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Civil Code

November 12, 2016 in News Tags: ,

The study of subjective symptoms of the civil rights today, few decided to do. Firstly, because the subjective categories there was no place in Soviet law by virtue of the dogmatic materialist outlook in the state ideology. Second, categories such as reasonableness and good faith are by and large for the mother of sciences – philosophy, but the label 'philosophy' does not attract the Russian lawyer. Third, it is a complicated methodological problem, since the subjective philosophical concepts necessary to give objective legal orientation and seamlessly weave them into a legal 'carpet' of the modern civil law. Reasonableness and fairness are essential to general criteria for the implementation of the subjects of their civil rights. But the legislator does not disclose the nature of the relevant concepts, while the unification of their meaning, especially for lawyers, it seems necessary. In the 'limits of' civil rights through the criteria of reasonableness and good faith established the inner, subjective boundaries of action for the carriers themselves law. This is not the boundaries of civil rights law in an objective, and the limits of the legal persons directly in civil legal relations under pravorealizatsii.

This is the functional essence of the formula 'Right to law' laid down in Articles 1 and 10 of the Civil Code. The rule embodied in the form of a presumption in paragraph 3 of Article 10 of the Civil Code, by its very nature is increasingly precisely to cases pravoosuschestvleniya. Claim a person must prove (by reverse) in the aggregate, and irrationality, dishonesty, and the entitled person. Hence the following conclusion: the wording of the legislator in paragraph 3 of Article 10 of the Civil Code – 'in cases where the law places the civil rights …' – applies only to one case – abuse of the right. And abuse of the right in the sense of Article 10 of the Civil nalichistvuet only where there is no special rule or when the rule itself has become the 'victim' Svoge formalism. Reasonableness in pair category 'reasonableness and fairness' of Article 10 of the Civil Code makes it, if I may say so 'objective', more approximate to the right side of human behavior through its depersonalization and creating an image average, but common entity that can recognize and predict their behavior better than the average person. Reasonableness of actions – this is a formal feature, the requirement to subject (as an object of the operating system) objective, ie dogmatic law. Integrity – is no longer subject to the requirement as to the party or that has arisen, ie, real relationship. These and other problems in understanding legal terms article "The presumption of good faith and reasonableness in Article 10 of the Civil Code" in its scientific and practical activities (legal services) engaged in a qualified lawyer law firm "Irbis" Volgograd region.

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