Pogrebnyak V. Emergence, transfer and termination of subjective civil rights.

The problems of determination of subjective civil rights are considered in the article. Modern research approaches to understanding of essence of the appropriate juridical phenomenon. The necessity to retreat from the traditional understanding of subjective civil right as kind and volume of person’s behavior into favor of approach according to which the right is the volume of juridical ability is grounded. The author considers the problem of classification of subjective civil rights and defines the characteristics that determine their dynamic abilities that are: 1) separability; 2) alienability; 3) the ability of juridical circulation; 4) polysubjectivity; 5) structuring; 6) delegativity; 7) divisibility. The essence of categories “emergence”, “transfer” and “termination” in context of their usage regarding subjective civil right is defined. It is defined that the emergence of subjective civil right in objective meaning is characterized by primacy. This feature means that subjective civil rights emerges for the first time during the process of emergence of civil relationship that did not exist before. The phenomenon of civil right emergence is considered in the context of such theories as continuality (transitive) theory, discrete theory and the theory of participants’ replacement. The transfer of subjective civil right is determined as its complete or partial termination at one participant of civil relationship and its emergence in appropriate volume at the other empowered participant (participants) of such relationship or at a person who enters such relationship. It is also defined that the transfer of subjective civil right could provide the temporary emergence at a person of some volume of juridical ability that is derivative from other person juridical ability and that is limited relatively the “maternal” subjective civil right. The termination of subjective civil right is defined as absolute and final completion of its existence that is not related to its emergence in completely of partial at the other person. Special attention in the dissertation is devoted to the consideration of the mechanisms of origin and transition of subjective civil rights, as well as the rights of claim. The author analyzes the procedures for the emergence of subjective civil rights to such objects as movables, securities, intellectual property, real estate. It is substantiated that in the relevant legal mechanisms legitimation provides for the establishment and confirmation by certain subjects of the existence of certain legal circumstances, in particular by documenting them, which is a condition for proper development of the legal model of rights enshrined in law or in the act of self-regulation. Considering the legal procedures for the transition of subjective civil rights, special attention is paid to the principles of separation and abstraction, as well as the realities and prospects of their application within the national legal order. The following mechanisms of transfer of subjective civil rights of the claim are analyzed as: 1) cession; 2) succession; 3) subrogation. Consideration of the procedure for termination of subjective civil rights is carried out in the context of differentiation of such legal mechanisms as: 1) mechanisms for direct termination of subjective civil rights; 2) termination of subjective civil rights related to termination of the subject to which they belong; 3) termination of subjective civil rights related to termination of the object of civil legal relations in respect of which they exist; 4) termination of subjective civil rights related to the termination of their legal basis.