Chegovadze L.A. From Claim to the Right in Tort Obligations
DOI: https://doi.org/10.15688/lc.jvolsu.2018.1.3
Lyudmila A. Chegovadze, Doctor of Juridical Sciences, Professor, Department of Civil Law and Procedure, Russian Presidential Academy of National Economy and Public Administration, Prosp. Vernadskogo, 84, 119606 Moscow, Russian Federation; N.I. Lobachevsky State University of Nizhny Novgorod, Prosp. Gagarina, 23, 603950 Nizhny Novgorod, Russian Federation, This email address is being protected from spambots. You need JavaScript enabled to view it.
Introduction: the grounds for contractual obligations are the actions to conclude the agreement regulated by the law, as well as the enforcement actions of the parties of the formally non-concluded agreement which eliminate the state of legal uncertainty. The law does not regulate and prohibits the actions to cause harm, as a result of which there are tort obligations, therefore, in civil law, with the rare exceptions, they are considered as a measure of responsibility. However, the approach to the basis of the tort obligation as an offense is not based on the standard; the offense is determined by the scientists, and therefore, the question of the concept and criminal wrongdoing is acutely debatable.
Methods: the methodological framework for this study is a set of methods of scientific cognition, among which the main are the methods of consistency, analysis and comparative law. Results: justified in the work the author’s point of view is based on the legislation and the competent academic community’s opinions of the existence of the independent civil-law mechanism for the creation of obligations as a result of causing harm, based on the fact that the presence of a mediated connection of a tort obligation with an act of causing harm does not mean that this act directly generates it. On the basis of the legal analysis of the norms the Russian Federation Civil Code and the doctrine about the legal consequences the author conducts the investigation of the state of civil law relations upon the fact of injury. The issues of the legal regulation of absolute relations in case of need to protect the subjective right of one of the parties are raised.
Conclusions: it was found that as a legal consequence the indemnity obligation is established as a result of legitimate actions – independent protective actions of one individual in response to the violation of his right by another person. In order to substantiate a claim to protection, it is sufficient to prove that the act which caused the injury is not permitted (prohibited) by law or is committed beyond the pale and that it inevitably causes the harmful result whose elimination is asked by the victim. The subjective evaluation of act act has no legal significance, just as its illegal or lawful nature – the law prohibits harm not only by illegal actions, but also by lawful ones as well (Art. 16.1 of the Civil Code of the Russian Federation).
Key words: act of causing damage, legal consequences, claim to protection, state of civil legal relations, lawful legal acts, violation of absolute rights, mechanism of tort obligations, causal link.
 2_Chogovadze.pdfURL: https://j.jvolsu.com/index.php/en/component/attachments/download/1759 | 711 Downloads |