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§ 3. Interrelation of realisation of the civil rights and discharge of duties



The complex of a different sort of problems is connected with judgement of civil matters in civil law — from clearing of semantics of key concepts before comprehension of features of structure of this legal phenomenon.
Some sharpest moments demand a special reflexion.
So, considering the maintenance, scientific abstraction «civil legal relations» — a binary category as consists of two integral parts. «Private-law relations represent the conformity of the right based on the juridical fact and a duty which are established between persons» [131]. In our opinion, as elements of civil matter it is more expedient to consider realisation of the subjective civil rights and execution of subjective civil duties corresponding to them. Indissolubility, dialectic unity of functioning of realisation of the subjective civil rights and execution of subjective civil duties characterises them as pair legal categories. It allows to use in the present research one of the major modern methodological approaches — rather-legal, based on comparison of the opposite phenomena of the legal validity.
«... From a position of the given approach informative possibilities considerably extend by consideration of those or others vzaimootnosjashchihsja the legal phenomena and processes, their internal communications are more full fixed, more accurately established both unity elements, and contrast elements» [132]. Pair scientific categories as the special logic form are directed not only on ascertaining of the fact of interrelation between certain legal abstraction, but also on knowledge of the valid interaction of the opposite legal phenomena, disclosing of their unity and "self-movement" [133].
If the subjective civil rights and duties in civil jurisprudence traditionally compared with each other, established is immanent it signs, distinctions and unity of the given opposite legal phenomena to a parity problem «realisation of the subjective civil rights — executions of subjective civil duties» much smaller attention was paid. Now it remains to one of maloissledovannyh in jurisprudence.
Steams «the subjective civil rights — subjective civil duties» and «realisation of the subjective civil rights — executions of subjective civil duties» genetically, is determined are interconnected. Given formally-logically formed legal steams edinit the general fundamental institutsionalnaja a basis, rodovidovoj (consolidates) character of the maintenance of their uniform beginning. More precisely, they «reflect the opposite displays of its essence taken from the point of view of a uniform basis, positive and negative sides of one process (it is allocated by us. — E.V.)» [134]. From here and similarity of many substantial (descriptive) elements, to a greater or lesser extent — unity of the characteristic.
Distinction of the given pairs legal phenomena is shown in their functional mission. The subjective civil rights and duties reflect a statics (a certain condition) legal relations. It is ideal model of a condition of rights and duties, legal relations as a whole during the certain fixed moment of time. Whereas realisation of rights and execution of subjective duties — is legal relations "movement", in other words, dynamics of the legal phenomenon mediating social processes, real behaviour of subjects, continuously and constantly occurring in time and space.

Thus, to is formal-logic and intrinsic comparison can be exposed not only pair categories of the right, but (as it is paradoxical sounds) and steams of categories or some pairs of legal phenomena if they comprise radical, consolidating konstituirujushchee the property, allowing to consider as their uniform basis of more abstract kategorialnogo a number or concept [135]. In particular, those will be steams «the subjective civil rights — subjective civil duties» and «realisation of the subjective civil rights — executions of subjective civil duties».
They as the difficult multipurpose legal phenomena reflect a statics and dynamics of the maintenance of wider legal abstraction — civil legal relations and further on kategorialnomu to a number — the mechanism of realisation of the civil rights and execution of civil duties.
The unity and interaction of realisation of the civil rights and discharge of duties is shown in their dialectic interrelation sushchnostej. Making a start from the given base precondition, using a deductive method, it is possible to reveal concrete displays of this legal phenomenon.
First, both rights, and subjective duties can take place, exist and be realised only within the limits of certain legal relations [136]. In other words, civil matter — not the basis of occurrence of claim to a party liable (persons), and the form, that legal design in which frameworks the subjective civil law is carried out and is accordingly executed a subjective civil duty. The similar approach allows to build most effectively theoretical model of a legal mechanism of the guaranteed realisation of the rights and discharge of duties.
There is also other weighty, given reason position according to which subjective the right can be not only an element of legal relation, to which korrespondiruet a duty, but also an element of difficult legal relation without korrespondirujushchej to it a duty, they can enter into a legal status of citizens, the competence of legal bodies [137].
Secondly, the right and a subjective duty act not only concepts of one kategorialnogo a number, but also definitsionno are interconnected. «Representation about one, — was written by G.F.Shershenevich, — inseparably linked with representation about another» [138]. Subjective civil the right and a subjective civil duty are defined through basic characteristics peculiar to them each other. For example, «the general definition of the right can be limited by instructions that the person is allocated by a measure of possible (legal) behaviour in the legal relation, provided with duties of other persons» [139].
Thirdly, rights and duties korrespondirujut (resist) each other, that is are categories polar.
Fourthly, rights and duties not only correspond, but also is inevitably determined cause each other. So, if the seller posesses the certain incorporeal right in the arisen legal relation of purchase and sale the buyer accordingly has a duty to make certain action and on the contrary. For example, the seller posesses the right to demand goods payment in full and in due time, accordingly on the buyer the duty lays to make the specified actions and to carry out them properly. «The legal relationship establishment takes place when the known juridical fact connects the right with the known subject, assigning simultaneously a duty on others» [140]. Dependence between the rights and duties is that, that without legal obligations the right [141] disappears also.
Fifthly, the subjective civil law and a subjective civil duty corresponding to it reflect "coherence" of subjects (the creditor and the debtor) the given legal relation [142].
Sixthly, rights and duties are interdependent: changes in the right maintenance simultaneously attracts changes in the maintenance of a subjective duty and on the contrary. This dynamics occurs in one stage. It is immanent to the considered legal phenomenon. Rights and duties «aspire to unity, identity, coincidence» [143]. To tell more precisely, «rights and duties arise simultaneously, are closely interconnected also conformity between them is not broken never» [144]. It konstituirujushchy a sign, is immanent to legal relations, therefore its infringement objectively leads to occurrence of destructive elements in legal relation or ceases it.
According to V.K.Andreeva, «regulation of the civil rights quite often occurs in a separation from corresponding duties, that in the theoretical plan undermines idea of existence of legal relation as generalising category as the civil rights at the person can exist out of communication with duties at other persons» [145].
Seventhly, scientists mark such property (the unity form), as interosculation of rights and duties [146].
Except the listed proved characteristics, it is expedient to specify and a situation where correlation of the rights and duties is expressed not in polarity, opposition and conformity each other, and in substantial, structural and subject unity: possibilities and simultaneously necessities to operate to the concrete subject definitely. It will be fair to notice, that the part of experts calls in question or in general denies similar possibility [147].
In our opinion, civil law (as well as the public law) does not exclude the specified legal phenomenon. Those or other rights simultaneously represent itself as civil obligations [148]. The given legal phenomenon was brightly shown in action of the Soviet system of planned managing, absence of a private pattern of ownership and has been noted by scientists. « … the Economic organisations as the bodies which are carrying out the economic plan, necessarily should carry out the rights for it is way of performance of their own industrial-financial plans »[149], and also the basic functions assigned to them by the state [150]. Most likely, the given position is represented practically significant for the domestic state domestic state and municipal unitary enterprises, and also state or municipal authorities. And, probably, demands the reflexion in the operating Russian civil legislation.
However similar legal relations where «the right is not contrasted with a duty, and merges with it» [151], have an urgency and are visually shown in the operating Russian legislation. In particular, making contract at the auctions: the person who has won the auctions, has the right to demand signing with the organizer of the auctions of the report on results of the auctions who is valid the contract. Evaded from signing of the report the organizer of the auctions is obliged to return brought by the participant of the auctions the deposit in the double size, and also to pay to its the damages caused by participation in the auctions. But at the same time, the winner of the auctions not only has the right, but also is obliged to sign the contract. Otherwise it loses the deposit brought by it (item 5 of item 448 GK the Russian Federation).
Other example. Civil-law institute of the state registration of transactions: each of the parties in the contract which form provides the state registration [152], has the right and to carry out simultaneously a duty the state registration of the transaction concerning this or that real estate (subitem 3 and 4 items 165 GK the Russian Federation).
In the general system of private law "combination" of the rights and duties (when the certain behaviour of the subject is simultaneously both the right and its duty) visually illustrates the family legislation. In particular, in item 1 of item 63 of the Family code of the Russian Federation it is directly specified, that «parents have the right and are obliged to bring up children».
Similar examples once again open not only korrespondirujushchie properties of the subjective civil rights and duties, but also their close interrelation, interconditionality. As object in the given legal relations the blessings having an actual meaning both for participants of relations, and for the third parties, and also for the state and as a whole for a society, as a rule, act.
Thus, it is possible to assume possibility of the various configuration, an unequal combination (correlation) of rights and duties in this or that legal relationship. Expediently conditionally to allocate three probable variants of a parity of the rights and duties:
Their full polarity. For example, in the arisen relation of purchase and sale the seller posesses the right to demand goods payment in full and in due time, accordingly on the buyer the duty lays to make the specified actions and to carry out them properly. The considered variant of a combination of rights and duties has the greatest distribution;
The interosculations, some combination of the right and a duty in their separate structural elements. For example, participants of the general partnership are obliged under the relation to each other according to GK the Russian Federation and the contract to carry out a complex of those or other actions: to bring the contribution to the community property of companions (item 1042, 1043), to participate in common causes of companions on achievement of the purpose of activity provided by the contract (item 1044), to inform about condition of common causes (item 1045), to bear expenses and the losses connected with joint cooperation of companions (item 1046, 1048), to bear responsibility under community debts (item 1047) and others. Thus, being the debtor, each of companions acts simultaneously and the creditor, having the right to demand from other companions of appropriate execution of the specified obligations;
Combination, identities (as a matter of fact) the right and a subjective duty. It is possible to assume: when fulfilment of this or that action becomes simultaneously both the right of the person, and its duty before other concrete subject to dominate in a competition of a parity of the rights and duties there will be a duty of the person, and the right is underlined to allow first of all to the citizen (to the organisation or to the official) to have additional possibility to execute this duty, that is to achieve real practicability of a duty, possibility it to execute, as the subject is interested in execution of the given duty or owing to natural deaths and freedom (for example, relations of the parent and the child), or owing to a functional purpose of body (organisation) or the official. «If sometimes speak about its right, … that it only in sense of a duty» [153].
So, according to M.K.Jukova: «in case of a combination of the right and the legal obligation the organic unity of the rights and duties is available at the same subject—. Therefore such combination is parallel» [154].
Other vital issue. What initially? The right (and accordingly — its realisation) or a subjective duty (and according to its execution)? Whether there is an urgency in definition of primacy of occurrence of the right or a subjective duty in civil matter formed simultaneously with them?
V.F.Jakovlev marks: «the Duty exists only so far as as there is a right» [155]. In turn, agreeing with judgement of the scientist, L.A.Chegovadze specifies, that the given statement is indisputable in absolute legal relations where the party liable, «not participating in any way in process of acquisition of the right, is obliged already by that only, that it does not belong to it. As to the relative legal bonds mediated by system of obligations … in them the right exists only because the counterpart assigns to itself a debt and a duty to operate with a view of its addition» [156].
Most likely, certain value in it is, as dominating activity depends on it authorised or a bound party. Who should show active actions in legal relation development: the debtor or the creditor? As it is represented, it not always depends on about what legal relations, relative or absolute, there is a speech. For example, in relations on gratuitous assignation in time using, in relations of donation the debtor (a loaner, the donator) assigns to itself a duty on gratuitous assignation. Accordingly the creditor, that is the person authorised on reception of a material benefit, has a subjective civil law. Though the presented legal relations relative, first of all, there is a subjective duty which is assigned to itself on own will (independently and independently) debtor, and in the second turn, there is korrespondirujushchee to it a right of the creditor. Primacy of the right and subjective duty in civil matter influences dynamics of realisation of the right and execution of a subjective duty, that is on development (movement) of legal relation.
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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 § 3. Interrelation of realisation of the civil rights and discharge of duties:

  1. Chapter 1. REALIZATION of the SUBJECTIVE CIVIL RIGHTS And DISCHARGE OF DUTIES: CONCEPT And INTERRELATION
  2. § 2. Concept and value of the mechanism of realisation of the civil rights and discharge of duties
  3. § 1. Gnoseological essence of principles of realisation of the civil rights and discharge of duties
  4. § 2. The functional approach as a basis of studying of principles of realisation of the civil rights and discharge of duties
  5. § 3. A parity of concepts «civil-law principles» and «principles of realisation of the rights and discharge of duties»
  6. § 1. A principle of the guaranteed realisation of the rights and discharge of duties
  7. § 5. A principle of inadmissibility of misuse of right. A problem of reasonable and diligent realisation of the rights and discharge of duties
  8. Chapter 3. ELEMENTS of the MECHANISM of REALIZATION of the CIVIL RIGHTS And DISCHARGE OF DUTIES
  9. Chapter 7. PRINCIPLES-METHODS of REALIZATION of the CIVIL RIGHTS And DISCHARGE OF DUTIES
  10. Section I. REALIZATION of the SUBJECTIVE CIVIL RIGHTS And DISCHARGE OF DUTIES: CONCEPT And the MECHANISM
  11. Chapter 5. SYSTEM And the FUNCTIONAL PURPOSE of PRINCIPLES of REALIZATION of the CIVIL RIGHTS And DISCHARGE OF DUTIES
  12. Chapter 2. CONCEPT of the MECHANISM of REALIZATION of the CIVIL RIGHTS And DISCHARGE OF DUTIES And ITS PARITY WITH ADJACENT CATEGORIES
  13. Section II. BASIC ELEMENTS And STAGES of ACTION of the MECHANISM of REALIZATION of the CIVIL RIGHTS And DISCHARGE OF DUTIES
  14. Section III. PRINCIPLES AS the MAJOR ELEMENT of the MECHANISM of REALIZATION of the CIVIL RIGHTS And DISCHARGE OF DUTIES
  15. Chapter 6. TSELEPOLAGAJUSHCHIE PRINCIPLES of REALIZATION of the RIGHTS And DISCHARGE OF DUTIES