On parity of subjective civil law and power to protect it (by example of right to property)

In the legal doctrine the opinion, according to whichthe subjective civil law is defined as a triad of powers, dominates: the right to positive actions (power to one's own behaviour); therequirement right (power to another's behaviour); power to protection (claim) as a possibility to use the force of state compulsion. Theauthor critically reviews the concept dominating in jurisprudence, according to which the subjective civil law represents a triad of powers,including the power to judicial protection. Using the right to property as example the conclusion that the subjective civil law in case of itsinfringement or contest cannot execute the regulatory function assigned to it is made, moreover, it is not capable of compulsory selfrealization,i.e. of performing the protective function peculiar to it. To restate the broken or challenged subjective civil law, a specialmechanism to clear, improve the legal nature of a disputable civil legal relationship is required. Such a mechanism is the protective legalrelationship, an element of which is the protective power to judicial protection (right to action). The author proves that the subjective civillaw and power to its protection (right to action) represent legal categories differing in the moment, occurrence and termination bases,content and subject. The subjective civil law represents a measure of possible behaviour provided by law (the right to one's own actions) anda measure of due behaviour (right to another's actions), without the third element of a possibility to resort to measures of state compulsion.Security of subjective civil law is shown in the possibility of occurrence of a new additional right - power to its protection. Thus, thesubjective civil law, which is subject to judicial protection, is an element of civil (regulatory) legal relationship. The duty of anotherparticipant of civil legal relationship corresponds to this right. The power to judicial protection is an element of protective-actional relation,for the duty of the state to apply measures of state compulsion as ways of protection of subjective civil law in the name of court correspondsto this right. Thus, the subjective civil law, which is subject to judicial protection, is an element of civil (regulatory) legal relationship. Theduty of another participant of civil legal relationship corresponds to this right. The subjective right to action is an element of protectiveactionalrelation, for the duty of the judge, the court as a jurisdictional state body corresponds to this right.

Keywords

Authors

References