CIVIL LIABILITY AND RELATED CATEGORIES IN THE CONTEXT OF THE RIGHTS PROTECTION

Abstract

This article is dedicated to the research of legal practice, which remains controversial and always new, namely, of the problem of civil liability as the central institution, which always manifests itself in the mechanism of legal regulation of social relations and the subject to civil law. The article analyses the problems of the nature and scope of civil liability, its place and role in the process of implementation of obligations, duties, sanctions, and measures of protection of subjective civil rights. Topicality, novelty and practical importance of a science-based solution to the problem of civil liability, as defi ned by frequent examples in scientifi c literature, attempts to theoretically justify the refusal from the institute of civil liability and to critically refl ect the conditions of bringing to responsibility, dictated by the terms of the modern civil law turnover. It also shows the formation of new conceptual approaches to justifi cation of responsibility, and prevents mixing them with other means of protection of subjective civil rights. The article reveals the content of the concept of civil liability, in the context of the concepts that are closely related to it. A variety of points of view on the nature of civil liability, characterizing its constitutive attributes, are largely explained by different tasks that are put forward to investigators. In this regard, on the basis of current legislation and scientifi c literature on the subject of the present study, the article provides not only the analysis of the nature, characteristics, conditions of occurrence of civil liability, but also identifi es the features characteristic of the related categories (obligations, responsibilities, sanctions, enforcement, measures of protection of subjective civil rights), and the constitutive features, which in combination characterize both the nature and the purpose to ensure normal and stable operation of the civil circulation, as well as the author’s understanding of the discussed problem. It should be noted that regarding the question of enforcement, the authors believe that its character is the quality of any authorisation of a legal norm, but not every authorisation is a measure of legal liability; and the authors substantiate a broader understanding of civil liability. At the same time, it is not about the sides or aspects of civil liability, but about various forms of its realization both negative and positive. The difference among the concepts of debt, obligation, responsibility and liability is of fundamental importance. Since the basis of their appearance is based on different legal facts, the equation of debt and obligation on the one hand, and responsibility on the other hand are not allowed. It should be emphasized that all obligations, without any exception, are proprietary in nature. It seems that in recent years the causing theory is gaining more and more recognition, getting clear expression, especially in the international legal acts and acts of private law codifi cation. This theory is based on the position that the responsibility is a forced collection of existing debt, including the debt for damages and penalties. In this case the debt recovery does not require the establishment of a debtor and the proof of guilt. To do this, failure to execute by the debtor his liability for any reason is suffi cient. The concepts of “authorization” and “responsibility” are of subordination and not of coordination character. The fi rst one is broader than the second one. In the article measures of civil liability are determined as a special variety of authorisations, in practice characterized by the possibility of mainly negative consequences for the offender (but not excluding also positive form of enforcement of the civil liability and in this context the consequences being of positive nature) that apply for the violation of duties. The authors propose to distinguish between static and dynamic (in the application stage) civil liabilities.