СООТНОШЕНИЕ ПОНЯТИЙ «ОХРАНА ПРАВ» И «ЗАЩИТА ПРАВ»

Abstract

Исследуются правовые категории «охрана прав» и «защита прав» в отечественной юридической литературе и законодательстве ; The protective function of the right both in science and in legislation is defined through such adjacent categories as 'protection (zashchita) of rights' and 'security (okhrana) of rights'. Scientists and legislators do not agree on differentiation of these adjacent concepts. These terms are sometimes used arbitrarily, without consideration of their lexical meanings, which is unacceptable in lawmaking. The analysis of modern legal literature allows concluding that there exist several scientific points of view, sometimes opposite and mutually exclusive. Some researchers negate the appropriateness of use of the term 'right protection'. A.S. Mordovets considers protection of rights and freedoms to be a condition of legitimate realisation of rights and freedoms under the control of social institutions, but without their interference. Some scientists correlate concepts 'protection (zashchita) of rights' and 'security (okhrana) of rights' within hyponimic-hyperonimic relations. According to Z.V. Makarova, concept 'protection (zashchita) of rights' is broader than 'security (okhrana) of rights'. Protection of rights assumes exclusion and prevention of their violation, and in case of violation of rights their restoration and compensation of the caused harm. These two concepts are also recognised as identical. Some consider 'security (okhrana) of rights' as a broader concept. With all the discussions, the majority of researchers classify right protection as measures of restoration of violated rights or of prevention of threat of rights violation. Understanding the content of the concepts 'protection (zashchita) of rights' and 'security (okhrana) of rights' will allow solving an important academic problem to define the concept 'legal means'. This will allow carrying out efficiently both state, judicial, legal protection and protection of subjective rights.