Self-defense of civil rights: advice from a lawyer

Concept of self-defense of civil rights

In accordance with Art. 12 of the Civil Code of the Russian Federation, self-defense is one of the ways a person protects his rights and is used without contacting any authorities. Self-defense consists in the fact that a person himself makes attempts to protect his civil rights. Self-defense can be expressed in a person’s influence on his own property, as well as on the property of the offender for the purpose of necessary defense or in a state of emergency.

An important point when using the method of self-defense is that self-defense must be proportionate to the violation being prevented. When self-defense is proportionate, where is the line over which a person who defends his rights himself should not cross, the legislation does not contain specific answers to these questions, since in each specific case this is assessed individually. Thus, in each situation the issue of proportionality of self-defense actions will be decided.

VUZRU

Civil law names self-defense as one of the ways to protect rights. When using self-defense, it is necessary to adhere to the principle of proportionality of the violation, and also not to go beyond the actions necessary to suppress it.

In the Russian Federation, the opportunity to protect one’s rights and freedoms is guaranteed by all means that do not contradict the law. In addition, civil legislation establishes certain methods of protecting civil rights, among which it is worth highlighting self-defense rights.

Since self-defense is a set of methods for protecting civil rights through suppression, which itself is a separate method for protecting civil rights, it seems necessary to exclude self-defense from the list of methods for protecting civil rights established by Article 12 of the Civil Code of the Russian Federation[1]

The choice of specific self-defense actions depends on the circumstances in which they may be committed. This may be an emergency or exceptional situation when the use of any other legal means is impossible (for example, these are actions performed in conditions of extreme necessity), or it may be an ordinary everyday situation that does not at all involve the use of legal means and involves the implementation of preventive steps, aimed at eliminating the possibility of violation (installation of bars on windows, connection of a security alarm, establishment of guard dogs, branding of livestock, individualization (labeling) of sports equipment, etc.)[2].

In the civil doctrine, methods of self-defense are called: restoration of the situation that existed before the violation of the law; suppression of actions that violate the right or create a threat of its violation; termination or change of legal relationship; refusal to execute a void transaction, measures of operational influence, as well as actions in a state of necessary defense and extreme necessity.

Important o.

In addition, the essence of measures of necessary defense and extreme necessity in self-defense of civil rights is much broader than similar measures permitted by criminal and administrative law.

Protection against infringement of private rights has a preventive nature of self-help, allowing, for example, the expulsion of the violator from property by force or the suppression of attempts to illegally extract benefits. An example of such a violation is a simple and unconditional, but willful, and therefore illegal presence of a person and his things within the object of property rights, which means a restriction in the normal exercise of property rights, collection of fruits and other extraction of benefits against the will of the owner, etc. Obviously , that if there is only constraint in the property law regime, when no damage is caused to property, counteraction through the expulsion of the offender should not imply any harm to him; the source of such constraint should only be eliminated. On the contrary, if the offender causes any damage to property or benefits, the counteraction may be more radical (we are not talking about counteracting a criminal act, the legality of self-defense against which is assessed by criminal law). Combating such violations also involves the additional use of retentional self-help, that is, the permitted arbitrary seizure of the violator’s things, which serve as a guarantee of restoration of the rights of the private copyright holder.[3]

The most common methods of self-defense in the field of entrepreneurial activity can also be called alternative dispute resolution, such as negotiations and the claim procedure for resolving disputes.

It seems an interesting point of view that recognizes knowledge or information as one of the most important ways of self-protection of civil rights. Thus, proper awareness of the counterparty before entering into an obligatory relationship with one or another legal entity about its financial condition, activities, and transactions it makes with other companies is a specific way of self-protection of the rights of such a subject of civil law wishing to enter into civil legal relations. Of course, knowledge (information) itself does not have a real opportunity to protect a violated right, since this requires taking specific actions of self-defense. Knowledge in this situation is only a means that allows you to correctly choose the method of protection and quickly and properly implement it. In other words, knowledge (information) is one of the necessary conditions for the protection and defense of rights.

Let us give the following example: a legal entity received from a potential counterparty an offer on favorable terms to enter into an agreement for the supply of goods at a low price. The head of this legal entity, as part of the self-defense of his organization, turns to a legal adviser with instructions to check the reliability of the counterparty as a business entity and evaluate his business reputation. A legal adviser, using various modern electronic services (checking a person’s record in the Unified State Register of Legal Entities, “Kontur” software, analysis of the “My Arbitrator” service and others) collects and analyzes the information received, studies possible business risks, and prepares conclusions about the business reliability of the counterparty.

Next, the head of the legal entity makes a decision on whether to accept the offer or reject it. When accepting an offer, self-defense continues to manifest itself in the form of negotiations on the most profitable and safe terms of the contract, and is also expressed in the legal analysis of the contract and the presentation of its provisions in such a way as to use other types of legal protection in the event that a violation of the right does occur. This is how one of the methods of self-defense in civil law is expressed using information.

Continuing to discuss the topic of information, we note that self-defense is also allowed as a way to protect intellectual industrial property rights. This is expressed in the form of self-defense of the rights of the author and copyright holder when using an invention, utility model and industrial design in economic circulation, carried out personally, without going to court or other authorities. In the civil doctrine, the most popular idea is the self-defense of intellectual property rights by various means of ensuring the fulfillment of obligations enshrined in Art. 32 of the Civil Code of the Russian Federation. These include penalties, pledge, retention of the debtor's property, surety, bank guarantee, deposit, as well as other methods provided for by law or contract. But we should not forget one of the most frequently used means of self-defense: contacting the person violating intellectual rights with a request to stop such actions. It is the appeal to the entity that directly violated the right or creates the threat of its violation that seems to us to be a more effective and productive way than turning to government agencies for protection of the violated right. This is explained by the following features:

1) When applying to government agencies, minimum legal competence is required;

2) Applying for protection of a violated right requires certain time and certain costs;

3) It is not always possible to implement the decisions of the competent authorities and force the person who violated the rights to change his behavior.

In this case, the positive aspects of self-defense, manifested in appealing to the person violating intellectual rights with a request to stop such actions, are seen in the following:

1) Often the conflict is resolved on terms acceptable to both parties without unnecessary costs (transport costs, government duties, etc.);

2) Less lengthy nature of dispute resolution, the violation can be eliminated in the hour of contact, which is impossible when contacting government agencies;

3) The business reputation of both parties remains unshakable. Often, violations of intellectual rights are not associated with the malicious intent of the person violating this right, and resolving the problem through negotiations leads to mutually beneficial cooperation, instead of litigation and administrative proceedings.

Another interesting point in self-defense of civil rights is their combined application with judicial protection. We are talking about such a method of self-defense as using in court as evidence an audio recording made without the consent of the participant in the conversation. Arbitration courts recognize such evidence as admissible, while in the petition for the inclusion of evidence it is recommended to write that the dictaphone recording was made solely for the purpose of self-defense in accordance with Art. 12 of the Civil Code of the Russian Federation. This method of self-defense makes it easier for managers and employees to confirm the facts of illegal dismissal, rudeness in the workplace, issuance of black wages, as well as confirmation of the actual intentions of the counterparty.[4] A striking example is video cameras installed inside retail and other premises. Firstly, they have a deterrent effect on potential offenders, and secondly, in the event of an offense occurring, they allow the restoration of the violated right, and if it is impossible to restore rights, they establish social justice by bringing the guilty person to responsibility established by law, since video recording from a CCTV camera is direct evidence in court.

Thus, we can conclude that self-defense is an appropriate form of protection, in particular, of civil rights, which is certainly carried out by the actions of the appropriate authorized person in the conditions of the legislation of our state. Self-defense can be directly applied only under certain conditions, namely a violation of a legal nature or, in particular, the possibility of its violation, the need to suppress the legislative violation of the legal component and the use of specific measures that meet the criteria and general content of the offense.

Self-defense in civil law:

- can be carried out by a person whose right has been violated independently, without applying to any authorities, or in an administrative or judicial manner;

- possible when a violation of civil law has already occurred, is ongoing, or there is a threat of such a violation;

- carried out by the victim himself (however, friendly assistance cannot be excluded, but provided that the protection of rights is carried out jointly with the victim himself);

- must be proportionate to the violation;

- should not be excessive; - must not go beyond the limits of necessary defense and extreme necessity.

[1] Gainutdinova G.S. Self-defense in civil law // In the collection: Current problems of jurisprudence in the modern world, a collection of articles based on materials from the VII All-Russian Scientific and Practical Conference.. 2021. P. 65

[2]Dudyrin D.S. Self-defense in civil law // Contentus. 2017. No. 12 (65). P. 113

[3] Yuzhanin N.V. Measures of operational influence and secondary rights // Lexrussica. 2021. No. 8. P. 23

[4] Mishina A. I am recording without warning. // Calculation. 2021. No. 2. P. 46.

Methods of self-defense of civil rights

In what ways can a person exercise self-defense of his civil rights?

Necessary defense when a person defends himself from the actual actions of an attacker. In case of causing harm in a state of necessary defense, the damage caused is not subject to compensation unless the necessary defense is exceeded
An urgent need. With this method of self-defense, the defending person causes harm in order to eliminate the danger that threatens the harm-doer himself or other persons, provided that such a danger could not be eliminated by other means. Damage caused in a state of extreme necessity must be compensated by the person who caused the harm. Under certain circumstances, the court may oblige the third party in whose interests the perpetrator of the harm acted to compensate for the damage, or exempt both the third party and the tortfeasor from compensation.
Lawful refusal to fulfill the contract, early termination of the contract, for example, if the counterparty does not transfer the goods
Refusal of a product, for example, when it does not comply with the terms of the contract
Holding a thing that is to be transferred. For example, the customer does not make payment under the contract, the contractor retains the result of the work
Elimination by the buyer of identified defects in the transferred goods, i.e. the buyer does not return the goods, does not ask the seller to eliminate the defects, but eliminates them himself
Other methods of self-defense

The procedure for applying self-defense in civil law

The procedure for applying self-defense in civil law will depend on the method of self-defense, for example, if the customer does not pay the contractor money under the contract, then the contractor retains and does not transfer to the customer the result of his work.

The algorithm for using self-defense can be given as follows:

establish the existence of violations of the rights of a person who has the right to defend himself
assess the possibility of self-defense without violating the requirements of the law and, if possible, without causing harm to anyone
take actions to self-protect your rights, for example, refuse the contract
In certain cases, formalize your self-defense actions on paper, for example, write a written refusal to accept the goods due to their inadequate quality
notify the other party about using a certain method of self-defense, for example, withholding an item due to lack of payments under the contract from the customer

The above algorithm cannot be used in all situations, for example, in the case of necessary defense, the defending person must quickly make decisions and perform certain actions to protect himself.

Limits of self-defense of civil rights

Self-defense of civil rights must be carried out in such a way as not to violate the law and be proportionate to the violation.

Determining the limits of self-defense can sometimes be quite difficult. It’s one thing when the law specifies a specific method of self-defense, for example, the right to withdraw from a contract. It’s another matter when the method of defense is prescribed, but the limits of such defense cannot be determined, for example, in the case of necessary defense, how to determine the extent of the legality of one’s actions in relation to the offender, because such necessary defense may be exceeded and self-defense in this case will bring to the person who defended himself, only trouble.

Taking this into account, it is necessary to resort to certain methods of self-defense with extreme caution. If there are doubts that self-defense will be legal and proportionate to the violation, then it is better to resort to other methods of protecting your rights, including in court.

When resorting to self-defense, it should be remembered that the categories of self-defense are evaluative in nature.

Urgent necessity

The main difference between extreme necessity and necessary defense is the source of danger. If you have to defend yourself from specific living persons, then actions in the order of necessity arise due to events that do not depend on the will of a person. For example, this is a natural disaster, catastrophe, natural anomalies, diseases, mechanical malfunctions and much more. Danger can arise either on its own or as a result of the unlawful actions of a certain person.

As with necessary defense, actions in cases of extreme necessity can be implemented to protect one’s rights and interests. Independent protection of the interests of the state and society, carried out at one’s own request, is also acceptable.

In the civil sphere of law, actions in conditions of extreme necessity are always associated with causing harm. This means that a person, trying to protect his interests, may overstep the boundaries of what is permitted and accidentally harm some objects. This is a phenomenon accompanying any danger, and therefore the person is not responsible for it. But here it is necessary to distinguish between accidental damage to property, which could not be prevented, and a deliberate violation of the law. A person who intentionally exceeds the limits of extreme necessity is obliged to compensate for the harm caused.

Necessary defense as a way of self-defense of civil rights

We speak about necessary defense not only in civil legislation, but also in criminal law.

Necessary defense consists in a person protecting his rights from the actions of another person, i.e. This is the resistance of the defending party to the actions of the offender.

In the course of necessary defense, the defending person may cause harm to a person who infringes on his rights with the use of violence. Such actions will not be considered a crime unless the limits of necessary defense are exceeded. Exceeding the limits is when the defending person acts intentionally, knowingly causing harm to the offender when there is no need for this.

Moreover, if during self-defense, due to surprise, a person could not assess the degree and nature of the danger, then his actions cannot be regarded as exceeding the limits of necessary defense.

Self-defense and arbitrariness: where is the border?

It was not for nothing that self-defense was prohibited in certain periods of Russia’s existence. The state was simply afraid of the excessive independence of the people. Moreover, there is still a problem with the distinction between self-government and independent protection of one’s rights. In self-defense, a person does everything within the law. He can prescribe his intentions in the contract, as is possible, for example, in cases of necessary defense.

Everything is much more complicated with real-time self-defense. The conditions are not determined in advance, and a person, being in a state of excitement, may unexpectedly cross the line of what is permitted. A simple example is actions in conditions of extreme necessity. Let's imagine that a city was flooded. Residents try to save their property, but due to external circumstances they accidentally destroy the property of the municipality. Will they be held responsible in this case? Hardly. But the question of delimitation will remain open.

The type of legal structure in Russia also poses a problem. The country has a Romano-Germanic legal system, that is, judicial precedents are not considered sources of law. And this is a big difficulty. In many countries where self-defense is allowed, the state solves problems with the help of precedents - according to the Anglo-Saxon system of law. This is much more convenient, because legal incidents arise much less frequently. In Russia, the legal system cannot be changed. The only way out of this situation can only be the expansion and addition of existing legislation.

Rules for protecting your rights

►It’s better to start with the law. The court always acts in accordance with established legal relations. Take an interest in substantive and procedural law. Read the relevant literature, at least the Internet. It is this set of norms that regulates social legal relations. You should understand them at least a little. Any violations of established norms on your part will entail not only a reprimand from the judge in your direction, but also the loss of the case on procedural grounds.

You have no right to make mistakes: read the rules of the game

Correctly determine the court : disputes between citizens are heard in courts of general jurisdiction; disputes between enterprises or entrepreneurs - in economic ones; if your claim falls under the jurisdiction of a state authority or local government, you should go to the administrative court. If you fail at this stage, your case will be denied.
mandatory requirements for filing a claim in court . The claim must be made in writing, indicating the name of the court, the full name (or names) of the plaintiff and defendant, their postal codes, addresses, telephone numbers and other available contact information. Next, the “claim price” must be indicated, that is, the total amount of your property claims. The grounds on which you are going to court must be indicated. All evidence supporting the grounds must be attached. In the operative part, indicate your requirements, that is, exactly what you are asking the court for. A receipt for payment of the court fee must be attached to the statement of claim.
The court requires that all evidence of the parties be submitted BEFORE consideration of the merits.

ATTENTION: Take at least one consultation with a professional lawyer. He will be able to tell you how to competently prepare the evidence base and the main position. Or write your problem in the comments to this article; perhaps it will be more timely to give advice remotely.

"Pitfall" in terms of evidence . There are circumstances that can only be proven in a certain way by law and nothing more. For example, a loan agreement must exist only in written form; its conclusion cannot be considered valid only on the basis of testimony. Providing evidence that does not comply with the procedural norm will not be taken into account. The case is more likely to be lost, even if the truth is on your side.
Don't try to lie. The truth and only the truth is your main weapon . Any exaggeration, any deviation from the truth will set the court against you. They will begin to doubt the veracity of your words - this will “ruin” your defense.
Look for witnesses yourself and in advance. No one will bring in witnesses in your case except you. It is in your best interest to find people in advance who can say something in your favor.
Analyze other people's judicial practice . Perhaps there were similar cases, look what the outcome was, what arguments were given, who acted as witnesses. Perhaps this will give you the right thoughts and help you correctly develop a position. Order a case analysis (follow the link for more details) if you understand that you cannot cope with this task.
Don't disrupt the trial stages . The judicial process consists of stages established by law: petition, explanations of the parties, examination of evidence, judicial debate. Listen carefully to which stage the chairman judge announces. Address the judge only as “your honor.” If your opponents state false information or file motions that are unfavorable to you, refute them with reasons, speak concisely, and avoid excessive details that are not relevant to the essence of your case and cannot affect its outcome. In court arguments, focus on the main evidence in your favor and refute the main arguments of your opponent.
You should not allow emotions in court . Your monologue should be extremely clear and to the point. You can have a few feelings, but they should not interfere with understanding the essence.
Schedule an examination if it is appropriate for your case.

PS: in general, act boldly, don’t be afraid of the first failure. Very often, an appeal (read the rules for appealing any court decision via the link on the main part of the site) gives the best result, so don’t despair if you don’t succeed the first time.