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§ 2. Protection of the subjective civil rights in system legal Activity

Having considered conceptual features of the tool approach, as the following problem delimitation of its application serves in the activity of the person traditionally mediating civil-law protection of interests of subjects of the civil circulation.

Realisation of protective potential of the claim about a real right recognition absent as legal means is carried out within the limits of the settled system of activity on protection of the broken or challenged right in which the legal purposes and legal means, obektivirujas, open the effective potential.

Granting of effective remedies of a legal protection is one of the central problems of legal regulation as garantirovannost reguljativnyh the obligations constituting life of private law, it is entirely provided with durability of guarding communications, confidence of citizens of advantages of legal means of the resolution of conflicts.

In a science the wide spectrum of approaches to understanding of a category of protection of the civil rights is presented. As well as the right, protection has a multidimensional semantic cut. Within the limits of so-called «theories of measures» protection reveals

Through system of law-enforcement measures [55 [56] [57], in a number of works it is presented as

61 62 body of rules or right institute, and, at last, as legal activity.

According to V.V. Gruzdev, from the methodological point of view to the paramount

Research is come under by protection of the civil rights as activity as during it certain measures and means are used, and public relations developing in corresponding area are exposed

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To purposeful legal influence.

Thus, legal activity on protection of the broken or challenged right or a legitimate interest, first of all, constitutes an initial material of tool judgement. Protection as activity should be distinguished from protection of the civil rights, representing reguljativnyj the institute directed on maintenance of unobstructed realisation of the civil rights and discharge of duties. In this connection critically it is necessary to estimate the approach of differentiation presented in a science

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Protection in a broad sense and protection in narrow sense as the given categories have basic distinctions with a view of. If the potential reguljativnogo protection influences is directed on prevention of infringements of normal development of legal bonds, hardening stimulus of cooperation of the parties protection is activity under the permission of the legal conflict. Certainly, that protection and protection correspond as whole and a part, nevertheless, for example, the institute of maintenance of execution of obligations also, in turn, represents a protection special case, in that case is not clear, why protection is allocated with special qualities of protection in narrow sense.

Activity on civil-law protection possesses variety of specific fig. Unlike the public protection which are traditionally characterised by the imperative nature and carried out by the authorised bodies in vertical legal relations, private-law activity, as is known, is based on equality of its participants, optionality and besprepjatstvennosti its realisation. As R.B.Brjuhov marks, to optionality displays at protection subjective civil [58 [59] is right it is possible to carry a choice of a way of protection of the right, volume of the right which is coming under to protection, and also possibility partially or completely to refuse already chosen way or the protection form, taking into account available limits and restrictions [60].

Thus it is necessary to specify, that optionality in a choice of a way of protection should be understood in two aspects: 1) as a problem of a choice of appropriate legal means taking into account specificity of the legal conflict; 2) as the right in cases, statutory to choose an alternative legal protection frame.

Freedom of choice of ways of protection, - writes A.P.Vershinin, - arises owing to principles of independence and optionality of participants of the civil circulation, and also as a result of fastening in various sources of numerous kinds of ways of protection and separate rules about their choice interested persons [61]. At the same time, unlike the countries angloamerikanskoj a legal family, freedom of choice of protection frames of the civil rights in the continental law is limited by rules about an appropriate protection frame. Differently, subjects have the right to include independently and freely legal means in remedial activity, thus realising risk of application of inadequate means. The given circumstance is caused, as objective laws, for example, does not cause doubts, that restoration of the broken right within the limits of the delictual guarding obligation cannot be reached rules about true recovery, and features of construction of the domestic legal system consistently differentiating real and debt relationships and, as consequence, of a competition denying possibility of claims.

The variety of legal conflicts and tools of their permission puts before subjects of legal activity uneasy enough problem of a choice not only suitable means, but also unique taking into account rules about inadmissibility of a competition of claims. So, in practice there are complexities in the ratio kondiktsionnogo and restitutsionnogo requirements, vindikatsionnogo the claim and the claim of the proprietor about return of property by the person with which the proprietor is in debt relationship, and other boundary situations in which, at first sight, the legal effect of protection is similar, however are various the bases and protection conditions. Absence in the legislation of brightly distinguishable ambits between remedies at law and changeable customs of still formed judiciary practice flashes new boundaries of scientific search. In the given context the tool approach opredmechivaet remedial activity as system of the actions directed on achievement of the purposes of protection, offering subjects transparent receptions, technology of work with legal means.

The legislator, regulating the public relations developing in sphere of protection of the civil rights, is not limited to fastening only ways, protection is carried out by the whole complex of legal means which in a science can be called the mechanism of civil-law protection.

J.N.Andreev, noticing, that the mechanism of civil-law protection acts as a part of the mechanism of legal regulation, to its elements carries: the conventional principles and norms of international law (the international standards); the national legal doctrine (an ideological and theoretical basis of the mechanism); principles of a legal protection, norm of positive civil law and legitimate interests; corresponding juridical facts (wrongful acts); guarding civil matters; certificates of realisation of the rights and duties; pravoprimenitelnye certificates; civil-law means and ways of protection, including measures of protection and responsibility, organizational, remedial (procedural) norms, receptions and other conditions (factors) of protection of the subjective civil rights [62]. Thus dynamics of functioning of the mechanism, in the general view, is presented scientists in a following kind: By fastening of law-enforcement norms the state gives to subjects the list is state-forced measures on a case of infringement of the subjective civil rights; the guarding duty to undergo and execute (inactivity) wrongful acts as the juridical fact, the guarding legal relations as which maintenance act the right for the protection, expressed in possibility of application of coercive measures generate, and also a measure of protection and responsibility; within the limits of guarding legal relation behavioural certificates of subjects are realised; in the conditions of absence of voluntariness of execution of obligations from the debtor, stage approach pravoprimenenija, characterised by state-imperious compulsion and simultaneous occurrence of adjacent grazhdansko-remedial legal relation is possible.

In the presented E.V.Vavilinym concepts of the mechanism of realisation of the rights and discharge of duties protection of the broken right represents a facultative stage of enforcement of a duty. Devoting incommensurably smaller attention to directly mechanism of protection of the subjective civil rights, in work the following definition is presented is the individual built system of legal means and the conditions, directed on purpose achievement on legal and actual restoration of the broken rights or on suppression of their infringement [63].

Fairly noticing necessity not only legal, but also actual (real) restoration of the broken right, nevertheless, there is opened a question that the author means by a category of system of legal means as a category «legal means» does not reveal in work in this connection it is quite reasonable to object that not only means the mechanism about what, actually, in the subsequent and the author convinces us is settled, specifying on mechanism elements. Moreover, on ours

The sight, doubts causes the word-combination use «individual system», page before E.V.Vavilin's designed definition perfectly notices, that how ways of protection were various, they cannot be realised, effectively used without development and fastening in regulatory legal acts, in customs of a business turn or contracts of the mechanism of protection of the subjective civil rights [64 [65]. At the same time, from the above-stated two mutually exclusive hypotheses are probable, at least: 1) the mechanism design is ideal and objective, entirely describing sphere of life due (positive); 2) the mechanism design is subjective and is always concrete, opening dynamics

Individual case of transformation due in the real. On our belief, individually built system of legal means or, more precisely, the toolkit cannot be considered from the point of view of a legal mechanism, if only not in extremely narrow value. Only real legal activity, sootnosimaja with legal mechanisms as an element (stage), the called S.S.Alekseevym as a stage of realisation of rights and duties is subjective and concrete. Legal mechanisms dogmatic persons of the right form a fundamental skeleton, explaining, on what laws the right is realised. For this reason a patrimonial category of the mechanism of legal regulation it is invariable wider category, than legal activity or set of legal means in their strictly tool value.

The increasing attention in researches of civil-law protection is given recently to a design of guarding legal relation. It is known, that the subjective civil rights and duties exist within the limits of the settled legal bond, accepted to call legal relation. Considering, that in a science there are points of view according to which the right of defence represents the independent right, in the theory

There was an idea to differentiate reguljativnye and the guarding civil

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Legal relations.

Most consistently the design of guarding legal relation is investigated in D.N.Karhaleva's works, in its opinion, it is the public relations arising on the basis of guarding rules of law between the sustained person and the offender in case of infringement (or creations of threat of infringement) the rights which maintenance is the right for protection and the subjective guarding duty realised for the purpose of maintenance of protection of the broken right (or legal status restoration). Thus on a plan of the scientist, the given legal relation has independent character, can arise as irrespective of reguljativnogo legal relations, and in parallel with it, besides, in the legal regulation mechanism carries out a means role, with which help guarding norms

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Are realised.

Running forward, we will notice only, that last thought causes some objections as the essence of legal relation consists, more likely, in opredmechivanii a legal reality for legal regulation. As it was repeatedly marked, in tool sense only realised in activity of the person legal means transform the objective right to the subjective (put into practice). Legal relation as reguljativnoe, and guarding, represents the form with which help the right flashes a legal side of result of legal activity of the parties, therefore any norms does not realise legal relation.

As it is noticed by O.S.Ioffe, the legal relations is a way of transformation or a condition of existence of the public relation [66 [67] [68] [69]. Traditional

Understanding of the element maintenance is the unity of the subject, object, competence and a duty. Thanks to investment of subjects of the public relation with rights and duties, the relation gets quality uregulirovannosti, a constituting being of legal relation.

Proceeding from bases of the theory of legal relation, D.N.Karhalevym the structure of guarding legal relation in which as object actions (behaviour) which are made by the offender on restoration of the broken subjective civil law or restoration of a legal status of the person existing before infringement act is built, as subjects the persons possessing qualities of the guarding legal capacity and capacity [70 [71] [72] [73], and the maintenance, accordingly, the independent right for protection and a subjective guarding duty act.

Recognising conceptually true the theory of guarding legal relation described by the scientist, we will notice, that the design of legal relation not to the full covers the maintenance of legal activity. As has noticed S.J.Filippova, the modern jurisprudence hides the person and its role behind a screen of the legal relation representing model of real communication between people, received as a result of "clarification" of the actual relation from its passing features.

According to O.M.Rodionovoj, legal relation, representing the scheme of specific legal vision of an actual situation for the purpose of its estimation by means of rules of law, has the real basis - joint cooperation of people which it mediates. Thus human activity represents invariably more substantial category, than legal relation which mainly describes, rather than explains.

Consecutive application of tool methodology with reference to civil-law protection demands change of an informative paradigm from the description of a design of guarding legal relation in favour of the direct analysis of legal activity on protection of the broken civil law.

The guarding legal relation arising at approach

Sets of juridical facts at which applicable there is use a real right recognition absent as a protection frame, will allow to establish the bases of its occurrence, change, the termination, to define subject structure, the maintenance and object of the relation. Certainly, present information is significant, however is empty for subjects pravorealizatsionnoj the activity, requiring in transparent and concrete reference points of operating by the given protection frame.

Considering, that true recovery, a negatory action presentation, unjust enrichment collecting, as well as protection of the broken right by means of a recognition of real right the absent represent a version of legal activity on protection of the broken civil law, disclosing of its conceptual structure has essential value, predetermining a theoretical skeleton of the present research.

In fundamental work to V.P.Gribanova devoted to realisation and protection of the civil rights, scientists it has been casually noticed, that the behaviour of people always includes two moments: the moment subjective, connected to some comprehension of the behaviour by the person, and the moment objective, i.e. the action actually made by the person [74].

To components of legal activity of the person, as

slozhnostrukturirovannoj systems, S.J.Filippova carries subjects, their legal purposes, object of activity, legal means [75]. On a plan of the scientist, interaction independent legal dejatelnostej subjects forms group

Persons with the organised legal purposes, considering, that in again formed system the opposite purposes are consolidated, at legal activity there are two opposite forces, these are forces

Cooperation, on the one hand, and the conflict - with another [76].

It is represented, that the resulted system demands some specifications, especially with reference to activity on protection of subjective civil law. Legal activity, being a product of human consciousness, represents unity of objective and subjective elements of system. If the subjective cut consolidates the psychophysiological phenomena,

Sense of justice, the legal purposes, will, the objective includes legal means in the realised condition and external preobrazuemyj a component, a legal situation, in connection with which permission at the subject the legal purpose is formed (at sufficient level of sense of justice), are selected legal means and is shown will in its permission. In the course of movement and development the formed social system tests influence of forces of cooperation and destruction (conflict) in this connection, in various time intervals the system is capable to change the qualitative conditions. Accumulation in system of forces of destruction, an antagonism leads to its point bifurkatsii when the stability condition is replaced by the open conflict. The given process coincides with a change stage reguljativnogo legal relations guarding or occurrence of the accessory guarding relation. The formed legal conflict, possessing qualities of a subsystem, in turn, includes subjects, the bases, conditions and object, still describing set of external circumstances in which activity is invariably carried out. Present dynamics can be graphically presented in a following kind (a Fig. 1.1):

Cooperation

t

The conflict

Fig. 1.1. The system of legal activity the Resulted system of legal activity is closely connected with earlier noted problem of a choice of an appropriate protection frame as offers known algorithm of the organisation of activity on protection of subjective civil law. In particular, identification of elements of the legal conflict allows subjects to generate correctly the legal protection purpose, to avoid application of legal means concerning the inadequate party or in the conditions of absence of the statutory bases and conditions, an establishment of object of the conflict as its source, allows to apply at the earliest stages legal means of reconciliation of the parties, to avoid conflict development. Correlation of elements of the legal conflict and the purpose, finally, leads to a choice the subject of the most suitable and unique legal protection frame which in the will appendix finds dejatelnostnuju force.

The real right recognition absent, out of any doubts, possesses qualities of a remedy at law, in this connection activity on it

To use sootnosima with the system set forth above in rodovidovom the relation. In spite of the fact that at legislative level practically there is no mention of the given protection frame, of what is more detailed § than 1 subsequent chapter, judiciary practice convincingly testifies to its wide applicability and a demand from subjects of the civil circulation. Nevertheless, till now both at subjects pravoprimenitelnoj activity, and in the doctrine of the right is not present clear representations about specificity of the legal conflicts resolved by given means, about the legal protection purposes, about the legal nature of a recognition of real right absent in system of protection frames of the civil rights that causes an urgency of use of a tool method in the present research. As result of the appendix of the present method revealing of laws of the organisation of activity on claim application about a real right recognition absent as a protection frame serves.

T.I.Illarionov notices, that the civil law has arisen from a collision socially possible and due, and its development goes on a way of election and perfection of ways of satisfaction of interests of participants of usual social communications and forms of the permission of conflict situations [77]. To the specified vectors corresponds reguljativnaja and guarding subsystems of civil law. Using a system-structural and is functional-target method, the scientist convincingly proves isolation of the specified subsystems by independent groups reguljativnyh and conservation measures between which steady functional dependences are formed.

The guarding subsystem provides subjects of activity on protection of subjective civil law by system of legal protection frames which are named by the current legislation as ways of protection. We will notice, that till now in a science there are examples of discussions about concept and a parity of categories "way", "measure", "means" of protection, etc.

So, the carried out research has allowed A.A.Kravchenko to come to conclusion that the way of protection of the civil rights is the compulsory legal effect fixed by the law, applied under the initiative

The authorised person with a view of satisfaction of its legitimate interests, infringing on interests of a party liable [78 [79]. Thus the author is assured that the category "means" is not absolutely suitable as patrimonial concept of a way in view of a polysemy of the given term; it is possible to carry to measures only that part of ways of protection of the civil rights which is realised in the guarding

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Legal relations.

Criticising the offered A.P.Vershinin the approach in definition of a way of protection as financially legal actions, M.S.Murashko defends the point of view according to which not the actions undertaken for restoration of the right and reception of compensation, and the condition of the restored right, material indemnification of negative consequences of an encroachment act as immutable and discriminating feature of a way of protection [80 [81].

V.V. Vitrjansky notices, that ways of protection of the civil rights usually are understood as the means provided by the legislation with which help can be reached suppression, prevention, elimination

Breaches of law, its restoration and (or) indemnification of the losses caused

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Breach of law.

Immanent propensity of jurisprudence to ordering and classification kategorialnogo the device should lead to occurrence of the approaches supporting strict differentiation of concepts "measure", "means", "form", "way". V.V. Gruzdev's point of view in which opinion the way of civil-law protection is a conceivable direction of protective activity of the authorised person in a concrete situation of infringement or threat of the breach of law, specifying In this connection is worthy on what a measure, means and in what form it is necessary to use for achievement of the purpose of the given activity. In the given concept the measure represents the protective action ordered by guarding competence, and means gets character of concrete action on its realisation in the certain form.

Valuable the resulted approach is at least because represents one of not numerous examples dejatelnostnogo the approach to studying of a legal reality in which it is offered not filologicheski the verified definition, and attempt to find out law of use of ways of protection in system activity of the person is undertaken. Nevertheless, despite presence of the specified advantages, a number of conclusions of the author cause certain objections.

It is represented, that in aspect of tool research discussion about a parity of a way and a protection frame has under itself resolutely other substantial basis having unlike earlier resulted discussion direct practical value. As it was marked earlier, the dogmatic person, the sociology and legal philosophy constitute unity of a private-law science, nevertheless, it does not exclude differentiation of theoretical researches in the named semantic blocks that causes, including, and specificity used kategorialnogo the device. An instrumentalism, operating with a protection frame category as versions of legal means, the conceptual arsenal of the legislation (dogmatic person) in which terms are used in strict the jural significance should not mention and destroy. Now in the civil legislation the list of ways of protection of the civil rights is fixed, by which legal doctrine is successfully classified on measures of protection, measures of responsibility, a measure of operative influence and a self-defence measure. Introduction of [82] legal means in the given terminological number only will complicate understanding concerning the similar legal phenomena.

Included in activity on protection of subjective civil law ways, in tool sense get value of legal protection frames which classifications in the offered S.J.Filippovoj can be carried to group of means-ways, that is receptions of legal activity. In this connection one of key problems for the subject pravorealizatsionnoj activity is the choice of means which correspond to ways and measures fixed in the law, otherwise means do not get character legal and should be qualified as inadequate protection frames.

For example, Definition of the Constitutional court of the Russian Federation from

oo

On February, 07th, 2008 №242-О-О positions of item 4 of item 252 of the Civil code of the Russian Federation (further - GK the Russian Federation) have been explained. In particular applicants have considered, that positions of given article break them

Constitutional laws as on the sense given pravoprimenitelnoj by practice, allow vessels of the general jurisdiction in case of impossibility of joint using the community property in the form of premises and vydela shares in nature to cease the property right to a share in such premises against the will of its proprietor (and not in connection with its reference), simultaneously obliging other participants of the common property to pay it indemnification, and supposes thereby the compulsory debaring of the property of the participant of the common property. Explaining the given positions, the Constitutional court of the Russian Federation (further - KS the Russian Federation) has legally specified, that normopolozhenija the civil legislation, [83 [84] providing possibility in unusual cases without the consent of the participant of the common property to make the decision on indemnification other proprietors of monetary indemnification instead of vydela its shares in nature do not provide statement possibility one joint owner of the requirement about deprivation of other participant of the right to a share with payment to it of indemnification even if this participant has no essential interest in use of the community property and its share is insignificant. Thus, KS the Russian Federation has clearly enough explained, that such protection frame as the requirement statement to one of participants of the common property about the termination of the property right to a share of another without its consent contradicts a principle of inviolability of the property and, accordingly, should be qualified court as the inadequate.

With reference to a problematics of the present research it is necessary to notice, that to the current legislation such way of protection of civil law, as a recognition of real right is not known for the absent. Considering, that the given phenomenon is genetically connected with sphere and requirements of legal activity, out of any doubts, it should be qualified as a protection frame. However, because the operating civil legislation starts with a rule about the exhaustive list of is standard fixed ways of protection, there is a question: whether the given means is ought as it corresponds with system of ways of protection of the civil rights fixed in the law. The questions put thus resolve not conceptual discussion, and allow to solve concrete utilitarian problems pravoprimenenija, in particular besides noted problematics about admissibilities, an establishment of the legal nature of the claim about a recognition of real right to the absent gives possibility to define a circle normopolozheny, applicable in conditions probelnosti legal regulation of the given sphere of public relations.

The remarks set forth above on a parity of ways and protection frames correspond to a principle fixed in item 45 of the Constitution Russian

Federations [85] which provides the common right to protect the rights and freedom in all ways which have been not forbidden by the law. In spite of the fact that the constitution of the Russian Federation uses a category of a way, in our opinion, the given term means by itself legal means, the receptions of the legal activity corresponding to the letter and equity of statute and directed on protection of broken interests. Otherwise would take a place noted O.A.Kuznetsovoj [86] collision between the constitutional norms and norms of the civil legislation.

Thus, one of key requirements of the organisation of activity on protection of the subjective civil rights is coincidence of the legal means selected subjects to system of statutory ways of protection of the broken rights. Thus it is important to avoid the following methodological error usually peculiar to dogmatic researches - it is impossible to qualify truly the claim about a real right recognition absent by artificial imposing of the fixed legal models on area of public relations which has not been settled earlier by the right. In a separation from studying of realities of a legal life, logic operations on proving of the independent nature of a recognition of real right absent, whether real how many would not be true,

Obligations, legal research inevitably will follow a way of theoretical scholasticism.

In this connection, as it was repeatedly marked above, the area of legal activity should be the basic source of occurrence of new knowledge of qualities of a recognition of real right absent as of legal means. Taking into account the named methodological preconditions in the subsequent it is offered to pay attention to following key aspects: it is necessary to establish the legal purpose of the subjects applying the claim about a recognition of real right by the absent; to reveal specificity of legal conflicts resolved by it; to correlate with operating legal regulation, having defined the nature and a place of investigated means in system of ways of protection of the civil rights. Thus, the complete theoretical concept of understanding of a recognition of real right absent as legal means will be built, its concept is designed, signs, the concrete bases and conditions at which it is applicable, that are defined, finally, urged to clear and order pravorealizatsionnuju activity of subjects.

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A source: Fajzrahmanov Brown Rafisovich. THE REAL RIGHT RECOGNITION ABSENT AS LEGAL MEANS. The dissertation On competition of a scientific degree of the master of laws. Kazan 2015. 2015

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  3. § 3. A negative recognition in system of ways of protection of the civil rights
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