LEGAL NATURE OF SUBJECTIVE CIVIL RIGHTS' RESTRICTIONS
DOI:
https://doi.org/10.32461/2226-3209.1.2018.178344Abstract
Abstract. The article is devoted to the analysis of the legal features of restrictions as a legal phenomenon, their purpose, the value of their place and role among other legal phenomena. The relevance of this study is pressuposed by the need to develop the optimal limits for intervention in the rights of civil law subjects. The development of a harmonious mechanism for the legal regulation of rights' restrictions, ensuring a balance between the interests of the right holder and those opposing it is of particular importance. Methods: during the study, we used the ascent method from the abstract to the concrete; universal methods of knowledge: genetic method; system-structural. Private scientific
methods: legal-dogmatic method and method of interpretation of legal norms. Results: as a result of an analysis of existing opinions about the subjective civil rights' restriction, it has been established that the restrictions imply the deprivation of the right holder of the opportunity to exercise the powers granted to him/her in order to protect the private interests of other persons and public interests. Restrictions allow for the sustainable development of social relations while ensuring the right holder's interests. Conclusions: Restrictions are the most important and inalienable attribute of subjective civil law. The absence of restrictions will lead to an imbalance of existing interests, providing the
right holder with ample opportunities for abuse, putting the interests of others at risk. At the same time, the rights' restriction as a concept means the specific measures to narrow the powers of the right holder, the content of which is largely due to the specific nature of the protection object.
Key words: restrictions, limits, subjective civil law, absolute right, property right, exclusive right.
References
S.S. Alekseev “General Permissions and Restrictions in the Soviet law”, M.: Legal Literature, 1989. 288 p.
S.S. Alekseev “General Theory of Law. V. 2”, M.: Legal Literature, 1982. 360 p.
N. Mavronicola “What is an‘absolute right’? Deciphering Absoluteness in the Context of Article 3 of the
European Convention on Human Rights”, Human Rights Law Review, 2012, No. 12 pp. 723-758.
D.I. Meyer "Russian Civil Law. P. 2”, M.: Statut, 1997. 290 p.
R. Bennett “Property rights, restrictions and responsibilities: their nature, design and management”, Department
of Geomatics the University of Melbourne, 2007. 392 p.
V.A. Mikryukov “Restrictions and Burdens of Civil Rights”, M.: Statut, 2007. 255 p.
P. O'Connor, “The Changing Paradigm of Property and the Framing of Regulation as a «Taking»”, Monash
University Law Review, 2010, No. 17 pp. 50-79.
With regard to copyright, R.I. Sitdikova “Exclusive Rights' Restrictions in the Copyright Protection
Mechanism”, Russian Legal Journal, 2013, No. 1. P. 126-130.
V.A. Mikryukov, “Limits to the Restriction and Burden of Intellectual Rights”, Bulletin of the Perm University.
Legal Sciences, 2008, Vol. 6 (22). P. 163-169.
O. Lutkova, D. Chernysh, “Conventional Regulation of the Free Use of Works in the Cross-Border Commercial
Circulation”, Intellectual Property. Copyright and Related Rights, 2011, No. 12. P. 47-56.
A.S. Vorozhevich, “Challenges to Modern Patent Systems and Legal Responses to Them”, Bulletin of Civil Law,
, No. 2. P. 44-99.
J.C. Ginsburg “Toward Supranational Copyright Law? The WTO Panel Decision and the “Three-Step Test” for
Copyright Exceptions”, Revue Internationale du Droit d'Auteur, 2001, January. 16 p. Available
at: https://ssrn.com/abstract=253867.
P.B. Hugenholtz, M. Senftleben “Fair Use in Europe. In Search of Flexibilities”, Amsterdam Law School
Research Paper, No. 2012-39. 30 p. Available at: https://ssrn.com/abstract=1959554.
R.I. Sitdikova, T.S. Starostina “The Development of the Parody Exception to the Copyright in United Kingdom”,
National Academy of Managerial Staff of Culture and Arts Herald, 2017, No. 4 (2), pp. 72-76.
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