SOME PROBLEMS OF THE RIGHT TO PROTECTION IN CIVIL LAW

In the modern legal world there is no holistic concept regarding the right to protection, even such basic categories as the definition of this legal phenomenon are absent. We have identified a bunch of problems related to this issue. Firstly, this is the problem of the correlation of the subjective right with the right to protection. Regarding the solution of this issue, there are two concepts that have a difference regarding the relationship between the right to protection and subjective right. Secondly, the problem of the concept of protection in the systematics of civil law, to resolve this problem, we proposed our own definition. The third problem is the relationship between the concepts of form and method of protection, here it is necessary to dwell on the question of which concept has a greater volume and includes a smaller concept, or they are equivalent. Next, we consider approaches to the gradation of existing methods of protection. An interesting and ambiguous question is posed about the reverse effect of procedural law on the material. Further, the general theoretical problems of the right to protection are illustrated and detailed with respect to a specific method, namely, the claim protection. Indicates approaches to the concept of the claim, the subject of the claim. The problem of violation of the rights of the claimant and the respondent is revealed. The prevailing method of protection is specified by a citizen or legal entity, or the method that the court deems necessary, regardless of the opinion of the parties. Does a lawsuit be individualized by the chosen citizen as a defense? Or there is no need to choose a method, because as it is written in the Code of Civil Procedure, the statement of claim does not need to refer to the article of the Civil Code of the Russian Federation. Next, we consider the problem of violation of the court of interest is not the one that was needed by one of the parties. It indicates the possible reverse impact of procedural law on the material.

the category of the right to protection, subjective right and the right to protection, the concept of protection in the systematics of civil law, the form and method of protection, the claim method, protection of the interests of the defendant, protection by the court of unnecessary interest, doctrine and judicial practice of protection.

Loginov A. S. Some problems of the right to protection in civil law // Business. Education. Law. 2019. No. 1 (46). Pp. 389–393. DOI: 10.25683/VOLBI.2019.46.125.