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Date
1988
Authors
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Journal Title
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Publisher
Wydział Prawa i Administracji UAM
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The conception of personal subjective rights
Abstract
The article is devoted to the question whether civil-law protection of personar
interests (Art. 23 and 24 of the Civil Code) is based on the subjective right
conception.
The author presents his standpoint with respect to the following controversies
concerning various aspects of personal interests protection. First, he rejects
the view that the immanent link between the person and his/her personal interests,
i.e. the inseparability of a subject and an object of a right makes it impossible
to adopt the construction of a subjective right. The author proves first that the
notion of an object of a right is not a necessary element of a subjective right and
that the essence of a subjective right lies in its regulative functions with respect
to behaviours of others and not in delimiting the sphere of exclusiveness for
a subject with respect to a separate object. Besides, the author proves also that
in the case of personal interests the inseparatedness of a subject and an object
does not actually take place because there are numerous individual attributes of
human personality which do not come within the notion of legal capacity and
thus require separate civil-law protection. Next, the author declares for an objective
(intersubjective) conception of personal interests and for the conception of
plurality of personal rights. The author then states that although there must
always be a statutory basis for creating „erga omnes" rights, the degree of precision
of the statutory formulation of those rights may vary and thus it is possible
to construe „erga omnes" rights protecting interests which — though not mentioned
in Art. 23 of the Civil Code — are nonetheless accepted in some way by the legal
system. As to the presumption of unlawfulness of the infringement of a personal
interest, the author states that each such infringement should be qualified as the
infringement of a personal right, and that the criteria of evaluating the unlawfulness
are to be of objective character, i.e. are to be based on normative grounds
and subsidiarily on the grounds of principles of social coexistence. Similar criteria
should be applied to the evaluation of conflicting interests. A generally accepted
view that a prevailing social or individual interest may eliminate the unlawfulness
does not in any way weaken the construction of a subjective right as a means
of protecting personal interests. In turn, a view that a consent of an entitled person
is a circumstance eliminating the unlawfulness of an infringement is fully in agreement with the conception of a subjective right. Namely, a consent is an expression
of the freedom of decision with respect to one's own interests, and as
such is the way of executing one's own subjective rights. Finally, the author
analyses other constructions which might be used for the protection of human
interests. In particular, he comments on „legal reflexes", tort liability, and the
so-called „institutional protection". Neither of them meets the standards offered
by the subjective right conception. The first does not stress adequately the fact
that general duties originate in the individual interest of the entitled person,
the second is based on guilt as one of the premisses of protection, and the third —
being centered on the protection of supra-individual interests indicated in „the
institution" — would be drastically in conflict with the very sense of introducing
the protection regulated in Art. 24 of the Civil Code, aimed at safeguarding individual
and not supra-individual interests.
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Keywords
Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 50, 1988, z. 2, s. 1-22
Seria
ISBN
ISSN
0035-9629