On the concept of protection of the creditor's rights in obligations

The present article deals with some problems relating to the concept of protection of the creditor's rights in obligations. This concept was very often the subject of research. However, there is no unified approach to the concept of the right protection among lawyers. Legal discussion on this question is complicated by the complex, inter-branch nature of the problem of the right protection since different branches of law regulate this relationship. The present article deals with the civil aspect of the protection of civil rights. A new general norm of the amended Civil Code of the Russian Federation sets up some remedies for creditors' rights in the obligation (Article 308.3). The inclusion of the above article was aimed at the determination of legal remedies in obligations and their correlation with other remedies. However, the final version of this norm sets up some legal remedies in obligations and does not go into the problems of correlation with the remedies used in property law or in other branches of law. The changes resulted in the analysis of the concept of civil rights protection and, especially, of the concept of protection of the rights under obligation. The author examines the existing scientific approaches to the concept above, determines the relations between the concepts "protection of civil rights" and "preservation of civil rights" and analyzes the sense of norms in positive law. The present article also deals with the problem of qualification of the right to protection. There are two main approaches to this question: some lawyers consider this right to be an independent subjective one, other lawyers regard it as a part of a particular subjective right. The author gives examples and draws conclusions. Having considered the general concept of protection of rights, she analyzes the characteristics of obligations, the creditor's legal status in obligations. These features predetermine some special qualities of protection of rights under obligation. The author also formulates this concept. The article describes some legal remedies used in obligations, for example, a specific performance. Article 308.3 of the Civil Code of the Russian Federation sets up this legal remedy as a fundamental one. It corresponds to the basic principle of the law of obligation (the principle of due and effective performance) and European legal tendencies (the present article gives an example of legal regulation of obligation remedies in Germany). In conclusion, the author points out the problems to be solved by lawyers in the course of their theoretical and practical activities.

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