Sub-contracts and other forms of the third parties participation in the performance of obligations

The article is devoted to the difficult and debatable question of the parity of subcontracts with the form of participation of the third parties in contracts and obligations. The author considers the subcontract as a form of execution of the obligation of the third parties and as a form of participation of the third parties in the obligation. The author considers that the structure logical and substantial analysis of the bases offered in the literature and criteria of differentiation of the subcontract and other forms of participation of the third parties performed by obligations are insufficient and disputable. The development of relations with execution of obligations by the third parties, and also ambiguous understanding of essence of the given legal phenomenon has led to necessity of preparation of the project of changes to the article 313 of the Civil Code of the Russian Federation «Execution of the obligation by the third party». It is offered to add this article with two key positions. The first consists that to transition of the rights of the creditor under the obligation owing to its execution by the third party the general rules about transition of the rights of the creditor to other person will be applied. And the second that if other isn't provided by the law or the contract and doesn't follow from the essence of relations of the debtor and the third party, the third party having a legitimate interest performed by the debtor of the liability, connected with realization by its parties of enterprise activity, can execute this obligation to the creditor without the consent of the debtor. The Concepts of perfection of the civil legislation of the Russian Federation, the developed foreign laws and orders, and also principles of the international conventional law don't see necessity for positions about execution of the obligation by the third party to settle mutual relations between the third party and the debtor, soundly recognizing that regulation of execution of the obligation by the third party should establish fair balance of interests of the creditor and the debtor, instead of the third parties and the debtor.