The priority task of the rule of law is to express the interests of the only source of power - the multinational people. The subjective rights of every Russian should be at the center of domestic legal science. The state has developed many legal guarantees for the implementation of human rights, but not all of them work properly. The question arises of the application of self-defense of civil rights - a procedure that has appeared in Russia recently. How does the institution of self-defense work? This will be described in detail in our material.
Protection of the rights of citizens
Legal literature contains a huge number of concepts and classifications related to the protection of the rights of citizens. Most scholars believe that the form of protection should be distinguished taking into account the specifics of the object and the nature of the law to be protected. In other words, the more important and larger an individual right is, the more specific form of protection will be assigned to it.
Lawyers have formulated several forms of protection of the law. This is recognition of freedoms and rights, restoration of a pre-existing provision, award for execution, recovery of losses, as well as termination or change of legal relationship. All these functions can be realized, no matter how difficult it is to guess, only by the state.
There are two main forms of protection of civil rights: lawsuit and non-lawsuit. All disputed claims subject to analysis and protection in a procedural manner are called claims. If we are talking about the requirements to be considered without a statutory form of protection, then they are called non-claim.
The form of protection of law is, first of all, a complex of organizational measures. They can take two forms: legal and non-legal. In the first case, the defense takes place in court. A non-legal form of protection does not require the intervention of competent authorities, and therefore it can be called independent. It is in this case that we will talk about the institution of self-defense of civil rights - a phenomenon much more controversial and poorly understood than it might seem at first glance. According to lawyers, self-defense is a form, but not a way of protection. That is, this is the same agreed-upon measure as the filing of a lawsuit.
The fact that the self-defense of subjective civil rights is presented not in a way, but in a form, is also evidenced by the Russian Civil Code. So, in article 14 of the Law it is expressly stated that the authorized person, defending his right, determines the actual circumstances, applies substantive legal norms, establishes a method of protection against encroachment and makes a concrete decision. The totality of all these activities can hardly be called one way. This is a special form of legal action, which is also reported by many lawyers.
The concept of self-defense of civil rights
The relationship between the state and the individual is regulated by Russian laws. But in modern society it is not so simple to determine the border where one's own law ends and the infringement of the freedoms of others begins. No matter how high the development of society is, the issue of protection from offenses is still relevant.
The state has no monopoly on the protection of freedoms and interests. This means that every Russian has the opportunity to self-defense of civil rights. However, its scope is somewhat blurred, and therefore it will not be so simple to separate the legal protection of oneself from unintentional violation of the law. And yet, each person is able to protect and restore their own rights. He must do this in accordance with the law. So, article 14 of the Civil Code of the Russian Federation allows for the self-defense of civil rights, but in those boundaries and forms that do not go beyond the law and morality. What exactly is it about, what boundaries does the law establish? Let's try to figure it out further.
Types of self-defense
The protection of civil rights is judicial, administrative and independent. The first two forms are procedural in nature and are implemented with the direct participation of the state. For self-protection, this is unusual. Often it is informal, that is, it is implemented without legal registration. Two types of self-defense of law follow from this: as a form and as a way.
Self-defense of civil rights is permissible only to the extent and forms that correspond to the violation. Moreover, going beyond the law is strictly prohibited. How can self-defense implement in civil law? It should be remembered how important the contracts are in this area. It is logical to assume that the drafting of a special act is a popular form of self-defense in civil law.
For a better understanding it is worth giving a simple example. The parties conclude a contract between themselves. The contractor undertakes to perform work, and the customer guarantees the payment of finances. If one of the parties violates the contract, then legal means of self-defense will be used: from formal - filing a lawsuit, to non-legal - for example, self-recovery of due funds.
Thus, self-defense of civil rights under the Civil Code of the Russian Federation should be understood as an independent exercise by a person of legal or actual actions . The purpose of such actions is one - the elimination of violations of law.
History of Civil Self-Defense
Standards for the self-defense of civil rights were enshrined in Russia not so long ago. It happened in 1994. The first volume of the Civil Code appeared; at the same time, the institution of self-defense was created. But did it exist before? The question is extremely interesting. It is known that the Civil Code of the Russian Federation was created by serious domestic civilists who took as a basis the legislation of all Russian history.
It is easy to guess in which period of history the institution of self-defense was developed the worst. This, of course, is Soviet time. For almost 70 years of the existence of the Soviet Union, the state possessed a number of legal monopolies. Among others was the protection of civil rights. But what happened before the Soviet era? Here it is worth turning to the Code of Laws of the Russian Empire.
The provision of article 690, part 1 of volume 1 contains information "on the right to judicial protection of property". It states that all property arbitrariness, even though it was in illegal possession, is strictly prohibited. At the same time, it is indicated that "legal defense against physical violence is not considered arbitrariness until it goes beyond the law." What does all this mean? In short, in pre-revolutionary Russia, as well as in the USSR, there was not a single type of self-defense of civil rights. This is due, first of all, to the politics of the country of that time. That the Russian Empire, that the Soviet Union cannot be called legal states. Hence the conclusion: there are civil rights, but their independent protection is prohibited.
And yet, what made modern legislators introduce norms on self-defense of civil rights in the Civil Code of the Russian Federation? These are mainly provisions of a foreign legal field. For example, the Saxon Code on Citizens of 1863 or the Swiss Law on Obligations of 1881 already enshrined the institution of self-defense. Moreover, in European countries at the end of the 19th century, the independent protection of property rights was sufficiently regulated and even developed rapidly.
Lawyers about the Institute of Self-Defense
Professor of domestic civil law D.I. Meyer speaks of self-defense as a form of protection of the law, but one in which it is realized by the holder, and not by state authorities. According to Meyer, self-defense is applied only when "state assistance comes too late." The scientist forms the content of self-defense of civil rights from "self-defense" and "arbitrariness". Of course, this kind of classification and assessment is somewhat outdated.
Self-protection of their rights is fixed on paper as a preventive method and is quite legal in nature. This is indicated by the civilist K.N. Annenkov. In his opinion, the extrajudicial exercise of civil rights should not be confused with arbitrariness, the means of extrajudicial protection of rights - with self-defense.
In general, any act of protecting any encroachment on life, health or person is a legitimate way of self-defense. That is why the concept under consideration should be distinguished from crude concepts like “arbitrariness” or “self-defense”. There are incredibly many ways to independently protect civil rights, and each of them can be quite legal in nature.
Civil Law Self-Defense Terms
Russian law contains a lot of punctures. So, in the Civil Code of the Russian Federation the concept of self-defense of civil rights is almost not disclosed. Article 14 states that such an action should not go beyond the law. Why is such an important element for society that appeared in the country for the first time in many years, so sparingly revealed? The legislators themselves cannot answer this. Fortunately, in recent years a sufficient number of court decisions have accumulated, on the basis of which relevant conclusions can be drawn.
First you need to consider the conditions for self-defense of law. So, the implementation of the independent protection of civil rights is possible only with a combination of the following factors:
- violation of a specific right or a high probability of its violation;
- the need to suppress the offense and apply measures appropriate to the type and nature of the violation of the law.
Thus, the presence of the offense and the figures of the offender are the main conditions for the application of self-defense of civil law.
Forms of self-defense and their signs
In the field of civil law, five forms of self-defense of their rights are traditionally distinguished. Here's what to call here:
- extreme need;
- necessary defense;
- retention of property;
- detention of the offender with a direct encroachment on property;
- physical actions to retain other people's property in order to protect their interests - property or personal non-property.
The first form, an extreme need, is drawn up in advance in the corresponding document. This is a simple example of self-defense of civil rights. As already mentioned, the parties pre-register possible ways of self-protection of their interests. If something goes wrong, the defending party will be able to act strictly within the framework of the contract.
The remaining four forms of self-defense are tied to the present time, that is, their implementation may be sudden. The reason for self-defense is a violation of property or personal non-property rights. Each of the presented forms has a number of features:
- implementation in case of violation of law;
- implementation only in the form of action (inaction cannot be a measure of self-defense of civil rights);
- unilateral implementation (an application to the competent state authorities is not required);
- focus on ensuring the inviolability of law;
- participation in suppression of violation and liquidation of its consequences;
- the possibility of appealing against the actions of a person implementing measures of operational impact.
The self-defense of civil rights, therefore, can be represented in the form of another classification. This division into real protection of interests and potential.
Necessary defense
The main feature of the necessary defense is the ability not to compensate for harm caused in a state of self-defense. It is only important that the defense does not go beyond the limits established by law. Thus, an infringer of civil rights may be harmed, but the obligation to compensate him will be recognized as unlawful.
The institute of necessary defense is the broadest form of self-defense of civil law. Article 12 of the Civil Code of the Russian Federation directly indicates this. The thing is that the necessary defense is negotiated in advance. An agreement is concluded in which participants indicate potential ways to protect their legal rights and interests.
The necessary defense clearly defines the limits of self-defense of civil rights. Because of this, a similar form of protection can be called almost the best in the entire sphere of property law. Firstly, forced defense is a kind of prevention of the violation. One of the parties is unlikely to dare to encroach on the property of the other side, if the outcome of such a struggle is predetermined in advance. Secondly, the ability to not pay refunds plays a large role. At the same time, causing property damage to the guilty person should not be confused with exceeding the limits of necessary defense. That in criminal, that in civil law is a very fine line, which is extremely difficult to detect. It should be noted that illegal actions, even during the defense, will entail the imposition of civil liability.
For a better understanding of how the necessary defense works, you need to consider a case from judicial practice. A number of owners of the apartment building installed a fence in the courtyard. They motivated this by the fact that cars entering are a threat to children and the elderly. As it turned out later, the decision was not made by all residents. Some owners were dissatisfied with the initiative, saying they had already violated their rights. Does the necessary defense take place here as a defense and self-defense of civil rights? The answer is negative. Firstly, individuals are not authorized to install fences on a common land plot. Secondly, an agreement was not drawn up in which all the necessary norms would be spelled out.
Now it’s worth giving an example of proper self-defense. First, resonance is needed - for example, vehicles were knocking down or nearly knocking people in the yard. Next, a meeting of owners is convened, at which all competent tenants must be present. Voting is being held for the installation of the fence. If the majority is for, then the appeal is sent to the local housing and communal services or HOA. Only after this is an agreement concluded in which the forms of self-defense of rights in case of demolition of the fence are indicated in advance.
Thus, it is not so easy to formulate ideal ways to protect and defend civil rights. Sometimes it does not hurt the help of a qualified lawyer.
Urgent need
The main difference between emergency and necessary defense is the source of danger. If you have to defend yourself against concrete living persons, then actions in the order of necessity arise due to events that are not dependent on the will of the person. For example, this is a natural disaster, catastrophe, natural anomalies, diseases, malfunctions of mechanisms and much more. Danger can arise both in itself and as a result of unlawful actions of a certain person.
As with the necessary defense, actions in cases of emergency can be implemented to protect their rights and interests. It is also permissible to independently protect the interests of the state and society, carried out at will.
In the civilian sphere, law of action in emergency situations is always associated with harm. It means that a person, trying to protect his interests, can cross the border of what is permissible and accidentally harm some objects. This is a phenomenon accompanying any danger, and therefore the person is not responsible for it. But here it is necessary to distinguish between accidental damage to property that could not be prevented, and deliberate violation of the law. A person who intentionally exceeded the limits of emergency is obliged to compensate for the harm caused.
Self-defense and arbitrariness: where is the border?
Self-defense was not just forbidden for certain periods of the existence of Russia. The state was simply afraid of the excessive independence of the people. Moreover, there is still a problem with the delimitation of arbitrariness and independent protection of their rights. With self-defense, a person does everything within the framework of the law. He can prescribe his intentions in the contract in advance, as possible, for example, in cases of necessary defense.
Everything is much more complicated with self-defense in real time. The conditions are not predetermined, and a person, being in a state of excitement, may unexpectedly cross the line of what is permitted. A simple example is action in an emergency. Imagine that a city was flooded. , - . ? Unlikely. .
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