Alternative concepts of the right to defense based on German theories of the 20th century

Abstract

The paper analyzes approaches to the correlation between subjective rights and process that were proposed after A. Vakh's discovery of the dualistic concept of the right to sue, which have not been the subject of analysis within domestic legal science. The author focuses on analyzing the arguments of supporters of the construction of the right to defense as a phenomenon that includes both private and public components. The paper identifies unexplored models of the relationship between subjective rights and the procedural form of their implementation and protection in domestic literature. The author examines a part of the doctrine of subjective rights, specifically the right to defense. Considering the complexity of the issue, the paper also addresses aspects related to the functions and features of civil procedure as a form of exercising subjective rights. Various methods were employed in writing the paper, including comparison, description, analysis, synthesis, as well as comparative legal and historical-legal methods. The main conclusions of the conducted research are as follows. The unification of private (subjective rights) and public (procedural rights) components within a single category is an unattainable task. Theories attempting to synthesize subjective rights and process inevitably lead to an increase in the role of the public component. Consequently, genuine legal reality begins to be constructed by civil procedure; in other words, private law starts to derive from public law. Within such a system, the procedural form begins to perform a function of granting rights that is not inherent to it, thus the norms of substantive law and, at the same time, subjective private rights cease to play a structuring role. For subjective civil rights, the procedural form acts as a special mechanism that ensures the exclusive and monopolistic nature of subjective rights.