Exercise and protection of civil rights. Exercise and protection of civil rights Classification of methods for protecting subjective civil rights

Methods of protection civil rights permitted by law differ from each other in legal and material content, forms and grounds for application. Based on these characteristics, methods of protecting civil rights can be classified into the following types:

a) actual actions of authorized subjects bearing signs of self-defense of civil rights;

b) measures of operational influence on the violator of civil rights;

c) law enforcement measures applied to violators of civil rights by competent government or other bodies.

Question 22: Civil methods of protecting civil rights.

The list of ways to protect civil rights is contained as a rule, in the general part of civil law . IN Art. 12 GK it is stipulated that the protection of civil rights is carried out by:

1) recognition of the right;

2) restoration of the situation that existed before the violation of the right, and suppression of actions that violate the right or create a threat of its violation;

3) recognizing a voidable transaction as invalid and applying the consequences of its invalidity, applying the consequences of the invalidity of a void transaction;

4) invalidation of an act of a state body or body local government;

5) self-defense rights;

6) awards to perform duties in kind;

7) compensation for losses;

8) collection of penalties;

9) compensation for moral damage;

10) termination or change of legal relationship;

11) non-application by the court of an act of a state body or local government body that contradicts the law;

12) in other ways provided by law.

23Necessary defense and actions in a state of emergency as ways to protect civil rights.

In accordance with Art. 1066 of the Civil Code is not subject to compensation for damage caused in a state of necessary defense, unless its limits were exceeded.

Necessary defense is recognized as protection from a socially dangerous attack by causing harm to the attacker, if the limits of necessary defense were not exceeded.

24Civil Commercial organizations as participants in civil legal relations.

Commercial are organizations that pursue profit as the main goal of their activities and distribute the profits between participants.

Commercial organizations can be created only in the organizational and legal forms provided for in paragraph 2 of Art. 50 of the Civil Code of the Russian Federation: in the form of business partnerships and societies, production cooperatives, state and municipal unitary enterprises.

Commercial organizations in the most general form can be divided into two groups.

1. Commercial organizations with property divided into shares (contributions, shares) of the founders. This is due to the fact that the founders of such commercial organizations have in relation to them rights of obligation. This group includes business partnerships and societies, production cooperatives.

2. Commercial organizations with indivisible property, which cannot be divided into deposits (shares, shares). The founder retains ownership on the property of such organizations, giving them limited property rights. This group includes state and municipal unitary enterprises.

Business partnerships can be created in the form of general partnerships and limited partnerships. They represent associations of persons and require not only the participants to make contributions to the share capital, but also their personal participation in the conduct of the affairs of the partnership. The subjective composition of the participants is of particular importance for the activities of the partnership, therefore the withdrawal of a participant from the partnership, the death of a citizen, the liquidation of a legal entity, the recognition of a participant as bankrupt as a general rule entails the liquidation of the partnership (Part 2 of Article 81 of the Civil Code of the Russian Federation). If the only participant remains in the partnership, then it is also subject to liquidation, but this participant has the right to transform such a partnership into a business company within 6 months (Part 1 of Article 81 of the Civil Code of the Russian Federation).
25Non-profit organizations as participants in civil legal relations.

Non-profit organizations that do not pursue profit as the main purpose of their activities and do not distribute profits among their partners.

Consumer cooperatives are an association of individuals on a membership basis in order to satisfy their own needs for goods and services, the initial property of which consists of share contributions. Here members can distribute income from business activities.

A public association is a non-profit association of individuals based on their common interests for the implementation of common goals. These are: public organizations (membership-based associations); social movements (mass associations that do not have membership); public funds (non-membership associations whose purpose is to form property and use it for socially beneficial purposes); public institutions (non-membership organizations whose purpose is to provide a specific type of service in the interests of participants); bodies of public initiative (do not have membership. The goal is a joint decision social problems citizens at their place of residence, work or study).

Religious organizations-associations of citizens with the main goal of joint professing and spreading the faith and having characteristics corresponding to these goals.

26Branches and representative offices of legal entities. Subsidiaries and dependent companies.

A separate division of a legal entity located outside its location, which (Article 55 of the Civil Code):

· represents the interests of a legal entity and carries out its protection - representation;

· carrying out all or part of its functions, including the functions of representation - branch.

Hence, the functions of a branch are broader than the functions of a representative office.

Features of the representative office and branch:

· are not legal entities (do not have legal capacity), they are endowed with property by the legal entity that created them and act on the basis of the provisions approved by it;

· heads of representative offices and branches are appointed by a legal entity and act on the basis of its power of attorney;

· must be indicated in the constituent documents of the legal entity that created them;

· these are divisions (components) of a legal entity, and in this sense they are comparable to its other divisions (shops, teams, sections, lines, production, etc.);

· located outside the location of the legal entity, which is determined by the place of its state registration;

optional in the sense that entity may not have representative offices (branches), and if it does, it may close them, which will not in any way affect the very fact of its existence.

Any legal entity may have representative offices and branches, regardless of its affiliation with commercial or non-profit organizations and its form. This right can be exercised within the limits Russian Federation, and beyond, in compliance with the legislation of the relevant state.

Methods of protecting subjective civil rights are understood as substantive and legal measures of a coercive nature, enshrined in law, through which restoration (recognition) of violated (disputed) rights is carried out and influence on the offender.

Methods for protecting civil rights are named in Art. 11 Civil Code. They are:

• 1) recognition of the right;
• 2) restoration of the situation that existed before the violation of the right;
• 3) suppression of actions that violate the right or create a threat of its violation;
• 4) recognition of a voidable transaction as invalid and application of the consequences of its invalidity, establishment of the fact of the nullity of the transaction and application of the consequences of its invalidity;
• 5) invalidation of an act of a state body or local government and self-government body;
• 6) self-defense rights;
• 7) award to perform duties in kind;
• 8) compensation for losses;
• 9) collection of penalties;
• 10) compensation for moral damage;
• 11) termination or change of legal relationship;
• 12) non-application by the court of an act of a state body or local government body that contradicts legislation;
• 13) other methods provided for by law.

Thus, the list of methods for protecting civil rights specified in Art. 11 of the Civil Code is not closed or exhaustive. In essence, it represents a possible toolkit of remedies for violated rights that will help victims navigate and facilitate their choice.

Methods of protecting civil rights can be classified on different grounds. Thus, according to the goals of protection (the limits of influence on the violator of rights), the methods are divided into:

• a) preventive, which are aimed at stopping actions that violate the right or create a threat of its violation (termination of legal relations, invalidation of an act of a state body or local government body);
• b) restorative methods aimed at restoring the situation that existed before the violation of the right (return of property, compensation for losses);
• c) punitive methods (penalty).

The methods of protecting civil rights allowed by law differ from each other in legal and material content, forms and grounds for application. Based on these characteristics, methods of protecting civil rights can be classified into the following types:

• a) actual actions of authorized subjects bearing signs of self-defense of civil rights;
• b) measures of operational influence on the violator of civil rights;
• c) law enforcement measures applied to violators of civil rights by competent government or other authorities.

Methods of protecting civil rights, in addition, can be divided into exclusive (for example, reclaiming property from someone else’s illegal possession - vindication) and alternative (chosen by the subject of law from among several options, especially in obligatory legal relations), complex (collection of both property losses and moral harm).

civil law protection

A person whose rights or legitimate interests have been violated has the right to choose any of the methods of protection, but in some cases specific methods of protection are established by law. So, for example, according to Art. 473 of the Civil Code provides a list of possible actions that can be applied to the violating seller; according to Art. 1011 of the Civil Code, a person who has received or disseminated undisclosed information or uses it without legal grounds is obliged to compensate the person who lawfully possesses this information for losses caused by its illegal use, i.e. - compensation for losses, etc. An example of other methods of protection named in the legislation is Art. 989 of the Civil Code, which names methods for protecting exclusive rights.

The choice of protection method largely depends on the nature of the violation and the consequences of such a violation. This will be discussed below when disclosing specific methods of protection.

It should be taken into account that those specified in Art. 11 of the Civil Code, the methods of protection are heterogeneous in their legal nature, which also has a significant impact on the possibilities of their implementation. The most common in the literature is their division into measures of protection and measures of responsibility, which differ from each other in terms of the grounds for application, social purpose and functions performed, principles of implementation and some other points. Of greatest practical importance in this case is the fact that, as a general rule, measures of responsibility, in contrast to measures of protection, are applied only to the guilty violator of subjective rights and are expressed in additional burdens in the form of depriving the offender of certain rights or imposing additional responsibilities on him. Among the methods of protecting civil rights provided for in Art. 11 of the Civil Code, only compensation for losses, collection of penalties and compensation for moral damage can be recognized as measures of liability; all others are protective measures.

In addition to universal methods of protection, there are special methods of protection intended to serve certain types of civil rights, these are vindication and negatory claims, collection of interest for the use of other people's funds in accordance with Article 366 of the Civil Code, etc.

One of the means of protecting civil rights is civil liability, in particular, liability for violation of obligations, in which the most common methods of protecting civil rights are applied, such as compensation for damages and compensation for penalties.

However, it should be taken into account that the application of liability is possible subject to compliance with the requirements of the law, in case of violation of which a person loses the right not only to the possibility of using civil liability, but also loses the right to defense in general. So, according to Art. 9 of the Civil Code, going beyond the limits of the exercise of civil rights may serve as a basis for a court, economic court or arbitration tribunal to refuse an interested person any protection of his rights.

Depending on the implementation mechanism, methods of protecting civil rights can be divided into:

• a) methods that can only be carried out in a judicial (jurisdictional) manner (for example, invalidating an act of a state body);
• b) methods that can be carried out both in court and independently, without going to court (compensation for losses, collection of penalties);
• c) methods that can only be carried out in a non-jurisdictional manner (self-defense, operational sanctions).

Thus, methods of protecting civil rights are substantive and legal coercive measures established by law, through which the restoration (recognition) of violated (contested) rights is carried out and the impact on the offender.

Methods of protecting civil rights differ from each other in behavioral and material content.

Based on these characteristics, methods of protecting civil rights can be classified into the following types:

1) self-defense of civil rights;

2) measures of operational influence on the violator of civil rights;

3) law enforcement measures applied to violators of civil rights by competent government or other bodies.

Self-defense of civil rights is the commission by an authorized person of actual actions permitted by law, aimed at protecting his personal or property rights and interests (Article 14 of the Civil Code).

These include, for example, actual actions of the owner or other legal owner aimed at protecting property, as well as similar actions committed in a state of necessary defense or extreme necessity (Articles 1066, 1067 of the Civil Code).

Self-defense is used in cases where circumstances exclude the possibility of currently seeking protection from government authorities. It should not go beyond the limits of the rights that the victim protects, and should be proportionate in its forms to the encroachment, as a rule, ensuring the protection of material rights.

For example, installing a car alarm, installing a fence around a private house. However, there is a known case when the owner of a dacha fenced his plot with barbed wire, passing an electric current through the fence. The inadmissibility of this kind of “security” means is obvious, since they are aimed not only at protecting property, but also at causing harm to a person who may come into contact with such a structure through negligence. It follows from this that the authorized subject has the right to use only such self-defense measures that do not infringe on the rights and legitimate interests of other persons. If the use of unauthorized means of defense causes harm to other persons, then a statutory obligation arises to compensate for the harm caused.

At the same time, in cases provided for by law, causing harm to an offender or third parties by the actions of an authorized person to protect their rights and interests is recognized as legitimate and does not entail legal liability measures. We are talking about actions in a state of necessary defense or in conditions of extreme necessity.

Measures of operational influence are legal means of a law enforcement nature that are applied to a violator of civil rights and obligations by the authorized person himself as a party in a civil legal relationship without recourse to the competent state or public bodies for protection of rights. In science they are also called organizational measures, organizational sanctions.

These measures, like self-defense, are inherently permitted by law. But their subjects are necessarily represented by one of the parties to the legal relationship, which unilaterally, without contacting the competent state authorities, seems to respond to the inappropriate behavior of the other party.

These measures are distinguished by the principle of simultaneous fulfillment of obligations, for example, Railway does not release the goods to the recipient until transportation is paid for.

This is one of the ways to ensure the fulfillment of obligations, one of the types of legal guarantees.

Among the operational measures we can highlight:

1) execution by an authorized person of work not performed by the debtor at the expense of the latter (for example, elimination of defects in goods - clause 1 of Article 475 of the Civil Code);

2) securing counterclaims, payments (for example, delaying the delivery of cargo to the recipient or its dispatch until all due payments have been made - clause 4 of Article 790 of the Civil Code);

3) refusal (refusal to perform certain actions in the interests of a faulty counterparty; unilateral termination of the contract or change in its terms in the event of unlawful behavior of the counterparty - for example, paragraph 1 of Article 468, paragraph 2 of Article 475, paragraph 3 of Article 723, etc. GK);

4) settlement and credit measures similar to sanctions (for example, transferring a faulty payer to a letter of credit form of payment);

5) retention (Articles 359 - 360 of the Civil Code, paragraph 4 of Article 790 of the Civil Code).

Law enforcement measures applied to offenders by the state are methods of protecting civil rights that are implemented in a judicial form - in a judicial or administrative manner. This has already been discussed in more detail above.

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