§ 1. Forms of realization of law.
§ 2. The concept of the application of law. The main stages of the process of applying the rules of law.
§ 3. Acts of application of legal norms: concept, types.
§ 4. The effect of regulatory acts in time, in space and in the circle of persons.
§ 5. Spaces in the right. Applying rights by analogy.
§ 1. Forms of implementation of the right
The rules of law exist in order to actively affect the behavior of people, regulate public relations. The impact of the right to behavior of people is carried out through their will and consciousness. Thanks to legal regulation, people can act as prescribed by the norms of law. Their behavior is streamlined, is concerned with the needs of social development, the general and individual interests of the citizens of the state.
The implementation of the rules of law is the embodiment of their prescriptions in the behavior of people.
The following forms of realization of the rules of law differ: implementation (use) of rights, fulfillment of responsibilities, compliance with the duties and the application of the norms of law (the special form of their implementation).
1. Implementation (use) of rights is expressed in the implementation of opportunities that are provided to participants in public relations with the norms of law. In this form, there are, for example, norms that enshrine citizens the right to participate in the elections of representative bodies of state authorities; The right to own, use and dispose of your property and others. The peculiarity of this form of implementation is that participants in public relations can perform actions that are allowed by law norms.
2. Performance of responsibilities is expressed in the mandatory acting actions that are prescribed by law. This form is implemented by norms that determine the legal duties of citizens, officials, state and public organizations, their bodies. For example, the obligation of the Supplier within the prescribed period to deliver products to the customer; debtor's duty to return debt; The duty of the witness to give truthful testimony by law enforcement agencies. The peculiarity of this form of implementation is expressed in the fact that the subjects should, regardless of their own desire, to perform active actions provided for by the norms of law.
3. Compliance with duties is expressed in abstinence from the action of actions prohibited by legal norms. The essence of this form of implementation of the rule of law is in the imperfect of actions that harm society, the state, personality. So, without performing actions that are prohibited by the norms of law, citizens implement the requirements of these norms. In contrast, compliance with duties is passive, since legal responsibilities are implemented by refraining from certain actions. In the first case, citizens should actively act to implement the rule of law, and in the second, on the contrary, do not make prohibited actions.
These forms of implementation of legal norms are considered immediate, as legal prescriptions are implemented by the participants in public relations themselves. If these forms do not allow fully implementing the rights and obligations provided for by legal norms, the need to use the use of law as a special form of its implementation. This question requires special and more attentive consideration.
§ 2. The concept of the application of law. The main stages of the application of the rules of law
The application of the norms of law is necessary when the above-wired forms are not enough to fully implement legal norms and requires interference in this process of special competent authorities.
Application of the norms of law is the imperative activities of the competent government agencies For the implementation of legal norms regarding specific vital cases and individuals, certain persons.
What are the characteristic signs of the application of the rules of law?
First, law enforcement activities carry out only competent government agencies (officials) or public authorities. For example, the city hall, prefecture, court, enterprise administration, military commander, trade union committee. Separate citizens who are not officials, special powers do not have and, therefore, to apply law norms.
Secondly, the activities for the application of the norms of law has. State-domineering character. Such is the activities of the court for the implementation of justice or the investigator to investigate the criminal case.
Thirdly, the content of law enforcement activities is expressed in the publication based on the rules of the right of individual legal prescriptions (acts). These acts relate to certain vital cases and are addressed to specific persons. For example, the decision of the executive committee on issuing a specific citizen of the order to the apartment, a court sentence against the person who committed a crime, etc.
Fourth, the application of the rules of law is carried out in strictly established by law. Of particular importance is such an order in the application of the norms of criminal and civil law, ensuring consistent legality, deep and comprehensive consideration of the circumstances of a specific legal case.
When, in what cases does the need to apply the rules of law?
1. The rule of law is applied by the competent authorities when provided for on legal rights and obligations cannot arise from specific individuals and implemented without their state-of-government activities. For the emergence and implementation of these rights and obligations in each individual case, it is necessary to publish the competent authority of the powerful decision regarding a particular person. For example, in order to study in a higher state educational institution (realizing their right to education), it is necessary to decide the head of this university about enrollment; In order to realize the right to employment, it is necessary for the official decision of the administration of the enterprise, the organization of employment. In each of the named and similar cases it is necessary to publish the order by the head of the relevant institution about the implementation of these rights.
2. The law enforcement activities of the competent authorities are necessary in the case when there are certain obstacles to the use of subjective legal rights by citizens or organizations. For example, a citizen has acquired a house on the legitimate basis, and other persons create obstacles to the realization of the right of ownership of the acquired house. In this case, the citizen addresses administrative authority Or the court who make a decision aimed at restoring the violated right to the owner of the house.
3. The need to apply the rules of law arises when legal responsibilities are not fulfilled voluntarily. For example, one organization pledged to supply a different product to a contract under the contract, but did not fulfill its obligation. In this case, the competent authority (arbitration, court) makes a powerful decision, on the basis of which the organization of the organization taken by it is compulsory
4. Law enforcement activities are always necessary if an offense is committed and it is necessary to determine the appropriate measure of legal recovery to the offender. So, when making a disciplinary misconduct, the penalty determines only the commander (boss), applying the appropriate norm of the disciplinary statute. When a crime is committed, the measure of punishment determines only the court, on the basis of the norms of criminal law.
The main stages of the application of the rules of law
Enforcement activity is a complex process consisting of a number of consecutive actions - stages.
1. Establishing the actual circumstances of the case. The application of legal norms, as already noted, is aimed at ensuring their implementation with respect to a specific case, which consists of certain facts. These facts and form the actual basis for the application of the norms of law. That is why persons applying legal norms must first of all select and clearly allocate the facts that are necessary for the right decision of the legal entity; Then conduct a thorough analysis and evaluation of these facts.
The establishment of the actual circumstances of the case should be reasonable and legal. From this depends the correct application of the norms of law. The validity and completeness of the establishment of the circumstances of the case is achieved by deep and comprehensively research the facts, finding out their truth and objective reliability. To establish an objective truth in the case, the facts are analyzed in their relationship and causal dependence.
It is also important to keep in mind that the law enforcement authorities are examined not completely all the facts characteristic of this case, but only those that are directly related to the decision of the legal entity. In other words, actual circumstances are established in the ratio with the norm of law, which applies to these circumstances. So, in the study of the circumstances of a particular criminal case, the following facts should be established primarily: who committed a crime when and where it was committed, in which way, what are the motives for committing a crime. Facts that have legal importance are established by testimony, the results of the inspection of the scene, examination, research of documents, subjects and other data. These data are established in the procedure provided by law and are called legal evidence.
2. Selection and analysis of the rule of law to be applied to the studied actual circumstances. After establishing the legal importance of the considered circumstances of the case begins the second stage of application of the norms of law. At this stage, the law enforcement body is primarily solving the issue on the basis of which rule the case should be solved. Choose a norm - it means to give legal qualifications (evaluation) by the actual circumstances of the case.
Next, it is necessary to establish authenticity (reliability) of its text from the point of view of legality, check if the error text is not allowed if this norm was changed. It should be used by the text published in the official edition. Moreover, it is necessary to be guided by the latest edit of the official publication with all the changes and additions on the day of the application of the rule of law. Here, the law enforcement body must determine whether the chosen rule does not contradict the law and other regulatory acts. The rate of law can be applied only when it complies with the instructions of acts of higher authorities.
An analysis of the selected legal norm includes a thorough check of its action in time, in space and in a circle of persons. This means that the law enforcement body must accurately establish:
Whether the norm acts at the time when it is based on a specific depot on its basis;
Whether it acts on the territory where this depot must be permitted;
Whether the action of this norm on persons on which it must be applied is distributed.
When choosing and analyzing the rule, it is sometimes found that this case is regulated by several norms that do not coincide or even contradict each other in their content. In this case, the collision of legal norms takes place. How are collisions between legal norms are allowed? What of the norms the competent authority should apply to the circumstances of the case? There are the following rules for the resolution of collisions in law enforcement activities:
1) if a contradiction was found between the norm of the federal law and the norm of the republican law, then it is necessary to apply the norm of a federal law;
2) if there is a collision between norms emanating from various organs, the value of a higher authority is applied;
3) in contradiction between the norms adopted by the same body, but at different times, the norm is applied, which is adopted later;
4) In the case of a conflict between the general and special norm, the latter is applied.
The task of the competent authority at this stage includes clarification (interpretation) of the applied norm, as well as overcoming gaps on the right by applying the right by analogy.
3. Decision to the competent authority and bringing this decision to stakeholders and organizations.
This is the final and basic stage of the application of the norm of law. The establishment of actual circumstances, as well as the choice and analysis of the legal norms, prepare the publication by the competent authority of an individual legal act (for example, a sentence of the court, an order of an official). Before making a specific solution, it is necessary to make sure that the circumstances of the case are investigated correctly and with sufficient fullness, which applied the rule of law belongs to this case. Based on such conviction, the competent authority makes a powerful decision, after which it announces its interested-owls and organizations. This is the process of applying the rule of law ends - the implementation of the act of applying the rule of law, specific rights and obligations defined by this act begins.
§ 3. Acts of application of legal norms: concept, types
The activities of the competent authorities are completed by publishing an act of applying the rule of law. He records the decision made, gives him official importance and imperative.
The act of application of the rule of law is an official legal document containing an individual state-powerful prescription of the competent authority, which is submitted as a result of the permission of a specific legal entity.
What basic signs are the acts of applying the rules of law?
First, the act of application of the rule of law has a domineering nature and is protected by the forced power of the state. Concrete prescriptions contained in it have the mandatory value of the day of all, to whom they relate, and in necessary cases Can be implemented forced. For example, the court decision on the return of a citizen to the temporary use of things is necessarily for execution. For violation of the requirements of this act, a citizen is responsible as a violation of the norm of law, on the basis of which he tried.
Second, the act of use is an individual legal act. It refers to strictly to certain persons. The law enforcement act is valid for this case and does not apply to similar cases. This is different from regulatory acts that contain legal norms that are general. Rights of law regulate many of the same type and apply to all persons who are in their field of action (specifically not defined). They are designed for repeated use. Individual legal acts do not contain legal norms. They only specify general prescriptions in relation to individuals or organizations and have a one-time meaning. By virtue of this act of applying the rules of law to sources of law do not belong. In collections of legislation, they are not included.
Thirdly, law enforcement acts should be legitimate, to be carried out in strict accordance with the law, to rely on certain norms of law. Thus, the verdict of the court on the appointment of punishment to the person who committed a crime can be carried out only on the basis of the norms of criminal law. If the application does not comply with the law, it must be canceled.
Fourth, acts of applying the norms of law are issued by the law established by law and have accurate name. The law provides for a strictly defined procedure for the publication and design of individual legal acts. For example, acts taken by law enforcement agencies (ships, prosecution authorities, etc.) should have the following mandatory elements:
1) the introductory part in which the name of the act is indicated, the name of the body that has published it, the time of publication, a specific addressee;
2) a descriptive part where the actual circumstances of the case are set out;
3) the motivative part that gives the rationale for the decision taken;
4) the operative part in which the content of the solution is set.
Each law enforcement act has strictly defined names: the verdict, order, decree, an order.
Classification of acts of application of the norms of law is made on various bases. Depending on the subjects applying the norms of law, individual legal acts are divided into the following types:
Acts of representative bodies of state power;
Acts of executive bodies of state power;
Acts of law enforcement state bodies (courts, prosecutors, arbitration, etc.);
Acts of state control (tax inspection, customs authority, etc.).
Depending on the content of public relations and the rules applied to them, law enforcement acts are divided:
On regulatory, which establish specific legal rights and obligations in connection with the legitimate behavior of people (for example, the order of the Rector of the educational institution about enrollment in the university; decision of the social security body on the appointment of a pension);
By the protective, published in connection with the commission of individuals of offenses (the verdict of the court, the decision of the investigator on the involvement of the suspect as the accused, protest the prosecutor).
Thus, acts of applying the rules of law are the most important means of implementing the prescription of legal norms.
§ 4. The effect of regulatory acts in time, in space and in a circle of persons
The establishment of the limits of the regulatory acts is necessary for the correct implementation of the rules of law. After all, any regulatory act is published in order to regulate the behavior of a certain circle of people at a set period of time. Especially important, as noted earlier, this issue has for law enforcement activities of the competent authorities.
Action in time. Regulatory acts begin to act since their entry into force. In many countries there are certain rules for the entry into force of regulatory acts.
1. The act comes into force from the moment of its adoption of the law-speaking authority.
2. The act begins to act after the expiration of a certain period after it is published. Thus, in Russia, legislative acts come into force throughout its territory in 10 days from the date of their publication in the official edition of the legislature.
3. The regulatory act comes into force with the time specified in the act or in a special act on the introduction of it.
The establishment of an exact period of entry into force of regulatory acts is important because it is from now on that their prescriptions are subject to execution. A new regulatory act spreads its action only on those relationships that occur after its entry into force. It does not have the inverse force. This principle means that prescriptions regulatory Act Do not apply to relations that arose and existed before its publication. This provision is a reliable guarantee of ensuring the rights and obligations of citizens, maintaining solid law enforcement. Exceptions from the specified principle are allowed only in two cases:
If its inverse force is established by the regulatory act;
If criminal laws or administrative acts; The legislation soften the punishment or altogether eliminate the punishability of Acts.
Regulatory and legal acts lose their strength (terminate the action) on the following grounds:
After the expiration of the act, when such a term was specifically set;
In connection with the publication of a new regulatory act, replaced previously valid;
Based on the direct indication of a particular authority on the abolition of this regulatory act.
Action in space. The limits of the regulatory act in space are determined by the territory on which its prescriptions apply. Under the territory is understood as the earth's surface, subsoil, water and airspace within the state border, the territory of embassies abroad, military ships in the open sea and in foreign territorial waters, non-military vessels in the open sea, the cabins of aircraft and spacecraft in the atmosphere.
The effect of regulatory acts applies, as a rule, to the territory that has been subordinated to the authority, which has made them. Thus, the regulations of members of the federal state are valid only in their territory; Acts local organs States in the territory of the district, prefectures, cities, land, etc. Under the Federal State Device, in some cases the possibility of action of some legal norms of one state in the territory of another state (for example, in resolving property disputes, inheritance issues) is allowed.
Action in a circle of persons. There is a rule that the effect of regulatory acts applies to all persons living in this territory. Laws and other regulations on the territory of the state are applied in relation to all citizens, state and public organizations. Their action also applies to foreign citizens and stateless persons. These persons are guaranteed by the rights and freedoms envisaged by national legislation. They can go to court to other state bodies to protect their personal, property, family and other rights. Foreign citizens, stateless persons who are on the territory of a certain state must respect its constitution and comply with the laws.
However, there are exceptions to the general rule when the actions of regulatory acts in the circle of persons do not coincide with their action on the territory. Thus, foreign citizens who enjoy the right of diplomatic immunity on the territory of another state cannot be criminally responsible to be called to court for testimony. If such persons make an offense, the question of their responsibility is permitted by diplomatic means. Some national regulatory acts do not apply to foreign citizens and stateless persons (for example, acts on elections to state bodies, about military service).
Regulatory acts may disseminate the action not on all citizens and officials of this territory, but only to certain categories (military personnel, teachers, faces of countryside and others). In such cases, in legal acts, the circle of persons falling under their action is precisely determined.
§ 5. Spaces in the right. Application of rights by analogy
When choosing and legal analysis of the legal norm, which should be applied to a specific occasion, sometimes a space is detected. What is the gap in the right?
The gap in the right is the lack of legal norm when resolving specific vital cases that are covered by legal regulation and should be permitted on the basis of law.
The reasons for the occurrence of gaps in the right may be the lagging legislation on the development of life, omissions in the preparation of regulatory acts and others.
The main way of replenishing the gap in the right is the publication of the missing legal norm, the need for life is due to life. In cases where the law-conducting body failed to eliminate the gap, the rule is used to apply the right by analogy. Under the analogy is understood as a certain similarity between different phenomena or objects. The use of rights by analogy does not mean an arbitrary solution to specific cases. The decision is made here in accordance with the principles of legality and justice. In jurisprudence, two main types of analogy are distinguished: the analogy of the law and the analogy of law.
The analogy of the law is a solution to a specific legal case on the basis of the legal norm, designed not to this, but for similar cases. If the competent authority solves the case in accordance with the requirements of the norm regulating the most similar (similar) social relations, then in this case there is an analogy of the law. In this case, the applied rule of law is not directly adjustable. It regulates others, but close, related relationships.
The analogy of law is the decision-making on a specific case on the basis of the general principles and meaning of law. Analogy to rights is applied when, if there is a space, it is impossible to choose a similar, similar rate of law.
The use of rights by analogy in modern states is limited. It is completely excluded when resolving criminal cases. Criminal legislation proceeds from the principle of which the crime cannot be considered an act not provided for by criminal law. In connection with the constant improvement and development of legislation, the use of law by analogy becomes rare exception even for those branches of law where it is allowed.
Application of the rules of the right to the authorities, the stage of application of the law
Acts of Application Rights Rights
Limits of the laws on the territory (in space) and in the circle of persons
Questions to secure knowledge
1. What is the essence of the implementation of legal prescriptions?
2. Describe the form of implementing legal norms using specific examples.
3. What are the features of the right to apply the rule of law with power bodies?
4. In what cases there is a need to apply the rule of law to the authorities of the state?
5. What are the main stages of the process of applying the rules of law?
6. Expand the features and signs of law enforcement, individual legal act.
7. Describe the types of acts of applying the rules of right to specific examples known to you.
8. What is the difference between the application of the rule of law from the regulatory act?
9. What are the basic rules of the action of the law (norms of law) in time? When the law loses its legal force?
10. In which cases the law has a reverse sip, and in what - does not have?
11. Describe the limits of the law on the territory (in space).
Casus. In the airliner of the Dutch company, which flush over the territory of France, a US citizen committed theft of jewels in a citizen of Great Britain.
According to the law of which state, a US citizen will bear legal responsibility for the perfect offense? At the same time, it is necessary to have, in mind, that 2 hours before the dragging in the "sought" state adopted a law, significantly tightening responsibility for this type of offense.
12. In what cases, the laws of a particular state can act beyond?
13. How do you understand the gap in the right? Why does he occupy?
14. What are the ways to overcome gaps in the right in the process of applying legal norms?
Rights of law are divided into certain types of various reasons.
By branches of law, the norms of state, administrative, labor, civil, criminal and other branches of law are allocated.
According to the functions that perform the rules of law.
Such a species classification corresponds to the division of the functions of the right to regulatory and protective, which are carried out by the relevant (regulatory or chappers) rights.
By the nature of the rules of conduct contained in the norms. The difference here is carried out depending on what the legal norms are established: the duty or right. On this basis, the norms are distinguished:
binding, which establish the obligation to make certain positive actions (for example, the execution of a state-owned contract of work, the return of debt, delivery to the customer about the duction);
prohibiting, which forbid certain actions to perform (abuse power, violate the rights of citizens, commit embezzlement and other illegal actions);
management, which provide participants in general relations the right to make positive actions in order to meet their interests (to own the house, to study in an educational institution, demand from the obligations required).
According to the degree of definiteness of the presentation of the elements of legal norms, we are in the articles of regulatory legal acts. On this basis, the rule of law is divided into absolutely certain, relatively defined and alternatives.
absolutely defined are the norms that with absolute accuracy determine the conditions for their action, the rights and obligations of participants in relations or the measures of legal liability for their violation. At the same time, the specification of the prescription provided for by the norm of law is not allowed. Thus, criminal procedural legislation establishes a exhaustive list of conditions under which the verdict of the court must be unconditionally canceled: if the verdict is brought by the illegal composition of the court, if the secret of the meeting of judges is violated if the sentence is not signed by any of the judges and other conditions. Here we have an absolutely defined hypothesis. In criminal procedure law, there are norms with an absolutely specific disposition. For example, the order of the court is removed from the court session of all the signs of the televisions that came to their interrogation. Absolutely defined sanctions accurately and unequivocally record the appearance and measure of legal responsibility for violation of the norm of law (for example, a fine).
regarding certain are norms that do not contain enough completeness of the conditions of their action, rights and obligation of participants in public relations or measures of legal liability and provide law enforcement authorities to solve the case taking into account specific circumstances. So, in accordance with the requirements Civil Code Of the Russian Federation, the responsibility for the harm caused in a state of extremely needed, the court, given the circumstances of harm, maybe there may be a duty of his compensation for the third party, in the interests of which he had caused harm, or free from compensation for harm or partially as a third party, So harm. A relatively definite character has most of the sanctions of hugo of fishing right, which establish the lowest and the highest limits in the Cantia (for example, imprisonment from 1 to 5 years).
alternatives are rules providing for several options, the conditions for their action, behavior of the parties or measures, sanctions for their violation.
Thus, according to civil law, the buying tel, which is sold the thing of improper quality, has the right to demand either the replacement of a thing of a thing of proper ka-honor, or commensurately reducing its price, or freely dispose of deficiencies in the seller or reimbursement of costs Tele on their correction. Alternative sanctions contain several punishment options, one of which can be applied to the right to the violator. For example, intentional sowing and damage to trace and other plantations is punishable by correctional races for up to one year or a fine, or the imposition of the obligation to correct caused damage.
In the circle of persons, the rule of law is divided into general and special. General rules apply to all persons living in this territory. Special norms are valid only in relation to a certain category of persons (teachers, doctors, military personnel, pensioners).
Specialized norms of the Nrava. They are classified depending on which role is performed in the process of legal re register. In contrast to regulatory and protective standards, they are an additional character, since they do not contain certain rules of behavior. When regulating public relations, these norms are connected to regulatory and protective standards, forming a single regulator with them. Specialized norms have the following varieties:
propupus - these are norms that are generalized expressing certain elements of adjustable relationships. For example, the norms that determine the general conditions of fulfillment of obligations in civil law, the norms of the general part of the criminal law, establishing uniform signs of crime, punishment, the conditions of liberation from punishment;
definitive - norms that contain scientific definitions legal concepts and categories (for example, the concept of crime, civil legal capacity and accouplers, transactions, official);
normas-principles are the norms in which common or sectoral legal principles and the tasks of this set of legal norms (the principles of the criminal process, the task of citizens of the law and so on).
Rights of rights can be classified according to other grounds (for example, in time of action, according to legal strength). However, in all cases, they fulfill the role of a state regulator of social relations, organize social life, protect it from stamping from individuals. Scientific classification The right of the norms is the deeper understanding of their understanding and proper use in practice.
Calculation of general theoretical provisions on the structure of the norm of the rules, however, the methods of presenting its integral elements in the articles of regulatory acts of the classification of the rules of law should be carried out on the basis of practical legal material confirming the situation of the theory. The concept of the norm of law and its signs
the primary element of the system of law, a legally binding rule of maintenance, emanating from the competent state bodies, enshrined or authorized in the official act (law, decree, etc.) and the protection of violations measures of state coercion
installed or authorized by the state
determine the general borders of the possible and proper behavior of the subjects
have a providing-obligatory nature
their implementation in the necessary cases is ensured by the compulsory state with gift measures.
speakers state regulators of a typical public relations of the hypothesis
Logic Structure of the Legal Norm
STRUCTURE
Disposition of the sanction
Assumption Detention order
a part of the norm indicating under what circumstances the norm enters into action, determines the circle of subjects, their rights and obligations part of the norm, formulating rights and obligations, the rule of conduct itself part of the norm that establishes measures of state impact (coercion) applied in its violation
Forms of presentation of the elements of the legal norm in the articles of regulatory acts The full sending blanket in the article is set forth in the article contained in the article only all the necessary non-elements are called elements of the Legal Legal Regulation or the norm (hypothesis, norms, but there is a disposition of reference to other responsibility for The sanction) of their violations, but without reference to the same rules themselves to another act, where there are behaviors of the articles of missing in detail the other regulatory act
The role of the right in the construction and activities of the state's armed forces
enchants specific social relations in legal norms arising in the conditions of the Armed Forces
provides streamlining, coherence, organization of various public relations in the Armed Forces
protects against unlawful encroachment
the combat capability of the Armed Forces, Military Discipline, the order of military service, the rights and legitimate interests of military personnel and their families
has educational impact on military personnel
Questions to secure knowledge
The rate of law as the primary element of the right system. Her recognition and regulatory opportunities.
What does the provisional and obligatory nature of the right of the rule?
Is the rate of law determines the measure of internal and external human freedom? What is it expressed?
What is the structure of the legal norm?
Can the rate of law perform its state-regulatory functions in the absence of at least one of its structural elements?
You are unknown conditions for the rule of law. Is it possible to apply its prescriptions for certain life-tales?
Is it always possible to detect in the articles of regulatory acts of the hypothesis, disposition and sanction in their logical unity?
What methods of presenting the elements of the legal norm in the articles of regulatory acts do you know?
What is the difference between the sending method of presenting the logical elements of the legal norms from the blanket?
Classification of the norms of law and its importance for the practice of legal regulation.
More on the topic § 3. Types of legal norms:
- Codes of the Russian Federation - Legal Encyclopedia - Copyright - Agrarian Law - Advocate - Administrative Law - Administrative Law (Abstracts) - Arbitration Process - Banking Law - Budget Law - Currency Law - Civil Process - Civil Law - Dissertations - Contractive Law - Housing Law - Housing Questions - Land Law - Electoral Law - Information Law - Executive Production - History of the State and Law -
Chapter 25. Types of Normal Rights
1. Basement of the Normal Rights Division.
Among the diverse divisions of the norms of the right to species and determining importance are those that express the essential features of the right as a socio-class institutional regulator of public relations considered with the wide philosophical (generalociological) positions.
This, in turn, is a solid basis for the correct theoretical positions to approach the decision of the dogma of law and, consequently, issues of legal practice, the rules and recommendations of the effective application of legal norms on specific occasions.
Such an angle of view on the classification of legal norms means that the species of law are considered primarily as one of the expressions of its structure. Before us, therefore, not an arbitrarily designed classification, and an objectively existing unit of legal norms, which is the second (after the structure of the norm) the level of the overall structure of law.
The division of legal norms on species, although it relates to a microstructure of law, but characterizes a higher level of structure of law. Therefore, here, when considering the types of legal norms, the dependence of the structure of law on the socio-legal features of legal regulation is manifested with greater durability, in which specific laws of law are expressed.
Four factors have the most significant impact on the division of legal norms:
a) functions of law;
b) the specialization of law;
c) methods of legal regulation;
d) Individual regulation of public relations.
The most important place among these factors belongs to the functions of law and its specialization. The division of norms in accordance with the functions and specialization of the right forms a general classification (see scheme 19).
Scheme 19. General classification of legal norms in accordance with the functions and specialization of law
It should be noted that the subject of the classification are primary, real, living regulations, prescriptions. The logical norms, as a rule, are generally not divided into any kinds (unless on the scope of action and legal strength). They reflect primary bonds in legal matter, and so that each of these norms acts as if the right in miniature, and therefore, they are all in principle are equal, legally unambiguous quantities.
2. Regulatory and protective standards.
This is the main division of legal norms, corresponding to the division of special legal functions on regulatory and protective.
Regulatory and protective regulatory prescriptions form the bony law as a regulatory education. It is precisely from them at the subsequent levels of the structure mainly and the legal generality - institutions, associations of institutions, industries, families of industries. And those and other prescriptions serve as a regulatory framework for special legal relations - regulatory and protective.
It is characteristic that with the development of the specialization process, regulatory and protective prescriptions, while maintaining strong connections and is consistently functioning in unity, nevertheless are increasingly separated from each other. Combining into special, independent regulatory or protective communities (institutes), they function in their systems, are increasingly moving away from each other, binding to each other not directly, but for the most part through the relevant institutions and even the industry.
Regulatory (commemorative) belongs to the prescriptions that are directly aimed at regulating public relations by providing participants with the rights and imposing duties on them. The type of legal norms under consideration is valid because their role in regulating social relations is mainly reduced to the establishment of subjective legal rights and responsibilities.
Security prescriptions are aimed at regulating legal liability measures, as well as specific state-forced measures for the protection of subjective rights (generalized - sanctions). The need for separate and otherwise differentiated regulation of state-forced measures is due to various severity of violations of duties imposed by regulatory norms, the specifics of the tasks solved in the law enforcement sphere. Thus, in the Soviet law, a common obligation not to violate the subjective rights based on the law of public socialist ownership, one. But violations of this duty may be different not only in its actual content (theft, robbery, assignment, etc.), but also by the degree of danger of these unlawful actions for society (crime, administrative offense). The protective legal norms in the process of specialization is the right because it was allocated to an independent variety of norms that, in the establishment of state-compulsory measures, it turned out to be necessary to take into account the diverse features of offenses (degree and form of guilt of the offender, the consequences of acts, etc.) affecting the appearance and value of the sanction.
3. Varieties regulatory norms.
Depending on the specifics of two regulatory functions - dynamic and static (I.12.4.) The nature of the rights and obligations established by regulatory norms is different. It predetermines the division of regulatory standards on binding, prohibiting and authorizing.
Let's start with the consideration of the dynamic function. The main legal means of the implementation of the dynamic function is to lay on persons of active duties - to make certain positive actions. For example, according to the norms of the Soviet labor law, a working or employee must implement well-known employment. This duty corresponds to the subjective right of the administration to demand from the working or employee execution of labor functions. Consequently, subjective right does not have any special content here: it is enough to indicate the maintenance of the responsibility, as the content of the right will be disclosed (require the commission of positive actions assigned to the worker or employee). That is why regulatory standards that establish the rights and obligations of this type are called binding.
We see another picture in legal relations arising from the implementation of a static regulatory function. The main legal means of holding a static function is to build legal relations, in accordance with which passive responsibilities are assigned to the person - refrain from the actions of the famous kind. Typical example: legal relationships, by virtue of which all persons are obliged to refrain from violation of the owner's rights. In legal relations of this type, the content of subjective law cannot be disclosed only by one indication of the maintenance of responsibilities. The managed not only has the right to demand from other persons of abstinence from the actions of the famous kind, but he himself can make certain positive actions (for example, the owner is entitled to own, use and dispose of property). In other words, subjective right, and legal responsibilities have their content in the legal relationships of this type. And they normally define "separately", in special regulatory standards. In some prescriptions, the state of the owner is established, and in others - the common duty (prohibition) does not violate these laws. That is why, along with binding norms, there are two more types of regulatory norms-prohibiting, aimed at regulating passive duties, and authorizing aimed at regulating subjective rights with positive content.
So, depending on the nature of subjective rights and legal obligations, regulatory norms are divided into three types:
· Website - legal norms that establish the responsibility of the person to make certain positive actions;
· Prohibiting - legal norms that establish the obligation of the person to refrain from the actions of the famous kind (prohibitions);
· Managing - legal norms establishing subjective rights with positive content, i.e., the rights to commit management of certain active actions.
It is easy to note that the given division is organically connected not only with the peculiarities of regulatory functions, but also in unity with them with the methods of legal regulation (I.17.5), that is, with the nature of the regulatory impact, which is carried out using bindings (obliging norms), prohibition (prohibiting norms) and permitting (management standards).
Requires a special consideration the issue of the existence of special management and prohibiting standards in connection with the public and permitting types of legal regulation. It is quite natural to introduce into fabric rights of this kind of regulatory prescriptions as a kind of "limiters" of common permissions and general prohibitions - specific prohibiting standards (with general regulation) and specific management standards (with permits).
Meanwhile, there are cases when the legislator establishes norms that seem to be required by the logic of regulation. For example, special prohibition standards and permitting regulation are formulated. Such, let's say, the prohibition contained in Art. 24 KZOT RSFSR: "The administration of the enterprise, agencies, the Organization is not entitled to demand from the working or employee carrying out work, not caused by the employment contract" (see a similar prohibiting position in Art. 63 of the KZOT RSFSR, etc.).
What are such regulatory prescriptions for? After all, the general ban is expressed in all regulatory material. Norming the content of rights and obligations, providing for the sanctions for a known behavior, the legislator thus determines that the subject is permitted, and which is not allowed, i.e. it establishes common permissions and prohibitions. For example, from the content, the logic of regulation of labor relations, from the entire complex in this area of \u200b\u200bthe prescriptions with all immutortion, it follows that the administration has the right to demand from the employee only what is provided for by the contract, which means everything else is prohibited.
It seems, however, that the introduction of special specific management standards (if there is a general permit) or special prohibiting standards (in the presence of a common ban) has known grounds. Such specific managers and prohibitive standards, apparently, emphasize the legal quality of common permissions and prohibitions and at the same time can perform additional functions. Their establishment is due to the need to strengthen the regulatory, regulatory and ideological impact of Soviet law. This kind of norms with greater durability indicate the socio-political content of legal establishments and, directly fixing one or another type of legal regulation, makes the necessary certainty in the nature of regulation, into the practice of applying relevant legal norms.
4. Specialized norms. Generalizing prescriptions.
Specialized regulations, in contrast to regulatory and chapading, have an additional character. They are not an independent regulatory framework for the emergence of legal relations. When regulating social relations, they seem to be joined by regulatory and security prescriptions, forming a single regulator in combination with them.
Specialized prescriptions are eliminated from each other depending on which function (operation) they are performed in the legal regulation process. According to this criterion, they can be divided into five main varieties:
· are common (general desperation) - prescriptions aimed at fixing in a generalized form of certain elements of adjustable relations;
· definitive prescriptionsaimed at securing in the generalized form of signs of this legal category;
· delarative (norms-principles) - prescriptions in which legal principles are formulated, as well as the tasks of this set of legal norms;
· operational - prescriptions, the role of which in the process of regulating public relations is expressed in the abolition of existing regulations or distributing these rules to a new circle of social relations, in prolongation of norms for a new term, etc.;
· collisional - Prescriptions indicating the norms (law, legal system), which should be applied in this case, i.e., regulations governing the choice between norms.
The meaning of this or that species of specialized standards in the process of legal regulation is different. Those that can be attributed to the summary (general, definitive, declarative), express a high level of systemic regulatory generalizations; Other (operational, collisional) are as it were, "norms on the norms". But in all cases, specialized norms are the result of differentiation and integration of the regulatory material, the result of the objective of the process of specialization, which is inherent in law (especially modern Soviet)
It is important to pay attention to a significant role in the regulatory system of generalizing prescriptions.
Of the generalizing regulations, capital divisions of the branches of law enshrined in the total part of codified acts are formed. The general parts of the prescription are an expression of systemic regulatory generalizations in the right, which give the system a new quality and therefore act as an indicator of its level of development, structure, legal perfection.
Expressing mainly the other side of the specialization, which consists in the integration of legal material, generalizing the prescriptions perform the function of the "cementing means" in the structure of law. It is in summarizing prescriptions that the existence of legal generals is really embodied, and above all the main branches of law. They consolidate the main specific features of the industry legal regime characterized by this industry of legal regulation method.
5. Varieties of legal norms distinguished by the nature of their connection with individual regulation.
This is a specific plane of division of legal norms on species, other (compared to the general classification) "cut" of law.
Individual regulation in socialist law is not only carried out on the basis of, within and forms stipulated by the norms, but also to one degree or another they are sent. This means that in the right there are special regulations and special types of norms, which are designed to "patronize" individual regulation, to ensure its inferiority, the limits of discretion, etc.
Individual regulation in the very general In all cases, it is assumed, firstly, the very fact of the famous space for self-resolution by the subjects of a particular issue in accordance with the peculiarities of this situation, and secondly, the availability of authority in individuals on such a decision. Each norm aimed at ensuring individual regulation expresses both of these points: it does not give an exhaustive, absolutely definite solution to a question, leaving in regulation as some "emptiness", and at the same time allows certain persons to solve themselves (concretized to settle) this issue . However, the ratio of these two points in specific standards depends on the characteristics of individual regulation.
An individual regulation, carried out by the competent law enforcement agencies, should be distinguished on the basis of the state-powerful powers provided by him, and the "autonomous" regulation carried out by the participants in relations on the basis of their rights issued by their rights (dispositions).
In the first case, the moment of permitting is not in the norm decisive: it is predetermined by the presence of state-powerful authorities in law enforcement bodies. Therefore, the first plan in the norm is the degree of definiteness of its content, i.e., an indication of the extent to which the law enforcement authority can make independent decisions. That is why in this plane there are absolutely defined and relatively specific norms.
In the second case, when the regulation is autonomously carrying out the participants of this relationship, the moment of the allowance of such "autonomous" regulation. After all, participants in public relations in principle have only legal activity; They can participate in legal regulation based on the permit, relying on which the person acts dispositionably - determine their relationships. That is why in the field of "autonomous" regulation of the norms are divided into imperative and disposure.
Absolutely defined - norms, which, with comprehensive concreteness and completeness, establish the conditions of their action, the rights and obligations of the addressees and do not provide for the possibility of concretized individual regulation of public relations with the help of law enforcement acts. For example, the norm of art. 270 Code of Criminal Procedure of the RSFSR prescribes: "The witnesses are before the beginning of their interrogation are removed from the courtroom." Any right to see the issue of whether to delete or delete witnesses, the norm does not provide.
Regarding certain - norms that do not contain quite complete, exhaustive instructions on the conditions of action, the rights and obligations of the Parties or the content of legal sanctions and provide the right to state and other law enforcers to solve the case taking into account specific circumstances.
Relatively certain norms (depending on the limits of freedom of discretion of the competent authority) are divided into three main groups: situational, alternative, optional.
Situational - norms involving the possibility of direct concretized regulation of the act of law enforcement agency depending on the characteristics of a particular situation.
Alternatives - norms providing for the possibility of applying an enforcement body of one of several exactly designated options, including sanctions options (see, for example, Art. 339 of the Code of RSFSR, Art. Art. 246, 364 GK RSFSR).
Optional - norms involving the main option, which is usually applied, is also an optional option. It can be applied by a law enforcement authority in the order of replacing the main option under certain conditions. So, according to Part 1 of Art. 47 GK RSFSR Failure to comply with the mandatory notarization of the transaction entails its invalidity. At the same time, h. 2 of the same article provides the court to recognize the transaction, perfect with a disruption of a notarial form, actually, provided that it does not contain anything illegal, one of the parties completely or partially performed it, and the other evades notarial design.
Imperative - norms containing categorical prescriptions that cannot be replaced by the discretion of people with other conditions of their behavior. If the participants in the social relationship still concluded an agreement establishing other conditions of conduct, it is still recognized by invalid, insignificant; Consequently, in this case there is a categorical prescription, expressed in the imperative norm. For example, if the parties were included in the contract a condition aimed at limiting legal capacity (for example, provided for the duty of one of the parties not to marry before, the achievements of thirty-year-old age), then such an agreement is deprived of any legal force, for the norms regulating the legal capacity of citizens, are Imperative character.
Dispositive - norms that act only inspired, as the parties by their agreement did not establish other conditions for their behavior. Dispositive norms are sometimes referred to as extractive: they replenish the missing agreement, function only when the parties have not agreed on among themselves on this issue. In practice, they are recognized on such formulations as "in the absence of a different agreement", "if otherwise not established in the contract" (see, for example, the norm of Art. 53 of the foundations of the civil law of the SSR and the Union republics).
Thus, the dispositive norms of the same type with relatively specific norms: both also provide for the possibility of regulating public relations individually. But they differ among themselves. In relatively specific standards, the main thing is a measure of an individual settlement of relevant issues; At the same time, the norm in certain limits directly determines the behavior of the subjects. In the disposparative standards, the moment of the permitting is performed: they establish such a degree of dispositionability, in accordance with which persons themselves (autonomously) decide a certain question; The rule on the specific behavior of certain persons is envisaged only in case the subjects do not regulate the subjects. Hence another difference. Regarding certain norms function in combination with individual prescriptions. The dispositive norms are valid in the absence of individual willing devices - agreements between the parties on this issue.
The broader category than dispositional standards is the principle of dispositionability characterizing independence, freedom of subjects at its disposal of its rights, including procedural means. This principle corresponding to the method of decentralized regulation is expressed not only in dispositional, but also in imperative standards.
6. Basic, detailed and variant norms. Associations.
One of the directions of the specialization of law - another division of legal norms is connected with the deepening of regulatory concretization.
The need for a clear, comprehensive rationing of these relations, which would fully reflect the features of one or another specific and at the same time, leads to the fact that the legislator, along with the main (general) norm, formulates the prescriptions that are designed to clarify the details of the regulation, its possible Options caused by the features of relevant specific circumstances.
In this plane should be distinguished by the prescriptions:
main, detailed, options.
Main (general) are regulatory prescriptions that establish general rules, the principles of regulating these relationships (for example, a general rule of the size of alimony in part 1 of Art. 68 COBS RSFSR).
Details - Regulatory prescriptions that give a concretized solution to one or another part of the regulation (for example, an order regulating the procedure for establishing the order of earnings to be recorded when recovering alimony - Art. 70 COBS RSFSR).
Note - Regulatory prescriptions designed for regulation in accordance with the General Registrar in specific situations, under special conditions, with peculiar options for specific circumstances (for example, the recovery of alimony in disabilities and other special circumstances relating to the payer of alimony, HCh. 2 and 3 Article 68 COBS RSFSR). In criminal law, these are options related to the presence of certain qualifying signs, with the degree of public danger of the act.
The main, detailed and variant regulatory prescriptions form bundles, sequential chains, of which some common communities are often formed, a kind of association of norms. These associations, as a rule, the content of a multi-scale article of the regulatory act, differ in their law of communication between prescriptions, a special structure (for example, the general prescription plus a variant plus detailed - see the prescriptions of Art. 45 COBS RSFSR)
From the Associations of Relations "Everything begins" in the structure of law. Of these, sustainable legal generality are formed - legal institutions, their associations. Moreover, in associations of prescriptions, formulated by the legislator under the direct influence of legal practice, the pulse of various life relations, the needs of the practice, the accumulated experience of individual legal activities of the competent authorities, are directly felt.
Practically important is the division of norms on - common and special, and special, special, local (departmental), temporary norms.
In the sign of the scope of the norms, they are classified for general and special. The generals are called legal norms that apply to relationships of relations in general, and special - norms that are valid only within the specific type of relationships. For example, the norms of the foundations of civil laws of the SSR and the Union Republics and the GC of the Union republics on the supply contract are common, and the norms of particular conditions regulating the supply of products of certain species - special.
Exceptional norms differ as a kind of norms differing in terms of the amount of action, the exceptional norms may be allocated, i.e. the norms that establish a qualitatively different order than general and special norms (for example, norms that establish the procedure for the unique delivery of products coming to export).
When classifying legal norms in terms of validity, the angle of view may be somewhat changed and the norms can be delimited in a circle of persons. In this case, the total again includes norms that are distributed to the relationship of these relations, and the number of special - in the form of relations. The only thing is that the features of certain norms are directly associated with a certain category of subjects. Thus, in labor law, general rules spreading to all employees are combined with special standards differentiated in relation to workers and employees, and then for special categories of workers and employees.
On the basis of the scope of action, legal regulations are divided into common and local (departmental). General - these are norms extending to persons regardless of which territory they are or the composition of which organization includes; Local (departmental) - norms acting on persons only if the latter are on a certain territory or are part of this organization.
Among local (departmental) norms, local (intra-organizational) norms are highlighted, that is, the norms operating only within a certain enterprise, collective farm, etc. (for example, the rules of the internal regulation of this enterprise, the norms of the Charter of this collective farm, etc.) . Local norms that differ in a number of specific legal traits have become the subject of attentive consideration in the literature in recent years.
By time, legal norms are divided into common and temporary. General are the rules established for an indefinite period of validity to their cancellation or change; Temporary - norms installed only for a certain period (for example, during a disaster).
The specific place in the classification of the rules of law is occupied by the so-called recommendation standards. Their meaning and meaning as a "norm" can be understood only if we consider these phenomena in organic communications with managers and obliging standards (II.25.3), and the main thing in the framework of the law-conducting process. The recommendations contained, for example, in the joint decrees of the Central Committee of the CPSU and the Council of Ministers of the USSR, are the Council, the proposal of the competent authorities facing cooperative and public organizations. Their legal importance is that they are not only a) manage the cooperative or public organization to take a certain decision on the regulatory settlement of certain relations, b) obliges it to discuss the recommendation, but also c) pre-authorize regulatory solution Organizations on this issue, equip it with legal force (which is the basis for subsequent registration or approval of relevant acts of cooperative and public organizations in state bodies). Recommendations should be considered in unity with those local standards that adopts a cooperative or public organization. In this regard, the recommendation is the stage in the rule-making process carried out by collective farms and other cooperative and public organizations, send it, ensure the unity of local rules across the country.
In legal literature, encouraging norms are sometimes isolated into an independent view, that is, the norms that establish measures of encouraging for the accomplishing actions especially useful for the socialist society. Indeed, in Soviet law, extensive sets of prescriptions can be allocated, which are designed to provide legal means to conduct the start of material and moral incentives, expressed in promotion. Their united social and general legal characteristics seem very important. At the same time, you have to see another. If it is possible to allocate an extensive complex of encouraging legal regulations as an independent type of norms, then such a selection is a special classification that has mainly socio-political importance and is constructed by a specific criterion-nature of the social impact designed to cause this behavior. The essence of such a classification is to delimit the norms for incentive and norms conductive direct state-power impact.
From the specifically legal side, in the plane of which the classification of legal norms is carried out, incentive regulations do not form a single group. This group includes two types of binding standards (norms that establish the main responsibility in relation to behavior, which is stimulated by encouragement; norms on the duty of one or another body under certain conditions to be encouraged) and two types of management standards (norms on the right of a person to acquire a promotion; Norms on the right of the competent authority to appoint a promotion). Moreover, only with a legally exact characteristic of the norms that ensure encouragement can be revealed by a very complex, regular combination of these prescriptions that form a holistic complex and precisely in its integrity providing on the subject side to implement the principles of material and moral interest, which are expressed in promotion (II. 21.4.).
However, do not have encouraging prescriptions of the specifics in terms of sanctions? Do not promote in the form of a security for legal norms that replace state-forced measures? And such an approach is hardly justified. Most norms relating to encouragement is in no way associated with the security function of encouragement: they only declare the latter. But even if it is not even for the whole range of norms concerning promotion, but only on those of which are devoted to legal responsibilities against the behavior, stimulated by the promotion, then this kind of norm is hardly possible to allocate in a special category from the point of view of interim measures - sanctions. After all, encouragement and legal sanctions - phenomena of diverse. If a legal sanction is part of the legal norm, which points to state-forced measures designed to ensure the fulfillment of legal obligations, then encouraging refers to the disposition of the norm, to the detention of rights and responsibilities. And the essence of encouragement is not to ensure the implementation of legal norms (which is typical for sanctions), but in order to directly stimulate the necessary behavior, to be an out-an-right stimulator. It replaces or complements non-sanctions of norms, but a state-forced impact, carried out with the help of the legal mechanism as a whole. As for the incentive norms of law, their importance is to issue the promotion associated with it procedures, introduce the relationship-based relations here in the strict framework with the help of a complex of obliging and management requirements, each of which is equipped with its needy means of ensuring.
Among the prospective problems of classifying legal rules, only on our legal science, should be indicated on the problems of the so-called industry norms, i.e. the norms separated by the branches of law. Indeed, if the branches of the rights are located not only on the subject, but also on the legal regime (method) of regulation, this means that in the legal norms themselves there may be features that indicate their belonging to a particular industry. Obviously, the peculiarities of this industry are expressed, in particular, in the norms regulating the overall legal position of the subjects, as well as in the very combination of norms among themselves. At the same time, you can hardly doubt that the peculiarities of the branches of the right are reflected, in addition, on specific legal norms. It is not by chance that, for example, in Soviet legal literature, many authors are delimited by sanctions on the branches of law (administrative, criminal and other sanctions). A more thorough analysis is likely to detect specific features in the dispositions of the norms of one or another industry, their hypotheses, in combination of elements, etc. This problem is still waiting for its research.
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Introduction
- 1 General features of the rules of law 2 Types of rules of law 3 Specialized rules of law 4 Genesis Rights in Romano-German Legal Family 5 Structure of the Rights
Sources
Introduction
Rule of law ( legal norm) - This Community, formally defined rule of behavior (sample, scale, standard), established or authorized by the state as a regulator of social relations, which officially enshrines the measure of freedom and justice in accordance with the public, group and individual interests (freedoms) of the country's population, is provided by all measures of state impact , Up to coercion.
1. General features of the rules of law
Regulatory behavior rule - the norm of law introduces a new rule, records typical social processes and communications; affects public relations, human behavior; It is a model (sample, standard, scale) of regulated public relations. The regulativity of the rule of law emphasizes its action, "work", which should lead to a certain result. Communicative rule of behavior - The norm of law comes from the state, should be perceived as a guide to action that is not subject to discussion on appropriateness. General behavior rule - The norm of law has a general (without specifying a specific addressee - non-disperson-fiction) character, i.e. it applies to all who becomes a participant in relations regulated by the norm. As a regulator of public relations, the norm has multipleness of use (for example, a ban of hooliganism). Formally, a certain rule of behavior of a representative and obligatory nature - The rule of law enshrines the rights and obligations of participants in public relations, as well as legal liability.(Sanctions), which is applied in the event of its violation. By providing the right to one, the rate of law imposes duties on others (for example, young people have the right to study, the duty of others is to ensure this right). Formal definiteness The rate of law receives after presentation in the laws, other written sources of law. The rule of behavior adopted in strictly installed manner - The rate of law is issued by authorized subjects within their competence in compliance with a certain procedure: development, discussion, adoption, entry into force, change or cancellation. The rule of behavior provided by all measures of state impact, up to coercion - The state creates real conditions for the voluntary implementation by the subjects of samples of behavior formulated in the norm of law, applies ways to persuade and coercion to the desired behavior, in particular, effective sanctions in case of non-fulfillment of the requirements of the rule of law.
2. Types of rules of law
In any state, there is a huge number of rules of law. These norms can be classified for species by certain criteria.
- The entire array of legal norms operating in the state can be divided into two groups:
classic;
specialized.
In classic The rules of law understand such rules of behavior that serve as a direct and independent regulator of public relations.
In specialized The norms of law understand the prescriptions of an atypical nature that do not have properties and signs of the inherent classical norm of the rule of law.
- 1. Rights of the right to legal regulation (or by branches of law):
constitutional standards
administrative
criminal
civilian
- 2. Rights on the method of legal regulation (or form of consolidating the desired behavior of entities of law):
Imperative - Norms expressing in categorical state prescriptions clearly marked actions and do not allow any deviations from an exhaustive list of rights and both "subjects of subjects. Otherwise: the imperative norms directly prescribe the rules of conduct.
Disposure - the rules in which the state prescribes the option of behavior, but allow the parties to the regulated relations themselves to determine the rights and obligations in some cases, they are called "fills", because they fill the absence of a transaction and act only when the parties regulated relations have not established for themselves , did not agree on this issue (recognized through the wording: "in the absence of a different agreement", "if otherwise not established in the contract", etc.). Otherwise: Dispositive norms provide freedom to choose behavior.
- 3. Normal rights by nature of human impact:
Promotional - Norms that establish measures to encourage the behavior of the subjects are approved by the state and society and is in good faith and productive work (for example, premium payment rules).
- 4. Rights on subordination in legal regulation
material
procedural
The norm of financial law - The norm, which is the primary regulator of social relations: contains the rule (rights, duties, prohibitions), on the basis of which the decision is possible on the merits. For example, it is impossible to commit murder.
Norm procedural law - The norm that establishes the optimal procedure for applying the norms of material law: contains a rule, on the basis of which the case is possible on the merits. For example, the procedure for investigating the crime, the procedure for calling witnesses to the court, etc.
- 5. Animals according to the degree of remarkable behavior
absolutely defined
relatively defined
Absolutely defined rules of law - These are the norms of exhaustive concreteness and completeness establish the conditions of their action, the rights and obligations of the addressees and the consequences of their violation.
Relatively certain norms of law - These are norms that do not contain complete, exhaustive instructions on the conditions of their action, the rights and obligations of the addressees or the content of sanctions.
3. Specialized Rights Rights
- Perform subsidiary (optional) function in legal regulation. Lained traditional trileenencies of a logical structure, characteristic of the rules of law as a classical prescription, and have an unconventional, atypical structure (so often these norms are called atypical).
Specialized norms are very inhomogeneous in nature, content and intended purpose.
They can be divided into two groups: starting norms and other specialized norms.
The special purpose of the starting norms is to establish the source principles, the foundations of legal regulation of public relations. Thanks to these prescriptions, goals, objectives, principles, frameworks and legal regulation methods are determined. They are carriers of the spirit of law and are of great importance in both the rule-making process and in the interpretation of the classical norms of law. Sometimes they are called expertoid norms.
· To the starting referred to the principles, norms, tasks, norms and principles, etc.
- Normas-principles - These are the norms that enshrine the general principles on which the political and legal systems are based. For example, such norms enshrine the foundations of the constitutional structure of the state, the foundations of the socio-economic, political and public life, the relationship between the state and personality. Normas-principles of focusing are primarily in the Constitution. For example, Art. 1 of the Constitution of Ukraine proclaims Ukraine with a sovereign and independent, democratic, social, legal state, Art. 2 defines Ukraine as a unitary state, and Art. 5 - as a republic. Article 15 of the Constitution of Ukraine enshrines the political, economic and ideological manifold of public life in Ukraine. Task norms - These are the rules that you define the tasks of individual institutions or branches of law. So, st. The 1 Criminal Code of Ukraine establishes the task of this Code. Legal support for the protection of human rights and freedoms and citizen, property, public order and public security, ambient, the constitutional system of Ukraine from criminal encroachments, ensuring peace and security of mankind, as well as the prevention of crimes. Article 1 SK Ukraine sees the task of legal regulation family relationshipsIn particular, strengthening a family as a social institution and as a union of specific persons and approval of a sense of responsibility to parents, children and other family members. Normas-principles - These are the most common and stable imperative requirements enshrined in the right, which are a concentrated expression of the most important entities and values \u200b\u200binherent in this system of law, and determine its nature and directions for further development. So, st. 8 of the Constitution of Ukraine enshrines the principle of the rule of law, and Art. 24 - principle of equality, art. 3 GK of Ukraine proclaims the principles of justice, conscientiousness and rationality similar. In contrast to other specialized norms, principles in some cases can act as the immediate regulatory framework for the decision of the legal entity, for example, when the Galina is detected in the right.
The construction of the norms can be conditionally divided into two subgroups: - system-circuiting norms (collision and operational norms) - system-proof norms (definitions, norm-periods, norms, presumption rates, norms, fixation standards, etc.).).
- Collisional norms - These are the rules that establish the rules for choosing the rule of law to be used in the presence of disagreements (in particular, contradictions) between the norms regulating the same actual circumstances. These norms help to overcome collisions in legislation, so sometimes they are called arbitrators. So, in Art. 8 of the Constitution of Ukraine is stated that the Constitution of Ukraine has the highest legal force. Laws and other regulatory acts are made on the basis of the Constitution of Ukraine and must comply with it. In indirect form, this article establishes a rule, in case of discrepancies between the norms of the Constitution and the norms of the Law (other regulatory and legal act), the norm of the Constitution is subject to application. Operational norms - These are the rules aimed at entering into force and terminate other rules of law. For example, according to paragraph 4 of the transition and concluding provisions of the GC of Ukraine regarding civil relationsarising before the entry into force of the GC of Ukraine 2003, the provisions of this Code apply to those rights and obligations that arose or continue to exist after the entry into force. Definition rate - These are norms that contain definitions of legal categories and concepts. For example, in Art. 202 of the GC of Ukraine aims to define the concept of a transaction, one-sided transaction and a two-or-multilateral transaction. Article 11 of the Criminal Code of Ukraine contains the definition of the concept of a crime, and Art. 364 - definition of the concept of an official. These norms are mainly carried out by the orientation and information function in legal regulation, helping the provisions of the laws in which the relevant categories and concepts are used. Absence
norm-definitions in the system of law would have deprived the right of clarity, making it difficult to use it.
- Norma string - These are rules that contain rules for the calculation of the deadlines. For example, in Art. 69 Code of Civil Procedure of Ukraine found that the course of the procedural period begins from the next day after the corresponding calendar date or the occurrence of the event with which its beginning is related. These norms help to correctly calculate the terms, with the beginning, stop, renewal, extension and the end of which the classical rules of law are associated with certain legal consequences. Norma-Presumption - These are the rules that enshrine the assumption of the existence or absence of certain legal facts. For example, the GC of Ukraine establishes the presumption of conscientiousness and intelligence of human behavior, the presumption of the guilt of the person who caused the harm, or the presumption of inaccessibility of negative information common. Norma-alling - These are rules that exclude any challenge of the existence of an already proven legal fact that has been evaluating and consolidated in a legal act that came into force. For example, according to Art. 61 Civil Code of Ukraine Circumstances established by a court decision on civil, economic or administrative case, entered into force, are not proved when considering other cases in which the same persons or a person participate relative to which these circumstances are established. Norma fiction - These are the norms that for the purposes of legal regulation recognize the existing legal facts that are missing in real life, and vice versa. So, according to Art. 46 GK of Ukraine, an individual is announced by the deceased court decision of this. In applying those classical norms that use appropriate legal facts. For example, the presumption of conscientiousness and intelligence of human behavior helps in the application of the rules in which the legal consequences of the unfair or unreasonable implementation of their law are established.
4. Genesis of the rules of law in the Romano-German legal family
The formation of a system of law in the countries of the Roman-German Legal Family and Ukraine was carried out under the influence of Roman law, and they were liable to such processes and features:
- The effect of scholasts. With the help of scholastic technology, the provisions and incidents of the Roman law are streamlined, on the basis of which there is a formation of general rules devoid of bindings to a specific court case and suitable for widespread practical application;
- Aggregation of standards of behavior. The rate of law is considered not only as a legal means of resolving specific judicial disputes, but also as a general rule of behavior;
- Sectoral separation of the rules of law. The system of the right of all countries of the Roman-German legal family finds both a practical expression and the theoretical substantiation of the principle of distribution of the rules of law by industry, which has begun and partially developed in Roman law is mainly private;
- Development of a system of material law. The genesis allocation of procedural standards from material, founded by Roman lawyers was completed in the countries of the Roman-German legal family through the development of a material law system, which is characterized by a high level of abstraction and theoretical validity of the norms.
5. Structure of the rule of law
"The structure of the legal norm is its internal device, which is characterized by the presence in it relatively autonomous, but inextricably linked with each other component parts differing in a functional role."
- Structures (and several of them) in the legal norm developed historically, gradually and represent greater social value. Their origin is since ancient times, from the societies of the assignment economy and even since those times, when a person as a biological creature, like other biological species, has learned to associate his behavior with the results of this behavior, its reactions to certain livelihoods in collective Experience, in collective consciousness on criteria "acceptable-unacceptable". Mononorms of primitive society were built under this scheme, and only subsequently "perceived-repulsive" turned into relations on the criteria "can not" (right), "good-bad", "good-evil" (moral). From the position of philosophy, the structure is relatively independent and stable unity of the elements, their relationship and the integrity of the object providing identity to themselves. The structure is inextricably linked with the system. The characteristic of the object from the position of the system and the structure gives the essence of systemically structural analysis. The philosophical concept of the structure should be linked to the specifics of legal phenomena, with their nature, content, social purpose and place in the system of law. Analysis of the norm according to the structure contributes to clarifying the meaning of the rule of behavior in it, and this, in turn, helps the correct implementation of the norm, strengthen the legality and law and order, that is, to achieve that there is right. The structure of the norm depends on its nature. It is possible to approach the definition of the structure in different ways, depending on which value it is - the norm-principle, the norm-definition, the norm-rule of behavior, the regulatory norm or security rate, which are varieties of the norm-rules of conduct.
· The norms containing direct rules of conduct for specific (but not individualized) subjects in real public life are:
1. Norma permissions;
2. Prescriptions (obligations)
3. Norma-prohibitions.
- In the theory of law, two different concepts of the norm structure are detailed: two-element (twisted, duplex) and three-link (three-glued, three links). To denote the structural elements of the rule of law, the theory of law will operate with such concepts: disposition, hypothesis, sanction. It should be emphasized that despite the fact that there are different concepts of the structure, they invariably use in their constructions are called parts (elements).
Disposition
- The central element of the norm of law, in which the rule of behavior in the form of a power prescription is enshrined, the content of which is subjective rights and legal responsibilities.
.
- Types of dispositions:
1. At the degree of certainty:
· Defined - consolidate an unambiguous rule of behavior, that is, participants in relations are deprived of the possibility of choosing other behavior;
· Not fully defined - indicate only the general signs of behavior, within which the subjects clarify their rights and obligations independently;
· Relatively defined - indicate the rights and obligations of subjects, but provide opportunities for clarification depending on specific circumstances;
· Alternative - indicate the onset of several legal consequences, but provide for the offensive of only one of them.
2. In the method of presentation:
· Simple - the rule of behavior is determined in general, without the detail of its signs;
· Descriptive - the rule of behavior is fixed fully, with the details of its signs; clearly defines the rights and obligations of participants in relations;
· Blankenet - only general signs of the rules of behavior are enshrined, and to establish signs that are missing should be referred to the norms of another regulatory act of the other branch of law;
· Silver - similar blankets with the difference that to establish signs that are missing should be referred to other parts of this norm or other standards of the same industry of law.
3.The composition:
· Simple - contain one rule of behavior;
· Sophisticated - contain two or more required rules of behavior;
· Alternative - contain several rules of behavior, the subject can perform any of them.
Hypothesis - Structural element of the norm of law indicating conditions, in the presence or absence of which the rule of behavior comes into force. Hypothesis is an integral element of the norm, its accuracy and certainty is the condition for the implementation of the norm. The absence of such a certainty makes it difficult to use the provisions of the capabilities of its recipients - citizens and their associations. If the norm enshrines the powers of the state body, the uncertainty of the conditions listed in its hypothesis provides him with the right to act at his own discretion.
- Types of hypotheses:
1. At the degree of certainty:
· Defined - exhaustively determines those conditions in the presence of which the rule of behavior enters into force in the disposition of the rule of law;
· Relatively defined - limits the conditions for applying the rule of law by a certain circle of formal signs.
2. In the form of an expression:
· Abstract - the conditions for applying the norm are determined by common generic signs, which makes it possible to cover and resolve a significant number of homogeneous cases;
· Casual - The conditions of the validity of the norm are determined using narrower, special generic signs, therefore the rate of law applies to a more limited circle of cases.
3.The composition:
· Simple - contain one circumstance necessary for the action of the legal norm;
· Sophisticated - contain two or more mandatory circumstances, according to which the legal norm is associated;
· Alternative - The action of the rule of law is determined depending on one or more factual circumstances (conditions) and for the onset of legal consequences, it is enough to have one of these circumstances.
Sanction - This is part of the rule of law, which contains instructions on the legal consequences of the violation of the rule recorded in the disposition. The purpose of the sanction is to create certain adverse consequences for the offender or incentive consequences for entities performing the power prescription.
- Types of sanctions:
1. At the degree of certainty:
· Absolutely defined - clearly define the appearance and measure of legal responsibility;
· Relatively defined - legal responsibility measures are determined to be minimal to maximum or only to maximum;
2. In the number of adverse consequences:
· Simple - Provide one unfavorable investigation.
· Complex-sustainable Simultaneous use of several disadvantageous consequences.
· Alternative - indicate several possible means of exposure to the offender, and the appropriateness of the use of a particular means is determined by the law enforcement body, based on the characteristics of a particular case;
3.Abe the character of the consequences:
· paradise (penal) crushing (compensatory) incentive. ""
4. For branches of law:
· criminal law; administrative and legal; civil law; Disciplinary.
Sources
- General state and law theory -, Kharkov, -2009 year. Hungarians of the state and law. - Muskakun State and Law: Textbook. - M.
See also
- Forms of law Information and legal norms Law
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Application of rights - These are the imperative activities of authorized state or other bodies, consisting of a specific legal issue, affairs and the individual decision on it, mandatory for its addressees.
The application of the right is carried out in cases where compliance, execution and use of the right is not enough to ensure complete implementation of legal norms and requires interference in this process of competent authorities or officials endowed with relevant powers and only within the framework established by law.
For example, it is impossible to start receiving a pension until the decision of the Pension Fund is decided; It is impossible to receive a child's birth allowance or certificate for maternity capital until documents in the social protection bodies of citizens are appropriately executed, etc. Even if a person has reached a retirement age, it has the work experience required for registration of preferential penalties and, or the mother had a second child, i.e. All the conditions necessary for the occurrence of rights and corresponding duties are obvious.
Features of the application of law manifest as follows.
First, the application of the right is carried out by state bodies, their officials and other authorized entities. This suggests that the subjects of the application of law are mostly state bodies and their officials.
Only in exceptional cases, according to the will of the state, public authorities may apply individual regulatory legal acts. For example, trade unions have the right to apply some norms of labor legislation.
Secondly, law enforcement activities are domineering. This means that law enforcement bodies are endowed with government authorities, their decisions are mandatory for all those who are addressed, and their execution is ensured by the forced power of the state.
A distinctive feature of the application of law is that the law enforcement is valid solely in the interests of citizens or their associations, and not in their own interests. Thus, the domineering nature of the application of law is determined by the fact that the law enforcement, endowed with the authority, by making an enforcement act, confirms the presence of subjective rights among citizens, contributing to their implementation or restoring violated law. To this end, in addition to powerful powers on the adoption of law enforcement, competent authorities and officials are endowed with legal means of impact on persons or bodies, which are addressed to the law enforcement.
So, for example, the execution of a court decision (which is a law enforcement act) may be attracted by bailiffs in case voluntarily, it is executed.
In addition, the law enforcement act is mandatory for individuals, one way or another involved in the consideration of the case (for example, the obligation of appeal to the court of expert, the witness to call the court, the provision of documents by the Bank of documents on the basis of a decree on the excavation).
Thirdly, the law enforcement act is always individual, because it is made on a specific legal entity.
Enforcement - This is the application of the abstract legal norm to a specific case, a specific life situation under certain conditions, and the decision of a specific, particular nature. Law enforcement acts are designed for one-time application and terminate after the implementation of specific rights and obligations.
The law enforcement involves the adoption of an individual legal decision, the establishment of specific subjective rights, legal responsibilities, responsibility if they are violation. For example, the presidential decree on pardon or the decision of the court on the restoration of the illegally dismissed person is always made only in relation to specific individuals and only on a specific case.
Fourth, the application of law is regulated by procedural regulations, which determine the procedure for the commission of certain actions in the enforcement process.
Of particular importance is this procedure when applying the norms of criminal and administrative law, ensuring consistent legality, deep and comprehensive consideration of the circumstances of a specific legal entity.
TO principles The applications of rights include the principles of legality, objectivity, feasibility, social justice and the validity of decisions taken during the law enforcement.
Principle of legality Indicates strict and steady following state bodies and officials law in the process of law enforcement.
The requirement to comply with the law in law enforcement activities is to follow not only the letter, the law and spirit of the law that is applied. Enforcement bodies should only act within their competence; strictly adhere to the procedure for law enforcement, established by the procedural norms; Submit legal acts of a certain form (resolution, protocol, sentence, etc.).
Objectivity Enforcement means impartiality of the law enforcement. The decision is objective when it is issued on the basis of legal norms and relies on specific facts, impartially established by the law enforcement in the enforcement process. In addition, the objectivity of the enforcement is achieved by establishing the procedure, law enforcement procedures (for example, a criminal investigation).
Principle of expediency It is characteristic of law enforcement activities, since it means the need to take into account specific conditions for the application of a regulatory legal act, the choice of the most optimal version of the implementation of legal requirements in a certain life situation. However, it should be borne in mind that appropriateness should not be opposed to the legality of the decision. The law enforcement has the ability to choose the most appropriate solution only within the law, if the law is allowed different solutions.
Principle of social justice This means the activities of the law enforcement body and an official in the interests of not only citizens or their associations, but also in the interests of the whole society. The principle of social justice was formulated by the Aristotle more than two thousand years ago. "The virtue of the state," wrote Aristotle, - it affects the fact that citizens participating in public administration, Virtues ", most importantly, with every state strictly, it is" through laws and the rest of the regulations to arrange a case so that the officials could not be accommodated. "I. Bentam in the" Constitutional Code "called this principle" coincidence of interests ": virtue in the state should To be favorable and citizens, and, in particular, officials, institutions must be arranged so that, seeking to their own good, the rulers could not at the same time not to serve as a common good.
In the legal state, the principle of social justice should be an indispensable condition for the activities of government bodies and officials during the enforcement.
Principle of validity Enforcement of law enforcement means detection, study and use of all materials related to the case, making a decision only on the basis of reliable, verified facts. This principle underlies the basis of other principles. Violation of the principle of substantiation when adopting a law enforcement act is the basis for its cancellation.
The use of law is always due to the execution of two functions: organizational and law enforcement.
First of all, the application of the right is necessary to organize the actions of citizens and their associations in the implementation of subjective rights or legal obligations provided to them, when they independently cannot be resolved.
Simultaneously with the organizational, very important function of applying the right is to ensure the protection and protection of the rights and freedoms of citizens and legal entities In the process and as a result of law enforcement.
As already emphasized above, the subjects of law enforcement activities are specially authorized bodies or officials; The law enforcement pursues various goals, is carried out in a procedural form established by law. The result of law enforcement is act of the application of law, required for its addressees.
According to these signs, lawyers identify three main type law enforcement.
Judicial type of law enforcement. In this case, the subject of the application of law is the court, the NA is in any official or organizational relations with the addressee. The judge personally is not interested in solving; Interest in decision show other subjects. The court considers cases in accordance with the jurisdiction arising from the nature of the case. The activities of the Court are strictly regulated by the procedural codes and federal legislation. The application is to determine the legal consequences arising from the established facts and the norms of law. Freedom of the discretion of the court is minimal, and its decision is individually.
Management type of law enforcement. The entity of law enforcement is in service or organizational relations with the addressee of the decision. The entity of law enforcement is personally interested in making a decision, which follows from his official position. The competence of the law enforcement follows from its place, official position, and partly from the nature of the case. The solution acts as a means of operational management. Freedom of discretion is very significant. The decision may refer to single entities or to a whole group of persons.
Administrative type of law enforcement. The subject of law enforcement is not in service or organizational relations with the addressee of the decision. The addressee can act as a citizen and the organization. Consideration of cases is regulated by legislative and subtitle acts (departmental instructions). The decision is made in the case of conflicts, complaints, disputes, offenses, applications, etc. Freedom of discretion may be different depending on the nature of the case. The solution serves as a means of implementing state functions against citizens and organizations.
The application of law is the process lasting in time, which is governed by procedural norms (for example, the Criminal Procedure Code or the Code of Administrative Offenses). These norms provide a certain sequence of legally significant actions committed by the subjects of the application of law when considering a legal entity. They can be combined into relatively separable groups of law enforcement actions, which also received the name of the application of the right.
Typically distinguished the following stages The application of the norms of law:
- - establishing the actual circumstances of the case;
- - the choice and analysis of legal norms to be applied in a specific situation;
- - Decision on a specific legal entity and its documentary.
Of course, this stage is very important to complete the enforcement. But from the point of view of the theory of law, this stage may also include several stages, since the execution of the decision is not always possible simultaneously (for example, if the debtor evades the payment of debt even after making an appropriate decision by the court, it is necessary to attract bailiffs to enforce the court decision, finding The property belonging to the debtor bailiffs, its inventory, recovery, etc. Thus, before the decision of the court will be fulfilled, the three above-mentioned stages of application of law will be passed.
So, consider each of the stages of the application of law.
1. Establishing the actual circumstances of the case. Actual circumstances are life situations, incidents that form the real basis for the application of law. In this case, we are talking about the establishment of legal facts that are important for this particular legal entity.
To such legal facts, in particular, belong:
- - a person who has committed an offense;
- - circumstances, in certain cases, the motives and the instrument of committing an offense;
- - the cost of the contested land plot (in civil law);
- - The content of the employment dispute, its participants (in labor law), etc.
Considering that legal facts established at the first stage of law enforcement occurred in the past, their confirmation occurs with the help of evidence - facts, the establishment of which is necessary in accordance with the legislation to establish the truth in legal entity, i.e. those who have legal importance for this case (testimony of witnesses, documents, items, etc.). For example, the types of evidence in a criminal case are listed in Art. 74 Code of Criminal Procedure.
Thus, at this stage, those actual circumstances should be defined, which lead to a specific legal norm. So, for example, for the application of the rule of law, provided for in Part 3 of Art. 12.16 (movement in the counter direction on the road with one-way movement) The Code of the Russian Federation should establish the following legal facts:
- - Did the person who committed an offense, has reached the age of attracting administrative responsibility, is it sane?
- - Is the person who committed an offense, a person admitted to the management of the vehicle (driver)?
- - Is not the commission of this offense committed in a state of emergency?
Only in the establishment of the above circumstances it is possible to apply this Norma Code of the Russian Federation. In this case, as in many others, another number of actual circumstances to be established can be distinguished. However, in the enforcement process, it is necessary to establish such facts with which the onset of legal consequences is connected in the legal norm. The procedure for establishing such facts is carried out in the process of proof.
Under proving It is understood to the activity on the detection, collecting and fixing of evidence, as well as on their analysis for sufficiency to establish the truth in the case. The establishment of the actual circumstances of the case should be legitimate and reasonable. This is achieved through deep and comprehensive research of events, identifying their truth, admissibility and objective reliability.
Many subjects are involved in the process of evidence (prosecutor, investigator, judge, defender, plaintiff and respondent). All of them within the competence provided by him by law have the opportunity to find, collect and submit evidence to give them an assessment. However, the main role in the final evaluation of the evidence received, the law enforcement body plays.
The following requirements are presented to evidence:
- - completeness and comprehensiveness (during the proof it is necessary to establish all the circumstances of importance to the case);
- - the attractiveness (adoption and analysis of only those evidence that mature to the case may be based on its decision, i.e. are related to the circumstances under study);
- - admissibility (use of certain procedural law The means of proof collected without violation of material and procedural law, for example, will not be evidence of the applied testimony of the accused, if they are obtained by blackmail, threats, etc.).
The evidence is both information about the facts, the facts themselves (for example, the dragging of theft) and sources of facts about the facts (for example, the conclusion of the expert). Sources of information about the facts require certain procedural forms of consolidation and certificate (for example, the expert opinion must necessarily contain information on the qualifications of the expert, its signature and the printing of the expertiary).
2. Selection and analysis of legal norms to be applied. At this stage, the question is solved, on the basis of what legal norms should decide the case in question. This is a legal qualification of the actual circumstances of the case, which implies a legal assessment of the entire totality of the actual circumstances of the case by correlating a specific situation with certain legal norms.
After finding the legal norm to be applied in specific conditions, it is analyzed.
First, the rate of law is verified for its authenticity, i.e. It is established that it is not canceled, the NA is changed and the NA is supplemented, and it is valid in this form, which will be applied.
Secondly, the legal norm is subject to interpretation, as a result of which its accurate sense is established by applying all the necessary interpretation methods.
Thirdly, it is checked by the action of the legal norm in time, in space and in a circle of persons. This means that in the process of law enforcement should be established:
- - whether the norm of the NRA has been acting in the moment when it is based on it to solve a specific legal entity;
- - whether it acts on the territory where this business must be permitted;
- - whether the action of this norm on persons in respect of which it must be applied.
Fourth, collisions are allowed (contradictions) between legal norms if they are presented. There are a number of conflict resolution rules:
- - if a contradiction was found between the legal norms provided for by federal legislation and the legislation of the subject of the Federation subject, federal legislation shall be applied;
- - if the collision between the legal norms emanating from various state bodies is revealed, then the rate adopted by a higher authority is applied;
- - in contradiction between the norms adopted by the same body, but at different times, the norm is applied, which is adopted later;
- - In the case of a collision between the general and special norm, a special rate is applied.
- 3. Decision on a specific legal business and his documentary. At this stage, the law enforcement is made a final decision on the case and the act of application of the application is made. It has a written, documentary form in which the rights and obligations of persons who are addressed to those act.
It should be noted that sometimes the decision of the decision can be non-alternative, for example, if the article of the law provides for only one sanction for the perfect offense (a fine of one thousand rubles) or if one should decide whether to restore an employee or not. But in most cases, the decision-making process is quite complex and alternative.
For example, if the sanction of the article provides for a penalty of a fine from one to five thousand rubles, the court will have to decide which the size of the fine should be prescribed, taking into account mitigating and aggravating circumstances, the characteristics of the individual and other conditions.
Thus, in the third stage, the law enforcement is given the final legal qualifications of the actual circumstances of the case, taking into account all the conditions and circumstances, which is reflected in the law enforcement act.
It should be particularly distinguished by such situations where the law enforcement does not find a legal norm, on the basis of which the legal evaluation of actions or events should be given. In this case, we can talk about a gate in law, when the law enforcement is detected in different ways. In art. 3 of the Criminal Code of the Russian Federation, this issue is resolved as follows: "The application of the criminal law is not allowed by analogy." Application is not allowed by analogy and administrative legislation. This means that in the absence of a legal norm, qualifying the relevant acts, a decision should be made to refuse to initiate a case (criminal or administrative).
At the same time, civil law admits and recognizes civil rights and duties due to the general principles and the meaning of civil law. Thus, in such cases, it is impossible to refuse to justice. The space must be overcome by applying the analogy of the law or the analogy of law.
The analogy of the law applies if the relations of the parties are not directly resolved by law or agreement of the parties and there is no applicable custom of business turnover applicable to them, but in this or in other regulatory legal Act There is a legal norm that regulates similar legal relations. This rate is subject to use.
If it is impossible to use the analogy of the law, the rights and obligations of the parties are determined on the basis of the general principles and the meaning of civil law and the requirements of good faith, rationality and justice, i.e. By analogy of law.
- Aristotle. Works. T. 4. M., 1983. P. 139.
- Chervonsev A. F. The theory of state and law: a textbook for universities. M., 1999. P. 259-260.
- Goyman-Chervonyuk V. I. Essay the theory of state and law. M., 1996. P. 256-257.