<<
>>

INTRODUCTION.

Urgency of a theme of research. The Roman lawyers have created a science of the Roman Law which deservedly enjoys authority from an antiquity on present time. It was the first in history of mankind jurisprudence with abstract norms of the secular right.

The heritage of the Roman lawyers continues to be used actively in a modern society. By means of the reception the Roman Law as oposredovanno, and directly influenced and influences legislation and legal science development. Its influence is traced in various branches of law - from criminal to civil. Terminology, main principles of the Roman Law contain in any legal system of the world.

Last decades scientific interest to the Roman Law increases in the different countries of the world. It is connected with transition of economy of some the European countries on market relations. It is a question of countries of Eastern Europe, the countries of the former USSR. Here actual there are ideas about a role and a place private and public has begun in the right which bases were put in pawn by the Roman Law.

Value of the Roman Law increases in modern Russia, first of all because there is a transition from planned mechanisms of economy on the market. Market relations directly contact the Roman Law in which the central place occupies the doctrine about the property right. Therefore interest of the domestic legislator is clear by working out of the new Civil code to a heritage of the Roman lawyers. Roman Law positions have enriched the Civil code regarding regulation not only the property right and other real rights, but also obligations and hereditary legal relations. In civil law the theory and Roman Law terminology comes back.

The urgency of studying of the Roman Law, however, is not limited only to applied value of a regulation of market relations. The theory of law investigates principles and mechanisms of the Roman Law for the purpose of revealing and generalisation of laws of development of legal systems that allows to predict functioning of institutes of the Roman Law, retsipiruemyh in the Russian legal system.

Special value for jurisprudence gets studying of problems of the reception of the Roman Law. The Roman Law reception is the phenomenon of the legal order which has led to formation of universal standards of the right and formation of modern theory of law.

Degree of a readiness of a problem. Concerning the Roman Law and, in particular, its reception many works, however a theme far are written is not settled. The present puts new problems before the researcher. So, now the history of the state and the right demands sistemnosti studying of the phenomenon taking into account influence of all set of factors (ecological, cultural urological, religious, mentality, etc.).

New approaches at all do not confute the conclusions made scientists earlier. Modern scientists lean against S.N.Alekseeva, V.G.Balasheva, N.P.Bogolepova's works, D.D. The Grimm, A.G.Gusakova, N.A.Djuvernua, V.V. Yefimov, L.N.Zagursky, A.N.Kazantsev, N.I.Krylov, K.A.Mitjukova, S.A.Muromtsev, K.A.Mitjukova, V.I.Sinajskogo, P.S.Suvorov, V.M.Hvostova, V.A.Yushkevich and many other things. Their thoughts and idea develop, doing the conclusions having great value for a modern science, M.M.Borisevich, V.G.Grafsky, D.V.Dozhdev, T.V.Kashanina, A.I.Kosarev, L.L.Kofanov, V.A.Letjaev, I.P.Medvedev, L.V.Milov, P.B.Novitsky, V.A.Savelyev, E.A.Skripilev, E.V.Salogubova, N.N.Smirnova, A.A.podoprigora, V.A.Tomsinov, M.H.Hutyz, E.O.Haritonov, etc.

However in some cases it is necessary to change a vector of scientific researches. So, during the Soviet period the Roman Law was considered as a component of the bourgeois right, the continuity between the Roman Law and the Soviet civil law was denied. At a science of history of the state and the right there was a class analysis of the Roman legal values.

The modern jurisprudence requires Roman Law resolution of problems. Special value has such permission for private law. Modern jurists feel necessity for working out on the basis of the Roman Law of theory of law of the property and other real rights, theories of possession, the theory of debt relationships, assignment theories and so forth

The present research is devoted problems of the reception of the Roman Law and its value for jurisprudence. This theme is chosen by the author because of an increasing urgency of a science of the Roman Law and necessity of revealing of new aspects of its reception.

Object and object of research. Object of dissertational research is the Roman Law as the body of rules, principles, ideas and their reflexion in theory of law. As an object of research special properties of the maintenance and features of formation of the Roman Law, its historical and modern value both for Russia, and for the world community act. An object of research is also the genetic continuity between the Roman and modern Russian right.

The purpose and research problems. Dissertational research was spent for the purpose of complex revealing of the maintenance of the reception of the Roman Law having theoretical and practical value for a modern condition of legal systems and legal science.

Problems of the given research follow from its purpose:

- To characterise the maintenance of the reception of the Roman Law;

- To reveal influence of various factors (the state, religion, etc.) on formation and development of the Roman Law and its treatment in modern conditions;

- To investigate a parity between Roman, pandektnym the right, private law of Russian empire, the right USSR and the modern Russian Federation;

- To establish the reasons and the factors defining the further development of the Russian right in a context of the investigated theme.

Methodological and theoretical basis of research. The choice of methods for the given dissertational research was defined by specificity of object and an object of research. The author leant against works on histories of law and the states, theories of law and the states, international law, philosophy, sociology. Were used general scientific, chastnonauchnye and special methods of knowledge (dialectic, historical, system, rather-legal, logiko-legal, sociological, etc.).

Theoretical basis of research works of the Russian scientists in sphere of theory of law and the state, history of law, branches of modern private law, and also philosophy, anthropology, sociology, philology, political science, history and other branches of knowledge, in particular have constituted S.S.Alekseeva, J.G.Alekseeva, G.M.Baratsa, R.S.Bevzenko, V.A.Belova, G.Dzh's works. Bermana, P.G.Vinogradova, V.G.Grafskogo, D.D. The Grimm, D.V.Dozhdeva, N.A.Djuvernua, V.V. Yefimov, B.S.Erasova, N.P.Zagoskin, I.A.Isaeva, V.P.Kamyshanskogo, L.A.Kasso, G.I.Kabakovoj, A.I.Kosarev, V.A.Letjaeva, I.M.Lure, I.P.Medvedev, V.S.Nersesjantsa, N.V.proppa, E.V.Salogubovoj, N.S.Suvorov, G.F.Shershenevicha, R.L.Hachaturova, I.J.Frojanova, I.E.Engelmana, etc.

In research works of the German scientific - jurists of XIX century, such as also are used: F.Berngeft, R background Iering, H.Ketts, G.F.Puhta, K background CHilarzh, etc.

Scientific novelty of dissertational research. Scientific novelty is defined set as by the author by the purpose and problems and consists in the following:

- Value of the reception of the Roman Law with reference to modern Russian conditions is revealed;

- Process of formation of negative and positive stereotypes of the relation to the Roman Law is covered, their stability is noted;

- Attempt to formulate definition of the reception is undertaken and to allocate its basic models.

The substantive provisions of dissertational work which are taken out on protection:

- Traditional consideration of the Roman Law as źthe antiquity rights╗, źthe slaveholding right╗ as źthe greatest achievement of the past╗ and so forth impoverishes a Roman Law science, deprives of its modern practical value and, accordingly, leads to the simplified understanding of the valid value of the Roman Law. The phenomenon of the Roman Law for the present is not defined by chronological frameworks. The Roman Law continues to make essential impact on development of modern private law;

- In theory of law the reception is considered exclusively as loan or loan and development of legal institutions. Thus the ideological moment of the reception which, however, is key is excluded from researches. It, first of all, defines a choice of the donor, a reception material, success or unsuccessfulness of introduction of foreign legal institutions on "soil" of the recipient. Thus, the reception is possible only owing to special ideology of the recipient, allowing to carry out loan and development of a foreign legal element;

- The author of the dissertation allocates following models of the reception: the voluntary reception and its not voluntary kinds (colonial and occupational). The big interest is represented by the voluntary model of the reception having special value for revealing of the reasons, the mechanism and results of the reception of the Roman Law and the modern reception of foreign legal institutions. It arises usually in crises of state-legal institutes and consists in voluntary use of rules of law, institutes of the foreign right owing to the ideological reasons. Not voluntary kinds possess compulsory character of the reception. The colonial model of the reception is expressed in planting by mother country of elements of the legal system in colony legal system. Occupational - it is expressed in violent introduction of the legal regulation on an occupied territory. Within the limits of voluntary model of the reception Napoleon's Civil code of 1804 has been created Within the limits of occupational model it has received a wide circulation in Europe. As an example of colonial model the private law of the Vietnam which has received the European outlines during the French colonisation can serve;

- Roman Law development by Russia occurred constantly since ancient times. The reception was carried out within the limits of voluntary model direct and mediated by. The direct reception of the Roman Law has occurred in connection with Christianity acceptance that is caused by state-legal and religious crisis. The mediated reception of the Roman Law is connected with successful military campaigns and development of international trade with the Byzantian empire. Roman Law influence is traced at all stages of development of the Russian right and reflected in the pivotal sources of law;

- The Civil code of RSFSR accepted in 1922 was based on the reception pandektnoj the form of the Roman Law formulated by the German civil code of 1900 the Given code has served as model for the subsequent "romanizirovannyh" the Russian codes. The modern reception of missing links of the Roman Law has been carried out in the Civil code of the Russian Federation in 1994-1997 within the limits of voluntary model. Retsipirovany missing institutes of the easement, pledge, the specification etc. Thereby the Russian Federation declares adherence to modern western democratic and legal values.

The theoretical and practical importance of work is defined by the analysis of the maintenance of the Roman Law by means of istoriko-legal and civil approaches and revealing of its value for jurisprudence. Conclusions and work positions allow to expand representations about value of the Roman Law, to reveal an originality of models of the reception of the Roman Law both for all world, and for Russia in particular.

Theoretical positions and conclusions can be considered in scientific researches on problems of the reception of the right, at creation of generalising works on history of the Russian right, theory of law, on problems of the theory of private law, at creation of manuals, methodical managements, by preparation of the general and special courses for students of colleges of law and faculties.

Approbation and introduction of results of research. Dissertation substantive provisions are stated by the author in the published monographic researches and scientific articles, and also in reports at various conferences. They are used in teaching of special courses of "a Roman Law Basis╗, "Theory of state and law", źProblems of the general theory of law╗, źthe Enterprise right╗, źthe International private law╗ within last five years in Modern humanitarian academy (the Samara branch).

<< | >>
A source: Tkachenko Sergey Vitalevich. the ROMAN LAW RECEPTION: THEORY And HISTORY QUESTIONS. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2006 . 2006

More on topic INTRODUCTION.:

  1. in introduction
  2. INTRODUCTION
  3. INTRODUCTION
  4. 10.1. Introduction
  5. INTRODUCTION
  6. approbation and introduction of results.
  7. Introduction
  8. Introduction
  9. INTRODUCTION
  10. INTRODUCTION
  11. Introduction
  12. Introduction
  13. INTRODUCTION
  14. Instead of Introduction …