«SUBJECTIVE CORPORATE RIGHT» VS. «THE RIGHT WITHOUT DUTIES»: ET PRO CON
Abstract
Problem setting. The legal assessment of such a phenomenon as corporate rights is rather ambiguous and their understanding is not consistent with the terminology used in the Civil Code of Ukraine. Obvious are different approaches to the determination of the subjective corporate right, the result of which is consolidation within the Law of Ukraine «On Joint-Stock Companies» of the instruction about the presence of plurality of rights of a shareholder, but within the Civil and Commercial Codes of Ukraine – about the presence of legal authorities. Meanwhile, there is inconsistency in the mentioned Law, because the same definition of corporate rights uses both the term «other rights» (referring to the components of corporate rights) and the concept of «legal authority». A single category of «legal authority» within the subjective corporate right is rightly used, in our opinion, in these Codes. Relevant inconsistency brings to life the need to define not only the legal nature and content of the subjective corporate right, but conduction of its comparative analysis with other legal structures – one of which is the right without duties.
Analysis of recent researches and publications. The subject of studying the legal nature of the subjective corporate rights and the rights without duties was the interest of O. B. Babaiev, V. A. Belov, S. M. Bratus, Ye.V. Vavilin and others. However, the papers of these professionals do not contain an exhaustive answer to the question regarding legal practice concerning legal qualification and clarification of the correlation of the studied legal categories.
Target of research. The objective of the article is to clarify the correlation of the categories «subjective corporate right» and «the right without duties». Particular attention is paid to their use in the sphere of corporate relations and setting arguments pro and con of their application.
Article’s main body. In civil law science there is the dominant position, according to which the rights without duties together with «general» civilian subjective rights should be recognized the same subjective rights. However, the theory, according to which the phenomena, generally defined as the rights without duties, not having common legal nature, but are to be recognized as different options of real activity, measured as the legal compositions, legal facts, their elements and acts of implementation subjective civil right, which compose the actions of civil and legal activity, has been developed.
The consequence of the content difference between the rights without duties and subjective rights is the fact that just as legal competence, being a the quality of a person, can neither be changed nor moreover violated except in the cases directly established by the law (in other cases according to the actions directed at changing or violating legal competence, the law simply will not recognize no legal effect), as well as the right without duties can not to be violated, that is a priori (because the law does not provide people, who oppose its holder, such legal opportunities that could in any way affect the right without duties).
Categories «the right without duties» and «legal authority» are different in legal nature, as when legal authorities (as the opportunities that are part of the legal competency) characterize the ability to the acquisition, possession, exercise and disposition of the rights in general, the object of the right without duties – is always single specific subjective right (or set of subjective rights formed at a definite period of time). Therefore, any corporate right may consists of legal authorities, and the latter – with sub-legal authorities, but not of individual rights.
Conclusions and prospects for the development. Based on the conducted analysis the author concludes that it is more appropriate to use the category of «legal authority without duties» instead of the term «the right without duties» within corporate relations, and this is due to the content of the corporate competency. It is the use of a legal authority that includes the content of the relative right causes (causes to life) other legal authorities, so this is the basis for changing the format of the subjective corporate right.
