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2.4. Antipodes of legal stability. The astable right

The stable right is the right of special quality, «about what say, that that,

That it is, it is in connection with another or being in any other otnoshe -

nii to another »287. It is impossible to speak About the stable right, not having mentioned the right with

Other characteristics – the astable right.

By the nature it about -

dolzhaet to be the right, but has such properties which do it is

But other. Studying of the stable right, probably, in comparison with the astable

The right. The last is its contrast, an antipode.

If the category "stability" is positive harakteristi -

Which the category "instability" is a category which gives pra -

vu negative properties.

Stability (stagnation) of the right. D.V.slavic and D.D.Kotljakov utver -

zhdajut, that «dynamics, inherently, is an antipode

sti »288. The research carried out given work does not allow to agree with

This statement. Dynamics is a stability component. Without

Dynamics right development, and, hence, its maintenance of hundred - is impossible

bilnosti.

Absence of dynamics can lead to cases when the right lags behind from

Requirements of a society for legal regulation of public relations.

This phenomenon has been named by O.A.Stepanovym «stagnation of the right» 289, and co-authors of M. And.

Mahmudov and H.N.Himatov "stagnation" 290. Stagnation and stagnation are sino -

nimami.

Terms "stagnation" assumes certain «a stop on a way» 291 in development

287 Aristotle. Categories. – with. 66.

288 Slavic, D.V., Kotljakov, D.V.feature of bank advertising//Bank de -

lo. – 2012. – № 4//information-analytical agency "ИНТЕГРУМ". URL:

aclient.integrum.ru (Date of the reference 20.02.2013).

289Степанов, O.A.Ukaz. soch. – with. 88.

290Махмудов M. A, Himatov H. N. The decree. soch.

291Шанский, N.M., Bobrova T.A.Shkolnyj the etymological dictionary of Russian.

Origin of words. – 7 izd., a stereotype. – M: Drofa, 2004.

127

Something. In a context of the present work – the rights. In this connection arise

Questions: whether any "stop" in right development is right backlog

From requirements of a society, contrast of stability? It is thought, that

No as in some cases such backlog is an objective phenomenon. In

Opposite case it is right could not to fix developed in a society from -

Carrying, and this integral property of its essence. That sushche -

stvujushchie relations have been fixed in the right, they should develop. The right

Cannot settle beforehand all relations which can develop in

The future, therefore "gap in law" – the objective phenomenon. In theory of law it

Full or partial absence in operating is defined as «zakonoda -

telstve necessary legal rules »292.

Thereupon it is possible to agree with O.I.Dolgopolov, which rassmat -

rivaja problems of protection by the state of legitimate interests, writes: «Legal

Norms are not capable to provide in advance all possible vital situa -

tsii and, accordingly, cannot and should not regulate in details

Claims of the person continuously developing and arising for the first time on

The social blessings.

In practice at definition and protection of legitimate interests

Citizens the state bodies usually resort or to analogy of the right and

The law, or to extensive interpretation of rules of law »293.

Possibility of application of the specified institutes does not give the bases

To approve, that the right at its formal invariance lags behind from potrebno -

stej a society and the public relations which have developed in it.

At application of analogy of the right the decision concrete neuregulirovan -

nogo by the dispute right it is carried out on the basis of general principles and sense zako -

nodatelstva. The legal analogy assumes the decision of concrete dispute at

Presence of a blank on the basis of similar, the closest under the maintenance

292Комаров, S.A., Malko, A.V.theor. – M: Norm: INFRA TH,

2010. – WITH. 181.

293 Dolgopolov, O.I.Obzhalovanie: a way of protection of the rights of tax bearers//Konsul -

tantpljus: the Higher school. The manual to a spring semestre, 2012.

128

Norms. In the Russian and Tadjik legislation these institutes zakreple -

ny in item 6 of the Civil code Russian Федерации294 and Civil to -

deksa Republics Tadzhikistan295, item 7 of the Housing code Russian Fede -

рации296, item 5 of the Family code Russian Федерации297 and Family the codec -

sa Republics Tajikistan. According to them, in cases, when the corresponding

Relations directly are not settled by the legislation or the agreement hundred -

ron also there is no applicable custom to them 298делового a turn, to such from -

To carrying if it does not contradict their being, the civil is applied

The legislation regulating similar relations (legal analogy).pri

Impossibility of use of the legal analogy of the right and duty of the parties

Are defined proceeding from general principles and sense of the civil legislation

(Analogy of the right) and requirements of conscientiousness, a rationality and it is fair -

sti.

At analogy of the right the incident is considered pravoprimenitelem not on wasps -

nove similar legal instructions, and in compliance with developed juridiche -

skoj practice to general principles and sense of the legislation. In other words, at

To analogy of the right pravoprimenitel follows not to the letter, and equity of statute. In difference

From analogy of the right the legal analogy assumes the decision of concrete business

(Dispute) in the presence of a blank in legal regulation on the basis of similar,

The closest norm under the maintenance.

294Гражданский the code of the Russian Federation. A part the first: the federal act from 30

November, 1994 № 51-FZ (in red. From April, 6th, 2015)//Dews. Gas. – 1994. – on December, 08th. – № 238 –

239.

295Гражданский the Republic Tajikistan code. A part the first: the law from June, 30th, 1999

№ 803 (in red. From 18.03.2015 № 1178) / [the Electronic resource]//the National centre zako -

nodatelstva at the President Republics Tajikistan [Site]. URL:

http://mmk.tj/ru/legislation/legislation-base/codecs/

296 Housing code of the Russian Federation: the federal act from December, 29th, 2004

№188-ФЗ (in red. From December, 31st, 2014 № 499-FZ)//Dews. Gas. – 2005. – on January, 12th. – № 1.

297Семейный the code of the Russian Federation: the federal act from December, 29th, 1995

№223-ФЗ (in red. From April, 20th, 2015 № 101-FZ)//Dews. Gas. – 1996. – on January, 27th. – № 17.

298Семейный the Republic Tajikistan code: the law on November, 13th, 1998 № 682 (in red.

From 26.12.11г. № 791) / [the Electronic resource]//the National centre of the legislation at

The president Republics Tajikistan [Site]. URL: http://mmk.tj/ru/legislation/legislationbase/

codecs/

129

The right to apply institutes of analogy of the right and the law in vessels of the Russian Federation and RT

It is provided item 6 of item 13 of the Arbitration code of practice Russian

Федерации299, item 5 of item 13 of the Economic code of practice of Republic

Таджикистан300. According to these norms when disputable relations

Directly are not settled by the federal act and others standard pra -

vovymi certificates or the agreement of the parties also is absent applicable to them oby -

Tea of a business turn, to such relations if it does not contradict them is

stvu, arbitration courts apply the rules of law regulating similar from -

Carrying (legal analogy), and in the absence of such norms consider cases

Proceeding from general principles and sense of federal acts and other standard

Legal acts (analogy of the right).

In item item 4 1Гражданского the code of practice of the Russian Federation

Also it is fixed: «In case of absence of norm of the law of procedure, reguli -

rujushchej the relations which have arisen during civil legal proceedings, fede -

ralnye courts of the general jurisdiction and world judges apply norm, reguli -

rujushchuju similar relations (legal analogy), and in the absence of such norm

Operate proceeding from principles of realisation of justice in Russian Fe -

deratsii (analogy of the right) »301. The similar rule is fixed in item 2 of Citizens -

skogo the Republic Tajikistan code of practice: «In case of absence

The norms of the law of procedure regulating disputable relations, arisen in

Litigation, the court applies the norms of the law regulating similar from -

Carrying (legal analogy), and in the absence of such norms, a basis of principles

299 Arbitration code of practice of the Russian Federation: the federal act from

On July, 24th, 2002 № 95-FZ (in red. From April, 6th, 2015)//Dews. Gas. – 2002. – on July, 27th. – № 137.

300Экономический the Republic Tajikistan code of practice: the law on January, 5th 2008

№ 340 (in red. From 03.07.2012г. №869) / [the Electronic resource]//the National centre zako -

nodatelstva at the President Republics Tajikistan [Site]. URL:

http://mmk.tj/ru/legislation/legislation-base/codecs

301 Civil code of practice of the Russian Federation from November, 14th, 2002 №

138-FZ (in red. From April, 6th, 2015 № 82-FZ)//Dews. Gas. – 2002. – on November, 20th. – № 220.

130

Justice applications in Republic Tajikistan (analogy of the right) »302.

Decisions of vessels of the Russian Federation, based on application in necessary cases

Legal analogies or analogies of the right, according to the Decision to the Captivity -

ma the Supreme Court of the Russian Federation admit законными303.

Unlike the legal analogy and the right, broad (extend -

тельное304) interpretation is undesirable as it is considered

As certain "abnormality" 305. In that case to the rule of law it is given more

The wide sense, than follows from verbal expression. Nevertheless, it -

Reality. In some cases extensive interpretation corresponds to spirit de -

mokraticheskogo legal social государства306. Broad tolko -

vanie the laws establishing softening of responsibility, can rassmat -

rivatsja even as a principle толкования307. At the same time necessity rasshi -

ritelnogo interpretation it is considered as feature not democratic

The modes, caused by presence in the legislation so-called «kauchu -

kovyh »статей308.

Considering the above-stated, it appears, that in most cases katego -

rija «stability of the right» does not define its any properties, which

It is possible to name stagnation. It reflects a condition of the right which is overcome

Liquidation of blanks in legal regulation or their overcoming on wasps -

302Гражданский the Republic Tajikistan code of practice: the law on January, 5th, 2008

№ 341 (in red. From 31.12.2014 № 1167) / [the Electronic resource]//the National centre zako -

nodatelstva at the President Republics Tajikistan [Site]. URL:

http://mmk.tj/ru/legislation/legislation-base/codecs/

303О a judgement: the decision of Plenum of the Supreme Court of the Russian Federation from December, 19th

2003 № 23//Dews. Gas. – 2003. – on December, 26th. – № 260.

304 Malko, A.V., Dives, V.V., SHundikov, K.V.Teorija of the state and the rights. Elementar -

nyj a course – 4 izd., has erased. – M: KNORUS, 2012. – With. 132.

305Матузов, N.I., Malko, A.V.theor: the textbook. – 2 izd. The reslave.

And dop. – M: the lawyer, 2009. – With. 362.

306 See: In the same place. – with. 363; Kulapov, Century L, Malko, A.V.theor: studies -

nik. – M: Norm: INFRA TH, 2011. – With. 303.

307 Ljubashits, Century JA, Mordvinians, A.JU., Mamychev, A.JU.theor: studies -

nik. – 2 izd. dop. And the reslave. – Rostov n/d: the Phoenix, 2010. – With. 555.

308 Matuzov, N.I., Malko, A.V.theor: the textbook. – 2 izd. The reslave.

And dop. – M: the lawyer, 2009. – With. 353 – 354.

131

nove applications of analogy of the right, the law and in the limited cases rasshiri -

telnym interpretation of rules of law.

The parity of concepts "property" and "condition" has been still defined

Aristotle who wrote: «Properties a condition essence, however, conditions not

Necessarily properties. Really, those who possesses those or others the -

stvami, there are in any condition concerning them, and those who is in

Any condition, not in all cases possess [corresponding] the -

stvom »309.

It is obviously possible to consider a stability condition pra -

va as stagnation at presence at the right of special properties. Criterion of division not -

To convertibility of the right to a condition and property conditions (stagnation) should become

Mood of the society requiring legal regulation of the defined

Public relations. In L.A.Pautovoj's researches it was noticed, that

People see the life stable when that improves. If it not

Improves – that it застой310. If the right promotes formation at

The population of shown discontent with the maintenance of the legislation, feeling

Legal uncertainty before the future it is possible to say that ime -

et a place stagnation of the right.

Stagnation signs are traced in one of institutes Russian for -

konodatelstva – protection of the right of a private property. This conclusion it is possible sde -

lat on the basis of results of interrogation by the All-Russia centre of studying obshche -

stvennogo opinions of the Russian businessmen. So, for example, on them is

kam level of security of a private property the law in Russia has appeared

The low: 2,94 points from 7 possible (11 % more or less positive otse -

nok level zashchishchnnosti, 16 % of averages and 65 % are faster negative). Otherwise

Speaking, the legislative base is represented to businessmen funktsioniro -

vanija in Russia a private property less developed, than actual sotsi -

309 Aristotle. Categories. – with. 73.

310 See: Pautova, L.A.package approach to research of social representation

About stability.

132

alnye relations and requirements which develop in a society apropos

Private собственности311. If such mood of a society finds podtverzhde -

nie and in other sources it will be possible to speak about stagnation of given pravovo -

go institute.

Thus, stability of the right, characteristic for the right only as

Systems of norms, can be considered as its condition even if have

Place blanks of the legal regulation overcome with the help spetsi -

alnyh legal tools. Such stability is not antipo -

The stability house. On the contrary, it is its element.

Stability of system of norms which negatively affects on

Mood of the society requiring its perfection the legislator -

stva and settlement of the developed public relations, can be

It is characterised as stagnation of the right. In that case an invariance of the legal

Norms generates stagnation of the right as regulator of public relations.

The legal disorder (chaos). If to accept stability for an order,

It is possible to name its opposite condition the disorder (chaos).haosom

Usually name set of elements between which is not present steady (on -

vtorjajushchihsja) отношений312. The chaos assumes absence of system.

The right represents system of norms which develops objectively

As reflexion real-life and developing public otno -

sheny. Thereupon it is possible to agree with N.I.Matuzovym and A.V.Malko, that

sistemnost the rights – the general property of all types права313.

Nevertheless, on sistemnost the rights the legislator can influence.

Such influence can be considered as its perfection. On it

Whether 311 the private property in Russia Is protected: an estimation of businessmen: a press -

Release № 842 from 21.12.2007//the All-Russia centre of studying of public opinion

[Site]. URL: http://wciom.ru/index.php? id=459&uid=9419 (date of the reference 24.03.2013).

312Бранский, V.P.Sotsialnaja synergetrics as postmodernist philosophy of history//

Social studies and the present. – 1999. – №6. – with. 117.

313Матузов, N.I., Malko, A.V.theor: the textbook. – 2 izd. The reslave. And

dop. – M: the Lawyer, 2009. – With. 122.

133

N.I.Matuzov and A.V.Malko's to occasion write: «to Isolate is possible only that

Objectively stands apart. Differently, the state, the power can in izvest -

nyh limits to influence developed legal system, to promote it is

shenstvovaniju, to development, but no more that. They cannot on the «hoteniju

To found, enter the decree the necessary, desirable legal system »314. With the last

The statement it is possible to agree. Nevertheless, raises the doubts utverzhde -

nie, that the system can be improved only.

Agreeing with that the legal system cannot be destroyed, nevertheless it is possible

To approve, what to upset some developed between its elements svja -

zi it is possible, that obviously is not its perfection. The basis for

This statement inclusion in considered system of the legal serves

Norms which constitute its primary element. At will of the state (before -

Intentionally or by mistake) can be broken communications between norms it is private -

go and the public law, norms of the general and special laws, norms zako -

nodatelnyh the certificates accepted at various times, etc. In such cases arise

Situations of absence of logic norm in the legal system, contradictions dej -

stvujushchih rules of law, etc.

Such situations can be considered as a legal system condition, to -

toroe can be liquidated or overcome. A condition characterised

Absence of logic norm, can be liquidated zakonodate -

lem. The contradiction between rules of law is overcome on a basis about -

shchih the principles of the right underlying formation of its system. To the such

To principles the following concerns: in case of the contradiction of norms of the law and podza -

The horse certificate the norm of the law operates; in case of the contradiction of norms of the general and

The special law the norm of the last operates; in case of the contradiction of norms

The laws accepted at various times, the norm of the law accepted later operates.

Possibility of liquidation and overcoming of inconsistent communications between

Elements of the legal system during realisation of rules of law, infringement neko -

314Там. – С.314.

134

toryh communications between rules of law it is impossible, most likely, oharakterizo -

vat as a stability antipode as considerably does not change from -

Society carrying to the right.

The public relation to the right changes at unreasonable and not -

Is defensible intensive change of the maintenance of rules of law. Neobosno -

vannost means, first of all, crudity, and neopravdannost obu -

slovlivaetsja absence of the objective bases for their updating. It

Leads to unpredictability of consequences of actions of the legislator, thereby

Forms uncertainty of members of a society in predictability of result rea -

lizatsii rules of law. In that case legislation change can

To be considered as a stability antipode – the legal disorder.

As it is noted in the scientific literature, one of the main lacks zako -

nodatelnoj activity in Russia, laws influencing instability, jav -

ljaetsja absence of the account of opinion and features of the population in the relation prini -

maemyh laws in spite of the fact that the legislator has a possibility sotrud -

nichestva with sociologists. The legislator addresses to opinion of sociologists, as

Rule, in own interests. In V.V. Lapaeva's this occasion writes: «In

Authorities show present time bolshy, than before, interest to

To sociological substantiation of the legislative decisions. However, to

To regret, this interest is frequently connected with unwillingness to receive new knowledge

About social preconditions, social mechanisms and social posled -

stvijah legislation actions, and with use of authority of a science for

ligitimatsii a position caused by a parity of political forces in depu -

tatskom the case »315. It also notices, that in the Russian Federation laws

Quite often prepare in such haste, that for a sociological substantiation is not present

Time, сил316. Absence of the account of public opinion at acceptance

Laws causes appreciably legislation formation

315 Lapaeva, V.V. Ukaz. soch. – with. 308.

316 In the same place; SHaklein, N.I.dynamics and quality of legislative process in Russia -

skoj Federations//Magazine of the Russian right. – 2008. – № 9. – С.6.

135

"Trial and error method" 317. N.I.Senjukov notices that fact, that «with pojavleni -

I eat in system of the Russian legislation of the big group of new codes

Contradictions between their norms and instructions of others were designated also pra -

vovyh certificates, there were language different interpretations in a regulation of the related

Public relations »318.

Preparation of projects and acceptance of laws in the conditions of insufficiency

Time for deep judgements of their positions results not only to protivo -

rechivosti the different laws, different norms in one law, to ceasing to be force

Many rules of legislative technics and professional традиции319, but also

To acceptance of "draught" laws which demand updating already with mo -

The cop of their acceptance. In acknowledgement to the last we will result the fact from the Russian

Legislative practice. Most a vivid example in legislative isto -

rii Russia the Code of Criminal Procedure Russian XXI century is Fe -

deratsii from December, 18th 2001г. From the moment of its acceptance and to its introduction in si -

lu on July, 1st 2002г. Amendments to 69 its articles and 3 have been made

ям320. To such laws also can be carried and the Federal act of Russia -

skoj Federations «About alternative procedure of settlement of disputes with learning -

stiem the intermediary (mediation procedure) »from July, 27th, 2010, in opinion hundred -

ronnikov which it cannot find wide application without entering on -

правок321 (Section 4.4 of the given work) see.

It is possible to carry acceptance to lacks of legislative activity

317 In the same place.

318Сенякин, I.N.new the teoretiko-legal phenomena in the legislation Russian Fe -

deratsii//the Bulletin of the Saratov state academy of the right. – 2010. – № 2. – with. 12.

319 Glazkova, L «it is better than any law, than bad», - so the chief of the legal considers

Managements of the device of the Federation Council Nikolay Havansky//the Russian Federation this -

Day. – 1999. – on August, 05th.

320 About modification and additions in the Code of Criminal Procedure Russian

Federations: feder. The law Grew. Federations from May, 29th 2002 g № 58-FZ//Dews. Gas. – 2002. – 01

June. – № 98.

321Рекомендации participants of "a round table» on a theme: "Federal act" About media -

tsii »– one year of practice pravoprimenenija and prospects of development of the legislation about me -

diatsii »//Resource cent mediations [site]. URL: http://mediators.

ru/rus/about_mediation/news/text13/text1? print (date of the reference 30.08.2012).

136

Amendments to the laws, unreasoned and untied requirements obshche -

stva. One of last examples, inexplicable from the point of view objectively -

sti the reasons, the example of change of norms of the Civil code of Russia - is

skoj the Federations, establishing rent contract registration it is immovable -

go property. Since March, 1st, 2013 rent contract registration has been cancelled

Buildings, the constructions concluded for the term of not less than 1 year, and also rent

предприятий322. In two (!) days after date of cancellation it has been restored

The federal act from March, 4th 2013г.323.

In the scientific literature the conclusion becomes, that in Russia laws have lost the

The major quality – stability. So, for example, Sinjukov V. N marks,

That among the legislation kodifitsirovannoe remains less стабильным324.

Other reason of intensive change of the legislation is not -

Perfection of legislative technics. It is possible to confirm it and practice,

Developed in Russia. The legal technics used at a writing for -

Games of the Russian Federation, causes constant entering into them on -

Editings. Novel acceptance frequently demands modification abreast

Others. For example: in connection with Federal act acceptance «About gosudarstven -

Ache corporations on an atomic energy "Rosatom" amendments in 21 have been made

The federal act Russian Федерации325.

The resulted examples give the bases to allocate in the Russian right

Signs of the disorder (randomness).odnim from them frequent change is

322О modification of chapters 1, 2, 3 and 4 parts of the first of the Civil code of Russia -

skoj Federations: feder. The law Grew. Federations from December, 30th, 2012 № 302-FZ//Dews. Gas. –

2003. – on January, 11th. - № 3.

323О modification of separate acts of the Russian Federation and

Recognition become invalid for separate positions of acts Russian Fe -

deratsii: feder. The law Grew. Federations from March, 04th, 2013 № 21-FZ//Dews. Gas. – 2013. – 06

March. - № 48.

324 Sinjukov, V.N.Rossijskaja legal system. Introduction in the general theory. – 2 izd.,

dop. – M: Norm, 2010. – With. 416; SHaklein, N.I.decree. soch. – С.6.

325 About modification of separate acts of the Russian Federation in

Communications with Federal act acceptance «About the state corporation on nuclear ener -

gii "Rosatom": feder. The law Grew. Federations from December, 01st, 2007 № 318-FZ//Dews. Gas. –

2007. – on December, 05th. – № 272.

137

The standard legal acts, caused: crudity of projects zakono -

Dative certificates, changes to them; imperfection of legal technics,

Used at their development and change.

Other sign of a randomness is nevostrebovannost a society

The laws containing provisional rules, and also its "weariness" from many -

Numerical changes in laws. Under the influence of numerous amendments to

To laws in force, in a society there was a stereotype: «it is not known, that will be

Tomorrow and what law will be accepted ».

These signs give the basis to qualify instability in the different

The periods of history of the Russian right and both a condition, and property Russian -

go the rights.

As a condition intensity of legislative process it is possible

To consider in occurrence and formation in Russia new ekono -

micheskih, political and social relations in the nineties HH century It with -

Standing did not influence formation of feeling of instability in a society.

On the contrary, during this period the society has been assured of necessity of the legal

Transformations for improvement of a life, development of relations in the state. In

This period of instability of a positive law, it is possible to establish hundred -

bilnost the rights as regulator of public relations.

Intensive change of laws of the Russian Federation, including to

Their introductions into force, within twenty years the basis to consider, that already gives

This condition is transformed to property which influences mood about -

shchestva and on possibility of a prediction of change of the legislation and posled -

stvy legally significant actions. Nevertheless, it is necessary to note,

That insignificant character of such property of the right means, that at produ -

To the semolina Policy of Law of the state based on modern legal

To the doctrine, elements of such property will disappear. Considering, that the right as one of

Elements legal gomeostaticheskogo process influences an establishment of hundred -

bilnogo the law and order, a problem of perfection legislative it is active -

138

sti and the legislative technics is socially significant in modern

Russia.

139

<< | >>
A source: LITVINOVA SVETLANA FEDOROVNA. TEORETIKO-EMPIRICAL RESEARCH OF THE NATURE OF THE STABLE RIGHT (On an example of the legislation of Russia, Tajikistan, the Peoples Republic of China). The dissertation on scientific degree competition Doctors of juridical science. Dushanbe – 2015. 2015

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