Koncepcja praw podmiotowych osobistych
Wydział Prawa i Administracji UAM
The conception of personal subjective rights
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.
Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016
Ruch Prawniczy, Ekonomiczny i Socjologiczny 50, 1988, z. 2, s. 1-22