Tsyban A.A. Subjective civil duty as element of obligatory legal relationship. – Qualifying scientific work on the right of manuscript. Thesis for the degree of Candidate of science (law) in specialty 12.00.03 «Civil Law and Civil Procedure; Family Law; International Private Law». – V. N. Karazin Kharkiv National University, Kharkiv, 2018.
The thesis is a complex research of theoretical and practical problems of subjective civil duty in the content of an obligatory legal relationship.
Сoncept, essence, content of subjective civil duty and place of subjective civil duty, in the structure of the obligatory legal relationship, were defined in the dissertation research. Subjective civil duty have correlation with subjective civil rights and protected by lawful interests.
There determined place of legal duty in the structure of public relations and noted that the existence of a legal obligation is possible only in those relations, which are firstly regulate by legal norms, and secondly, the rights and legitimate interests of the participants in these relations provide and protect by the state.
There analyzed positions of scientists about the essence of legal duty.
There proved interdependence subjective civil duty with protected by lawful interests because duty provides legitimate interests which realized through the duties of the general type – not to violate the protected by lawful interests. Protected by lawful interests guarantee through guarding relations which mediate the implementation of subjective civil duties of a passive type – the maintenance of
the duty person from the violation of the interests of the authorized person.
There fixed correlation between subjective civil liability and related categories («necessity», «prohibition», «debt», «burden», etc.) and concluded that the burden of retention can be considered a kind of civil-law duty which used in real legal relationships, primarily in the legal relationship of property. The civil duty about retain things (the burden of maintenance), which was based on the property right, with the conclusion of the contract and the transition of this obligation of maintenance to the debtor becomes a contractual obligation, since the
responsibility for its violation is contractual in nature.
There also suggested that, as a result of the conclusion of an agreement
which establishing the title of ownership of a thing for the debtor, the transformation of the «complex» duty of the owner of property in the obligatory contractual duty of the debtor. At the same time, after the expiration of the use, storage, etc., when it returns to the owner, the obligation to keep things that are based on the right of ownership is restored in full.
There made specific features of subjective civil obligations in the binding legal relations such as: a correlation with the rights of the creditor; counterpart; turnover (in the form of claim right and debt transfer); the opportunity to transform into a loan obligation; the possibility of protection by means of a claim for performance of a duty in kind.
There analyzed a «fulfillment of duty in kind» and proved that only «binding» duties on the transfer of things, payment of money, performance of work can be protected by lawsuits on performance of duty in kind. There argued that in obligations of non-property nature, obligations on the provision of services, obligations in the field of copyright and related rights shouldn’t used this method
of protection.
Work has characteristic of separate stages of fulfillment of subjective civil
duty and conditions and peculiarities of exemption from fulfillment of subjective civil duty. The debtor’s duty in a contractual obligation follow next stages: 1) a duty whose term of execution has not yet occurred; 2) a duty to be performed within a certain period of time under the threat of delayed execution; 3) a duty which has not been fulfilled on time, which entails civil liability, which does not exclude the fulfillment of the duty in kind; 4) a duty on which a delay was allowed and to which the creditor lost interest. Duties, which haven’t rights against them to claim can to have next qualification: duties, the term of which did not come, obligations under the deferral, counter duties.
The author proposes the definition of counter duties, which are understood as duties whose execution determines the performance of obligations by the other party to the contractual obligation, that is, they arise from one basis, are interrelated, basic and covered by the subject of the contract. There established correlation of counter obligation and the concept of «counterclaim», which used in Civil Code of Ukraine (Article 601 of the Civil Code). Counterclaims do not coincide with counter duties, since counterclaims may arise from different grounds, and counter duties arise always from one ground that corresponds to the subject of the contract.
There analyzed the reasons for the emergence and termination of a subjective civil obligation in the liability law and a phenomenon as an «one-way rejection of obligation». The author concluded that the refusal of the creditor from the contract does not terminate the contractual obligation as a whole, and, accordingly, the debtor’s obligations because refusal of the creditor means termination of the corresponding provision to the debtor due to a breach of the last contractual obligation. The dissertation has about problem of the application of such grounds for termination of the debtor’s obligations as «transferring a step-by-step» and «forgiveness of a debt». There researched separate means of ensuring the fulfillment of subjective civil duty.
There revealed The consequences of civil liability for non-fulfillment or
improper performance of subjective civil duty and analyzed thesis of the so-called «pre-contractual» and «post-contractual» liability, which is related to the «behavioral» or «guarding» duties, which are distinguished in the civil law of Germany. There supported the offer about normative fixing of pre-contractual liability by introducing in the Central Committee of Ukraine norms about the duty to faithfully negotiate and responsibility for its violation. The thesis has proposes about fixing a post-contractual liability at the legislative level, it would be advisable to establish a closed list of duties, in case of non-fulfillment of which they may incur liability after the termination of the contract.
There also indicated on the peculiarities of tort liability in the law of Germany, England, and the USA, parallel with the civil law of Ukraine.
There formulated proposals for improving the theoretical basis and the current legislation of Ukraine regarding subjective civil liability are formulated.
Key words: subjective civil duty, liability relationship, civil liability, obligations, civil liability.
http://dspace.univer.kharkov.ua/bitstream/123456789/14158/5/diss-Tsyban.pdf?fbclid=IwAR1-nOeTLI7bQsO5ci9iIdTGIPnGnZ0vSRvoh5Y0_akCKqwuYFV2WXmYJec
