Krasnova Svetlana Anatolyevna - PhD in Law, Associate Professor of the Department of Civil Law and Procedure of the Kemerovo Institute (branch) of the Russian State University of Trade and Economics (Kemerovo).
The criteria for dividing the methods of protection existing in civil science are considered. civil rights and legally protected interests and classifications based on them. Having analyzed the scientific literature classification, the author offers his own version of the division of ways to protect civil rights according to the functional-target criterion.
Keywords: classification of methods of protection of civil rights, general and special methods of protection.
The article shows the division criteria for ways in defending the civil rights and the law protecting interests and classification based on them. The relative character of the criterion "sphere of using civil legal ways of defense" tests the unsuccessful classification of them into general and special. Basing on the critical analysis of various classifications used in scientific literature the author suggests her own variant of division classification using the criterion of functions and aims.
Key words: classification of ways of civil rights" defense, general and special ways of defense.
The classification of legal phenomena, including ways to protect civil rights, is of undoubted scientific importance, as it is one of the tools scientific knowledge. The classification allows you to "decompose" the system of civil law protection methods into parts (subsystems) and to more deeply explore the relationship both between the elements of the selected part and between all subsystems of the system of methods for protecting civil rights and legally protected interests. The division of methods of protection into groups (types) on one basis or another not only plays an important role in the study of civil law as academic discipline, but it can also serve as a guideline in law enforcement practice. Obviously, the achievement of these scientific, educational and practical goals depends on what criterion is the basis of the classification and what groups of elements are distinguished according to it. In this regard, it is of interest to what extent the classifications existing in the science of civil law make it possible to realize these goals.
Classification based on Art. 12 of the Civil Code of the Russian Federation is one of the most common in the legal literature<1>. In accordance with it, civil law methods of protection are divided into general (universal) and special. The division criterion is the scope or application of one or another method. 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 are considered as special. V.V. Vitryansky describes this classification as follows: "If general methods are universal in nature and can be used to protect, as a rule, any subjective right, then all other methods are designed to protect only certain rights or to protect against certain violations"<2>. Other works give a similar explanation of the division of protection methods into general and special ones. But more often, authors use this classification 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.
ConsultantPlus: note.
<1>Civil Law: Textbook: In 4 volumes / Resp. ed. E.A. Sukhanov. M., 2004. T. I. General part. S. 410; Braginsky M.I., Vitryansky V.V. Contract Law: General Provisions. M., 1998. S. 629 - 632; Korableva M.S. Civil law ways to protect the rights of entrepreneurs: Dis. ... cand. legal Sciences. M., 2002. S. 34.
ConsultantPlus: note.
Monograph M.I. Braginsky, V.V. Vitryansky "Contract law. General provisions" (book 1) is included in the information bank according to the publication - Statute, 2001 (3rd edition, stereotypical).
<2>Braginsky M.I., Vitryansky. V.V. Decree. op. S. 629.
Determining the means of protection listed in Art. 12 of the Civil Code of the Russian Federation, as a general one, suggests that such a property as universality, the possibility of application for the protection of all subjective civil rights, should have each of the elements of this group. However, in reality, not all proposed methods of protection are universal. For example, the victim may demand compensation for moral damage in case of violation of personal non-property rights and, in cases provided for by law, in case of violation of property rights (Article 151 of the Civil Code). It is obvious that 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 currently used. 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.
At the same time, the assignment of all the rest, not named by the legislator in Art. 12 of the Civil Code, methods of protection for special ones are also inaccurate. For example, the requirement to pay interest for the use of other people's money (Article 395 of the Civil Code) is a method that a creditor can use in case of violation of not just one subjective right, but rights from any monetary obligations. Similarly, the application of such a stipulated Art. 328 of the Civil Code, measures of operational impact, such as suspension of the fulfillment of a counter obligation, is possible in case of violation of any counter obligation (from a supply contract, contract, exchange, etc.).
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 subjective right of a certain type. 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 (for example, supply 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.<3>. Although from the point of view of the development of the civil law institution of protection, it would be more correct to say that some special methods of protection began to be applied in violation of subjective rights similar in legal nature or in similar offenses. Compensation for losses, awarding to the performance of an obligation, collecting 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 one method becomes suitable for protecting all violated rights and legally protected interests: each method has its own object of protection, its own conditions for application.
<3>Suleimenov M.K. Protection of civil rights under the legislation of the Republic of Kazakhstan // Protection of civil rights: Materials of scientific and practical. Conf. dedicated to the 10th anniversary of the Kazakh Humanitarian Law University (Almaty, May 13 - 14, 2004) / Ed. ed. M.K. Suleimenov. Almaty, 2005, p. 15.
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 certain methods of protection. It is obvious that for some of them it is very wide (compensation for damages), while for others it can be quite narrow (the requirement to recognize the right of ownership or to allocate a share from the common property of co-owners). However, it is incorrect to assert on this basis that some methods have a general scope, while others have a special one. The assessment of the method of protection in terms of its scope is always relative: the already mentioned compensation for moral 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<4>.
<4>The relative nature of the scope of one or another method of protection is determined by a number of factors, including changes in political and socio-economic conditions. An example is the change in the legal regulation of obligations from unjust enrichment: with the adoption of part two of the Civil Code of the Russian Federation, the conditional claim turned into a kind of (remedial) method of protection, which is aimed at seizing enrichment from the acquirer in all cases when it arose without a legal basis (Makovsky A.L. Obligations as a result of unjust enrichment (Chapter 60) // Civil Code of the Russian Federation Part Two Text, comments, index / Edited by O. M. Kozyr, A. L. Makovsky, S. A. Khokhlov M ., 1996. S. 591 - 592). At present, the universal nature of the condiction allows the subsidiary application of the norms of this institution, if the rules of other institutions do not fully regulate relations arising in connection with the unjustified acquisition or saving of property, and this does not contradict the essence of these relations (Article 1103 of the Civil Code).
It should be stated that any attempt to divide protection methods into general and special ones is doomed to failure due to the wrong choice of criterion. This means that such a classification cannot be an instrument of scientific knowledge of the system of ways to protect civil rights and legally protected interests.
Another criterion used in the science of civil law for the classification of methods of protection is the target orientation. So, depending on the goals of protection, the following methods of protection are distinguished: preemptive, restorative and penal<5>; regulatory, preventive and protective<6>; restorative, remedial and preventive<7>.
<5>Vershinin A.P. Ways to protect civil rights in court. SPb., 1997. S. 29, 37 - 38, 41. Cit. by: Suleimenov M.K. Decree. op. P. 17. M.K. himself proposes the same division of civil law remedies. Suleimenov (M.K. Suleimenov, op. op. pp. 18 - 19).
<6>Osipov B.E. Protection of civil rights: Proc. and pract. allowance. Almaty, 2000. S. 18 - 22.
<7>Pavlov A.A. Awarding to the performance of duties as a way of protecting civil rights in legal obligations. SPb., 2001. S. 32.
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; The division of protection methods on the basis of this criterion has both scientific and applied significance. At the same time, the classifications developed taking into account this criterion are not without drawbacks. In particular, one can agree with M.K. Suleimenov, who believes 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"<8>.
<8>Suleimenov M.K. Decree. op. S. 18.
The doubt expressed by the author about the need to single out preventive methods of protection along with preventive means as an independent group is also justified, since the prevention and suppression of offenses are closely interconnected goals realized through the preventive impact of civil law. Finally, the goal of punishing the offender is 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, nevertheless notes the concomitant (auxiliary) nature of the penalty function in relation to main function protection - the right to restore the violated right<9>.
<9>There.
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; restoring and (or) compensating losses of the victim<10>. It seems, however, that such a criterion, as a result of applying the method of protection, is derived from the target. The consequences of applying the method of protection depend on the purpose legal impact, which acts as an "ideal result", an object of aspiration, something that needs to be implemented<11>. Thus, the expediency of classifying civil remedies depending on the result of their application, along with the "target" classification, is questionable.
ConsultantPlus: note.
Monograph M.I. Braginsky, V.V. Vitryansky "Contract law. General provisions" (book 1) is included in the information bank according to the publication - Statute, 2001 (3rd edition, stereotypical).
<10>Braginsky M.I., Vitryansky V.V. Decree. op. pp. 629 - 633.
<11>Ozhegov S.I., Shvedova K.Yu. Dictionary Russian language. M., 2005.
T.I. Illarionova rightly noted that "law belongs to the category of purposeful systems in which functional structures play the most active role"<12>. Functional connections are also significant for 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 protection measures are aimed at restoring the interests of the victim, then liability measures are applied for property impact on the offender<13>. 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<14>.
<12>Illarionova T.I. The mechanism of action of civil law protective measures. Tomsk, 1980. S. 5.
<13>There. S. 11.
<14>Illarionova T.I. The system of civil law protective measures. Tomsk, 1982, p. 48; She is. The mechanism of action of civil law protective measures. S. 43.
This division does not take into account the fact that the measures of responsibility perform the function of not only punishment, but also the restoration of the property sphere of the victim.<15>. In addition, between these groups in the proposed T.I. The Illarion classification shows an obvious similarity in terms of target orientation: among the measures of responsibility, along with punitive measures, it highlights compensatory and preventive methods of protection.<16>. It seems that the division of civil law methods of protection into measures of protection and measures of responsibility should not be carried out according to the functional-target criterion<17>. Rather, the grounds for the application and the nature of the consequences of the application of these measures should be taken into account as reflecting the specific features of the measures of protection and measures of liability.
<15>It is no coincidence that already when characterizing the measures of responsibility of T.I. Illarionova points to their dual focus: the protection of the violated interest and the punishment of the offender (Illarionova T.I. The mechanism of action of civil law protective measures. P. 62).
<16>There. S. 63.
<17>However, this does not mean that the manifestation of the punishment function in the measures of responsibility should be ignored. Being a function of the institution of responsibility, it can be taken into account when distinguishing between protection measures and measures of responsibility, but only in conjunction with other features (Civil law: Textbook: In 3 volumes / Ed. A.P. Sergeev. M., 2009. T. 1. S. 546 - 547).
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"<18>. All methods of protection have a security, stimulating character; 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<19>.
<18>Illarionova T.I. The mechanism of action of civil law protective measures. pp. 43 - 44.
<19>There. P. 10.
The stated objections concern only the variant of the classification of methods of protection according to the target orientation that exists in civil law, but not the criterion itself, which has undoubted cognitive value. The use of the functional-target criterion makes it possible to reflect the features of the manifestation of the functions of civil law in the ways of protection, to determine common features, inherent in the means of one target orientation. It also becomes possible to build a system of ways to protect a specific subjective right or a group of homogeneous rights (property, obligation, exclusive). Classification based on the proposed criterion also has practical significance: an idea of the possible goals and types of protective effects of law will allow participants in legal relations to choose the option of behavior that will ensure 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: a) methods that are aimed at restoring the legal situation that existed before the violation of a subjective right or legally protected interest; b) methods that ensure the restoration of the property sphere of the victim and in which the compensatory function is implemented; c) methods of a preventive nature, aimed at preventing possible offenses, preventing or reducing their consequences.
When applying the proposed classification, it should be taken into account that the compensatory and preventive functions of civil law have a wider scope, related not only to protection. If compensatory remedies are quite easy to distinguish from other measures of protection of a compensatory nature (the former are aimed at the consequences of a committed offense), then the distinction between 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 property (puts a secure door with a good lock, a video surveillance system, acquires a vicious dog) are quite reasonably referred to as security measures taken by the authorized person himself. Nevertheless, it should be recognized that the preventive effect can also be manifested after the offense. So, in self-defense<20>it is possible to repel the 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 civilists as a hallmark of operational measures as one of the types of civil law methods of protection<21>.
<20>Self-defence in this case is understood in a broad sense - as the protection of violated rights or legally protected interests by the actions of the most authorized person, regardless of the nature of these actions.
<21>Gribanov V.P. Limits of the exercise and protection of civil rights. M., 1992. S. 126 - 127; Sverdlyk G., Strauning E. Methods of self-defense of civil rights and their classification // Household and law. 1999. N 1-2. pp. 20 - 22; Civil law / Resp. ed. E.A. Sukhanov. T. I. C. 570.
It is more difficult to determine the legal nature of some interim measures. As is known, interim measures, including methods of securing 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, the penalty acts, on the one hand, as a way to ensure the fulfillment of an obligation, and on the other, as a measure of civil liability.<22>. Other methods of securing obligations (pledge, guarantee, bank guarantee) are also aimed at protecting the property interests of the creditor, when the debtor's warning about possible sanctions in case of violation of the obligation "does not work." Apparently, in this situation, one can 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 implemented in case of violation of the creditor's right, act as compensatory methods of protection.
<22>Civil law / Resp. ed. E.A. Sukhanov. T. I. C. 73.
Bibliography
ConsultantPlus: note.
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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 can 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 , applying the consequences of invalidation void transaction represent 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 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 methods of protecting civil rights are usually understood as the means provided for by law, with the help of which the suppression, prevention, elimination of violations of the right, its restoration and (or) compensation for losses caused by the violation of the right can be achieved.
Ways of protection are given to the subject of civil law by the legislation. The problem for each participant in civil circulation is, as noted, in the optimal choice and efficient use and the application of the methods of protection provided for by law. The solution to this problem can be provided, on the one hand, with a deep knowledge of the provisions of the legislation governing various ways protection of civil rights, on the other hand, by mastering the necessary skills in their application.
In civil law, two levels of regulation of ways to protect civil rights can be distinguished. The first level of regulation is to define such methods of protection that are universal nature and can be used to protect, as a rule, any subjective civil right. Such methods of protection are established by Art. 12 GK. These include:
· Recognition of the right;
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 the invalidity of a void transaction;
· Recognition as invalid of an act of a state body or a local self-government body;
· Self-defense rights;
· Awarding to the fulfillment of an obligation in kind;
· Compensation for damages;
· Recovery of a penalty;
· Compensation for non-pecuniary 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. Civil Code of the Russian Federation. Part 1 // 2008
This list, which includes eleven ways to protect civil rights, is not exhaustive. In case of violation of civil rights, other methods of their protection provided by law may be used. However, of all the numerous ways provided by law for the protection of civil rights, there are hardly any that could be put on a par with those methods that are named in Art. 12 GK.
The fact is that all other known methods of protection are designed to serve certain types civil rights and unsuitable for universal application. As for the universal methods of protecting civil rights, the scope of their application can also be limited, however, such restrictions are permissible not in relation to certain types of subjective civil rights, but depending on the essence of legal relations, the very method of protection or the subject of civil law, excluding the possibility of applying that or other form of protection. For example, based on the definition of non-pecuniary damage, which is given in Art. 151 of the Civil Code - “physical or moral suffering”, it is obvious that such a method as compensation for moral harm cannot be used to protect the civil rights of legal entities.
The second level of civil law regulation of methods for protecting civil rights is the establishment by law of methods of protection used to protect only certain types of civil rights or to protect against certain violations. It is these methods of protection referred to Art. 12 of the Civil Code to other methods provided for by law. In this sense, we can talk about independent ways to protect the rights of founders (participants) of legal entities, the owner of property (title owner), a creditor in an obligation, etc.
Ways to protect civil rights can be classified according to various criteria: by scope (universal and special); according to the methods of implementation (bringing a claim to the court, applying to state bodies, independent application), etc.
However, it seems that the most practical criterion for classifying ways to protect civil rights is result for which they are intended to be used, nature of the consequences their application to the violated right. This criterion can simultaneously serve as one of the main criteria for choosing the best way to protect it by the subject of the violated right. This is where its practical significance lies.
So, if the classification of methods of protecting civil rights is based on the result for which their application is designed, then all the universal methods of protection named in Art. The 12 Civil Codes can be divided into the following groups.
First group includes methods of protection, the use of which allows you to confirm (certify) the protected right or terminate (change) the obligation. This result leads to the application of the following methods of protection: recognition of the right; award to performance of duty in kind; non-application by the court of an act of a state body or local self-government body that contradicts the law; termination or change of legal relationship.
All the completely different methods of protection named at first glance unite the consequences of their application for the protected right. What can mean the decision of the court on the award to the execution of the obligation in kind? First of all, this is confirmation that the person who applied to the court with the relevant claim has the right to demand that the defendant fulfill this obligation. Appealing to the court with a petition for non-application of an act of a state body or local self-government body that is contrary to the law, the subject of civil law also asks to confirm this right, to certify that this right could not be affected by an illegal act.
An analysis of arbitration and judicial practice indicates that all of the named methods of protection are used by the subjects mainly at the first preliminary stage in order to create favorable conditions for the application of other methods of protection. The need for such actions arises, as a rule, in situations where there is another person claiming or contesting the protected right. For example, a claim for recognition of ownership often precedes a claim for the recovery of property from someone else's illegal possession or for the removal of obstacles to the exercise of ownership, or a claim for eviction or vacating the occupied premises. After the court satisfies a claim for awarding to the performance of an obligation in kind, it is often followed by a claim for damages caused by non-performance or improper performance the corresponding duty.
Co. second group ways of protecting civil rights can be attributed to such methods, the use of which makes it possible to prevent or stop the violation of the right. These include: suppression of actions that violate the right or threaten to violate it; invalidation of an act of a state body or local self-government body; self-defense rights; recovery of a penalty. The purpose of applying these methods of protection is to force or induce the violator to stop actions that violate subjective civil law, or to prevent such actions. It is precisely this goal that dictated, for example, mass appeals to the arbitration court by organizations acting as taxpayers with claims to invalidate acts of tax authorities on the application of financial responsibility to them for various violations of tax legislation. Such claims are also brought in cases where, in accordance with the act of the tax authority, a partial write-off of funds from the accounts of organizations has already been made.
Third group combines methods of protecting civil rights, the use of which aims to restore the violated right and (or) compensate for the losses incurred in connection with the violation of the right. Such a result can be achieved by: restoring the situation that existed before the violation of the right; 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; indemnification; compensation for moral damage. Braginsky M.I., Vitryansky V.V. Contract law: general provisions. - M .: Statute, 2007. - S. 628-630
The protection of subjective civil rights and legally protected interests is carried out in the manner prescribed by law, i.e. through the application of an appropriate form of protection. Under form of protection refers to a set of internally agreed organizational measures to protect subjective rights and legally protected interests. There are two main forms of protection - jurisdictional and non-jurisdictional.
Jurisdictional form protection is the activity of state-authorized bodies for the protection of violated or disputed subjective rights. Its essence is expressed in the fact that a person, whose rights and legitimate interests have been violated by unlawful actions, seeks protection from state or other competent authorities (court, arbitration court, higher authority, etc.), which are authorized to take the necessary measures to restore violated right and suppression of the offense.
Within the framework of the jurisdictional form of protection, in turn, there are general and special procedures for the protection of violated rights. As a general rule, the protection of civil rights and legally protected interests is carried out in court. The bulk of civil law disputes are considered by district, city, regional and other courts of general jurisdiction. Along with them, the judiciary is exercised by arbitration courts, which resolve disputes arising in the process. entrepreneurial activity. By agreement of the participants in a civil legal relationship, a dispute between them may be referred to an arbitration court for resolution. In cases where constitutional rights and the freedoms of citizens are violated or may be violated by the law applied or to be applied in a particular case, the consideration of which has been completed or begun in a court or other body, citizens have the right to appeal to the Constitutional Court of the Russian Federation.
As funds judicial protection of civil rights and legally protected interests is, as a general rule, lawsuit, i.e. a claim to the court for the administration of justice, on the one hand, and a substantive legal claim addressed to the defendant to fulfill his obligation or to recognize the presence or absence of a legal relationship, on the other hand. In some cases, the remedy is statement in particular in cases of special proceedings, or a complaint, in particular when applying to the Constitutional Court of the Russian Federation. The judicial or, as it is often called, the claim defense procedure is applied in all cases, except for those expressly specified in the law.
By special order protection of civil rights and legally protected interests, in accordance with Art. 11 of the Civil Code, it should be recognized administrative order their protection. It applies as an exception to general rule, i.e. only in cases expressly specified in the law. In this order, for example, the protection of the rights and legally protected interests of citizens and organizations from the actions of persons who have arbitrarily occupied a dwelling takes place. Remedy of protection civil rights exercised in administrative procedure, is a complaint submitted to the relevant administrative body by a person whose rights and legitimate interests have suffered as a result of the offense.
In some cases, in accordance with the law, a mixed one is applied, i.e. administrative-judicial procedure protection of violated civil rights. In this case, the victim, before filing a claim in court, must file a complaint with the state administration body. In this manner, for example, certain disputes of a patent nature, some cases arising from legal relations in the field of management, etc. are resolved.
Non-jurisdictional form of protection covers the actions of citizens and organizations for the protection of civil rights and interests protected by law, which are performed by them independently, without recourse to state and other competent authorities for help. In Art. 12 of the Civil Code, these actions are combined into the concept of "self-defense of civil rights" and are considered as one of the ways to protect civil rights. As part of self-defence, the holder of a violated or contested right can use various methods of protection, which must be proportionate to the violation and not go beyond the limits of the actions necessary to suppress it. Civil Code of the Russian Federation. Part 1 // 2008 Permissible measures include, in particular, the actions of a person in a state of necessary defense and extreme necessity, the application of so-called measures of operational influence to the violator, and some other actions.
Introduction…………………………………………………………………………...3
Chapter 1.: Legal characteristics of ways to protect the right…………………...5
5
1.2. Signs and classification of ways to protect civil rights………………………………………………………………………………….10
Chapter 2.: Features of the legal regulation of the protection of civil rights…………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………
2.1. Restoration of the situation that existed before its violation as a principle of civil law……………………………………………………...18
2.2. Nature and place in the system of protection of civil rights of the conditional claim…………………………………………………………………………………..24
Conclusion………………………………………………………………………….29
References………………………………………………………………32
Introduction
In the scientific literature there is no unequivocal position on the concept, qualification of forms, methods and means of protecting civil rights. This is due to the fact that the current legislation does not contain the concept of “form of protection” of civil law at all, while using such terms as “order of protection”, “method of protection”. Thus, a number of civilists define the form of protection as "a certain procedure for the protection of rights and interests, carried out by one or another jurisdictional body, depending on its nature."
The purpose of the study is to study ways to protect civil rights.
To achieve this goal, it is necessary to solve the following tasks:
1. Consider the concept of protection of civil rights.
2. To study the signs and classification of ways to protect civil rights.
3. Analyze the restoration of the situation that existed before its violation as a principle of civil law.
5. To characterize the nature and place in the system of protection of civil rights of the conditional claim.
The object of the research is social relations arising in the course of protection of civil rights.
The subject of the study is the rule of law that regulates the ways of protecting civil rights.
For writing term paper the following research methods were used: analysis of the current legislation, formal-logical method, systematic, study of the current legislation and the practice of its application, the method of structural and functional analysis.
The direct sources of information on the topic were the works of the following scientists - theorists: Alekseev S.S., Belov V.A., Bocharov N.I., Bogdanova E.E., Braginsky M.I., Zhivikhina I.B., Illarionova T. .I., Krasnova S.A., Kuznetsov S.A., Latypov D.N.
When writing this work, the following legal acts were studied: the Constitution of the Russian Federation, the Civil Code of the Russian Federation, the Land Code of the Russian Federation, the Housing Code of the Russian Federation, the Federal Law of March 6, 2006 No. 35-FZ "On Combating Terrorism".
this work consists of 2 chapters, introduction, conclusion The first chapter consists of two paragraphs. In the first paragraph, the concept of protection of civil rights will be considered. In the second paragraph, signs and classification of ways to protect civil rights will be considered.
In the second chapter, an analysis of the nature and place in the system of protection of civil rights of the conditional claim is made. And also characterized such a way of protecting civil rights as the restoration of the situation that existed before its violation as a principle of civil law.
Defense position:
1. Exclude the restoration of the situation that existed before the violation of the right from among the methods of protecting civil rights enshrined in Article 12 of the Civil Code of the Russian Federation and fix it as the main principle of civil law, which subjects of civil law should be guided by when implementing methods of protection.
2. State in the following wording paragraph 1 of Art. 1102 of the Civil Code of the Russian Federation: “A person who did not know and should not have known that, without the grounds established by law, other legal acts or a transaction, acquired or saved property (a bona fide purchaser) at the expense of another person (the victim), is obliged to return to the latter the unjustly acquired or saved property (unjust enrichment), except for the cases provided for by Article 1109 of this Code.”
Chapter 1.: Legal characteristics of methods of protection
Rights
The concept of protection of civil rights
In civil science, much attention is paid to the protection of civil rights. This situation seems quite natural, given the role of this concept in legal doctrine. There are five main approaches to understanding the protection of civil rights.
First approach suggests that protection is seen as a system of coercive measures.
However, the system of coercive measures is, in fact, a combination of such measures. Therefore, the use of the term
protection of civil rights for plural the phrase "coercive measure" is illogical. On the other hand, a system is a set of elements that are structurally interconnected, therefore such an understanding is an order of magnitude higher than the understanding of protection as a mechanical set of these measures, and this is precisely the essence of protection. At the same time, in science there is an independent concept of “a system of coercive measures”. Consequently, protection as a legal category duplicates another legal category. Of course, in certain scientific contexts, the term under study can be used in this way, but such an understanding does not claim to be universal.
Second approach associates protection with the activities or actions of law enforcement agencies or an authorized person. A supporter of this position is Alekseev S.S.
activities for its implementation are different concepts. It is no coincidence that this approach originally arose in the process sciences. The counterargument to this is the argument that activity is at the core of defense itself. In this case, the well-established turnover in law - "activities for the protection of civil rights" - raises questions. The phrase loses its meaning (“activity according to activity”).
Adjacent to the considered approach is the position linking defense with an independent subjective right to defense or the right to defense as an element of subjective law. With this approach attention is focused on protection in its subjective sense. In particular, V.V. Gruzdev understands civil protection as the exercise by an authorized person of a protective right or a protective right. Of course, protection can be represented in a subjective sense. However, some points are questionable. Firstly, the presented definition is of a hidden tautological nature (a protective right is a right to protection). Secondly, the realization of the right to protection is an independent legal category. As E.Ya. Motovilovker and M.G. Naumova, "the current system legal concepts testifies in favor of the fact that it is not required to exercise the right or obligation to designate by any special term. Implementation is implementation and that's it. They signify what is being done." In this case, the problem of doubling the terminology also could not be avoided: “protection of civil rights” = “implementation of the right to protection”.
Third Approach suggests that the protection of civil rights is the result of the activities of law enforcement agencies or an authorized person. According to V.V. Bolgovoi, protection is “the actual restoration of a violated right or legitimate interest, or the prevention of a threat of violation” . Thus, the leitmotif of the given definition is the emphasis on the final result. Meanwhile, if we come to the conclusion that protection is only the end result of a certain activity, it means to deprive such an established concept as a form of protection (judicial and extrajudicial) from meaning. Then the form of protection is the form of the result of such activity, and not the activity itself. In essence, with this approach, protection is presented in the form of a goal, since “ real restoration of rights" is the result of protection (the goal is "the final result to which the process is intentionally directed"). However, protection cannot be the goal, because then it is not clear what the goal of protection itself is. Although it is certainly true in some scientific contexts to use protection as a goal.
Supporters fourth approach understand the protection of rights as a system of legal norms, or legal institution. N.S. comes to this conclusion. Malein. The protection of civil rights as a legal institution raises no theoretical objections. Such a definition gives an idea of the systemic nature of the norms governing this area, of its role in the legislative or legal array, of the functional orientation of these norms. However, such an understanding will say little about the essence of protection as such. Of course, this definition to some extent complements the idea of protecting civil rights, but no more.
Fifth Approach connects protection with the function of civil law or with the function of the state. T.I. Illarionova notes that “protection is primarily a function of the state. In civil law, it exists as a function of a structural group of certain norms and is implemented either by an entity to which the state has delegated the opportunity to exercise its protective right by its actions, or by a competent authority. Indeed, protection as a function of the state or civil law as a branch exists as a function of a structural group of certain norms. However, as in the case of the legal institution, here the essence of protection is not fully disclosed. In modern literature, attempts to combine several of the approaches outlined above are becoming popular in the concept of “protection of civil rights”. The results of this methodology led to the formation integrative approaches. However, such attempts often lead to the fact that the position of the researcher can be attributed to the supporters of any one classification group. For example, O.V. Sakun, who declares that he has reached a new qualitative level in the definition of the concept of "protection of civil rights", essentially defines it
as well as the proponents of the third approach. O.V. Sakun proposes “under the protection of the right to understand the real restoration ... of subjective rights and legitimate interests, which is the result of the lawful impact of legal and factual measures provided for by law, which are applied by the competent authorities or an authorized person” . According to the researcher, there is a combination of coercive measures and activities to protect rights in one concept, where the unifying definition is "restoration of rights". However, the author himself declares that such an understanding is akin to a legal effect or the result of applying a certain method of protection. Thus, the protection real restoration of rights belongs to the third selected group, and, therefore, repeats the defects identified for it. Moreover, the term "restoration of the right" is not apt. For example, how to be in the case when the thing is destroyed. After all, it will not be possible to restore the right of ownership. It is possible, for example, to compensate for harm, but such a procedure is not related to the restoration of the right. Accordingly, the restoration of the right is actually a type of protection of civil rights.
Having considered the main approaches to the protection of civil rights, we note that all of the above approaches are not opposed to each other.
friend. In addition, despite the above criticism, each of them is theoretically justified and has an independent character in the doctrine of civil law. However, the point is not so much in presenting protection as a complex concept, but in the fact that this term in legal science, such a property as polysemy is inherent, which means “the presence of different lexical meanings in one word; ambiguity". Therefore, in different scientific contexts, the protection of civil rights can be considered both as an activity, and as a result of such activity, and as a system of measures, and as a legal institution, and as a special right, and as a function of the state or law. However, each definition is suitable only for a certain scientific context, and does not have universality.
In connection with the foregoing, in civil law there is
the urgent need for a definition of protection that would comply with the rule of interchangeability of scientific definitions, which is that "the defined and the defining can be replaced by each other in all standard contexts" . The protection of civil rights should, without significant loss of meaning, be used in such established expressions as activities to protect rights, the use of something to protect rights, methods of protection, forms of protection, etc. Meanwhile, none of the established definitions of "protection of civil rights" does not have this versatility.
Signs and classification of ways to protect civil rights
The concept of a method of protecting a right, like the concept of protecting a right, does not have a legal definition. Most authors consider the ways of protecting civil rights as means (measures) by which suppression, prevention, elimination of violations of the right, restoration of the violated right and (or) compensation for losses caused by its violation can be achieved.
Distinctive features of methods of protection are their enshrinement in law and coercive nature (application regardless of the desire of the person who violated the right). As follows from the interpretation of Art. 12 of the Civil Code of the Russian Federation, any method of protecting the right must be expressly provided for in the law (the Civil Code of the Russian Federation or a special act). This feature of the method of protection is specific to the continental system of law. In family common law On the contrary, the plaintiff can resort to any method of protection and even invent it (a striking example is the prohibition of the defendant from approaching the plaintiff at a certain distance). The disadvantage of a conditionally closed list of ways to protect a right is that in legal practice other methods arise and are widely used that are not regulated by law (for example, recognizing a right as absent, recognizing a transaction as valid, establishing the fact of an employment relationship)].
Civilian scholars classify ways to protect civil rights on various grounds. Here are the most significant classifications: Measures of civil liability and measures of protection in the narrow sense of the word. By scope: universal (provided for in Article 12 of the Civil Code of the Russian Federation and can be used to protect most civil rights) and special (provided for by other norms of civil law). The expediency of this classification is disputed, since not all the methods listed in Art. 12 of the Civil Code of the Russian Federation are applicable to the protection of any rights. For example, the collection of a penalty, the recognition of a voidable transaction as invalid, the award to the performance of an obligation in kind are possible only to protect the obligation, and not the right in rem. At the same time, a number of widely used methods are not directly named in Art. 12 of the Civil Code of the Russian Federation (for example, suspension of the fulfillment of a counter obligation). According to the correct remark of S.A. Krasnova, the division of methods of protection into universal and special does not reflect the actual links between the methods included and not included in Art. 12 of the Civil Code of the Russian Federation. By methods of implementation (bringing a claim to the court, appeal to state bodies, independent application).
According to the result of application: confirmation (certification) of the right or termination (change) of the obligation: recognition of the right; award to performance of duty in kind; termination or change of legal relationship; prevention or suppression of violation of the right: suppression of actions that violate the right or threaten to violate it; recovery of a penalty; restoration of the violated right and (or) compensation for losses incurred in connection with its violation: restoration of the situation that existed before the violation of the right; indemnification; compensation for moral damage.
By type of protected rights: property rights - recognition of rights; recovery of property from someone else's illegal possession; elimination of violations of the law, not connected with deprivation of possession; rights from obligations - suppression of actions that violate the right or create a threat of its violation; refusal to perform the contract; payment of interest for the illegal use of other people's money; recovery of a penalty; exclusive rights (there are differences for the protection of absolute rights, personal non-property rights and rights from license agreements); corporate rights.
It seems that the classification of measures for the protection of rights into universal and special is of little practical value, since the essence of the protected right largely determines the method of protection. In this sense, far from all the methods enshrined in Art. 12 of the Civil Code of the Russian Federation (recognition of the right, restoration of the situation). At the same time, the classification according to the type of protected rights is incomplete, since it does not indicate all protected rights and interests (more on this later).
Protection of civil rights is carried out by: recognition of the right; 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 the invalidity of a void transaction; recognition of the decision of the meeting as invalid; invalidation of an act of a state body or local self-government body; self-defense rights; awarding to the performance of duties in kind; indemnification; recovery of a penalty; 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.
Recognition of the right. The recognition of law was already known to Roman private law, and with its reception it was included in legal systems many European states. Traditionally, this method is used to protect rights in rem, however, a claim for recognition can also be used to protect rights arising from obligations. As noted by S.A. Kuznetsov, the recognition of the right of obligations is effective if the right has not yet been violated, for example, when the deadline for fulfilling the obligation has not yet come, but the debtor disputes the existence of the obligation itself, the deadline for its fulfillment, or expresses disagreement with any of its conditions.
Recognition of a right as a way to protect it must be distinguished from private methods of acquiring ownership (recognition of ownership of unauthorized construction, municipal property rights to ownerless immovable things, municipal or state property rights to unclaimed land shares), since in these cases the right is acquired, and not confirmed.
Restoration of the situation that existed before the violation of the right. The restoration of a violated right is enshrined as a principle of civil law, its purpose and method of protection. The independence of this method of protecting the right is discussed: Motovilovker E.Ya., Naumova M.G. believe that the allocation of the restoration of the situation that existed before the violation of the right, as an independent way to protect rights, is unnecessary, since the goal of any method is to restore the violated right. Other authors propose to consider the restoration of the situation both as the goal of protecting civil rights and as an independent way of protection. The existence of this method of protection is also evidenced by judicial practice (resumption of the supply of thermal energy, restoration of the pre-emptive right of a participant in common shared ownership).
Recognition as invalid of an act of a state body or a local self-government body. Art. 13 of the Civil Code of the Russian Federation. An act of a state body or local self-government body is understood not only as a non-normative act, but also as a normative act that does not comply with the law or other legal acts and violates the civil rights and legally protected interests of a citizen or legal entity. Distinctive features of this method of protection is that it is applied in two stages and only by the court: after the act is declared invalid, the violated right is subject to restoration or protection by other means provided for in Art. 12 of the Civil Code of the Russian Federation.
Self-defense rights. Article 14 of the Civil Code of the Russian Federation allows the protection of civil rights without recourse to jurisdictional authorities (self-defense). Methods of self-defence must be proportionate to the violation and not go beyond the limits of the actions necessary to stop it. The assignment of self-defense of the right to the number of methods of protection is reasonably disputed by scientists: self-defense is a form (order), and not a method of protection.
Compensation for damages. One of the most popular ways to protect a right is compensation for damages (Article 15 of the Civil Code of the Russian Federation), which refers to the expenses that a person has made or will have to make to restore a violated right, the cost of lost or damaged property (actual damage), as well as lost income ( lost profit). As a general rule, losses are compensated in full, but it is permissible to introduce a limited amount of compensation by law or contract (limited, for example, the carrier's liability to the consignor for the failure of the cargo).
Separately, it should be said that not only losses caused by private individuals are compensated, but also losses caused by state bodies and local governments, as well as their officials. In this case, losses can be caused both by illegal actions (inaction) of public entities, and by the issuance of an act that does not comply with the law. Compensation is carried out at the expense of the budget of the Russian Federation, a constituent entity of the Russian Federation or a municipality.
A novelty of civil legislation is such a way of protecting the right as compensation for damage caused by lawful actions of state bodies and local governments (Article 16.1 of the Civil Code of the Russian Federation was introduced by Federal Law No. 302-FZ of December 30, 2012). The essence of this method of protection lies in the fact that damage caused to a person or property by lawful actions of public entities, as well as persons to whom the state has delegated power, is subject to compensation in cases and in the manner prescribed by law. In particular, the possibility of such compensation is provided for in Art. 279 and 281 of the Civil Code of the Russian Federation (withdrawal of a land plot for state or municipal needs), paragraph 5 of Art. 790 of the Civil Code of the Russian Federation (reimbursement of freight charges), clause 2 of Art. 18 of the Federal Law of 06.03.2006 No. 35-FZ "On countering terrorism" (harm caused during the suppression of terrorist act) .
Special ways of protecting the right..
All methods not expressly specified in Art. 12 of the Civil Code of the Russian Federation, can be conditionally classified as special, since they are due to the specifics of certain types of civil rights (property, housing, labor, family). Special methods can be fixed both in the Civil Code of the Russian Federation and in other acts of civil legislation (primarily codes).
Chapter 20 of the Civil Code of the Russian Federation is devoted to the protection of property rights and other property rights. So, special ways of protecting property rights (not only property rights, but also possession on legal or contractual grounds) are the recovery of property from someone else's illegal possession (vindication claim), the recovery of property from a bona fide purchaser (Article 302), the elimination of violations not related to deprivation of possession (negatorial action). Special ways to protect honor, dignity and business reputation are the refutation of discrediting information; replacement or withdrawal of a document containing such information; removal of relevant information, as well as the suppression or prohibition of its further distribution; recognition of information as untrue; compensation for losses and compensation for moral damage (Article 152 of the Civil Code of the Russian Federation).
Refusal of counter performance (Clause 2, Article 328 of the Civil Code of the Russian Federation) and retention (Article 359 of the Civil Code of the Russian Federation) can be used to protect any right arising from a contract or transaction. At the same time, certain types of contracts have special ways to protect the rights of creditors (for example, purchase and sale, in a row). For example, Art. 723 of the Civil Code of the Russian Federation gives the customer the right to demand from the contractor (at his choice) the gratuitous elimination of defects within a reasonable time; commensurate price reduction; reimbursement of expenses for the elimination of deficiencies; gratuitous performance of the work anew with compensation for losses caused by the delay in performance. Special methods can also be associated with the special qualities of the person whose rights are violated (a vivid example is a wide arsenal of methods for protecting consumer rights).
Intellectual rights are protected by the methods provided for by the Civil Code of the Russian Federation, taking into account the essence of the violated right and the consequences of the violation. Protection, in particular, is carried out by recognizing the right; restoration of the situation that existed before the violation of the right; suppression of actions that violate the right or create a threat of its violation; compensation for moral damage; publication of a court decision on the committed violation (clause 1 of article 1251 of the Civil Code of the Russian Federation). According to Art. 1252 of the Civil Code of the Russian Federation, protection of exclusive rights is also possible by indemnification (in case of unlawful use of the result of intellectual activity or means of individualization without concluding an agreement with the copyright holder), withdrawal of the material carrier.
Historically, other rights are closely related to civil rights: land, family, labor, housing, which, due to their specificity, should enjoy special methods of protection. The system of measures for the protection of rights has been developed in the Land and Labor Codes. For example, Chapter IX of the Land Code of the Russian Federation regulates the following ways of protecting the right of ownership to a land plot: recognition of rights to a land plot (Article 59); restoration of the situation that existed before the violation of the right to a land plot, and the suppression of actions that violate the right to a land plot or create a threat of its violation (Article 60); invalidation of an act of the executive body state power or a local government body (part 2 of article 60, article 61); award for execution in kind (part 2 of article 62, part 1 of article 63).
N.I. Bocharov also names other common ways to protect land rights, for example, suspension of the execution of acts of executive bodies of state power or local governments that do not comply with the law; suspension of construction, development of mineral deposits and peat, operation of facilities.
Ways to protect housing rights in accordance with paragraph 3 of Art. 11 of the Housing Code of the Russian Federation are the recognition of housing law; restoration of the situation that existed before the violation of the housing law, and the suppression of actions that violate this right or create a threat of its violation; recognition by the court as invalid in whole or in part of a normative legal act; non-application by the court of a normative legal act, termination or change of the housing relationship. As you can see, this system (as well as the system of measures to protect land rights) copies the methods of protecting civil rights provided for in Art. 12 of the Civil Code of the Russian Federation. According to D.N. Latypov, in Art. 11 of the Housing Code of the Russian Federation unreasonably does not indicate the actual housing and legal methods of protection: moving in; eviction; recognition of a person as having lost the right to use residential premises; compulsory division or exchange of residential premises; non-obstruction in living; recognition of the warrant as invalid. The Family Code of the Russian Federation also does not have a generalized system of protection methods family rights, which is seen as a shortcoming of sectoral legislation.