Foundations and Limits of Negatory Protection

Abstract

A negatory lawsuit is one of classic ways to protect property rights. Despite the large number of research papers devoted to this institution, there is a wide range of opinions in the legal literature regarding the grounds and limits of negatory protection. Thus, there is a widespread point of view, according to which a negatory claim is a way of protecting the right to use and it is applied only if the owner creates obstacles in the use of the thing. This approach is based on the existence of a triad of powers that all together form a subjective right of ownership. However, qualification of a negatory claim as a claim for the protection of the right to use and the possibility of its application only in the case of putting impediments to use is erroneous, since violation of the right is associated only with obstacles to the exercise of the right, since the rights to own, use and dispose of the property determined in the doctrine represent ways of exercising the right and do not reflect the essence of the property right. Meanwhile, violation of the right is not limited to impediments in the exercise of the right. Violation of the property right may include both action and inaction of the debtor, which, in turn, may be of a factual and legal nature. A negatory claim in Russian civil law is a way to protect property rights from a wide range of infringements, but this is not the basis for concluding that such a claim is applied for any violations of property rights. The choice of the method of the right’s protection is determined based on the nature of the subjective right and the offense. A negatory claim has its own conditions for application and should not replace other ways of the right protection.