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3.3 Basic functions of principles of civil law

In legal science the concept of functions of the right is investigated full enough. More often function of the right by scientists is understood «as appointment of the right for a certain kind of public relations» [427, with.

255] and «the basic directions of legal influence on behaviour of subjects of law by means of rules of law» [467, with. 219; 8, with. 191]. Synthesising concepts existing in legal science, it is possible to draw a conclusion, that right functions open right appointment in certain sphere of public relations, show directions of its influence and by that concretise the characteristic of its role.

Civil law functions as branches are subordinated to the purposes of civil-law regulation. The basic functions of civil law as branches of law are: reguljativnaja (provides civil law influence on normally existing relations by investment of the parties with the rights and duties); guarding (provides compensation of the damage caused to participants of civil matters owing to infringement of their legitimate rights, and also restoration of the broken personal non-property rights of citizens and the organisations); precautionary-educational (induces participants to lawful behaviour, to bar of claim by lapse of time of torts) [106, with. 48].

S.E.Frolov suggests to understand as functions of principles of the right «rather isolated directions of their influence on a subjective and objective reality in which result there are certain changes in various spheres of public ability to live» [456, with. 7]. However it is impossible to agree with such definition, as influence of principles on public relations can have the purpose not only «certain changes», and is faster, on the contrary, – maintenance of stability and an invariance of these relations. In our opinion, it is necessary to understand their ability as functions of principles of civil law to influence public relations, to influence their character for the purpose of effective regulation of civil-law relations.

H.p. JAvich allocated following functions of legal principles: function of maintenance of unity and an internal coordination of legal regulation; programming function; function of the general fastening of public relations. Two last of the named functions he named the most significant. Thus the scientist did not deny that right principles in a condition to render and independent influence on public relations, but reduced it only to action of specific norms-principles, norms-programs, norms-problems of the constitutional certificates or the formulas containing the basic ideas, concluded in preambles of current laws [493, with. 32].

In modern legal science the functional role of principles in the legal regulation mechanism is estimated much more considerably, however the given problematics yet has not found due reflexion in the literature. Meanwhile, in our opinion, it has the serious importance as definition of functions of civil-law principles allows to define their role in normotvorcheskoj and pravoprimenitelnoj activity.

One of functions of principles of civil law is function of an individualization of legal branch. Principles admit the majority of scientists to one of criteria of division of the right to branches. Originally at the heart of division of the right into branches there was only one criterion – a legal regulation subject, then two criteria began to be called: a subject and a method of legal regulation of public relations.

During the third scientific discussion about system of the Soviet right (1982) in the list of criteria of division of branches of law in addition to a subject and a method principles, the purposes and variety of other criteria as «the subject and a method became not so sufficient for differentiation of branches of law» have been carried. Such scientific position, in particular, occupied S.S.Alexey, V.P.Mozolin, V.F.Jakovlev, JU.K.Tolstoy, etc. [223, with. 107]. This function of principles it is possible to name "outwardly directed", as its overall objective – a civil law individualization as branches in the legal system.

Branch principles carry out individualization and concrete definition function obshchepravovyh and the constitutional principles with reference to separate legal branch. In it, in particular, specified h.p. JAvich: «Each branch of law, – the scientist marked, – is characterised depending on a subject and a regulation method by the set of principles legal oposredovanija the given sphere of public relations. Main principles of the right find a special concrete definition and specialisation in these principles» [493, with. 34].

Information function of principles of civil law is closely connected with individualising. It provides reception by participants of civil matters in the compressed concentrated type of information about essence and specific features of civil-law regulation as «the majority entering into corresponding branch of law of" private soldiers »norms is formed under influence and in development of this or that principle or group of principles of branch. Knowing the branch principles, the qualified lawyer can constitute accurate enough representation and about the majority« private soldiers »norms of concrete branch of law» [92, with. 24]. Well-known become "winged" K.A.Gelvetsija's saying that «the knowledge of principles compensates ignorance of some facts». Continuing this thought, it is necessary to add, that, proceeding from the maintenance of principles of civil law, any subject (and not just the expert) should have possibility to estimate the general direction selected the legislator at formation of norms of the civil legislation as principles are, first of all, «the important democratic guarantees» rights and legitimate interests of participants of the civil circulation [92, with. 25].

Thereby civil-law principles make essential impact on sense of justice of participants of civil matters. However efficiency of the given function of principles directly depends on that, the requirements which have been put in pawn in them are how much observed in process normotvorcheskoj and pravoprimenitelnoj activity.

Principles carry out also sistemoformirujushchuju function at formation of system of civil law and system of the civil legislation, providing unity of all norms of branch of civil law for its effective functioning and achievement of the purposes of civil-law regulation. On sistemoformirujushchuju function of principles of civil law it was specified by many scientists. So, after opinion. V.F.Jakovleva, located in the civil law general part its principles «pass through all civil law, predetermining, as a matter of fact, the maintenance of each of its institutes and its norms» [496, with. 39]. V.A.Vitushko specifies that «principles should be considered not only as norm of direct action but also as special institute of the civil law, allowing to reach the purposes of in a complex-individual regulation» [65, with. 19]. Thus the scientist names also pravoregulirujushchuju and consolidating functions of legal principles [68, with. 29]. Right principles comprise consolidating beginning, connecting in a single whole not only separate civil-law norms or institutes, but also branch of civil law, have directing influence on development of all legal system for the purpose of system formation. Hence, sistemoformirujushchuju and consolidating functions of civil-law principles are necessary for considering as one-serial.

The central place of principles in system of civil law and the civil legislation means, that «they are obligatory and for the legislator, acting for it unique criterion of designing of all other rules of law concerning sphere of civil-law regulation and protection» [174, with. 17]. Principles set reference points of development of all complex of the rules of law regulating civil-law relations. Representing the most advanced stage of generalisation of the civil legislation, principles are concretised by means of other rules of law. In it function in which frameworks legal principles provide formation of the concept of a standard basis of civil-law regulation is concluded them normoobrazujushchaja. In frameworks normoobrazujushchej civil law principles provide functions: a coordination and consistency of norms of the civil legislation; Adequacy of reflexion in norms of civil law of objective requirements of development of economic relations. They allow to improve the maintenance of branch norms and, that is not less important, to define the further prospects of development of branch of law.

On a parity of corresponding rules of law with legal principles influencing them it is necessary to estimate quality of the rule of law, possibility of its application. Principles in a certain measure can even correct legislative errors. In cases when the rule of law contradicts a principle or unfairly limits its action, such norm should be subjected updating. On elimination of contradictions and correction of errors adjustment function of principles of civil law is directed. The given function can be realised mainly in normotvorcheskoj activity as in updating of rules of law a legislature can be engaged only. Such right is not given neither to court, nor subjects of civil law.

Filling of the gaps in the right is carried out in frameworks reguljativnoj functions of principles of the right to which the attention in the civil literature is traditionally paid. I.A.Pokrovsk fairly specified, that «the law, even the most perfect, inevitably lags behind a life: time published, it remains motionless, meanwhile as the life goes continuously forward, creating new requirements and new relations» [341, with. 94]. According to item 2 of item 5 GK at impossibility of use in the provided cases of the legal analogy of the right and a duty of the parties are defined proceeding from fundamental principles and sense of the civil legislation (analogy of the right). Application of analogy of the right obosnovanno in the presence of two conditions: at blank detection in the legislation and in the absence of the norm regulating similar relations that does not give possibility to use the legal analogy. However application of principles as a regulating component only as a spare variant on a case of blanks in the current legislation reduces their practical importance. The similar decision is insufficiently effective, as «in civil law principles such standard system of regulation thanks to which probably, first, to cover all circle of civil matters is put in pawn, secondly, to carry out stable civil-law regulation of the given kinds of civil matters» [397, with. 19].

In this connection S.S.Alekseeva's who for the first time has paid attention on reguljativnuju a role of legal principles merit, figuratively having designated them some kind of "clots" of a legal fabric, «representing itself as vysokoznachimyh reguljativnyh elements in right structure» [8 looks powerful, with. 261]. To it in civil jurisprudence principles practically were not considered as a direct regulating component of civil law, and courts seldom put them into practice. Meanwhile, as it was specified in work chapter 2, right principles are the categories invented first of all with the practical purpose – for direct regulation of civil matters.

Reguljativnaja function of legal principles is realised as though along with similar function of norms of civil law, in parallel with it. However more often interaction of principles and norms of civil law within the limits of this function has much closer character. It occurs at interpretation of rules of law which is always carried out through a prism of principles of civil law. «Only in that case the sense of any article or norm will be mastered or realised with deep understanding of their being, instead of is formal and superficial. Civil law principles, hence, work always when there is an application of any institutes and norms of civil law. Interpretation and application of concrete norms counter with civil law principles would represent itself the legal error interfaced to misunderstanding or a distortion of sense of norms of civil law» [496, with. 39].

Thus, in frameworks reguljativnoj functions principles provide filling of blanks in system of norms of civil law; on their basis directly there are rights and duties of participants of contractual relations; correct interpretation of rules of law in the course of civil-law regulation is carried out; the estimation of legality and validity of application of norms of civil law is given. However the given function of principles of civil law also is not realised to the full.

In our opinion, fundamental principles of the civil legislation can be used not only in analogy of the right at use of such legallistic toolkit as «the general sense of the legislation», but also being directly fixed in the legislation, to represent itself as the independent basis at the decision of concrete civil-law situations. Such approach is necessary in cases of detection of discrepancy of the legislation and also when the norm which is coming under to application, contradicts principles of civil law or the constitutional positions. The analogy of the right should be applied, in our opinion, when the principle is necessary for deducing from sense of the civil legislation if the principle is directly fixed in item 2 GK, as the rule of law it is necessary to apply it. In this connection it is necessary to state item 2 of item 5 GK in the following edition: « At impossibility of use in the provided cases of the legal analogy of the right and a duty of the parties are defined proceeding from sense of the civil legislation (analogy of the right) ».

Summing up, it is necessary to note the following.

As in the civil legislation the open list of principles of civil law is fixed, it is represented proved to fix the signs at legislative level, allowing to identify this or that beginning of the civil legislation as its branch principle. To number of intrinsic signs of principles of the civil law, allowing to qualify separate positions of the legislation as its fundamental principles, it is necessary to carry: normativnost, objectivity, the stability, fundamental character and obshcheobjazatelnost. The Data set of signs is expedient for concentrating in concept of principles which is necessary for fixing in item 2 GK of Byelorussia, having formulated it as follows: « Principles of the civil legislation are fixed in norms of the civil legislation or fundamental principles following from its positions, the stable supervising positions defining essence of branch and the purpose of civil-law regulation, having obligatory character in process normotvorcheskoj and pravoprimenitelnoj activity ».

The special status of principles of civil law allows to present civil law system as follows: civil law principles, civil-law norms, subinstitute, the legal institution, podotrasl the rights, branch of law. Principles as the historical analysis spent in chapter 2 of work testifies, have served as a starting point of formation of the legislation [17; 39].

It is necessary to understand ability of principles as functions of principles of civil law to influence public relations, to influence their character for the purpose of effective regulation of civil-law relations. The basic functions of principles of civil law are: individualising (individualise branch of law, and also concretise obshchepravovye and the constitutional principles with reference to civil law branch); information (provide influence on sense of justice of participants of civil matters, reception of the information by them about essence and specific features of civil-law regulation); normoobrazujushchaja (set reference points at formation of civil-law norms, providing their consistency and a coordination); sistemoobrazujushchaja (represent itself as fundamental principles at formation of system of civil law of the civil legislation); Adjustment (are applied in need of elimination of contradictions and correction of errors in the legislation); reguljativnaja (are applied in case of detection of blanks in the legislation, and also in cases when the norm coming under to application contradicts principles).

For the purpose of strengthening reguljativnoj functions of principles of civil law «the general sense of the legislation», but also as the independent basis is offered to use principles not only in need of application of analogy of the right expressed through a category at the decision of concrete civil-law disputes. In the presence of blanks in the legislation, and also when the norm coming under to application contradicts principles of civil law or the constitutional positions, it is necessary to be guided by civil law principles. The analogy of the right should be applied when the principle is necessary for deducing from sense of the civil legislation if the principle is directly fixed item 2 GK, it is necessary to apply it as the rule of law. In this connection it is offered to state item 2 of item 5 GK in the following edition: « At impossibility of use in the provided cases of the legal analogy, the right and a duty of the parties are defined proceeding from sense of the civil legislation (analogy of the right) »[39; 51].


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A source: BONDARENKO NATALIA LEONIDOVNA. PRINCIPLES of CIVIL LAW of REPUBLIC Belarus, THEIR REALIZATION In NORMOTVORCHESKY And PRAVOPRIMENITELNOJ ACTIVITY. The dissertation on scientific degree competition Doctors of juridical science. Minsk, 2007. 2007

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