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1.1 Scientifically-historical concepts of legality and development of organs of the Prosecutor's Office in sights of the Soviet and modern scientists

The characteristic actually a transition period is given in many works of researchers - lawyers, political scientists, philosophers, sociologists, etc. So, professor N. N.Arzamaskin in work «the Transitive state and its forms» comes to opinion, that the transition period is characterised by a randomness, instability of an event.

During the given period contradictions which have arisen in public and power structures are resolved, controls are formed by the state, methods of a management are defined by society and the state which take root into a life by means of acts [1]. The Same opinion in the dissertational research «Problems of the transitive state: the Theoretical analysis» adheres to O.V.Prokofiev [2]. Philosopher L.A.Zubkevich in dissertational work «Transition periods as a part of natural historical process» characterises a transition period as formation of new state system [3]. V.V. Sorokin in dissertational research «transition period Statehood: Theoretical questions» approves, that a certain logic is inherent in a transition period, with
Which help transforms all state-legal system as a whole [4]. V.A.Rybakov in work «Continuity in the domestic law in a transition period: general-theoretical questions» the transition period as defines the phenomenon which occurs between the past and future, and legality development predetermines extent of this process [5 [6].

It is possible to see transition period general provisions in works of researchers of various branches of sciences, namely, in all works it is a question of transformation of state-legal system as a whole. However it is necessary to notice, that not enough attention is given to a role of Office of Public Prosecutor in legality maintenance from which condition as it is represented, in a transition period duration of many transients depends. At a sight of the author probelnost in studying of a question on measures of maintenance of legality in a transition period of the state development leaves set of the questions which permission would allow to accelerate an establishment of legality and to give stability to state-legal system as a whole.

At the same time in the given context it is necessary to note research N. V.Melnikova whom in the work «the Public prosecutor's power and the person» approves, that development and strengthening of the Russian state is possible only in the event that its basis will be under construction on the right expressed in leadership of the law, in an establishment of democratic principles of the state mode. In its opinion, for achievement of the given purpose it is necessary to create a machinery of government, allowing to regulate all spheres of public relations. Accordingly, the important element of the given mechanism providing an establishment of legality, will be

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To be, including, and Office of Public Prosecutor.

During the Soviet period in its maintenance, since the transition period of beginning HH century connected with creation of the socialist state and socialist legality, the set of works of domestic and foreign researchers has been devoted a problem of legality and a role of Office of Public Prosecutor: lawyers, historians, political scientists, sociologists, political and statesmen. In this connection it is possible to say that the given problem has got interbranch character.

From works of foreign scientists work «the Russian legal profession and the Soviet state» western political scientist J.Haski who, investigating the Soviet period of the state development, has come to conclusion is of interest, that during this period the right and the legality based on it acted as tools of class board according to what, in its opinion, on legal system certain restrictions irrespective of, whether there were they seeming or real [7] were imposed. The similar point of view is expressed in the two-volume work «History of the Soviet state» by other western researcher - N.Vert. He considers, that the formula «revolutionary expediency is equaled a revolutionary legality» expressed a recognition a mode of proletarian dictatorship only those laws which serve interests of revolution. In its opinion, in a transition period of formation of the Soviet power the revolutionary legality personified the will of Bolshevik party erected in the law in business of development of methods of the armed struggle against counterrevolution that has left the mark on all further legal building [8].

At the same time in works of the Soviet state and party figures necessity of legislative settlement of difficult public relations of a transition period in this connection it is spoken about strict observance of the revolutionary legality which is based not only on is marked
Partijno-class, but also on a legal basis. So, the founder of the Soviet state V.I.Lenin in the work «the Report on problems of the power of councils» has acted with an appeal to working class and peasants about necessity to observe unshakable discipline and about creation of the strict revolutionary order which were required for a victory of socialism [9].

Opening essence of legality in the conditions of Civil war and a radical reorganisation of the Russian society, V.I.Lenin in work «the Letter to workers and peasants concerning a victory over Kolchakom» said that the slightest disorder, lead the slightest infringement of laws of the Soviet power to strengthening of landowners and capitalists, to their victories. Thereupon he demanded from all citizens and officials strictly to observe and honesty to execute laws of the Soviet power [10].

V.I.Lenin in the works especially underlined necessity of strict execution of legislative instructions communists. He considered inadmissible use of any privileges connected with an accessory to party in power by them. So, in «the Letter in Central Committee RKP Political bureau (» he wrote about inadmissibility of influence of party in power on judicial tribunals for the purpose of softening of responsibility for communists and about necessity of acceptance more strict measures in relation to communists,

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Than to not to communists [11].

In work «About internal and republic foreign policy» V.I.Lenin noticed, that than the Soviet power becomes stronger, the there is a civil circulation development further, the the revolutionary legality [12] more firmly should be observed. Thus, in its opinion, legality
Was the basic method of building of socialism and a major principle of activity of the state bodies.

However there were also other judgements. So, the known philosopher, the historian and economist V.N.Sarabjanov in article «proletariat Dictatorship, the right and a revolutionary legality» noticed, that basically at private property negation there is no need to develop the new legislation, there is enough instructions and instructions of party and the government on an operational administration. In its opinion, decrees of the Soviet power should represent not laws, not rules of law, and battle-orders and the orders transferred on a direct line. The court should be guided not by the law, and «a voice of revolutionary conscience» [13].

At the same time the official point of view as it is represented, has been expressed in an editorial article «Our problems» magazine «the Right and a life» where legality was considered from a position of legitimacy of a public life. It has been named by system of organisation of social being, the empirical law reflecting historical experience of a public life of the people, irrespective of economic forms and political conditions of their existence [14]. Thus, in given article the concept "legality" was considered from the classless point of view, as the necessity caused by development of a society.

In connection with transition to NEPu in scientific discussions of 1920th the huge attention was given to opposition of legality and revolutionary expediency. Some lawyers tried to combine these concepts, defining them as a single whole. So, a member of board NKJU of J.N.Brandenburgsky in article «Simply legality or a revolutionary legality?» Wrote, that the revolutionary legality should be combined with the revolutionary to the full
Expediency as only the combination of these two concepts can serve achievement by the laid down revolution of the aims [15].

The similar point of view expressed N. V.Krylenko and V.I.Jahontov which in teamwork «Articles about a revolutionary legality» wrote that the state bodies, being guided in the activity by revolutionary legality principles, should contain in these frameworks revolutionary expediency. That is directing bodies, at realisation of the activity, showing activity, should not be beyond statutory norms [16].

N. V.Krylenko in work «About a revolutionary legality», acting with criticism of the right opposition, approved, that the revolutionary legality could not be restriction of "proletariat dictatorship», on the contrary, it was means for strengthening of this dictatorship. In its opinion, the right opposition not only did not see unity of dictatorship of proletariat and revolutionary 3 legalities, but also directly contrasted one another [17].

About introduction of revolutionary expediency the theorist of the right A.N.Trajnin wrote to legality frameworks in article «About a revolutionary legality». Making legality definition, it specified that legality should include legislative instructions, which, being combined with reality, would be a regulator of public relations, instead of would become the dead letter of the law [18]. Differently, legality in given article was considered not from the point of view of revolutionary expediency, and from the point of view of effective introduction of published laws during a public life.

The people's commissar of justice of RSFSR D.I.Kursky adhered to the same opinion. So, doing the report at IV All-Russia congress of workers
The Soviet justice, he said that published laws should be worked from different directions that the revolutionary legality did not remain an empty word, and was put into practice [19]. Jurists A.E.Lunev, S.S.Studenikin, T.A.Jampolskaja [20] adhered to the Same sight in teamwork «Socialist legality in the Soviet government».

At the same time in all scientific works of the given transition period of the Soviet statehood the understanding of essence of a revolutionary legality has been based on the got social and economic determinism, the Marxism-Leninism doctrine about class struggle in which result there is a change of socioeconomic structures and state types, about dictatorship of the proletariat, a supervising role of communist party. In this connection it is possible to say that all researchers indissolubly connected legality with a policy of the party therefore they operated in full unity.

At the same time in works of those years the thought that the revolutionary legality should a uniform lawful method to provide practical realisation of instructions and orders of authorities is traced. Thereupon V.I.Lenin in the letter in the Political bureau «About-double” submission and legality », become axiomatic, wrote:« Legality cannot be Kaluga or Kazan, and should be uniform All-Russia and even uniform for all federation of the Soviet republics Legality should be one, and the basic harm in all our life and in all our bad manners is connivance of primordially-Russian of a sight and a habit of the semisavages, wishing to keep legality Kaluga in difference

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From legality Kazan »[21].

Besides, researchers, state and politicians marked necessity of creation corresponding obespechitelnyh measures as public prosecutor's establishments which were on guard of legality in the imperial and Time governments have been abolished. So, V.I.Lenin in new Soviet Office of Public Prosecutor saw the body, capable to be the guarantor of legality. Considering a problem of abolition of old public prosecutor's establishments in an initial stage of the Soviet power, N. V.Krylenko in work «in the USSR» noticed Court and the right, that the given step was the most correct and justified as the class of workers clearly recollected the Office of Public Prosecutor of the imperial period personifying communication with violence, harm. Thereupon was considered, that creation of the Soviet Office of Public Prosecutor rejects spent according to revolutionary legality principles legal short stories to an order of the old, imperial period [22].

In the book «the History of the Soviet Office of Public Prosecutor in the major documents» under K.A.Mokicheva's edition is said that the imperial Office of Public Prosecutor has been liquidated because of uselessness. However formation of the Soviet society and development of the Soviet state have revealed practical necessity of creation and inclusion for structure of the state organs of the Prosecutor's Office, but with other maintenance of activity which has been directed on strengthening of bases of the Soviet system [23].

G.A.Murashin in work «Organs of the Prosecutor's Office in the mechanism of the Soviet state» specifies that occurrence of the Soviet Office of Public Prosecutor is connected by that among the numerous bodies which are carrying out the control, there were no accurate competences on elimination of the revealed infringements. Except
That, frequently the bodies which are carrying out the control, directly depended on persons under surveillance of bodies [24].

The Soviet researchers, being based on V.I.Lenin's work «About-double” submission and legality »[25], agreed in opinion that in the conditions of officialdom growth by unique way of maintenance of due legality creation of the independent, centralised body was, capable to carry out supervision of execution of laws of all without an exception. The Office of Public Prosecutor recreated on the Soviet basis should become such body.

Thereupon it is necessary to notice, that the major role in formation of the Soviet Office of Public Prosecutor has played accepted on June, 20th, 1933, the Decision of the Central Electoral Committee and SNK the USSR, Position «About establishment of Office of Public Prosecutor of USSR», directed on centralisation and independence of organs of the Prosecutor's Office. However, according to A.L.Rivlina whom in the work «the Organization of court and Office of Public Prosecutor in the USSR» analyzes influence of the given regulatory legal act on activity of organs of the Prosecutor's Office, with its acceptance and it was not possible to finish up to the end centralisation of all system of Office of Public Prosecutor as was not

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The principle of a double subordination [26] is eliminated.

V.G.Bessarabov and K.A.Kashaev in teamwork «Protection by the Russian Office of Public Prosecutor of the rights and freedom of the person and the citizen» in this connection notice, that centralisation and independence process, i.e. allocation in separate structure of organs of the Prosecutor's Office that has well affected legality maintenance, has come to the end only with acceptance of the Decision of the Central Electoral Committee and SNK the USSR from July, 20th, 1936 «About formation of the National Commissariat
Justices of USSR »[27]. About same in connection with preparation of the Constitution of the USSR speaks N 1936. V.Krylenko in article« Court and Office of Public Prosecutor under the project of the Constitution of the USSR », noticing, that« the big political rights and powers »on supervision of observance of uniform understanding and legality application could be handed over only to the bodies constructed on the basis of independence of local influences [28].

Norms of the Constitution of the USSR fixed position according to which the Office of Public Prosecutor got the status of the higher supervising body 1936, that in the scientific environment has been apprehended ambiguously. So, such known lawyers, as With. G.Berezovskaja, V.S.Tadevosjan, M.V.Kozhevnikov, V.G.Lebedinsky, V.G.Kalenov, etc. already in the works divided this point of view [29]. V.S.Tadevosjan in work «in the USSR» said Procurator's supervision that fastening to organs of the Prosecutor's Office of the higher supervision is quite pertinent as supervising activity of Office of Public Prosecutor includes supervision and of all ministries which were carrying out control and supervising functions [30]. V.G.Lebedinsky and J.A.Kalenov have come to conclusion, that procurator's supervision is the higher because unlike other state bodies which urged to carry out the departmental control, i.e. To provide execution of laws by department, the Office of Public Prosecutor urged to carry out supervision not only of execution of laws, but also of their uniform application [31].

M.V.Kozhevnikov wrote, that the use in relation to supervising activity of Office of Public Prosecutor of the term "higher" is quite pertinent. Proving the point of view, he noticed, that owing to the activity the Office of Public Prosecutor urged to provide execution of laws, to reveal and eliminate infringements of laws, to harden legality and the law and order in all territory of the Soviet state [32].

Other point of view was expressed by G.I.Petrov who defended necessity of an exception of a word "higher" in relation to supervising activity of Office of Public Prosecutor. In its opinion, the use of a word "higher" is admissible only in relation to the supervising activity which is carried out by the Supreme body, Supreme body Presidium, Ministerial council as the given bodies are supervising. It was supported by V.M.Savitsky, approving, that it is impossible to allocate Office of Public Prosecutor as the higher supervising body as inherently procurator's supervision a little than differs from the supervision which is carried out by other state bodies. Proceeding from it, he adhered to a position that there are no bases for allocation of procurator's supervision as the higher [33].

The legislator has listened to opinion of the researchers defending in the works the term "higher" in relation to supervising activity of Office of Public Prosecutor. Position acceptance about procurator's supervision in the USSR, the Presidium of the Supreme body of the USSR approved by the Decree from May, 24th, 1955 became result of it

The given standard legal act has been approvingly met in the scientific environment. So, for example, O.I.Ljahovich wrote, that Position about the procurator's supervision, included fixed in the Constitution of the USSR 1936 the organisation and activity of Office of Public Prosecutor, has defined problems
Procurator's supervision in all spheres of the state and public life that had huge value for improvement of work of Office of Public Prosecutor on consolidation of legality. And. M.Rekunkov in the research «the Soviet Office of Public Prosecutor: history pages» said that the accepted Position about procurator's supervision has been directed on maintenance of procurator's supervision as the higher. He noticed, that position legislatively fixed and creatively developed Lenin ideas about essence and appointment of the Soviet Office of Public Prosecutor [34].

Considering a problem of maintenance of legality during the Soviet period of the state development, the leading part of Office of Public Prosecutor in an establishment and legality maintenance is clearly observed. As it is represented, thereupon in relation to supervising activity of Office of Public Prosecutor the term "higher" was established. The made definition of supervising activity of Office of Public Prosecutor remained behind it up to disorder of the USSR. With. G.Berezovskaja and. M.Spiridonov in teamwork «Procurator's supervision in the USSR» wrote, that the term "higher" in relation to supervising activity of Office of Public Prosecutor has got accustomed, as the supervision which is carried out by Office of Public Prosecutor, was made on behalf of the state and to execute laws by all without an exception subjects of public relations [35].

As it is represented, fastening to supervising activity of Office of Public Prosecutor of the term "higher" promoted that in the subsequent scientists start to consider activity of Office of Public Prosecutor as a separate branch of the power - public prosecutor's. So, the expert in the field of I.E.Farber's constitutional law in article «the Constitutional bases of procurator's supervision in the Soviet state» notices, that activity of the Soviet Office of Public Prosecutor, with its supervising functions, represents
Special way of expression of the state will which is not inherent in other public authorities as, in its opinion, is under construction on the basis of democratic principles of the socialist state. To the same opinion adhered With. G.Berezovskaja who considered public prosecutor's activity as expression separate - the public prosecutor's power [36].

Thus, historical experience of maintenance of legality testifies that the huge role in business of an establishment of legality belonged to organs of the Prosecutor's Office. However it is necessary to pay attention to that circumstance, that during the Soviet period of the state development the status of organs of the Prosecutor's Office as the higher supervision, despite fastening at organic law level, caused ambiguous reaction among scientific and practical figures. However realities of the Soviet state demanded all-round consolidation of legality that was reached by means of public prosecutor's activity in supervision sphere. According to the author, the huge role of Office of Public Prosecutor in business of maintenance of legality also has demanded fastening of the special status of organs of the Prosecutor's Office.

From the end of 1950th, besides revealing of a place and a role of Office of Public Prosecutor in system of the government and legality maintenance, in scientific researches the considerable place began to be taken away to explanation of the concept and the legality maintenance. Scientific and practical workers have addressed to finding-out of a role of laws in an establishment and maintenance of a mode of legality. V.I.Popova's works, N have been devoted consideration of this problem. G.Aleksandrova, D.A.Kerimova, A.E.Luneva, V.S.Tadevosjana,

B. M.Stepanova, etc. [37] Judgements of researchers on the given question were ambiguous, one held the opinion, that laws are an inseparable element of legality, others challenged this position.

So, M.S.Strogovich comes to conclusion, that the legality essence consists in that subjects of public relations strictly adhered to the established legislative norms. He approved, that the basic problem of legality consists in it and. Besides, on its belief, for an establishment of due legality it is necessary to undertake corresponding obespechitelnye measures for its protection. In this connection as one of effective guarantees of maintenance of legality of M.S.Strogovich saw activity of organs of the Prosecutor's Office [38].

I.Pavlov, I.Sabo, considering concept "legality", have come to conclusion, that it consists of several inseparable elements, such as legislative instructions and their application. Thus process of creation of laws acted as the initial moment of legality, and legislation application - its second stage. In this connection they held the opinion about that the concept of legality included also process of working out of legislative instructions. As a substantiation of the judgements they said, that normotvorchestvo too should be regulated by laws and the subordinate legislation and, owing to it, to represent the activity of officials which is carried out on the basis and to execute the law. Thus they also held that opinion, that legality requires constant protection according to what as one of effective conservation measures specified in activity of Office of Public Prosecutor [39].

N. G.Aleksandrov understood "legality" in narrow and wide sense, depending on subjects of observance of legislative instructions. So,
Execution and observance of laws by public authorities, establishments and the organisations, and also officials it was perceived as legality in narrow sense. Execution and observance of laws by all subjects of public relations, including citizens, - as legality in a broad sense [40].

E.A.Lukasheva, connecting concept of legality with social relations which she named «organisation of a public life», said that in concept "legality", except necessity of strict observance of legislative instructions, it is necessary to include necessity of conformity of legislative instructions to realities of development of a public life. She considered, what exactly connection of these two elements will promote an establishment of original legality [41].

It is necessary to notice, that the given position was not an innovation in the Soviet legal science. So, before this point of view in the works adhered to A.N.Trajnin, D.I.Kursky, A.E.Lunev, S.S.Studenikin, T.A.Jampolskaja and other domestic jurists [42].

Thus, in the Soviet historiography approaches to understanding of legality were rather various. At first a revolutionary legality, and in the subsequent and socialist legality researchers considered as an effective method of realisation of the government, as a way of realisation of will of the supervising power, as the base to socialism building. In the subsequent development of the Soviet right has affected legality definition. In it began to see main principle of lawful activity of the state bodies, establishments and public organisations, and also lawful actions of citizens and as a whole
The legislative instructions reflecting development of a public life and essence of socialist democracy.

At the same time, despite variety of approaches to understanding of the legality, all researchers agreed in opinion, that the legality condition cannot be defined only by legislation development. In this connection they have been convinced of necessity of corresponding level of practical application of legislative instructions by all subjects of legal relations. The conclusion from this became, that, on the one hand, without the legislation worked from different directions there can not be an original legality, with another - even the worked legislative instructions cannot provide a due condition of legality without their effective practical realisation. On the basis researchers in the works come to conclusion about necessity for an establishment of due legality of its protection in this connection one of leading places is taken away by them to the Office of Public Prosecutor which primary activity is directed on legality maintenance.

The main discriminating line of a historiography of the given problem during this period was that without dependence from the methodological approach to understanding of essence and the legality maintenance: as method, way, a principle or a mode of the state activity, its understanding was based on a class principle which extended on all spheres of the state and public relations in interests of the socialist state. Such judgements could be found in works of many researchers.

So, O.S.Ioffe and M.D.Shargorodsky in joint work «Questions of theory of law» wrote, that the class requirement of legality is progressive, when it is a question of the laws promoting development of a society; the legality requirement is reactionary, when it is a question of the laws supporting a society dying, reactionary and stirring establishment new public
Relations. In this case the won class breaks old legality and creates on its place the legality, demanding its observance [43].

The expert in the field of theory of state and law And. M.Vasileva in the manual "Theory of state and law" noticed, that in understanding of legality the class approach, comprehension of its class maintenance is necessary. On this basis the essence and a social role of bourgeois and socialist legality [44] differ.

Thus, it is possible to say that during the Soviet period of the state development legality the sufficient attention has been paid to concept of a category. However it is necessary to notice, that the legal ideology of the socialist state left a certain mark on understanding of legality. At the same time among scientific and practical figures, Soviet time the understanding of was generated that the mechanism is necessary for realisation of idea of original legality, capable to provide its due establishment. As such mechanism the Office of Public Prosecutor served.

Historical experience of maintenance of legality testifies to a huge role of Office of Public Prosecutor in business of maintenance of legality during the Soviet period of the state development. According to the author, the given circumstance should be considered at the present stage of building of a lawful state. Proceeding from it, the author considers, that for a legality reliable guarantee the strong Office of Public Prosecutor with the special status which establishment should be fixed at Constitution level is necessary.

1.2.

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A source: VAGAPOV Ramil Fuatevich. LEGALITY MAINTENANCE In the RUSSIAN FEDERATION In the conditions of REFORMING of OFFICE of Public Prosecutor In 1990 - the BEGINNING of 2000th (ISTORIKO-LEGAL RESEARCH). The DISSERTATION on competition of a scientific degree of the master of laws. Kazan - 2015. 2015

More on topic 1.1 Scientifically-historical concepts of legality and development of organs of the Prosecutor's Office in sights of the Soviet and modern scientists:

  1. author's model of istoriko-legal offers about Perfection of a machinery of government of maintenance of legality within the limits of system of organs of the Prosecutor's Office
  2. system of organs of the Prosecutor's Office in a machinery of government of maintenance of legality in the Russian Federation in a transition period of 1990-2000th
  3. influence of positions of the Judiciary reform of 1991 and the Constitution of the Russian Federation of 1993 on formation of a machinery of government of maintenance of legality and a place in it of organs of the Prosecutor's Office
  4. Chapter 1. The GENERAL CHARACTERISTIC of SYSTEM of PUBLIC RELATIONS In SPHERE of LEGALITY And the ROLE of OFFICE of Public Prosecutor In ITS MAINTENANCE In the USSR And POST-SOVIET Russia
  5. § 1. Sights at legal hermeneutics in works of the Soviet scientists
  6. organs of the Prosecutor's Office in Taurian area (1784-1796 of)
  7. evolution of the legislation on organisation-legal and functional activity of Office of Public Prosecutor in the light of legality maintenance
  8. a role of foreign experience of maintenance of legality and formation of Office of Public Prosecutor taking into account international legal certificates of 1990-2000th
  9. influence of material, financial and personnel maintenance of bodies and establishments of Office of Public Prosecutor on legality maintenance
  10. creation of bases of legal regulation of maintenance of legality in the conditions of reforming of Office of Public Prosecutor
  11. § 1. Development of Office of Public Prosecutor in system of statehood of Kazakhstan.
  12. Chapter 2. REFORMING of the MACHINERY OF GOVERNMENT of MAINTENANCE of LEGALITY. The PLACE And the ROLE In IT of OFFICE of Public Prosecutor In the conditions of NEW CONSTITUTIONAL BASES of the STATE And ACTION OF SOME INTERNATIONAL LEGAL CERTIFICATES
  13. Chapter 3. RESEARCH of STRUCTURE, the LEGAL STATUS, MATERIAL, FINANCIAL And PERSONNEL MAINTENANCE of OFFICE of Public Prosecutor In the MACHINERY OF GOVERNMENT of MAINTENANCE of LEGALITY In the TRANSITION PERIOD
  14. § 2. Development of Office of Public Prosecutor as public authority in the Russian Federation.