Основание и пределы негаторной защиты

Актуальные проблемы российского права. 2023. Т. 18. № 3. С. 68–82.

Malbin D.

Negatory lawsuit is one of the classic ways to protect property rights. Despite the large number of works devoted to this institution, there is a wide range of opinions in the legal literature regarding the grounds and limits of negatory protection. Thus, there is a widespread point of view, according to which a negatory claim is a way of protecting the right to use and is applied only if the owner creates obstacles in the use of the thing. This approach is based on the existence of a triad of powers, which together form a subjective right of ownership. However, the qualification of a negatory claim as a claim for the protection of the right to use and the possibility of its application only in the case of creating obstacles to use is erroneous, since in this case the violation of the right is associated only with obstacles to the exercise of the right, since the powers allocated by science to own, use and dispose are ways of exercising the right and do not reflect the essence of the property right.. Meanwhile, the violation of the right is not limited to cases of obstacles in the exercise of the right. Violation of the property right may consist in both the action and inaction of the debtor, which in turn may be of a factual and legal nature. A negatory claim in Russian civil law is a way to protect property rights from a wide range of violations, but this is not the basis for concluding that such a claim is applied for any violations of property rights. The choice of the method of protection of the right is determined based on the nature of the subjective right and the offense. A negatory claim has its own conditions for application and should not replace other ways of protecting the right.

Keywords: право собственности, ownership, виндикационный иск, способ защиты гражданских прав, негаторный иск, possession, legal remedies, negatory claim, владение, vindication claim