Actions to restore violated rights. Protection of constitutional rights and freedoms of man and citizen in the Russian Federation

This is a natural and normal way to protect violated rights, and it is named in Article 12 of the Civil Code of the Russian Federation. Restoration of the right is achieved by various legal means: recognition of violated law, restoration of the provision that existed before a violation of the right, recognizing an arbitrary transaction invalidation, recognition of invalidation of the state authority or body local governments, awarding to the performance of responsibilities in kind, termination or change of legal relationship.

Recognition of law as a method of protection is possible in relation to many violated civil rights and is often used in practice, especially citizens. Examples are judicial claims on the recognition of ownership of house-building when it acquisition and inheritance, the claims of citizens about the recognition of their authorship and the refutation of their disturbing, dignity or business reputation Information, lawsuits of legal entities on the protection of their business reputation (PP. 1 and 7 of Article 152 of the Civil Code of the Russian Federation). In case of non-fulfillment of the decision on the refutation of incorrect information on the intruder, a fine may affect.

Restoration of violated rights and awarding to the execution of duties in Nature theoretically should give the victim the natural and most complete legal protection, but the practical implementation of such measures is often impossible or causes difficulties. Replace the dead individually-defined, and the more unique thing is impossible, as well as restore serious damage to human health. In these cases, monetary compensation should be applied.

As for the requirements of the fulfillment of obligations in kind, which are often declared in violation of sales contracts, it should be borne in mind that new civil legislation limits the scope of the principle of real execution of the contract only by cases improper performance And as a general rule does not spread it in cases of complete non-fulfillment of the obligation (PP. 1 and 2 of Article 396 of the Civil Code of the Russian Federation). Moreover, arbitrage practice The line adheres to that when making a decision on coercion to fulfill the obligation in nature, the court should figure out the possibility of real execution and determine the order, mechanism and deadlines for the fulfillment of the obligation in nature. This limits the scope of practical use of requirements aimed at restoring the initial position.

Requirements for invalidation Act state Body or local governments are based on the provisions of Part 2 of Article 46 of the Constitution of the Russian Federation, according to which the decisions and actions (or inaction) of such bodies, as well as public associations and officials Can be appealed to the court. The Law of the Russian Federation of April 27, 1993 is also valid, "On appealing to the court of action and decisions that violate the rights and freedoms of citizens", which allows for the judicial appeal of any actions (inaction) of state and municipal organsviolating the rights and freedoms of citizens.

These fundamental constitutional provisions are formulated in Art. The 13 Civil Code of the Russian Federation is more fully and specifically indicating the legal consequences of recognizing the decisions of the named authorities invalid. In these cases, violated right is subject to restoration and protection in accordance with those methods provided for in Art. 12 Civil Code of the Russian Federation. In particular, the Russian Federation, its reimbursement or municipality is obliged to compensate for the losses caused by the illegal solutions of their bodies (Art. 16 of the Civil Code of the Russian Federation).

In these articles Civil Code The Russian Federation does not indicate the admissibility of appealing to the court of solutions of public organizations, as well as bodies of management of economic societies and partnerships ( general meetings members, board of directors, general Director and etc.). Judicial practice is on the way of applying in these cases the general norms of the GC on the admissibility of appeal to the court.

For appealing to the court of acts of state bodies and public organizations, a certain time has been established. According to Art. 256 Civil Procedure Code of the Russian Federation A citizen is entitled to apply to court with a statement within three months from the day when he became aware of the violation of his rights and freedoms. The same period is provided for paragraph 4 of Art. 198 Arbitration Procedure Code of the Russian Federation, and it can be restored by the court in respect of the causes of his pass. 6

This is a natural and normal way to protect violated right, and it is named in Art. 12 GK first. Restoration of the right is achieved by various legal means: Recognition of violated right, restoring a position that existed before violation of the right, recognition of the operational transaction invalidation, recognition by invalidation of the state body or local government, awarding the duty in kind, termination or change of legal relationship.

Recognition of law as a method of protection is possible in relation to many violated civil rights and is often used in practice, especially citizens. Examples are judicial claims on the recognition of ownership of the house-building when it acquisition and inheritance, the claims of citizens about the recognition of their authocution and the refutation of their honor, dignity or the business reputation of information, law enforcement officials on the protection of their work-howl reputation ( PP. 1 and 7 tbsp. 152 GK). In case of non-fulfillment of a disinterested solution on the refutation of incorrect information on the intruder, a penalty may be affected (Article 85 of the Act on Execution Production).

Restoration of violated rights and awarding to the execution of duties in Nature theoretically should give the victims of the natural and most complete legal protection, but the practical implementation of such measures is often impossible or causes difficulties. Replace the dead individually-defined, and the more unique thing is impossible, how to restore

serious human health damage. In these cases, monetary compensation should be applied.

As for the requirements of the fulfillment of the obligation in nature, which are often declared in violation of sales contracts, it should be borne in mind that the new civil legislation of OG-Ranishes the scope of the principle of real execution of contracts only by cases of improper performance and general rule Does not spread it in cases of fulfillment of obligations of obligation (PP. 1 and 2 tbsp. 396 GK). In addition, judicial practice adheres to the line that, when making a decision on a coherence, the court must figure out the possibility of real execution and determine the procedure, mechanism and deadlines for the fulfillment of the obligation in nature1. This limits the sphere of the practical use of the requirements aimed at the pre-becoming of the initial position.

Requirements for invalidation of the state of the state body or local government are based on the provisions of Part 2 of Art. 46 of the Constitution of the Russian Federation, according to which the decisions and actions (or inaction) of such bodies, as well as public associations and officials, can be appealed to the court. The law of the Russian Federation dated April 27, 1993, "On appealing to the court of action and decisions that violates the rights and freedoms of citizens", which allows for judicial appeal of any actions (vast) of state and municipal authorities, which violates VA and freedom of citizens.

These fundamental constitutional provisions formulate-vanya in Art. The 13 GC is more fully fully indicating the legal consequences of recognizing the decisions of the named authorities invalid. In these cases, violated right is subject to restoration and protection in accordance with those methods provided for in Art. 12 GK. In particular, the Russian Federation, its corresponding sub-angle or municipality is obliged to compensate for the losses caused by the illegal solutions of their bodies (Art. 16 of the Civil Code).

There are no indication of the procedures for the admissibility of appealing to the court of solutions of public organizations, as well as the management bodies of economic societies and partnerships (general meetings of members, board of directors, general director, etc.).

See Bulletin of the Russian Federation. 2003. No. 3. P. 52. Vedomosti of the Russian Federation. 1993. No. 19. Art. 685.

Judicial practice is on the way of applying in these cases the general norms of the GC on the admissibility of appeal to the court.

For appealing to the court acts of state bodies and general organizations established certain time. According to Art. 256 GPC Citizen has the right to apply to the court with a statement in the Three months from the day when he became aware of the violation of his rights and freedoms. The same period is provided for paragraph 4 of Art. 198 APK, and he can be restored by the court in respect of the causes of his pass.

Forms and ways to protect rights and freedoms

Under the form of protection is a complex of internally agreed organizational measures to protect subjective rights and protected interests.

Distinguish two main forms of protection:

1) The jurisdictional form of protection is the activities of authorized bodies for the protection of violated or disputed subjective rights. The essence is expressed in the fact that the face, right and legal interests which is broken unlawful actions, refers to protecting against state or other competent authorities (in court, arbitration, arbitration court, superior instance, etc.), which are authorized to take the necessary measures to restore the violated law and suppress the offense.

As part of the jurisdictional form of protection, in turn, the general and special procedures for the protection of violated rights are allocated. As a general rule, the protection of civil rights and protected interests is carried out in judicial order. By agreement of the participants civil legal relationship The dispute between them can be transferred to the resolution of the Arbitration Court.

As a means of judicial protection of civil rights, freedoms and protected interests, acts as a general rule, i.e. Failing to the court requirement for the administration of justice, on the one hand, and facing the defendant material and legal requirement to fulfill the obligations lying on it or recognizing the availability or lack of legal relations, on the other hand.

Special procedure for the protection of civil rights and protected interests in accordance with Art. 11 GK should recognize the administrative procedure for their protection.

2) The non-revocional form of protection covers the actions of citizens and organizations to protect civil rights, freedoms and protected interests that they are committed independently without applying for help from state and other competent authorities. In the Civil Code, these actions are combined into the concept of self-defense of civil rights and are considered as one of the ways to protect civil rights (Article 12 of the Civil Code). It is impossible to agree with these qualifications in scientific plan, as they are mixed with close, but not coincident ones - the method and form of protection of civil rights. Self-defense of civil rights from the position of the theory is the form of their protection, allowed when the victim has the capabilities of the legitimate impact on the violator, without resorting to the assistance of judicial or other law enforcement. Within the framework of this form of protection, the winner of the violated or disputed right can use various ways of self-defense, which should be proportionate to the violation and not go beyond the actions necessary for its preventing (Article 14 of the Civil Code). The permissible measures of self-defense include, in particular, the actions of the person in the state of the necessary defense (Article 1066 of the Civil Code) and of course (Article 1067), application to the violator of the so-called operational sanctions, such as the refusal to make certain actions in the interests of a faulty counterparty (refusal to pay, from the transfer of the thing, etc.), the commissioning of the work that did not make a debtor, another person for Debtor's account (Art. 397 GK) and some other actions.

Protection of civil rights and protected interests is ensured by the use provided by law protection methods.

Procedure for the protection of rights and freedoms

As part of the jurisdictional form of protection of civil rights allocated (art. 11 of the Civil Code of the Russian Federation):

1. General (judicial) Procedure for the protection of violated rights;

2. Special (administrative) Procedure for the protection of violated rights.

As a general rule, the protection of civil rights and protected interests is carried out in court. By agreement of the participants of civil legal relations, the dispute between them can be transferred to the resolution of the Arbitration Court. As a means of judicial protection of civil rights and protected interests, according to the general rule of law, i.e. Failing to the court requirement for the administration of justice, on the one hand, and facing the defendant material and legal requirement to fulfill the obligations lying on it or recognizing the availability or lack of legal relations, on the other hand. In some cases, a judicial protection means are a statement, in particular on special production, or a complaint, in particular when contacting Constitutional Court RF. Judicial or how often it is called orders order Protection applies in all cases except those that are emphasized in the law.

Special procedure for the protection of civil rights and protected interests in accordance with Art. 11 GK should recognize the administrative procedure for their protection. It is used as an exception from general rules. Only in the laws directly indicated in the law. In this order, there is, for example, the protection of the rights and legitimate interests of the participants civil turnover From the actions of those business entities that abuse their dominant position in the market of a certain product or carry out unscrupulous competition. A means of protecting civil rights carried out in an administrative procedure is a complaint submitted to the appropriate management authority by the person, the rights and legitimate interests of which were injured by the offense.

Any decision taken on the complaint of the victim in an administrative manner may be appealed in court (Art. 46 of the Constitution of the Russian Federation, Part 2 of Art. 11 of the Civil Code). This, in particular, means that the election of the injured administrative procedure for the protection of violated law does not deprive its possibility of subsequent, and sometimes simultaneous appeal on the same issue to the court.

Ways to protect civil rights

The method of protection of civil rights can be defined as the permissible actions or inaction (or a totality) aimed at the guarantee of the law or the agreement aimed at preventing the prevention of the violation of the rights, as well as their recovery. Let us analyze more detail in Art. 12 Civil Code of the Russian Federation Specific ways of protecting civil rights.

The first of them is called recognition of subjective right. The need for this protection method occurs when the presence of a certain subjective right is questioned, subjective right is disputed, denied or there is a real threat to such actions. Often, the uncertainty of subjective right leads to the impossibility of using it or at least makes it difficult to use. For example, if the owner of a residential building does not have right-ending documents on him, he cannot sell this house, give, exchange, etc. Recognition of the right is just a means of eliminating uncertainty in the relationship between subjects, the creation of the necessary conditions for its implementation and preventing third parties to the actions that impede its normal implementation. The recognition of the right as the means of its protection by its very nature can be implemented only in jurisdictional (judicial) order, but not by the claimant of any independent one-sided action. The claimant's claim for recognizing the right is not addressed to the defendant, but by the court who should officially confirm the presence or absence of the plaintiff of controversial law.

In most cases, the requirement for recognizing subjective right is the necessary prerequisite for the application of otherwise provided by Art. 12 Civil Code of the Russian Federation protection methods. For example, to restore the situation that existed before the violation, or to force the debtor to fulfill the duty in kind, the plaintiff must prove that it has the relevant right, whose protection is achieved. However, it is often a requirement to recognize the right to have an independent value and is not absorbed by other methods of protection. So, the recognition of the right is a common way to protect the right of ownership, other absolute (the right of economic management, the right of authorship, etc.) and relative rights.

Restoration of the provision that existed before violation of law, as an independent method of protection applies in cases where the violated regulatory subjective right as a result of the offense does not cease its existence and can be actually restored by eliminating the effects of the offense. This method of protection covers a wide range of specific actions, such as returning the owner of his property from someone else's illegal ownership (Art. 301 of the Civil Code of the Russian Federation), the demolition of a residential building or other structure, which is unauthorized land plot (Art. 222 of the Civil Code of the Russian Federation) and others. Restoration of the provision that existed before violation of law can occur by applying both jurisdictional and non-revocional protection procedures.

A common way to protect subjective rights is to prevent action that violate the right or creating a threat to its violation. Like the recognition of the right, this method of protection can be used in conjunction with other methods of protection, such as recovery of losses or penalties, or have an independent value. In the latter case, the interest of the owner of subjective right is expressed in to stop (stop) a violation of his right to the future time or eliminating the threat of its violation. For example, the author of the work that is illegally used (prepares for release without his knowledge, is distorted, subjected to alteration, etc.) by third parties, may require to stop these actions, without nominating any other, for example properties. Often, the purpose of this protection method is to eliminate obstacles to implement the right created by the violator. This usually takes place when the offense is grather, which in itself does not deprive the face of subjective law, but it prevents him from using it normally. So, the owner of the property in accordance with Art. The 304 Civil Code of the Russian Federation may require the elimination of any violations of his right, at least these violations and were not connected to the deprivation of ownership.

Recognition of an arbitrary transaction invalid and the use of the consequences of its invalidity, the use of the consequences of the invalidity of a negligible transaction are special cases of the implementation of such a method of protection, as the restoration of the provision that existed before violation of the right is to coincide with it legal essence. This is the most obvious when bringing the parties who have committed an invalid transaction, in the original position. But even when, in accordance with the law, confiscation measures are applied to one of the parties in the form of recovery of the entire state received or due to the transaction in the income into the income, the rights and legitimate interests of the other side are protected by recovery for it that existed before violation of the right.

Restitution is the main property consequence of invalidity of transactions. In paragraph 2 of Art. 167 GK provides for two mechanisms for the realization of the rights and obligations of the parties of an invalid transaction to return the property that served as the subject of execution on such a transaction: firstly, this mechanism of returning individual-specific things transmitted in the execution of an invalid transaction, conventionally referred to as the restitution of ownership, and secondly , this is the mechanism of returning things defined by generic signs, money, valuable papers on bearer transmitted in the execution of an invalid transaction and implementation monetary compensation If it is impossible to return the resulting in kind, including when the property obtained is expressed in the use of the property performed or the service provided.

With bilateral restitution, each part of an invalid transaction is obliged to return another all received by the transaction, and if it is impossible to return the property obtained in nature (including when the property obtained is expressed in the use of the property or the service provided) to reimburse its value in money. For example, when making a contract for the purchase and sale of hours, the clock should be returned to the seller, and the money to the buyer, i.e. The parties are returned to the position in which the transaction was held (initial legal status). According to paragraph 2 of Art. 167 of the Civil Code of the Russian Federation, bilateral restitution occurs in all cases of invalidity of the transaction, if the law does not indicate other property consequences.

Bilateral restitution is provided for transactions perfect: a) with violation of the form; b) with violation of the rules about state registration transactions; c) with way out of legal capacity legal entity; d) with exit beyond the limitations of authority to make a transaction; e) transactions committed incapable citizens; young who underwent fourteen years of age; minors aged from fourteen to eighteen years; citizens limited in legal capacity; a citizen who is not able to understand the meaning of his actions and lead them; Under the influence of error having essential importance. (e) When recognizing the transaction is invalid, as perfect for the purpose of, nasty the basics of law and order and morality, if none of the parties allowed intent.

Other legal consequence The invalidity of the transaction is one-sided restitution, which consists in the fact that only one side of the transaction (conscientious) is fulfilled back. When recognizing invalid transactions concluded under the influence of deception, violence, threats, a malicious agreement of the representative of one side with the other side or during the coincidence of severe circumstances, the victim is returned to the other party all received by the transaction, and if it is impossible to return the value obtained in Nature, its value in money is reimbursed . The property obtained by the transaction by the victim from the other side, as well as the refundable referred to him, refers to the income of the Russian Federation. If it is impossible to transfer property to the state's income in nature, its value in money is charged. In addition, the victim is reimbursed by the other party caused to him the real damage (paragraph 2 of Art. 179 of the Civil Code). As can be seen, the unfair side fulfilled back does not receive. It is transmitted to the state's income. If the unfair side did not have time to fulfill the transaction, the state of state is transmitted to what is subject to execution. Thus, a confiscational sanction applies against the unfair side. One-sided restitution applies to transactions performed with the aim of, nasty the basics of law enforcement and morality, if only one side was guilty.

As a restitution, additional property consequences are provided: reimbursement of expenses, the value of lost or damaged property. 1) the recognition of an invalid transaction concluded with a citizen recognized as incapable, the capable party, in addition to the return received by the transaction, should reimburse its counterparty for the real damage to them, if she knew or had to know about its incapacity (paragraph 1 of Art. 171 of the Civil Code); 2) in cases of recognition of invalid transactions committed by juvenile under 14 years; minors aged 14 to 18 years; citizen limited in legal capacity; a citizen who is not able to understand the meaning of its actions - similarly (paragraph 1) the capable party except for the return received by the transaction should reimburse its counterparty also to them the real damage, if she knew or had to be aware of his incapacity; 3) when recognizing the invalidity of transactions committed under the influence of deception, violence, threats, a malicious agreement of the representative of the one party on the other side, as well as the transaction that the person was forced to commit due to the progress of severe circumstances on extremely disadvantageous conditions than the other side took advantage ( Babonal transaction) may be recognized by the court invalid on the claim of the victim. If the transaction is recognized as invalid by one of the above grounds, then the victim is returned to the other party all received by the transaction, and if it is impossible to return the value received in nature, its value in money is reimbursed. The property obtained by the transaction by the victim from the other side, as well as the refundable referred to him, refers to the income of the Russian Federation. If it is impossible to transfer property to the state's income in nature, its value in money is charged. In addition, the victim is reimbursed by the other party caused to him real damage.

To the means of protecting the rights of a citizen, Article 12 of the Civil Code of the Russian Federation also refers compensation not only to the property, but also moral harm, understanding physical and moral suffering under it. Compensation of moral damage is a monetary compensation of physical and moral suffering, so this method is applicable only to protect the rights of a citizen.

With regard to the protection of the rights and legitimate interests of legal entities, the norms of civil law on compensation for moral damage are not applied. Legal entity can use this way of protection as a claim in court of Arbitration In defense of business reputation. Thus, a legal entity is entitled to judicially require the media to refute information that disappoints its business reputation, as well as compensation for damages.

Another way to protect civil rights is the recognition of an invalid state of the state body or local government. Not normative act state body or local government, and in cases stipulated by law, also a regulatory act that are not relevant to law or other legal acts And the interests of a citizen or a legal entity protected by law are violating civil rights and legal entities can be invalid by the court. In the case of recognition by the Court, the act invalid the violated right is subject to restoration or protection in other ways.

Article 46 of the Constitution of the Russian Federation provides a citizen and legal entity the right to appeal against the decision and action (or inaction) of state authorities, local governments, public associations and officials. Judicial control The legality of acts and actions in the field of management, the protection of civil rights entities from the arbitrariness of state bodies, local governments and their officials serves one of the guarantees of the implementation and compliance with civil rights.

Article 13 of the Civil Code of the Russian Federation develops the constitutional norm, provides a court of law to recognize non-relevant management acts invalid. The ability to appeal to the court illegal acts and actions in the field of management Article 12 of the Civil Code of the Russian Federation treats as a way to protect civil rights. The judicial control over the legality of acts and actions in the field of management is more effective compared to administrative, since the court is independent and subject only to the law, trial It makes it possible to more fully and vow to identify the actual relationship and take the reasonable and legal decision.

Awarding to the performance of duty in nature, often referred to in the literature to still real execution, as an independent way to protect civil rights is characterized by the fact that the violator at the request of the victim should really perform the actions that it is obliged to commit the obligations that binds the parties. Performance of the duty in nature is usually opposed to the payment of monetary compensation. It is quite obvious that the interest of the victim does not always be satisfied with such a replacement. He is entitled to insist that the counterparty actually makes actions that are the subject of the relevant obligation, for example, actually handed over the thing, fulfilled the work, provided the service, etc. Only in cases where the real benefit has become objectively impossible either undesirable for the victim, this method must be replaced by a different means of protection for the choice of the victim.

The self-defense of civil rights is allowed. Methods of self-defense should be proportionate to the violation and not go beyond the actions necessary for its preventing. Self-defense is one of the ways to protect civil rights. It is characterized by the fact that the subject civil law Protects itself with their own actions. Compared to other means of protection, this is protection without contacting the court or other body that protects civil rights. Article 14 of the Civil Code allows the use of this method if there is a set of three conditions: violations of the law or the possibility (danger) of its violation; need to restrain (prevent) violations; Application of measures corresponding to the nature and content of the offense. These conditions are responsible for the protection of rights and interests with its own forces when seizing property and other unlawful actions violator. The actions of the owner of the right to defense of personal and property rights are not recognized by illegal, if they are committed in the state of the necessary defense. It is possible to use self-defense measures and in a state of extreme necessity, which Art. 1067 of the Civil Code of the Russian Federation treats as a danger threatening the owner of rights or other persons, if this danger in these circumstances could not be eliminated by other means. Such actions, as well as actions in the state of the necessary defense, the Civil Code of the Russian Federation does not recognize the unlawful. However, if harm is due to the urgest need, then it is usually subject to refund. The self-defense action is in a state of emergency may be recognized if the value of protected rights exceeds the damage caused.

Another way to protect civil rights is compensation for damages. A person whose right is violated may require full compensation for damages caused to him if the law or contract is not provided for damages in a smaller amount. Under losses are understood by the costs that the person whose right is broken, produced or should produce to restore the violated right, spending or damage to his property (real damage), as well as non-trained income that this person would receive under normal civil turnover conditions if His right was not broken (missed benefit). If the person who violated the right, received due to this income, the person whose right is violated, has the right to demand compensation along with other losses of missed benefits in the amount of not less than such income.

A peculiar way to protect civil rights and protected interests is the termination or change of legal relations. So, the buyer in case of a significant violation of the quality of the goods is entitled to or refuse to fulfill the sales contract and demand the return of the money paid for the goods, or to demand the replacement of the goods inadequate quality by goods, relevant to the contract (clause 2 of Art. 475 Gq Rf); Recipient of rent with a substantial violation by the renter of the rent of its obligations is entitled to demand a refund real Estatetransmitted to ensure lifetime content, or paying to it rented rent (paragraph 2 of Art. 605 of the Civil Code of the Russian Federation), etc. Right Self-defense Civil

Most often, this method of protection is implemented in a loological manner, as it is associated with the forced termination or a change in the legal relationship, but in principle does not exclude its independent use of the victim. For example, with a substantial violation by the supplier or buyer of the supply contract, the victim may unilaterally terminate the contract by notifying the other side, i.e. Without appeal to the Arbitration Court (clause 4 of Art. 523 of the Civil Code of the Russian Federation).

The methods of protection for the protection of rights and protected interests of citizens and organizations are not exhausted by all possible protection measures. It is directly follows from Art. 12 Civil Code of the Russian Federation, which refers to other methods of protection provided legislative acts. As an example of other ways of protection, you can call the creditor's right to fulfill work at the expense of the debtor (Article 397 of the Civil Code of the Russian Federation), the appeal of the deployment of the debtor's property (Article 349 of the Civil Code of the Russian Federation), holding the commission of all amounts in the commission of the commission of the Commission to him at the expense of the committee (Art. 997 GK), etc.

The principle of ensuring the restoration of violated rights, their judicial protection of civil rights in general characterizes law enforcement function (task) of civil law regulation. In accordance with it, participants in civil relations are provided with ample opportunities to protect their rights and interests: they can resort to both their judicial protection and self-defense, as well as to the use of some other measures that have an adverse property impact on faulty counterparties. Civil law contains a large toolkit of law enforcement, allowing its subjects to effectively protect any of their rights and legitimate interests (Article 11 - 15 of the Civil Code of the Russian Federation).

Most of these funds have a property nature corresponding to the nature of relations prevailing in the subject of regulation. Their use is usually aimed at restoring violated rights and (or) property compensation to the victim. Independent from the influence of participants, the judicial protection of civil rights and limit (exclusivity) of their administrative and legal protection (paragraph 2 of Article 11 of the Civil Code of the Russian Federation) is due to the specifics of private law.

The principle of ensuring the restoration of violated rights and their judicial protection connects two starts: material and legal - ensuring the restoration of violated civil rights and civil-procedural - judicial protection of violated rights.

The restoration of violated civil rights continues to be one of the main tasks of civil law in a market economy in Russia. It is applied then and so far, when and since the nature of the civil relationship object allows execution in kind, and the lender does not refuse to adopt execution (Article 396, 398 of the Civil Code of the Russian Federation). At the same time, the fulfillment of the obligation at the expense of the debtor by third parties (Article 397 of the Civil Code of the Russian Federation). Restoration of violated subjective rights of citizens, legal entities, the Russian Federation, subjects of the Federation and municipalities It is also ensured by the application of civil liability measures in the new civil law Further development, especially in the field business activities (paragraph 3 of Article 401 of the Civil Code of the Russian Federation). Mozolain V. P, Maslyaev A.I. Decree. op. - P. 38-39.

The right to judicial protection is the general, constitutional. Based on its comprehensive nature, as well as from the special importance of the judicial form, in the Civil Code of the Russian Federation, Article 11 provides for:

judicial protection is subject to the rights disturbed or albeit illegally, but challenged (for example, two faces dispute the same thing property law To a certain lawful object - ownership of an apartment, the right to the invention, the right to use the object exceptional rights etc.);

in the Civil Code of the Russian Federation there is no list of cases considered by the court. There is a general principle, according to which, as a rule, disputes on the right of civil dealing with the court (judged by the court; the general principle can otherwise be called the general rule).

Protection of civil rights is carried out not only in court, but also in administrative order. In contrast to the previous one, common principle, here is the opposite approach: the protection of civil rights in administrative procedure is carried out only in cases provided for by law. If the law has not been established, which is allowed to protect civil law of a certain type in administrative procedure, which means the path of administrative legal protection is closed;

civil cases are considered by the court:

a) in order of claims (Numerous and diverse disputes on the right, according to which the Court decides on recognizing the right of the subject, restores the violated right, recognizes the transaction invalid, awards to fulfill the duty in nature, in addition, the Court may decide: on the recovery of the penalty, compensation for damages, moral compensation harm, change of legal relations, termination of legal relations, etc. According to Article 12 of the Civil Code, which contains a sufficient number of ways to protect civil rights);
b) The Court verifies the legality of solutions of other bodies - state bodies and bodies of local self-government and has the right to recognize the state of the state or local government in accordance with Article 133 of the Group. The court indicates its decision, which is the illegality of the act, violation of the rights or interests of a citizen or a legal entity. It can be an individually legal or regulatory act. The recognition of the act of an act invalid is the basis for the restoration of the right, to protect it with another in accordance with Article 12 of the Civil Code of the Russian Federation. Sergeev A.P., Tolstoy Yu.K. Decree. O. 42.

More on the topic 2. Restoration of broken right:

Forms and ways to protect rights and freedoms