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D.N. Karkhalev

Restoration of Violated Civil Rights out of Court

2020. No. 3. P. 90–111 [issue contents]
The article deals with the current problems of civil rights and liability protection in theimplementation of the protective function of civil law in contractual and non-contractualrelations with the help of self-defense measures and measures of operational impact. The author believes that the main feature of self-defense measures is the compensatorynature. It is expressed in the fact that self-defense measures are applied in the eventof a violation of subjective civil law (or when there is a threat of its violation) in order toprotect the violated right. In connection with these features, self-defense is classified asa means of protecting civil law. The article contains a conclusion that could be considereddisputable attempts of attributing to this method of protection of the right of action, whichconsists in the installation of alarms, locks, marking things, etc. In such a situation, thereis no violation of civil law. The corresponding actions are aimed at preventing violationsof civil rights, are not a measure of influence on a person and are implemented within theframework of a regulatory legal relationship. The necessary defense is used by civil lawsubjects to protect their personal non-property rights or property rights in a situation wherethe violator tries to destroy, damage or take possession of the property of the holder ofthe right to self-defense. The owner or holder of a non-property right has the right to takeindependent actions to protect their rights in the event of an unlawful encroachment onthem. The latter is a legal fact that leads to the emergence of a protective relationship forthe implementation of the necessary defense. Actions in conditions of extreme necessityare also implemented within the framework of a protective legal relationship. This legalrelationship is aimed at ensuring the protection of absolute civil rights in conditions ofextreme necessity caused by circumstances that do not depend on the will of the person,or the behavior of the subject of civil law (lawful or illegal actions). The law allows in sucha situation, in order to protect a more important good, the possibility of causing lesssignificant harm. A protective legal relationship for the implementation of this measure ofself-protection occurs if there is a real threat to the life, health, property of the harmer ora third person, which must be protected from destruction or damage.
Citation: Karkhalev D. (2020) Vosstanovlenie narushennykh grazhdanskikh prav vo vnesudebnom poryadke [Restoration of Violated Civil Rights out of Court]. Pravo. Zhurnal Vysshey shkoly ekonomiki, no 3, pp. 90-111 (in Russian)
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