Conditions for satisfaction of negatory claim

The article deals with the problem of determining the criteria for the validity of a noncompensatory claim. The research is based on the method of analysis of judicial practice and the method of comparative law, with the doctrine of German civil law as the most related to Russian private law. At the same time, there is no legal certainty in Russian judicial practice regarding the establishment of a closed list of criteria for the application of a noncompensatory claim. This uncertainty in enforcement generates an even larger problem - ratio and competition negativnogo claim with other remedies such as replevin, a claim for recognition of property rights, a claim for recognition of property right away, tort claim and other. This article offers a detailed analysis of the debate on whether negatory the claim to correct the interference of a legal nature or it is purely aimed at the elimination of actual interference in the peaceful enjoyment of possession and use of the thing; whether the violation be in the form of inaction, or it is always active action of the defendant; as disclosed, the criterion of legality in the protection through megatonnage claim to allow its distinction from tort claims; and other problems of applying this method of protection. As a result of the research, the author comes to the conclusion that a non-compensatory claim is not a universal method of protection. Negator protection has clear limits of application, and the violation that is eliminated by this requirement is characterized not only by the absence of deprivation of possession, but also by many other signs. A violation that is the actual basis of a non-compensatory claim has the following characteristic: it is only an action; this action is illegal, it is factual, is of a continuing nature or is made periodically (illegal state), not connected with deprivation of possession, is not associated with the denial of any subjective right to a thing did not entail the termination of property rights associated with the creation of obstacles in the implementation of the use and possession. There is no need for a full civil offense to satisfy a non-mandatory requirement. It is sufficient that the defendant's actions do not meet the requirements of legal acts or there is no legal basis for such actions. A non-compensatory claim is aimed at protecting the quiet use of a thing, and the use is always carried out by actual actions. Similarly, the violation of use is possible only by actual actions. In itself, use is understood as the ability to extract useful properties from a thing, which implies actual actions. In contrast, the order is related to legal actions that are related to determining the fate of a thing.

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