Subjective Civil Rights Research Articles

Constitutional Complaint in Ukraine: The Interrelation Between the Protection of Subjective Civil Rights and Constitutional Control

The real possibility of judicial protection of individual rights and freedoms is a key element of effective legal regulation, as well as the manifestation of the rule of law. The new institution of the constitutional complaint lies in a rather specific plane, being both a part of the national system of protection of individual rights and freedoms and an element of constitutional control that ensures the supremacy of the Constitution of Ukraine. The relevance of this study is conditioned by the right of a citizen to complain about the mechanism of legal regulation, taking the provisions of the Constitution as an example. The purpose of the study is to consider the specific features of the interrelation between the protection of subjective civil rights and constitutional control. This study analyses the theoretical aspects, legislative regulation, and practice of the Constitutional Court of Ukraine. It was concluded that subjective rights and interests established by law might be violated, unrecognised or challenged only at the stages of legal implementation or enforcement.

Цифровая трансформация субъективных гражданских прав: проблемы и перспективы

The article examines the phenomenon of digital transformation of subjective civil rights, which is the most important characteristic of civil circulation in the information society. According to the author, digital transformation is a systemic change in the main features and content of subjective law under the influence of digital technologies, with the help of which new types of property are constructed, namely cryptocurrencies, digital rights, tokens, databases, and other virtual objects. The characteristic properties of such objects, first of all, the absence of a material substrate, that is, physical, material expression, make it difficult to characterize them as things, in the traditional meaning of this concept. However, the needs for the development of civil turnover in the context of the digitalization of the economy makes it necessary and inevitable for the participation of various types of digital property as objects of both property and contractual rights. The civil circulation of digital objects becomes possible as a result of endowing the latter with the properties of things or actions, which implies the formation of appropriate legal regimes. Since the legal regime, as shown in the work, includes three main elements, namely, objects of rights, subjective civil rights and regulatory means, digital transformation affects all these elements, contributing to their modification. At the same time, the main attention in the work is paid precisely to subjective civil rights, which, in a situation of underdeveloped regulatory regulation, are the main regulator of digital property turnover. Considering the prospects for the digital transformation of subjective civil rights in the context of the digitalization of civil law and order, the author comes to the conclusion that the processes considered in the work will affect not only the sphere of property rights, but also the personal non-property rights of subjects. The analysis performed allows us to formulate some proposals for improving the current civil legislation, contributing to its further reform.

Specific aspects of the validity of the statute of limitations in civil law

This article discusses the specifics of the validity of a statute of limitations in civil law. The author explains that the duration of treatment is a certain period of time during which procedural actions can be performed. Terms of exercise of subjective civil rights and fulfillment of obligations are determined by the relevant legal norms regulating certain types of property and personal-non-property relations. The same norms also define the time limits on which protective measures can sometimes be applied in the event of a violation of subjective civil rights. Such periods are called statute of limitations in civil law.

Insurance interest in ensuring the subjective civil rights of participants in insurance relations

The article considers the role of insurance interest in ensuring the subjective civil rights of participants in insurance relations. The authors have studied the views of scientists on the insurance interest in relation to the protection or provision of the property interests of the policyholder, the insured person or the beneficiary, depending on the type and form of insurance provided. The author argues that there is not only “insurance protection” of the property interests of participants in insurance relations, but also “insurance coverage”. At the same time, such concepts as “insurance interest” and “interest in insurance” are separated.

Restoration of the situation that existed before the violation in the system of the ways of protection of subjective civil rights

Restoration of the situation that existed before the violation in the system of the ways of protection of subjective civil rights

Принцип полного возмещения вреда и его отражение в законодательстве Российской Федерации

Relevance. One of the basic approaches for civil law is to allow the injured party to claim full compensation for the harm caused and the losses incurred. The widespread use of this approach is based on universal ideas about the reasonableness and fairness of full compensation to the injured party for the diminution of its property sphere at the expense of the offender or other harm-doer. Compensation of damages, directly related to the implementation of the principle of compensation for harm, plays a crucial role among all the means of protection of subjective civil rights specified in the list given in article 12 of the Civil Code of the Russian Federation. The purpose of the study is to develop theoretical provisions defining the specifics of implementation of the principle of full compensation for damages at the current stage of development of market economy and social relations in the Russian Federation. Objectives: to identify the problems associated with the implementation of the principle of full compensation for harm in the civil law of the Russian Federation; ; to determine the features of the balance of interests in the recovery of compensation and other cases of compensation for harm caused; 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 debatable character, are aimed at continuing of researches in the framework of the stated theme, are aimed at development of the main principles that allow to solve in a unified way the problems connected with realization of the rights to full compensation of damage to the injured party at the expense of its causer. The article is a continuation of scientific studies of the author on issues related to the problems of civil liability.

Правоотношения, возникающие при заключении предварительного договора

Relevance. Despite the widespread use in civil circulation of the civil law structure of the preliminary contract and the attention to it from the scientific community, in law enforcement practice there are many controversial issues related to the application of this structure. The article presents the results of a study of the complex of legal relations that emerge upon the conclusion of a preliminary contract. The author qualifies these legal relationships as organizational obligations, reveals in their content mutual subjective civil rights and obligations. The fulfillment of these obligations is due to demand, but the new provisions of the legislation governing the conditional performance of obligations turned out to be worked out to a lesser extent than the conditional performance of obligations based on the preliminary agreement. The purpose of the study is an attempt to formulate new scientific provisions based on an in-depth analysis of the provisions of the current legislation concerning the conclusion and execution of a preliminary contract. Objectives: identify and study the specifics of legal relations that develop in the process of concluding a prelim-inary contract, give them scientific qualifications, analyze the norms of the current legislation and determine the direc-tions of its development. Methodology. In the study there were used the dialectical-materialistic method, the system method, the methods of analysis and synthesis, and the formal-legal method. The results the research is of a theoretical and applied nature and is aimed at improving the quality of law en-forcement practice and improving legislation. Conclusions. The author, on the basis of the analysis, comes to the conclusion that as a result of the conclusion of a preliminary contract, an obligation arises with conditional performance, the conclusion of a preliminary contract regarding a real contract does not contradict the current legislation, although it has features in terms of the con-sequences of failure to fulfill the main obligation.

Some aspects of the mechanism of protection of subjective civil rights

Some aspects of the mechanism of protection of subjective civil rights

Right to defense and subjective civil right: theoretical issues to research

The article analyzes the concepts of subjective civil right and the right to protection. The argument for the independence of theright to protection in relation to subjective civil right is given. However, from the standpoint of the theory of law, the right to protectionis one of the powers of subjective civil right, which has no independent legal meaning.In civil law, in case of regulatory legal relations, ensuring their effectiveness is achieved through such constructions as the powerto one’s own action and the power to demand the necessary behavior from the obliged person. In case of protective legal relations,aimed at restoring the legal status of participants in civil relations, this is achieved through the power of defense. The right to defenseensures the exercise of subjective civil right and legal interest within the framework of protective legal relations.The mechanism for the realization of legal interest in civil relations, in the structure of which the active person has no subjectivecivil rights, is researched. The formation of a person’s legal interest is generated from the existing subjective civil right, but in relatedlegal relations, the protection of which is ensured through the protection of the legal interest.

The state of Ukraine as a subject of civil liability for losses caused to entrepreneurs during the Ukrainian Anti-Terrorist Operation/Joint Forces Operation (analysis of current legislation and practice)

In order to repel external aggression and stabilize the economic and socio-political situation in the country in 2014, the legal regime of the anti-terrorist operation (ATO) was enacted. Subsequently, the Anti-Terrorist Operation in Eastern Ukraine in April 2018 was renamed the Expanded Anti-Terrorist Operation within the Joint Forces (JFO) Operation. The issue of the responsibility of Ukraine for the damage caused to businesses by public authorities or their officials during the ATO/JFO has become relevant. Today in this above mentioned area there are serious deficiencies of the regulatory and legal support, as well as practical implementation, which complicates the mechanisms of compensation to entrepreneurs affected by the ATO/JFO. The paper shows the results of research on the compensation for damage caused to entrepreneurs by the state of Ukraine during the hostilities and/or other measures related to the law enforcement, as well as the defense of subjective civil rights of the participants in civil relations. The provisions of articles 1166 and 1167 of the Civil Code of Ukraine are analyzed in determination of grounds for liability and other provisions of paragraph 1, chapter 82 of the Civil Code of Ukraine depending on the circumstances under which the damage was caused. The civil liability of military servants during the service and combat missions is discussed and considered. It is proved that the structural subdivision of the Military Forces of Ukraine is responsible for causing damages during the service and combat missions. The particular attention is paid to the consideration of the practice of application of the current legislation of Ukraine in the area of compensation for damage caused by Ukraine to entrepreneurs. As a result of the study, the following conclusions were made. Under present conditions, the responsibility of Ukraine for damage caused to entrepreneurs by the delict of public authorities or their officials remains clearly unresolved at the regulatory level. The need to supplement the articles 1173 and 1174 of the Civil Code of Ukraine by the provision that clearly defines that the damage is reimbursed by the state of Ukraine is claimed. Key words: rights, guarantee, legal liability, institute of responsibility, reparation, state.

ТЕОРИЯ ЮРИДИЧЕСКОГО ЛИЦА: ИНТЕГРАТИВНЫЙ ПОДХОД (Legal Person Theory: An Integrative Approach)

Russian Abstract:Процесс концентрации и централизации капитала, обусловленный переходом от натурального хозяйства к товарному привел к изменению экономического представление о юридическом лице, совершенствования правовой составляющей этой конструкции. Бесспорно, что с помощью теории фикции Ф. К. Савиньи раскрывается основная концептуальная идея обоснования природы юридического лица через концентрацию имущества и денежных средств в руках автономного субъекта права, ограничения гражданско-правовой ответственности физического лица за результаты деятельности такого субъекта, обеспечило быстрое развитие этой правовой конструкции. Однако, сегодня мы наблюдаем потребность в положительной деформации этого концепта. Через собственные особые черты, которые раскрываются в признаках самостоятельной юридической ответственности и автономной участия в гражданском обороте юридическое лицо становится средством неправомерных действий в гражданском обороте связанных с ней физических лиц. Компенсаторностю этого обстоятельства выступает расширение границ юридической ответственности физических лиц за результаты деятельности юридического лица, а также фрагментарное сужение автономии ее участия в гражданском обороте, в частности в части защиты своих субъективных гражданских прав. Итак, определяя современный взгляд на природу юридического лица мы синтезируем положения теории фикции Ф. К. Савиньи и положения о сущности человеческого субстрата в жизни юридического лица, которые развернуты в теории интереса Р. Иерингу в единую интегративную теорию. English Abstract:The process of concentration and centralization of the assets, conditioned by the transfer from the homegrown production to the commercial one, has led to the change of economics idea of a legal person, improvement of the legal component of this construction. Without a doubt, with the help of the fiction theory of F.C. Savigny, the main conceptual idea of legal person nature grounding is divulged through the property and monetary means concentration, in the hands of an autonomous subject of the right, limits of civil-legal responsibility of an individual in the results of activity of such a subject, which caused a rampant development of this legal construction. However, nowadays we are observing a necessity of positive deformation of this concept. Due to personal special traits which are unlocked in the features of independent legal responsibility and autonomous participation in a civil circulation, a legal person becomes a resource of legal faults in the civil circulation of the connected with it individuals. The compensative factor for this circumstance is the expansion of the limits of legal liability of individuals for the results of activity of a legal person, as well as a fragmentary narrowing of the autonomy of its participation in civil transactions, in particular in terms of protection of their subjective civil rights. Consequently, when determining a modern view on the nature of a legal person, we synthetize the ideas of the fiction theory of F.C. Savigny and the concept of human essence in life of a legal person, developed in the R. Jhering jurisprudence of interests theory into unique integrative theory.

The problems of recognition of property right on not accepted for operation immovable property as judicial way of protection of investor’s subjective civil rights and interests

The article contains the results of author’s idea of an order of usage such way of protection of investor’s subjective civil rights on immovable property (an investment object) and his interests in it as recognition of property right. Nowadays the usage of such protecting way linked to two main problems. The first problem is an object of protection. At the moment of sue the investor has no property right on appropriate immovable thing that makes it impossible to protect it with above-mentioned way. The second problem is a widespread approach according to which the investor has a right to claim the right of property but does not has such right of property till the thing is taken into operation. Moreover scientific approach according to which till the immovable thing is taken into operation it considered as construction in process is supported in modern juridical literature. This make impossible to recognize property right on appropriate thing as on immovable one. The author proposes an alternative point of view on appropriate problem. In his opinion such way of protecting as recognition of the right of property on immovable thing, that is the investment object, can be used for protection of investor’s right to claim in appropriate relationship as well as for protection his proprietary interest in acquisition the right of property on appropriate real property. At the same time the taking of the immovable property into operation confirms the fact of the completion of the construction building but is not a circumstance that leads to such completion. The author states that an amendments that have been done in current legislative provisions of Ukraine during the last several years expanded the court’s possibilities in protection of investor’s rights in construction sector. Obviously the recognition of investor’s right to claim related to investment object doesn’t provide the satisfaction of his proprietary interest that is tendency to get right of property on appropriate immovable thing. Moreover, the right to claim is a mean of appropriate aim achievement. In this regard the most effective way of protection in analyzed situation is the recognition of investor’s right of property on immovable thing (investment object). Key words: immovable property, judicial protection, right of property, recognition of property right, proprietary interest

Judicial mechanisms for overcoming difficulties in resolving a dispute in the absence of a rule of law or inconsistency in its application

The article considers the issues of the possibility of using such legal instruments as judicial mechanisms for overcoming difficulties in resolving disputes in the absence of an appropriate rule of law or inconsistency of its application. An attempt has been made to trace the tendency of courts to turn to analogy of law and analogy of law, as well as to broader interpretation and application of doctrines. It is concluded that the use of a variety of legal instruments provided by the Civil Code of Ukraine and judicial practice makes it possible to properly exercise and protect subjective civil rights. In the absence of full-fledged normative regulation, when considering cases, one should use such approaches as analogy of law and analogy of law, doctrine, interpretation. It is indicated that the proper interpretation of the norms of law is one of the conditions for their application in accordance with the needs of society, while giving rise to both the appropriate for the settlement of the problem, and legal means of their resolution. However, there is often a need for an analogy of law or analogy of law if the rules of law do not meet the conditions of formal certainty. It is shown that using a wide range of methods for solving problems arising from inappropriate or insufficient legal regulation, it is possible to achieve a useful legal effect. At the same time, it was noted that one should not overload the laws with unnecessary legal mechanisms, the judicial practice copes with this quite effectively

재외국민 보호에 관한 헌법적 고찰 - 특히, 헌법상 재외국민보호의무와 외교적ᆞ영사적 기본권보호의무를 중심으로

The constitutional obligations of Korea as a state in relation to the protection of and support for Korean people outside of the territory of the country (overseas residents in a broad sense) can be discussed based on two important pillars. The first is the obligation to protect Korean nationals overseas based on Article 2 (2) of the Constitution, and the second is the diplomatic and consular state obligation to protect the basic rights. First, according to the historical interpretation of this Article, the overseas Koreans who must be protected under Article 2 (2) of the Constitution are those Korean nationals (overseas Korean nationals in a narrow sense) who have resided in a foreign country for a long time. In addition, the details of protection include: ① the diplomatic and consular protection to ensure that Koreans overseas are treated properly in accordance with international laws and the laws of the country of their residence while they have resided in that foreign country; and ② the provision of beneficial support for those Koreans, considering their residence overseas, so that they can realize their social integration as Korean nationals to improve the convenience of their domestic and foreign activities. Second, since the diplomatic and consular state obligation to protect the basic rights of overseas Koreans is based on the fact that the state power must be bound to the basic rights of the nationality (even if the nationality stays outside of Korea's sovereignty over territory), those who must be protected include all Korean nationals overseas (overseas Koreans in a broad sense) (regardless of the causes or purposes of their residence in foreign countries). In addition, the protection is that the state should protect the basic rights of Korean nationals through the diplomatic and consular means in the event of infringement on their basic rights outside the country's sovereignty over the territory. On the other hand, the details of diplomatic and consular protection among the contents of the state's constitutional protection obligation for overseas nationals are overlapped with the contents of the diplomatic and consular obligations of the state to protect basic rights. However, the latter, unlike the former which focuses on the protection of and support of overseas Koreans in a narrow sense, directly targets overseas Koreans in a broad sense, and the violation of the obligation causes the infringement of their basic rights. Theoretically, the latter is distinguished from the former in that a subjective civil rights corresponding to the protection obligation can be derived.

About judicial protection of subjective civil rights

The article is devoted to the judicial protection of subjective civil rights. The author tries to formulate the concepts of subjective civil rights and the judicial protection of subjective civil rights to determine the ratio of subjective civil rights and the right to judicial protection as well as the judicial protection features of various subjective civil rights categories. The paper presents the authors conception of subjective rights, the various ways by which they are protected, and the features of the protection of certain types of subjective civil rights. The aim of the research is to find the most optimal ratio of the right of subjective rights owner to protection and the right of subjective right for protection, in order to determine the most typical ways to protect certain categories of subjective civil rights. The methodological basis of the research includes the well-known general and private scientific methods of scientific knowledge. The paper concludes by stating that subjective civil rights have general (universal) and specific ways of protection.

The Investigation of Peculiarities of the Occurrence of Subjective Civil Rights in Registration of a Patent

The main aspects of the impact of patents on technological and social development have been highlighted, and it has been suggested to adapt a powerful world experience in this field. The key aspects of the innovation process and the protection of the results of scientific and technical action with the help of patents, and the peculiarities of the occurrence of subjective civil rights are considered. The authors of the paper analyze the current legislative provisions and determine the direction of its development in the context of globalization. The article explores the theoretical construct of these relations and provides an analysis of civil legislation as applied to industry standards of economic legislation. The practical significance of the study is determined by the fact that the application of the developed provisions will facilitate the harmonization of national legislations in the formation of legal systems. The aim of the article is to supplement and clarify the ideas about patent and of subjective civil rights. The factors that influenced the development of the doctrine civil rights have been considered, in particular, taking into account the experience of European countries.

FEATURES OF THE SUBJECTIVE CIVIL RIGHTS ON PATENT

The main aspects of the impact of patents on technological and social development have been highlighted, and it has been suggested to adapt a powerful world experience in this field. The key aspects of the innovation process and the protection of the results of scientific and technical action with the help of patents, and the peculiarities of the occurrence of subjective civil rights are considered.

Актуальные проблемы защиты авторских и смежных прав

The most important conditions for the successful development of such aspects of a person’s spiritual life as: science, literature and art are not only the creation of conditions for recognition of the creators of their creative works, as well as certain subjective civil rights, but also the provision of these rights with reliable legal protection against various kinds of encroachments.

Правовое регулирование ограничений субъективных гражданских прав

Тhe subject of the article is legal regulation of restrictions of civil rights; it is noted that the scope of such regulation can vary depending on certain legally significant circumstances; author gives examples of situations related to the restriction of subjective civil rights, the regulation of which is exhausted by its legal component without the need for individual regulation; the author comes to the conclusion that such situations are possible in circumstances where the restrictions are typical, standardized and do not depend on the subjects of restrictions or certain external circumstances.

THE JURIDICAL NATURE OF TERMINATION OF SUBJECTIVE CIVIL RIGHT

The article is devoted to the consideration of the essence of termination of subjective civil right as juridical possibilities of appropriate person ensured by provisions of civil law of Ukraine. Ignoring the widespread understanding of termination of subjective civil right as the termination of its belonging to a person the author proposes an alternative point of view on this problem. The independent character of appropriate phenomenon determines the necessity of designation the essence of its termination as an element of juridical reality. In this context, the termination not always mean the termination of belonging of appropriate subjective civil right to a person. The problem is researched by the author in the context of structural connection between elements of juridical construction of civil relationship and terminative influence of juridical facts over them. Particularly the order of termination of the subjective civil right related to its realization and to a waiver of it is analyzed. Considerable attention is paid to termination of the subjective civil right that is the result of the termination of a subjective civil obligation that corresponds to such right, termination of subject and object of relationship. The author also determines juridical schematizations related to the complex influence of terminative circumstances over civil relationships. The content of the sign of absolute termination of a subjective civil right is concretized in the article. It is defined that it means termination of subjective civil right absolutely, but not the only termination its belonging to bearer. The termination of subjective civil right doesn’t relate to its emergence at another person that is the transfer of the right. It is defined that termination of subjective civil rights also characterized by finality. This characteristic concretizes juridical situations in which appropriate juridical consequences appear. Finality means that the termination of the right doesn’t provide its renascence at the appropriate person in concrete circumstances of the juridical situation. The article contains the author’s definition of termination of subjective civil rights. Keywords: termination of right, termination of the relationship, waiver of a right, the realization of right, absolute termination, finality termination.