The legislation establishes the conditions for the emergence of civil rights and determines how to protect them (Articles 8, 12 of the Civil Code of the Russian Federation). The legal capabilities of entities appear by virtue of normative acts, the performance of certain actions of legal entities and individuals.
general information
Protection of rights is provided for in art. 11, 12 of the Civil Code of the Russian Federation. According to the rules, a citizen can apply to the court. In addition, the law provides for the possibility of self-defense of rights. It is established by Art. 12 and 14 of the Civil Code of the Russian Federation. Let us further consider in detail the methods and features of the mechanisms of legal protection of citizens provided by law.
What does art. 12 Civil Code
The legislation provides for the following protection methods:
- Recognition of rights.
- The restoration of the entity that existed before the violation of the situation, the suppression of unlawful actions, including those that create a threat to the interests and freedoms of a person.
- Recognition of invalidity of disputed contracts, application of the corresponding consequences.
- Deprivation of a decision of a meeting of legal force.
- Recognition of invalidity of an act of a municipal / state body.
- Self-defense is right.
- Awarding of an obligation in kind.
- Compensation for losses, non-pecuniary damage, recovery of forfeit.
- Change / termination of legal relations.
- Non-application by the court of an act of a municipal / state body that is contrary to law.
This list is considered open.
Specific remedies in Art. 12 Civil Code of the Russian Federation (with comments)
Usually, the legislative rules governing certain relations between entities establish specific methods for the legal protection of participants. In this regard, Art. 12 of the Civil Code of the Russian Federation with comments on the relevant articles. For example, under Art. 475, the purchaser of goods of inadequate quality may, at his discretion, demand from the seller a commensurate reduction in the purchase price, gratuitous elimination of product defects within a reasonable time, and reimbursement of the costs of correcting the identified defects (if it was carried out at the buyer's expense).
According to Art. 1252, the protection of the exclusive right to the result of intellectual work and means of individualization is carried out by the publication of the decision of the court on the violations committed. At the same time, the actual copyright holder is indicated in the act. In this case, recognition of the law is carried out (Article 12, Clause 1 of the Civil Code of the Russian Federation).
Application specifics
It should be noted that it is impossible to provide protection methods for absolutely all legal relations. This determines the dispositive nature of Art. 12 Civil Code of the Russian Federation.
Judicial practice in disputes about violation of rights is quite extensive. Conflicts can arise both between citizens, and between them and organizations. In Art. 12 of the Civil Code of the Russian Federation, the main methods of protection are established. Participants in disputed legal relations can rely on this norm, defending their position. For example, in Art. 234 of the Code for a subject, the long-standing possession of another's property, which exceeded the period established by the aforementioned article, does not provide for the possibility of demanding recognition of the right of ownership of it. However, in paragraph 16 of the Decisions of the Plenums of the Armed Forces No. 10 and YOU No. 22, it is allowed in accordance with Art. 11, 12 of the Civil Code of the Russian Federation.
In accordance with the rules, protection is carried out through the recognition of rights. It follows from this that an entity who believes that it has become an owner may file a corresponding claim. The defendant on it by acquisitive prescription will be the previous owner of the property.
Special cases
Most of the protection methods used in one way or another are varieties of means established in Art. 12 Civil Code of the Russian Federation. For example, the requirement of a party to shared ownership to provide it with duties and purchase rights in violation of the principle of preemptive acquisition can be interpreted as a change in the legal relationship. In the event of failure to fulfill obligations to transfer an individually defined thing to economic management, property, paid use, operational management of the creditor, he is entitled to demand the seizure of it from the debtor on the terms provided for by the transaction.
This provision is established by Art. 398 of the Code. In this case, the execution of the obligation in kind will be awarded. According to Art. 1065 the threat of damage may subsequently act as the basis for filing a claim with a demand to prohibit activities that result in the corresponding danger.
If the harm will be a consequence of the operation of the structure, industrial complex and other actions that inflict or threaten it, the authorized authority may, in addition to imputing compensation to the subject, terminate or suspend its work. This method of protection, expressed in the prevention of damage, is not directly established by Art. 12 Civil Code of the Russian Federation. But in its essence, it appears as a demand for the suppression of actions that threaten the violation of rights.
Article 152 of the Code provides for the possibility of filing a lawsuit to publish a refutation of information discrediting a person’s reputation, dignity and honor. In fact, such a requirement acts as a restoration of the situation that existed before the violation of the law (paragraph 2 of Article 12 of the Civil Code of the Russian Federation). The commentary to articles 1251-1252 indicates the possibility of protecting intellectual property through the suppression of actions that infringe upon the interests and freedoms of the subject or create such a danger, compensation for losses, compensation for damage.
In cases provided by law, measures may be specified in the contract. For example, the amount of responsibility of the guarantor to the creditor is the same as that of the direct debtor, unless otherwise provided by agreement.
Civil liability
It involves the application of the following measures to violators of rights:
- Recovery of forfeit.
- Indemnification.
- Recovery of non-pecuniary damage.
Other sanctions can also be attributed to liability measures. Among them, for example:
- the removal of material carriers containing the results of intellectual work or means of individualization, material and equipment used for their manufacture, from circulation and their destruction without compensation;
- the requirement to pay interest accrued for the use of funds in case of their unlawful deduction, evasion of return, other delay in return.
Compensation for losses (Articles 12, 15 of the Civil Code of the Russian Federation) and other measures of responsibility are used to restore the situation of the affected subject or to compensate for the harm that has occurred to him in connection with the violation of his rights. Therefore, these remedies have negative consequences for the perpetrator.
Specific measures
The provisions of Art. 12 of the Civil Code of the Russian Federation are of particular importance in the implementation of subjective rights, since they contain an unlimited list of protection mechanisms and allow the use of other means not established by the norm, if they are provided for by federal law.
In this regard, measures of influence should be added to the list under consideration. Among them, for example:
- The requirement for state registration of transactions related to the transfer of ownership. It is claimed under Art. 551 (paragraph 3), if the second party to the transaction evades the mandatory procedure.
- A special method of protection is the requirement for the violator of exclusive rights to publish the decision of the first instance indicating the actual copyright holder. In this case, the mechanism established by ab. 2 tbsp. 12 of the Civil Code of the Russian Federation (restoration of the original position).
- A relatively new way of protection is the requirement of compensation for violation / infringement of the right to execute a judicial act, which provides for foreclosure on budget funds. It is established by Federal Law No. 68.
- The same regulation provides for compensation for violation of production rights in court within a reasonable time. This measure applies to public law education that has committed a corresponding violation, having a property character and bearing negative consequences for the perpetrator.
Additional features
The holder of civil rights can choose any of the protection mechanisms prescribed by law, in accordance with his interests and in accordance with the essence of the violation.
A combination of various measures of Art. 12 Civil Code of the Russian Federation. For example, an entity, making a request for state registration of transfer of property rights under an agreement on the sale of an immovable property, may file a lawsuit to recover from the party to the transaction who unreasonably evades the mandatory procedure, losses arising from a delay in execution.
Compensation for financial losses
An entity whose right was, in his opinion, violated, may demand full compensation for losses if a smaller amount is not provided for in the legislation or the contract.
In this case, the financial losses are the expenses that the entity has made or will have to carry out to restore its interests. Losses include damage or loss of material assets belonging to the victim (real damage), lost profits that could have come to a person under normal conditions of circulation, if his rights had not been violated. If the guilty entity has derived financial gain as a result of its illegal actions, the victim may demand compensation for lost income. Moreover, the amount of compensation must be no less than the illegal profit received by the violator.
Self Defense Rights
It is provided for by art. 14 GK. Self-defense can be carried out by any legal means. In this case, the victim must choose means commensurate with the violation. His actions cannot go beyond the behavior necessary to suppress unlawful acts.
Complaints
Defense in court is made by presenting claims. When compiling a statement, it is necessary to take into account the requirements of the law. First of all, the required details must be present:
- The name of the authority authorized to consider the dispute.
- Information about the plaintiff.
- Information about the defendant.
The content must indicate the grounds for the occurrence of legal relations, the nature of the violation, reinforcing with references to the rules or contract. The petitioner shall indicate the immediate requirements for the defendant. If they are connected with compensation for losses, calculations are attached to the claim.
The burden of proof rests with the applicant. He has the right to petition for the involvement of witnesses, experts and other specialists. Evidence must be lawful and reliable. In turn, the defendant may also provide objections and rebuttals, file petitions. He also has the right to file a counterclaim. At the end of the application should be the signature of the author and the date of preparation.
Documents substantiating the subject’s position and receipt of payment of the duty are attached to the lawsuit. Within the time period established by the procedural code (in the absence of violations of the requirements for the form), the application is accepted for consideration. At the appointed time, substantive proceedings are conducted. As a result of the hearing, a decision is made. The court ruling may be appealed.
Conclusion
The legal protection methods provided by law are of great practical importance for the participants in the turnover. Thus, normative acts not only confirm the guarantee of the realization of legal opportunities, but also ensure their protection and restoration. This, in turn, confirms the democratic nature of the country's legal system.