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ARTÍCULOS

UTOPÍA Y PRAXIS LATINOAMERICANA. AÑO: 23 , n° 82 (JULIO-SEPTIEMBRE), 2018, pp . 171-183 REVISTA INTERNACIONAL DE FILOSOFÍA Y TEORÍA SOCIAL

CESA-FCES-UNIVERSIDAD DEL ZULIA. MARACAIBO-VENEZUELA. ISSN 1315-5216 / ISSN-e: 2477-9555


The Place and Role of Right Depriving Legal Facts in the Legal Regulation Mechanism of Civil Property Relations

El lugar y el papel de los derechos que privan los hechos legales en el mecanismo de regulación legal de las relaciones de la propiedad civil


Anatoliy V. KOSTRUBA

ORCID: http://orcid.org/0000-0001-9542-0929 ID-Scopus: 57197823711

priminterpar@yahoo.com

Department of Civil Law, Vasyl Stefanyk Precarpathian National University, Ivano-Frankivsk, Ukraine


This paper is filed in Zenodo:

DOI: http://doi.org/10.5281/zenodo.1495824


ABSTRACT


The paper shows that the basis for termination of property relations in civil circulation can be identified by the integrity of the legal system of a state. The author emphasises that right deprivation is used in the existing legislation not only as a measure of enforcement or realisation of state interests but also as a measure of deregulation of socio- economic development. In particular, it is specified that court relations can be realised only with the participation of progressively recognised legal facts.


Keywords: Legal facts; property relations; right limitation; right termination.

RESUMEN


El documento muestra que la base para la terminación de las relaciones de propiedad en la circulación civil puede ser identificada por la integridad del sistema legal de un estado. El autor enfatiza que la privación de derechos se utiliza en la legislación existente no solo como medida de cumplimiento o realización de los intereses del estado, sino también como medida de desregulación del desarrollo socioeconómico. En particular, se especifica que las relaciones con los tribunales solo pueden realizarse con la participación de hechos legales progresivamente reconocidos.


Palabras clave: Hechos legales; relaciones de propiedad; limitación de derechos; terminación de derechos.


Recibido: 01-07-2018 ● Aceptado: 22-08-2018


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INTRODUCTION


The advancement of modern society is connected to increasing importance and role of law as means of regulating social relations and guaranteeing subjective rights. In this aspect, the study of methods of legal impact on the behaviour of subjects of law that defines the essence of legal effect is relevant. Complex, multi- faceted behaviour of citizens requires regulation primarily by legal provisions. The state uses law when resolving conflicts in society, which becomes the most important means of exercising social control. To realise control, law uses particular instruments – means of legal impact on social relations, which in turn are divided into two groups – legal incentives and legal limitations. This predetermines theoretical and practical relevance of the analysis of legal limitations.

The purpose of this article is to analyse legal limitations as a category of legal means by their characteristics; justification for the classification criteria of legal limitations; definition of their functional role and their place in the system of other means of legal influence.

Legal limitations influence the behaviour and interests of subjects not only indirectly through limiting subjective law but also directly (for example, through the threat of punishment). That is, legal limitations not so much limit subjective rights, as individual freedoms and the process of satisfying their interests. Therefore, the application of legal limitations of subjective rights is secondary, they need to be examined in regards to specific interests of particular legal subjects. A conclusion can be drawn that the term "legal limitations" includes a number of limitations, among which are limitations on rights of physical and legal entities, interests of individuals, authorities, the state, etc.


LITERATURE REVIEW

Legal limitations were first studied at the branch level, reflecting their necessity in specific spheres of living (Maydell, 2008). In branch legal literature, limitations are understood differently depending on the need of a particular kind of social relations and the corresponding legal means of influence over them (Martin, 2015). Initially, legal limitations were applied by Roman jurists who identified servitudes aimed at limiting the owner in their rights (Durrant, 2017). The most prevalent were land servitudes. The owner of an estate that, as a result of servitude establishment, was subject to certain limitations, according to Roman law, had to endure the subject to the servitude taking certain actions, not to interfere with the use, etc. Provisions of the current law (civil, land) contain elements of the servitude. Categories of legal limitations were studied within spheres of family, labour, environmental, administrative, criminal and constitutional law (Collins, 2017).

It is necessary to pay attention to a number of aspects in the general-theoretical understanding of the category "legal limitation". First, legal limitation acts as an external factor affecting the interests of legal subjects (Schreiber, 2013). The basis for legal limitations is the close interrelation between external legal conditions and the internal structure of an individual.

Second, legal limitation is information-oriented, meaning it has the purpose of conscious change of subject's behaviour in the legal sphere. It is important to note that legal limitations are established to regulate social relations, ensure their proper functioning, while also acting as strong deterrent factors (Lee, 2016).

Third, on the informational-psychological level, legal limitations act solely as negative means (prohibitions, obligations, penalties, etc.) that do not include positive means (Staff, 1972). However, legal limitations. providing negative motivation regarding the interests of their own subject, act as the necessary means of influence on the interests of society as a whole and the interests of certain counter-subjects because they are aimed at ensuring socially useful purposes. Their importance for educational and social influence they exert should be stressed (Planzer, 2014).

Fourth, the specific (primary) legal means, such as penalties, prohibitions, obligations, termination, and not legal norms, institutions, branches, in which these legal means are secured and which acquire right


deprivation meaning owing to primary legal means, it is necessary to view legal limitations in their informational-psychological sense (Staff, 1973).

Thus, legal limitation – is legally enshrined content of the subject of legal relations against the wrongful act, the purpose of which is to satisfy interests of the counter-subject and public interests in security and protection in general (Langemeijer, 1955). Legal limitations act as established in law boundaries, within which subjects must operate, without violating legitimate rights of other subjects, that is, they perform specific acts of certain individuals to satisfy the interests of society (Kiikeri, 2001).

The main features of legal limitations as a theoretical category are such:



The classification of legal limitations broadens the understanding of their system, hierarchy, and gives much more opportunities to determine their functions and goals for society.

The objective of establishing legal limitations can be viewed on several levels. First, goals of limitations for all legal subjects (physical and legal entities, states) consist in ensuring the common good, development and functioning of the social system and its structural units. Legal limitations are universally recognised installations necessary for the organisation of life in any civilized society and to regulate relations between all legal subjects (Perlmutter, 2002).

Secondly, the limitations on the State (its bodies and officials) are intended to minimize arbitrariness and other abuses from officials, which is achieved by means of restraining state power by law and that is an obligatory attribute of a legal state (Bongar, 2017).

Thirdly, the goals of legal limitations and freedoms of a citizen tend to cause special concern in society. This happens because the rights and freedoms of a person and a citizen are of the highest value.

In general terms, the problem of legal limitations is a problem of limits of human freedom in society. After all, the freedom of each person extends only to the bounds from which the freedom of other people begins. However, the limitation of human rights is an acute problem for any society and state, since the normal process of functioning, life and development of society creates situations that require the state to establish certain limitations in the process of citizens exercising their rights. But the right to limit opportunities, freedoms,


to take away from people a part of their rights belongs only to the relevant state bodies as legitimate representatives of the whole society. It should be noted that the process of applying limitations requires a holistic system that guarantees their legal and justifiable application (Koszowski, 2016).

Guarantees in establishing legal limitations are necessary to ensure that legal limitations (at the level of norms) do not turn into obstacles to the exercise of the rights and freedoms of the individual (at the level of their realisation), so that from legitimate means they would not turn into socially harmful and illegal means.

Functions of legal limitations – main directions of impact of the right-terminating funds on the interests of legal subjects.

The main function of legal limitations is creation of conditions for satisfaction of interests of counter-

subjects and public interests in protection and security. In exercising this function, legal limitations are intended to prevent illegal, antisocial activity. Right-terminating factors stabilize social processes, which illustrates their positive role. The function of protection and security, acting as a secondary function of the informational-psychological effect of law, is the basis for the function of public relations development.

In the functioning of the law enforcement mechanism, it is obligations and prohibitions that play the most crucial role. If obligations and prohibitions do not trigger, other limiting instruments come into effect, namely – the means of protection and responsibility that belong to the rights protection mechanism.

Essentially, legal limitations hold a subordinate position since they are a supporting form of the legal

impact. At the special legal level of legal impact (at the level of legal regulation), the main means are subjective rights and legal obligations, permissions and prohibitions. However, in the informational-psychological aspect of the law, legal limitations are the leading means, together with legal incentives (because they are paired instruments that interact), and cover everything that is aimed at preventing illegal acts by exercising negative legal motivation. In this sense, everything that reduces the scope of opportunities and diminishes diversity of subjects' behaviour to a specific "limit" state is certainly a legal limitation (Mommers, 2009).

In society and state, the need to apply legal limitations is undeniable. However, it is necessary to pay attention to the fact that full application of the whole range of legal limitations without the functioning of legal incentives will not make a positive contribution to the development of social and legal relations in society. In the state there arises a need not only in socially active motivation for people but also in the presence of certain limiting, deterrent means, such as legal obligations, prohibitions, suspensions, punishments etc.


CONCLUSION

The need for legal limitations is the basis of their functional purpose, the impact they have on society at this stage of its development and their importance, which sometimes acts as more important legal incentives. However, in our opinion, they should not be the leading means of legal impact, rather the necessary, supporting means. Although, exceptionally positive obligations, meaning the effect of legal incentives in the process of legal stimulation, cannot exist without legal limitations. It is this close relationship that the impact of law on society is built on.

It is believed that without the need to limit certain activities, the existence and functioning of law in society will be impossible. Nevertheless, it should be noted once again that only justified, legitimate legal limitations positively affect the protection and security of both interests of the authorised subject and society as a whole. That is, legal limitations should match the interests existing in the state and society and should only be established by legitimate state bodies.

Unfortunately, some legal limitations are connected to lobbying of certain interests; they are unlawful and

established exclusively to satisfy the goals of certain groups of population, and sometimes – of separate individuals. Such legal limitations cannot be useful to the State and society as a whole. Therefore, if such


legal limitations are located among legitimate and necessary legal limitations, they have a negative legal motivation for society and reduce the positive impact that must be made by legal limitations.

The purpose of legal impact is to form the most desirable personal conduct for modern society and the state. However, to achieve this, it is important to establish limitations on actions of subjects of legal relations since it is necessary to remember that rights of one person can limit and prevent rights of other persons.


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