CIVIL AND LEGAL ASPECT OF THE LEGAL NATURE OF THE RIGHT TO PROTECTION

Abstract

By recognizing certain subjective civil rights and obligations for a particular person, civil law provides the authorized person the right to protection. Protection of civil rights is one of the most important categories of the theory of civil law, its study involves finding out the content and correlation of a number of interrelated concepts, the scope of which, first of all, belongs the right to protection. The issue of clarifying the legal nature of the right to protection is still debatable.

The objective of the paper is to compare different points of view on the legal nature of the right to protection and to determine the author’s point of view on this issue.

It has been found out that the science of civil law has three approaches to the definition of the legal nature of the right to protection: first, the right to protection is the competence of subjective civil law, which is part of the “triad” of person’s competences granted by this right; secondly, the right to protection is an independent civil right, the basis of which is a certain legal fact; thirdly, the right to protection is the right without duties.

Study of the structure of subjective right as a set of competences of a person allowed to conclude that the right to protection is a kind of continuation of the original and mandatory element of any subjective right – the right to demand. However, its peculiarity is slightly different. It has been established that the right to protection is directed to another subject (agencies that provide state impact), and also has another content (the requirement to exercise through state impact).

The author has substantiated the point of view that competence to protection is that it exists within subjective right from the very beginning of its formation, along with the eligibility of the demand and the eligibility to own active actions. However, activity, i.e., its development, it receives in the presence of additional facts (non-fulfillment of a duty) and is aimed at ensuring legal impact on an offender’s legal obligation.

Thus, the transition of subjective right to the stage of protection indicates that it has one of the most important features of the right, which is the guarantee and protection of its state.