide.
94 JURIDICA INTERNATIONAL XX/2013

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