Administrative and judicial forms of protection. Russian civil procedure

1. Procedural forms of protection of rights and legitimate interests.

The form of protection of rights is understood as the activity of the competent authorities for the protection of rights determined by law, i.e. to establish factual circumstances, apply the law, determine the method of protecting the right and make a decision.

The protection of civil rights in the Russian Federation is carried out in accordance with the established procedure by courts of general jurisdiction, as well as arbitration courts, arbitration courts, trade unions and other public organizations, administrative bodies. However, only the protection of the interests of various subjects by the court authorities is recognized as justice, which differs significantly from other forms of protection of violated rights. The variety of forms of legal protection is explained by the action of a number of factors - the specificity of the rights to be protected or protected, the complexity or, conversely, the simplicity of understanding legal relations, legal traditions.

The protection of rights is carried out in accordance with the jurisdiction of cases established by procedural legislation, courts of general jurisdiction, arbitration courts, and arbitration courts.

Protection of civil rights administratively is possible only in cases provided for by law. A decision made administratively can be appealed in court (Article 11 of the Civil Code of the Russian Federation).

The functions of protecting and protecting indisputable rights and interests protected by law are also performed by notaries and other officials who have the right to perform notarial acts. Thus, notaries certify transactions, take measures to protect inherited property, and issue certificates of ownership of a share in the property of the spouses.

A number of labor disputes are considered directly at the site of a legal conflict by labor dispute commissions (LCD), and collective labor disputes are considered by conciliation commissions and labor arbitrations.

Among the various forms of protection of rights, the leading role is played by the judicial (procedural) form, its features are: 1) protection is carried out by a special body - the court 2) the court resolves the stated claims based on the application of substantive law 3) consideration and resolution of the case is carried out in a strict procedural manner form, based on competition and equality of the parties and the impartiality of judges.

Judicial branch when defending civil rights courts are carried out through civil proceedings.

Civil proceedings (civil proceedings) are the procedure for proceedings in civil cases, determined by the rules of procedural law. Under civil cases refers to matters arising from legal relations - administrative, financial, land, civil, labor, housing, family, etc.

2. Right to legal protection.

Judicial protection is one of the most important state methods of protecting the rights, freedoms and legitimate interests of subjects of law, carried out in the form of justice and guaranteed by the state. The right to judicial protection is a constitutional right. Everyone is guaranteed judicial protection of his rights and freedoms - proclaims the Constitution of the Russian Federation. No one can be deprived of his property except by a court decision. Decisions and actions (or inaction) of authorities state power, local government bodies, public associations and officials may be appealed to the court. Everyone has the right, in accordance with international treaties of the Russian Federation, to apply to interstate bodies for the protection of human rights and freedoms if all available domestic remedies have been exhausted. Judicial power is exercised through constitutional, civil, administrative and criminal proceedings. Judicial power in protecting civil rights by courts of general jurisdiction is exercised through the administration of justice. Civil proceedings (civil process) is the procedure for proceedings in civil cases, determined by the norms of civil procedural law. Civil cases are understood as cases arising from a wide range of legal relations - administrative, financial, land, civil, labor, housing, family, etc. The objectives of civil proceedings are the protection of violated or disputed rights, freedoms and legally protected interests of citizens, organizations and their associations, as well as the protection of state and public interests, and the prevention of offenses.

3. Subject and method of GPP.

Civil procedural law is a branch of law that includes a set of procedural rules regulating the social relations that arise between the court and the participants in the process in the administration of justice in civil cases. Civil procedural law is also referred to as legal science and academic discipline, the subject of which is legal norms regulating relations in the field of justice in civil cases. The subject of civil procedural law is the social legal relations that arise between the court, on the one hand, and any other participant in civil proceedings, on the other hand (to a certain extent, the activities of the bodies executing court decisions - Treushnikov.). The method used in regulating relations in the field of civil proceedings is characterized as imperative-dispositive, that is, combining the imperative method in terms of regulating issues related to the actions of the court, and the dispositive method in regulating the behavior and procedural activities of participants in the trial. Most rules of civil procedural law are permissive, not prohibitive. Participants in the process can only occupy one procedural position inherent in them and perform such procedural positions and perform such procedural actions as are permitted and provided for by the rules of procedural law. Some proceduralists express the opinion that the method of regulating relations in civil procedural law has features only of imperativeness, since the subject of regulation of the industry is the relationship between the authority - the court and other participants in the process, who are obliged to obey the decisions of such a body. The norms of civil procedural law determine the entire course of the judicial process and establish for each subject of civil procedural relations the measure of proper and possible behavior. The object of legal regulation of the norms of civil procedural law are social relations in the field of legal proceedings in civil cases.

4. GPP system.

The system of any branch of law is a set of interconnected and interacting institutions and rules of law that reflect the subject of legal regulation. Hence, the system of civil procedural law is formed by norms and legal institutions that regulate procedural actions and legal relations of the court with other subjects of considered and resolved civil cases (the institution of jurisdiction, jurisdiction, claim, persons participating in the case, the institution of evidence, procedural deadlines, etc.). As part of civil procedural law, one should distinguish between general provisions related in content to the entire process, and rules governing proceedings at individual stages of the process, as well as rules governing procedural actions with a foreign element. Based on this, the system of procedural law distinguishes two parts - general and special. The provisions of the general part are also important for the institutions of the special part.

The general part is relevant to all types and stages of legal proceedings - these are: the tasks and principles of civil proceedings, sources of this branch of law, composition of the court, jurisdiction and jurisdiction, persons participating in the case, representation in court, evidence, court costs and fines, procedural deadlines , court notices and summonses. A special part unites institutions and norms regulating the types, stages of civil proceedings, proceedings in cases involving foreign persons. (: 2-Proceedings in the court of first instance, 3-Proceedings in the court of second instance, 4-Review of entered into legal force court decisions), as well as issues of civil procedure with a foreign element (Section V of the Civil Procedure Code). A separate position in the system of civil procedural law is occupied by the rules relating to enforcement proceedings. Compulsory execution of judicial acts is carried out in accordance with the Federal Law “On Enforcement Proceedings”. However, the court (judge) exercises control over the legality of the execution of judicial acts and acts of other bodies (Section VII of the Code of Civil Procedure of the Russian Federation) in the form established by procedural law.

  1. Concept and stages of civil process.

Civil process is a set of procedural actions and civil proceedings regulated by the Civil Code procedural legal relations arising between the court and other entities when considering and resolving a civil case by a court of general jurisdiction. The activities of the court in considering and resolving civil cases develop in a certain sequence, in stages.

1) The first stage is the initiation of a case. This is done by submitting statement of claim, complaints or statements. The case is initiated by the judge accepting the application for his proceedings.

2) After the initiation of the case, the second stage follows - preparing the case for trial. The purpose of this stage is to ensure timely and correct resolution of the case in one court hearing.

3) The third stage of the process is the trial of the case. At this stage, the case in court is resolved on its merits and, as a rule, ends with a decision.

4) Appeal and protest of court decisions and rulings that have not entered into legal force (appeal proceedings). Before joining judicial act in legal force, persons participating in the case (parties, third parties) have the right to appeal it to a higher court, including the prosecutor through an appeal. Persons who were not involved in the case and the question also have the right to file an appeal whose rights and obligations were resolved by the court.

5) Cassation proceedings (after the entry into force of court decisions, with the exception of decisions of the Supreme Court of the Russian Federation). Persons participating in the case and other persons can appeal if their rights and legitimate interests are violated by legal decisions.

6) Supervisory review court decisions, definitions, resolutions that have entered into legal force.

7) Revision, based on newly discovered or new circumstances, of decisions that have entered into legal force. Newly discovered circumstances are those that existed at the time of adoption. court order and significant for the case. (for example, falsification of evidence, deliberately false testimony of a witness, deliberately false translation, etc.) New are circumstances that arose after the adoption of a court decision and are essential for the correct resolution of the case. (for example, in the case of cancellation of a sentence or decision that was the basis for the adoption of a judicial act.)

8) Stage of execution of court decisions. Without the execution of a court decision, the goal of the process - the protection of the violated right - is not achieved.

6. Concept and types of civil proceedings.

Civil proceedings are a set of procedural actions and civil procedural legal relations regulated by the Civil Procedure Code that develop between the court and other entities when considering and resolving a civil case by a court of general jurisdiction. The type of civil proceedings is a procedural procedure for initiating, considering, and resolving certain groups of civil cases, determined by the nature and specificity of the substantive right to be protected or the interest protected by law. 1) The main and most common type of legal proceedings is claim proceedings, according to which cases on disputes arising from civil, housing, family, labor, land, environmental and other legal relations are considered. As a general rule, claim proceedings arise when there is a material and legal dispute. The parties are called the plaintiff and the defendant. The rules of claim proceedings are common to civil proceedings in all cases. The process for non-claim types of legal proceedings is also carried out according to these rules, but with some exceptions and additions established by special rules for non-claim cases. 2) Non-litigative types of legal proceedings include cases arising from public legal relations, for example, cases on applications of citizens, organizations, prosecutors to challenge regulatory legal acts in whole or in part, cases on the protection of electoral rights or the right to participate in a referendum of citizens Russian Federation etc. The element of state participation in the person of its bodies and officials in cases arising from public legal relations (constitutional, administrative, financial, etc.) determines the specifics of the procedure for considering and resolving these cases. The parties are called the applicant and other interested parties. The court also hears cases in which there is no dispute about the law. 3) Special proceedings - not related to the resolution of a dispute about law. (on establishing facts of legal significance; on the adoption of a child; on declaring a citizen missing or declaring a citizen dead, on limiting legal capacity, on declaring incompetent, on declaring a movable thing ownerless and recognizing the right of municipal ownership to ownerless real estate thing, on the restoration of rights to lost bearer securities or order securities (call proceedings), on making corrections or changes in civil status records, etc.). 4) writ proceedings, i.e. production according to undisputed requirements. In the order of writ proceedings, for example, claims based on a notarized transaction are considered.5) According to the Code of Civil Procedure of the Russian Federation of 2002, new types of proceedings are classified as non-claim proceedings, namely: proceedings in cases of issuing writs of execution for the forced execution of decisions of arbitration courts; proceedings in cases of challenging decisions of arbitration courts and issuing writs of execution for the forced execution of decisions of arbitration courts (Section VI of the Code of Civil Procedure); proceedings in cases of recognition and enforcement of decisions of foreign courts and foreign arbitration tribunals (Chapter 45 of the Code of Civil Procedure).6) proceedings in absentia, possibly in case of failure to appear at the court session by the defendant, who was notified of the time and place of the court session, did not report valid reasons for the failure to appear and did not ask for the case to be considered in his absence.

  1. The concept and main features of the civil procedural form.

Justice in civil cases is carried out in a procedural form determined by law (procedural procedure).

Procedural form is a consistent procedure for considering and resolving a civil case established by the norms of civil procedural law, including a certain system of guarantees. Procedural actions are carried out in the manner and in strict sequence established by law. Based on the procedure established by law, civil procedural legal relations arise, develop and terminate at all stages of the process. The procedural order strictly regulated by law (procedural form) distinguishes the judicial protection of the rights of citizens and organizations from the protection of rights by other bodies (administrative).

Main features:

1)Legislative regulation (the procedure for considering and resolving civil cases in court is determined by an independent branch of law - GLP)

2) Detailed development of the entire procedure for considering a case in court (the sequence of all actions by the court and other participants in the process, the content of these actions and procedural documents are enshrined in the Civil Procedure Code)

3) The universality of the procedural form of resolving disputes in court (the Civil Procedure Code provides for a procedure for the consideration and resolution of cases of all types of civil proceedings, at all stages of the civil process)

4) Imperativeness of the procedural form (the order of consideration of cases established by the Civil Procedure Code is mandatory for everyone: courts, other participants in the process, even for persons present in the courtroom. Violation of the established order of consideration of cases can lead to undesirable consequences: cancellation of the court decision, imposition of a fine on the violator of the order etc.)

Compliance with the procedural form is an indispensable condition for the legality of court decisions. Significant violations procedural form are an unconditional basis for reversing a court decision.

  1. Concept and classification of GLP sources. The role of judicial practice in the development of civil law.

The source is an external form of expression of law. These are normative acts of various levels containing the norms of the specified branch of law.

1) Norms of international law. Thus, the Civil Procedure Code establishes that if an international treaty establishes rules other than those provided by law, then the rules of the international treaty apply (Hague Convention on Civil Procedure (1954))

  • Civil procedural law
    • Forms of protection of subjective rights and interests of citizens and organizations
    • The concept of civil procedural law
    • Rules of civil procedural law
    • Sources of civil procedural law
    • Civil procedural form
    • Civil process
    • Civil procedural law in the system of domestic law
    • Science of civil procedural law
    • Civil procedure as an academic discipline
  • Civil procedural principles
    • The concept of civil procedural principle
    • System of civil procedural principles
    • Principle of legality
    • The principle of judicial truth
    • Principle of procedural equality
    • The principle of dispositivity
    • The adversarial principle
    • Legal axioms in civil proceedings
  • Civil procedural legal relations
    • The concept of civil procedural legal relations
    • Prerequisites for the emergence of civil procedural legal relations
    • Object and content of civil procedural legal relations
    • Subjects of civil procedural legal relations
    • Classification of civil procedural relations
  • Persons involved in the case
    • Composition of persons participating in the case
    • The concept of persons participating in the case and their characteristics
  • Parties in civil proceedings
    • Concept of parties
    • Procedural rights and procedural obligations of the parties
    • Procedural complicity
    • Proper and improper party
    • Civil procedural succession
  • Third parties in civil proceedings
    • Third parties filing independent claims regarding the subject of the dispute
    • Third parties who do not make independent claims regarding the subject of the dispute
      • Third parties who do not make independent claims regarding the subject of the dispute - page 2
  • Participation of the prosecutor in civil proceedings
    • Purpose and basis for the participation of the prosecutor in civil proceedings
    • Forms of participation of the prosecutor in the consideration of a civil case in the court of first instance
    • The legal nature of the prosecutor's participation in civil proceedings
  • Subjects defending in civil proceedings on their own behalf the rights and interests of other persons
    • Grounds and purpose of participation in civil proceedings by entities protecting on their own behalf the rights and interests of other persons
    • Applying to court with a claim (application) in the interests of another person
    • Participation in civil proceedings of state bodies, local governments to provide an opinion
  • Representation in court
    • The concept of representation in court
    • Types of representation in court
    • Powers of a representative in court
  • Civil procedural liability
    • The concept and purpose of civil procedural liability
    • Types of civil procedural liability
  • Judicial jurisdiction of civil cases
    • The concept of judicial jurisdiction in civil cases
    • Judicial jurisdiction of claims
    • Judicial jurisdiction of non-claim cases
  • Jurisdiction of civil cases
    • Concept and types of jurisdiction
    • Patrimonial jurisdiction
    • Territorial jurisdiction
      • Territorial jurisdiction - page 2
    • Transfer of a case from one court to another
  • Procedural deadlines
    • The concept and purpose of procedural deadlines
    • Types of procedural deadlines
  • Court expenses
    • Concept and purpose legal expenses
    • Government duty
    • Legal costs
    • Distribution of legal costs
  • Judicial proof
    • Proof is a type of judicial knowledge of the circumstances of the case.
    • Judicial evidence and means of proof
    • Subject of proof
    • Distribution of responsibilities for proof. Evidentiary presumptions
    • Classification of evidence
    • On immediacy in the study of evidence
  • Means of judicial evidence
    • Explanations of parties and third parties
    • Witness testimony
    • Written evidence
    • Evidence
    • Expert opinions
    • Other means of proof
  • Court order
    • Court order as summary proceedings
    • Court order as a type of court order
    • Guarantees of individual rights in simplified proceedings

Forms of protection of subjective rights and interests of citizens and organizations

Citizens and organizations in Russia are endowed with various subjective rights, which is a significant social achievement. By determining the type, extent and limits of possible behavior of people, the rights of citizens ensure the satisfaction of their needs and regulate behavior and lifestyle. Naturally, for this, rights must either be freely exercised at the request of their bearers - be indisputable, or have the ability to be enforced. Any civil offenses and legal disputes interfere with the activities of citizens and organizations.

A dispute about law is an individual legal conflict between citizens or organizations, a clash of their interests and aspirations. In a dispute, its participants confront each other, but since they have equal rights, the conflict cannot be eliminated by the desire and will of one of the subjects, but is resolved only through the joint efforts of the parties or through a lawsuit.

There are two types of disputes about rights: violation of a person’s rights and challenging them by another participant. In case of violation, property and intangible values ​​are diminished. The method of violation has no qualifying significance. Rights can be violated by committing a crime, untimely or improper fulfillment of obligations, causing harm, etc. When contested, material and spiritual values ​​are not diminished, but the disputed legal relationship becomes vague and unclear. As a result, the mutual rights and obligations of the participants are not obvious, which makes their implementation difficult. This type a dispute about the right arises when claims are made for the authorship of a work, when a statement about the invalidity of a concluded transaction or marriage, etc. is made. A challenge also arises when an unfounded claim is brought to court.

The differentiation of disputes about the right to these types is of practical importance. Protection of the right in case of its violation consists of restoring the situation that existed before the violation of the right, and suppressing actions that violate the right or create a threat of its violation, and awarding the execution of an obligation in kind; compensation for losses, collection of penalties, compensation for moral damage, etc., and in the event of a challenge, recognition of a right or recognition of a voidable or void transaction as invalid, etc.

By current legislation protection of subjective rights is possible in various forms (orders).

Self-defense consists in the fact that the interested person takes appropriate measures to suppress unlawful actions (Article 14 of the Civil Code). This is the oldest form of legal protection. It is the simplest, but most effective. At the same time, during self-defense, there is a great danger of unlawful actions, manifestations of illegality on the part of the defending subject, who, for example, either incorrectly assesses the situation or defends rights that do not belong to him, or applies measures not provided for by law. That is why in Art. 14 of the Civil Code specifically stipulates that the methods of defense must be proportionate to the violation.

Self-defense is legal in a few cases provided for by law: necessary defense (Article 1066 of the Civil Code) and extreme necessity (Article 1067 of the Civil Code). The law establishes a type of self-defense in the form of the creditor’s direct debiting of the debt amount from the debtor’s bank account (clause 2 of Article 854 of the Civil Code).

Self-defense is characterized by the fact that human rights actions are carried out by the interested person himself, without and outside of any legally established regulations.

The settlement of legal disputes is an independent form of legal protection, the essence of which lies in the joint actions of the disputing parties to eliminate the emerging conflict. The parties to the dispute are interested in restoring normal, undisputed legal relations in order to carry out their economic activities without interference or difficulty. This primarily applies to legal entities who strive to maintain long-term, optimal legal relations with their counterparties.

Currently, the settlement of disputes over law is provided for by the Regulations on the claim procedure for the settlement of disputes dated February 24, 1992, and in relation to labor disputes - Art. 203–206 Labor Code.

The essence of dispute settlement is that the person whose rights are actually or allegedly violated or disputed, within a normatively defined period of time, brings his claims in writing with the attachment of relevant documents to the attention of the other party. The latter, having examined the application, must, within a certain period of time, either satisfy the claim or send a reasoned refusal. When resolving a dispute, interested parties have the right to exchange telegrams and faxes; the leaders of the disputing parties, as well as their responsible representatives, can meet to develop an economically sound and economically feasible solution. When considering labor disputes, the interested employee, the enterprise administration and representatives of the trade union organization participate, who make a decision on the dispute at a meeting of the labor dispute commission.

The advantages of dispute settlement as a method of legal protection lie in its simplicity and speed, its expediency and effectiveness.

The administrative procedure for protecting the right is that in cases provided for by law, the authorities government controlled or local government can, without calling interested parties and outside the current procedure, make a decision to restore the violated right or to eliminate any legal uncertainties. Thus, the prosecutor can authorize the administrative eviction of persons who arbitrarily occupied residential premises or who live in houses threatening to collapse (Part 2 of Article 90 of the Housing Code). The Central Bank of the Russian Federation and its branches have the right to apply direct debiting of the debtor’s amount from his bank account when exercising banking control. Local governments have the right to recover damages from organizations for crop damage and damage to plantings. In some cases, juvenile affairs commissions may impose monetary penalties on parents and guardians of adolescents.

Any decision made administratively can be appealed in court (Part 2 of Article 11 of the Civil Code), since the judicial (procedural) procedure is the most perfect form of protection of subjective rights.

The procedural (judicial) form is characterized by the following advantages:

  • a) the defense is carried out by a special body - a court created only to consider disputes about the law (the term “court” means: a court of general jurisdiction, a magistrate, special courts - arbitration, arbitration, military);
  • b) the court resolves the stated claims based on the application of civil, family, labor and other laws in the manner of civil jurisdiction;
  • c) the circumstances of the case are investigated in the civil procedural form, which guarantees the legality and validity of the resolution of the dispute;
  • d) the defense is carried out by impartial judges;
  • e) the parties to the dispute and other interested parties actively participate in the proceedings. This increases the efficiency of the judicial procedure and, ultimately, contributes to the legal education of citizens.

Procedural activities to protect a violated or challenged right are regulated by civil procedural law.

1.Civil procedural law is a system of legal norms governing civil procedural actions and legal relations that develop between the court and other participants in the process in the administration of justice in civil cases.

Subject Civil procedural law consists of social relations, legal relations that develop in the field of civil proceedings between the court and other participants in a civil case, as well as the procedural activity itself to implement these relations.

Method civil procedural law is traditionally defined in science as imperative-dispositive. The imperative nature of the method of civil procedural law lies in the fact that an obligatory participant in civil procedural legal relations is the court, whose activities are strictly regulated by the Civil Procedure Code of the Russian Federation and other regulatory legal acts. The dispositivity of the method is realized in the free choice of behavior options for interested parties: the emergence of a civil process, its movement from stage to stage, etc. On its own initiative, the court does not have the right to initiate civil cases.

GPP system- this is the norm of the institutions of the branch of law, determined

subject to regulatory rights. It is determined by the structure of the GPC and consists of

two parts - general and special.

The system of civil procedural law consists of two parts: General and Special.

General part - contains the main provisions, institutions related to all civil proceedings: principles of legal proceedings and guarantees of their implementation, legal status of the court and persons participating in the case, representation, procedural terms, legal costs, liability, general rules proof, etc.

^ Special part - contains a set of rules regulating the movement, development of civil proceedings in stages from its initiation to the issuance and review of a court decision, as well as features of the process for certain categories of cases (order, claim, special, arising from public law and executive legal relations) and in relation to various subjects (in particular, foreigners).

2. Sources of GSP are recognized as legal acts regulating the activities of the subjects of the group. Process. Gr. legal proceedings in the federal courts of general jurisdiction is based on the Code of the Russian Federation, Federal Law of the Russian Federation dated December 31, 1996. No. 1-FK3 “On the judicial system of the Russian Federation”, Civil Procedure Code and other Federal Laws adopted in accordance with them. Order gr. legal proceedings before a magistrate are determined by the above-mentioned regulations, as well as the Federal Law “On magistrates in the Russian Federation”. In addition to the specified legislative acts, the norms of the civil law are contained in many other federal laws: the Civil Code of the Russian Federation; RF IC; Labor Code of the Russian Federation, etc. International treaties on the Labor Code of the Russian Federation act as sources of GPP. Moreover, if an international treaty of the Russian Federation establishes other rules gr. legal proceedings than those provided for by law, the rules of the Ministry of Foreign Affairs apply. agreement. The effect of the norms gr. procedural law in time. The Law on Legal Proceedings in Courts of General Jurisdiction, being federal, comes into force simultaneously throughout the entire territory of the Russian Federation. As a general rule, laws do not have retroactive force and apply only to those relationships that arose after the act came into force. However, there may be exceptions to this rule when the law itself provides for the extension of its effect to relations that arose before the entry into force of this law. The effect of the norms gr. procedural law in space. Fed. status of the order about gr. legal proceedings in courts of general jurisdiction predetermine its effect throughout the territory of Russia. Restrictions on the territorial effect of the law can only be introduced by the Federal Law. This situation is not typical for procedural legislation.

3. Forms of protection of subjective rights and interests of citizens and organizations

Underform of protection of subjective rights refers to a certain procedure for protecting rights by a person independently or by a certain body for resolving civil cases.

Forms of protection of subjective rightsare:

    self-defense;

    settlement of a legal dispute;

    administrative protection;

    judicial (procedural) protection.

Self-defense- this is an effective form of protection of subjective rights, in which the interested person takes the necessary human rights actions (Article 14 of the Civil Code) without normatively defined regulations in the form of measures aimed at suppressing unlawful actions. It should be taken into account that self-defense contains the danger of unlawful actions on the part of the defending subject, who applies measures that do not comply with the law, or protects rights that do not belong to him. Methods of defense must be proportionate to the violation (Article 14 of the Civil Code). Self-defense is justified in cases of necessary defense (Article 1066 of the Civil Code) and extreme necessity (Article 1067 of the Civil Code). Self-defense can be in the form of the creditor writing off the amount of debt without acceptance from the debtor’s bank account (clause 2 of Article 854 of the Civil Code).

Settlement of a legal dispute- this is an independent form of legal protection, which is characterized by simplicity and expediency when carrying out joint actions of the disputing parties in order to eliminate the conflict that has arisen. This applies to a greater extent to legal entities making efforts to maintain the necessary legal relations with counterparties. Settlement represents certain actions of a person whose rights are disputed or violated. They consist in bringing the claims to the attention of the other party in writing and within the period established by law. The second party, having examined the application and the documents attached to it, must satisfy the claim or provide a reasoned refusal to do so. The settlement of a legal dispute is characterized by such mutual actions as the exchange of information by telephone or via electronic media, meetings with the aim of developing informed and mutually beneficial solutions. It should be borne in mind that if one of the parties to the dispute arises individual, then filing a claim will not be necessary.

Administrative protection- this is legal protection provided for by law, carried out by government bodies or local self-government bodies, which are competent, without calling interested parties and outside of a detailed procedure, to make a decision on restoring a violated right or eliminating legal uncertainties.

In accordance with Part 1 of Art. 45 of the Constitution, state protection of the rights and freedoms of man and citizen in the Russian Federation is guaranteed.

Local self-government bodies have the right to recover damages from organizations for damage to trees and other plantings. The Central Bank of the Russian Federation and its local branches, when exercising control, can use direct (indisputable) debiting of the debtor’s amount from his bank account.

A decision made administratively can be appealed to the court (Part 2 of Article 11 of the Civil Code).

Judicial protection(procedural form of protection) has the following features:

    carried out only by a court vested with a special function of administering justice;

    is carried out on the basis of the application of civil, labor, family and other branches of law in the manner and strict consistency established by law;

    carried out in a procedural form established by law, guaranteeing the legality and validity of the decision;

    is carried out with the participation of the parties and other interested parties, which helps to increase the effectiveness of the decision;

    governed by civil procedural law;

    carried out by independent and impartial judges.

Decisions and actions (inaction) of government bodies, compulsory health insurance, public associations and officials can be appealed to the court (Part 2 of Article 46 of the Constitution).

No one can be deprived of the right to have his case considered in the court and by the judge to whose jurisdiction it is assigned by law.

The right of every person exists only within the framework where it does not intersect with the rights of other people. It follows that even minor actions that go beyond the normal legal regime of the subject may lead to a violation of the rights of another person. This issue has worried lawyers for many centuries in a row. It has always been not only popular, but also relevant, since legal relations in the private branch of law never stand still. They develop parallel to the process of human evolution. Today, the protection of civil rights is an entire institution that has internal structure, features, signs, etc.

It should be noted that the main methods of protection that can be seen today in the civil legislation of the Russian Federation were formed back in the days Ancient Rome. Of course, modern legal norms regulating the protection of civil rights differ in many ways from ancient Roman ones. However, they adopted the basic idea and features obtained as a result of the activities of Roman jurists. Today, the institution of protection has been so formed that the methods have begun to be combined into special forms, which we will talk about in this article.

Legal regime of protection in Ancient Rome

Before understanding the essence and listing the forms of protection of civil rights, you should plunge into the history of the emergence of this institution. It has been known since the days of Ancient Rome. There was originally no unified Roman law that we study today. There were separate norms, morals and customs. One of them is the priority of strength. The point is that the one with the most power was always right. In other words, any dispute was resolved through bloodshed. Naturally, this could not be allowed in the civilized Roman society of that time. Therefore, standards were created that clearly regulated various shapes protection of civil rights.

Types of protection of civil interests in Ancient Rome

With the development of classical private Roman law, special moves protection of subjective interests. The method of force has completely outlived its usefulness and has been replaced by a lawsuit. Most disputes in Rome were resolved through legal proceedings. Today known following methods protection of civil rights in trial Ancient Rome:

  1. Claims against person and thing.
  2. Claim of "good conscience".
  3. Direct claim.
  4. Conditioning.
  5. Claim by analogy.
  6. Fiction claim.

The difference between all claims is their subject and legal nature. All civil rights are distributed among themselves, which means that their protection was carried out different ways. Subsequently, it began to acquire various legal aspects, which over time turned this minor category into an entire institution.

Institute of Protection in Modern Law of the Russian Federation general statements

As mentioned earlier, the protection of civil rights is an entire institution that is included in the modern civil legislation of the Russian Federation. It is maximally adapted to the state legal climate, the level of legal culture of the population, and the moral principles of society. Forms and methods of protecting civil rights are structural elements institutes that have various ways manifestations, but the same goals. The main source of the institution is the Constitution of the Russian Federation, and the main legislative act is the Civil Code of the Russian Federation.

By improving the efficiency of the civil block, scientists divided the institute into two branches - jurisdictional and non-jurisdictional. Over time, these industries began to be called forms, as they are implemented in different procedural and procedural ways. Nevertheless, absolutely all forms of protection of civil rights are aimed at protecting and, in some cases, restoring the interests and legal capabilities of subjects of the civil bloc.

Jurisdictional form of protection

The jurisdictional form of protection of civil rights is the opportunity to protect one’s rights with the help of specially authorized government bodies. Thus, interaction between the citizen and the state occurs. By protecting with the help of a jurisdictional form, a person can exercise his right to demand help from the state, and it, in turn, is the duty to protect citizens. The jurisdictional form is divided into two types: administrative and judicial. In each case, a person interacts with government agencies differently, which is manifested in the order and manner of implementing one or another jurisdictional form.

Judicial form of protection of civil rights

Article 10 of the Civil Code of the Russian Federation states that everyone can go to court in order to protect their violated rights and interests. The judicial form itself is enshrined in Article 11 of the Civil Code.

It specifies the authorities (courts) that are authorized to protect civil interests. The norm is a guarantor of the functionality of the protection institution as a whole. This right can be exercised by filing a claim, after which the norms of not only civil, but also procedural law come into force. A claim is the main connecting legal category that unites the institution of protection of civil rights and the sphere of procedural activity.

Also, in the most judicial form, the fundamental constitutional right of every person to the protection of his rights (not only civil) is manifested in judicial procedure. There are many defenses included in the court form. Let's consider them further.

Methods of judicial protection

In total, there are 12 methods of judicial protection of civil rights, specified in Article 12 of the Civil Code of the Russian Federation, namely:

  • recognition of rights and interests;
  • recovery legal status, regime, situation that existed before the violation;
  • recognition of any transaction as invalid;
  • recognition of the invalidity of the meeting's decision;
  • recognition of an act of an authority as invalid;
  • compensation for losses incurred;
  • claiming a penalty;
  • compensation for moral damage;
  • complete termination of the legal relationship;
  • non-acceptance of the act by the court;
  • any other methods that may be provided by law.

There is also a method of self-defense, which, in essence, represents a non-jurisdictional form of protecting the rights and interests of citizens. As for all the methods presented above, they can be carried out exclusively in court.

Administrative form

In the administrative procedure, everyone can defend their violated rights and interests only in in some cases, since there are strict regulations for this form of protection of subjective civil rights and interests. Administrative method exists only if the authorized government body takes measures to protect civil rights. This, in turn, makes it possible to challenge his decision by appealing to a higher authority. Government bodies that can implement protective measures include: Federal service for intellectual property, patents and trademarks, Federal Antimonopoly Service, etc.


The administrative form is ineffective, since any decision of a certain executive body can be appealed in court.

Non-jurisdictional form

In the theory of civil law, there is such a thing as non-judicial forms of protection of civil rights. Very often they are identified with a non-jurisdictional form, which is fundamentally wrong. The non-jurisdictional form implies complete absence any role of the state in the process of regulating and implementing the protection of civil rights. At the same time, the non-judicial form includes an administrative procedure for protection, in which executive bodies play a fairly important role. As for the non-jurisdictional form, it is practically not developed in modern Russian civil law. It is only slightly enshrined in the article of the Civil Code, which regulates the self-defense of civil rights and interests. Let's consider its features.

Self-defense: legal features

Article 14 of the Civil Code of the Russian Federation establishes the ability of any person to exercise self-defense of his civil interests. The same article states that it must be proportionate and in no case can go beyond the scope of actions that are necessary to stop the violation of the law. The problem is that the legislator established the rule on self-defense, but did not give a clear explanation of this legal phenomenon. IN Civil Code There are no norms that allow us to talk about its methods. In the theory of civil law, there are constant discussions about the existence of a non-jurisdictional form and self-defense as its main element.

Conclusion

So, in the article we found out what the protection of civil rights is. The concept and forms of this civil law structure allow us to see the difference in the ways of implementing the institution of protection. In conclusion, the following fact should be noted. Contrary to all existing opinions and theories, the main forms of protection of civil rights are divided into two main elements, although this may be completely inappropriate, given the current legal climate of the Russian Federation.

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