Updated July 21, 2021 Author: Dmitry Ivanetscu
Hello, dear readers of the KtoNaNovenkogo.ru blog. Subjective law is one of the basic concepts of jurisprudence.
Law students get acquainted with it in their first year in order to lay the foundation for further study of legislation.
Subjective law and objective law are often confused, although they have different meanings.
After reading this article, you will learn about the key differences between the two terms and improve your legal literacy.
Subjective law is...
In simple words, subjective right is the ability to do something to realize one’s interests or to claim a certain benefit.
For example, get an education, get married, own an apartment.
And objective law is a set of legal norms that regulate relations in society.
It is divided into the following system elements:
- branches: civil, criminal, administrative, constitutional, labor;
- sub-sectors: hereditary, environmental, copyright, selective, social security;
- institutions: donation, presidency, marriage, property;
- legal norms (what is this?) – their external form is the articles of normative legal acts (laws, decrees, resolutions and others).
In foreign literature, law in the objective and subjective sense is even denoted by different words. For example, in English there are the terms “law” and “right”.
The concept of “subjective right” can be used in the plural. For example, in Art. 209 of the Civil Code of the Russian Federation states: “The owner has the rights to own, use and dispose of his property.”
In the objective sense, the word “right” is always written in the singular, because in meaning such a term is close to legislation.
The concept of civil legal relations and its composition
1. A civil legal relationship is a legal relationship based on the norms of civil law, which develops regarding material and intangible benefits, the participants of which, having legal autonomy, act as legally equal bearers of rights and obligations.
In its elementary form, a civil legal relationship is a connection between rights and obligations
(rights and obligations are called
the content
of the legal relationship).
This is a connection between subjects
.
Communication regarding material and intangible benefits is the connection between objects
of civil rights and obligations (legal relations).
Subjects, objects and content form the composition
legal relations. For example, the legal relationship from a purchase and sale agreement has the following composition: subjects - seller and buyer; object - product; rights and obligations (basic) - the seller must transfer the goods, the buyer must accept and pay for the goods.
Meaning.
Thanks to the legal relationship, the implementation of legal norms is carried out; abstract instructions of legal norms are transformed into a legal connection of specific subjects with rights and obligations.
When studying civil law, understanding what constitutes a civil legal relationship is extremely important. In particular, because the use of this category allows us to understand what civil subjective right is and what the essence of civil subjective obligation is, who can be the bearer of such rights and obligations, about what such rights and obligations can arise, what are the grounds for the dynamics (emergence, changes and termination) of these rights and obligations, etc. When studying certain types of civil legal relations (property, purchase and sale, lease, contract, etc.), the use of general teaching
about the legal relationship allows us to develop a uniform approach to organizing knowledge: you must first determine the subjects, object, content and basis of the dynamics of this or that -
any
- legal relationship. When this goal is achieved, fundamental knowledge about any specific legal relationship appears.
2.
A civil legal relationship has features inherent in any legal relationship.
So, like any other legal relationship, civil legal relationship is ensured by the coercive power of the state
.
Like any other legal relationship, civil legal relations arise and develop on the basis of norms
.
But this happens on the basis of civil
law. This means that when characterizing a civil legal relationship, among other things, it is necessary to take into account the specifics of civil law norms.
To a decisive extent, the features of civil legal relations (as well as the specifics of civil law norms) are determined by the features of the subject, method, functions and principles of civil law. Therefore the participants
civil legal relations are legally
equal
- there are no relations of power and subordination.
Therefore, participants in civil legal relations have discretion
- they can choose options for behavior.
The same features predetermine the judicial procedure for protecting
the rights of participants in civil legal relations,
the restorative nature of protective measures, the property nature of protective measures
, etc. <1>.
———————————
<1> See chap. 1 real textbook.
3.
In order to be a participant in a legal relationship, a person must have legal personality.
have legal personality to one degree or another.
.
capacity based on the norms of civil law
persons to be a participant in civil legal relations.
This is not a right, not a sum of rights and not a total expression of powers, but a socio-legal ability
<1>. Legal personality is a prerequisite for subjective law; subjective right appears as a result of the exercise of legal personality.
———————————
<1> See: Krasavchikov O.A. Civil personality as a legal form // Krasavchikov O.A. Categories of the science of civil law: Selected works: In 2 vols. M., 2005. T. 2. P. 31 - 32.
Civil personality includes several elements.
Firstly, legal capacity
- the ability
to have
civil rights and
bear
responsibilities (Article 17 of the Civil Code).
Secondly, capacity
— the ability
through one’s actions
, create civil responsibilities for oneself and fulfill them (Article 21 of the Civil Code).
Transactional capacity stands out as part of legal capacity, and sometimes along with it.
- the ability to independently make transactions - actions
aimed
at the emergence, change and termination of civil rights and obligations (Article 153 of the Civil Code).
Thirdly, tortiousness
- the ability to bear responsibility for an offense (see, for example, paragraph 3 of Article 26, paragraph 3 of Article 28 of the Civil Code).
Fourth, trans-ability
- the ability of a person, through his actions, to create rights and obligations for other persons and his ability to assume rights and obligations as a result of the actions of other subjects <1> (primarily Art. 182 - 184 of the Civil Code).
———————————
<1> It was suggested by O.A. that trans-capacity be distinguished as part of legal personality. Krasavchikov (see: Soviet civil law: Textbook: In 2 volumes / Edited by O.A. Krasavchikov. 3rd ed., revised and supplemented. M., 1985. T. 1. P. 72).
4.
The following subjects participate in civil legal relations:
1) individuals (citizens of the Russian Federation, foreigners, stateless persons); 2) legal entities; 3) Russian Federation; 4) subjects of the Russian Federation; 5) municipalities (the last three entities are often referred to as public legal entities
).
For the named persons, civil legal personality differs in scope and content, i.e. Different subjects have different abilities to be participants in civil legal relations. Moreover, in such groups of participants as citizens and legal entities, modifications of legal personality are possible. Thus, depending on the presence or absence of legal capacity, as well as if it is present, depending on its volume, all citizens are divided into several groups. The legal personality of citizens is usually called general
, bearing in mind that citizens can have any subjective rights and bear any subjective responsibilities, if this does not contradict the law (everything that is not prohibited is possible).
The legal personality of legal entities, as a general rule, is of a special
nature (determined by the goals of activity provided for in the constituent documents, but there are exceptions to this rule). The legal capacity of the subjects of the Russian Federation and municipalities is usually qualified as special or functional (predetermined by the functions of the corresponding entities), and the legal personality of the Russian Federation is most often recognized as universal <1> (or general), and often as special <2>.
———————————
<1> Civil law: Textbook for universities. M., 1998. Part 1. P. 140 - 141 (author of the chapter - V.A. Pletnev).
ConsultantPlus: note.
Textbook “Russian civil law: In 2 volumes. General part. Property right. Inheritance law. Intellectual rights. Personal non-property rights" (ed. E.A. Sukhanov) (volume 1) is included in the information bank according to the publication - Statute, 2011 (2nd edition, stereotypical).
<2> See, for example: Russian civil law: Textbook: In 2 volumes / Rep. ed. E.A. Sukhanov. M., 2010. T. 1. P. 286 - 287 (author of the chapter - E.A. Sukhanov).
5.
Participants in civil legal relations have
legal autonomy
.
This means that only someone who is recognized as a person
.
Thus, participants in legal relations can be citizens, legal entities and public legal entities. This approach can well be called formal legal, since already in paragraph. 2 p. 1 art. 2 of the Civil Code lists participants in civil legal relations. Another thing is that the relevant rules of law are based not on arbitrariness, but on the position that subjects of civil law must be separated
from each other (in order to be persons).
There are various forms (methods, measures) of isolation. In a generalized form, they are usually called organizational and property separation
.
The organizational and property separation of citizens (individuals) is quite natural. In relation to various entities, criteria have been developed that are embodied in legal norms. Thus, a legal entity is recognized as (a) an organization that (b) has separate property, (c) is liable for its obligations with this property, (d) can acquire and exercise civil rights and bear obligations in its own name, (e) can be a plaintiff and defendant in court (Article 48 of the Civil Code). Such an organization becomes a subject of law only after state registration as a legal entity. Thus, organizational and property separation acquires legal recognition (that is why we talk about legal
autonomy).
6. Object
legal relations is what the legal relations (rights and obligations) are about <1>.
Such objects are material
benefits (things, property rights, results of work, services, etc.), as well as
intangible
benefits (life and health, personal dignity, personal integrity, etc.).
———————————
<1> The question of the concept of an object is debatable. Sometimes they are considered to be what rights and obligations are aimed at, what the legal relationship is aimed at, the behavior of participants, etc.
7. Contents
legal relations form the subjective rights and obligations of the participants.
Subjective right is a measure of the possible behavior of an authorized person secured by law.
It includes three powers.
Firstly
, an authorized subject can (has the authority)
to perform
certain actions himself.
For example, the owner has the rights to own, use and dispose of his property (Clause 1, Article 209 of the Civil Code). Secondly
, subjective right allows an authorized person
to demand that
an obligated person perform certain actions and (or) refrain from certain actions.
For example, the owner, in addition to the right to the specified own actions, can demand from everyone (from “anyone and everyone”) to refrain from violating his property rights (not to interfere with the exercise of the right). By virtue of the obligation, the creditor has the right to demand from the debtor the transfer of property, performance of work, provision of services, payment of money, etc. (Clause 1 of Article 307 of the Civil Code). For example, under a sales contract, the seller has the right to demand that the buyer pay a certain amount of money (price), and the buyer has the right to demand the transfer of goods (clause 1 of Article 454 of the Civil Code). Thirdly
, the authorized person has
the right to protection
: in case of violation of the right (for example, if the seller fails to fulfill the obligation to transfer the item to the buyer), the authorized person (in the example given, the buyer) can go to court, and government coercive measures can be applied to the violator (in example - the transfer of an item will occur forcibly on the basis of a court decision).
That is why it is said that subjective right is guaranteed
by law.
Subjective duty is a measure of proper behavior of the obligated person provided by law.
This measure is that, firstly
, the obligated person must
perform
certain actions (for example, the tenant of a residential premises is obliged to pay rent for residential premises on time).
Secondly
, the obligation may consist in the need
to refrain
from certain actions (for example, the tenant does not have the right to carry out reconstruction and reconstruction of residential premises without the consent of the landlord (Article 678 of the Civil Code)).
8. The structure of the content of a civil legal relationship is usually understood as a way of connecting (subjects) with rights and obligations.
If one party is authorized and the other party has an obligation, then such a legal relationship is simple
in its structure (on one side there is a right, on the other there is a duty). A textbook example of a legal relationship that is simple in structure is a loan agreement: one party (the lender) has the right to demand the return of money or other things defined by generic characteristics, and the other party (the borrower) undertakes to transfer the corresponding loan item to the lender (Article 807 of the Civil Code). The obligation resulting from causing harm (tort obligation) is also simple: the victim has the right to demand compensation from the causer of harm, and the person who caused the harm bears an obligation corresponding to this right - he must compensate for the harm.
complex in their structure
- each participant has both rights and responsibilities. Thus, under a lease (property lease) agreement, the lessor (lessor) is obliged to transfer the property to the lessee (tenant), and the lessee has the corresponding right to demand the transfer of the subject of lease to him. But the tenant is required to pay rent. The landlord has a corresponding right to demand payment of rent. (The parties to this agreement have other rights and obligations.)
Any complex legal relationship for analytical purposes
can be presented as a certain set of simple legal relations.
Thus, in the given example of a lease agreement, one simple legal relationship consists of the tenant’s right to demand the transfer of property and the corresponding obligation of the lessor to transfer the leased item, another simple legal relationship consists of the lessor’s right to demand payment of rent and the tenant’s obligation to pay. But, of course, it’s not just about analytics. The idea of simple and complex legal relations is reflected in legislation and the practice
of its application.
So, by virtue of the rule included in paragraph 2 of Art. 308 of the Civil Code, if each of the parties to the contract bears an obligation in favor of the other party, it is considered the debtor of the other party in what it is obliged to do in its favor, and at the same time its creditor in what it has the right to demand from it.
At the same time, obviously, one cannot assume that a complex legal relationship is a mechanical unification of simple legal relationships. Being united into complex legal relations, simple legal relations intertwine with each other, become dependent on each other, and cannot exist without each other. For example, this dependence is clearly visible when considering the rules on counter-fulfillment of obligations (Article 328 of the Civil Code). In the given example of a lease agreement, the second simple legal relationship (about rent) is dependent on the first of these simple legal relationships (about the transfer of property). And if there is no first (the property is not transferred to the tenant), then there will be no second (no payment).
How do subjective rights and subjective obligations relate?
Subjective rights and legal obligations are two sides of the same coin. That is, the existence of one is made dependent on the second.
To make this relationship , check out two examples:
- A person has the right to life. The corresponding duty is not to kill. Since it extends to an indefinite circle of persons (all people), the right is considered absolute.
- The lender has the right to demand repayment of the loan amount + interest. Therefore, the debtor is obliged to return the money on time. Since the obligation applies only to a specific person specified in the legal norm, the right is considered relative.
No one is obliged to implement the possibilities prescribed by law. For example, get an education. If you want, you enroll in a university, graduate from master’s and graduate school. Or you can go to work right after school.
But, from the point of view of the law, no one has the right to force you to study.
Methods of acquisition and sale
Subjective right is acquired along with the formation of a certain attitude. If the latter is regulated by a dispositive norm, then a person may refuse the opportunity available to him. In particular, it has the right to transfer it to another entity. Based on such a refusal, the interaction is terminated or modified.
If regulation is carried out by a mandatory norm, then the waiver of the subjective right established by it has no legal significance. In particular, such categories include the personal constitutional capabilities of a person. At the same time, subjective rights are freely exercised. This means that a person can refrain from using it. Subjects who have rights are free to refrain from committing or committing any actions within the limits of permitted behavior. The realization of an opportunity is carried out with the aim of obtaining an intangible or material benefit regarding which an attitude has arisen. Achieving it occurs, in fact, by performing or abstaining from performing any actions.
Classification of the concept
Rights can be alienable or inalienable.
In the first case, a person can transfer his capabilities and claims to another subject. For example, under a car purchase agreement, ownership of the vehicle passes from the seller to the buyer.
as subjective inalienable rights : to life and personal dignity. These benefits cannot be transferred to anyone, even if you really want to.
The author's moral rights (to his name, to use the work under a pseudonym or anonymously) are also inalienable. Even if someone steals someone else’s work and publishes it under their own name, they will only mislead readers. But he won’t become a real author.
The concept is also classified according to branches of legislation.
For example, receiving an inheritance is a subjective civil right. It arises within the framework of property legal relations and is regulated by the norms of the Civil Code.
The right to participate in elections and government is constitutional (electoral), to appeal to government agencies is administrative, and to leave is labor.
What is the subjective side of a crime in criminal law
Another basic concept of jurisprudence is the subjective side of crime. It is used within the framework of objective criminal law when deciding whether to bring the accused to justice.
Shows the mental attitude of the criminal to the committed act . Is it his fault for what happened? Whether the person acted intentionally or recklessly.
The severity and terms of punishment depend on the form of guilt. For example, criminal negligence on the road resulting in a fatal accident is a less serious crime than intentionally hitting a pedestrian.
