The Author examines the notion of subjective rights from the perspective of the distinction made by the Italian constitution between subjective rights and “legitimate interests”. He distinguishes between rights within a complex relationship, like credits, and rights without any relationships, like ownership. Obligations in the modern age are conceived as complex legal relationships including not only duties of performance but also protective ones (Schutzpflichten, obblighi di protezione) with the purpose of protecting the other arty’s economic and non-economic interest at risk during the relationship. As the consequence of the rule of good faith and correctness, protective duties oblige both parties, the debtor as well as the creditor. Since protective duties are compatible with the position of the creditor, who is in a position of supremacy, there is no contradiction in extending this model to the position of the public administration with respect to citizens directly affected by its acts. Italian jurisprudence recognizes the right to award damages in favour of citizens adversely affected by acts adopted illegitimately by the public administration, but the grounds for this remedy is controversial. Within a framework criticized by the Author, a part of Jurisprudence, supported by some scholars, applies the rules of torts in line with a so-called trend of “remedialism”, which overshadows the question of grounds for remedies in favour of a generic concept of the effectiveness of the remedy: no matter what the legal reason, the overriding concern is to provide the remedy, that is damages in these cases. According to the Author the more apposite form of responsibility in such cases is contractual responsibility. Although citizens do not necessarily have a right to performance of a certain administrative act, nevertheless the public administration is obliged to adopt its acts in a correct manner protecting citizens who have a reasonable expectation of its correctness, thus the violation of correctness provides sufficient grounds for damages. Protective duties imply that the counterpart occupies a special legal position, a subjective relative right, without a claim to performance, but only with the claim for damages in case of violation of the duty. This extension of the category of protective duties to public administrations confirms that in the matter of responsibility it is possible to conceive of a common law between private and public law, while the special concept of “legitimate interests” is to be confined to the matter of validity of the acts adopted by the public administration, thus avoiding any confusion between the question of validity and that of responsibility.

Nicolussi, A., Diritto soggettivo e rapporto giuridico. Cenni di teoria generale tra diritto privato e diritto pubblico, <<EUROPA E DIRITTO PRIVATO>>, 2014; (4): 1191-1235 [http://hdl.handle.net/10807/65558]

Diritto soggettivo e rapporto giuridico. Cenni di teoria generale tra diritto privato e diritto pubblico

Nicolussi, Andrea
2014

Abstract

The Author examines the notion of subjective rights from the perspective of the distinction made by the Italian constitution between subjective rights and “legitimate interests”. He distinguishes between rights within a complex relationship, like credits, and rights without any relationships, like ownership. Obligations in the modern age are conceived as complex legal relationships including not only duties of performance but also protective ones (Schutzpflichten, obblighi di protezione) with the purpose of protecting the other arty’s economic and non-economic interest at risk during the relationship. As the consequence of the rule of good faith and correctness, protective duties oblige both parties, the debtor as well as the creditor. Since protective duties are compatible with the position of the creditor, who is in a position of supremacy, there is no contradiction in extending this model to the position of the public administration with respect to citizens directly affected by its acts. Italian jurisprudence recognizes the right to award damages in favour of citizens adversely affected by acts adopted illegitimately by the public administration, but the grounds for this remedy is controversial. Within a framework criticized by the Author, a part of Jurisprudence, supported by some scholars, applies the rules of torts in line with a so-called trend of “remedialism”, which overshadows the question of grounds for remedies in favour of a generic concept of the effectiveness of the remedy: no matter what the legal reason, the overriding concern is to provide the remedy, that is damages in these cases. According to the Author the more apposite form of responsibility in such cases is contractual responsibility. Although citizens do not necessarily have a right to performance of a certain administrative act, nevertheless the public administration is obliged to adopt its acts in a correct manner protecting citizens who have a reasonable expectation of its correctness, thus the violation of correctness provides sufficient grounds for damages. Protective duties imply that the counterpart occupies a special legal position, a subjective relative right, without a claim to performance, but only with the claim for damages in case of violation of the duty. This extension of the category of protective duties to public administrations confirms that in the matter of responsibility it is possible to conceive of a common law between private and public law, while the special concept of “legitimate interests” is to be confined to the matter of validity of the acts adopted by the public administration, thus avoiding any confusion between the question of validity and that of responsibility.
Italiano
Nicolussi, A., Diritto soggettivo e rapporto giuridico. Cenni di teoria generale tra diritto privato e diritto pubblico, <<EUROPA E DIRITTO PRIVATO>>, 2014; (4): 1191-1235 [http://hdl.handle.net/10807/65558]
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Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/10807/65558
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