A COMPARATIVE LEGAL ANALYSIS OF THE CONSEQUENCES OF DISPOSAL IN THE ABSENCE OF AUTHORITY OR CONSENT OF A THIRD PERSON, A BODY OF A LEGAL ENTITY OR A MUNICIPAL BODY

Abstract

Purpose. Review and specification of the legal consequences of disposal in the absence of authority or consent, taking into account the experience of the foreign legislator and in order to maintain the "minimum fairness" in the distribution of the burden of proof and determination of what is to be evidenced in such court cases. Methods. On the basis of comparison of the spheres of application of general and special norms of civil legislation on consent and exceeding of authority, the author crystallized the subject and object orientation of quite dispersed legal provisions (securing the interests of the "principal", of the company, its shareholders, etc.), after which the ready-classified norms ("general", "corporate", etc.) were compared with the rules of English, German and Austrian legislation, having the same function. Results. A preliminary typology of the norms of the Russian law on consent and exceeding of authority was suggested as well as directions for the further development of civil legislation were pointed out, in particular, the need to specify the notion of "knowledge" about the presence of restrictions (lack of consent, going beyond powers). Scientific novelty. It consists in the fact that the author considers the problems of consent or exceeding of powers as part of the theory of property rights, namely, the restriction on disposal, which provides a rich theoretical basis for the further logical development of relevant Russian legislation, including, by taking into account the achievements of the English agency doctrine.