Protection Of Subjective Rights Research Articles

„AID” TO THE LEGISLATOR AS A PREMISE OF JUDICIAL LEGISLATION. PHILOSOPHICAL AND LEGAL INTERPRETATION OF THE RESOLUTION OF THE SUPREME COURT OF FEBRUARY 15, 2019

The aim of the article is a philosophical and legal interpretation of the the resolution of the polish Supreme Court of February 15, 2019. It makes an element of the jurisprudenential tendency which going beyond both the linguistic interpretation and the established categories of civil law, significantly limits the possibility of exercising one of the rights enshrined in the polish Civil Code, namely the possibility for the owner of the land on which transmission facilities are located, getting remuneration for the establishment of transmission easement. The Supreme Court did not justify its decision with a specific way of understanding the right of the land owner, but with the need to correct a mistake made by the legislator almost thirty years earlier. The author claims that this judgment is an expression of the legal and political tendency to move away from recognizing the protection of subjective rights as the basic criterion for the legitimacy of power. He inscribes the ruling into the ideological and institutional phenomena of a global nature, which are expressed in concepts adopting a fluid content of subjective rights (the concept of Ronald Dworkin, neo-Marxism), as well as phenomena such as far-reaching restrictions on subjective rights in the name of fighting the so-called COVID-19 pandemic or climate change.

THE SUPREME ADMINISTRATIVE COURT IN THE STRUCTURES OF THE JUDICIARY (JUDICATURE) – HIS POSITION AND TASKS

The publication presents the structure of the judicial authorities It is an orderly outline, presentation, resulting from legal regulations constituting the properties of the NSA. It points out, that maintainig balance within the judiciary is crucial to obtain a fair trial. constituting the protection of subjective rights It emphasizes that the right to a proper trial has a crucial meaning in a matter of principles of a democratic rule of law and established in Art. 10 of the Constitution of the Republic of Poland, the separation of powers.The main objective of the study is to reveal the role of administrative courts in the structure of the judiciary. The article addresses these issues through showing the role of NSA (the Supreme Administrative Court), which importance is crucial in the matter of final form in the point of view of both law-abidingness as well as protection of individual rights (their right to a trial).The featured problem is of significant practical importance, especially when matters are putted onto reviewing the legal caseses by NSA, other than those specified in Art. 184 of the Constitution. Thus, I am trying to answer the following question: can the NSA, within the range of its given abilities, in such a structured division of powers, and a position defined by its system, hear cases that are out of those set out in Art. 184 of the Constitution of the Republic of Poland. whether, therefore, the tasks entrusted to him by statute and not considered as of „activities of „public” administration can be considered lawful. This issue is of vital importance, because it establishes a legal bond between the state and its citizen, and affects the possibility of authoritative interference in personal matters. The main purpose of the article is to analyze the right to a trail and the essential right to a competent court, with particular emphasis on the impact of a diverse sources of EU law on the normative standard of national legislation.

The Key Issues of the Execution of the Arbitral Awards in the Republic of Armenia

In this scientific article, the author investigated and observed the arbitral awards enforcement regimes on the territory of the Republic of Armenia. Observation of the legislation of the Republic of Armenia in the relevant field revealed features of state compulsory enforcement of arbitral awards of ad hoc institutions on the territory of the Republic of Armenia, permanent arbitration awards and finally arbitration tribunal decisions not exceeding the minimum wage by five thousand time. Some valuable recommendations have been made to improve voluntary enforcement of arbitral awards. The contemporary issues of co-called domestic arbitral awards state compulsory enforcement have been discussed in comparison with western developed countries legal practice. In the article, the author made some suggestions regarding improvement of the legislation on commercial arbitration, mainly concerning the protection of subjective rights. Moreover, the author presented the practical guideline how to exclude by law the private entity eligibility of state compulsory enforcement.

Differentiation of forms of protection of the right to medical assistance

The article aims to investigate the issue of the mechanism of protection of civil rights and the differentiation of procedural forms of protection of the right to medical assistance.
 The article examines the existing doctrinal approaches to the definition of the concept of "protection of civil rights", "means", "forms", "methods of protection of civil rights" arising in the field of providing medical assistance and health care.
 The work states that the methods of protection of rights are actions provided for by law, which are directly aimed at the protection of rights. They are final acts of protection in the form of material and legal actions or jurisdictional actions, which are aimed at eliminating obstacles in the way of subjects exercising their rights (interests) or at stopping the offense, restoring the situation that existed before the offense. Instead, the form of protection characterizes the order of protection and constitutes a set of internally agreed measures for the protection of subjective rights and protected interests that take place within the limits of one legal regime.
 Emphasis is placed on the fact that in the field of health care, first of all, the patient has the right to independently determine, by means of which form to protect his rights, which, in his opinion, have been violated during the provision of medical care. It can be the application of various pre-trial procedures, administrative appeal or appeal to the court.
 The article analyzes the implementation of judicial, pre-judicial and administrative forms of protection of a person's medical right in the field of health care.
 It was concluded that the non-jurisdictional form of protection of the patient's rights is a form of protection, in the implementation of which the patient can independently choose self-defense measures that are not prohibited by law and correspond to the nature of the actions that violated his right, as well as the consequences caused by the offense.

Interests in Russian law: Concept and Types

Relevance. The study of interests in law has an inexhaustible topical theoretical and practical significance, because, as the German philosopher of law R. Iering explained, interests move the world. Indeed, socially significant interests that have received legal support (recognition, consolidation) actively influence the formation, exercise and protection of subjective rights, the implementation of legal relations, legal responsibility, the achievement by subjects of law of the desired material and spiritual benefits, as the ultimate goal of law regulation, law enforcement and legal application. Unfortunately, legal science has not formed the final theoretical provisions on the nature, content, functional purpose and types of legal interests (legitimate interests, interests protected by law, interests in law). The author of the article set the task to indicate his position on some topical issues of the topic under discussion.Purpose – to find out the nature, concept, content, purpose and types of legal interests, the interaction of social interests with law.Objectives: to identify the essential features of social and legal interests, to formulate the concept of legitimate (legal) interests, to find out the types of legal interests, to establish general and specific features of social and legal interests.Methodology. In the course of the study of the designated topic, such general scientific and private scientific methods of research were used as formal-legal, system-structural, logical, comparative-legal, method of analysis and synthesis.Results. Based on the analysis of the theoretical conclusions of well-known Russian researchers, the author formulated and substantiated his own position on the concept and types of legal interests (interests in Russian law), it is noted that legal interests are socially significant interests that have found their “registration” in the norms of positive law and subjective rights, or social interests not enshrined in subjective rights, but protected by law on the basis of the meaning (spirit) of the law, legal principles.Conclusion. Socially significant interests initiate the emergence, change and termination of legal relations, contribute to the achievement by the subjects of law of the desired material and intangible benefits, the satisfaction of their needs.

СОСТОЯТЕЛЬНА ЛИ НЕСОСТОЯТЕЛЬНОСТЬ? ОБ ИНТЕЛЛЕКТУАЛЬНОМ ПОДХОДЕ К ПРАВУ В ЭПОХУ НЕОПРЕДЕЛЕННОСТИ

The article analyses the problematic issues of applying in 2022 a moratorium on the filing of bankruptcy applications by creditors. This institute, as in a mirror, reflected the conceptual issues that are in the focus of attention of M. Z. Shvarts (the author’s mentor), in honour of whose anniversary the article was prepared: the correlation of substantive and procedural law, the constitutional framework of regulation, forms of judicial protection of subjective rights, the balance of private and public interests, standards of proof, the effectiveness of enforcement, pledge relations, bankruptcy, and many others. The author comes to the conclusion that in its current form, the moratorium is not only unable to stabilise the economic situation, but is a real danger to the legal system.

Human Rights on the Internet under quarantine (on the example of E-Commerce): problematic aspects

As a result of the introduction of quarantine measures on the territory of Ukraine and abroad, almost all spheres of social life underwent particular changes. This led to certain restrictions on human rights, as a result of which legal science faced the task of finalizing and adapting legal regulation in the field of protection of subjective rights on the Internet to the realities caused by the coronavirus crisis. The purpose of the study is to characte-rize the legal regulation regarding restrictions and protection of consumer rights on the Internet in quarantine conditions. The object of the study is public relations in the spheres of electronic commerce, protection of consumer rights, and human rights on the Internet in general. The subject of the study is social relations that arise during the protection of civil rights on the Internet under quarantine conditions. The research methods were general scientific and special scientific methods such as dialectical, systemic, structural, historical-le-gal, comparative-legal, formal-legal; methods of induction, deduction, analysis, and synthesis. As a result of the research work, a multi-disciplinary review of publications on the subject of study and the conclusions of scholars was carried out; a description of the theoretical and legal framework for regulating the protection of civil rights on the Internet in quarantine conditions is provided; examples of judicial practice are given; issues related to the taxation of activities in the field of Internet trade were analyzed; specific solutions for improving legal regulation are proposed.

Fenomen yuridicheskogo partikulyarizma kak osobennost' predstavleniya o prave i zakone v srednevekovoj Evrope

The article is devoted to the study of the peculiarities of perception and understanding by medieval philosophers and lawyers of the basic legal concepts and definitions, features of the nature and functioning of the medieval legal system as a whole. The concepts of “law” (ius) and “legislation” (lex), as well as related categories of “justice”, “equality”, “duty” are considered. The authors believe that legal particularism provided additional opportunities for the protection of subjective rights, stimulated competition between legal systems and contributed to the formation of law as an authoritative and influential social regulator.

Limits of Parental Interference in a Child’s Personal Rights – Selected Issues

Abstract The article discusses the issues of the limits of parental interference in children’s personal rights. The conducted research covers the subject broadly. It starts with the general issues of legal capacity as the basis for the protection of subjective rights and then proceeds to demonstrating the lack of limitations in the protection of a child’s personal rights. A child growing up in a family remains under parental authority, which gives rise to certain obligations and rights of parents towards the child. Parents look after, educate and guide the child, carrying out their duties in the best interests of the child and guided by their good. It happens, however, that by caring for children, parents violate their personal rights. Therefore, the determinants of exercising parental authority were examined. Particular attention was paid to the scope of rights resulting from parental authority, the assessment of the manner of exercising it, the right of the child to express his or her own position and the principle of the best interests of the child. These determinants made it possible to indicate the limit of parental interference in the child’s personal rights. The practical side of the implementation of the right to the protection of a child’s personal rights was also indicated, as well as a proposal to amend the content of the family and guardianship code.

ТРАНСФОРМАЦИЯ ГРАЖДАНСКО-ПРАВОВЫХ И ПРОЦЕССУАЛЬНЫХ ОТНОШЕНИЙ С ИСПОЛЬЗОВАНИЕМ ИСКУССТВЕННОГО ИНТЕЛЛЕКТА: ФОРМИРОВАНИЕ НОВЫХ ПРАВОВЫХ РЕЖИМОВ

The article analyzes the problems of exercising civil and procedural rights in relations with the use of artificial intelligence. On the basis of the study of domestic and foreign experience theoretical and applied provisions on the possibility of transforming the content of the categories of the subject of law, legal personality, tort liability, outlined the possible directions of formation of legal regimes in the digital sphere, ways of establishing guilt and limits of responsibility for the actions of artificial intelligence. The problems of transformation of object-subject composition of legal relations, characteristics and filling of subjective rights and duties with powers, principles of realization of subjective rights and fulfillment of duties, stages and order of direct realization of rights and duties, protection of subjective rights, in particular, in choosing of method of protection, non-standard approaches to the issues of abuse of rights, participation (use) of artificial intelligence in administration of justice (“predicted justice”) are considered.

Жилищные права и интересы граждан и их нотариальная защита

The article defines the limits of notary participation in protection of subjective rights and interests of housing relations participants. The question of the correlation between the terms «notarial protection» and «notarial defence» is investigated, and the author gives the arguments in favor of the legislator's position which refers all notarial acts to measures of protection of rights and interests of citizens and legal entities. The ambiguity of understanding the terms «conflict regime», «undisputed regime», «violation of rights and interests» is demonstrated. The scientific debate on the issue of objects of notarial protection is illustrated, the conclusion that subjective rights and interests can act as such objects is formulated. The author draws attention to the absence of an established approach to the distinction of these protection objects types in the science of civil law, analyzes the provisions of the norms of civil and housing legislation, fixing situations of notaries participation in housing rights and interests protection, and indicates the timeliness of the legislative decision on introduction of obligatory notarial certifications of transactions with shares in the right of ownership of dwelling premises. The conclusion about the necessity of the further step-by-step expansion of notaries participation in protection of the subjective rights and interests of participants of housing relationships is formulated.

Место и роль правопреемства при защите субъективных прав

The article considers the issue of the role and place of the institution of succession in the mechanism of protection of subjective rights. The place and role of the institution of succession was determined through the understanding of such legal categories as «legal means», «legal means of protection», «method of protection». The study of the institution of succession as an element of the mechanism for the protection of subjective rights has led to the solution of a number of issues that will further improve the institution of succession in order to more effectively restore and protect violated rights.

Wykładnia pojęcia „dobrej wiary” w orzecznictwie w kontekście dokonywanych w okresie PRL naruszeń prawa własności

The article aims to asses the jurisprudence of the first decades of the 21st century regarding the good faith of stateowned enterprises that began, without a legal title, to use private land in the communist period, placing on them the infrastructure used to transmit electric energy. Courts interpreting general clauses referring to concepts and systems of values lying outside the legal system gain the ability to influence the decision of the case based on their own moral judgments. Therefore, the case where Polish courts operating in a state that respects the principle of equal property protection regardless if the entitled entity had the opportunity to assess the conduct of entities representing the state operating on the basis of a completely different system of values, should be considered particularly interesting. It is typical for totalitarian and authoritarian regimes to formally grant broad protection to individual rights and, at the same time ignore their existence in the activities of the state. It can be seen in the practice of carrying out some infrastructure investments in the communist period. Electricity networks were often built on private land. At that time, there were regulations allowing to obtain a legal title to use the land, both in private law (contract) and of an administrative (expropriation) nature. The state and state-owned enterprises, however, mostly did not use them, focusing on planning investments to obtain permits related to technical issues. The reasons for this behavior can be seen primarily in the basic assumptions of the socialist system. The described practice testified to the real attitude of the state to private property as a type of property that was ultimately to be ousted in the socialist system. The role of economic plans in the Polish People’s Republic was also significant. State bodies and state-owned enterprises primarily aimed at executing plans, regardless of whether or not they violated the individual’s interests in this way. After 1989, the legal status of many power grids, overhead lines, and other devices was therefore not regulated. State-owned enterprises, and the companies resulting from their transformation, used many properties without a legal title. Changes in the legal awareness of society and the grow-ing understanding of economic mechanisms based on the principles of responsibility for one’s own actions and protection of subjective rights, led to many court disputes between owners and entrepreneurs. The most common claims addressed to transmission companies were remunerations for the use of land without legal title and actio negatoria. The case law reacted to the increase in the number of disputes by creating a concept of usucaption of land easement for the benefit of the transmission entrepreneur. Its legitimacy from the beginning raised fundamental doubts in the legal doctrine, but it gained the full support of the courts. Many statements of the Supreme Court assessed the correctness of the state-owned enterprises’ conduct. The relatively numerous statements approving the omission of obtaining a legal title to seize someone else’s real estate in the investment preparation process ought to be considered inter-esting and surprising. They significantly influenced the practice of common courts, causing many claims of property owners against entrepreneurs to be dismissed. Moreover, by expressly praising unlawful interference with the right to property, carried out during the Polish Peopleʼs Republic, they probably also deepened the sense of harm and injustice — caused mainly by a surprising in-terpretation that allowed for the acquisition by prescription of a right unknown to the Act — and above all the belief that courts treated trade participants unequally and that courts granted significant privileging to the state and entities representing its interests.

Protection of Human Rights and Freedoms in the Administrative Proceedings of the European Union

Since there is a problem of forming a system of modern doctrinal knowledge on protection in administrative proceedings by individuals of their rights violated in public relations, the topic under research becomes relevant. The justice in national administrative cases requires qualitative improvement taking into account European experience. The purpose of the research is to form a uniform judicial enforcement in the field of public relations, establish the rule of law, and provide fair justice. The methodological basis of this study is a set of general scientific (dialectical, analysis, and synthesis), as well as special legal (historical, comparative law, consideration and interpretation of legal norms, formal-logical) methods of scientific knowledge. The practical significance of the obtained results is that the formulated theoretical provisions, proposals and recommendations can be used: in research to conduct further research on the problems of administrative proceedings in Ukraine, ways and means of effective protection of subjective rights of individuals; in law-making for further improvement in accordance with European principles of national legislation; in the law enforcement practice of judges of administrative courts of Ukraine for consideration and resolution of public law disputes, in the protection of their rights in administrative judicial specialization by citizens and legal entities.

Derecho Administrativo y Derechos Humanos

En los últimos años del siglo pasado y hacia casi dos décadas del actual, se ha vivido en prácticamente todo el mundo una explosión de los derechos humanos. Con mayor frecuencia encontramos que las Cortes y Tribunales constitucionales invocan violaciones de derechos humanos al momento de dictar sus fallos. Pero antes de ello, el derecho administrativo, aún siendo una rama relativamente joven, nace como una disciplina cuyo objeto es la interdicción de los actos de la autoridad, basado fundamentalmente en la protección de los derechos subjetivos, esto es que, el derecho administrativo construye un sistema de cómo deben ser cumplimentados los derechos de los ciudadanos, de tal forma que su vocación natural es sin duda, la de concretar los derechos humanos.

Executive force of decisions of arbitration courts

Arbitration proceedings have been studied as one of the alternative forms of protection of subjective rights, freedoms and interests of individuals and legal entities, in terms of the implementation of arbitration decisions. Consideration of these issues is related to the analysis of the role of arbitration in public relations, the comparison of judicial functions inherent in courts as public authorities, and the limits of jurisdiction of arbitration courts. The division between judicial functions and the jurisdiction of arbitration courts is important. The legal nature of arbitration decisions differs from the legal nature of decisions of official judicial institutions. At the same time, under the conditions provided by law, they have executive force and can be enforced. Enforcement proceedings are considered as a system of procedural mechanisms for the execution of decisions of courts, other bodies and officials. Decisions of arbitration courts in accordance with the Law of Ukraine "On Arbitration Courts", the Law of Ukraine "On Enforcement Proceedings", the Civil Procedure Code of Ukraine and the Commercial Procedural Code of Ukraine may be enforced subject to review and admission by competent courts. At the same time, a number of issues of their implementation do not have sufficient scientific development. These questions are connected with fundamental understanding of essence of arbitration proceedings, its place in system of mechanisms of protection of the right, features of executive procedures. These issues need comprehensive research and systematization. The urgency of the topic is due to the fact that modern legislation is in dynamic development. Arbitration, as well as other out-of-court procedures for the protection of subjective rights, freedoms and interests, has become widespread in public relations. Legislation needs to be improved, it must respond in a timely, appropriate and harmonious way to the challenges that arise in society. The key to this is the creation of a relevant doctrinal approach in the analysis of social phenomena, mechanisms for protecting the rights, freedoms and interests of the subjects of civil and economic relations. The exercise of their powers by arbitrators presupposes a harmonious combination between the legislation on arbitration courts, procedural legislation and the legislation on enforcement proceedings.

УСЛОВИЯ ВОЗНИКНОВЕНИЯ ОБЯЗАТЕЛЬСТВ ПО ВОЗМЕЩЕНИЮ ВРЕДА, ПРИЧИНЕННОГО ПРАВОМЕРНЫМИ ДЕЙСТВИЯМИ ГОСУДАРСТВЕННЫХ ОРГАНОВ, А ТАКЖЕ ИХ ДОЛЖНОСТНЫХ ЛИЦ

Сhanges in civil legislation have created a separate type of tort obligations, in which the state compensates for damage caused to the person or property of a citizen or the property of a legal entity by lawful actions of public authorities. Along with the tort obligations that are well covered in the scientific literature, these issues concerning the lawful actions of the State that cause harm to citizens or legal entities are ignored. In the article, the author conducts a comparative legal analysis of the conditions for the emergence of obligations to compensate for damage caused by lawful actions of the state. The research is based on general scientific methods of cognition, as well as special legal ones (comparative legal, technical legal, formal legal). On the basis of the conducted research, the author draws conclusions about the legal nature of the obligations under study, and also makes an attempt to identify the existing problems of the emergence of obligations to compensate for damage caused by lawful actions of state bodies. The main problem of the study of obligations to compensate for harm is to determine the conditions of their occurrence, the characteristics of lawful harm caused by state bodies, leading to the emergence of obligations to compensate for harm. Obligations to compensate for rightfully caused harm are conditioned by the protection of subjective rights. These obligations exist for the purpose of compensation for the restoration of the right violated by the lawful actions of State bodies in the event that public interests prevail over personal ones. Examining tort obligations, as the most widely covered in the scientific literature, it was concluded that they are very similar to obligations for compensation for rightfully caused harm, and pursue the same goal: restoring the position of the injured person.

Protection of the Right to Information on One’s Health – A Non-Jurisdictional Form of Protection

The article analyzes the theoretical aspects of protection as directly subjective civil rights and defines them within the framework of civil relations regarding the information on one's health. A clearer and complete description of the features of the realization of the right to information on one's health in the normatively established system of protection of subjective rights of a person has been obtained. It has been determined that the protection of the right to information on one's health is exercised freely, and the failure of a person to exercise the right to protection is not a ground for termination of this right. It is noted that during the protection of their violated right to health information, the authorized person may perform certain actions that are not related to the appeal to the competent state bodies and are a non-jurisdictional form of protection. The list of actions of an individual to protect the right to information on one’s health in the case of a non-jurisdictional form of protection of the above-mentioned right has been systematized.

Joint Functional Focus of Models of Civil Liability for Damage Inflicted on Patients

One of the key areas of legal regulation of any aspect of public life (especially when it comes to personal moral rights inalienable from a person, including those that ensure the person's physical existence and reflect the human dignity inherent in every individual) is the establishment of legal guarantees for the observance and protection of subjective rights belonging to a person. The purpose of this study is to determine the centripetal (in value and functional terms) trends in the development and application of similar legal models and means of legal regulation of relations arising from harm inflicted on patients. It was concluded on the inevitability of the intensification of the world, and European, in particular, tendencies regarding the diverse use by national legal systems of similar functional legal instruments for compensation for property and moral damage in order to ensure effective protection of personal non-property and property rights of patients and related persons. Therewith, the identity of a certain national legal mechanism will be determined mainly by the orientation of the legal policy of a particular state towards the top-priority implementation of certain characteristics of compensation and proactive, preventive (which, in the context under consideration, appears as a guarantee for the observance of the rights of patients and the performance of obligations by the providers of medical services) functions of civil liability.

ON THE PROBLEMS OF STATE FORMS OF PROTECTION OF SUBJECTIVE RIGHTS OF PARTICIPANTS IN BANKING LEGAL RELATIONS

The article is devoted to the study of forms of protection of subjective rights, their implementation at the national level in the framework of banking relations. The article analyzes the forms of protection of private and public rights, ways to protect civil rights, the functions of banking relations, the object and subject composition of banking relations, scientific, theoretical and practical recommendations for improving the application of law on banking relations.
 The authors draw attention to the imperfection of domestic government regulations in terms of forms of protection of subjective rights of participants in banking relationships. Based on the analysis of regulatory sources, it is concluded that the form of protection of subjective rights of participants in banking relations is a statutory procedure for protection of subjective rights in banking or banking operations (subjective law is aimed at public interest, sociocentric), its implementation takes place by one or another jurisdictional body depending on its nature, the content of which is both the activities of the state, its authorized bodies, public associations, and the ability of the person to exercise his right to protection in case of violation of subjective rights and legitimate interests, including, seek protection from the competent state authorities.
 There is a need for normative consolidation of the concept of forms of protection of subjective rights of participants in banking relations.