Santinela drepturilor subiective – dreptul material la acţiune
The vigilante of subjective rights – the substantive right of action

Summary/Abstract: The prerogative of the holder of a subjective right to seek protection of his right through the State power is a component contained in the subjective right. Although the action, after the occurrence of the subjective right, derives from its content, in the pre-subjective era actions existed independently of subjective rights. Even in current objective law, there are examples of civil actions without subjective rights, such as actions for absolute nullity of marriage. But the intellectual automatism that has taken over legal thinking since the advent of subjective law has led many to look for a justifying subjective law wherever there is an action. This study aims to identify the nature of the substantive right of action. To this end, we have analysed the concept of action in French law. Then, we analysed the concept of action in Romanian law. If up to and including the interwar period, Romanian law drew its vision of action from the opinion of 19th century French authors, the evolution of post-war French thought could no longer be followed by Romanian doctrine, for easily understandable ideological and political reasons. However, in Romanian socialist law the action was conceived in a similar way to the French view: also as a subjective right, called a substantive right of action. We investigated the origin of this concept and identified it in Soviet law. There, the substantive right of action was used to explain, among other things, the extinctive effect of the limitation period, which left the procedural right of action intact. Romanian authors during the communist period have, not surprisingly, adopted the Soviet model of the substantive right of action. However, after the fall of this regime, there was the possibility of abandoning this orientation. Out of intellectual indifference, perhaps, this concept has been preserved in current Romanian law, despite its extravagance. Maintaining the false substantive subjective right of action is an obsession of the doctrine and the legislator, which affects the meaning and effectiveness of the category of subjective right.

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