<<

ž 2. Concept and value of the mechanism of realisation of the civil rights and discharge of duties



The mechanism of realisation of the subjective civil rights and execution of subjective civil duties is a difficult legal concept. For comprehension of an essence of the given scientific abstraction it is necessary to establish not only set of its signs, źsense of the general names╗ (the so-called logic maintenance), but also to deduce system of elements (the actual maintenance) of which there is a general order of knowledge of a considered legal phenomenon — the mechanism of realisation of the civil rights and executions of civil duties; to present the given concept as system of knowledge, that is źboth set known to us both the cores, and derivative signs, conceivable subjects in concept, and also knowledge of in what concrete forms there are actually these subjects generalised in concept╗ [251].
Inherently the mechanism of realisation of the civil rights and execution of civil duties is the original, legal phenomenon noted by specific branch lines. In the scientific literature studying of a phenomenon of the mechanism of realisation of the rights and discharge of duties in many respects follows the theory of the mechanism of legal regulation.
It is possible to establish, that researches in this sphere find out two complexes of problems. The first is connected with working out and a substantiation of methodology of research, specificity of the approach in studying of a legal phenomenon interesting us, otgranicheniem it from adjacent concept of the mechanism of legal regulation. The second spectrum of problems is connected with explanation of internal structure of this legal phenomenon, revealing of elements and stages of action of the mechanism of realisation of the subjective civil rights and discharges of duties, laws and possibilities of their correlation.
Let's address to the first problem field. How the mechanism of legal regulation and the mechanism of realisation of rights correspond?
In legal science there was a proved opinion, that the legal regulation mechanism represents model of action of rules of law [252]. Recognizing that legal regulation is understood as set of various forms and means of legal influence of the state for behaviour of participants of public relations [253] the traditional mechanism of legal regulation appears as process in bolshej degrees imperiously-administrative.
The mechanism of realisation of rights and duties is expedient for considering as is intellectual-strong-willed process of achievement of the purpose by the legal owner, expressed in a certain order of legally significant actions of the subject, conditions and implementers.
Thus, the mechanism of legal regulation and the mechanism of realisation of the rights and discharge of duties — essentially raznokachestvennye the legal phenomena. The purpose of the last consists in warranting of actual realisation of rights and discharges of duties, the prevention of infringement of rights, their restoration and compensation of a damage (harm), and also in strengthening zakonoporjadka in the civil circulation. Considering unconditional communication of two legal phenomena — [254] — it is necessary to take regulation of the right and its realisation into consideration and their basic discrepancy, and consequently, and presence of two various legal designs — the mechanism of realisation of rights and the legal regulation mechanism.
The scientific judgement of realisation of the right from a position of the subject of this right, the authorised person, is maloissledovannoj a problem.
Meanwhile, in civil law sphere where mainly optional method of influence is used, studying of the mechanism of realisation of the rights in which the major component and a driving impulse is interest of the legal owner is the most actual. Therefore this aspect of a problem comes under, in our opinion, most to thorough examination and all-round studying. So rupture between doktrinalnym, scientific judgement and practical perfection of legal system is overcome. Only the similar approach will transform the right from "transcendental object" in źa thing for all╗.
Hence, it is expedient to consider realisation of the rights and discharge of duties from a position of the subject of law. At research of the mechanism of realisation of rights it is necessary to recognise as the central category accordingly the subject, and driving stimulus — its requirements.
Considering told, the mechanism of realisation of the subjective civil rights and discharge of duties is legislatively authorised order of the organisation of actual and-or legally significant actions of participants of the civil matters, providing the valid achievement by subjects of the legal purpose (blessing reception).
The basic signs of the mechanism of realisation of the rights and discharges of duties are: dynamism; an orientation on actual satisfaction of interest of participants of the civil circulation; the structure of the mechanism of realisation is caused by interests of participants of civil-law relations and laws of corresponding social relations.
Let's consider more in detail these signs.
Dynamism of the given legal design is connected first of all with right change: from one stage to another the right condition evidently changes. So, during lifetime of the estate-leaver successors cannot carry out the right to inheritance though potentially granted right is formed by consanguinity, the will. Be realised, realised this right can from the moment of death of the estate-leaver. That is occurrence of the solving juridical fact translates the right from a potential condition to a realisation condition. Similar dependence is traced and at other stages of action of the mechanism.
Dynamism of the mechanism also is in many respects connected with presence of the legal procedures expressed in certain sequence of actions of participants of legal relations and directed on concrete result, the representing juridical fact.
Other property of the mechanism of realisation of the rights and discharge of duties — an orientation on actual satisfaction of interest of participants of the civil circulation — is connected by that all legal ways and means, an order of their organisation in the mechanism should provide approach of a final stage — actual reception by the subject of the required blessing. And only at full conformity of elements and stages of this legal design probably guaranteed achievement of result, "automatic" work of the mechanism.
The following sign of the mechanism of realisation of the rights consists that its structure is caused by interests of participants of civil-law relations and laws of corresponding social relations. Differently, specificity, structure of the mechanism of realisation of the rights directly is connected with a kind and the maintenance of these rights, with the form of their realisation.
So, from the point of view of specificity of realisation researchers allocate the mechanism of direct realisation of the rights. Direct realisation is understood as direct activity of subjects of public relations in which result legal rules are realised.
The interesting position concerning the mechanism of direct realisation of the rights and freedom was proved by O.V.Beljanskaja. She considers, that the mechanism of direct realisation of the rights and personal freedoms źrepresents a complex of means, factors and the conditions providing independent activity of the person on realisation of the rights and freedom, for the purpose of their fuller and an effective utilisation╗ [255]. Essential difference from the general mechanism of legal regulation is absence in the mechanism of direct realisation of the rights of a stage pravoprimenenija. The major intrinsic characteristic of direct realisation is orientation to the legal owner.
Besides, the researcher had been allocated a number of features which procedure of direct realisation of the rights has: the person, instead of the special representative participates in the specified process body; special procedure of realisation or is absent (the stage of possession and right realisation) coincides, or is established by the law; is absent pravoprimenitelnyj the certificate individualising the rule of law; the person herself defines volume of realisation of the right and at any moment can refuse its realisation [256]. Differently, it is necessary to recognise as the most essential components of the given legal design a legitimate interest, lawful and actual behaviour of the carrier of the right.
From here and significant feature of constant elements of the given mechanism: the person herself defines procedure of realisation of the right. Freedom of creative activity, for example, assumes, that the subject himself chooses a kind of activity and a way of realisation of this right. It can make various acts at own discretion: to create, extend, popularise products of the given activity.
O.V.Beljanskaja allocates following elements of the mechanism of direct realisation of the rights: fastening of the personal rights realised directly; the activity of the person directed on realisation of the right; development of political activity of citizens, interest in use of the rights and freedom; increases of level of legal knowledge of citizens for the purpose of competent use of the rights, freedom, legitimate interests to achieve their realisation and to protect them in case of their infringement; pravotvorcheskuju activity on perfection of the legislation establishing procedural rules of direct use of the rights and personal freedoms [257].
As a whole not deprived of contradictions and the disputable moments, this position reveals the most essential feature of the given legal design: in its centre there is a legitimate interest of the legal owner, and borders of the mechanism of direct realisation of the rights do not coincide with limits of the mechanism of legal regulation. A generality of the named category with the mechanism of legal regulation that it represents the special "truncated" variant of the last, covering stages, occurrence of rights and subjective duties, realisation of rights and duties. At the same time, according to the given position, the mechanism of direct realisation of the rights in a sense is wider, than the legal regulation mechanism as contains in itself a stage of acceptance of norms.
As shows studying, the greatest differences of action of various mechanisms of realisation of the rights are connected with a procedure stage. Fairly in this occasion has noticed V.V. Kopejchikov, that various kinds of the rights and personal freedoms differ procedure of realisation [258].
Realisation procedure is understood źas system of consistently perfect actions and the relations arising on their basis directed on achievement of certain legal result╗ [259]. Concepts "realisation" and "procedure" correspond as the general and a part, the form and the maintenance. Realisation includes procedure as a necessary organizational dynamical actual element. Thus besides the procedure directed on realisation of a fundamental law, in the course of realisation procedures of office character are made. So, first of all it is necessary for proprietor of premises to make the state registration of the property right before to make any transactions with the given property. Thus actually till the moment of registration the proprietor could realise the right of possession and partly the order this property. For example, the proprietor of real estate can, having spent own means to make in it repair, other works under its maintenance but makes transactions on alienation of this property it cannot.
The given thought as a matter of fact is continuation of the fair statement that in the course of realisation of the right subjects enter various kinds of legal relations: the basic and organizational [260].
Procedure as means of realisation of the right is shown differently at various stages of realisation of the rights. At a stage of an establishment of juridical facts procedure in which result the solving juridical fact is established, will be legalised can take place: for example, — the state registration of real estate, the legal person, the private businessman etc.).
In legal relation procedure takes place both at a stage of its occurrence, and at a stage of active realisation of the maintenance of legal relations, the terminations of legal relations. At a facultative stage of protection of the broken right procedure has strongly pronounced imperative character.
Realisation various under the content of rights has the differences connected with procedures or with their complex. Thus, the mechanism of realisation of the rights and discharge of duties can be defined as a complex of the consecutive legal procedures directed on achievement of intermediate legal results and subordinates of an overall aim — full realisation of the right and discharge of duty. Procedure in this case provides dynamics of process, building, organizuja algorithm of the mechanism of realisation of the rights, creating necessary intermediate organizational legal relations.
The rights there was O.A.Krasavchikov who for the first time has stated thought on formation of a special kind of legal relations — organizational which develop of the actions directed on streamlining (normalisation) "organizuemyh" of relations [261].
At the same time the sequence of procedures not is all mechanism in its integrity. The maintenance of procedures is defined by the legal relation maintenance. Thus, the maintenance of the concrete right (duty) will be an ideological basis of all legal design for the legal owner.
In the scientific literature attempts to comprehend structure of the mechanism of realisation of the rights have been undertaken. So, N.I.Miroshnikov, and then N.A.Dmitrik investigated a category of the mechanism of realisation of the right from the point of view of unity of its elements. As a result of N.I.Miroshnikova has offered a set of the diverse elements partially concerning the mechanism of legal regulation, partially laying outside of actually legal matter: presence of perfect rules of law (the civil legislation); measures of organizational maintenance of the subjective civil rights, including properly organised activity of bodies and the officials applying civil-law norms; legal knowledge of subjects of civil law; principles of realisation of the civil rights; lawful behaviour of subjects of civil law; juridical facts [262]. Feature of the given approach consists that the mechanism of realisation of the rights is presented as set of all źconditions and the means providing realisation of possibilities provided by the civil law in the form of concrete rights╗ [263].
N.A.Dmitrik has subjected to criticism the similar expanded understanding of the mechanism of realisation of rights, referring that the given legal design — a legal phenomenon and consequently, can include only legal elements [264]. Besides, in its opinion, norms cannot be an element of the mechanism of realisation of rights as in itself norms are not legal means for the subject. The given remarks, in our opinion, are fair.
The researcher has suggested to allocate following elements of the mechanism of realisation of rights: the right, a duty, legal forms and ways of realisation of the right and execution of subjective civil duties [265]. And all given legal design the researcher understands as źthrough system of the interconnected means (legal and not legal character)╗ [266]. Value of the specified point of view that the central components of the mechanism of realisation of the civil rights become a subject of aim studying, representing its unconditional basis though with similar understanding of the "truncated" structure of the mechanism of realisation of the rights to agree difficult.
The resulted positions are represented by two extreme variations of understanding of the mechanism of realisation of rights: in the first case limits of the given legal model are washed away, the second theory sins with an unjustified isolationism concerning other, not less important components of the mechanism (preconditions of realisation, sense of justice, pravoprimenenija).
Besides, in both works, not looking at the offered understanding of the mechanism as dynamic process, stages of this movement, it temporalnoe development are insufficiently defined. After all set of implementers does not settle the maintenance of all mechanism of realisation. These means are directed on modelling of certain behaviour of the subject. Action of concrete means should be exposed to the complex analysis. But the problem of structural communications of its elements is far from the permission. Meanwhile this question as it is represented, is the most essential from the practical point of view and demands detailed scientific working out.
The special attention is turned on itself by a position according to which the mechanism of realisation of the right is źsocially caused, psychologically regulated and, that is especially important, legislatively predusmotrennyvj a complex of the adjusted actions, first of all, persons as legal owner, and also obliged and other subjects for the purpose of reception by the interested person of the social blessing mediated by the right (freedom)╗ [267]. This one of few definitions concentrated, in our opinion, on a prominent aspect of the mechanism of realisation — for a basis the system of legal means which is not less important in mechanism structure pravoosushchestvlenija, and legally significant actions of participants of the civil circulation is taken not. Really, on these legally significant certificates action of the mechanism of realisation of the rights and discharge of duties is directed.
Considering, that the mechanism of realisation of the subjective civil rights is non-uniform, specific both on basic elements (structure), and on used legal means, it is necessary to reveal, on the one hand, those factors which cause qualitative changes of the right in the course of its realisation, stimulate transition of the right from one condition in qualitatively other. On the other hand, to define those elements which directly participate in right realisation.
We start with belief, that realisation of subjective civil law and execution of a subjective civil duty occurs within the limits of legal relation. Hence, the mechanism of realisation of the rights and discharge of duties on a being and structure — concept wider as covers, includes, except the legal relation, and many other elements:
First, causing its action, that is its occurrence acting as the basis;
Secondly, organizational-subject components, including obespechitelnye (guarantee) elements;
Thirdly, the parts accompanying realisation of the subjective civil rights and execution of subjective civil duties.
All listed groups of structural elements available and unity form the mechanism of realisation of the subjective civil rights and execution of subjective civil duties. If the given structural components are present, are considered in the considered mechanism — that this system defining an order of functioning of movement of the right from the occurrence before direct actual realisation, becomes operating, "working". And only in this case it is possible to build the guaranteed realisation of realisation of the right and execution of a subjective duty. The system should be designed so that it could function "automatically". In other words, if the mechanism is started — źmovement has begun╗ it should occur according to will of the authorised person independently and inevitably, in many cases without any additional actions of the person allocated with the right.
Considering, that first, the set of legal means in each concrete case of realisation of the subjective civil rights and executions of a subjective duty can be individual; secondly, as a rule, it is used there is) a difficult, multilevel combination (configuration) of legal means (feature at the decentralised, optional regulation [268]); thirdly, there is a variety and specificity of a combination of ways of realisation and protection of the civil rights; fourthly, into an initial, first element (link) of the considered mechanism can enter not only legal rules, but also customs of a business turn, a rule of the civil-law contracts regulating behaviour of the parties in a conflict situation, it is possible to draw a conclusion: on formation of the mechanism of realisation of the civil rights and discharge of duties, including its structure, in each concrete case will of participants of civil law influences.
The structure of the mechanism of realisation of the rights and discharge of duties as its structural elements includes guarantees of realisation of the rights. The specified legal design should be directed not only on achievement of result official (de jure), but also on the valid, actual realisation of those possibilities (de facto) for the authorised person which are given by the right. Similarly aim the mechanism of discharge of duties in an ideal should express not exclusively legal (formal) performance of necessary requirements, but also actual, social and economic result of action (inactivity) of a party liable. As at data theoretical, legislative and pravoprimenitelnom the approach the legal (legal) purpose — źas transformation of objective possibility in ideal (before its practical realisation) the validity╗ [269] — can be considered as the reached.
Rather indicative the following business considered by Ussuriisk city court in this respect is represented. 14-year-old Anton R because of defeat of cages of a brain is the lifelong invalid, and its life in many respects depends on work elektrootsosa, is independent it can look and breathe only. On November, 21st, 2000 there was Anton's R real threat to life in communication by switching-off by electric power joint-stock company "Дальэнерго" in city residential area where the minor lives. Mother of the victim has addressed in court with the claim about indemnification of moral harm energosnabzhajushchej the organisation in size 50тыс.руб. (It was necessary on purchase of the independent electrogenerator) so much. The Ussuriisk city court had been established presence of real threat to life of the son istitsy, infringement of its right to life. The court has defined Open Society "Дальэнерго" duty to compensate moral harm. However in what size? The court has considered, that źwith a view of a rationality and justice╗ indemnification of moral harm is necessary for lowering to 4тыс. The rbl. in such sum court has estimated sufferings of mother who nearly have not lost the son, and physical (together with moral) tortures of the victim [270].
Whether it is possible to consider on materials of the given incident, what the right of the citizen is realised and properly protected? Formally? Yes. Is guarding pravoprimenitelnyj the certificate (a facultative element). At this stage according to the domestic legal doctrine the mechanism of legal regulation [271] also comes to the end. However fictitious realisation of the right, actually civil law of the person, as a matter of fact, took place remains without protection, it has not been realised.
Considering told, it is necessary to draw a conclusion: the mechanism of realisation of the subjective civil rights and discharge of duties is legislatively authorised order of the organisation of actual and-or legally significant actions of participants of the civil matters, providing the valid achievement by subjects of the legal purpose (blessing reception).
The mechanism of realisation of the subjective civil rights urged to guarantee actual realisation of rights and discharge of duties, to warn infringements of rights, to restore them, to guarantee compensation of a damage (harm), and also to harden zakonoporjadok in the civil circulation. The traditional mechanism of legal regulation appears as process in bolshej degrees imperiously-administrative. The mechanism of realisation of rights and duties is expedient for considering as is intellectual-strong-willed process of achievement of the purpose by the legal owner, expressed in a certain order of legally significant actions of the subject, conditions and means.
Concepts źthe legal regulation mechanism╗ and źthe mechanism of realisation of the subjective civil rights and discharge of duties╗ correspond as the general and private. The mechanism of realisation of the civil rights and discharge of duties is, on the one hand, a stage of action of the general reguljativnogo the mechanism, and with another, — owing to features of developing civil relations (prevalence of an optional method of regulation), considered with a position of the carrier of the rights and duties, represents system specific, peculiar only to the given legal model, elements.
The methodology of studying of the mechanism of realisation of the rights and discharge of duties is based on representation about right and discharge of duty realisation as to change of their qualitative conditions. According to it it is necessary to understand the rights constituting it as mechanism elements and duties and factors (elements, the basic parts), influencing on them, consistently reformative them from a condition of legislative possibility in a condition of actual realisation.
Elements of the mechanism of realisation of the civil rights and discharges of duties are: rights, subjective duties, juridical facts (including, transactions), ways of realisation of the rights (discharge of duties), means and the form of their realisation (an establishment, act, legal procedures).
In wide value the mechanism structure includes following elements: the favorable legal environment including the national legal doctrine, forming an ideological basis of the mechanism of realisation of the rights and discharge of duties; principles of realisation of the rights and discharge of duties; rules of law; customs of a business turn; juridical facts (legal structure); civil matters; organizational-subject components, including obespechitelnye (guarantee) elements.
<< | >>
A source: Vavilin Evgenie Valerevich. the MECHANISM of REALIZATION of the CIVIL RIGHTS And DISCHARGE OF DUTIES. The dissertation on competition of a scientific degree of the doctor of juridical science. Moscow - 2009. 2009

More on topic ž 2. Concept and value of the mechanism of realisation of the civil rights and discharge of duties:

  1. Section I. REALIZATION of the SUBJECTIVE CIVIL RIGHTS And DISCHARGE OF DUTIES: CONCEPT And the MECHANISM
  2. Chapter 2. CONCEPT of the MECHANISM of REALIZATION of the CIVIL RIGHTS And DISCHARGE OF DUTIES And ITS PARITY WITH ADJACENT CATEGORIES
  3. ž 3. Interrelation of realisation of the civil rights and discharge of duties
  4. ž 1. Gnoseological essence of principles of realisation of the civil rights and discharge of duties
  5. ž 2. The functional approach as a basis of studying of principles of realisation of the civil rights and discharge of duties
  6. Chapter 3. ELEMENTS of the MECHANISM of REALIZATION of the CIVIL RIGHTS And DISCHARGE OF DUTIES
  7. ž 3. A parity of concepts źcivil-law principles╗ and źprinciples of realisation of the rights and discharge of duties╗
  8. Section II. BASIC ELEMENTS And STAGES of ACTION of the MECHANISM of REALIZATION of the CIVIL RIGHTS And DISCHARGE OF DUTIES
  9. Section III. PRINCIPLES AS the MAJOR ELEMENT of the MECHANISM of REALIZATION of the CIVIL RIGHTS And DISCHARGE OF DUTIES
  10. Chapter 1. REALIZATION of the SUBJECTIVE CIVIL RIGHTS And DISCHARGE OF DUTIES: CONCEPT And INTERRELATION
  11. ž 1. A principle of the guaranteed realisation of the rights and discharge of duties