Subjective Civil Rights Research Articles

The Delimitation of the paulian Action From Other Methods of Defending Subjective Civil Rights

The correct formulation of claims in civil actions is crucial to success in a court of competent jurisdiction. It is not only the correct legal subsumption of the case that is important, but also the choice of the appropriate method of defense of the subjective right allegedly violated. The paulian action is a method of defense of the infringed civil rights, namely the right to performance of the obligation. The paulian action is a specific method of defense in its own way. A correct understanding of this method and its limits requires its delimitation from other methods of protection of rights, such as nullity of the legal act, ineffectiveness, simulation and others.

The dispute about the law in the claim about the appeal of notarial deeds or the refusal to execute them

The article is devoted to the disclosure of the concept and essence of the dispute about the right during the consideration and resolution of a civil case on challenging notarial actions or refusal to perform them. It is noted that historically, for a long time, appeals against a notarial act or refusal to perform it were considered as undisputed cases and were resolved in a civil process by way of a separate proceeding. But with the adoption of the Code of Criminal Procedure of Ukraine and its implementation, this category of civil case was classified as disputed, and therefore was already considered by the procedure of legal proceedings. The change in the order of consideration of the case led to the fact that both theoreticians and practitioners began to understand differently the nature of the «dispute about law» in this category of civil case, which had consequences not only in terms of the validity of classifying it as a case of legal proceedings, but also in the field civil jurisdiction. The author argues that when filing a lawsuit to challenge notarial actions or refusal to perform them, a civil law dispute arises, which arises not only from notarial procedural legal relations, but also from civil legal relations. Civil legal relations are the main legal relations, and notarial procedural legal relations are derivatives arising on the basis of the former and ensuring their implementation. That is why a civil law dispute arises between the person whose rights and interests are affected by the notarial act and the notary, as parties to this case, which is burdened by notarial proceedings. The peculiarity of this civil law dispute based on a claim to challenge a notarial act or refusal to perform it is that only one party claims material or non-material benefit, and the other does not. This is what distinguishes a claim for contesting notarial actions or refusal to perform them from other claims, where a dispute about civil law, which is burdened by notarial proceedings, arises between two subjects who simultaneously claim material or non-material benefit, which is behind the realization of the subject objective civil law. In connection with the encumbering of subjective civil law by notarial proceedings, when filing a lawsuit to challenge notarial actions or refusal to perform them, the purpose of civil proceedings is also complicated: in addition to the protection of subjective civil rights, freedoms and interests, judicial control of legality is carried out notarial activity.

The principles of the exercise of civil rights in the dynamics of contractual obligations

The article is devoted to the general principles of the execution of civil rights upon the occurrence, performance, change and termination of a contractual obligation. Such general patterns are the principles, the application of which is a legal fact that causes the dynamics of a contractual obligation (emergence, implementation, change, suspension, termination), as well as the protection and protection of civil law and interest). It has been proven that there is a group of principles that are characteristic of all stages of the dynamics of a contractual obligation, which are the principles of legal equality, justice, good faith and reasonableness, dispositiveness. It was analyzed that the principle of freedom of contract and free expression of will are determining principles for the execution of civil rights by participants in contractual obligations, because such principles are designed to ensure the validity of the deed, which will subsequently undergo its dynamic development. The basis of these principles is a voluntary action, without any coercion, to enter or not to enter into contractual relations (that is, emergence as a stage of dynamics), as well as to choose a counterparty, its conditions, methods of provision, special conditions for the exercise of rights and performance of duties, freedom of change and termination of the contract. Therefore, this principle will be relevant for almost all stages of dynamics, only with a different magnitude of its role. It has been proven that the principles of the fulfillment of obligations, namely the principles of proper and real fulfillment of obligations, complement the above-mentioned principles of freedom of contract and free expression of will in importance for the realization of civil rights in contractual obligations. The principles of the exercise of subjective civil rights establish fundamental requirements for the conduct of participants, in particular in contractual obligations. It is proposed to highlight such principles of the exercise of civil rights by participants in contractual obligations as the principles of consistency, unimpededness and full satisfaction of interest. The principle of protection of civil rights is manifested in the abnormal dynamics of the contractual obligation. It has been proven that a certain set of basic principles for the exercise of civil rights is inherent to each stage of the dynamics of a contractual obligation.

Иск о признании права отсутствующим: инструкция по применению

The article is devoted to a detailed consideration of a special means of protecting the rights and legally protected interests of the owner: a claim to recognize the right as absent. Its specific features and characteristics are highlighted, a comparative analysis is carried out in comparison with competing remedies: a vindication claim, a negatory claim, a claim for the demolition of an unauthorized building, the relationship of a claim for recognizing a right as absent with general remedies is analyzed: a claim for declaring a transaction invalid, for the application of consequences invalidity of a void transaction. In addition to the review and analysis of theoretical issues, a significant part of the work is the systematization of judicial practice on the topic of research. The practical demand for this method of protecting subjective civil rights, on the one hand, and the lack of scientific research in this area, on the other hand, determine the relevance of the study.

The Mechanism of Civil Regulation of Actions to Protect the Image of a Citizen

Introduction: the scientific paper aims to reveal the structure and features of the mechanism of civil regulation of actions to protect the image of a citizen. To do this, it is necessary to determine the procedure, conditions, and grounds for the functioning of the legal mechanism, as well as sthe object of encroachment. The relevance of the topic is due to the significance of the chosen problem as well as the need to identify the conditions for forming the legal structure of the mechanism of civil regulation for protection against violations when using the image of a citizen. Methods: within the framework of the study, a comparative law method was used, which made it possible to identify the differences in violations when using the image of a citizen; a systematic approach; and the formal logical research method. Results: the analysis of the current legislation of the Russian Federation is carried out. The possibilities of using the general provisions of the civil legislation on the protection of violated subjective civil rights, as well as the special ways to protect against violations when using a citizen’s image, are considered. The conditions influencing the formation of the legal structure of the civil regulation mechanism are analyzed. Conclusions: it is determined that the protection of a citizen’s image should be understood as a set of regulatory provisions regarding the order, conditions, and methods of using a citizen’s image, as well as measures to protect against violations. The protection of a citizen’s image is provided by a special mechanism of civil regulation. The operation of this mechanism is associated with a violation of the order, conditions, and methods of its use by other persons. The structure of the legal mechanism (legal structure) depends on the nature of the offense committed. At the same time, taking into account the actual circumstances, in a specific situation that requires legal resolution, both general legal means of protecting a citizen’s image (Article 12 of the Civil Code of the Russian Federation, Article 151 of the Civil Code of the Russian Federation) and special remedies (Article 152.1 of the Civil Code of the Russian Federation) can be used.

Виды гражданских прав, законных интересов физических и юридических лиц, реализуемых при участии нотариуса

As part of the study, examples of notarial actions were selected that demonstrate the legal role of a notary in the implementation and protection of civil rights and legitimate interests of individuals and legal entities, and a definition of legitimate interest was given. It is established that the notary is one of the forms of realization of the system of legitimate private interests, which are the basis of the subjective civil rights of individuals and legal entities. The author presents a classification of civil rights and legitimate interests of individuals and legal entities, depending on the need for a notary to participate in their implementation.

Analysis of certain issues of notary protection of subjective civil rights

Analysis of certain issues of notary protection of subjective civil rights

LEGAL AND PROCEDURAL ASPECTS OF NOTARIAL PROTECTION IN UKRAINE AND IN FOREIGN COUNTRIES

The study is relevant due to the constant need to improve the legal system and its significant component, notaries. First of all, this is due to the need to take into account constant changes in society and technological breakthroughs in order to adapt notarial activities to new realities. In addition, the analysis of the theoretical foundations and regulatory framework of notaries in Ukraine in comparison with other countries helps to identify the advantages and disadvantages in national legislation and contributes to the improvement of legal norms. Therefore, the purpose of this study is to provide a theoretical and legal analysis of notarial protection in Ukraine and in certain foreign countries. This paper analyses the theoretical foundations and legal framework regulating notarial activity and defining the legal status of a notary in Ukraine and in some foreign countries of different legal systems. The article examines the role of the notary as a component of the legal order system, its tasks and peculiarities of organisation. The author identifies the main elements that constitute the legal status of a notary in Ukraine and in foreign countries. The author makes a comparative legal characterisation of the peculiarities of the legal status of a notary in the Latin and Anglo-Saxon notaries. Particular attention is paid to the legality, objectivity, independence and competence of notaries, who play a key role in ensuring the legal accuracy and legality of transactions. The article also discusses the support of notarial protection in Ukraine through the electronic document management system and electronic digital signature, which ensures the security and confidentiality of transactions. The article examines the role of notarial activity as a form of protection of subjective civil rights which complements other methods of legal protection. In particular, the author emphasises that notarial protection is a complement to other forms of protection, such as judicial and administrative protection, and identifies the need to analyse the legal status of notaries in other countries in order to improve national notarial legislation. It is proposed to take into account the experience of foreign legislators in rulemaking with a view to theoretical and legislative improvement of the legal status of notaries in Ukraine. Keywords: notary, notary, legal status of a notary, protection, form of protection, notarial protection, liability, contract, transaction.

Problems of Compensation of Losses in Breach of Civil Law Obligations

Relevance. One of the basic approaches for civil law is to allow the injured party to claim full compensation for losses, including in case of violation of civil law obligations. The widespread use of this approach is based on universal human notions of reasonableness and fairness of restoring the property sphere of the injured party at the expense of the party that committed the violation. Compensation of losses plays a crucial role among the means of protection of subjective civil rights provided for by Article 12 of the Civil Code of the Russian Federation.The purpose of the study is to develop theoretical provisions that determine the features of the implementation of the principle of full compensation for damages in breach of obligations at the current stage of development of market economy and legislation of the Russian Federation.Objectives: to identify the problems associated with the implementation of the principle of full compensation for losses in the civil law of the Russian Federation; to determine the features of ensuring the balance of interests in the compensation of losses; to determine the directions of further development of legal regulation of the issues under consideration.Methodology. When writing the work, dialectical-materialistic method, systematic method, methods of analysis and synthesis, formal-legal method were used.The results of the research are of a theoretical and applied nature and are aimed at improving the quality of legal regulation of civil legal relations.The conclusions made in the article are of a discussion nature, aimed at continuing the research in the frame-work of the stated subject matter, development of basic principles that allow to uniformly resolve the problems associated with the realization of the rights to full compensation for damages for breach of obligations, including in a complex system of relations between individual participants of civil turnover. The article is a continuation of the author's scientific research on issues related to the problems of civil liability.

Exclusive Right in the Theory of Absolute Subjective Civil Rights

Exclusive rights to various objects of intellectual property rights differ significantly from each other, which allows us to talk about their diversity. The research is aimed at studying the legal nature of exclusive rights. In particular, attention is paid to the attribute of the absoluteness of exclusive rights. The paper consistently argues for the need to rethink the sign of absoluteness of exclusive rights. The author comes to the conclusion that not all exclusive rights are absolute. This conclusion determines the need to formulate new classifications of subjective civil rights. Keywords: exclusive rights, subjective law, absolute law, dichotomy of law

THE The influence of martial law on a person's exercise of the right to honor and dignity

Introduction. The article is devoted to the study of the influence of the legal regime of martial law on the individual's exercise of the right to honor and dignity. Honor and dignity are fundamental values without which a modern democratic society cannot fully exist. The introduction of the legal regime of martial law on the entire territory of Ukraine strengthens their role, because under these conditions, the subjective civil rights of a person, including personal non-property rights, are always limited and violated. Summary. The article emphasizes the central place of honor and dignity in national and international legislation, as evidenced by the analysis of normative legal acts. It is noted that the right to honor and dignity cannot be limited even during the legal regime of martial law due to the legal nature of dignity and honor, their great significance and value both for an individual and for society as a whole. It is noted that the introduction of the mentioned regime entails numerous violations of the right to honor and dignity, which are the consequences of the violation of the right to life, the right to health, the right to security of person, and the right to freedom. This is due to the fact that the right to honor and dignity, thanks to to its special legal nature, is exercised through the specified personal non-property rights. Conslusions. The introduction of the legal regime of martial law cannot affect a person's exercise of the right to honor and dignity, because according to the current national and international legislation, it is not subject to restrictions even under such extraordinary conditions. However, the existence of the legal regime of martial law in a certain territory creates prerequisites for numerous violations of human rights, primarily for such fundamental personal non-property rights as the right to life, the right to health, the right to security of person, the right to freedom, the violation of which automatically entails also a violation of the right to honor and dignity.

Implementation of Civil Legal Personality in Actions Recognized as Transactions

Civil legal personality is a special property of subjects, symbolizing the connection between a person and the State. In the legal context, legal personality is a form of the opportunities that the State provides its citizens with and associations they create in order to acquire and exercise property rights and personal nonproperty rights. The author concludes that it is through the content of legal personality that a person has the opportunity to become the owner of certain subjective civil rights and obligations through entering into a civil legal relationship. The basis of the activity of individuals and legal entities aimed at implementing their rights is civil legal personality as a form of legal existence of people, their organizations and associations. Legal personality as a form of legal existence is based on the principle of formal equality of actors. In the context of its content, legal personality includes the ability of individuals and legal entities to acquire and exercise subjective rights by their actions, to acquire and perform duties themselves. Forms of implementation of rights accompany the actions of individuals and legal entities equal in the legal aspect and ensure their civil law regulation. Legal personality offers a unilateral order of actions implementing rights and actions with the participation of others, which always leads to the creation of links among subjects of rights and obligations. A significant part of these connections is of a property nature, since social benefits in the civil form of «property» constitute the subject of the legally protected interest of subjects of civil law. Propriatary legal personality as the ability to perform actions in the legal form of a «transaction» forms the basis of purposeful actions implementing rights in relation to property and in relation to other persons regarding property.

Application by the courts of effective methods of protecting civil rights

Purpose. The purpose of this scientific article is to determine the criteria for establishing and the procedure for applying effective methods of protection of subjective civil rights by courts. Method. The methodology of scientific research involves a comprehensive analysis of the main scientific and theoretical approaches and materials of judicial practice with the formulation of generalized conclusions regarding the solution of the outlined scientific problem. During the research the following methods of scientific knowledge were used: system method, methods of formal logic, analysis and synthesis, abstraction, formal-dogmatic method, system-structural method. Results. As a result of the study, a list of authorized persons entitled to choose an effective method of protection of subjective civil law was determined, the criteria for determining an effective method of protection of the right and the legal consequences of the plaintiff's choice of an ineffective method of protection of subjective civil law were formulated. Originality. In the course of the research, the definition of the concepts "protection of civil law" and "method of protection of law" was improved, the criteria for determining the effectiveness of the method of protection of subjective civil law developed by legal science and judicial practice were supplemented, and recommendations were formulated for their application by courts. Practical significance. The results of the study can be used in the practical activity of lawyers in the formation of a legal position and choosing a way to protect subjective civil rights and in the practical activity of judges in the process of consideration and resolution of civil cases.

НОРМАТИВНІ ТА СУДОВІ АСПЕКТИ ВІДСТУПЛЕННЯ ПРАВА ВИМОГИ У ЗАКОНОДАВСТВІ УКРАЇНИ ТА ЗАРУБІЖНИХ КРАЇН

The article is dedicated to the study of the peculiarities of the institution of assignment of the right of claim (cession) in the legislation of Ukraine and foreign states. In addition, the practical aspect of the application of the institution of cession by Ukrainian and foreign courts is an integral part of the study. Key research attention has been paid to the issue of unification of norms on the assignment of the right of claim in international acts, such as the UNIDRUA Convention on International Factoring of 1988, the UN Convention on the Assignment of Receivables in International Trade of 2001, etc. The problem of transformation of the construction of the assignment of the right of claim (cession) in the case of the transfer of pledged subjective civil rights by a court decision is considered. The importance of establishing a separate legal regulation in the provisions of civil legislation for "financing subject to the assignment of the right of monetary claim" contracts is singled out.

“PREFERENTIAL LEGAL RELATIONS” UNDER RUSSIAN CIVIL LAW

Abstract: the article is devoted to the study of civil legal relations, which include various preferential rights in their content. Attempts to single out and isolate “preferential legal relations” within the framework of the legal regulation existing in our country are critically evaluated. The possibilities of attributing preferential rights to the group of real or obligatory subjective civil rights are analyzed. New approaches to the classification of preferential rights in civil law are proposed. It is concluded that there are currently no prerequisites for the allocation of “preferential legal relations”, as well as the allocation of legal relations that include preferential rights in their content into a separate type of civil legal relations.

Concession agreement in comparison with related legal structures in the practice of Ukraine and EU countries: content and protection of subjective civil rights

Concession agreement in comparison with related legal structures in the practice of Ukraine and EU countries: content and protection of subjective civil rights

The concept of protection of personal non-property rights of military personnel

The legal categories "conservancy" and "protection" are closely related. Protection of rights should be considered as a constitutional legal basis for the activities of the state, state authorities, local governments. Protection of rights is the actual activity of authorized bodies and persons to comply with this principle in each case. To protect the rights, the element of conservancy is always important – the prevention of committing an offense in the future, and in order to conservancy is possible to use methods of protection.
 Conservancy of rights and legitimate interests consists in enshrining in the sources of law certain legal measures that contribute to the free exercise by an authorized person of his rights, performing the function of preventing offenses and eliminating the causes that gave rise to them.
 Protection of civil rights means the adoption of law enforcement measures provided for by acts of law or contract in case of violation, threat of violation, non-recognition or dispute of rights. That is, we are talking about the right to protect rights and interests. Protection of rights can be carried out in any manner prescribed by law or contract, within the framework of protective legal relations.
 The main elements of the protection of subjective civil rights can be identified: 1) the object of protection; 2) the subject of protection; 3) form of protection; 4) method of protection.
 The protection of the civil rights of military personnel involves the application of protective measures defined in legislative acts (civil, criminal, administrative, and disciplinary) or a contract (civil-legal, administrative, material). Civil legal protection of the civil rights of military personnel means the application of protective measures, including measures of civil legal liability, defined only by acts of civil legislation or a civil law contract.
 Military personnel acquire the right to civil legal protection in case of violation, non-recognition or dispute of civil law, as well as in cases of abuse of law, danger or threat to their life and health.

Contract in the mechanism of legal regulation of relations with the participation of consumers

The scientific article is devoted to the study of the mechanism of legal regulation of contractual relations in general and the role of the contract in the means of legal regulation of relations with the participation of consumers. In the article, based on the analysis of scientific literature and current legislation, the structural elements of the mechanism of legal regulation of contractual relations with the participation of consumers are analyzed, their characteristics are carried out, and the place and meaning of the contract in this mechanism is clarified. Elements of the means of legal regulation of contractual relations with the participation of consumers include regulatory basis; legal facts; civil rights and obligations of consumers and business entities; implementation of legal norms and subjective civil rights and obligations; protection of subjective civil rights and legitimate interests of participants in consumer relations. It is proved that the meaning and place of the contract in the legal regulation of contractual relations with the participation of consumers is expressed in the equivalent of the ratio of normative and individual regulators of these relations. The place of unfair contract terms in the ratio of normative and individual in the regulation of contractual relations with the participation of consumers is studied. It has been established that the current state of legal law of relations with the participation of consumers indicates their detailed legal regulation by acts of civil legislation. It was concluded that despite a significant number of imperative norms in the legal regulation of contractual relations involving consumers, the contract performs not only the role of a legal fact, which is the basis for the emergence of the specified relationship but also the function of an individual regulator, in which its parties, based on the principle of disposition get the opportunity to regulate those areas of their contractual interaction that are not mediated by normative regulation.

Ways to protect the rights of parties of contract : theoretical and practical aspects

The article is devoted to the study of protection the rights of participants in contractual relations. The scientific article examines the definition of «protection the rights of participants in contractual relations», «civil liability». The article based on the application of the Supreme Court of Ukraine practice.The author of the article agrees with the approach proposed in the doctrine on the expediency of the transition to the so-called behavioral concept of guilt. The importance of the theoretical demarcation of the institution of ensuring the fulfillment of obligations and measures of civil liability is emphasized. The possibility of simultaneous application of different forms of civil liability is allowed. It is argued that it is appropriate to change the approach to determining and compensating of non-pecuniary damage.Considering the above, the purpose of the study is to analyse the doctrinal and regulatory aspects of ways to protect the rights of the parties to the contract during resolving their disputes and determine the main trends in the practice of the Supreme Court of Ukraine on this problem. The author of the article investigated approaches to understanding the concept of a way to protect subjective civil rights enshrined in law, the issues of the legal consequences of non-fulfillment of monetary obligations, significant expansion of the application into practice article 625 of the Civil Code of Ukraine. The use of such method of protection of rights as the recognition of a contract as invalid is investigated. The problem of applying the recognition of the contract as invalid as a way of protection is analyzed not for the protection of civil rights or interests, but for the purpose of non-fulfillment of obligations arising from public legal relations or non-fulfillment of debt obligations.The main results of the article are the construction of national civil law on the pandect system by separating the general and special parts to determine the correct application in judicial practice of general and special provisions of the Code, which regulate certain legal institutions.

TIME LIMITS OF CIVIL SUBSTANTIVE LAW AS A CRITERION FOR THE LEGALITY OF THE RELATIONSHIP

This article is devoted to the research of the topical issue of temporal and essential characteristics of the regulatory civil relationship. The legal definition of a legal relationship as a social interaction regulated by law is provided, the participants of which have mutually corresponding legal rights and obligations. The exercise of subjective civil rights is limited in time. The reasons for such restrictions, their nature and impact on the effectiveness of the law itself are studied in the paper. It is during the existence of the law it can be exercised, outside these limits - it is impossible. Therefore, it is extremely important to establish in each case the duration of the period during which the exercise of subjective rights is possible. This is especially important when the legislator sets the duration of the relationship in the form of necessary, reasonable and other similar periods. We believe that they are definite, and their duration is determined by the application of customs of business. The interconnectedness of the subjective substantive law of its bearer with the legal obligation of the obligated person is the quintessence of the legal relationship. The main thing is that the subjective right is exercised during the time during which it exists. After the expiration of the time for the regulatory implementation of the right, its violation begins, and therefore the effect of the protection-legal material relationship occurs.