Subjective right and legal obligation. Subjective right and legal obligation in the structure of legal relations

Objective and subjective law - legal concepts, which indicate the scale of freedom and those who have it. Objective law (this is law in the proper sense as a system of norms) is a set of norms established and enforced by the state aimed at regulating social relations. Objective law is legislation legal precedents, legal customs and others specific forms rights certain period. This right is objective due to the fact that it does not depend directly on the will and consciousness of individuals.

Subjective law is always ensured by the corresponding actions of other subjects, which is associated with a subjective obligation that determines the measure of proper behavior of subjects of law. This is a legal measure possible behavior designed to satisfy own interests faces. Subjective rights are specific rights and personal freedoms: to life, liberty, personal integrity, to housing, to the administration of justice, to education, etc.

Objective law depends on the norm issued by the state, and subjective law can exist independently of it. Objective law is inextricably linked with subjective law. Objective law is legal norms expressed in certain legal forms, subjective right means those legal options, which arise and are implemented on the basis of objective law (legislation).

Subjective law and legal duty- This system elements legal relations that give a specific public attitude characteristics. The degree of freedom of participants in a legal relationship and the degree of satisfaction of their interests are established by the requirements of the legal norm. Legal rights and obligations are equivalent elements of a legal relationship, even though their content is different.

Subjective law - This guaranteed by the state a measure of a person's possible behavior. Subjective rights are called because they belong to individual subjects(individuals, groups, organizations) and their use depends on the will of these entities. Subjective rights are related to the functioning legal norms and cannot exist outside legal relations.

Subjective right is a means of satisfying one’s own interests by performing actions, demands and claims.

Subjective right includes the following powers:

• 1. The right to use a social good - the authority to perform certain actions and demand corresponding actions from other persons, freedom of behavior within the boundaries, established by the norm rights.
• 2. Right-demand - the possibility of demanding the commission certain actions from the obligated person.
• 3. Right-claim (the ability to seek protection from government agencies).
• 4. Legal behavior - the ability to behave actively, to perform any actions as prescribed legal norms, and not prohibited by law (for example, the use of an item owned by a given person).

Legal duty - this is the type, measure, scale of proper behavior of a participant in a legal relationship provided for by the rule of law.

The legal duty includes the following elements:

• 1. The need to perform active positive action(active duty).
• 2. The need to refrain from actions prohibited by law (passive duty).
• 3. The need to carry legal liability when misconduct(negative duty).

Subjective rights and legal obligations are interconnected: the emergence of a subjective right in one person gives rise to obligations in another person. By granting someone a subjective right, legal norms prescribe to another person the requirement to ensure his existence by his behavior.

A legal obligation is established both in the interests of the person authorized and in the interests of the state as a whole.

Depending on what type of behavior is provided for by the dispositive legal norm, the legal obligation can be active (reinforcing necessary actions) or passive (legal prohibitions).

Subjective rights and legal obligations are closely related to each other, since subjective rights are ensured by a legal obligation, and legal obligations correspond to the corresponding subjective rights.

The differences between subjective right and legal obligation are as follows:

• - if the subjective right is intended to satisfy the person’s own interests, then the legal obligation is the interests of the authorized person;
• - if subjective right is a measure of possible behavior, then legal obligation is a measure of proper behavior.

As already mentioned, the legal relationship consists of mutual rights and responsibilities. Subjective right and legal obligation are constituent elements legal relations.

Subjective law- this is the opportunity (freedom) of the subject, represented and protected by the state, to satisfy at his own discretion those interests that are provided for by objective law. Right, belonging to the subject, is called subjective right because it depends only on the will of the subject how to dispose of it. In contrast to simple non-prohibition (everything that is not prohibited is permitted), subjective right is legally designated and enshrined in a legal norm as a type and a certain measure of behavior.

Subjective right is manifested in three varieties.

Firstly , in the possibility of positive behavior of the owner of a subjective right in order to satisfy his interests (the owner - to dispose of a thing, the farmer - to produce any product). But this behavior should not go beyond the law (for example, property cannot be used to harm another, etc.).

Secondly , subjective right is expressed in the ability of the person authorized to demand certain behavior from obligated persons in order to satisfy their legitimate interests: the buyer who pays the cost of the thing has the right to demand that this thing be transferred to him by the seller, etc.

Third , subjective right includes the possibility of the authorized person to apply to the competent state bodies for the protection of his violated rights (if the debtor does not return his thing to the owner, then the owner can go to court and demand it).

Legal duty- this is a measure of proper behavior of a participant in a legal relationship provided for by the rule of law. In contrast to subjective law, refusal to fulfill a legal obligation is the basis for legal liability.

• 1. The need to take active positive actions in favor of other participants in legal relations (for example, the seller is obliged to transfer to the buyer the thing for which he paid). The legal duty in this case requires that active actions aimed at realizing the rights of another participant in the legal relationship.
• 2. The legal obligation is expressed in the need to refrain from actions prohibited by the law (for example, subletting property provided to the tenant under a household rental agreement is not allowed).

Many legal relationships are characterized by the fact that each of their participants simultaneously has rights and bears a corresponding obligation (for example, the same purchase and sale agreement).

Sometimes there may be only rights without corresponding obligations (for example, a will). It should be taken into account that the content of the gift agreement contains corresponding rights and obligations of the parties.

In conclusion, it should be said that legal rights and obligations in legal relations - this is not the behavior of the subjects itself, but the provision of the opportunity or necessity of certain behavior, provided for by the norm rights . The implementation of subjective rights and obligations means their impact on the actual behavior of participants in legal relations, the mutual implementation of subjective rights and legal obligations.

In jurisprudence, the word “law” is used to designate two interrelated but different phenomena: one of them is called objective law, other - subjective legal right.

Objective law is a type social norms, social regulator, that is, as it were, “law in general.” It is characteristic that in this sense it is impossible to talk about law in plural: if we talk about “rights”, then we mean subjective rights. When objective law is considered without connection with subjective legal law, it is simply called “law”: civil law, administrative law etc.

Subjective legal law is a phenomenon closely related to objective law, conditioned by it, arising on its basis, but nevertheless qualitatively different from it, that is, a different phenomenon.

Analyzing this question, we should immediately distinguish between two problems:

a) the problem of objective and subjective in law;

b) the problem of objective law and subjective legal law.

The first is philosophical in nature and its meaning is to determine to what extent that phenomenon public life, which lawyers call “objective law”, is objective and in some cases subjective. Our problem lies in the plane of jurisprudence, and subjective legal law is called “subjective” here for only one reason: it is something that belongs to subject. Therefore, it would be even simpler to call it not “subjective”, but “subjective” law.

Sometimes you can come across the following definition: “subjective right is the right of the subject.” In addition to its obvious incompleteness and tautology, it suffers from another serious drawback. Indeed, due to such a specific circumstance as the existence in jurisprudence of another, qualitatively different, understanding of the word “law” - as a special type of social norms, one can come to a rather absurd conclusion: subjective legal law is a certain system of norms, for some reason belonging to a separate subject .

The definition of subjective legal right must provide an explanation for each of the three words that make up this term:

a) why is it “subjective”;

b) what does “legal” mean;

c) what is the meaning of the word “right” in this case?

Subjective legal right- this is a measure of possible (permissible) behavior in a legal relationship provided to a subject of law by legal norms in order to satisfy his interests, secured by the corresponding obligation of another subject of a legal relationship and guaranteed by the state.

This definition based on following signs:

1. It's about O possibilities certain behavior.

2. This opportunity is not given to anyone, namely subject of law (a person with legal capacity).

3. Provided to the subject of law in order to satisfy his interests.

4. Exists in legal relations.

5. Has its own boundaries, being measure of behavior. There is a violation of this measure abuse of right.

6. Subjective legal law cannot exist out of connection with the corresponding legal obligation, without the implementation of which the right itself cannot be realized.

7. Implementation guaranteed by the possibility of state coercion in relation to the bearer of a corresponding (corresponding) legal obligation or other means of legal protection.

8. Has legal nature, which manifests itself in the following:

a) the possibility of certain behavior is provided by legal norms;

b) the implementation of this possibility is guaranteed by the state.

When characterizing the subjective right that arises on the basis of legal norms, one should not exclude the word “legal” from its term - “subjective legal right”. Although they often say this: “subjective rights and legal obligations.” At the same time, losing sight of the fact that subjective rights can also be non-legal. After all, law is not the only social regulator. As many types of social norms exist, there are just as many types of subjective rights: based on moral norms, subjective moral rights, based on corporate norms - subjective rights of members public organizations etc. The fundamental mechanism of action of social norms is the same: norm - actual conditions - subjective rights and obligations.

In general, it should be noted that the word “law” in Russian can be used to designate non-legal phenomena. Apart from the already noted case, phrases such as “ natural law", "human rights".

Subjective legal law, like objective law, has its own “inner world”: its elements, internal organization, that is, a certain structure. Its elements are called powers. The famous Russian lawyer Nikolai Grigorievich Alexandrov proposed to distinguish as part of the subjective legal right three powers: the type and extent of possible behavior of its owner, the ability to demand certain behavior from obligated persons and the opportunity to resort to necessary cases to coercive force state apparatus. In short, this is:

A) right to affirmative action;

b) right of claim;

V) claim.

The latter power is sometimes distinguished as an independent subjective legal right within the framework of protective legal relations.

The dialectical opposite of subjective legal law is subjective legal duty. They are inextricably linked and cannot exist without each other. The right of one subject cannot be realized without the implementation of the corresponding obligation of another subject. The existence of an obligation without connection with subjective right is meaningless. Therefore, the well-known thesis that “there can be no rights without duties” not only reflects general principles social justice, but also acts as a manifestation of purely legal regularity in the mechanism of action of legal norms.

Subjective legal duty- this is a measure of proper behavior in a legal relationship assigned to a subject of law by legal norms in order to satisfy the interests of the authorized subject, the implementation of which is ensured by the possibility of state coercion.

The definition of a subjective legal obligation reflects the following: character traits:

1. It's about necessity (must) certain behavior.

2. Can only be assigned to right- And capable person.

3. Responsible for the subject of law in in order to satisfy the interests of the authorized subject.

4. Exists in legal relations.

5. Proper behavior has its own limits (measure).

6. Cannot exist out of connection with subjective legal law.

7. Implementation guaranteed the possibility of government coercion.

8. Has legal nature, which is expressed in the following:

a) the need for certain behavior is imposed on subjects by legal norms;

b) implementation is ensured by the possibility of state coercion.

Subjective legal rights and obligations, like any dialectical opposites, have common features and at the same time differ significantly from each other. What unites them, firstly, general legal nature: both the right and the obligation arise from legal norms and are guaranteed by the state. Secondly, both rights and obligations are measures of behavior. At the same time, right is a measure of possible behavior, and duty is a measure of proper behavior. The essence of this difference is that the implementation of the right depends on the will of the authorized person, and the will of the obligated person in this regard is strictly determined: he must realize his obligation.

Distinction between rights and obligations also that if the first contains the good for its owner, then the second is carried out not in the interests of its bearer, but in the interests of another person - the authorized person.

In conclusion, it can be noted that in general subjective duties as well as subjective rights, may be non-legal: subjective moral duties, subjective duties of members of public organizations, etc.

78. Legal facts: concept and types.

The formation of the category “legal fact” is associated with the processing, comprehension and systematic presentation of Roman law by its later researchers. The general concept of a legal fact, like the concept of a legal relationship, was not formulated by Roman jurists. The term “legal fact” owes its existence to the prominent German jurist Friedrich Karl von Savigny (one of the founders of the historical school of law), who in his work “The System of Modern Roman Law” (1840) wrote: “I name the events that cause the occurrence or ending legal relations, legal facts."

In modern educational literature attention is mainly paid to the classification of legal facts, and the concept itself remains in the shadows. Authors, as a rule, limit themselves to the definition of a legal fact, which is formulated almost uniformly and sounds like this: "Legal facts- these are specific life circumstances with which the rules of law connect the emergence, change or termination of legal relations.”

Nevertheless, in terms of conceptual characteristics of legal facts, the following can be noted: character traits:

1. In your own way social nature legal facts- these are ordinary life circumstances that in themselves do not have the ability to cause legal consequences. This quality is given to them by legal norms, and it may happen that the legislator, at some stage in the development of social relations, ceases to bind legal consequences with this legal fact. However, this is not done arbitrarily, not on a whim. legislature, but under the influence of the laws of social development. Therefore, legal facts have a deep social nature and represent another outlet of law for practice, another channel of communication between law and social sphere. Thus, legal facts are socio-legal phenomena.

2. Legal facts mediate movement legal relations (emergence, change, termination). And if legal personality is considered as a special kind of legal right within the framework of general regulatory legal relations, then the actual conditions of legal personality (age, sanity, etc.) by their nature and mechanism of action are also legal facts.

3. Legal facts cause legal consequences only in interaction with legal norms. A legal fact acts as a “trigger” in relation to a rule of law; it puts it into action. In this regard, legal facts can be considered as links connecting the rules of law and legal relations.

4. Indications of legal facts and their description are contained in hypotheses legal norms. Along with the norms and subjects of law, legal facts are one of the prerequisites for the emergence of legal relations.

Legal facts, like any life circumstances, are very diverse and can be classified By various reasons:

1)by the nature of the generated legal consequences - law-forming, law-changing and law-terminating;

2)by the nature of the action - single action facts (expiration, application material damage) and fact-state (state of relationship, state of disability);

3)by the nature of the connection with the individual will of the participants in the legal relationship - legal acts (actions and inactions) and legal events. Events can be absolute or relative. Absolute events are not related to human will at all (for example, disaster). Relative events are events that do not depend on the will of the participants in a particular legal relationship, but depend on the will of other people. For example, murder for criminal legal relations is legal act, and for the civil legal relationship of inheritance - legal event;

4)With from a legal compliance point of view actions can be divided into lawful and unlawful. The latter, in turn, -on crimes and misconduct (by degree public danger);

5)depending on volitional orientation lawful actions are divided into individual acts(committed with the aim of causing certain legal consequences), legal actions(rules of law associate legal consequences with them, regardless of the volitional orientation of the subject, due to the very fact of the act) and effective actions (legal consequences are associated not with the action itself, but with its result, for example, the result creative activity);

6)depending on the degree of difficulty legal facts are divided into single legal facts and actual compositions(systems of legal facts).

The legal relationship has material, volitional and legal content:

• • material, or factual, constitute those social relations that are mediated by law;
  • volitional - state will, embodied in a legal norm and in the legal relationship that arose on its basis, as well as acts of will its participants;
  • legal content form the subjective rights and obligations of the parties (subjects) of the legal relationship.

Legal regulation is carried out mainly through the mechanism of subjective rights and legal obligations, this is what distinguishes it from any other regulatory regulation, for example moral. These rights and obligations, corresponding to each other within the framework of a certain legal relationship, act as its legal content.

Subjective law - the type and extent of possible or permitted behavior of a person guaranteed by law; The basis of subjective law is a legally enforceable possibility. The bearer of the possibility is called empowered.

Legal duty - type and measure of proper or required behavior; The duty is based on a legally established necessity. The bearer of the obligation is called the legally obligated person.

Structure of subjective law

Subjective right - certain legal possibility, but this opportunity is multifaceted, it includes at least four elements:

1. 1. the possibility of positive behavior of the most authorized person, i.e. the right to one's own actions;
   2. the opportunity to demand appropriate behavior from the legally obligated person, i.e. the right to the actions of others;
   3. opportunity to resort to state coercion in case of failure by the opposing party to fulfill its obligation (claim);
   4. opportunity to use based on this right certain social benefit.

In other words, subjective right can act as

• • law-conduct,
  • right-claim,
  • right-claim and
  • right-use.

In general, all four components in their unity constitute the content and structure of subjective law as general concept. It serves as a means of satisfying the interests of the authorized person.

Subjective law is the right of the subject of a legal relationship. Here the epithet “subjective” reflects:

• • ownership of the right by the subject;
  • its dependence on the subject.

Subjective law and rule of law

“Subjective right” not only indicates that the right belongs to the subject, but also reflects the fact that the right belonging to the subject depends to a certain extent on his personal desire and discretion, especially in terms of use.

The rule of law is objective: it does not depend on the will and desire of a particular individual, it cannot be disposed of as something personal, individual. Being a general, impersonal, abstract rule, the norm does not and cannot belong to anyone.

A characteristic feature of subjective law is a measure of behavior ensured not only by law, but also by the obligations of other persons. IN otherwise This is not a subjective right, but a simple permissibility (permission, non-prohibition), which follows from the legal order operating in society according to the principle “what is not prohibited is permitted.” Such permissions in Everyday life- countless numbers. For example, no one is forbidden to go for walks, admire nature, swim in the sea, listen to music, play sports, sing, read, write, ride a bicycle, etc., but all these are not subjective rights and they do not constitute content legal relations.

Structure of legal obligation

The structure of legal obligation corresponds to the structure of subjective law, being, as it were, its reverse side, and also includes four components.

74. Subjective right and legal obligation: concept and structure

Subjective right and legal obligation– these are systemic elements of a legal relationship that give a specific social relationship characteristic features. The degree of freedom of participants in a legal relationship and the degree of satisfaction of their interests are established by the requirements of the legal norm. Legal rights and obligations are equivalent elements of a legal relationship, even though their content is different.

Scope and boundaries subjective rights and obligations are generally determined by the rules of law. In legal relations they are specified in relation to personal subjects, legally obligated and authorized subjects build their behavior within the boundaries designated by law. The freedom of behavior of each of them is within the specified boundaries.

Subjective right is the ability of a subject, provided and protected by the state, to satisfy at his own discretion those interests that are provided for by objective law.

The right of a subject is called subjective because it depends only on the will of the subject himself how to dispose of it. Although this possibility is not arbitrary. This is a legal possibility that establishes the measure of permissible behavior.

There are three types of subjective law:

1) in the possibility of positive behavior of the owner of subjective right to satisfy his interests;

2) in the ability of the person authorized to demand established behavior from obligated persons to satisfy his legitimate interests;

3) in the ability of the authorized person to ask for protection from the competent government agencies in case of violation of his rights. First of all, it's about enforcement rights of a participant in a legal relationship.

Legal obligation of the subject, in contrast to subjective law, lies in the need to coordinate one’s behavior with the requirements presented to it.

Legally obligated person probably does not act in a manner prompted by its own interests, although it must take into account the dictates of legal rules that reflect and protect the interests of others. The right and obligation in a legal relationship are the most important and necessary conditions normal human communication. In their correct proportion, with interconnection and interdependence different interests real appearance appears law society and the rule of law.

Legal duty is provided for by law and the state-guaranteed necessity of the established behavior of a participant in legal relations in the interests of the authorized subject. If the content of subjective right forms a measure of permitted behavior, then the content of its obligation is a measure of proper behavior in a legal relationship. To the obligated person prescribe a measure of proper behavior in order to satisfy the interests of the authorized person.

Two types of legal obligation are expressed:

1) the need to take active positive actions in favor of other participants in legal relations;

2) the need to refrain from actions prohibited by law.

Implementation of subjective legal rights and responsibilities presupposes their impact on the actual behavior of participants in legal relations, the implementation of the measures of proper and permitted behavior inherent in them in existing social relations.