<<
>>

3.1. A legal basis of vessels in existence Taurian Areas 1784-1796

During the considered period the province judiciary played a double role. On the one hand, it has been incorporated in a control system of province. All affairs, with rare exception, in case of the reference in the Senate or the Most holy pravitelstvujushchy the Synod, it was considered within province.

It has been connected with the deputy, the governor and according to provincial board. On the other hand, it on Establishments for management of provinces was allocated as a separate branch of the power from the general control system of province. It is visible on independence of decisions accepted by it, and that circumstance, that for the appeal of a legal position of court it was necessary to address only in higher degrees of jurisdiction that will be shown on an example in the following paragraph. The last does not concern bottom zemskih vessels as they concerned administrative agencies, and also spiritual courts, and bodies of religious-national self-management, for example Karasubazarsky Catholic court which had the special status. Independence of vessels was supported with submission centralisation to their court above, and also development of a uniform legal position from regional chambers civil and the criminal court.

The considerable part of judges at an available order of appointment depended

From the governor, and execution of judgements was assigned, including, and

On provincial board, and on a separate category has put execution depended

From will of the deputy which also could at own discretion

To suspend execution of any judgement and to address in the Senate

Under article 86 of Establishments for management of provinces. In article 85 also

It was specified, that he should watch, that courts at disposal of legal proceeding not

Supposed red tape. However such powers went at

130

oposredovanii the judiciary as penalties for such infringements were imposed by vessels which were higher in relation to the guilty court. That kasaemo independence it consisted in actual independence of vessels on their legal positions. It is necessary to underline, that the supreme bodies and officials were not engaged in constant monitoring of judgements as it was charged strjapchim at vessels, - but they could learn about it from the same reports strjapchih or the bodies subordinated by it. Moreover, even the persons who had real powers on intervention in activity of vessels, generally depended on quality of work strjapchih as the information from them contained the bases for acceptance of any decisions more often. The matter is that legal literacy of other persons which could inform about such, was low, that especially concerns subordinate enforcement authorities. Thus, intervention had rather limited character and has been connected, in our opinion, is faster with the special status as than the governor, and the deputy about what we wrote in the previous chapter, and functions assigned to them.

In this case, from our point of view, there is a situation,

Similar to an activity parity strjapchih at the same time with the provincial

The public prosecutor and the deputy with the governor. It consists in an incorrect estimation

Positions of the deputy and the governor. Also, if to concern powers

The above-stated persons they did not mention a legal investigation, and only

Could accept preventive measures already after removal of the decision by court,

As function of execution of decisions generally was assigned on

Establishments of the executive authority which, accordingly, submitted

To the higher officials of area.

That is possessing power on

To suspension of execution of decisions of vessels on criminal cases, the deputy not

Could cancel or make it any change as it was

Power of the Senate or the monarch. Accordingly, the deputy had more

Essential possibilities to affect total destiny of the person in frameworks

131

Criminal manufacture, than civil. In such light these powers do not look as intervention in activity of vessels on disposal of legal proceeding. But the order of appointment of judges what we above mentioned was really essential lever of influence on courts. Besides, influence could have the mediated character, that, however, is not excluded and in the modern states, especially as to maintenance of activity of vessels which depend on the higher establishments of the executive authority within the limits of distribution of budgetary funds.

On the basis of the above-stated we do a conclusion that the judiciary was and it is formal, and in many respects actually independent in legal proceedings departure. However because of such approach in distribution of powers in empire at which tried to solve a maximum of arising questions on places, judges and executions of judgements depended on the higher officials of province therefore as their appointment depended on will of the last. Besides, the appellate procedure of actions of the higher officials has been complicated by character of the state, and accordingly, the high social status which the governor and the deputy had, made essential impact on decision-making in the last resort. So to speak about effective allocation of the judiciary from province administrative personnel it is impossible. To similar opinion E.A.Shevchenko who underlines pretentiousness of branch of court [183] has come also. To the same position has come and T. And. Hutko which cites as an example the Decree from October, 13th, 1785 which obliged criminal chambers not to make sentences without the coordination with the deputy of province. [184] V.A.Grigoriev also specifies in a duality of position of vessels and absence of carrying out of differentiation between the judicial authority. It, having investigated draught copies of Establishment for management of provinces, comes to conclusion, that Catherine II had the foggiest ideas into the account of branch of vessels from administration [185]. It also has entailed similar complexities of legal regulation. We consider as the most exact I.E.Andreevskogo's opinion which specifies that was initially planned to reduce powers of the higher officials, but: «the being of legal proceedings, elective system was again prichinoju, that at Empress Catherine II and Its successors to chiefs of provinces known participation in provincial legal proceedings, especially criminal» [186] is kept.

As to judiciary construction in its basis it is possible to allocate a number of signs on which it was built and on which basis probably to make some classification of the state vessels. First, it instantsionnoe distribution of affairs. So, highest authority chambers civil and the criminal court, as the second instance - top zemsky court, provincial city council, the top punishment, the lowest - district court, the bottom punishment, the policeman city council (within the limits of departure of judicial functions) acted. It is necessary to pay attention, that we speak about highest authority only within the limits of province, and actually as last degree of jurisdiction in empire among bodies acted the Senate and the Most holy pravitelstvujushchy the Synod though the monarch had the right to the discretion to cancel any decision and to accept the.

Independently from the vessels provided by Establishments for management of provinces, stood sovestnyj court which cannot be entered in the specified judicial structure in connection with its special character. In more details its status we will concern in the end of the present paragraph.

Secondly, this class division of vessels. From all vessels vsesoslovnymi there were only chambers civil, the criminal court and sovestnyj court. This sign allocates also Ampere-second. Lappo-Danilevsky, naming it «a principle of jurisdiction of everyone only equal to», and paying attention of that

«Some independence of the judicial authority of the administrative gave to class vessels still bolshee value» [187].

Thirdly is a separateness of consideration civil and criminal cases at level of vessels of the second and higher instances.

If superior courts and so shared to the given sign courts of appelate jurisdiction for these purposes shared on 2 departments, each of which considered accordingly civil and criminal cases. However, according to item 171 item, 357, 371 Establishments for management of provinces, in case of absence of criminal cases both departments should consider civil cases. Thus, three sign data organised and defined an order of interaction between vessels within the limits of the judiciary.

To activity of chamber of the criminal court it is devoted the sixth head of Establishments for management of provinces. The chamber consisted of one chairman, two assessors and two asessorov. Its problem included the disposal of legal proceeding, connected with the deprivation of life or honour which went from courts of appelate jurisdiction at once for audit and the sentence statement. The audit essence consisted in carrying out by activity court on check of legality, validity of criminal case.

Civil court chamber on structure and affairs did not differ from criminal chamber, behind that exception that there were no special usages of disposal of legal proceeding.

Courts of appelate jurisdiction had an identical order of disposal of legal proceeding and structure. It included two departments, in each of which there was in structure a chairman and five assessors in the top punishment and top zemskom court, and in provincial city council - three. However, in Establishments for management of provinces conditional division of vessels into ranks among the equal is entered at level of the second instance and the bottom vessels.

In the second instance higher step occupied top zemsky court, then the provincial city council followed, and the top punishment was considered as the lowest. Such ranking corresponded to importance of estates which are cognizable to corresponding court, for the state. So, top zemsky the court considered nobility cases, provincial city council - narrow-mindedness, and the top punishment - sluzhilyh people and the state peasants. Accordingly district court, policemen city councils, the bottom punishment went in the same ranking and considered cases of the same estates.

Also at level of courts of appelate jurisdiction the limited vertical of the power according to which certain courts of the bottom instance and establishment at them submitted to the corresponding court of appelate jurisdiction was formed. So, top zemskomu district courts, of noble family guardianship and bottom zemskie courts submitted to court. Though, that to the last they actually submitted to the full to regional board as were administrative authority establishment. Policemen city councils, orphans' courts and town halls submitted to provincial city council. The bottom punishments, and in case of absence top zemskogo vessels - and bottom zemskie courts accordingly submitted to the top punishment. Criminal and civil cases were considered by courts of appelate jurisdiction as appeal.

In structure of the bottom punishment it agree item 336 of Establishments for

Managements of provinces entered raspravnyj the judge and eight assessors, at

It two assessors went for participation in bottom zemskom court, and

Two in sovestnom court on affairs of their settlements. In district court there was one

The district judge and only two assessors. And in the policeman city council two

The burgomaster and four ratmana, and their half could be absent.

It is necessary to notice, that we consider activity of policemen

City councils only in connection with performance of judicial functions by them, as

They were municipal government establishments, and except judicial

Functions carried out set of others. Such difference in quantity

135

Assessors, in our opinion, it is connected with number of representatives of this or that estate and as the peasantry was the most numerous estate and in court which considered their cases, assessors was more than in others.

Class character of vessels was defined also by election order in them assessors. Only representatives of estates, whose affairs

Were considered, could be chosen as assessors. Such the imperial politics on granting of the rights to partial self-management to different estates, but first of all nobility was by realised, whose rights have been most widely fixed in «G ramote on the rights, liberties and advantages of noble Russian nobility» 1785. On the other hand, it removed a part of responsibility from the government as though almost all assessors were civil servants, owing to selectivity of their posts, they represented itself as a representative part of the population. It gave to the state in a certain measure hope of support from local population that was especially important on again attached or territories with the special status.

The legislation of that period established a number of restrictions for giving of statements in courts. So, it should be submitted on a stamped paper which was realised usually in bottom zemskih vessels. Besides, for civil cases restrictions at cost of the business for appeal and cassation giving were established. So, for giving of the cassation business should have cost not less than 100 roubles, and the appeal - not less than 25 roubles. For cassation giving it was necessary to bring pledge at a rate of 100 roubles. In case of dissatisfaction of the cassation pledge did not come back. However any person could submit under the oath the cassation and without pledge entering, on the lack of money. Similar positions operated and for appeal giving, but the size of pledge constituted 25 roubles.

There was a category of the affairs which had a special order of consideration.

So, the top punishment considered as the trial court of business,

136

Concerning cognizable to the bottom punishment of settlements, or when suit was led concerning settlement entirely. Provincial city council - concerning privileges, disputable possession and other kinds of the affairs, concerning cities as a whole. Top zemsky court - affairs in which both parties were noblemen; the affairs, concerning an ancestral lands, privileges, wills, inheritance of manors; disputes on possession and lawsuits about disgrace. In all courts of appelate jurisdiction affairs under the reference strjapchih arrived, passing courts of the first. A special place in Establishments for management of provinces the order of disposal of legal proceeding at which the convicted person could undergo to a death penalty, occupied honour or public whipping deprivations. Concerning such affairs the trial court held only a consequence and together with the opinion sent it at once in the court of appelate jurisdiction. It took out the final sentence which, however, did not come into effect. Business went on audit to criminal court chamber after which verdict, business arrived to the deputy. And only after command of the deputy business started to be executed.

Besides, in special proceeding affairs, cognizable sovestnomu to court were allocated. On such affairs all data at first gathered, and business was transferred sovestnomu to court to consideration. Such category of affairs defined item 399 of Establishments for management of provinces: Criminals who sometimes more on unhappy to what on are to an adventure, or on confluence of various circumstances affairs of sorcerers, or sorcery have run into sins, their destiny otjagoshchajushchija above measures them sodejannogo, as crimes uchinennyja mad, or juvenile, and. Corresponding examples of consideration in practice of special proceedings we will present in the following paragraph. Besides, it considered civil cases as the arbitration court and the complaint to holding in custody.

Independently from all other vessels under the status stood sovestnyj

Court which as the institute has existed to the judiciary reform of 1864.

137

According to position of item 430 of Establishments for management of provinces, sovestnyj the court did not submit any of vessels, thereby it was excluded from the judiciary namestnichestva. At the same time he submitted to the deputy, and in its absence (i.e. actually almost always) - to provincial board. On the other hand, the legislator has limited powers of such management, having specified, that decrees at the decision or disposal of legal proceeding should be only within the limits of the law. Considering an appointment order on which the judge sovestnogo vessels was appointed on representation from forums the deputy, we consider, that sovestnyj the court in many respects depended from the governor general therefore it is impossible to consider it as independent body at local level.

Except the judge in structure sovestnogo vessels consisted on two assessors from each estate. The separate order of disposal of legal proceeding on each estate was established, i.e. participants of business and assessors should belong to one estate. Therefore, despite vsesoslovnyj character of this court, a class sign operated at level of an order of disposal of legal proceeding. As to the special status sovestnogo vessels in our opinion, one of the most successful conclusions is made E. V.Razumovym: «Thus, was declarative the new judicial institute which did not have analogues in Europe which consolidated in itself powers of different authorities is created, had interclass character and stood on protection of natural deaths of the person.» [188] it is necessary to rebuke only, that the author, considers sovestnyj court as unique interclass judicial tribunal, losing sight of chambers civil and the criminal court.

Judiciary consideration, in our opinion, will be incomplete if not to consider religious courts existing at that time which though were not official bodies, had the special status owing to the special rights of separate social groups.

So, in territory of Taurian area in 1794 Catherine II decree had been founded Mohammedan Spiritual Board, however, according to K.I.Revina it and has not been created [189]. According to data of the decree of Catherine II to deputy Platon Zubovu from September, 17th, 1796 [190] in Crimea courts ulemov operated, i.e. in territory of Taurian area the right habitual for them which could be applied ulemami continued to be used concerning Moslems. The post of a mufti which belonged to the senior from six ulemov Besides, remained and had the right to publish obligatory for execution fetvy. Thus, though there was no issued spiritual court, the system of analysis of disputes with the second instance, special for Moslems, in the form of a mufti actually operated. It is necessary to add, that such court was more often used among Moslems than obshchegrazhdansky [191]. But it is necessary to consider, that the decision of spiritual courts could be challenged in the general order of legal proceedings - the leadership obshcheimperskogo the right and bodies in relation to the local thereby was established. A legal ground for activity of such vessels was the manifesto of the empress from April, 8th, 1783 in which behind local population all its rights and property remained. Such conclusion can be made, as courts ulemov were Islam integral part.

However in territory of Taurian area operated and the issued courts. It were consistories for orthodox, and also Karasubazarsky Catholic court. The territory of Crimea concerned the Sloveno-Kherson diocese, in 1786 renamed in Ekaterinoslavsky, Kherson and Taurian at which there was a consistory [192]. Besides, Greeks in Enikale had a separate body - the Bosporsky policeman city council - which, including, carried out and

Judicial functions. Office-work in it was led in the Greek and Russian languages [193].

The Karasubazarsky Catholic court has been formed in 1779 on the basis of granted to Armenians of Catholic creed of the imperial reading and writing from November, 14th, 1779. Proceeding from the characteristic of activity of court given by K.I.Revinym [194], we come to conclusion, that the given court was closest under the status to the policeman to city council, that also proves to be true also the text of the reading and writing from November, 14th, 1779 where the given court will mention as a town hall.

As we see, religious courts operated generally on the basis of special decrees of the monarch by which the special rights and privileges were fixed to separate social groups. Such situation was characteristic as a whole for Russian empire, worrying the period of expansion of the territorial possession. To similar conclusions V.A.Voropanov who underlines that such policy of religious tolerance was characteristic in Russian empire as a whole which supposed references of the citizens to the spiritual authorities comes also. [195] thus, spiritual courts, not joining in nation-wide system of vessels, solved the same questions, as they, but the final statement remains behind the state vessels.

Summing up, it is necessary to repeat conclusions to which we have come: first, the judiciary had essential independence of local administration, but only in certain sphere, and the higher officials had rather effective lever for influence on judges; in - the second, at the heart of the judiciary organisation a number of signs laid, and

: instantsionnost, soslovnost, separateness of consideration

Civil and criminal cases.

It is necessary to notice, that a number of the establishments which had in the name a word "court", those were not. It concerns not only bottom zemskih vessels, but also some spiritual which upon were the self-government institutions of communities which had the special status.

Thus, we had been considered some question, concerning legal regulation of activity of vessels in existence of Taurian area. In the following paragraph we will consider how these norms were carried out in pravoprimenitelnoj to practice.

<< | >>
A source: Koshman Vladimir Alekseevich. CREATION And FORMATION of SYSTEM of OFFICIAL BODIES of TAURIAN AREA (1784-1796). The dissertation On competition of a scientific degree of the master of laws. Moscow - 2018. 2018

More on topic 3.1. A legal basis of vessels in existence Taurian Areas 1784-1796:

  1. organs of the Prosecutor's Office in Taurian area (1784-1796 of)
  2. Koshman Vladimir Alekseevich. CREATION And FORMATION of SYSTEM of OFFICIAL BODIES of TAURIAN AREA (1784-1796). The dissertation On competition of a scientific degree of the master of laws. Moscow - 2018, 2018
  3. perfection of a legal basis and practice of the organisation of other supplementary measures on corruption preventive maintenance in regional vessels.
  4. the basic directions of perfection of a legal basis and practice of the organisation of measures on corruption preventive maintenance in regional vessels of the Russian Federation.
  5. Istoriko-legal preconditions of formation of Taurian area
  6. § 1.1. Sphere of existence of corporate legal relations
  7. enforcement authorities in areas, cities and areas Republics Tajikistan
  8. personal names of the Russian Germans of Aleksandrovsky and Kozhevnikovsky areas of the Tomsk area, revealed on the basis of studying of a national-colloquial discourse
  9. CHAPTER 2. FEATURES OF FUNCTIONING OF ESTABLISHMENTS OF THE EXECUTIVE AUTHORITY OF TAURIAN AREA AND THEM LEGAL REGULATION
  10. 3.2. Functioning of the judiciary of Taurian area
  11. §4. Problems of interaction of the constitutional vessels and vessels of the general jurisdiction of the CIS countries in protection of individual rights and freedom of the person
  12. § 3. Buying of a private property the ground areas as a legal category
  13. §2. The International legal mode of sea protected areas