The dissertation is a complex scientific research of problems of legal regulation of relations under a contract of contract for carrying out of design works. The doctrinal approaches to the definition of the concept and characteristic features of a contract for carrying out of design works are revealed.
It is proposed to understand the contract for carrying out of design works as an agreement under which one party (the contractor) undertakes to develop design estimates and / or other technical documentation according to the instructions of the other party (the customer), and the customer undertakes to transfer assignments for designing and other output data to the contractor, accept and pay the result.
Separation of the contract for carrying out of design works from such adjacent contract constructions, as an agreement of a household contract, an agreement of a building contract, an agreement of a contract for conducting of search works, a contract for carrying out of research and experimental design and technological works has been made.
The specifics of the subject composition of the contract for carrying out of design works, which is reflected in the legal status of its parties, are determined. The identity of such concepts as «contractor», «designer», «performer» is substantiated.
The order of conclusion is described and the peculiarities of performance of the contract for design works are characterized. It is proved that the essential condition of the contract for carrying out of design works is the subject as a specific materialized result of the contractor, which is reflected in the design, estimate or other technical documentation and in essence reflects the object of future civil legal relations. Instead, the price and the term are essential conditions if they are agreed by the parties in the contract, in the estimation or otherwise, established in the contractor’s agreement.
It is proposed to understand the violation of the contract for carrying out design works as a failure or improper performance by contractors of the obligations assumed by him under the contract, which are the content of the contract for the design works, non-compliance with the requirements of the current legislation of Ukraine, the customs of business turnover, which leads to the absence of the result of design works and involves applying to the offender measures of civil liability. The expediency of realization of the demarcation of the actual manifestations of breach of obligations under the contract for carrying out of design works is substantiated according to the following criteria: 1) the nature of the debtor's behavior; 2) the subject, whose behavior is related to the violation (contractor, subcontractor, customer, guarantor etc.); 3) the modus of the fulfillment of the terms of the contract for carrying out of design works (violation of the terms of the contract on the subject, method, place of performance, term etc.); 4) the significance of the breach of obligation. On the basis of these criteria the following types of violations of the terms of the contract for carrying out of design works are identified as: 1) offenses related to non-fulfillment of obligations under the contract; 2) offenses related to improper performance of obligations under the contract.
The peculiarities of civil legal responsibility of the parties for breach of obligations under the contract for carrying out of design work are characterized. It was established that the civil liability of the contractor in the design legal relationship is characterized by property nature, as it manifests itself in the compensation of losses, payment of penalties etc. Such liability is manifested precisely because of additional property encumbrances that arise for the contractor for non-fulfillment or improper performance of the terms of the contract and may be incurred voluntarily without the intervention of the relevant state authorities.
It is proposed to consolidate in the Civil Code of Ukraine the possibility of presenting requirements arising from shortcomings of the design documentation by a third party, which uses the project documentation, even if he was not the customer for its production. In case of detecting such shortcomings in design and estimate documentation in the process of exploitation of the object the builder, the investor etc. could present such requirements to the designer, even if they were not party to a contract for conducting design works. In case of proof in the trial the guilt of the contractor and satisfaction of the requirements of such persons they would have the right to claim compensation for incurred damages. Proceeding from the understanding of the parties' pre-contractual responsibility it is proved that in the case when the parties entered into a preliminary contract, pre-contractual relations are binding and are subjected to the norms of civil law relating to contractual obligations, including the issue of civil liability.
