<<
>>

§ 1. A principle of the guaranteed realisation of the rights and discharge of duties



The first on the public importance, width of action and a role in the mechanism of realisation of the civil rights and discharge of duties is the principle of the guaranteed realisation of the rights and discharge of duties.
This beginning extends on all participants of civil-law relations. Its imperative is, first of all, realisation of the rights and discharge of duties according to principles of unobstructed realisation of the civil rights, efficiency, a combination of private (personal) and public interests, optionality, preservation of the rights in default citizens and legal bodies from these rights, inadmissibility of misuse of right, harmony of the civil rights and duties and a principle of equality of participants of civil matters. Differently, all other principles of realisation of the subjective civil rights and execution of subjective civil duties represent necessary conditions at which the right garantirovanno is carried out, and the duty is executed.
The problem garantirovannosti realisation of the rights is not exclusively property of the present. Development of sights at private law of pre-revolutionary jurists convinces that «… the private law beginnings in the pre-revolutionary doctrine were representations about the sphere of freedom guaranteed by legal means and self-determination of the person in the law and order» [538]. Differently, the question on guarantees of realisation of the rights is inherent in the right as a whole, therefore the periods of actualisation of this problem in jurisprudence coincide in due course aggravations of polemic round right dualism: its objective and subjective essence.
Genetically specified principle in the modern right is connected with international legal position about respect of human rights and its fundamental freedoms, fixed in the General Declaration of human rights [539] accepted by General Assembly of the United Nations in 1948 It says: «Each person has the right to a social and international order at which the rights and freedom stated in the present Declaration, can be completely carried out» (item 28).
Attracts attention definition "completely", that means to carry out the rights up to the end, wholly [540]. Thus, this beginning predetermines such organisation, construction of the mechanism of realisation at which achievement of the legal purpose becomes inevitable result. Actually, it is general position which is pledge of constitutionality of all process of realisation of the civil rights and discharges of duties.
S.T.Maksimenko approves: «the Principle garantirovannosti in realisation of the civil rights and duties characterises that fact, that realisation of the rights and discharge of duties require the objective factors which are not dependent on the person of subjects of law» [541]. In our opinion, it is necessary to pay attention to special legal nature of a principle of the guaranteed realisation of the rights and discharge of duties: on it dihotomichnost.
On the one hand, garantirovannost depends on will of subjects of legal relations (from that, the rights how much honesty and reasonably are realised and duties are fulfilled), and with another — lays outside of will of participants (consists in system of economic, social and other guarantees), predetermining existence of the rights necessary for realisation and discharge of duties of legal, material and other conditions.

The told convinces that it is impossible to define distribution sphere, a role and the maintenance of the given principle, not having understood sense of concept «guarantees of realisation of the civil rights and discharge of duties». The Civil-law theory has a number of the points of view on the given question. O.S.Ioffe fairly approved, that the rights and duties «should be supplied by the special legal guarantees providing not in general compulsory, and their such realisation which is capable to satisfy material requirements authorised» [542]. S.T.Maksimenko's point of view is close to this position: « It is impossible to recognise correct and data legal garantirovannosti to enforcement and execution possibility »[543]. It is necessary to specify thus, that in some cases the legislator expediently resorts to compulsion of discharge of duties (item 12 item, 111 GK the Russian Federation). As to the right its realisation, according to an optionality principle, depends on will of the legal owner. At the same time optionality has the restrictions [544]. So, it is necessary to oblige to realise the right in the event that this right simultaneously is also a duty of the participant of the civil circulation. For example, the state registration of transactions with the real estate, individual businessmen, legal bodies simultaneously is the right and a duty. Failure of justice of this right complicates the civil circulation and can harm other managing subjects. Told in an equal measure concerns and the right of the trustee to care of the sponsored.
Thus, compulsion to realisation it is right it is impossible to deny in the event that nerealizatsija the rights are involved by causing of any harm. Though it is impossible to disagree that enforcement of duties is not the unique guarantee. That is obliging and rules of restraint not in a condition to solve a problem of legal guarantees more exhaustively. The search problem (developments, creations) other effective ways of the guaranteed realisation of the rights and discharge of duties in this connection does not lose the urgency.
Really, sometimes the specified ways are insufficiently effective in compulsion to discharge of duties and categorically incorrect way to realisations of the rights. We will recollect, for example, that variety of norms GK RSFSR limited realisation of the rights of managing subjects by conformity to their appointment in a socialist society. So, item 105 GK RSFSR, considering, that in a personal property of citizens can be the property intended for satisfaction of their material and cultural requirements, forbade use of this property for extraction of unearned incomes. Legal effect of infringement of this norm was uncompensated taking at the proprietor of unearned incomes of the house used for reception, a summer residence, the car or other property (item 111 GK RSFSR).
V.P.Gribanov has offered other understanding of legal guarantees. In its opinion, and discharges of duties it is possible to consider as a guarantee of realisation of the rights realisation of a principle of specific performance of duties. The jurist has defined the guaranteed realisation of the rights and discharge of duties as a situation at which «the socialist system not only grants to citizens the certain rights, but also provides their real realisation» [545]. Thus he notices, that these guarantees not only economic, but also legal. In this connection there are questions: in what degree specific performance of obligations can guarantee realisation of the right and this guarantee in the conditions of the market is how much effective.
Specific performance usually is understood «as fulfilment by the debtor of that action which is provided by the basic duty, unlike the action directed on repayment of an additional duty (established as the sanction for possible infringement)» [546].
For the first time the term «specific performance of the rights» has appeared in the Soviet right [547] and the USSR from December, 19th 1933г have been connected with item 19 of decision SNK. «About the conclusion of contracts for 1934». The given position ordered, that «payment peni, penalties, the penalty and the indemnification do not release the party which has paid them, from execution of a contract».
S.T.Maksimenko insists that the principle of specific performance of duties is private display more the general principle garantirovannosti. Recognising a priority behind a principle garantirovannosti, it has specified, that specific performance of duties — one of constituting conditions of the guaranteed realisation of the rights and discharge of duties. Really, if to take into consideration, that specific performance concerns only one of execution parametres (namely a subject), that there are exceptions defined by the law of the given requirement and, at last, sphere of action of this command lokalna (execution of obligations) it is necessary to agree: specific performance of duties represents private display of a principle garantirovannosti realisation is right [548].
From other position has estimated A.G.Karapetov's specified beginning. It has defined the basis of a principle of specific performance as «opposition of specific performance of the obligation and granting of a monetary substitute (the penalty and losses)» [549], than has actually confirmed thought that a principle of specific performance of duties — one of conditions of the guaranteed realisation of the rights.
In another way suggests to correlate N.A.Dmitrik's these beginnings, insisting that a principle of real realisation of the rights nesvodim to legal guarantees and specific performance of obligations. A principle of real realisation of the rights, he considers, represents a combination of certain duties in correlation with the concrete rights [550] and accordingly cannot be put in one number with guarantees of realisation of the rights and discharges of duties. The position inaccuracy consists that, having concentrated on the principle maintenance, the researcher denies its functional purpose. Meanwhile one at all does not exclude another. The similar understanding, in our opinion, unfairly isolates a principle of specific performance from other principles of realisation that calls into question practical advantage of such approach. After all anything thus does not stir certain combination of the rights and duties to guarantee realisation and execution. Moreover, it is obvious, that discharge of duties just and guarantees realisation korrespondirujushchih it of the rights.
Thus, we are inclined to support a convincing position according to which concepts guaranteed and specific performance of duties do not coincide, but specific performance is one of possible conditions garantirovannosti.
Garantirovannost in the mechanism of realisation of the rights and discharges of duties assumes presence of system of diverse guarantees. There are some positions concerning the specified system.
The first suggests to perceive guarantees as the legal means providing realisation of the rights and discharge of duties. In this case guarantees are treated or as granting of judicial protection is right [551], or as effective pravoprimenitelnaja activity of competent bodies, and also as the perfect legislation.
Other position connects garantirovannost with laws of a political system [552], a condition of economic and legal systems [553]. The Point of view of the majority of experts consists that guarantees are means and the conditions necessary for actual realisation and protection is right [554].
Also in the legal literature that guarantees of realisation of the rights and discharge of duties are caused, including, and economic [555], welfare factors has been specified, for example, by conscientiousness and a rationality of actions of participants of the civil circulation.
But complexity of a problem is concluded not in designating possible guarantees in the renumeral to a number, and in comprehending, developing optimum, effective organizational communications between them. Therefore it is important on doktrinalnom to define level sphere of action and an orientation of different guarantees.
There are traditions of division of guarantees under the maintenance [556] and sphere of action [557]. The point of view of division of guarantees under the maintenance caused by the basic spheres of ability to live of a society [558] is represented to the Most convincing. It is necessary to pay attention to convention of the similar division dictated by necessity of detailed, system judgement of all complex interconnected and vzaimoobuslovlennyh of guarantees.
During the Soviet period allocated following kinds of guarantees: economic, political, ideological and legal [559], versions of organizational guarantees [560]. Also it was noticed, that various kinds of guarantees can accept different forms. In this connection it is necessary to note importance of perfection of all kinds of guarantees: from formation of the doctrine of principles of realisation, standard instructions to various organizational forms as only the complex decision of a problem is capable to yield notable results.
With all inevitability there is a question on, whether there is a sense to divide guarantees of realisation of the rights and a guarantee of discharge of duties. It is obvious, that a part of guarantees will be the general. For example, it is connected with economic, political, cultural-educational conditions. At the same time in itself discharge of duty guarantees realisation of the certain right. Thus it is improbable, that the real situation in which «performance of duties will turn in … a habit is possible, becomes an internal debt» [561]. First of all, it is necessary to create conditions at which the duty is executed not only free, but also it is inevitable, as this execution becomes the most favourable variant of action for a party liable. The question on necessity of discharge of duties should be solved, providing effective stimulus: belief, compulsion, a material interest etc. In civil law successful attempts to generate an optimum combination of the legal stimulus guaranteeing execution of treaty obligations in separate spheres [562] have been undertaken. Now this direction requires the further all-round working out.
It is objectively possible to allocate guarantees vnepravovye and legal. Conditions concern the first and means of economic, sociopolitical, cultural-educational character. Separately it is necessary to note influence of material factors on realisation of the rights and discharge of duties. So, for example, legal guarantees in the form of privileges and social payments cannot be realised in case of deficiency of budgetary funds. Also the national projects connected with various fields of activity of a society and on a plan representing additional guarantees of the rights, not vypolnimy in the absence of appropriate financing.
Besides, efficiency of legal guarantees, a legality mode depend on a state political system, because, how much democratically society, in what measure publicity is means of the state self-checking. Strengthening of legal guarantees is promoted by formation of the legal, democratic state.
Thus it is impossible to lose sight of an essential role of cultural-educational factors. Increase of awareness, legal literacy, development of sense of justice of a society also promotes the statement of legal guarantees. It is necessary not to keep away from achievements of the previous epoch in the field of influence and legal education of a society, and to apprehend and adapt for new conditions this positive experience. Productive propagation of norms of the Constitution of the Russian Federation and legal education in the field of the rights and personal freedoms [563] in this respect is. Positively also entering into programs of general educational, special and higher educational institutions of the courses devoted to the rights of the child, the student etc., increase of independence and initiative of citizens in realisation of the rights and discharge of duties. It is fairly noticed, that «the best propagation and formation of the valid relation to KonstitutsiiRF is its observance by all officials, citizens» [564].
In a special way the problem of legal guarantees dares. Some experts connect legal guarantees with maintenance of legality or with guarantees of realisation of norms [565]. Other authors fairly specify that legality — only a part of legal guarantees of realisation of the rights and discharge of duties [566]. N.I.Matuzov, A.V.Mitskevich believe, that legal guarantees is activity of the state bodies and the public organisations, connected with protection of the rights and interests from illegal encroachments [567]. The disputable thought that the private law represents a guarantee of rights as «the private law is generation of freedom has been stated even and, in turn, guarantees freedom» [568]. Actually this statement is repeatedly confuted by practice.
Naturally, that the legal thought has come to necessity of the complex decision of a problem of the guaranteed realisation of the rights and discharges of duties. So, V.A.Tarhov, and after it S.T.Maksimenko is allocated as legal guarantees of a guarantee of realisation of the rights, fixed in norms, with observance of legality and the law and order [569].
Developing this thought, we will add, that the most essential condition of realisation of the rights and discharges of duty is not reforming of separate elements of legal system, and creation of the favorable legal environment. This complex legal phenomenon including a formal (ideological) basis: perfect principles of realisation of the rights and the discharge of duties, separate legal institutions — all mechanism of realisation of the rights put in pawn in the right and discharges of duties, including an order and ways of protection of the rights, and also organizational level: lawful activity of subjects of law, effective work of vessels, law and order bodies. And the coordination of these means has vital importance.
Such approach in the decision of problems garantirovannosti is traced in the Decree of the President of the Russian Federation from May, 15th, 2008 № 797 «About urgent measures on liquidation of administrative restrictions at realisation of enterprise activity» [570]. In positions of the named regulatory legal act the measures directed on resource (material) sphere, on organizational, information levels of legal system contain. The subparagraph "and" item 1 orders to strengthen guarantees of protection of the rights of legal bodies and individual businessmen at realisation of the state control and supervision.
The considerable role is played thus by the qualified estimation pravoprimenitelnoj experts. For example, the recognition mismatching articles 19 (ч.1), 34 (ch became timely. 1), 35 (ch.ch. 1 and 2) and 55 (ch. 3) Constitutions of the Russian Federation of position of paragraph 14 of item 3 and item 3 of item 10 of the Federal act from 8августа 2001г. №134-ФЗ (from amendment from July, 18th 2008г.) «About protection of the rights of legal bodies and individual businessmen at carrying out of the state control (supervision) in a part establishing possibility of collecting from individual businessmen on request of body of the state control (supervision) of expenses, suffered by this body at carrying out of researches (tests) and examinations in which result infringements of obligatory requirements» by [571] Decision of the Constitutional Court of the Russian Federation from 18июля 23008 №10-П «On business about check of constitutionality of positions of the paragraph of fourteenth article 3 and point 3 of article 10 of the Federal act« About protection of the rights of legal bodies and individual businessmen have been revealed at carrying out of the state control (supervision) »[572] in connection with the complaint of citizen V.V.Mihajlova». The defects of the specified regulatory legal act leading to discrepancy pravoprimenitelnoj of practice have been revealed. In particular, the insufficient differentiation of relations on realisation of the state control activity in economic sphere has been noted: whether necessary collect expenses of bodies of the state control (supervision) at carrying out of all kinds of the state control or collecting should be made at carrying out of separate kinds of actions. Besides, the legislator has not defined concrete terms during which excitation by body of the state control (supervision) of procedure of withdrawal of money resources was possible. Thus, bodies of the state control (supervision) were allocated with unlimited freedom of the discretion concerning compulsory withdrawal of money resources, the period of its possible realisation, criteria of definition of the sizes of collecting. The specified decision focuses attention to necessity of the decision of similar problems.
Thus, the favorable legal environment is an optimum condition of system legal bonds (set of conditions and legal means), rights most positively influencing realisation and discharge of duties and stimulating the civil circulation.
It is necessary to notice, that in the modern legislation the certain resource for formation of the favorable legal environment of realisation of rights and execution of subjective duties contains. Legislative efforts are directed on creation of such norms in which effective preconditions are put in pawn that the right was realizable, and the duty was properly executed.
Positive example of formation of the favorable legal environment is one of directions of the Policy of Law. So, a basic recognition and granting of the constitutional guarantees of realisation of the basic natural inalienable rights and freedom of the person (item 20-29 of the Constitution of the Russian Federation) it is not simple the account of lessons of our past and modern international legal requirements in the given area, but also the true and proved legal position [573].
It is necessary to recognise as the highest level of standard guarantees of the rights item 17 item 3, item 19? 29 Constitutions of the Russian Federation.
The following level of guarantees is put in pawn in GKRF. Here the most essential guarantees the legislator has generated in a liability law by means of position about inadmissibility of refusal of obligations unilaterally (item 310 GK the Russian Federation). The termination of the obligation at the initiative of one of the parties probably by unilateral refusal of its execution if it is statutory, and in a case when the obligation has arisen in connection with realisation of enterprise activity, — as well the contract (item 407 GK the Russian Federation).
Besides, gl. 23 GK the Russian Federation is devoted maintenance of execution of obligations where ways of maintenance of execution of obligations (the penalty, pledge, deduction of property of the debtor, the guarantee, the bank guarantee, the deposit, etc.) are declared. B.M.Gongalo fairly notices, that only the penalty and the deposit stimulate the debtor to specific performance of the duties, provide the rights of the creditor, while other measures urged to protect exclusively valuable interests of the creditor (the guarantee and the bank guarantee) [574]. Pledge and deduction also are means of prompting of the debtor to discharge of duties and guarantee protection of interests of the creditor.
Legislative guarantees contain and in other Federal acts accompanying and the subordinate legislation. For example, one of effective versions of prompting of the respondent to execution of the duties is the system progressive (increasing in result of default in the specified term of duties) sanctions. So, the Federal act from October, 2nd 2007г. №229-ФЗ «About final process» [575] establishes special system of the increasing penalties applied to the respondent which does not carry out the decree obliging it to make or refrain from fulfilment of certain action (item 113).
However the problem of legislative guarantees far is not settled. Imperfection of civil-law regulation of separate kinds of relations persistently returns researchers to thought on necessity of codification of guarantees of realisation of the rights and discharges of duties in the given spheres, that is their ordering and inclusion in operating kodeksyrf. In particular, the fair opinion on necessity of legislative fastening of a presumption garantirovannosti uslugodatelem achievements of result of service [576] has been expressed.
Besides, garantirovannosti realisation of the rights it is necessary to recognise as a special kind appropriate discharge of duty [577]. Discharge of duty involves realisation korrespondirujushchego to it the rights: «If nobody is obliged to be conformed to mine pravopritjazaniem if it for anybody is not obligatory, it cannot have exactly any value. Therefore and in legal, as well as in all other relations, the passive side, a duty, communication» [578] has major importance. From the told necessity legislatively to emphasise timely and appropriate discharge of duty follows. As, in our opinion, the Russian Federation «obligations should be executed by position of item 309 GK properly» action of this principle is not settled.
One more essential basis garantirovannosti is adequate pravotolkovanie, paternal effective work of court directly depends.
Effective mechanisms of protection of the subjective civil rights concern guarantees pravoosushchestvlenija also. So, ways of protection are improved, possibilities of lawful self-defence (item 14 GKRF) subjective property and non-property rights, a private property, copyrights are expanded.
Private display of a principle garantirovannosti in protection of the rights of participants of civil-law relations is the principle of inevitable responsibility for offences. Non-observance of this command accepts very often absurd, antihumane forms. It visually shows the following example. On October, 5th, 1995 five years' X. during a finding in a kindergarten "Malvina" has fallen from a hill and was traumatised. The child became the invalid and required sanatorium treatment.
X. Has addressed in court with the claim to Open Society "Тольяттиазот" on which balance there was a kindergarten, about indemnification of moral harm in the sum of 2 billion not denominated roubles, referring that the respondent has not provided safe conditions of stay of its child in a preschool institution (children were on a hill without supervision), therefore is obliged to compensate both of them physical and moral sufferings.
By the decision of Komsomol regional court of the Samara area from 11февраля 1999 in satisfaction of the claim it is given up in connection with absence of fault of employees of a kindergarten in causing to the boy of a trauma. In causing of moral harm istitse and to her son the court has proved absence of fault of the respondent indications of employees of a kindergarten, parents of children who were in a kindergarten and the decision about refusal in excitation of criminal case concerning teacher S [579]. Similar interpretation of rules of law contradicts common sense and ethical criteria of good, justice. It is obvious, that the right of parents to demand safety of stay of the child in a preschool institution in this case is roughly broken.
As we see, not always legal guarantees declared by the legislator lead to required result. Therefore the regulatory legal act should be supplied by necessary legal guarantees in the form of the subordinate legislation, the instructions turning formally accepted document in action. But thus it is necessary to create such subordinate legislation which inherently do not contradict the law, and are capable to generate the debugged mechanism of its action. It is possible to establish, that often accompanying departmental instructions emasculate a law essence, complicate its execution and as a result do the right or trudnoosushchestvimym, or at all impractical.
For example, the governmental order of Moscow from October, 31st 2006г. № 859-software are approved Rules of registration and removal of citizens of the Russian Federation from the registration account in a place of stay and on a residence in to Moscow (the appendix 1) and the List of the documents which are the basis for installation of citizens in premises in to Moscow, represented to bodies of the registration account (the appendix 2).
According to subitem 2.3.3 and 2.3.6 Lists in which force at installation on a residence in the premises located in municipal apartment, citizens represent:
1. The consent of proprietors of all premises (rooms) in the given municipal apartment on installation of the citizen as a member of a family of the proprietor or a member of a family of the citizen living under the contract of social hiring, hiring, gratuitous using.
On behalf of the proprietor — cities of Moscow the consent to installation of citizens gives the authorised body of the executive authority of a city of Moscow — Department of a housing policy and available housing of a city of Moscow.
2. The inquiry on absence of heavy forms of chronic diseases at living and installed persons at whom joint residence in one apartment is impossible, according to the list of corresponding diseases which is established by the Government of the Russian Federation.
The claimant has declared the contradiction of the specified subitems of item 1 of the Law of the Russian Federation from June, 25th, 1993 № 5242-1 «About the right of citizens of the Russian Federation to a freedom of movement, a choice of a place of stay and a residence within the Russian Federation» according to which restriction of the right of citizens of the Russian Federation on a freedom of movement, the choice of a place of stay and a residence within the Russian Federation is supposed only on the basis of the law, and also item 209 GK the Russian Federation which provides the right of the proprietor at own discretion to make concerning property belonging to it any actions not contradicting the law and other legal acts both not breaking the rights and protected by the law interests of other persons, including to alienate the property in the property to other persons, remaining the proprietor of property to transfer them rights of possession, usings and orders property, to pawn property, to charge it and to dispose of it in other ways not forbidden by the law. The court obosnovanno recognised the specified subitems Contradicting items 1 of the Law of the Russian Federation from June, 25th, 1993 № 5242-1 «About the right of citizens of the Russian Federation to a freedom of movement, a choice of a place of stay and a residence within the Russian Federation», and also item 209 GK the Russian Federation and invalid from the moment of the introduction of the decree into validity [580].
Therefore it is important to develop the optimal organizational forms of various kinds of guarantees for concrete legal relations, to generate organizational communications of these guarantees.
Thus, the principle of the guaranteed realisation represents the requirement to research of the measures directed on achievement of economic, legal, material, organizational guarantees of realisation of the rights and discharge of duties, including on elimination of every possible obstacles. Key concept in this case is the guarantee, inevitability of achievement of actual result. In this sense the named principle is much wider than all principles of realisation and, certainly, is not reduced to a principle of unobstructed realisation of the rights, fixed in item 1 of item 1 GKRF [581]. All other principles of realisation of the civil rights and discharge of duties represent itself as original conditions garantirovannosti. Therefore the reality of this beginning depends on observance of all complex of principles of realisation.

<< | >>
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
Ïîìîùü ñ íàïèñàíèåì ó÷åáíûõ ðàáîò

More on topic § 1. A principle of the guaranteed realisation of the rights and discharge of duties:

  1. § 5. A principle of inadmissibility of misuse of right. A problem of reasonable and diligent realisation of the rights and discharge of duties
  2. § 2. Concept and value of the mechanism of realisation of the civil rights and discharge of duties
  3. § 2. The functional approach as a basis of studying of principles of realisation of the civil rights and discharge of duties
  4. § 3. Interrelation of realisation of the civil rights and discharge of duties
  5. § 1. Gnoseological essence of principles of realisation of the civil rights and discharge of duties
  6. § 3. A parity of concepts «civil-law principles» and «principles of realisation of the rights and discharge of duties»
  7. Chapter 6. TSELEPOLAGAJUSHCHIE PRINCIPLES of REALIZATION 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