The identification of common, systemic features of protection methods and their differences also creates the basis for their classification. Classification, in turn, allows you to "decompose" this system into parts - subsystems and more deeply explore the relationship both between the elements of the selected part and between all subsystems of the system of protection methods civil rights and legally protected interests.
In civil law, various options for classifying ways to protect civil rights have been developed, but only some of them are used in educational and scientific literature most often. In addition to the division of methods traditional for civil law into measures of protection and measures of responsibility, methods of protection are classified depending on the order of their implementation into three groups: those applied by the court or other authorized body; legal relations applied by the participant himself; methods that can be applied equally both independently and with the help of state bodies. Such a division of protection methods is important, first of all, in law enforcement practice, however, it does not allow obtaining information about the features of the protection methods themselves in connection with the use of a criterion external to the elements (implementation procedure).
Another, more common in the legal literature, is the classification of protection methods into general (universal) and special, carried out taking into account Art. 12 of the Civil Code of the Russian Federation. In this case, the scope, or the application of one or another method, is used as a division criterion. At the same time, the methods of protection included in the list of Art. 12. are considered as general, and the methods provided for by other norms of the Civil Code and the norms of other laws, as special. Here is how V.V. Vitryansky: “If general methods are universal and can be used to protect, as a rule, any subjective right, then all other methods are intended to protect only certain rights or to protect against certain violations. In other works, a similar explanation is given for the division of protection methods into general and special, or, more often, the authors use this classification, perceiving it as an axiom that does not require proof. Despite the external logic of such a classification, a closer study of it reveals a number of shortcomings.
Determining the means of protection listed in Art. 12 of the Civil Code of the Russian Federation, as a general one, assumes that each of the elements of this group should have such a property as universality, the possibility of application for the protection of all subjective civil rights. But in reality, not all the methods of protection listed in Art. 12 of the Civil Code, have a universal character. For example, the victim may claim compensation moral damage in case of violation of personal property rights and, in cases provided for by law, in case of violation of property rights (Article 151 of the Civil Code). Obviously, the scope of the possible action of this method is limited by the range of non-property rights and some property rights.
Another named in Art. 12 of the Civil Code, the method - awarding to the performance of an obligation in kind - is closely related to the principle of the actual performance of an obligation and arose as a legal reaction to a violation of the subjective rights of a claim. It is in the area of ​​the law of obligations that the award for execution in kind is still used today. Moreover, many jurists note a significant narrowing of the scope of the principle of real performance, due to which the universal nature of the award to the performance of an obligation is more than doubtful.
On the other hand, the assignment of all the rest, not named by the legislator in Art. 12 of the Civil Code, methods of protection for the special group is also not accurate. For example, the requirement to pay interest for the use of other people's funds (Article 395 of the Civil Code) is a method applicable in case of violation of the creditor's right from any monetary obligation. Or such provided Art. 328 of the Civil Code, a measure of operational impact, as a suspension of the fulfillment of a counter obligation, the application of which is possible in case of violation of any counter obligation (from a supply contract, contract, exchange, etc.). And provided for by Art. 1252 of the Civil Code of the Russian Federation, compensation is a method of protection, the scope of which is currently not limited to copyright only, but extends to other objects of intellectual property.
It should also be taken into account that the methods of protection historically arose as a certain variant of the behavior of an authorized person in connection with the violation of a specific subjective right. The connection between the method and the right or legitimate interest that it is designed to protect is also manifested in modern law enforcement practice: when drawing up a statement of claim or claim, the creditor requires not only to oblige the debtor to fulfill the obligation in kind, but specifies what action should be performed (put the missing quantity of goods or transfer a certain thing). It is no coincidence that the authors who support the division of methods of protection into universal and special ones note that the former, being realized in separate institutions of civil law, acquire the character of special methods. Although from the standpoint of the development of the civil law institution of protection, it would be more correct to believe that some methods of protection, classified as special, began to be applied in violation of subjective rights similar in legal nature or from offenses similar in nature. Compensation for losses, coercion to fulfill an obligation, collection of a penalty is the result of such a generalization, a transition from the level of a concrete phenomenon to an abstract one. But this does not mean that the method of protection becomes suitable for the protection of all violated rights and legally protected interests: each method has its own object of protection, its own conditions of application.
Thus, the division of methods of protection into general and special does not reflect the actual links between the methods included and not included in the list of Art. 12 GK. At the same time, it is quite reasonable to determine the scope of their action when characterizing the methods of protection. Obviously, some civil law methods have a wide scope (compensation for damages), while the application of others is limited (the requirement to recognize the right of ownership or to allocate a share from the common property of co-owners). But to assert on this basis that some methods have a general scope, while others have a special one, is wrong, since the assessment of a method of protection in terms of its scope is always relative. The already mentioned compensation for non-pecuniary damage can be considered as a special method applicable as a general rule to protect only non-property rights, and at the same time - as general way protection of any non-property right.
So, we can state that any attempt to classify protection methods into general and special ones is doomed to failure due to the wrong choice of criterion. This means that such a division cannot be an instrument scientific knowledge systems of ways to protect civil rights and legally protected interests.
Another criterion for classifying methods of protection used in the science of civil law is the target orientation. So, depending on the goals of protection, there are: preventive, restorative and penal methods of protection; regulatory, preventive and protective"; restorative, preventive and preventive. The need to take into account the objectives of the impact of law in a situation of violation of subjective rights or legally protected interests is beyond doubt, and the division of methods of protection according to this criterion has both scientific and applied significance. At the same time The time of classification of methods of protection, which are based on this criterion, is not without drawbacks.We can agree with the opinion that the allocation of regulatory methods of protection blurs the distinction between protection and other protective effects of law, leads to a confusion of the concepts of "protection" and "protection of civil rights".
Reasonably also expressed by M.K. Suleimenov doubts the need to single out preventive methods of protection along with preventive means, since the prevention and suppression of offenses are closely interconnected goals realized through the preventive impact of civil law. Finally, the goals of “punishing” the offender are not inherent in all remedies, but only in civil liability measures, which can really be called punitive methods. It is characteristic that M.K. Suleimenov, agreeing with the allocation of penalty methods of protection, however, notes the concomitant (auxiliary) nature of the penalty function in relation to main function protection of the right - restoration of the violated right.
A certain similarity with the named classifications has the proposed V.V. Vitryansky division of methods of protection depending on the nature of the consequences of their application. On this basis, the author identifies three groups of remedies: allowing to confirm (certify) the right or terminate (change) the obligation; preventing (suppressing) violation of the right and restoring and (or) compensating losses of the victim. However, such a criterion, as a result of applying a protection method, is derived from another - the target one. The end result of protection always depends on the intended, foreseeable result, which is the goal. legal impact.
As rightly noted by T.I. Illarionov, "law belongs to the category of purposeful systems in which functional structures play the most active role." The significance of functional connections is also characteristic of the system of ways to protect civil rights and legally protected interests, which in this case acts as a subsystem of the protective system of law. Based on the functional-target criterion, the author distinguishes two main groups of protective measures: protection measures and liability measures. If the measures of protection are aimed at restoring the interests of the victim, then the measures of responsibility are applied for the purpose of property impact on the offender. In turn, each of these groups includes measures that have a more specific focus. For example, protection measures are divided into restorative (compensatory), preventive and provisional measures.
This division does not take into account the fact that the measures of responsibility perform not only the function of "punishment", but also the restoration of the victim's property sphere. In addition, there is an obvious similarity between these groups in terms of target orientation: according to T.N. Illarionova, among the measures of responsibility, along with penal measures, compensatory and preventive ones should be distinguished. It seems that the classification of civil law methods of protection into measures of protection and measures of responsibility should be carried out according to a criterion other than the functional-target one. Rather, one should take into account the grounds for the application and the nature of the consequences of the application of these measures, as expressing the main specifics of this group of protection methods.
It is also objectionable to combine restorative and compensatory protection measures into one group, especially since T.I. Illarionova notes the relative independence of the latter: "They are not restorative in the full sense of the word, since compensation is not the restoration of the original state." Finally, the allocation as a special group among the methods of protection of interim measures is not sufficiently justified. Recognition of the right, enforcement, change of legal relationship, according to the author, serve as additional guarantees for the exercise of rights, forming a group of interim measures. However, based on the definition of T.I. Illarionova, any method of protection is a variant of the behavior of an authorized person in a situation of violation (threat of violation) of a subjective right, that is, in a situation where it is hardly possible to talk about ensuring the implementation of the right.
Security, stimulating character, are all methods of protection; It is the ability to ensure the protection of violated interests that the author considers as a feature common to the entire system of protective measures. And the very fact of the existence of this system has a certain stimulating effect on the behavior of participants in civil legal relations.
The stated objections concern only the variant of the classification of methods of protection existing in civil law on the basis of a functional-target criterion, but not the criterion itself, which has an undoubted cognitive value. Its use to classify ways to protect civil rights and legally protected interests allows us to solve a number of research problems: to reflect the features of the manifestation of a particular function of civil law in a particular method of protection, to identify common features, inherent in the means of one target orientation, as well as to establish the relationship between the subsystems of protection methods of different target orientation and the factors influencing these relationships. Moreover, it becomes possible to build a system of ways to protect a specific subjective right or a group of homogeneous rights (property, obligation, exclusive).
Classification on the basis of the proposed criterion is also of practical importance, since it contributes to the formation of an idea among the subjects of civil legal relations about the possible goals and types of protective effects of law, allows you to choose a behavior option that ensures the protection of a violated right or legally protected interest with minimal effort and time.
Thus, depending on the goals and specifics of the legal impact, all methods of protection can be divided into three groups:
- the ways in which the restorative effect is manifested and which, therefore, are aimed at restoring the legal status;
- methods that ensure the restoration of the property sphere of the victim and thereby implement the compensatory function;
- methods of a preventive nature, aimed at preventing possible offenses, preventing or reducing their consequences.
When applying the proposed classification, it should be borne in mind that the compensatory and preventive functions of civil law, having a wider scope, are manifested not only in connection with the protection of civil rights. "And if compensatory remedies are quite easy to distinguish from other measures of protection of a compensatory nature (the former are aimed at consequences of an already committed offense), then the delimitation of preventive methods of protection from other protective measures causes certain difficulties.
Since the warning (prevention) implies the prevention of illegal behavior, it is associated primarily with the protection, and not the protection of civil rights. Indeed, the measures that the owner takes to prevent possible encroachments on the property (puts a reliable door with a good lock, a video surveillance system, acquires a guard dog) are quite reasonably attributed to the security measures taken by the authorized person himself. However, it should be recognized that preventive and repressive effects can also be manifested after an offense. So, within the framework of self-defense, it is possible to repel a real encroachment with the help of actual actions (necessary defense) or to influence the violator through the use of legal measures in order to prevent or reduce the adverse consequences of a violation of a right or legitimate interest. The focus is on warning. possible harm or a decrease in its volume is considered by many civil lawyers as a hallmark of operational measures as one of the types of civil law methods of protection.
It is more difficult to determine the legal nature of some interim measures. As is known, interim measures, including methods of ensuring the fulfillment of obligations, are of a pronounced preventive nature. However, some of them allow not only to influence the debtor by stimulating proper behavior, but also to compensate for the creditor's losses incurred as a result of the violation. So, a penalty, on the one hand, acts as a way to ensure the fulfillment of an obligation, and on the other hand, it is a measure of civil liability. Other methods of ensuring the fulfillment of obligations (pledge, suretyship, bank guarantee) are also aimed at protecting the property interests of the creditor in the event that the debtor's warning about possible sanctions in case of violation of the obligation "did not work". Apparently, in this case, one should distinguish between the institution of interim measures, the norms of which (established by law or contract) perform a preventive function, and specific methods of security, many of which, being realized in a situation of violation of the creditor's right, act as compensatory methods of protection.

The methods of protecting subjective civil rights are understood as substantive and legal coercive measures enshrined in law, through which the restoration (recognition) of violated (disputed) rights and the impact on the offender are carried out.

Ways to protect civil rights are named in Art. 11 GK. They are:

• 1) recognition of the right;
• 2) restoration of the situation that existed before the violation of the right;
• 3) suppression of actions that violate the right or create a threat of its violation;
• 4) recognition of a voidable transaction as invalid and application of the consequences of its invalidity, establishment of the fact of the nullity of the transaction and application of the consequences of its invalidity;
• 5) invalidation of the act government agency or a body of local government and self-government;
• 6) self-defense of the right;
• 7) award to performance of duty in kind;
• 8) compensation for losses;
• 9) recovery of a penalty;
• 10) compensation for non-pecuniary damage;
• 11) termination or change of legal relationship;
• 12) non-application by the court of an act of a state body or body of local government and self-government that contradicts the law;
• 13) other methods provided by the legislation.

Thus, the list of ways to protect civil rights, specified in Art. 11 of the Civil Code, is not closed, exhaustive. In fact, it represents that possible toolkit of remedies for violated rights, which will help victims navigate and facilitate their choice.

Ways to protect civil rights can be classified on various grounds. So, according to the goals of protection (limits of influence on the infringer), the methods are divided into:

• a) suppressive, which are aimed at stopping actions that violate the right or create a threat of its violation (termination of legal relations, invalidation of an act of a state body or a body of local government and self-government);
• b) restorative methods aimed at restoring the situation that existed before the violation of the right (return of property, compensation for losses);
• c) penalty methods (forfeit).

The ways of protecting civil rights allowed by law differ from each other in legal and material content, forms and grounds for application. According to these features, methods of protecting civil rights can be classified into the following types:

• a) the actual actions of authorized subjects, bearing signs of self-defense of civil rights;
• b) measures of operational influence on the violator of civil rights;
• c) law enforcement measures applied to violators of civil rights by the competent state or other bodies.

Ways to protect civil rights, in addition, can be divided into exclusive (for example, the recovery of property from someone else's illegal possession - vindication) and alternative (chosen by the subject of law from among several options, especially in legal obligations), complex (recovery of both property losses and moral harm).

civil law protection

A person whose rights or legitimate interests have been violated has the right to choose any of the methods of protection, but in some cases specific methods of protection are established by law. So, for example, according to Art. 473 of the Civil Code gives a list of possible actions that can be applied to the infringing seller; according to Art. 1011 of the Civil Code, a person who, without legal grounds, has received or disseminated undisclosed information or uses it, is obliged to compensate the person who lawfully possesses this information for the losses caused by its illegal use, i.e. - compensation for damages, etc. An example of other methods of protection named in the legislation is Art. 989 of the Civil Code, where ways of protecting exclusive rights are named.

The choice of method of protection largely depends on the nature of the violation and the consequences of such a violation. This will be discussed below in the disclosure of specific methods of protection.

It should be noted that the provisions of Art. 11 of the Civil Code, the methods of protection are heterogeneous in their legal nature, which also has a significant impact on the possibility of their implementation. The most common in the literature is their division into protection measures and liability measures, which differ among themselves on the basis of application, social purpose and functions performed, principles of implementation and some other points. The circumstance that, as a general rule, measures of responsibility, in contrast to measures of protection, apply only to the guilty violator of a subjective right and are expressed in additional burdens in the form of depriving the offender of certain rights or imposing additional obligations on him. Among the ways to protect civil rights under Art. 11 of the Civil Code, only compensation for losses, recovery of a penalty and compensation for moral damage can be recognized as measures of responsibility; all others are protection measures.

In addition to universal methods of protection, there are special methods of protection designed to serve certain types of civil rights, these are vindication and negatory claims, the collection of interest for the use of other people's funds in accordance with Article 366 of the Civil Code, etc.

One of the means of protecting civil rights is civil liability, in particular, liability for breach of obligations, in which the most common methods of protecting civil rights are applied, such as damages and compensation for penalties.

However, it should be taken into account that the application of liability is possible subject to compliance with the requirements of the law, in case of violation of which a person loses the right not only to the possibility of using civil liability, but also loses the right to protection in general. So, according to Art. 9 of the Civil Code, going beyond the limits of the exercise of civil rights may serve as a basis for a court, an economic court or an arbitration court to refuse the interested person in general to protect his right.

Depending on the implementation mechanism, ways to protect civil rights can be divided into:

• a) methods that can only be carried out in a judicial (jurisdictional) order (for example, the recognition of an act of a state body as invalid);
• b) methods that can be implemented both in court and independently, without going to court (compensation for damages, recovery of a penalty);
• c) methods that can only be implemented in a non-jurisdictional manner (self-defense, operational sanctions).

Thus, the methods of protecting civil rights are substantive measures of a coercive nature fixed by law, through which the restoration (recognition) of violated (disputed) rights and the impact on the offender are carried out.

Violation of the general limits of subjective civil law is sometimes called abuse of rights.

Abuse of the right is a special type of civil offense committed by a legally authorized person in the exercise of his right, associated with the use of unlawful specific forms within the framework of his permitted behavior. For example, building a house near another house, leading to darkening of its windows.

In other words, the abuse of rights is an independent, specific form of violation of the principle of exercising civil rights in accordance with their social purpose.

Specific forms of abuse of the right are varied, but they can be divided into 2 types:

1) abuse of the right committed in the form of an action carried out with the intent to harm another person (chicana);

2) abuse of the right, committed without the intention to cause harm, but objectively causing harm to another person.

The definition of chicane given in paragraph 1 of Art. 10 of the Civil Code allows us to say that the abuse of the right in the form of a chicane is an offense committed by a subject with the direct intent to harm another person.

For example, repeated phone calls to different time days, accompanied by threats, insults and aimed at disturbing the peace of a certain person. According to Art. 45 of the rules for the provision of services by local telephone networks, the user is obliged to prevent the use of the telephone set to deliberately cause disturbance to other persons.

The peculiarity of the abuse of the right, committed without the intention to cause harm, but objectively causing harm to another person, is different in that it is committed by a person not with direct intent.

The subjective side of such abuses of the right can be expressed in the form of indirect intent or negligence.

An example is the following case.

The famous Russian writer lived in Moscow and was a man of very high material security. His father lived in Arkhangelsk, who had a house on the right of ownership. Together with his father, the younger brother of the writer lived in this house - he was disabled since childhood, his brother's wife and 2 children. During the life of his father, the writer did not visit him, did not provide any material assistance. The father was dependent on a disabled son engaged in tin trade. After the death of the father (the mother died earlier), an inheritance was opened - a house. The writer raised the question of the division of property. The disabled brother did not agree to the division, referring to the fact that the division of the house in kind is impossible, because. if the house is sold and the money received from this is divided, then with the money due to him, he will not be able to purchase even the cheapest housing for the family.

The writer filed a lawsuit. The writer's demands on the division of hereditary property are formally based on his subjective right to inherit the property left after his father's death. At the same time, the realization of this right under the circumstances set forth will cause significant harm to his brother. Therefore, it would be legitimate to raise the issue of abuse of the right to receive part of the inheritance. However, such a conclusion can only be drawn on the basis of a comprehensive analysis of the case materials.

The elements of an abuse of the right, committed without the intent to cause harm, but objectively caused, can be described in the law, while the composition of the chicane cannot be specifically described in the law. Thus, the legislation defines specific elements of abuse by an economic entity of a dominant position in the market.

In accordance with the Law of the RSFSR "On Competition and Restriction of Monopolistic Activities in Commodity Markets" dated March 22, 1991, competition is considered to be the competitiveness of economic entities when their independent actions effectively limit the ability of each of them to unilaterally influence general terms and Conditions circulation of goods in the relevant commodity market.

Restriction of competition can be, for example, the result of agreements (concerted actions) of competing economic entities (potential competitors) that have (may have) a total market share of a certain product of more than 65%, aimed at:

• maintenance of prices, discounts, surcharges;
• increase, decrease, maintenance of prices at auctions and auctions;
• division of the market according to the territorial principle, according to the volume of sales and purchases, etc.

An example is the refusal to conclude a lease agreement for gasoline storage tanks by the Joint Stock Company, which is the sole owner of the gas storage facility throughout the territory, which leads to the exclusion of competitors from the gasoline market, and the refusal to prolong the existing lease agreement for a part of the gas storage facility, to the exclusion of competitors from the gasoline market.

The dominant position is the exclusive position of an economic entity or several economic entities in the market of goods that do not have a substitute, or substitute goods, giving him (them) the opportunity to exert a decisive influence on the general conditions of the traded goods, works, services in the relevant product market, hinder access to the market for others economic entities or otherwise restrict them in economic and entrepreneurial activities.

The classic representative of the subjects dominating the market are Russian joint-stock companies - RAO "Gazprom", RAO "UES".

The dominant position of economic entities is determined by regulatory methods. See: guidelines for determining the dominant position of an economic entity in the commodity market. Approved by order of the State Committee of the Russian Federation on Antimonopoly Policy dated June 3, 1994 No. 67 // VVAS RF, 1994 No. 4.

Abuse by an economic entity of a dominant position in the market includes actions that have or may have the result of restricting competition and infringing on the interests of other economic entities, incl. actions such as:

• withdrawal of goods from circulation with the purpose or result of which is the creation or maintenance of a shortage in the market or an increase in prices;
• imposing on the counterparty the terms of the contract that are unfavorable for him or not related to the subject of the contract (unreasonable demands for the transfer of financial resources, other property, property rights);
• inclusion in the contract of discriminatory conditions, which puts the counterparty in an unequal position compared to other business entities;
• reduction or termination of production of goods for which there is a demand or orders from consumers, if there is a break-even possibility of their production, etc.

Specific sanctions may be imposed for the commission of acts that constitute an abuse of the right, as, for example, is done in the antimonopoly law for cases of abuse of a dominant position in the market. So Art. 22 - 26 of the Law on Competition and Restriction of Monopoly Activities in Commodity Markets provide that

Each method of protecting civil law can be applied in a certain procedural or procedural order. This procedure is called a form of protection of civil law.

In the science of civil law, two main forms of protection are distinguished - jurisdictional and non-jurisdictional.

Jurisdictional form of protection - the activities of authorized state bodies to protect violated or disputed subjective rights.

Its essence is expressed in the fact that a person whose rights have been violated applies for protection to state or other competent authorities (to a court, arbitration, arbitration court, higher authority), which are authorized to take the necessary measures to restore the violated right and stop the offense.

Jurisdictional form of protection means the possibility of protecting civil rights in court or administrative order, the so-called general and special procedure for the protection of violated rights.

As a general rule, protection is carried out in court, since this form is most consistent with the principle of equality of participants in civil legal relations. Clause 1 of Article 11 of the Civil Code states that the protection of violated or disputed civil rights is carried out in accordance with the jurisdiction of cases established by procedural legislation, by a court, arbitration court or arbitration court. This is a civil rights lawsuit.

Disputes between legal entities, as well as disputes, one of the parties to which is a citizen as an individual entrepreneur, are subordinate to the arbitration court. The arbitration court also considers disputes with the participation of citizens - creditors on an application for declaring a legal entity or an individual entrepreneur insolvent (bankrupt) and on applications from citizens on declaring illegal a refusal to register or evading state registration of an individual entrepreneur.

The courts of general jurisdiction deal with other disputes involving citizens, as well as disputes arising from contracts for the carriage of goods in direct international rail, road and air freight traffic.

By agreement of the parties, the dispute may be submitted to arbitration. The parties may include in the contract an arbitration clause on referral to the appropriate arbitration court, but an agreement on the referral of a specific dispute to arbitration is possible, which must be concluded in writing.

Cases arising from administrative relations, labor and family legal relations are not allowed to be referred to an arbitration court.

The decision of the arbitral tribunal is executed by the parties voluntarily; in case of non-execution, coercion is applied on the basis of a writ of execution issued by a court of general jurisdiction or an arbitration court.

Arbitration courts permanently operating in the Russian Federation include the International Commercial Arbitration Court and the Maritime Arbitration Commission at the Chamber of Commerce and Industry of the Russian Federation.

In accordance with Article 11 of the Civil Code, the administrative procedure for their protection should be recognized as a special procedure for the protection of civil rights.

It is accepted as an exception to general rule, i.e. only in cases specified by law. As an example of a legislative resolution of the protection of civil law in an administrative procedure, one can cite the rules on the consideration of disputes on the refusal to issue patents by the Appellate Chamber of the Patent Office of the Russian Federation, or the norms of housing legislation, for example, eviction, by law enforcement (out of court) bodies of citizens who arbitrarily occupied a residential premises, in an administrative order with the sanction of the prosecutor - Art. 90, 99 LCD.

An administrative remedy is a complaint. An administrative decision may be appealed to a court.

In some cases, according to the law, mixed is allowed, i.e. administrative-judicial order of protection. In this case, the victim, before filing a lawsuit in court, must file a complaint with state authorities, for example, individual patent disputes, some cases arising from legal relations in the field of administration, etc.

The non-juridical form of protection covers the actions of citizens and organizations that are committed by them independently, without recourse to state and other authorized bodies.

This form of protection takes place in the self-defense of civil rights and in the application of operational measures by an authorized person.

Classification of ways to protect civil rights

Ways to protect civil rights differ from each other in behavioral and material content.

According to these features, methods of protecting civil rights can be classified into the following types:

1. self-defense of civil rights;
2. measures of operational influence on the violator of civil rights;
3. law enforcement measures applied to violators of civil rights by competent state or other authorities.

Self-defense of civil rights is the commission by an authorized person of actual actions permitted by law, aimed at protecting his personal or property rights and interests (Article 14 of the Civil Code).

These, for example, include the actual actions of the owner or other legal owner aimed at protecting property, as well as similar actions committed in a state of necessary defense or emergency (Articles 1066, 1067 of the Civil Code).

Self-defense is applied in cases where circumstances exclude the possibility of applying for protection to state bodies at the present time. It should not go beyond the limits of the rights that the victim protects, and should be proportionate in its forms to the infringement, as a rule, ensuring the protection of material rights.

For example, installing an alarm on a car, installing a fence around a private house. However, there is a known case when the owner of a dacha fenced his plot with barbed wire, passing through the fence electricity. The inadmissibility of this kind of "security" means is obvious, since they are aimed not only at protecting property, but also at causing harm to a person who may come into contact with such a structure through negligence. It follows from this that the authorized subject has the right to use only such measures of self-defense that do not infringe on the rights and legitimate interests of other persons. If the use of unauthorized means of protection causes harm to other persons, then a statutory obligation arises to compensate for the harm caused.

At the same time, in the cases provided for by law, the infliction of harm to the offender or third parties by the actions of an authorized person to protect their rights and interests is recognized as lawful, and does not entail legal liability. We are talking about actions in a state of necessary defense or in conditions of extreme necessity.

Operative measures are legal means of a law enforcement nature that are applied to the violator of civil rights and obligations by the authorized person himself as a party to civil legal relations without recourse to the competent state or public authorities for the protection of the right. In science, they are also called organizational measures, organizational sanctions.

These measures, as well as self-defense, are characterized by the permissibility of the law. But their subjects necessarily act as one of the parties to the legal relationship, which unilaterally, without contacting the competent state bodies, as it were, responds to the improper behavior of the other side.

These measures are distinguished by the principle of simultaneous fulfillment of obligations, for example, Railway does not release the goods to the recipient before payment for the carriage.

This is one of the ways to ensure the fulfillment of duties, one of the types of legal guarantees.

Operational measures include:

1. execution by an authorized person of work not performed by the debtor at the expense of the latter (for example, elimination of defects in goods - clause 1 of article 475 of the Civil Code);
2. ensuring counterclaims, payments (for example, delay in the delivery of goods to the recipient or its departure until all due payments are made - clause 4 of article 790 of the Civil Code);
3. refusals (refusal to perform certain actions in the interests of a faulty counterparty; unilateral termination of the contract or change of its terms in case of illegal behavior of the counterparty - for example, clause 1 of article 468, clause 2 of article 475, clause 3 of article 723, etc. of the Civil Code) ;
4. settlement and credit measures by analogy with sanctions (for example, transfer of a faulty payer to a letter of credit form of payment);
5. withholding (Article 359 - 360 of the Civil Code, paragraph 4 of Article 790 of the Civil Code).

Law enforcement measures applied to offenders by the state are ways to protect civil rights that are implemented in a legal form - in a judicial or administrative order. This has already been discussed in more detail above.

Types of information protection, their scope.

Classification of information security methods. Universal methods of information protection, areas of their application. Areas of application of organizational, cryptographic and engineering methods of information protection.

The concept and classification of information security tools. Purpose of software, cryptographic and technical means of protection.

Under the guise of ZI is understood a relatively isolated area of ​​information security, including its inherent methods, tools and measures to ensure the security of information.

Legal protection - a type of protection, including a set of rules established and protected by the state that regulate the protection of information.

Legal protection of information regulates:

1) determine the type of secret; the composition of information that relates and can be attributed to each type of secret, except for commercial; and the procedure for assigning information to various types secrets;

3) establishes the rights and obligations of the owners of protected information;

4) establishes the basic rules (norms) for working with protected information, except for being a commercial secret;

5) establishes criminal, administrative and material liability for an illegal attempt on protected information, as well as its loss and disclosure, as a result of which negative consequences have occurred or could have occurred for the owner or owner of the information.

Some of these issues should be regulated only by law, the other part by laws and by-laws.

Organizational information protection- this is a type of protection, including a set of organizational and administrative documents, organizational methods and measures that regulate and ensure the organization, technology and control of information protection.

Organizational protection of information is the most important type of information protection, this is due to the fact that it is multifunctional and, unlike other types of protection, is able to autonomously (independently) provide certain areas of protection, and at the same time accompany other types of protection, since not one of them can can provide one or another direction of protection without the implementation of the necessary organizational measures.

In relation to the areas of activity, five areas of application of organizational protection can be distinguished:

1. Ensuring compliance with established legal norms for information protection. This direction is carried out by such regulation of the activities of the enterprise and its employees, which allows, obliges or forces them to comply with the requirements of legal norms for information protection. For this purpose, legal norms are either laid down (transferred) into the regulatory documents of an enterprise that regulate the organization and technology of performing work, employee relations, conditions for hiring and dismissing employees, labor regulations, etc., or are transformed into special regulatory documents on information protection. At the same time, one does not exclude the other: some of the issues may be reflected in general documents, and some in special documents.

2. Ensuring the implementation of cryptographic, software and hardware and engineering and technical protection of information. This direction is carried out by developing normative-methodological and organizational and technical documents, as well as carrying out the necessary organizational measures to ensure the implementation and functioning of the methods and means of these types of protection.

3. Ensuring the protection of individual areas independently only by organizational methods and measures. It allows to solve only by organizational methods the following questions:

Definition of carriers of protected information;

Establishing the scope of circulation of protected information;

Ensuring a differentiated approach to the protection of information (feature of the protection of secrets, specificity of information protection);

Establishment of the circle of persons admitted to protected information;

Ensuring compliance with the rules for working with information by its users;

Prevention of the use of protected information during open works and activities, including the preparation of materials for funds mass media, demonstrations at open exhibitions, in speeches at open events, conducting unclassified office work, and so on.

4. Ensuring the protection of certain areas in combination with other types of protection. This direction allows in conjunction with other types of protection:

Identify sources, types and methods of destabilizing influence on information;

Determine the causes, circumstances and conditions for the implementation of a destabilizing effect on information;

Identify channels and methods of unauthorized access to protected information;

Determine methods of information protection;

Establish a procedure for handling protected information;

Install a system of access to protected information;

Ensure the protection of information: in the process of its production, processing and storage; during its transmission over communication lines and during physical transmission to third parties; when users work with it; when holding closed conferences, meetings, seminars, exhibitions; when conducting a closed educational process and defending a dissertation; in the implementation of international cooperation; in case of emergencies.

5. This direction is a combination into a single system of all types, methods and means of information protection. It is implemented through the development and implementation of regulatory and methodological documents for the organization local systems and comprehensive protection of information, organizational support for the functioning of systems, as well as by ensuring control over the reliability of systems.

basis cryptographic protection information is cryptography, which stands for cryptography, a system for changing information in order to make it incomprehensible to uninitiated persons, therefore cryptographic protection of information is defined as a type of protection carried out by converting (closing) information by encryption, coding or other special methods.

The goals of cryptography have changed throughout history. At first, it served more to ensure secrecy, to prevent unauthorized disclosure of information transmitted through military and diplomatic communications. With the beginning of the information age, the need for the use of cryptography in the private sector was revealed. The amount of confidential information is huge - case histories, legal, financial documents. Recent advances in cryptography have made it possible to use it not only to ensure the authenticity and integrity of information. In addition to cryptographic methods, physical protection and steganography are used to preserve the secrecy of the message. As practice has shown, the most effective information protection is provided on the basis of cryptographic methods and, as a rule, in combination with other methods. An important concept of cryptography is resilience - the ability to resist the attempts of a well-armed modern technology and the cryptanalyst's knowledge to decrypt an intercepted message, reveal the cipher keys, or compromise the integrity and/or authenticity of the information.

Modern cryptographic protection is implemented by a combination of mathematical, software, organizational methods and tools. It is used not only and not so much to close information during its storage and processing, but during its transmission, as traditional ways and especially through radio and cable channels.

Software and hardware protection of information– type of information protection, including special programs protection, functioning autonomously, or implemented in software tools information processing or technical information security devices.

There are no software and hardware methods of information protection, thus, information protection is carried out only by means of information protection.

Informatization of many areas of society (defense, politics, finance and banks, environmentally hazardous industries, healthcare, and others) leads to the use of computing tools in carrying out work related to the processing and storage of confidential information and requiring guaranteed reliability of the results and the most processed information. Computers and software are most commonly used as computing tools. This makes it necessary to develop and apply additional information security tools when creating secure automated systems and secure information technologies.

Thus, software and hardware protection is designed to protect information technologies and technical means of information processing.

Right. 10-11 grade. Basic and advanced levels Nikitina Tatyana Isaakovna

§ 45*. Protection of material and non-material rights. Causing and making amends

To intangible benefits civil law refers to life and health, personal dignity, personal integrity, honor and good name, business reputation, privacy, personal and family secrets, the right to free movement, choice of place of stay and residence, the right to a name, the right of authorship, other personal non-property rights and other intangible rights that belong to a citizen from birth or by virtue of law and are not alienable or transferable in any other way.

How is the protection of tangible and intangible rights carried out? According to the Civil Code of the Russian Federation protection of material and non-material rights carried out by:

Recognitions of law;

Restoration of the situation that existed before the violation of the right, and suppression of actions that violate the right or create a threat of its violation;

Recognition of a voidable transaction as invalid and application of the consequences of its invalidity, application of the consequences of invalidity void transaction;

Recognition as invalid of an act of a state body or local self-government body;

Self-Defense Rights;

Awarding to the performance of duties in kind;

Damages;

Penalty recovery;

Compensation for moral damage;

Termination or change of legal relationship;

Non-application by the court of an act of a state body or local self-government body that contradicts the law;

In other ways provided by law.

In addition to obligations arising from the conclusion of contracts (§ 40), there are also so-called non-contractual obligations. The grounds for their occurrence are, in particular, harm and unjust enrichment.

Do harm- means to cause property damage, which can be expressed in monetary terms. For example, in the event of a car collision, the person responsible for the accident must pay for the repair of not only his car, but also the car damaged by him.

A binding legal relationship is established between the person who caused the harm and the one to whom the harm was caused. Its content lies in the fact that the tortfeasor (the one who caused harm) is obliged to compensate for the losses caused to him. The decisive condition for liability in this legal relationship is the guilt of the tortfeasor, although it is only assumed by the court. If the tortfeasor proves that he has taken all measures in his power to prevent harm, he will be found not guilty and will not bear property liability. The victim must prove the fact of property damage caused by the actions of the defendant (inflictor).

The Civil Code of the Russian Federation establishes the principle of full compensation, according to which harm must be compensated in full. In this case, the court gives preference to compensation for damage in kind (present a similar serviceable thing, repair damaged property, etc.). But he can decide on the full monetary compensation for losses.

By virtue of the obligation arising from unjust enrichment, a person who, without establishing (by legislation or by transaction) grounds, has acquired property at the expense of another, is obliged to return to the latter what was received unjustifiably. In this case, the actions of the acquirer should not be at fault. Example: unreasonable receipt of money in the mail as a result of an error in the address.

Questions for self-control

1. What does civil law refer to intangible goods?

2. In what ways is the protection of material and non-material rights carried out?

3. What are the grounds for the emergence of non-contractual obligations?

4. What does it mean to harm?

5. What is the decisive condition for liability for causing harm?

It is interesting

Lawyers talk about moral harm, which is the physical and moral suffering of a citizen. A person in a trolleybus, in a store, in a repair shop understands moral harm as a kind of insult inflicted on him by those who are called upon in one way or another to ensure the satisfaction of his daily needs, to make his life easier, moreover, to those who do it for money. Therefore, a person considers himself entitled to demand from the offender, who has not fulfilled his duties, to compensate for this offense.

The main significance of compensation for non-pecuniary damage is that the court, when assigning the amount of compensation, recognizes the priority human dignity and makes the offender pay for the suffering suffered by the consumer, reimburse them. Over the years of application of the Law "On the Protection of Consumer Rights", compensation for moral damage has been increasing all the time. Thus, the first case, won in Russia in January 1992, for the replacement of a low-quality microwave oven brought compensation to the winning consumer in the amount of 50% of the cost of this oven. Then, as a rule, they began to award compensation in the amount of 100%. Then the Supreme Court of the Russian Federation pointed out to the judges that, generally speaking, there is no connection between the value of the thing and the amount of compensation for moral damage. Now in court decisions began to meet very high amounts of compensation (Home legal encyclopedia).

We learn to defend our rights. Information for reflection and action

How does the law protect the honor, dignity and business reputation of citizens?

A citizen has the right to demand in court a refutation of information discrediting his honor, dignity or business reputation, if the person who disseminated such information does not prove that it is true. A citizen in respect of whom information is disseminated that discredits his honor, dignity or business reputation, has the right, along with the refutation of such information, to demand compensation for losses and moral damage caused by their dissemination.

Compensation for non-pecuniary damage is carried out in cash. The amount of compensation is determined by the court on the basis of reasonableness and fairness. The plaintiff should not show self-interest, but it is unreasonable and too modest to evaluate the moral anguish caused by the defendant.

The Civil Code of the Russian Federation provides for a special case of liability for harm caused to a citizen as a result of unlawful conviction, illegal imprisonment into custody or taking a written undertaking not to leave, unlawful imposition of an administrative penalty in the form of arrest or correctional labor. This damage is compensated by the treasury Russian Federation.

Harm can also be caused as a result of other illegal actions of the bodies of inquiry, preliminary investigation, prosecutors and courts. Such harm is subject to compensation on a general basis (if the defendant is found guilty, he is obliged to personally compensate for the harm caused).

Examining Documents

Civil Code of the Russian Federation (Extracts)

Article 150. Non-material benefits

1. Life and health, personal dignity, personal integrity, honor and good name, business reputation, privacy, personal and family secrets, the right of free movement, choice of place of stay and residence, the right to a name, the right of authorship, other personal non-property rights and other intangible benefits that belong to a citizen from birth or by virtue of law are inalienable and non-transferable in any other way. In cases and in the manner prescribed by law, personal non-property rights and other intangible benefits that belonged to the deceased may be exercised and protected by other persons, including the heirs of the right holder.

Article 151. Compensation for moral damage

If moral harm (physical or moral suffering) is caused to a citizen by actions that violate his personal non-property rights or encroach on other non-material benefits belonging to the citizen, as well as in other cases provided for by law, the court may impose on the violator the obligation of monetary compensation for the specified harm.

When determining the amount of compensation for non-pecuniary damage, the court takes into account the degree of guilt of the offender and other noteworthy circumstances. The court must also take into account the degree of physical and mental suffering associated with the individual characteristics of the person harmed.

Topics for projects and essays

1. Intellectual property law in Russia. Real life examples (in preparation, use additional sources of information, including Internet resources).

We discuss, we argue

1. Can video and audio pirates be defeated? What measures to combat illegal copying and distribution of software products, including computer and video games, are possible, in your opinion, in our time?

Article 28. Innocent infliction of harm

From the book Civil Code of the Russian Federation. Part two author Laws of the Russian Federation

Article 931. Insurance of Liability for Causing Harm

From the book Road Accidents author Guz Leonid Evdokimovich

6.5 Compensation for damage caused by the death of the breadwinner. Determining the amount of compensation for damage in the event of death individual as a result of an accident According to Art. 1200 of the Civil Code of Ukraine “in the event of the death of the victim, disabled persons who were on his

From the book Civil Law author Shevchuk Denis Alexandrovich

§ 2. Protection of intangible goods General provisions. Civil law methods of protection apply to those intangible benefits of the "first" and "second" levels, about which relationships are formed that are regulated by civil law. The specifics of civil law

From the book Criminal Code of the Russian Federation. Text with amendments and additions as of October 1, 2009 author author unknown

Article 28. Innocent infliction of harm

From the book Civil Code of the Russian Federation. Parts one, two, three and four. Text with amendments and additions as of November 1, 2009 author author unknown

Article 931. Insurance of Liability for Causing Harm

From book Criminal law Special part author Pitulko Ksenia Viktorovna

3. Intentional infliction of minor bodily harm Article 115 establishes criminal liability for the intentional infliction of minor bodily harm. The object of this crime is public relations for the protection of the health of citizens. The objective side is expressed in

From the book Civil Code of the Russian Federation. Parts one, two, three and four. Text with amendments and additions as of October 21, 2011 author Team of authors

Article 931. Liability insurance for causing harm

From the book Everything about the simplified taxation system (simplified taxation system) author Terekhin R. S.

From the book Criminal Law. cheat sheets author Petrenko Andrey Vitalievich

65. Innocent infliction of harm in the 1996 Criminal Code singles out the issue of innocent infliction of harm as a circumstance excluding criminal liability:

From the book How and where to write a complaint correctly in order to defend your rights author Nadezhdina Vera

Statement of claim about improper performance obligations and compensation for material losses and moral damage B _________________________ (name of the court) Plaintiff: __________________________ (full name, address) Respondent: _________________________ (name of the housing maintenance organization, address) Price

From the book The Author's Lawyer Exam

Statement of claim for improper performance of obligations and compensation for material losses and non-pecuniary damage in connection with a voltage drop in the electrical network B _________________________ (name of the court) Plaintiff: __________________________ (full name, address) Respondent: ____________________________

From the book Entertaining Jurisprudence author Tille Anatoly

Question 324. The concept and types of harm to health. Intentional infliction of grievous bodily harm. Torture and beatings. Human health is a certain physiological (somatic and mental) state of the body, in which all its components function normally. Such

From the book A course of criminal law in five volumes. Volume 1. General part: The doctrine of crime author Team of authors

Illegal infliction of harm The second legal basis or condition for compensation for the harm caused, we called the wrongfulness of the actions of the tortfeasor. So, it is possible to cause harm without violating the law? Of course. And the law lists many such cases. it

From the book Handbook of a Judge on the Qualification of Crimes: a practical guide. author Rarog Alexey Ivanovich

§ 7. Innocent infliction of harm In the Criminal Code of the Russian Federation in 1996, for the first time in the history of the criminal legislation of Russia, an article appeared regulating the conditions for exemption from liability for innocent infliction of harm (Article 28 of the Criminal Code). In theory and practice, innocent harm

From the author's book

§ 6. Innocent harm In accordance with Art. 5 of the Criminal Code a person is subject to criminal liability only for those socially dangerous actions (inaction) and the socially dangerous consequences that have occurred, in respect of which his guilt has been established. Criminal

The ways of protecting civil rights allowed by law differ from each other in legal and material content, forms and grounds for application. According to these features, methods of protecting civil rights can be classified into the following types:

a) the actual actions of authorized subjects, bearing signs of self-defense of civil rights;

b) measures of operational influence on the violator of civil rights;

c) law enforcement measures applied to violators of civil rights by the competent state or other bodies.

Specific ways to protect. Let us turn to a more detailed analysis of the fixed Art. 12 Civil Code of specific methods of protection. The first of these is named recognition of subjective right . The need for this method of protection arises when the existence of a certain subjective right of a person is questioned, the subjective right is disputed, denied, or there is a real threat of such actions. Often, the uncertainty of a subjective right leads to the impossibility of one hundred use or, at least, makes such use difficult. For example, if the owner of a residential building does not have title documents for it, he cannot sell this house, donate it, exchange it, etc. Recognition of the right is just a means of eliminating uncertainty in the relationship of subjects, creating necessary conditions for one hundred implementation and prevention by third parties of actions that impede its normal implementation.

The plaintiff's demand for recognition of the right is addressed not to the defendant, but to the court, which must officially confirm the presence or absence of the disputed right of the plaintiff.

Restoration of position , which existed before the violation of the right, as an independent method of protection is used in cases where the violated regulatory subjective right as a result of the offense does not cease to exist and can actually be restored by eliminating the consequences of the offense. This method of protection covers a wide range of specific actions, for example, the return to the owner of his property from someone else's illegal possession (Article 301 of the Civil Code), the eviction of a person who arbitrarily occupied a residential premises (Article 99 of the Civil Code), etc. Restoration of the situation that existed before the violation of the right , may occur through the application of both jurisdictional and non-jurisdictional protection procedures.

A common way to protect subjective rights is suppression of actions that violate the right or threaten to violate it. It can be used in combination with other methods of protection, for example, recovery of damages or penalties, or have independent value. In the latter case, the interest of the owner of the subjective right is expressed in stopping (stopping) the violation of his right for the future or eliminating the threat of its violation. So, for example, the author of a work that is illegally used (prepared for publication without his knowledge, distorted, altered, etc.) by third parties may demand that these actions be stopped without making any other claims, for example, property claims.

Recognition of a voidable transaction as invalid and application of the consequences of its invalidity , the application of the consequences of the invalidity of a void transaction is special cases implementation of such a method of protection as restoration of the situation that existed before the violation law, since they coincide with it in legal essence. This is most obvious when the parties who made the invalid transaction are brought back to their original position. But even when, in accordance with the law, confiscation measures are applied to one of the parties to an invalid transaction in the form of the recovery of everything received or due under the transaction to the state revenue, the rights and legitimate interests of the other party are protected by restoring for it the situation that existed before the violation of the right.

Protection of the rights and legally protected interests of citizens and legal entities can be carried out by invalidation of an act of a state body or local self-government body . This means that a citizen or a legal entity, whose civil rights or legally protected interests have been violated by the issuance of an administrative act that does not comply with the law or other legal acts, and in cases provided for by law, also a normative act, have the right to appeal against them in court. The court may decide to invalidate it in whole or in part. In this case, no additional cancellation of the act by the body that issued it is required.

It can be combined with other measures of protection, for example, a claim for damages, or be independent, if the interest of the subject of law is reduced only to the very statement of the invalidity of an act that prevents, for example, the realization of the right.

Award in kind , often referred to in the literature as real performance, is characterized by the fact that the offender, at the request of the victim, must actually perform those actions that he is obliged to perform by virtue of the obligation binding the parties. The performance of a duty in kind is usually opposed to the payment of monetary compensation. Only in those cases when real performance has become objectively impossible or undesirable for the victim, this method should be replaced by another means of protection at the choice of the victim.

Compensation for damages and collection of a penalty are the most common ways to protect civil rights and legally protected interests, which are used in the field of both contractual and non-contractual relations. In this case, the property interest of the victim is satisfied at the expense of monetary compensation for property losses incurred by him. At the same time, such compensation can either be directly linked to the amount of harm caused (compensation for damages), or only indirectly related to them or completely independent of it (collection of a penalty). The main form of compensation for the damage caused to the victim is compensation for losses; the collection of a penalty (fine) is carried out in cases expressly provided for by law or the contract. In accordance with paragraph 2 of Art. 15 of the Civil Code, losses are understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (real. damage), as well as lost income that this person would have received under normal conditions of civil circulation if his right had not been violated (lost profit). Questions about the concept and components of damages will be considered in more detail in Chapter 27, devoted to civil liability.

Such a way of protecting civil rights as compensation for non-pecuniary damage , consists in imposing on the violator the obligation to pay the victim monetary compensation for the physical or moral suffering that he experiences in connection with the violation of his rights. Firstly, claims for compensation for non-pecuniary damage can only be made by specific citizens, since legal entities they cannot experience physical or moral suffering. Secondly, the violated rights must, as a general rule, be of a personal non-property nature. In case of violation of other subjective civil rights, the possibility of compensation for moral damage should be directly indicated in the law.

A peculiar way of protecting civil rights and legally protected interests is termination or change of legal relationship . Most often, this method of protection is implemented in a jurisdictional manner, as it is associated with the forced termination or change of the legal relationship, but in principle its independent use by the victim is not excluded. For example, in the event of a material breach by the supplier or buyer of the supply contract, the injured party may unilaterally terminate the contract by notifying the other party, i.e., without applying to an arbitration court (paragraph 4 of Article 523 of the Civil Code). It is important, however, that the possibility of terminating or changing the legal relationship is expressly provided for by law or contract.

It can be applied in connection with both guilty and innocent actions of the counterparty. For example, if the eviction of a person due to impossibility cohabitation(Article 98 of the Civil Code) is directly related to his guilty illegal actions, then the forced allocation of a share from the common property (Article 252 of the Civil Code) can be carried out by an interested person, regardless of the subjective assessment of the actions of other owners.

The considered methods of protecting the rights and legally protected interests of citizens and organizations do not exhaust all possible protection measures. This follows directly from Art. 12 of the Civil Code, which refers to other methods of protection provided for by legislative acts. As an example other means of protection we can name the right of the creditor to perform work at the expense of the debtor (Article 397 of the Civil Code), foreclosure by the pledgee on the property of the debtor (Article 349 of the Civil Code), deduction by the commission agent of the amount due to him under the commission agreement from all the amounts received by him at the expense of the committent (Article 349 of the Civil Code). 997 GK), etc.

The ways of protecting civil rights allowed by law differ from each other in legal and material content, forms and grounds for application. According to these features, methods of protecting civil rights can be classified into the following types:

a) the actual actions of authorized subjects, bearing signs of self-defense of civil rights;

b) measures of operational influence on the violator of civil rights;

c) law enforcement measures applied to violators of civil rights by the competent state or other bodies.

22 question Civil law ways to protect civil rights.

The list of ways to protect civil rights is contained, as a rule, in the general part of civil law . AT Art. 12 GK it is fixed that the protection of civil rights is carried out by:

1) recognition of the right;

2) restoration of the situation that existed before the violation of the right, and suppression of actions that violate the right or create a threat of its violation;

3) recognition of a voidable transaction as invalid and application of the consequences of its invalidity, application of the consequences of the invalidity of a void transaction;

4) invalidation of an act of a state body or local self-government body;

5) self-defense rights;

6) awarding to the performance of duties in kind;

7) compensation for losses;

8) recovery of a penalty;

9) compensation for moral damage;

10) termination or change of legal relationship;

11) non-application by the court of an act of a state body or local self-government body that contradicts the law;

12) in other ways provided by law.

23 Necessary defense and actions in a state of emergency as ways to protect civil rights.

In accordance with Art. 1066 of the Civil Code, damage caused in a state of necessary defense is not subject to compensation, if its limits were not exceeded.

Necessary defense is protection from a socially dangerous encroachment by causing harm to the attacker, if the limits of necessary defense were not exceeded.

24Civil commercial organizations as participants in civil legal relations.

Commercial are organizations that pursue profit as the main goal of their activities and distribute the profits among the participants.

Commercial organizations can only be created in the organizational and legal forms provided for in paragraph 2 of Art. 50 of the Civil Code of the Russian Federation: in the form of business partnerships and companies, production cooperatives, state and municipal unitary enterprises.

Commercial organizations in general view can be subdivided into two groups.

1. Commercial organizations with property divided into shares (deposits, shares) of the founders. This is due to the fact that the founders of such commercial organizations have in relation to them liability rights. This group includes business partnerships and companies, production cooperatives.

2. Commercial organizations with indivisible property, which cannot be divided by contributions (shares, shares). Founder saves ownership on the property of such organizations, endowing them with limited rights in rem. This group includes state and municipal unitary enterprises.

Business partnerships can be created in the form of general partnerships and limited partnerships. They represent associations of persons and involve not only making contributions to the share capital by the participants, but also their personal participation in the conduct of the affairs of the partnership. The subject composition of participants has special meaning for the activities of the partnership, therefore, the withdrawal of a participant from the partnership, the death of a citizen, the liquidation of a legal entity, the recognition of a participant as bankrupt, as a general rule, entail the liquidation of the partnership (part 2 of article 81 of the Civil Code of the Russian Federation). If the only participant remains in the partnership, then it is also subject to liquidation, however, this participant has the right to transform such a partnership into economical society(part 1 of article 81 of the Civil Code of the Russian Federation).
25Non-profit organizations as participants in civil legal relations.

Non-profit organizations that do not pursue the goal of making profit as the main goal of their activities and do not distribute profits among their accomplices.

Consumer cooperatives - an association of persons on the basis of membership in order to meet their own needs for goods and services, the initial property of which consists of share contributions. Here, members can distribute business income.

A public association is a non-profit association of persons based on the commonality of their interests for the implementation of common goals. These are: public organizations (associations based on membership); social movements (mass associations that do not have membership); public funds (non-membership associations, the purpose of which is to form property and use it for socially useful purposes); public institutions (organizations that do not have membership, the purpose of which is to provide a specific type of service in the interests of participants); bodies of public amateur performance (do not have membership. The goal is to jointly solve social problems of citizens at the place of residence, work or study).

Religious organizations - associations of citizens whose main goal is the joint confession and dissemination of faith and have signs corresponding to these goals.

26 Branches and representative offices of legal entities. Subsidiaries and dependent companies.

A separate subdivision of a legal entity located outside its location, which (Article 55 of the Civil Code):

represents the interests of a legal entity and carries out its protection - representation;

exercising all its functions or part of them, including the functions of representation - branch.

Hence, the functions of the branch are wider than the functions of a representative office.

Features of a representative office and a branch:

· are not legal entities (do not have legal capacity), they are endowed with property by the legal entity that created them and act on the basis of the provisions approved by it;

· Heads of representative offices and branches are appointed by a legal entity and act on the basis of its power of attorney;

must be indicated in the constituent documents of the legal entity that created them;

These are subdivisions (components) of a legal entity, and in this sense they are comparable with its other subdivisions (workshops, brigades, sections, lines, industries, etc.);

· located outside the location of the legal entity, which is determined by the place of its state registration;

Optional in the sense that a legal entity may not have representative offices (branches), and if it does, it can close them, which will not affect the very fact of its existence.

Representative offices and branches can have any legal entity, regardless of its affiliation with commercial or non-commercial organizations and form. This right can be exercised both within the Russian Federation and abroad in compliance with the legislation of the relevant state.

The ways of protecting civil rights allowed by law differ from each other in legal and material content, forms and grounds for application. According to these features, methods of protecting civil rights can be classified into the following types:

a) the actual actions of authorized subjects, bearing signs of self-defense of civil rights;

b) measures of operational influence on the violator of civil rights;

c) law enforcement measures applied to violators of civil rights by the competent state or other bodies.

Specific ways to protect. Let us turn to a more detailed analysis of the fixed Art. 12 Civil Code of specific methods of protection. The first of these is named recognition of subjective right . The need for this method of protection arises when the existence of a certain subjective right of a person is questioned, the subjective right is disputed, denied, or there is a real threat of such actions. Often, the uncertainty of a subjective right leads to the impossibility of one hundred use or, at least, makes such use difficult. For example, if the owner of a residential building does not have title documents for it, he cannot sell, donate, exchange, etc. the house. by third parties of actions that impede its normal implementation.

The plaintiff's demand for recognition of the right is addressed not to the defendant, but to the court, which must officially confirm the presence or absence of the disputed right of the plaintiff.

Restoration of position , which existed before the violation of the right, as an independent method of protection is used in cases where the violated regulatory subjective right as a result of the offense does not cease to exist and can actually be restored by eliminating the consequences of the offense. This method of protection covers a wide range of specific actions, for example, the return to the owner of his property from someone else's illegal possession (Article 301 of the Civil Code), the eviction of a person who arbitrarily occupied a residential premises (Article 99 of the Civil Code), etc. Restoration of the situation that existed before the violation of the right , may occur through the application of both jurisdictional and non-jurisdictional protection procedures.

A common way to protect subjective rights is suppression of actions that violate the right or threaten to violate it. It can be used in combination with other methods of protection, for example, recovery of damages or penalties, or have independent value. In the latter case, the interest of the owner of the subjective right is expressed in stopping (stopping) the violation of his right for the future or eliminating the threat of its violation. So, for example, the author of a work that is illegally used (prepared for publication without his knowledge, distorted, altered, etc.) by third parties may demand that these actions be stopped without making any other claims, for example, property claims.

Recognition of a voidable transaction as invalid and application of the consequences of its invalidity , the application of the consequences of the invalidity of a void transaction is special cases implementation of such a method of protection as restoration of the situation that existed before the violation law, since they coincide with it in legal essence. This is most obvious when the parties who made the invalid transaction are brought back to their original position. But even when, in accordance with the law, confiscation measures are applied to one of the parties to an invalid transaction in the form of the recovery of everything received or due under the transaction to the state revenue, the rights and legitimate interests of the other party are protected by restoring for it the situation that existed before the violation of the right.

Protection of the rights and legally protected interests of citizens and legal entities can be carried out by invalidation of an act of a state body or local self-government body . This means that a citizen or a legal entity, whose civil rights or legally protected interests have been violated by the issuance of an administrative act that does not comply with the law or other legal acts, and in cases provided for by law, also a normative act, have the right to appeal against them in court. The court may decide to invalidate it in whole or in part. In this case, no additional cancellation of the act by the body that issued it is required.

It can be combined with other measures of protection, for example, a claim for damages, or be independent, if the interest of the subject of law is reduced only to the very statement of the invalidity of an act that prevents, for example, the realization of the right.

Award in kind , often referred to in the literature as real performance, is characterized by the fact that the offender, at the request of the victim, must actually perform those actions that he is obliged to perform by virtue of the obligation binding the parties. The performance of a duty in kind is usually opposed to the payment of monetary compensation. Only in those cases when real performance has become objectively impossible or undesirable for the victim, this method should be replaced by another means of protection at the choice of the victim.

Compensation for damages and collection of a penalty are the most common ways to protect civil rights and legally protected interests, which are used in the field of both contractual and non-contractual relations. In this case, the property interest of the victim is satisfied at the expense of monetary compensation for property losses incurred by him. At the same time, such compensation can either be directly linked to the amount of harm caused (compensation for damages), or only indirectly related to them or completely independent of it (collection of a penalty). The main form of compensation for the damage caused to the victim is compensation for losses; the collection of a penalty (fine) is carried out in cases expressly provided for by law or the contract. In accordance with paragraph 2 of Art. 15 of the Civil Code, losses are understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (real. damage), as well as lost income that this person would have received under normal conditions of civil circulation if his right had not been violated (lost profit). Questions about the concept and components of damages will be considered in more detail in Chapter 27, devoted to civil liability.

Such a way of protecting civil rights as compensation for non-pecuniary damage , consists in imposing on the violator the obligation to pay the victim monetary compensation for the physical or moral suffering that he experiences in connection with the violation of his rights. Firstly, claims for compensation for moral harm can only be made by specific citizens, since legal entities cannot experience physical or moral suffering. Secondly, violated rights must, as a general rule, be of a personal non-property nature. In case of violation of other subjective civil rights, the possibility of compensation for moral damage should be directly indicated in the law.

A peculiar way of protecting civil rights and legally protected interests is termination or change of legal relationship . Most often, this method of protection is implemented in a jurisdictional manner, as it is associated with the forced termination or change of the legal relationship, but in principle its independent use by the victim is not excluded. For example, in the event of a material breach by the supplier or buyer of the supply contract, the injured party may unilaterally terminate the contract by notifying the other party, i.e., without applying to an arbitration court (paragraph 4 of Article 523 of the Civil Code). It is important, however, that the possibility of terminating or changing the legal relationship is expressly provided for by law or contract.

It can be applied in connection with both guilty and innocent actions of the counterparty. For example, if the eviction of a person due to the impossibility of cohabitation (Article 98 of the LC) is directly related to his guilty illegal actions, then the forced allocation of a share from the common property (Article 252 of the Civil Code) can be carried out by an interested person, regardless of the subjective assessment of the actions of other owners.

The considered methods of protecting the rights and legally protected interests of citizens and organizations do not exhaust all possible protection measures. This follows directly from Art. 12 of the Civil Code, which refers to other methods of protection provided for by legislative acts. As an example other means of protection we can name the right of the creditor to perform work at the expense of the debtor (Article 397 of the Civil Code), foreclosure by the pledgee on the property of the debtor (Article 349 of the Civil Code), deduction by the commission agent of the amount due to him under the commission agreement from all the amounts received by him at the expense of the committent (Article 349 of the Civil Code). 997 GK), etc.