The Contradictions Of Human Rights Definition In The Russian Civil Law

Classification of intangible values and non-property rights

The Civil Code of the Russian Federation is the main source of regulation of intangible values and non-property rights for law enforcement. It defines the list of these objects of legal regulation in Article 150, entitled “Intangible Values.”

But the title of the article is not quite adequate to its essence, because the list of intangible values includes personal non-property rights, without separating the latter from the values (Bakayeva, 2016). Mixing of these objects may be misleading, and the article needs further elaboration.

From the text of the article it becomes clear that an intangible value or non-material right may arise from birth or by virtue of the law. So we can divide these values (rights) into levels, of which the first, highest in the hierarchy of intangible values (rights) is the right to life and health. They are objective, independent of legislative regulation.

The Constitution of the Russian Federation also gives priority to the right to personal inviolability, dignity, honour and freedom, privacy, freedom of movement, freedom to choose a place of residence and the right to information.

Another classification proposes to divide all intangible values into two types. The first ones are inseparable from the person, personalized, cannot be transferred either physically or by virtue of the law (right to life, health). They are protected but not regulated by the Civil Code while outside civil turnover.

The second group are values and rights that can be transferred, alienated, that is, be either fully or partially negotiable. These are values and rights such as “privacy”, “appearance of the citizen”, and so on. They are both protected and regulated by civil law. This division could easily be combined with the inherent and status dignity concept, and the first group of rights could be named based on inherent dignity, and the second based on status dignity.

Intangible values and non-property rights as the objects of civil law regulation

Kratenko (2008) states that the possibility of affirmative action on the disposal of such values or rights is regulated by law only for a number of relations.

For example, it's a donation relationship. We doubt that it is theoretically possible to define the meaning of the donor 's reimbursable remuneration, like the reimbursement of the transferred organ or tissues. It is possible to talk about compensation to the donor of physical inconvenience related to medical intervention. Therefore, this type of disposal of his health cannot be called alienation for remuneration or even more so by a sale transaction.

Questions are also raised about the competence of a citizen to other personal non-property rights. Euthanasia is prohibited in Russia, but whether this prohibition is unconstitutional because it violates the right of a citizen to life.

The problem of the relationship between the concepts of intangible value and non-material right can be considered on the example of the external appearance of a man. The Civil Code regulates only the right to image, although the object to which the legal relationship is directed is the man’s external appearance. Until 2006, the right to image was regulated by copyright law, however, after the inclusion of article 152.1 in Chapter 8 of the Civil Code of the Russian Federation “Intangible Values and Their Protection”, the position of legislators who refer to the image of a citizen as personal non-property value became more clear.

Under this article, the image of a citizen can be used only with his or her consent. This is confirmed by the materials of juridical practice. For example, the Decision No. 2-1925/2019 2-1925/2019 ~ M-1443/2019 M-1443/2019 of May 22, 2019 on case No. 2-1925/2019 Lenin regional court of Ulyanovsk.

The case was considered on the claim of Malova I.A. to the Investigative Committee of the RF, the Investigative Department of the Investigative Committee of the RF on the Ulyanovsk Region, the Limited Liability Company “Melekesa Press” for compensation for moral damage.

In the printed publication, the founder of which was LLC “Melekesa Press” and on the website of this printed publication was placed a photo of Malova’s father, who died in the result of an accident during sports activities. The photograph was taken by the photographer of the Investigative Committee of the Ulyanovsk region during the investigation to qualify the incident. The photographer handed these photos to the publication, although his duties did not include this. As an excuse, he noted that he did not assume that the photographs would be published.

The plaintiff was the daughter of the deceased, and the right to consent to publish the image passed to her in succession. In her turn, Malova did not give her consent to the publication of the mentioned photo. In the claim, the plaintiff stated that the illegal actions of the defendants caused her moral suffering, in connection with which Malova I.A. requested to recover from Investigative Committee of the RF, the Investigative Department of the Investigative Committee of the RF on the Ulyanovsk Region, the LLC “Melekesa Press” the compensation of moral damage.

The representative of LLC "Melekesa Press" claimed that the publication of the photo was published in the process of carrying out the public duty to inform citizens on issues of public interest. In this case public interest was expressed in a warning of the elderly members of society to taking into account the physical capacities and the state of health while occupation by physical culture and sport.

The court recognized Malova 's right to compensation for moral damage, without finding the defendant 's arguments satisfactory. The court decision stated that human and civil rights and freedoms were directly applicable. The Constitution of the Russian Federation (1993), guarantees the right freely to seek, receive, transmit, produce and disseminate information in any lawful manner (Art. 29, part 4) establishes the right of everyone to privacy, personal and family secrets, protection of his honour and good name (Art. 23, part 1) and does not permit the collection, storage, use and dissemination of information about a person 's private life without his consent (art. 24, part 1).

Also by the Federal law of 27.07.2006 No. 152-FZ "About personal data" the photo of the citizen belongs to objects personal data and cannot be published without his consent. The legal entity has only one non-property right, protected by civil law (Civil Code of the RF, 2019). This is the right to business reputation. In other words, it is the right to restrict any false information which can harm the image of the producer. But it is difficult to calculate the real and future losses of the producer, who’s business reputation was violated.

Close relationship of honour, dignity and business reputation as intangible values make it possible to consider jointly the standards provided to them by public protection law. Infringement of any of these intangible values actually mean encroaching on the other two (Ponomarenkov, Kalashnikova, Korobkova, Petrogradskaya, & Karev, 2018).

The ideal character of intangible values and non-property rights is quite obvious. It is also obvious that in certain situations their non-property character determines property relations, such as the right of authorship, which gives the person whose creative work the work is created the right to dispose of them and therefore to profit. It is especially important after Russia’s accession in WTO (Gnevko, Shahina, & Kirsanov, 2016). The sphere of service industries is rather young and therefore underrepresented in Russian legislation.

Medvedev (also stressed the need to ensure the attractiveness of the Russian jurisdiction for businesses (Medvedev, 2016). Foreign investors are interested in predictable conditions of creating or using goods, intellectual property as well. Sometimes it is quite difficult to separate the right of the author to indicate his name as the creator of the work from exclusive rights - rights to use, reproduce, copy the work.

Let’s take a case, examined in the Review of judicial practice in cases involving the settlement of intellectual rights disputes (from 23 September 2015). The Supreme Court found no violation of personal non-property rights, although the courts of first instance recognized and determined to compensate the author for moral damage. The core of the case was that the defendants violated the author’s intellectual rights to works created by him, distributing a collection containing works in which the works of the plaintiff are partially copied. The court decision, which was left unchanged by the appeal decision, partially satisfied the claims, in favor of the author the defendants were compensated for the misuse of the works, as well as compensation for moral damage.

The Supreme Court annulled the previous court decisions, considered that the disposal of the author's work without his consent was a violation of his exclusive rights and the damage caused was not compensable as moral damage recovering, since the courts of first instance did not specify what personal non-property right had been violated.

However, the fact that the publishers not only distributed a collection in which the works of the author were used, but also the fact that the actual creator of the works was not so marked, indicates a violation of the rights of the citizen to authorship of the work, which refers to personal non-property rights.