Implementation of professional activity as an alternative to guilt in civil law: theory and practice

Lekanova Ekaterina Evgenevna Postgraduate student, Yaroslavl Demidov State University 150003, Russia, Yaroslavskaya oblast', g. Yaroslavl', ul. Sobinova, 36a lekanova.katya@yandex.ru Other publications by this author

§1. Introduction

The basis of civil liability is a civil offense. This follows from the provision of Part 2 of Article 54 of the Constitution of the Russian Federation, according to which no one can be held responsible for an act that was not recognized as an offense at the time of its commission. This means that if the harm is caused by lawful actions, then compensation for harm provided for by the norm of paragraph 3 of Article 1064 of the Civil Code of the Russian Federation is not a measure of responsibility, but a measure of protection.

A civil offense consists of several elements, which in the literature are called conditions of civil liability. In the Civil Code of the Russian Federation, the list of elements of the composition of a civil offense is not directly fixed, and therefore this gives rise to a number of controversial issues.

N. D. Egorov identifies the following elements of the composition of a civil offense, taking into account the type of civil liability: "The necessary conditions for all types of civil liability are, as a general rule, unlawful behavior and the fault of the debtor. To be held liable in the form of damages, it is necessary to have the losses themselves, as well as a causal relationship between the debtor's unlawful behavior and the resulting losses" ^{[1, p. 665]}.

At the same time, there is still no consensus in the legal literature regarding the obligation (non-obligation) of guilt to bring to civil liability. There are at least three points of view on this issue.

§2. Analysis of theories of guilty and alternative innocent principles of civil liability

1. The theory of denial of innocent responsibility.

According to the theory of denial of innocent responsibility, whose supporters, in particular, were Soviet scientists O. A. Krasavchikov, N. S. Malein, N. G. Alexandrov ^{[2, p. 154],[3, p. 21],[4, p. 168]}, civil liability occurs only in the presence of guilt. N. S. Malein wrote on this occasion: "Responsibility without guilt does not exist at all if the meaning, essence, and basis of legal responsibility are correctly understood and not confused with other legal institutions" ^{[5, p. 160]}.

It is important to note that this theory was formed not on the basis of the norms of the modern Civil Code of the Russian Federation, but on the provisions of Soviet legislation. The Civil Code of the RSFSR of 1922 ^[6] fixed liability for guilt, the exception was liability for damage caused by a source of increased danger (Articles 403 - 404). O. A. Krasavchikov explained this "exception" by the fact that "compensation for damage caused by the owner of a source of increased danger, according to its legal forms and grounds, is based on a combination of two beginnings – the beginnings of responsibility and the beginnings of risk bearing" ^{[2, p. 151]}. Prof. O. A. Krasavchikov opposes responsibility and risk to each other. In his opinion, obligations at the beginning of the risk are not recognized as liability, and, as a result, causing harm by a source of increased danger without fault goes beyond the scope of responsibility, despite the fact that the legislator considers this construction to be responsible ^{[7, p. 54]}.

In the Civil Code of the RSFSR of 1964, in addition to innocent liability for harm caused by a source of increased danger (Article 454), liability was established regardless of guilt for harm caused by illegal actions of officials of the bodies of inquiry, preliminary investigation, prosecutor's office and court (Article 447). In the Civil Code of the Russian Federation, there are even more cases of innocent responsibility ^[8].

Thus, due to the change in legislation, the theory of denial of innocent responsibility has been defeated.

2. Theory of culpable liability with exception

Proponents of this theory believe that guilt is a prerequisite for civil liability, with the exception of some cases provided for by law or contract ^{[9, p. 17],[10, p. 13]}.

At the same time , the argumentation of innocent responsibility is based on two main arguments: 1) to designate the obligation to compensate for harm caused innocently, the legislator uses the term "responsibility", and not any other; 2) there is a need to ensure the property interests of the victim ^{[11, p. 324]}.

According to O.S. Ioffe, "private" deviations from the principle of responsibility for guilt do not create any new condition (beginning) of civil liability ^{[10, p. 29]}.

The disadvantage of the theory of culpable liability with an exception is that it allows unjustified bringing of a person to responsibility. Responsibility must meet the criterion of reasonableness. If in some cases the legislator proposes to bring a person to justice without guilt, then this should be due to a good reason, namely the presence of some other factor equivalent to guilt. In particular, this conclusion follows from the content of the norm of paragraph 1 of Article 401 of the Civil Code of the Russian Federation, indicating the need for other grounds, alternative to guilt, to bring a person to contractual liability regardless of the presence of guilt.

3. The theory of two principles of responsibility

According to K. K. Yaichkov, the founder of the theory of "two principles", the guilt of the responsible person is only an additional condition of responsibility in cases where the law establishes responsibility for culpable harm ^{[12, pp. 170-171]}. In other words, he distinguished two equally great alternative conditions of responsibility: "guilt" and "absence of guilt". In our opinion, the "absence of guilt" cannot be an independent beginning (condition) of responsibility.

At the same time, K. K. Yaichkov's arguments led to the possibility of thinking about expanding the list of cases of innocent liability, which happened in the Civil Code of the RSFSR in 1964, and then in the Civil Code of the Russian Federation in 1994. However, what principle the legislator has been guided by for the last half century, transferring various cases from the "regime of guilty responsibility" to the "regime of innocent responsibility" remains a mystery. And if this trend exists, then for the sake of consistency and uniformity of legislation and reasonable prosecution, such a principle should be enshrined in legislation.

For example, N. S. Bratus and V. A. Eugensiht proposed at one time to consider a condition alternative to guilt – a condition about the risky nature of the offender's activity (for example, activity with the help of a source of increased danger, entrepreneurial activity) ^{[13, p. 181 – 182],[14, p. 77]}. However, the risk principle does not explain responsibility, regardless of guilt, for damage caused by illegal actions of the bodies of inquiry, preliminary investigation, prosecutor's office and court, as well as for damage caused due to defects in goods, work and services. And differentiated responsibility for storage (Article 901 of the Civil Code of the Russian Federation) completely refutes the construction of innocent liability on the principle of risk, since the risk of accidental (innocent) death or damage to property during storage is the same regardless of whether the custodian is professional or not.

§3. The condition of civil liability, alternative to guilt

First of all, it is necessary to focus attention on the fact that the mandatory conditions of civil liability differ from its type. In our opinion, the Civil Code of the Russian Federation currently regulates three types of civil liability: pre-contractual (Article 434.1 of the Civil Code of the Russian Federation), contractual (Chapter 25 of the Civil Code of the Russian Federation) and tort (Chapter 59 of the Civil Code of the Russian Federation). After the appearance in the Civil Code of the Russian Federation in 2015 of Article 434.1 of the Civil Code of the Russian Federation, lawyers unanimously stated the registration of pre-contractual liability in general (with respect to the conclusion of any type of contract), despite different views on its legal nature ^{[15, 16, 17]}. At the same time, the concept of pre-contractual liability is not new to civil law. It is known to Roman law and the law of some foreign countries. Private manifestations of pre-contractual liability were encountered in Russian law even before 2015: for example, for violating the procedure for concluding a supply contract, the party that sent the offer could be held liable in the form of damages, even if the supply contract was never concluded (Article 507 of the Civil Code of the Russian Federation), it was also possible to assign responsibility to an unscrupulous counterparty if the conclusion of the contract was mandatory for him (Article 445 of the Civil Code of the Russian Federation) ^{[15, p. 138]}.

The basis of pre-contractual liability is unfair negotiation of a civil contract, the mandatory elements of which are illegal behavior, losses, causal relationship between such illegal behavior and the resulting losses, the guilt of the offender. Illegal behavior in case of unfair negotiation includes: 1) providing incomplete or unreliable information to the party, including omission of circumstances that, due to the nature of the contract, should be brought to the attention of the other party; 2) sudden and unjustified termination of negotiations on the conclusion of the contract in such circumstances that the other party to the negotiations could not reasonably expect it (Clause 2 of Article 434.1 of the Civil Code of the Russian Federation). The obligation of damages as a condition of pre-contractual liability follows from the rule of clause 3 of Article 434.1 of the Civil Code of the Russian Federation. In order to impose pre-contractual liability on the offender, the presence of an intentional form of guilt is required, which presupposes the unscrupulous behavior of the offender. The legislator characterizes dishonesty by such legal constructions as knowingness, intent to cause harm, illegal purpose (clause 1 of Article 10 of the Civil Code of the Russian Federation).

Despite the fact that pre-contractual liability was introduced by the legislator relatively recently, the rules on it have already found application in judicial practice. For example, in the Industrialnovsky district court of the Kemerovo region in 2019, a case was considered on a claim for damages caused by the sudden and unjustified termination of negotiations on the conclusion of a contract for the sale of a building and land for a total of 9.15 million. from the seller's side. The plaintiff and the defendant have previously agreed on the subject and price of the future contract. Also, the defendant committed actions indicating the intention to conclude a contract for the purchase and sale of non-residential premises and land: repeated admission, showing the property owned by the appraiser to compile a report on the market value required for the purchase of non-residential premises with borrowed funds; providing personal information to the Novosibirsk Social Commercial Bank "Levoberezhny", and consent to their processing, necessary for settlements between the parties at the conclusion of the purchase and sale agreement; receipt of an advance payment on account of the non-residential premises being sold in the amount of 1,850,000 rubles; written notification on behalf of the defendant to the tenant of the non-residential premises being sold about the upcoming change of ownership. Despite the absence of apparent reasons, the defendant suddenly terminated negotiations on the further conclusion of the contract of sale of the above-mentioned real estate, the previously received advance was returned. As a result of the defendant's actions, by refusing to conclude a purchase and sale agreement, the plaintiff suffered losses related to negotiating with the defendant on the acquisition of the above-mentioned property, namely: the costs of obtaining the notarial consent of the spouse - 1,900 rubles, the bank's letter of credit under the loan agreement - 73,000 rubles, actually accrued on the date of writing this appeal interest on the loan agreement is 56,350 rubles, payment under the life insurance contract in the amount of 20,400 rubles. In total, losses due to non-conclusion of the purchase and sale agreement amounted to 151 650 rubles. The Court established a full list of pre-contractual liability conditions and, with reference to the provisions of Article 434.1 of the Civil Code of the Russian Federation, fully satisfied the plaintiff's claims for damages ^[18].

The basis contractual liability is recognized as a violation of an obligation. A prerequisite for contractual liability is unlawful conduct (non-performance or improper performance of an obligation). Guilt acts as an alternative condition, since within the meaning of the provision of clause 1 of Article 401 of the Civil Code of the Russian Federation, a law or contract may provide for another (instead of guilt) condition of contractual liability. The Civil Code of the Russian Federation provides the following alternatives to guilt as a condition of contractual liability: 1) violation of an obligation in the course of entrepreneurial activity, except for the impossibility of proper performance due to force majeure and other cases provided for by law or contract (Clause 3 of Article 401 of the Civil Code of the Russian Federation); 2) violation of an obligation in the exercise of trust management by entrepreneurs or other persons in cases specified in the law (for example, by a person appointed by the guardianship authority and guardianship for the management for remuneration of the property of a person under guardianship (guardianship), or an unknown absent person; an assistant under patronage), except for the impossibility of proper execution due to force majeure, guilty actions of the beneficiary or founder of the management (paragraph 1 of Article 1015 and paragraph 1 of Article 1022 of the Civil Code of the Russian Federation); 3) loss, shortage or damage to things during storage by a professional custodian (a commercial or non-profit organization that carries out storage as its professional activity), except for the impossibility of proper execution due to force majeure, due to the properties of things, due to the fault of the depositor (clause 2 of Article 886, clause 1 of Article 901 and clause 2-3 of Article 926.5 of the Civil Code of the Russian Federation).

For a more visual illustration of contractual liability without fault, we believe it is necessary to cite several examples from judicial practice. As part of the first example, we will analyze the case, during the consideration of which the Abakan City Court found that between the plaintiff and the defendant (LLC "Mustang") a contract was concluded for the qualified care, maintenance, training and testing of the horse belonging to the plaintiff. The horse, being under the care of the defendant, died from the disease (inversion of the intestines) despite the fact that LLC "Mustang" called several veterinarians. The defendant pointed to the absence of his guilt in the death of the horse and asked to dismiss the claim, referring to the condition of the contract that responsibility for the death of the horse can be assigned to him only if he is guilty. Assessing the legal relations that have arisen between the plaintiff and the defendant, the court concludes that a property storage agreement was concluded between the plaintiff and LLC SHP Mustang with elements of a contract for the provision of paid services in the form of maintenance, care and maintenance of health and life support of the animal taken for storage. Accordingly, the legal regulation of the legal relations of the parties under such an agreement is provided for by the norms of substantive law contained in chapters 39 and 47 of the Civil Code of the Russian Federation. According to the position of the court, the defendant LLC SHP "Mustang" performed the service of storing the plaintiff's horse, as a legal entity, in the process of professional economic activity aimed at making a profit. According to paragraph 2 of paragraph 1 of Article 901 of the Civil Code of the Russian Federation, a professional custodian is responsible for the loss, shortage or damage of things, unless he proves that the loss, shortage or damage occurred due to force majeure, or because of the properties of the thing, which the custodian, taking it for storage, did not know or should not have known, or as a result of intent or gross negligence of the depositor. As the court pointed out, this rule is special in relation to the rules of paragraph 1, paragraph 1 of Article 901 of the Civil Code of the Russian Federation and paragraph 3 of Article 401 of the Civil Code of the Russian Federation and cannot be changed by agreement of the parties. The court did not agree with the arguments of the defendant and recognized the condition on the inadmissibility of bringing LLC "Mustang" without guilt to responsibility for the death of the horse invalid as contrary to the law. The court ordered the defendant to pay the plaintiff the cost of the horse ^[19]. Thus, LLC "Mustang" as an entrepreneur, guided by the clause of clause 3 of Article 403 of the Civil Code of the Russian Federation, was entitled to conclude a contract for the provision of paid services, excluding its liability without fault, but LLC "Mustang" as a professional custodian was not entitled to enter this condition into the contract.

Another example is a case in which the plaintiff did not suspect that he was involved in a storage relationship. The plaintiff was hijacked by a snowmobile (ATV), which was seized from the hijacker by the traffic police and transferred to OOO "New Dimension" for transportation and placement in a specialized parking lot, from where it was stolen again. The plaintiff filed a claim for damages against the Ministry of Finance of the Russian Federation, the Ministry of Internal Affairs of the Russian Federation, the Ministry of Internal Affairs of the Russian Federation, the traffic Police Department, LLC "New Dimension". The court drew attention to the fact that the Ministry of Internal Affairs of the Russian Federation, the Ministry of Internal Affairs of the Russian Federation, the traffic Police Department cannot be held accountable in this case, since according to the norm of Article 1069 of the Civil Code of the Russian Federation, their guilt is required for this. The court found that the Ministry of Finance of the Perm Region is an improper defendant, since in accordance with current legislation, the main manager of federal budget funds for the Traffic Police is the Ministry of Internal Affairs of Russia. During the consideration of the case, the court considered it necessary to involve as a defendant also an individual entrepreneur who carried out the storage of vehicles in a specialized parking lot. By order of the Ministry of Public Security, LLC "New Dimension" is included in the Register of specialized organizations providing services for the movement, storage and return of detained vehicles as an organization providing services exclusively for the movement of detained vehicles to a specialized parking lot on the territory of the Perm City District. A cooperation agreement has been concluded between LLC "New Dimension" and the sole proprietor, according to which the sole proprietor is obliged to ensure the complete safety of the detained vehicles transferred to the parking lot during the entire storage period. The court qualified this agreement as a storage agreement, and the sole proprietor as a professional custodian. The loss of the ATV occurred due to the fault of third parties, and the sole proprietor, according to the position of the court, is liable regardless of guilt in accordance with the norm of paragraph 2 of paragraph 1 of Article 901 of the Civil Code of the Russian Federation. In this regard, the court decided to recover damages from the sole proprietor in favor of the plaintiff in the amount of the cost of the snowmobile ^[20].

In our opinion, the court's decision is correct, but not enough reasoned, since it does not explain why an individual entrepreneur who is not in a contractual relationship with the plaintiff is contractually liable as a professional custodian. Contractual liability, unlike tort liability, comes from a contractual obligation between the offender and a person whose civil rights arising from the obligation are violated ^{[21, p. 89],[22, p. 559]}. Obligations resulting from harm (tort obligations) are non-contractual obligations, since it is obvious from the substance of the obligations that its parties were not bound by contractual relations or the harm did not follow unconditionally from the existing contract ^{[23, p. 559]}. Turning to the circumstances of the analyzed case, we note that the owner of the snowmobile and the sole proprietor were not bound by contractual relations. The storage agreement was concluded between the sole proprietor (professional custodian) and LLC "New Dimension" (depositor). A storage relationship arose between the sole proprietor and the plaintiff on the basis of the law, namely on the basis of the norms of Article 82 of the Code of Criminal Procedure of the Russian Federation. At the same time, by virtue of Article 906 of the Civil Code of the Russian Federation, the rules of Chapter 47 of the Civil Code of the Russian Federation apply to storage obligations arising by virtue of law, unless other rules are established by law. According to the norm of paragraph 2 of paragraph 1 of Article 901 of the Civil Code of the Russian Federation, a professional custodian is responsible for the loss, shortage or damage of things, unless he proves that the loss, shortage or damage occurred due to force majeure, or because of the properties of the thing, which the custodian, taking it for storage, did not know and should not have known, or as a result of intent or gross negligence of the depositor.

However, in another case, under similar circumstances, the court made a mistake. LLC (custodian of physical evidence in the form of vehicles) carried out storage improperly. The reason for the moldy damage to the interior and trunk of the car belonging to the plaintiff was the prolonged storage of the car in improper microclimatic conditions in the parking lot, that is, with high humidity, lack of ventilation. Despite the establishment of the fact of the occurrence of a storage relationship by virtue of the law between the plaintiff and the defendant, the court imposed tort liability on the defendant with reference to Article 1064 of the Civil Code of the Russian Federation ^[24]. Thus, incorrect qualification of the type of responsibility can lead to unjustified withdrawal of professional custodians from responsibility in the absence of their fault.

Also, a disadvantage in resolving a similar category of cases is the non-identification of the defendant's affiliation to the subjects of professional storage. To for example, in one of the court cases, the court did not recognize a professional custodian of an individual entrepreneur who stores material evidence in the form of vehicles. The storage agreement was concluded between the Sole Proprietor and the Ministry of Internal Affairs of the Russian Federation. The sole proprietor took insufficient measures to ensure the safety of the car. The court was guided by the general rule of paragraph 1 of Article 401 of the Civil Code of the Russian Federation, and not by the special rule of paragraph 2 of paragraph 1 of Article 901 of the Civil Code of the Russian Federation, in connection with which the claim was partially satisfied only for the amount of material damage that corresponded to the cost of those damages in respect of which the fault of the defendant (keeper) was established ^[25]. If the court recognized the sole proprietor as a professional custodian, then the sole proprietor would have to compensate for the damage in a larger amount. Therefore, the identification of the professional nature of the parties' activities is as important as the establishment of guilt.

So thus, in cases where the legislator establishes a contractual responsibility without guilt, this is due, as a rule, to the fact that one of the parties to the contract is a professional (specialist) in the provision of certain services, the sale of certain goods, the performance of certain works. Professional activity presupposes the presence of special training and, as a result, an increased degree of discretion in the performance of obligations, as well as the possibility of systematic (repeated, repeated) provision of certain services, provision of certain goods, performance of certain works, which, in most cases, helps to eliminate the negative impact of technical problems, actions of third parties, etc. Special training in some cases presupposes the availability of a license or compliance of subjects of professional activity or their employees, participants with qualification requirements. In this regard, we believe that according to the logic of the legislator, "the presence of guilt" and "the exercise of professional activity" (in cases specified in the law) they act as alternative conditions of contractual liability along with a mandatory condition as illegal behavior.

However, in our opinion, in some cases, contractual liability without fault is imposed on certain categories of participants in civil turnover unreasonably. For example, a natural person who is not an individual entrepreneur may be the executor of a will entrusted with the management of property (Clause 1 of Article 1134 of the Civil Code of the Russian Federation, clause 2 of Article 1173 of the Civil Code of the Russian Federation). However, such an individual, along with the subjects of professional activity (sole proprietors, commercial organizations, etc.), is liable without fault for obligations arising from the management of hereditary property (clause 1 of Article 1022 of the Civil Code of the Russian Federation).

The basis tort liability is the infliction of unlawful acts of harm to the personality of an individual or the property of an individual or legal entity. The mandatory conditions of tort liability include unlawful behavior, harm, causation. Guilt also acts as an alternative condition, since within the meaning of the provision of paragraph 2 of Article 1064 of the Civil Code of the Russian Federation, the law may provide for compensation for harm even in the absence of the fault of the harm-doer. Another (instead of guilt) condition of tort liability is again the "exercise of professional activity" by the offender: law enforcement (Article 1070 of the Civil Code of the Russian Federation, paragraph 3 of Article 1100 of the Civil Code of the Russian Federation, Article 133 of the Code of Criminal Procedure of the Russian Federation, Article 1 of Federal Law No. 68-FZ dated 30.04.2010 "On compensation for violation of the Right to Legal Proceedings within a Reasonable Time the term or the right to execute a judicial act within a reasonable time"); activities from the lists of dangerous and especially dangerous productions provided for by law (Article 1079 of the Civil Code of the Russian Federation, paragraph 2 of Article 1100 of the Civil Code of the Russian Federation); entrepreneurial activities (Article 1095 of the Civil Code of the Russian Federation), etc.

Norms on compensation for moral damage, regardless of guilt for the dissemination of information discrediting honor, dignity and business reputation, deserve separate consideration. According to the provision of paragraph 4 of Article 1100 of the Civil Code of the Russian Federation, compensation for moral harm is carried out regardless of the fault of the harmer in cases where the harm is caused by the dissemination of information discrediting honor, dignity and business reputation. In our opinion, the rule on compensation for moral damage, regardless of guilt for the dissemination of information discrediting honor, dignity and business reputation, is unreasonable to the extent that it imposes responsibility without fault on a person who is not a professional distributor of media products. Moreover, this idea is confirmed by the content of Article 62 of the Law of the Russian Federation No. 2124-1 of December 27, 1991 "On Mass Media" (hereinafter – the Law of the Russian Federation "On Mass Media"): "Moral (non-material) harm caused to a citizen as a result of the dissemination by the mass media of untrue information discrediting the honor and dignity of a citizen or causing him other non-property damage is compensated by a court decision by the mass media, as well as by guilty officials and citizens in the amount determined by the court." The media bear tort responsibility without fault for the dissemination of false defamatory information, since, in accordance with the rule of Article 52 of the Law of the Russian Federation "On Mass Media", media employees are persons with special professional status (journalists; staff members of editorial offices engaged in editing, creating, collecting or preparing messages and materials; authors not associated with the editorial office the mass media by labor or other contractual relations, but recognized by it as its freelance authors or correspondents, when they carry out editorial assignments). Their professional status includes the obligation to verify the accuracy of the information provided to them (paragraph 2 of Article 49 of the Law of the Russian Federation "On Mass Media"). In turn, the distributors of false defamatory information, who are mistaken about the reliability of the information being disseminated and are not obliged to verify it, should not be held liable without fault. We consider it necessary to bring the rule of paragraph 4 of Article 1100 of the Civil Code of the Russian Federation into full compliance with the norm of Article 62 of the Law of the Russian Federation "On Mass Media".

§4. Main results of scientific research

As a result of the analysis of legal norms, doctrinal positions and judicial practice on the conditions of civil liability, a number of conclusions can be drawn:

1) The mandatory conditions of civil liability differ from its type. Since 2015, the Civil Code of the Russian Federation has regulated three types of civil liability: pre-contractual (Article 434.1 of the Civil Code of the Russian Federation), contractual (Chapter 25 of the Civil Code of the Russian Federation) and tort (Chapter 59 of the Civil Code of the Russian Federation).

The basis of pre-contractual liability is unfair negotiation of a civil contract, the mandatory elements of which are illegal behavior, losses, causal relationship between such illegal behavior and the resulting losses, the guilt of the offender.

Violation of an obligation is recognized as the basis of contractual liability. A prerequisite for contractual liability is illegal behavior.

The basis of tort liability is the infliction of unlawful acts of harm to the person of an individual or the property of an individual or legal entity. The mandatory conditions of tort liability include unlawful behavior, harm, causation.

Guilt is an alternative condition for both contractual and tort liability.

2) A large number of cases of civil liability without fault, specified in the law, are due to another (instead of guilt) condition of liability, namely the implementation of professional activities, as a result of which a civil offense is committed.

At the same time, it is necessary to pay attention to the fact that not all subjects of professional activity can be brought to civil liability regardless of their guilt. For example, within the meaning of Article 1069 of the Civil Code of the Russian Federation, state bodies, local self-government bodies, their officials, with the exception of the cases specified in Article 1070 of the Civil Code of the Russian Federation, bear tort liability only in the presence of guilt.  

3) The existence and appearance in the law of other conditions of civil liability, alternative to guilt, except for the "exercise of professional activity", is not excluded. In turn, if the case of liability without fault specified in the law does not contain any other condition of liability alternative to guilt, then the rule on it should be excluded from the law in view of groundlessness (for example, the rule on innocent liability for trust management obligations in respect of individuals who are not subjects of professional activity in the areas of trust management of property; the rule on compensation for moral damage, regardless of guilt for the dissemination of information discrediting honor, dignity and business reputation by a person who is not a professional distributor of media products).

4) For the purposes of consistency and uniformity of legislation and reasonable prosecution, the principle of innocent liability, namely the exercise of professional activity by the offender, should be enshrined in legislation.

The condition of contractual liability, an alternative to guilt, can be fixed in the norm of paragraph 1 of paragraph 1 of Article 401 of the Civil Code of the Russian Federation as follows: "A person who has not fulfilled an obligation or performed it improperly is liable in the presence of guilt (intent or negligence), except in cases where the law or contract provides for the prosecution of a person who carrying out professional activity".

In turn, the condition of tort liability, an alternative to guilt, can be reflected in the rule of paragraph 1 of paragraph 2 of Article 1064 of the Civil Code of the Russian Federation as follows: "A person who has caused harm is exempt from compensation for harm if he proves that the harm was caused not through his fault. The law may also provide for compensation for harm in the absence of guilt in the event of harm caused in the course of professional activity."