SECONDARY RIGHTS IN CIVIL LAW. HISTORICAL ASPECT
Journal Title: Часопис цивілістики - Year 2018, Vol 29, Issue
Abstract
This article explores the peculiarities of the development of the concept Secondary Rights (Gestaltungsrechte) in the civil law doctrine, the preconditions of the secondary rights occurrence, the civil category Secondary Rights for Ukrainian law, and the basic tools for studying the secondary rights founded by the German School of Civil Law Scholars. It deals with the genesis of the secondary right theory development that can be divided into four periods: 1) Preconditions for the occurrence of the secondary right theory (the late 19th century); 2) The emergence of the concept secondary right in views of civil law scholars of different legal families (1903-1940); 3) The development of the secondary right theory (1940-1991); 4) New doctrinal approach to the study of the secondary rights (1991 till present). The article clears up the specifics of the legal nature of such rights, analyzes the special place of the secondary rights in regulation of relations between subjects of civil law, their independence that lies in the fact that they exist independently of subjective law and its competence, and their universality based on their appearance in any civil law institution. It is identified the genesis of the notion “secondary right” from such concepts as “legal capacity” and “subjective right”, which gave an impetus for further separation of the category “secondary right”. It is analyzed the views of different scholars on the legal nature of the secondary rights; it is proved that, in contrast to the legal capacity, the element thereof is a possibility for a person to change only his/her own legal sphere by his/her own action, the content of the secondary right makes it possible to change another’s legal sphere unilaterally. It is given the author’s definition of the concept secondary right as a form of subjective legal possibility to interfere in another’s legal sphere with the aim to bring about legal consequences through unilateral will.
Authors and Affiliations
Андрій Володимирович Біцюк
Keywords
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