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THE CONCLUSION

The common law of the people of the North Caucasus differs from ethnolegal tradition of many other things, including Russian people, that it be not only property of history, but also standard system functioning now.

Ethnolegal traditions of the people of the North Caucasus it is necessary izuyochat, using interdisciplinary methods. Large number opredeleyony a common law is caused as well by that in the literature were applied razyonye criteria at selection of its signs: formal (the unwritten law in a counterbalance hand-written - to the law), gnoseological (the common law results pravotvorcheskoj from people activity, official - a state product; a common law - the preright, the most ancient step in evoljutsionyonom legislation development), functional (the common law - the live, really operating mechanism of the right, official - it is artificial sozdanyonyj a schematic image of the right), etc.

Despite technical improvement of the written law and posteyopennyj scope to all of them of wider areas of regulation, in development of the Russian legislation in comparison with custom is swept up a number sushchestyovennyh the laws repeating from century to century: use preyoimushchestv support on custom the legislative right; selectivity obyyochaev depending on a historical conjuncture; a manipulation smyyoslovym pluralism of the term "custom".

Feature of legal system of the people of the North Caucasus is soyosushchestvovanie various legal systems: an adat, Sheriyat and the Russian legislation. At variety of the North Caucasian people of norm of an adat not only occurred along with Sheriyat, but also at times prevailed over it.

Most feodalizirovannoj the state system was Kabarda, most islamizirovannoj - Dagestan. Islam on Northeast caucasus has started to get into all spheres of a society, but on Northwest and TSentralYO
nom caucasus the steady is social-hierarchical mountain consciousness and behaviour stereotypes that did not allow to establish absolutely shariatsky an order were traced. To a gain Russian of caucasus development of the local right in mountaineers occurred in the form of the reception of norms of Sheriyat in an adat.

From the beginning of XIX century among the Caucasian people convergence of a positive law of Russian empire with adatskim and Muslim prayovom is observed. However gradually adat institutes (for example, blood feud) and shayoriata from a positive law were exposed to restrictions.

Adat and Sheriyat development as is standard-valuable, reguljativnoj systems during Soviet time was reduced by 2nd paradoxical moments: 1) Soviet political, the government at 1st stage of existence has counted their suitable for realisation of the purposes in the organisation obshcheyostvennyh relations and management, and has provided realisation of their some norms and principles; 2) the Soviet state gave usual and muyosulmanskomu to the right value of the real factor in a life of the North Caucasian people [199]. Only in the late twenties the Soviet power has completely headed for radical liquidation of the traditional right (an adat and Sheriyat).

Because of indissoluble communication of the legal maintenance and the legal form it is possible to allocate two values of the term "common law": in nejuridicheyoskom sense - "protoright" and in purely legal - «legal custom».

It allows to consider, that common law genesis begins with usual norm. At a certain stage of social development it becomes the indicator of the major social situations and operates concerning all who falls under its maintenance, and further becomes norm of a positive law.

We, speaking about genesis of a common law at the Caucasian people to believe slopes, that custom, a common law (further, sometimes the adat) has arisen payorallelno with the early state, or the protostate, or gosudarstyo
vennym formation - in one cases hardly earlier, and hardly later in other cases.

Sources of a common law (adat) of the Caucasian people were: the arbitration court; the agreement of lawsuit (maslagat) - became frequent in poyosledujushchem norm of an adat; judicial-legal practice feudal praviteyolej, certificates of khans; dogovory between villages and villages inside; decisions of public assemblies (rural descents), etc.

In a science "jurisprudence" there were two basic approaches to perioyodizatsii legal systems: Marxist (formatsionnyj) and kulturnoyoistorichesky (tsivilizatsionnyj).

In the North Caucasus we see difficult system of relations, sformiyorovavshujusja as a result of stratification of different influences and caused by different economic-household requirements: 1) intrafamily, or is more true the intrapatrimonial organisation with the norms and sanctions; 2) mezhduroyodovye relations and mezhdurodovye the norms which sanction was krovyonaja revenge; 3) shariatskoe the right which was based on idea of unity of all devout. 4) new private and the public law which was supported by imperial Russia with a view of realisation russifikatorskoj politicians and boryoby against many vestiges of a patrimonial system and Sheriyat, organised special mountain courts.

In the dissertation common law monitoring on all institutes of the right is made: hereditary, brachno-family, civil (real, objazatelyostvennoe), criminal also it is judicial-law of procedure. As a result of analysis of data it became clear, that a number of institutes of a common law have been more developed, others - less.

Males who have reached full age age - approximately 15th years were subjects of legal relations. Besides specific feature was that the capable person schiyotalsja only the one who was independent in family, status, economic
The relation. Age of majority defined at the conclusion of a different sort of transactions, an exit from under guardianship.

Institutes of guardianship, guardianship and patronage at formation gosuyodarstvennosti at the North Caucasian people had the features, and imenyono: 1) actually was not legal concept of the given institutes. It has been connected with social development of the people, with domination patriaryohalnyh relations in the Caucasian region, with backwardness of legal technics of mountaineers; 2) guardianship relations accurately not were ureguyolirovany the legislation.

Rent relations at the people of Northwest caucasus in XIX stoyoletii had a number of signs: objects of these relations were the earth and cattle; the rent depended on a class accessory of the tenant and the lessor; nationalities of the tenant; landed property categories. Speyotsifichesky character to the given kind of relations was given by the following fakyotory: cattle as object of rent; its natural character; its big zavisiyomost from subjective factors; a sublease wide circulation.

During the pre-revolutionary period for mountaineers transactions of purchase and sale, exchange, a loan, and also mortgaging legal relations but before caucasus has been included in economic system of Russia were already characteristic, they shiyoroko have not been extended.

At all North Caucasian people at alienation or earth delivery in rent the first option has been observed by relatives or neighbours. Before alienation of a site of the earth to by-standers, prodayovets has been obliged to suggest to buy it at first to members some kind of, and then to inhabitants of the village. And only in default both that, and others to buy it goyorets had the right to sell a site to the by-stander. At Kabardians sushchestyovovalo the right in the subsequent to redeem patrimonial property.

The predecessor of the lien was ishkil (baramta, or bayoranta).

During the investigated period the private property on the earth that caused every possible legal effects which basically have been settled by the Russian legislation began to be formed. Nevertheless, odnovreyomenno with the Russian legislation also conventional rules that was brightly enough shown in the field of ground pravootyonosheny, for example, in ground rent and pledge of the ground areas still operated.

As subject of the law of succession were considered: the earth, houses with manors, cattle, house property, ornaments, the weapon, bread stocks. Pastures, mills, the general shelters for cattle, primechetskaja sobyostvennost could not be divided.

Marriage at the North Caucasian people was strictly regulated ekzogamnymi by interdictions. On Sheriyat such restrictions are supposed only to the third generation, on an adat - to the seventh generation inclusive.

For the decision of questions of maintenance of an internal order and external safety in the Caucasian society instead of machineries of government isyopolzovalis other social institutes: the right of application of the weapon (krovyonaja revenge), krovnorodstvennye bonds and jurymen (world, arbitration) courts.

The North Caucasian people did not have a division of crimes on criminal and civil. The concept of "crime" dispersed from the concept accepted under general laws of Russia. Crimes at mountaineers it is change to Fatherland, patricide, incest, infringement of conjugal fidelity by women, treachery and cowardice, refusal of hospitality, larceny and infringement of inviolability of person of princes. All other did not approach under concept of a crime and it was authorised by the right of strong and on the right of application of the weapon.

The differentiation of punishment depended on different factors (social, a property qualification, gender, etc.), and first of all from in what relations with the Russian power there were the people which representative has committed a crime.

As to custom of blood feud in process of development of a society it changed the nature. Having appeared in the beginning as the norm corresponding to a principle «an eye for an eye, a tooth for a tooth», this custom gradually began to outgrow in system of compositions. Tradition or a talio principle - inevitability nayokazanija for insult, the insult, murder, humiliation, and also all complex of moral instructions in which the big respect for the person is observed. In such public and moral conditions in which nahoyodilsja the mountaineer when it could not offend anybody and it nobody could offend, - punishment was inevitably.

The people of the North Caucasus considered as a crime punishable dejstyovija which have been directed against the person or property. Accurately formulated concept of this definition and accurately formulated soyostavov did not exist. On the subjective party acts differed, kotoyorye have been made deliberately, on imprudence or is casual. subyoektami crimes all mountaineers, excepting slaves, since were considered. For them otveyochal their owner. There was a concept of partnership. However criminal otvetstvenyonost it has been meted on all mountaineers in an equal measure, without their contribution.

Punishment had for an object a composition, intimidation and social justice restoration. As a punishment principal view served kompoziyotsionnye payments which were imposed for causing property and fiyozicheskogo harm, including. For murder, gradually superseding throughout XIX century the talio law. We will notice, that for mountaineers of caucasus property payments were a punishment principal view. To mountaineers were not known zayokljuchenie in prison, corporal punishments and so forth

About 2nd floor. XIX centuries in legal system of mountaineers gradual introduction of the Russian right has begun. The size of penalties depended from class prinadyolezhnosti the victim, and at times and on the social status of the criminal, in other words, from the legal personality of the claimant and the respondent.

The prereform period in the North Caucasus is characterised origiyonalnymi by legal proceedings institutes under a common law. For example, at
"Democratic" tribes there were no special courts of justice, prayovosudie elective members of a society, as a rule, from number avyotoritetnyh carried out elders. "Aristocratic" tribes had vertiyokalnaja a judiciary, on what in the big degree have influenced meroyoprijatija the Russian administration in the North Caucasus.

In territory of the North Caucasus has been developed adatnyj court - media - torsky, intermediary or arbitration (at Kabardians - hejjashchle, at karachayoevtsev and balkartsev it was called tere, at the Ossetin - tarhon logs).

The most developed the judiciary was in Dagestan where the Arabian language when at other people of the North Caucasus sudoproizvodstyovo was oral was applied.

During the pre-revolutionary period among mountaineers were extended four kinds of the oath: on an adat, Sheriyat, kebinnaja and cleaning.

In connection with allocation of principles of legal proceedings on Northern KavkaYOze it was found out, that it differed a particularism: various rules of litigation, quantity of judges, a place of carrying out of court, system dokayozatelstv, number prisjagatelej - all these aspects of legal proceedings were not the general and uniform for all North Caucasian people.

In poreformennyj the period new courts of justice have been created: goryoskie the verbal courts operating in the Kuban and Tersky areas (except Ossetia). Their activity was based mainly on norms of an adat. These courts had the right to apply norms of the Russian legislation, in t.

ch. Not characteristic for sense of justice of the local people judicial norms, in particular, prison punishment, the reference and so forth But people seldom addressed in mountain verbal courts, since. In the people there was an opinion, that similar obyorashchenie is shameful from a position of local mentality. To new rosyosijskim to judicial tribunals concerned Vladikavkaz, Digorsky, Chechen, Kabardian, etc. courts in which it is judicial-rule of procedure in many respects were are identical with the Russian.

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A source: GOOV Islam Machrailovich. the COMMON LAW In SYSTEM of LEGAL REGULATION At the PEOPLE of NORTHERN caucasus (ISTORIKO-LEGAL RESEARCH). The DISSERTATION on competition of a scientific degree of the master of laws. Makhachkala - 2015. 2015

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