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§ 3. A parity of concepts «civil-law principles» and «principles of realisation of the rights and discharge of duties»



At partial coincidence of some principles of realisation to the branch beginnings the problem of differentiation of these concepts especially sharply sounds. It is possible to establish, that as a separate scientific category as the phenomenon of the scientifically-legal validity realisation principles specially were not investigated.
Meanwhile the problem of division and a parity of these concepts is not new to jurists. At numerous attempts of experts to reveal principles of realisation of the civil rights and discharge of duties to offer their list there is no proved methodological approach in differentiation of principles of realisation of the rights and discharge of duties. From here — speculative representation that these beginnings as represent the legal phenomenon what their legal nature and, that is especially important in what their value as the legal means possessing constructive, reguljativnymi possibilities. Meanwhile accurately generated complex of principles of realisation possesses powerful legislative potential as the named general positions give the chance to estimate, how much mechanisms of realisation of the concrete rights and discharge of duties and where blanks gape now are optimum. In this connection we were set by some question, having direct practical value: than these two groups of the beginnings and in what their divergence, what criteria of revealing of principles of realisation and what practical value has allocation of principles of realisation in a separate independent complex are close. And on the other hand, — reckoning of some branch principles to the category of principles of realisation is how much defensible?
The expediency of division of principles of realisation and the civil-law beginnings does not raise the doubts. To recognise identity of concepts principles of realisation and the civil-law beginnings — means to deny existence of two forms of the right: objective and subjective, as primary sphere of action of principles of realisation — the right. We Will dwell upon this problem.
It is considered to be, that civil law principles are understood «as fundamental principles, most the general supervising positions of the right …» [509], «basic ideas» [510]. In legal system researchers define sphere of their action and function ambiguously. In particular, it is said that they define «the basic maintenance of civil-law regulation as a whole, branch specificity of norms of civil law and practice of their application» [511], they «are supervising during working out of new civil laws, and also in process pravoprimenenija» [512]. Other researchers define their sphere of action extremely widely: as the majority of the phenomena covered by civil law [513]. « It «rules of application of all other rules» that is why it attaches significance of initial postulates for all process of civil-law regulation and protection »[514]. Thus, in civil-law principles the conceptual is standard-ideological installations representing the specific beginnings of legal regulation in civil law are expressed. From a functional purpose position these principles are perceived by experts as« group of the legal beginnings which, penetrating similarly all institutes of civil law, bear in themselves the information on the general lines of adjustable public relations, on position in them participants, about their property and social independence and vzaimozainteresovannosti, their abilities independently to make of the decision, i.e.
About the properties causing existence of civil law as special branch »[515].
The list of these principles remains debatable, but in most cases among them the following is allocated: equality of participants of civil matters, inviolability of the property [516], freedom of the contract [517], inadmissibility of any intervention someone in private affairs, inadmissibility of misuse of right, necessity of unobstructed realisation of the civil rights, maintenance of restoration and judicial protection of the broken rights, acquisition and realisation by citizens and legal bodies of the civil rights the will and in the interest (optionality) [518].
The basic criterion for allocation of the named legal categories is their "materialised" character — all listed beginnings are fixed in gl. 1 and 2 GK the Russian Federation that gives the basis to some scientists to carry them to a certain kind of principles — to "norms-principles" [519].
Listed some jurists carry to number: principles dozvolitelnoj orientations of civil-law regulation, the principle of free moving of the goods, services and financial assets in all territory of Russia [520], the unanimity of legal regulation of property and personal non-property relations, a presumption of conscientiousness of participants of civil matters [521], an autonomy of will and a formal equality of participants of relations [522], all-round protection is right [523], a principle of legality [524].
Last as it is represented, is obshchepravovym if to take into consideration its universality under the relation to all branches of law. The given general principle represents an immutable condition of existence of legal system as that.
The part from the resulted beginnings — is the concretised variants of the general civil-law principles. For example, in contract freedom the general principle of optionality is realised more. Of it convinces comparison of the maintenance of these positions. So, researchers notice, that contract freedom consists that any participant of the civil circulation independently solves, to conclude the contract or not. Participants at own discretion choose counterparts, and at last, the parties define treaty provisions. Thus, contract freedom is anything other, as realisation of the rights by the will and in the interest.
Undoubtedly also, that discussion concerning the list of the named beginnings is far from end.
Attempts to differentiate principles of the right and principles of its realisation were undertaken long before the present research. The interrelation of these two groups of the beginnings is conclusive. Really, civil-law principles «pass through all civil law, predetermining, as a matter of fact, the maintenance of each of its institutes and its norms» [525]. In the most general sense some principles of civil law are identical to principles of its realisation. Some scientists specified in this feature [526].
V.P.Gribanov, for example, approved, that the concept of a principle of realisation is completely deduced from concept of a legal principle, being in relation to it more by the intermediate order concretising and characterising its some specific lines. The thought seems fair — communication between these categories is expressed, including it is formal, that is shown by comparison of their definitions. The optionality principle, for example, fixed in item 2 of item 1 GKRF, also is fixed and in item 9 item 1 «Realization of the civil rights» GK the Russian Federation, being simultaneously by a principle of branch of civil law and the fundamental principle of realisation of subjective civil law.
For time there was justified an authoritative statement that principles of realisation of the civil rights is «those basic requirements which and Soviet civil law expressing its interests show a socialist society to the authorised person and those persons who from his name carry out belonging authorised the subjective civil rights» [527]. It has been thus noticed, that «legal principles define as well behaviour of participants of public relations regulated by the right» [528]. Some researchers reproach the given position in ideologizirovannosti [529]. But in this case displacement of accents takes place. Soviet pravoponimanija (in particular, an epithet "Soviet") it is necessary to perceive attributes as the external conformity of this ideology which are not influencing essence of scientific search. Thus, the statement of Century of the Item Gribanova about that principles are requirements which the society shows to authorised, precisely reflects, in our opinion, one of functions of the given establishments.
A little bit other position defends in S.T.Maksimenko's research. In certain degree simplifying V.P.Gribanova's thought on a parity of these concepts and declaring, that the scientist identifies principles of realisation and the civil-law beginnings, the researcher believes, that some principles of realisation express not only requirements to persons authorised, but characterise relations of all members of a society. Therefore to perceive these legal abstraction, according to S.T.Maksimenko, it is expedient as «the substantive provisions defining essence and character of this activity (realisation of the civil rights. — E.V.) ; The leading signs following from essence of realisation as a stage in development of the socialist right and caused by the nature of a socialist society, the state and the right »[530]. The thought on realisation principles as to the characteristic of the activity, a certain stage of development of the right tsenna also is fair, the doubt causes in this case only ignoring of concept of the legal purpose.
The resulted statements are quite defensible standard base and social conditions of the known period. Taking into account modern changes an essence of legal principles, and accordingly and principles of their realisation, it is necessary to perceive a little differently. It is connected with change of an objective situation, that the legislator has given big freedom to the citizen, to the legal person-proprietor, having counterbalanced it in possibilities with the state (item 1 of item 124 GK the Russian Federation), besides, the state has found new duties in relation to the private owner (proprietor) (item 6 of item 126 GK the Russian Federation). Taking it into consideration, following definition will be more exact: «and discharges of duties are understood As principles of realisation of the rights fixed in norms of civil law the supervising positions defining most the general requirements to subjects in the course of realisation by them of the civil rights and discharge of duties» [531].
The specified definition is free from an ideological list and is fairly concentrated to dynamics of process. This definition, certainly, comprises quintessence of a defined category. It will quite be adjusted with the offered definition and that list of the principles, which author results further. Really, the legality principle, a principle of a rationality and conscientiousness, solidarity of interests and business cooperation, a principle of realisation of the civil rights and discharge of duties according to their social appointment are under the form requirements to all privies.
But, first, concerning fastening of principles of realisation in the letter of the law doubts are already stated. For example, predominating in the mechanism of realisation principles garantirovannosti and efficiency, are not up to the end mastered by the doctrine and consequently — have no legislative expression as fundamental principles. Meanwhile these principles "are distinctly registered" as in the Constitution of the Russian Federation (item 17 item, 19, 28, 29, 36, 39, 44, 45, 46, 48), and in the international legal acts (for example, item 7 item, 8, 28 General Declarations of human rights).
Secondly, concerning the resulted list of principles of realisation also there are certain doubts. They are connected by that speech in this case goes about genetically diverse concepts. So, the legal requirement of legality, that is necessity of observance of legal order at realisation of the rights and discharge of duties, possesses accurate semantic ocherchennostju and is non-comparable to requirements of a rationality and conscientiousness, solidarity of interests and business cooperation which remain now debatable and trudnoopredelimymi as it has been already noted, from legal positions. The legislator has designated in a similar way universal obshchepravovoj a principle of justice and has embodied it in separate norms. Difficulty consists in translating these categories on legal language, in system of legal categories.
The principle of realisation of the rights according to their social appointment, were one of central in the Civil code 1922 and 1964 as it was marked in the legal literature [532], with reference to the current legislation has lost the urgency. More significant role the principle of unobstructed realisation of the civil rights, a principle of acquisition and realisation by citizens and legal bodies of the civil rights the will and in the interest (in some cases in interests of the third parties) play present time.
Besides, these pervonachala it is not simple requirements to subjects, and the special characteristic of process of realisation of the rights and discharge of duties in which subjects participate. In this sense S.T.Maksimenko's who has fairly emphasised the dynamical party of this legal phenomenon point of view is represented to more productive.
At correlation of concepts «civil-law principles» and «principles of realisation of the rights» it is necessary to consider, that the person allocated with the right, should realise it under the law instruction, and consequently, according to the legal principles forming this law.
Thus, the unity of an internal essence and logic of interaction of legal principles and realisation principles is traced. These concepts correspond as a part and whole. The Civil-law beginnings, being ideological fundamentals of legislation, define the most general installations of formation of relations. Principles of realisation of the rights, organically, genetically with them are connected. They establish, on the one hand, limits of realisation of the rights, with another — create preconditions for occurrence of the certain legal tactics directed on achievement of the legal purpose.
Radical distinction of the designated legal categories consists, in our opinion, that the first form a legal ideal, the general legal purpose in its statics and the last operate in sphere of the objective right, in the course of law-making, and extending on right area, pravorealizatsii promote occurrence of strategy of the action directed on achievement of the legal purpose. Accordingly coincidence of these functions (definition of the legal purpose and the characteristic of process of realisation of rights) also has laid down in a basis of revealing of principles of realisation. Thus desirable result the perception of these positions in quality «criteria of appropriate realisation of the rights and duties» [533] sees.
From the told follows, that principles of realisation of the civil rights represent not only the requirements shown to the authorised person by the state and the right, but also those basic characteristics which define arising legal relations, create preconditions, the guarantees leading to actual realisation of the rights and inevitable discharge of duties. The similar understanding allows to perceive studied legal categories as initial doktrinalnye, legislative establishments in the mechanism of realisation of the rights and discharges of duties.
At last, naturally there is a question on that, it is how much expedient to consider the general principles of realisation of the civil rights and discharge of duties, not focusing separately the attention to specific displays of the basic beginnings in various kinds of civil matters.
So, in sphere of execution of obligations, for example, researchers allocate principles of appropriate execution [534], specific performance, a principle of inadmissibility of unilateral refusal of execution of the obligation [535], a principle of a rationality and conscientiousness [536].
It is observed either obvious coincidence, or semantic and functional crossing of some principles of execution of obligations to the beginnings of realisation of the rights and discharges of duties (the principle of appropriate execution correlates with a principle of cooperation of the parties, a legality principle, a principle of inadmissibility of unilateral refusal of obligation execution — with a general principle of the guaranteed realisation of the civil rights and discharges of duties). As to a conscientiousness and rationality principle we are inclined to recognise justice behind a position approving an accessory of these beginnings is faster to obshchepravovym to principles [537] if not to perceive them at all as base ethical standards of the right.
We are besides, convinced, that detailed judgement of principles podotraslej and separate institutes of civil law — the purpose of independent monographic researches not one generation of jurists. As in concrete legal relations principles of realisation of the rights and discharge of duties operate in various parities and with different degree of intensity, their importance and a role depend on a concrete configuration of the rights and duties in legal relation.
Hence, the offered list cannot be recognised by settling, but it is that constant basis without which the guaranteed, optimum simulated regulation of civil-law relations is impossible. That is more essential the prospect of detailed judgement of principles podotraslej and separate institutes of civil law sees.
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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. A parity of concepts «civil-law principles» and «principles of realisation of the rights and discharge of duties»:

  1. § 1. Gnoseological essence of principles of realisation of the civil rights and discharge of duties
  2. § 2. The functional approach as a basis of studying of principles of realisation of the civil rights and discharge of duties
  3. Chapter 7. PRINCIPLES-METHODS of REALIZATION of the CIVIL RIGHTS And DISCHARGE OF DUTIES
  4. Chapter 5. SYSTEM And the FUNCTIONAL PURPOSE of PRINCIPLES of REALIZATION of the CIVIL RIGHTS And DISCHARGE OF DUTIES
  5. Section III. PRINCIPLES AS the MAJOR ELEMENT of the MECHANISM of REALIZATION of the CIVIL RIGHTS And DISCHARGE OF DUTIES
  6. Chapter 6. TSELEPOLAGAJUSHCHIE PRINCIPLES of REALIZATION of the RIGHTS And DISCHARGE OF DUTIES
  7. § 3. Interrelation of realisation of the civil rights and discharge of duties
  8. § 2. Concept and value of the mechanism of realisation of the civil rights and discharge of duties
  9. THE CHAPTER THE SECOND THE PRINCIPLES REFLECTED BY THE CONCEPT OF HARMONIZATION OF THE CONVENTIONAL LAW OF THE LATIN AMERICAN COUNTRIES, AND THEIR PARITY WITH INSTITUTSIONALNYMI PRINCIPLES OF OPERATING CIVIL LAW OF BRAZIL
  10. §2. A parity of principles of civil law and liability law principles
  11. Chapter 2. CONCEPT of the MECHANISM of REALIZATION of the CIVIL RIGHTS And DISCHARGE OF DUTIES And ITS PARITY WITH ADJACENT CATEGORIES
  12. § 2. Sources of civil-law norms and sources of the conventional principles and norms of international law: Parity of concepts
  13. § 1. A principle of the guaranteed realisation of the rights and discharge of duties
  14. 4.1 Concepts of system of principles of civil law and search sistemoobrazujushchego criterion
  15. 5.1 Mechanism of realisation of principles of civil law