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§ 1. Methodological value and appointment of concepts "interest" and "affilirovannost"

The science, including civil-law, has developed a harmonous technique of generating of the new knowledge as which major component the methodology of scientific knowledge acts. If to adhere to a postulate, that a scientific method (grech.

The method - a way) is the way of scientific knowledge representing system of principles, norms, procedures, organizujushchih research process [4] the methodology is a system of methods of knowledge and practice, i.e. System of principles, rules, receptions, ways and means of the organisation and construction theoretical and practical activities, and also the doctrine about this system [5].

In connection with the given definitions it is possible to allocate two orientations of methodology: 1) the methodology through concrete mechanisms defines theoretical and practical activities; 2) studies system of the mechanisms taken already in aggregate.

If to consider the given mechanism in intrinsic aspect it is a scientific method. So, there are some classifications of groups of methods of the right offered by representatives of the general theory of law [6]. If to consider the mechanism resulted by us in substantial aspect it is rules, receptions, ways, principles, means, procedures which fill a certain method with "learning possibility».

Scientist I.V.Mihajlovsky wrote, that the discipline "Theory of state and law" puts before the researcher two academic problems.
The first of them consists in constructing «logically finished system of the concepts underlying all special jurisprudence, and to generalise all results of these sciences got not only external, but also internal unity». The second problem consists in that «to study methods with which help special sciences» [7] are developed.

Further the doctrine has developed the approach in which the duality of the problems put by I.V.Mihajlovsky was expressed. On N.I.Panova's belief, methodological value of concepts and legal science categories consists that they are means, toolkit of profound knowledge of essence of the state-legal phenomena. With their help the maintenance and essence of the facts and the phenomena of a legal reality, on the one hand, reveal, and with another - it is reflected in the systematised logiko-gnoseological context on kategorialnoyoponjatijnom level [8].

I.Kantom underlined, that «informative value of categories consists in their representation as small knots of the informative network thrown over a network of natural phenomena and society [9]». Sometimes in the doctrine the theoretical cut of jurisprudence in the form of its kategorialno-conceptual device is considered as a method of knowledge of the legal validity and by that them identify [10].

S.S.Alexey has specified in three directions of an estimation of methodological value (a functional role) general legal concepts: 1) negation of such value; 2) a relative recognition of such value [11]; 3) a recognition

12 independent methodological values within the right. There is one more position [12 [13] which we divide and completely support. For example, if to consider a method in substantial aspect as the concrete mechanism used in the course of knowledge of a legal matter the attention to the question on knowledge possibility juridiko - technical elements (by rules, receptions, ways, procedures) a concrete scientific method is brought or theoretical positions (concepts are necessary, for a category, principles)? It is thought, that the concrete method inevitably operates with the knowledge concentrated in certain theoretical forms, extracted earlier on more «a low coil of knowledge», and also the most cognizable matter.

In other words, it should be in unity with the knowledge maintenance, i.e. To reflect laws of the given science and to include categories which serve as a strong point

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Knowledge [14].

P.E.Nedbajlo's position which approves, that the theoretical forms constituting system of legal science is close to us, i.e. Special scientific concepts, categories, principles, theories in which the studying subject reveals, are «a methodology component» [15].

The methodological role conceptually-kategorialnogo the device in a science is opened at a stage of comparison (coordination) of the refined position which have accepted the conceptual form, with a trivial arsenal doktrinalnogo knowledge. If the results of the researches which have accepted kategorialnuju the form, "keep within" the operating doctrine with demonstration prospect
New knowledge, i.e. Scientific utility it is necessary to define a functional role of the made conclusions comes to light. Research of public relations, before alien to legal regulation and demanding legal oposredovanija, by all means puts before scientific a problem kategorizatsii results of the done research for all new demands the imenovanie.

As has fairly noted G.V.Kolodub: «Features of methodology of civil law consist that at support of any scientific research its approaches and rules influence in two directions. In - the first, there is a synchronisation of the new and updated ideas and conclusions with reference to the developed system of terms, categories and concepts. Researchers lean against the approved terminology, found the application both in doktrinalnoj to sphere, and in the legislation. In - the second, there is an expansion, updating of terminological toolkit of a civil field of knowledge. Thus new concepts and terms by means of methodological receptions should take root into operating system, to enrich it or, otherwise, as alien bodies« to be thrown out », not having found of application in scientific works and teksah acts» [16].

So, if we enter a category into civil terminology, how it was already marked, is necessary to define its functional role. Thus having investigated its value for the doctrine and appointment for the legal regulation mechanism; positive results of research will be marked by the right to category inclusion in tsivilistichesko - a terminological number.

Otherwise nizkoeffektivnye designations of the legal phenomena will lead to a legal disorientation, as scientists, and pravoprimenitelej for any discovery has not only
Subject, but also the methodological maintenance as it is connected with critical revision of the existing conceptual device, preconditions and approaches to interpretation of a studied material [17]. Functions of civil methodology are aimed at prevention of deterioration of a legal language [18].

Within the limits of execution of tasks in view and achievement of the purpose of the present work we will carry out research of utility of categories "affilirovannosti" and "interest" at use of the criteria designated by us: methodological "value" and "appointment", considering, that realisation of functions of legal means is caused by its purposes and problems which substantially define the maintenance of functions and essentially influence forms and methods of their realisation [19].

Thus it is necessary to mean, that realisation of functions of legal means is caused by their purposes and problems which substantially define the maintenance of functions and essentially influence forms and methods of their realisation [20].

In the literature the opinion was expressed, that the concrete maintenance of concept "interest" is defined depending on a context and article where it is directly located [21].

The major aspect of appointment of any category is its use in a legal context, that is in texts of standard legal acts, not standard legal acts, pravoprimenitelnyh certificates.

Word usage «interested (th, th, th, etc.) the person (etc.)» in a legal context is made in the several purposes [22]:

1) For the purpose of a regulation of the right of the person on a reference to the court for protection of the broken or challenged rights and legitimate interests (the right of action in material sense). In this sense "interest" acts (along with the right to judicial protection) the precondition pravoozhidanija persons on satisfaction of the claim. Here "interest" it is taken away pravoustanavlivajushchaja a role (the right to satisfaction of the claim). The given position is based on item 4, 43 Arbitration codes of practice of the Russian Federation [23] (further - agrarian and industrial complex of the Russian Federation); item 3, 36, 37 Civil codes of practice of the Russian Federation [24] (further - GPK the Russian Federation).

2) For the purpose of an estimation of a concrete legal situation (dispute). In data

Sense "interest" is prezjumiruemym

pravoprimenitelem, pravoznachimym circumstance of concrete legal relation. Here "interest" the juridical fact role is taken away. As an example judiciary practice can serve: «So court, motivating the decision, the claimant has specified, that, proceeding from interest of participants of an economic society in reception of profit on commercial activity, having shown due degree of a rationality and discretion at realisation of the rights belonging to it, could learn about fulfilment of transactions on alienation of shares» [25].

3) For the purpose of a designation of a circle of persons (called as "interested"), in which relation the separate normative act it is established defined ("special") by the same certificate regulation. In this case "interest" acts as reception of legal technics (a formalisation special case standard
The established list). For example, obz. 2 ch. 1 items 81 FZ «On joint-stock companies» [26]; item 19 FZ «About an inconsistency (bankruptcy)» [27].

4) For the purpose of a designation of the figure authorised on the certain requirement (claim). In the given sense "interest" expresses potential pravopritjazanie some persons (designated as interested). In the given norms of "interest" the designation role pravopritjazanija is taken away. For example: obz. 2 items 1 of item 35 GK the Russian Federation; item 42 GK the Russian Federation; item 5 of item 62 GK the Russian Federation; item 5.2 of item 64 GK the Russian Federation; item 2 of item 123.20 GK the Russian Federation; item 1 of item 152 GK the Russian Federation; item 1 of item 449 GK the Russian Federation; item 4 of item 529 GK the Russian Federation; item 3 of item 578 GK the Russian Federation; item 2 of item 1117 GK the Russian Federation; item 3 of item 1129 GK the Russian Federation; item 3 of item 1139 GK the Russian Federation; item 1239 GK the Russian Federation; item 1342 GK the Russian Federation; item 2 of item 1398 GK the Russian Federation; item 1 of item 1486 GK the Russian Federation; item 3 of item 1514 GK the Russian Federation, etc.

5) For the purpose of legitimation of legally significant figure influencing dynamics of legal relation. In this case "interest" is included as an element into legal structure in which structure stabilises legal relation and a legal status of the person designated as "interested" (see, for example, item 3 of item 47 GK the Russian Federation; item 4 of item 51 GK the Russian Federation; item 2 of item 157.1 GK the Russian Federation; podp. 2, 3, 4 items 2 of item 451 GK the Russian Federation; item 2 of item 927 GK the Russian Federation; item 1 of item 980 GK the Russian Federation; item 981 GK the Russian Federation; item 982 GK the Russian Federation; item 983 GK the Russian Federation; item 984 GK the Russian Federation; item 985 GK the Russian Federation; item 988 GK the Russian Federation; item 4 of item 1126 GK the Russian Federation; item 1 of item 1171 GK the Russian Federation; item 2 of item 1228 GK the Russian Federation; item 5 of item 1243 GK the Russian Federation; podp. 6 items 1 of item 1244 GK the Russian Federation; item 2 of item 1266 GK the Russian Federation; item 2 of item 1267 GK the Russian Federation; item 2 of item 1316 GK the Russian Federation; item 1 of item 1547 GK the Russian Federation, etc.).

In one cases (in our classification group 4) the legislator directly defines number (i.e. Fixes in the law text) the persons having potential pravopritjazanie in concrete legal relations. For example, it agree obz. 2 items 1 of item 35 GK the Russian Federation «the Act of curatory or the trustee can be challenged in court interested persons». According to item 5 of item 62 GK the Russian Federation «In case of default or inadequate
Executions by founders (participants) of the legal person of duties on its liquidation the interested person or the authorised state body have the right to demand judicially liquidation of the legal person and appointment for this arbitration managing director ».

In other cases the legislative use (i.e. Fastening in the law text) concepts "interest" is directed on the description ("formation") of legally significant figure influencing dynamics of civil matter (in our classification group number 5). An example: item 4 of item 51 GK the Russian Federation «In cases and is perfectly in order, which are statutory about the state registration of the legal bodies, the authorised state body is obliged to inform beforehand to interested persons on forthcoming state registration of changes of articles of association and about forthcoming inclusion of data in the uniform state register of legal bodies».

Listed above a disposition are examples of direct legislative fastening ("obektivirovanija" or "materializatsii") subjective interest of persons. The legislator gives to "interest" certain loading depending on sphere of regulation of public relations, interest of subjects of civil law.

Thus, the category "interest" is used in the several legal senses which maintenance depends on a functional role of its use, i.e. Juridiko-technical appointment that induces to the further search of its definition and definitivnogo expressions with possible legislative fastening.

The legal has washed off subject interest, in many respects is based on a context of its legislative use, however even without its mention in the text of the law it exists and is inevitably shown in any legal relations. Only interest in this measurement acts as mental expectation of positive result (for itself
Or in the blessing) own actions. At the same time at similar understanding of sense of interest there is a question: whether we interfere in a reflexion of the person (person) and whether we break its rights and freedom? [28] It is thought, that is not present.

So, according to item 1 GK the Russian Federation: «Citizens (physical persons) and legal bodies get and carry out the civil rights the will and in the interest, others to words - in the blessing (italics - mine, Century T)» and item 9 GK the Russian Federation: «Citizens and legal bodies at own discretion carry out the civil rights belonging to them». From this follows, that subjects of law at own discretion (i.e. To internal belief, prompting, on own motivation) make acts by the will in the interests (i.e. To itself in the blessing) in their active display in a civil-law turn by means of fulfilment of legally significant actions. Or, otherwise, legally significant actions inevitably are a consequence of interest of subjects in their fulfilment.

The subjective interest inherent in subject structure of legal relation, is invariable, she always submits to the formula «actions by the will in the interest (i.e. To itself in the blessing)». The subject is always interested that it makes, if it, of course, makes actions by the will in the interest (i.e. To itself in the blessing).

Interest, as the incentive beginning of all actions / bezdejstvy the subject, - the condition of the person acting as the methodological mechanism at opening of true motivation of the introduction into civil matters. It acts as a conductor from intellectual processes of the subject to realisation of the right. Certainly, at first sight can seem, that a category "interest" as the certain condition of the subject, does not fall under right influence. However at its account and research ("research") to leave quite admissible
On character and an estimation of legally significant actions. At ascertaining of interest of the person becomes clear: what for, why and for what the person made / did not make this or that act. Methodological value of a category is shown and that interest, at its further research, quite probably will help to open and estimate such difficult legal phenomena as: causa the contractual obligation; an equivalent of counter granting; conscientiousness and a rationality of actions and so forth

Investigating a methodological role of a category "affilirovannost", it is necessary to address to history of occurrence of the given concept of the domestic law and order. So, the term "affiliated persons" [29] grows out of the reception of the Anglo-American legislative invention. For the first time in the domestic legislation it has been mentioned in the Law of RSFSR from 22.03.1991 № 948-1 «a competition and restriction of monopolistically activity in the commodity markets» [30]; the Russian legislation has apprehended the term "affiliated persons". It began to be used at first in the subordinate legislation [31], then appeared in laws and, running forward, we will specify, that it all the same has appeared in GK the Russian Federation (only in the modified verbal expression - "affilirovannost"). For today the term "affiliated persons" is used in various variations in the standard legal acts carried to various branches of the legislation [32]; and if to adhere
O.A.Krasavchikova's statements that «is exactly so much branches of the legislation, how many branches of law» [33] so mass use, certainly, the concept as obshchepravovoj (or interbranch) characterises, a demanded regulator of public relations though concerning its efficiency in the doctrine rough discussions took place. However it is possible to approve with confidence, that the category "affilirovannost" less than for fifteen years has been strongly integrated into the Russian legislative file, that, in our opinion, and induces scientists to its research with different pravovedcheskih foreshortenings.

As have fairly noted N.I.Matuzov, A.V.Malko, the purpose of legal regulation of public relations in any sphere of a public life of a society is the future result to which the subject of law-making and pravorealizatsionnoj activity [34] aspires. To the full it concerns and a category "affilirovanost" as to an interbranch regulator of certain public relations, its functional orientation.

Functional orientation of a category "affilirovannost" as juridiko-technical design, is legal oposredovanie
Social interrelations of persons which the legislator considers as legally significant in the course of a legal regulation. In pravorealizatsionnom process affilirovannost acts as a determinant of stability of a legal status of affiliated persons at the expense of their "additional" regulation. For example, "special" (additional in relation to other participants of a turn not being in a condition affilirovannosti) regulation is reached by means: their account; the conclusions between them transactions; replacements of administrative posts in economic societies and so forth

The given conclusion finds the acknowledgement in legislative process and judicial-arbitration application of concept "affiliated persons". "Affilirovannost" forms a legal status (legal status) of the legal/physical person, obektiviruet it in rules of law, in civil matters and a property turn. Thus character of subject relations follows from the nature of interaction and interrelation of subjects of law

The technique of regulation of mutual relations between subjects through the analysis of their communications is represented rather subjective though and in it it is possible to allocate steady objective subektovuju communication. The category gnoseology "affilirovannost" does not do without subjective interpretation of the researcher, it - «a weak link» any scientific research in legal science, and especially in civil-law, shown in a special way, since. Sooner or later any legal relation is given «on a payoff» pravoprimenitelju. The recognition of a finding of subjects in a condition "affilirovannosti" is by the legal nature the juridical fact after which ascertaining dynamics of civil matter between these subjects will go otherwise with corresponding legal effects. The functional mission consists in it "affilirovannosti" -
Recognised as court or legitimirovannoe affiljantami defined pravoznachimoe a condition of subjects of law.

The condition recognition "affilirovannosti" court carries, as has imparted, negative character. So, for example, such fact can attract a recognition of the transaction void. Legal relevance affilirovannosti can be shown and when affiljanty legitimirovali itself is independent in that condition before other subjects of law. But at such succession of events the legal design of "affiliated persons" is inert, that is at observance of conditions of "special" regulation of legal relations affiljantov necessity for such design disappears.

Methodological value "affilirovannosti" is shown in the form of "signal", which marks defined (distinct from "general provisions") regulation pravoznachimogo behaviour of the persons who are in a condition "affilirovannosti", i.e. Information function of a category as for the persons who are in that legal condition, and for other subjects of the rights is shown.

Category appointment "affilirovannost" in a methodological key consists in activation of additional duties as for "affiljantov" (for example, item 61. Item 45 FZ «About societies with limited liability» [35] (further - FZ Open Company) «Affiliated persons of a society are obliged to notify in writing a society on shares belonging to them...»), and for some other participants of a civil-law turn (in the form of a special order of approval of extraordinary transactions; the account of affiliated persons in accounts and so forth), being with them in a condition «interactions and vzaimososushchestvovanija». And it already consequences reguljativnoj a functional orientation of a category "affilirovannost".

As "value" and "appointment" of concepts is «a litmus piece of paper» for revealing of their efficiency as elements of the mechanism of legal regulation of relations of participants of a civil-law turn being by the legal nature categories personal, they are closely connected with subjects of law (juridical personality).

It is thought, that the legislative policy will apprehend integrativnyj the approach concerning research "affilirovannosti" and "interest", and in the subsequent and will go on a way of increase of their efficiency to regulation of relations of subjects of civil law on the basis of the analysis of their mission. Only at such package approach to knowledge of the legal phenomena finds the display methodological value of legal categories and concepts [36].

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A source: TIKHONOV VLADIMIR VLADIMIROVICH. CATEGORIES of INTEREST And AFFILIROVANNOSTI In CIVIL LAW of Russia. The dissertation on competition of a scientific degree of the master of laws. Rostov-on-Don 2018. 2018

More on topic § 1. Methodological value and appointment of concepts "interest" and "affilirovannost":

  1. § 1. Standard fastening of definition of concepts "interest" and"affilirovannost"
  2. Chapter 2. Categories "interest" and "affilirovannost" in system of civil-law regulation
  3. § 3. "Affilirovannost" and "interest" in the civil law doctrine
  4. Teoretiko-legal research of a parity of concepts «the person,« the physical person, "citizen", "person", "individual", "Everyone"
  5. subjects POV in a position "patriot" - "proponent" and "opponent" - "analyst"
  6. § 1. Concepts "subject" and "object" of the operating criminal legislation, judiciary practice, philosophy and jurisprudence
  7. 1.4.1. The typological characteristic of a modality through a prism filologiyocheskoj germenevtiki: opposition of concepts "value" and "sense"
  8. about the legal maintenance of concepts "protection", "protection", "preservation" and «steady use»
  9. § 1. Genesis of terms "promise", "bribe" and "lihoimstvo" by the Russian right XIV-has begun XX centuries
  10. § 1.4.2. A parity of concepts "recognition" and "execution" of a foreign judgement.
  11. concepts "legalisation" and "washing up" of the Russian criminal law
  12. Concepts "legalisation" and "washing up" of the Russian criminal law