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formation of the search form of litigation in first half XVI century

Besides the accusatory form of process - "vessels" - the Code of laws of 1497 establishes possibility of realisation of legal proceedings in the new, search form, assigning to is administrative-judicial bodies the duty to participate in capture and exposure of the criminal.

In process of strengthening of a role of the state for a society the given form gains the increasing distribution in struggle against expecially dangerous crimes.

Formation of search type of litigation as it was marked earlier, is determined by several factors, major of which is centralisation of the state and influence strengthening on places of the public government. However centralisation process occupies a considerable time interval during which elements of feudal dissociation are eliminated, and there is a government concentration in the uniform centre. Under N.S.Kollmann's art remark «prevozglasit centralisation is at all the same what to finish it» 1. Thereof, fastening in normative acts and sudoproizvodstvennoj to practice of elements of search also can occupy the long period on which extent their relative density can essentially differ. In particular, it is necessary to agree with N.V.Stus who specifies, that during the various historical periods of concept "investigation" and "search" had various values [182 [183]. According to the author, investigation is one of litigation forms in XVI century which forms a basis for search formation - the form of the process which has received development in second half XVII century, and subordinated to itself consideration of all criminal cases, and also many civil cases.

Thus, investigation is the initial form of search process to which all signs of search type are yet peculiar. A.V.Smirnov draws a parallel between investigation and "assise" - the early form of search process adjoining on the properties to communal inquiry, however the central power burdened by representation \the Similar form of process finds reflexion in practice of many states which were at the same stage of development of statehood, as the Moscow state, however investigation development passed in our country on the special way caused by a number of factors.

So, centralisation, at the same time, and to development of the consolidated search form of legal proceedings, stirred climatic conditions, absence of the roads, complicating interaction with Moscow local officials, low level of literacy, weak development of publishing. Because of an ethnic, religious and cultural variety of the people living in its territory to establish uniform forms and procedures it was extremely problematic. Special administrative strategy, and in our opinion was required, such strategy has been found. It was based on close interaction with local population and its involving in legal proceedings realisation, that as it will be shown further, was reflected in features of formation of search in the Moscow state.

Concerning the reasons promoting occurrence in our state of the such form, in istoriko-legal science the various points of view as «criminal trial has entirely been got into the early period of Russian history the principle of controversy» [184 [185] express. Replacement of this beginning from process in the literature quite often speaks foreign influence.

Dejstvi - telno, in the countries of continental Europe search process in shape inkvizitsionnogo was applied in legal proceedings in XII century, in connection with the scale reception of the Roman Law. One historians consider, that Moscow borrowed search procedures the Great princedom Lithuanian, others explain development of the given forms by the Byzantian influence, however these arguments are given reason poorly enough since in one of the specified states search forms were not applied so широко1. More convincing the version according to which search has come to Russia from Sacred Roman empire, by means of an establishment of diplomatic communications with Europe officials of the Ambassadorial order looks. John Vejkhard defending the given position, gave reason its absence in the Moscow state of universities or schools of law, without which for search development probably only by zaimst -

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vovanija search procedures abroad. Really, "Carolina" - the collection of the criminal procedure norms published by Charles V, has many the general lines with Regulations Razbojnogo of the order regulating the criminal trial in our country in XVII century However, first signs of search process have appeared in the Moscow state long before the edition of Carolina in this connection we consider defensible not to search for the reason of genesis of search forms from the outside, and to address to the internal: to political, economic and cultural factors.

According to A.I.Aleksandrova's opinion occurrence of search process is in many respects caused by practical requirements of that epoch. « Covered with woods, the sparsely populated country giving a refuge for criminal elements, incessant disputes of specific princes, attacks of the nomadic people, suppression of country performances, frequently direct feebleness of the judicial authority in struggle against developing criminality — all is the reasons of practical character which also promoted introduction and development search about - [186 [187] tsessualnyh forms »1. It is difficult to disagree With this statement. As it will be shown further, the sphere of application of investigation included the most dangerous acts made by professional criminals that allows to consider search as the answer to internal threats to strengthening of the state and to performance of the functions by it. Besides it, interest of the state in a fast and effective establishment of true on the most significant affairs was the key factor, causing application of search forms for adjudication.

The first preconditions of occurrence of search process can be found out in the end of XV century as the special order applied on affairs about grave crimes, including state, for the purpose of punishment of professional criminals. The norms of the Old Russian right regulating an order of legal proceedings, mainly testify to accusatory character of litigation. Nevertheless, in the istoriko-legal literature it is noticed, that already during this period it is possible to find out the beginning of formation of a search order of legal proceedings. I.JA.Fojnitsky, in particular, pays attention that formation first signs of "an extraordinary order» permissions of affairs appear during the princely period [188 [189] [190]. So, princes with the enemies finished «without usual forms, is perfectly in order opa -

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ly »from which strict detective manufacture subsequently was developed. S.A.Shumakov also notices, that already according to the Pskov judgement reading and writing on affairs about murder,« fight "," konevoj to theft "," zazhigatelstvu »and to some other crimes the court can begin and without suing [191].

T.J.Ampleeva in which opinion «search with all cores inherent in this type of process by elements, was applied in days of the first Kiev princes» 1 adheres to a similar position. «Hence, - she writes, - search as the special form of process (let still primitive enough) the roots leaves by the earliest period of Russian statehood. During the Moscow period there was only its legislative registration» [192 [193] [194].

It is possible to agree with this statement only partly. The separate principles of search process assuming active participation of public authority in struggle against acts, serving by threat to its realisation, application still the period of Ancient Russia that is quite natural as adversary procedure in the nature cannot purely exist really for the first time has found. However, in our opinion, hardly probable in legal proceedings process it is possible to consider similar public intervention as the first stage of formation of legal proceedings of search type as, by and large, it did not influence in any way it sostjazatelnuju essence, being a special case.

We believe, that occurrence of independent search forms of process concern an epoch of the Moscow centralised state. We will agree with N.Gartungom who writes: «In the Moscow state already the vague thought on branch of sphere of civil law from sphere was right the criminal... Because it is necessary to pursue on another crimes, rather than insults that it is necessary to eradicate conducted dashing people and robbers, that is what are dangerous as are ill-intentioned. It has formed the basis for allocation from the general file of offences at first razbojnyh affairs... And then and other crimes. Therefore there were two forms protses -

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sa: search - search, investigation and accusatory - court ».

Throughout all period considered by us - from the Code of laws of 1497 to Cathedral Ulozhenija 1649 - two these forms - the court and investigation - are applied in parallel with each other. At the first stage of formation of investigation (1497 - 1550) we cannot see all variety of search procedures yet, shown subsequently, however the analysis of the given period allows to observe genesis of the new form of the proceeding which features will be considered further.

In 1550, in the conventional opinion in a historiography, has come to the end begun at Elena Glinskoj's board - lip reform. As a result the device of the judiciary has undergone to basic changes and there was a redistribution of jurisdiction which, mainly, has mentioned secular local courts of deputies and volostelej.

As it was marked above, to carry out judicial functions deputies used the right as the basic source of the income, and as historical sources testify, quite often abused the полномочиями1. Besides, from the beginning of XVI century the young state has faced a new problem which was numerous robberies. V.I.Kurdinovsky so has described developed situation: «Gangs of robbers wandered on all space of the Moscow state, marking the way robberies, murders and robberies. It is possible to tell, there was no district, volost in which these would not glance nezhelannye and the ten would not leave another of families obezdolenny -

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mi ». Local authorities, in the name of deputies and volostelej, called to struggle offences in territory subject to them, obviously, did not cope with this problem. The competence of the deputy extended only on one district, and to pursue criminals behind its limits, in districts of others kormlenshchikov, it had no right [195 [196] [197]. Besides, kormlenshchiki sometimes represented still the big problem for the population from-for numerous requisitions and oppressions as theft, robbery and dushegubstvo were the most favourable article кормления1. All these abusings the central power also aspired to limit.

Initially struggle against robberies was carried out irregularly: "detectives" went to separate districts from Moscow or "obyshchiki" for the purpose of capture of the most dangerous criminals [198 [199] [200]. The Legal status of the given officials in many respects remains not clear as despite numerous mentions "obyshchikov" in documents of this period, the concrete department directing given officials, is not specified anywhere. There is a version, soglas -

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But which in a direction "obyshchikov" could be engaged CHelobitnyj the order. For robbers terrible punishments and severe executions were provided. However toughening of criminal reprisals has not led to desirable effect, and "detectives" the actions oppressed the population not less kormlenshchikov. The text of petitions testifies To it to the grand duke that «from obyshchikov great losses» [201] are repaired, reflected subsequently in the text of lip reading and writing given out to the district population from which the petition proceeded. M.F.Vladimirskij-Budanov marks, what exactly this measure fixes the beginning of prosecution of crimes directly state [202].takim in the image, it is possible to consider the given measure as one of first signs of branch of search process from the accusatory.

And then the government has undertaken a new step on crime control - it has obliged communities independently to catch criminals in the territory, and also granted to local population the right to carry out civil legal proceedings. It has caused occurrence of two new legal institutions: lip and zemskih establishments. Politsejsko-judicial functions while zemskie establishments have taken up judicial functions on consideration of civil and insignificant criminal cases, and also were assigned to lip establishments of power in financially-administrative сфере1. And if zemskie judges have not introduced any basic changes in the litigation form (though their occurrence was extremely important from the point of view of clearing of local population from namestnichego an arbitrariness) lip establishments were essentially new phenomenon in history of domestic legal proceedings.

Creation on places of the elective lip establishments intended for crime control, is of interest for the reason, that is carried out in the conditions of amplifying centralisation and restriction by the autocratic power of a role of local community. However, it is impossible to tell unequivocally, that similar practice - transfer of the right of investigation important for the state of criminal offences to local population - was generated exclusively in sew to the country. In England in XV century the post of "the keeper of the royal world» - the world judge of which selected local population from the environment has been founded. The world judge, along with administrativnohozjajstvennymi powers, was engaged in investigation of criminal cases, leaving for representatives of a Crown - sheriffs, only powers in sphere of execution of sentences. However, for England such state of affairs not seems strange in a kind of that search procedures have not received in it a wide circulation. However we can observe a similar picture and in the European countries: court of lay judges in G ermanii, vitse-bali in France - all these institutes were based on the elective beginnings, that at first sight contradicts the general tendency of centralisation of the judicial authority, as major factor of formation of search process. But in practice the local population autonomy in all cases appeared relative: the central power strictly supervised local judicial tribunals. [203 [204]

Coming back to lip bodies of the Moscow state, we can note, here the central power has shown rather far-sighted flexibility in the decision of questions of legal proceedings, leaving behind local population is right to solve independently crime control questions through elective people. As marks N.Kollmann, in the Moscow state «the formalized institutes of justice operated in symbiosis with« flexible practice and national concepts of the right »so on closer examination« the European "rational" states look less rational, and... "Autocracy" of Moskovia - less autocratic »1. At the same time, the state carried out steadfast supervision of elective people, supporting thereby stability of the created law-enforcement system. We will consider the given mechanism in more details.

In reply to numerous complaints of this or that district the government sent there the lip reading and writing in which the population was recommended to select from the circle of special officials - lip goals or lip heads, and also lip tselovalnikov and clerks.

Occurrence of lip reading and writing concerns to 30th of Most ancient of XVI century of the found out lip reading and writing the Belozersky lip reading and writing of 1539 In further, its our positions reflexion in other lip reading and writing, in particular is Kargopolsky, Ustjuzhsky and others. Usually with this date connect the beginning of carrying out of lip reform, however in the literature the opinion is expressed, that Belozersky and Kargopolsky reading and writing «do not give any bases to consider as their first constituent lip reading and writing only because they the earliest of the lip reading and writing which have reached us» [205 [206]. Nevertheless, it is impossible to tell, that by 1539 lip establishments have received a wide circulation. In particular such conclusion does A.K. Leontev, being based that the text of early reading and writing contains the requirement turned to chosen «go - lovam», to "heads" and the best people »to pursue dashing people outside of their districts, that is at this stage lip establishments have not been extended повсеместно1. M.M.Kroma's position which connects the beginning of carrying out of reform with the introduction on Ivan's IV throne as all lip reading and writing begin with chelobitja local residents and instructions on a direction the grand duke"obyshchikov"for investigation of robbers, and Vasily's name III Is of interest in one reading and writing is not mentioned In this connection time of drawing up of the first lip reading and writing and the beginning of carrying out of lip reform can be carried to 1534

Lip reading and writing represented normative acts by which litigation on places was regulated. They, though stood out the central power at the desire of the population, unlike other versions of authorised reading and writing had no character of grant of dignity as lip reading and writing assigned a duty to the population to catch and punish criminals in the district.

Lip reading and writing were a source of the law of procedure on an extent XVI - XVII centuries in spite of the fact that in XVII century in parallel with them Regulations Razbojnogo of the order containing similar norms operated, uniform for all state. The matter is that, not looking at a delegation of power on crime control in hands of the community, the central power carried out behind it the strict control by means of creation in Moscow special body - Razbojnoj a log hut subsequently renamed in Razbojnyj the order.

Thus, lip reading and writing established essentially new structure of local is administrative-judicial bodies: selected the population on the one hand, and under control to the central seigniorial body in Moscow with another. We believe, that it is impossible to connect directly ancient tra - [207 [208] [209] ditsiju participations in court of representatives of the population and the mechanism lip учреждений1 as in the latter case we can observe an accurate imperious vertical and the special competence of new bodies necessary for realisation of search process. But, during too time, elective character of lip establishments, gives the bases to approve about their "granted" character. Ivan Groznyj enters the given bodies in reply to numerous requests of the population, and gives to the population the right to participate in their acquisition. This characteristic line of origin of search process in the Moscow state is remarkable so far as as search as process type, assumes the centralised character and realisation by its bodies directed from the centre. However, "detectives" sent from Moscow have not coped with a problem on crime control, and it has forced the power to make a compromise, characterised in the literature as «integration of individual strategy

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Managements with the formalized procedure, institutions and the law ». As a result investigation as the historical form of search process of the Moscow state, starts to be carried out by representatives of the population, that in our opinion as already it was spoken above, allows to draw a conclusion on flexibility of a remedial policy of the Moscow state.

In connection with the edition of lip reading and writing, besides the nation-wide right, «the lip right» the given reading and writing were which sources was created special. G ubnoe it was right, as a matter of fact, to given communities the right of the independent prevention, investigation of crimes, vessels and punishments of criminals in relation to which search process was applied. Moreover, in these documents it is possible to see the beginning of differentiation of litigation. M.A.Djakonov specifies in the important role of lip reading and writing for allocation of a special order of legal proceedings on criminal cases. It podcherkiva - [210 [211] [212] et what exactly lip reading and writing «have allocated for the first time in our legal proceedings the punitive justice (investigation) from adversary procedure (court)» 1.

As a rule, lip reading and writing gave to inhabitants of its asked district (lip) the right to select from the environment the lip head and lip tselovalnikov, clerks and others «the best people». Their quantity varied. So, in the Belozersky lip reading and writing prepisyvalos «to make... Children boarskih in volost of the person three or four which to the reading and writing would be able and which it is nice, yes with them heads and desjattskih lutchih people of peasants the person five or six» [213 [214] [215] [216]. If the lip reading and writing stood out at the desire of the district population it was recommended to choose at once from the environment the lip head by the unanimous decision. It is remarkable, that the lip reading and writing which are given out to private persons, gave them the right to appoint the head. In the lip reading and writing to boyar Dmitry Ivanovichu Godunov it is found following instructions: « In seleh and in volosts in Charonsky and in Veshchezersky volost veleti at them byti at rozbojnyh and at tatinyh affairs in lip heads to elective heads, yes with them

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tselovalnikom whom it our boyar Dmitrej Ivanovich »orders vybrati. If election has not taken place owing to disagreements among voters, lip

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The government could appoint the head.

Thus legitimate elections lip heads could be considered only in the event that for the candidate the overwhelming majority of inhabitants of district has voted. Otherwise elections were considered as the false. So, kurjanin Feodor Moljutin, in the formal reply in Razbojnyj the order reported on the refusal to sign documents on election as the lip head of Soldier Annenkov, naming its choice "thieves'" as Annenkov itself has written on itself a choice while according to Moljutina it «not all city chose» [217].

For coordination of activity of lip establishments in Moscow the special order - Razbojnyj, appeared initially as Razbojnaja a log hut has been created. Traditionally it is considered, that the first mention about Razbojnom the order is dated 1539 and is in the Belozersky lip reading and writing where the boyars who are in Moscow by whom "are ordered" razbojnye дела1 are mentioned. However M.M.Krom, referring on zhalovannuju nesudimuju Vasily's reading and writing of III Barks - nilevu to the Komelsky monastery on the earths in the Vologda district from September, 18th, 1531, does a conclusion, that the seigniorial commission on razbojnym to affairs has been founded in 20 - 30th of XVI century. According to the text of the reading and writing the grand duke charges

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The to boyars «obyskivati dashing people, tatej and rozbojnikov». Professor K.A.nevolin specifies, that the increase in robberies in Russia was an occasion to establishment of this order and it was initially supposed, that the given body will exist up to their eradication. However from time body Razbojnyj the order outgrows in constant as robberies did not stop. Also he notices, that action Razbojnogo of the order extended other territory of Russia [218 [219] [220] [221].

G ubnym the representative of nobility could become the head exclusively, thus the law made to its such demands as honesty, literacy and riches [222]. N.Shalfeev notices, that lip heads were recommended to be selected from the seigniorial children suitable for lip business [223 [224]. However sources testify that other qualifications were applied also. So, in 1617 in Vologda lip heads chose from «children seigniorial, kind, souls of straight lines

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And stomachs living ». The Property qualification, possibly, is caused by that circumstance, that the post lip the head did not provide the salary, and powers on capture of criminals were carried out by them absolutely gratuitously.

The qualification of literacy concerning heads assumed ability to read and write in that measure in what it was necessary for realisation of investigation by them. The qualification of literacy did not assume any juridical education for that simple reason, that in the conditions of the Moscow state there were no educational institutions which could give such formation. If in the European countries during the considered period the system of a classical university education for lip heads and zemskih judges in our country such possibility was absent, otherwise, in the Moscow state has received wide development there was no layer of the professional lawyers possessing corresponding knowledge. The situation was aggravated with features of a statement of legislative monuments of the given period which is not containing detailed, concrete instructions concerning procedure vessels and consequences, in difference, for example, from published in 1532 In Germany "Carolina" in details regulating an order of delivering justice. In this connection lip heads (subsequently voevody) quite often interpreted the law on the basis of own discretion and the developed practice, and on the most difficult and problem affairs directed inquiries to orders.

Anywhere in sources the term of appointment of lip heads is not concretised, that, most likely, gives this question on the discretion to local population. Also vaguely lip reading and writing express about quantity of lip heads - «the person three-four children seigniorial» 1. As to spatial frameworks of action of the given institute here among scientists there is no unity. M.F.Vladimirskij-Budanov, for example, believed, that in

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Second half XVI century lip heads have been founded everywhere. It, in particular, follows from lip reading and writing: «and which robber will tell [225 [226] companions of robbers in other cities, and you about those robbers would write reading and writing to those cities, to those children seigniorial, which... Are made at that business in heads» 1. Nevertheless, in Cathedral ulozhenii it is directly said, that in those cities in which there are no lip heads, lip affairs to know voevodam and to mandative people »[227 [228] [229], that testifies that the given institute has not been entered everywhere. Nevertheless, the analysis of detective affairs allows to draw a conclusion, that lip establishments were enough widespread.

From peasants, besides lip heads, were selected lip tselovalniki in which occasion in lip reading and writing the following was spoken: «the lip

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tselovalnikom, with lip heads, at business a life at elections soshnyh people ». The given name is defined by that circumstance, that judgement muzhi after election have been obliged to take the oath - a God kissing:« it on court of any business berechi in the truth, on a God kissing, without any cunning »[230]. Unlike lip heads tselovalnikom there could be a native of peasantry, it however should come was to be from that volost in which it was appointed, and besides it, to live in village, number not less than 20 souls [231]. A duty tselovalnikov was execution of commissions which to them were given by lip heads, for example, they conducted a general search, managed prisons, etc.

Lip office-work lip clerks or djacheki which also were selected all inhabitants of a lip, irrespective of a class accessory «the lip clerk at lip affairs led a life on a choice of any people» [232]. The analysis of sources shows, that lip clerks, unlike the clerks who were at voevodah, should be selected from «idle people» - local population. All listed above the person were called for the oath - to a God kissing about what Regulations Razbojnogo of the order directly speak: «lip heads, both lip tselovalnikov, and lip clerks to lead to the Godfather tselovanju, pushchati in lips, a without the Godfather tselovanja at affairs it not to be» 1. Heads were sworn in in Moscow, in Razbojnom the order, tselovalniki and clerks kissed a cross on a place, at the lip head or voevode.

At the head and tselovalnikah during the investigation and vessels should be so-called «the best people» from all estates of volost in which duty, possibly, entered to watch that on the persons who are carrying on an investigation, pressure was not put. «And on court, both at a note and at any affairs at lip and favourite judges sideti to volost best peasants» [233 [234] [235]. N.V.Stus notices, that during the period with 1550 for 1649 judgement muzhi, not carrying out judicial functions, participated in trial as «oberegateli truths on court», and were the witnesses, obliged to certificate the signature correctness of the judicial report, confirming reliability of the facts of examination during trial brought in the judgement list, but without the right to express the opinion on fault or innocence of defendants. F.L.Moroshkin so characterises value of judgement husbands: « The right lives in folk customs, and speakers its essence tselovalniki, people kind, people the best, selected on half from tjazhu - shchisja the parties. They fill court forms with the material maintenance »[236].

All these elective officials, unlike the deputies openly fed at the expense of local residents, or voevod, receiving the salary from the state, carried out the duties assigned to them not so much at the expense of material, how many moral stimulus. Their majority did not receive them any salary or any other payment of the work. Employees of lip log huts kissed a cross that will do "good" and to serve «in the truth» not to the people, and the tsar, his family, «their earths» 1. A God kissing as admission compulsory condition to service, was the basic guarantee of fair performance of duty and performance of the duty of struggle assigned to them with robbers.

At such state of affairs the fate of lip clerks was especially unenviable. The huge volume of powers and the responsibility, connected with lip office-work, did not assume any material stimulus. It is not surprising, that wishing to hold the given post was not much. In one of sources we meet the formal reply Mtsensky voevody to Moscow in which he informs that local residents have selected in lip sextons podjachego szzhej Rodion Olovennikova's log huts. Olovennikov as informed voevoda, throughout fifteen years served in sezzhej to a log hut «without the monetary and grain salary» and thus disinterestedly performed huge volume of work: « And everyones yours gosudarevy affairs to it otpisany.... And your affairs gosudarevyh much: send ukaznye reading and writing from Rozrjadu, and chelobitchikovy, and those everyones yours gosudarevy affairs without yours Rodki become. And in szzhej to a log hut will be movchanie ». In reciprocal gosudarevoj to the reading and writing was veleno to leave podjachego in sezzhej to a log hut, and lip sextons to choose from free,"idle"people, instead of« from places », i.e. employees [237 [238].

The given case visually shows, at least, two circumstances. First, we can observe that enormous role which the bureaucracy played places, actually providing carrying out of a policy of the central power in districts, including, connected with sudoproizvodstvennymi procedures sluzhilaja. Secondly, so full transfer to the population of the powers connected with the organisation of organs of inquiry as to us sees, shows the smart policy of the Moscow sovereigns which on the one hand entered search methods of investigation of crimes into practice, but with another perelagali responsibility for spent measures on local population.

Election of lip heads, their activity was initially regulated by position about lip heads, however about the period 1555-56 Regulations Razbojnogo of the order which comprised corresponding positions were definitively issued. Simultaneously with it various lip reading and writing and lip orders in which the given positions were concretised operated.

Activity of lip heads on search of robbers and realisation concerning them vessels has all signs of search type of litigation. So, association of remedial functions of adjudication, protection and charge in one body which A.V.Smirnov has characterised as «the interbranch unanimity», peculiar to search is peculiar to search process. According to this principle in process there is qualitatively new function - function of investigation or search which "swallows" functions of justice, protection and charges. So, in inkvizitsionnom process as excitation of prosecution and a management of process the special official - the public prosecutor (promoter inquisitionis) was engaged in one of forms of search; however, through it the court also did not lose the initiative independently to investigate proofs and to pursue подозреваемого1. As to the competence of lip heads in itself investment of communities with the right or a duty to select from the circle of the persons who are engaged in capture of dashing people, certainly, it is impossible to name the characteristic of search process. Moreover, F.M.Dmitriev characterising a role of lip heads in legal proceedings, names them «catchers of robbers» [239 [240], definitively reducing their role in process to performance of especially police functions However, we believe, that it is impossible to agree with this characteristic. So, in the Lip reading and writing of Ustjuzhsky district, the description of the competence of the lip goals selected the population contains: « And they that rozbojnikov and tatej conducted boundaries of imali, yes having searched rozbojnikov and dovedchi on them, pytati them firmly; and having tried to find out rozbojnikov, that they rozbivajut, and they rozbojnikov biv knutem yes would execute those smertnoju execution: that esmi has put on their souls, and it from me in that disgraces are not present, and from our deputies, both from volostelej, and from them tiunov sales are not present »[241]. Thus, duties of lip heads joined capture and search of robbers, court realisation over« conducted dashing people », and also execution of sentence, including punishment in the form of a death penalty. It is characteristic, that unlike volostelej and deputies lip heads possessed the right to execute such sentences without the report to Moscow. Hence, in their activity with all completeness the unanimity of powers of an accuser and the judge, peculiar to search was applied.

If the judgement form of legal proceedings supposed possibility of tap of the judge at the initiative of the party tap lip heads though it was supposed, but have been considerably complicated. In Regulations Razbojnogo of the order in this respect we see the following: «And on which lip heads claimants ask humbly boyars, that them judge and search not on friendship and boyars to those lip heads add from other lips of lip heads that with those heads gathered and searched together». Thus, if in Razbojnyj the order the complaint about the partiality of the head it was not discharged of process arrived; instead to it the head from the next province, called to supervise its action was sent. The similar decision of the given question, obviously, is caused by unwillingness to undermine authority lip heads.

The basic criterion defining an accessory of business of the competence of lip heads or deputies, the characteristic of the person of the criminal was. Already in documents of the end of XV century it is possible to meet for the first time concept «the conducted dashing person», «conducted tat», etc. So item 39 of the Code of laws of 1497 fixes a following rule: «also will finish on whom tatbu, or robbery, either dushegubstvo, or jabednichstvo, or other what dashing business, and will be conducted dashing, and to it of that veleti kazniti smertnoju execution» 1. As specifies F.M.Dmitriev, «the simple criminal does not constitute still constant threat for a society. Its illegal act could be made owing to its personal relations to that person, whose right has been broken by it; but the conducted dashing person is a constant ulcer for a society; to get off it there is a need insistent» [242 [243].

Definition of the competence of lip heads through «conducted dashing people» underlines public character of their activity, despite from election from the national environment. (In particular, occurrence of forms peculiar to it in the Moscow state) it is possible to consider occurrence of search process as origin of essentially new ideology of legal proceedings. We believe, that the main basis for occurrence in litigation of search elements is prevalence of the public interest over interest private, owing to the objective factors which have developed in a society, basic of which centralisation and strengthening of the device of public authority is. Well-known, that the main mission of the rule of law is influence on behaviour of people, and a legal regulation subject are public relations. On the other hand, the feedback is obvious: in the right finds reflexion an order of things already developed in a society at the moment of norm acceptance. Thus, it is possible to establish presence of dialectic communication: the rules of law created under the influence of relations which have developed in a society, in turn regulate the given public relations.

At the same time, we believe, it is impossible to agree with a position according to which occurrence of search forms of litigation is not which reform caused by subjective factors. Such factors can influence a course of process of introduction of new forms, however cannot be a principal cause. We will show it on a concrete example.

Creation of lip bodies and talent to communities is right to search independently for criminals it is accepted to name in istoriko to the-legal literature lip reform. The characteristic of the given measures as "reforms" also is represented enough disputable as universal creation of lip bodies, and has not occurred. « Not only in days of the edition of the first lip reading and writing, but also in days of the edition of the Imperial Code of laws in some parts of then Russia ancient establishments »1 continued to exist. N.V.Sokolsky's assumption concerning the reasons of a similar policy Is of interest. In its opinion, the legislator initially intended to enter lip institutes everywhere, but, having met various obstacles was limited to the statement for necessity of introduction of this institute basically, and in practice carried out the plan« gradually »[244 [245] [246] [247]. Even more sceptically M.M.Krom concerns creation of lip bodies. Not recognising the given actions of the central power by reform, it characterises it as« one of nepo -

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sledovatelnyh and badly adjusted measures », directed on crime control.

Thus, hardly probable it is possible to connect the beginning of formation of litigation of search type with not which "reform" - the state-imperious decision accepted top-level on creation of the new institute which is carrying out process in the form of investigation. It is possible to speak about the separate actions spent in different parts of the country more likely, it is considerable protjazhennyh in time. Introduction of inquisitorial principles and formation of special search bodies if to consider these phenomena on an example Moscow go -

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sudarstva, it is impossible to name «revolution of ideology of legal proceedings» as here we see protjazhennyj in time the process consisting from separate, frequently of uncertain actions of the government.

Thereupon the separate attention is deserved by a question on interaction of the created lip bodies with deputies, volosteljami and voevodami. For today in an istoriko-legal science there was a position according to which elimination of feedings was not included initially into plans of the central government. As specifies F.M.Dmitriev «new management appeared beside old, not superseding it it is perfect. However there is some probability, that after Grozny kormlenshchikov any more was not» 1. (Except for those which competence included theft eradication) it was offered to lip heads «not vstupatisja» in other lawsuits which have remained in the competence kormlenshchikov [248 [249] [250].

Thus, during enough long period lip establishments were created in parallel with vicegeral structures that should lead to conflicts. As an example it is possible to result the complaint volostelja from Vygoozera Feodor Timofeevicha Zezevitova on local lip heads whom affairs interfered in cognizable kormlenshchikam. In reply to the complaint from Moscow the reading and writing which ordered to lip heads to be engaged in exclusively search «straight lines rozbojnikov cheklyh on has followed ukaznaja sew to the lip reading and writing», not to interfere thus with other lawsuits,

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«That at volostelej ours the court was not lost».

Summing up to the research spent in the given paragraph, we can draw following conclusions:

In the Moscow state, also as well as other countries, registration of forms of legal proceedings of search type is closely connected with centralisation of the government and an establishment of the bureaucratic control of the central power behind justice realisation on places. However features of geopolitical position of our country, it is possible to regard specificity of a historical way, level of social development as the factors objectively interfering centralisation, consolidation of the law of procedure and, accordingly, to creation of the unified form of legal proceedings which at the given stage of historical development investigation was. The administrative strategy selected the Moscow power for the control over legal proceedings on especially important issues, was based on close interaction with local population and its involving in legal proceedings realisation.

The code of laws of 1497 among domestic law monuments assigns for the first time a duty to is administrative-judicial bodies to participate in capture and exposure of the criminal, fixing thereby the new form of the litigation which has received the name "investigation". For maintenance of public interests in the litigation which is carried out on the heaviest criminal offences what during this period were robbery, "dushegubstvo" and some kinds of "theft", the central power essentially new system of the bodies, carrying out judicial-policemen of function was required. The given problem dares in some stages among which we can allocate first, a direction in the most problem districts obyshchikov (detectives, nedelshchi - kov) for capture of robbers; secondly, creation in 30th The central body of seigniorial management - the commissions on razbojnym to the affairs, subsequently transformed in Razbojnyj the order which has become by the first centralised judicial-policeman by body in our country; in the third, a direction in separate districts of lip reading and writing on purpose to charge to the population to select from the environment bodies of lip management - lip heads and lip tselovalnikov, whose powers included investigation of the crimes made by "conducted dashing people», by means of use of various search methods (a general search, a confrontation, torture and dr). The given measures in the domestic literature can be called reform, however spontaneity of the edition of lip reading and writing and non-uniformity of creation of lip establishments testifies that carrying out of the given measures has not been planned, and has served, more likely, reaction to threat of strengthening of the power of the grand duke.

Specificity of investigation as forms of search process at the given stage was showed in several circumstances. First, lip heads were elective representatives of local community that assumes the certain autonomy of their activity interfering realisation of principles of search type of process. However in practice such autonomy was only visibility, hiding under itself the strict control from the central power. Secondly, lip heads and tselovalniki were not professional lawyers as normative acts made only the general demands to their literacy, and the Moscow state during the considered period there were no educational institutions which could give such formation. In this connection lip heads interpreted the law on the basis of own discretion and the developed practice, and on the most difficult and problem affairs directed inquiries to orders. Besides it, the big role in maintenance of uniformity of judiciary practice and strengthening of inquisitorial principles of investigation was played by representatives sluzhiloj bureaucracy, and this role throughout XVI century all became more considerable. This aspect will be more in detail considered by us in the following chapter.

WITH. 173.

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A source: HASHCHINA ELLINA EDUARDOVNA. EVOLUTION of FORMS of LITIGATION In the MOSCOW STATE in the end of XV - first half XVII centuries The dissertation on competition of a scientific degree of the master of laws Kursk - 2018. 2018

More on topic formation of the search form of litigation in first half XVI century:

  1. 2.2. Development of the search form of litigation in second half XVI - first half XVII centuries
  2. Chapter 1. Litigation forms in the Moscow state in the first Half XVI century
  3. Chapter 2. Development of forms of litigation in the Moscow state in second half XVI - first half XVII centuries
  4. the accusatory form of litigation in the end of XV - the middle of XVI centuries
  5. the CHAPTER II. SYSTEM of LOCAL MANAGEMENT of Russia SECOND HALF XV century - 30-40th of XVI CENTURY of.
  6. Chapter 1. Formation of system of work with police shots in XVTTT century - first half XIX century
  7. § 1.3. Change of an order of acquisition by police shots in second half XVTTT century - first half XIX century
  8. Chapter 2. Genesis of the housing law of the USA during the period since second half XIX century to second half of XX-th century.
  9. factors of formation and development of conceptual bases soyoderzhanija gymnasia formation in Russia of second half XIX - the XX-th century beginnings
  10. THE CHAPTER I. FORMATION AND DEVELOPMENT OF CONCEPTUAL BASES OF THE MAINTENANCE OF GYMNASIA FORMATION IN RUSSIA OF SECOND HALF XIX - THE XX-TH CENTURY BEGINNINGS.
  11. § 2. The constitutional problems of parliamentary democracy and the state system form in domestic politiko-legal thought of second half XIX - the beginnings of the XX-th century [306]
  12. 2.1. Formation of the housing law of the USA in second half XIX centuries - The XX-th century beginning.