Journal article Open Access

Fundamental Rights with and without Institutional Guarantees

N.I. Tsekalova

The article is devoted to the analysis of fundamental rights with and without institutional guarantees. It is determined that institutional guarantees are the so-called guarantees of specific institutions and legal institutions, or the protection that arises as a result of a simple legal instruction. The article is based on an analysis of the constitutional law of Germany, since it was in this country that the idea of the existence of an institutional guarantee appeared for the first time, in particular the right to marriage, family, property or inheritance. It is also emphasized that the German Constitution recognizes not only the subjective right to marry, create a family or buy or sell property, inherit or abandon it, but also guarantees the objective legal phenomenon of marriage, family, individual ownership and transfer of property to heirs as a result of the death of a person as a legal institution. Therefore, since the emergence of these rights, and to this day, the main purpose of these rights has been and is the formation of constitutional proceedings against all-powerful legislative activity, and some restraint. The author of the article also points to possible classifications of institutional guarantees by the guarantees of the objects, as well as by the way of presentation in the normative legal acts. According to the first classification, institutional guarantees are either constitutional guarantees of public law institutions or institutional guarantees of private law institutions. According to the second classification, institutional guarantees can be classified as simple, complex and mixed. The example of German inheritance law also clearly illustrates the relationship between institutional guarantees and subjective fundamental law. In particular, it is noted that the institutional guarantee and individual fundamental right are not the same in terms of the object protected by them and the direction of their relations. Fundamental rights, including those contained in institutional safeguards addressed directly to the state, dominate the relationship between the state and the individual.

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