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1. CONCEPT OF THE LEGAL SYSTEM AND THE BASIC TENDENCIES OF ITS DEVELOPMENT OF MODERN CONDITIONS

The changes occurring in social structure of the Russian society, course on market economy, deep transformations in political system insistently dictate necessity printsipiyoalnogo updatings of system of the Russian right, all its structural elements.

Transformations to a society demand creation ought juridiyocheskoj base and push the legislator to active pravotvorchestyovu in all branches that affects efficiency most prayova, it sistemnosti.

Marking this sign, still F.Engels underlined, that "in sovyoremennom the state the right should not only correspond to the general economic situation, not only to be its expression, but also to be internally adjusted expression which would not confute itself owing to internal contradictions” [1].

Existing social system of a society and the state opredeyoljaet finally this or that legal system, its internal structure. The legal system shows, it consists of what parts and as these elements correspond among themselves. To each historical
The system reflecting features sootvetsyotvujushchego of type of the state is inherent in the type of law. The legislator cannot, is any izyodavaja rules of law, to change the historical type of law, it only by means of legal instructions legally makes out requirements obyoshchestvennogo developments. Hence, at the heart of the legal system legal establishments which are grouped in it as tseyolostnye compositions lay. They reflect in the legal system such qualities as objectivity, a coordination of rules of law, their unity, distinction, ability of isolation etc. Correct explanation juriyodicheskoj essence, the maintenance and legal system structure probably only within the limits of the standard approach to understanding of the right as systems of legal rules operating in the state in them dialektiko-materiYoalisticheskoj to treatment [2].

Rules of law, besides other, provide dynamism of the legal system, do mobile its structural elements. On a measure izmeneyonija public relations there is a necessity in new juridiyocheskih the instructions reflecting these changes. Occurs kachestyovennoe filling of structural elements of the right ready to obosobleyoniju in compliance with specificity of adjustable public processes.

Unity of legal rules, their interconditionality, hayorakterizuetsja set of parametres: "first, unity vyrayozhennoj in them of the state will; secondly, with unity of legal system in which frameworks they exist and operate; thirdly, unity of the mechanism of legal regulation, its initial printsiyopov; fourthly, unity of ultimate goals and problems" [3].

Consistency of legal instructions, them is nost. A concrete definition more general provisions in less general constitute one more characteristic line of the Russian right. Here it is rather important viyodet its difference from legal system as the collective category reflecting all legal organisation of the given society. It predsyotavljaet itself set of internally adjusted legal means, establishments with which help the state renders noryomativnoe influence on public relations. The right system is its especially internal structure acting compound kompoyonentom of legal system. They correspond among themselves as a part and whole which all-round interrelation else in many respects should be studied to jurists.

Problem of system of the Russian right and. In particular, the question on criteria of its division into branches and institutes constantly is in the centre of attention of scientists-lawyers and was a point of issue of some scientific discussions. During the first of them (1938-1941 of) [4] importance of allocation of objective criterion which the legal regulation subject is has been noted, i.e. Certain set of public relations. The structure of a subject of legal regulation is constituted by following elements: subjects; objects regulated obyoshchestvennyh relations; the social facts promoting vozniknoveyoniju of corresponding relations; practical activities of people. A legal regulation subject - that sphere, on which rasprostrayonjaetsja the right, "it not a subject in sense of a thing or the person of the person,
Or actions, it is relations of people concerning things, persons and dejstyovy "[5]. The conclusion about that was result of discussion. What to construct and opyoredelit all without an exception of branch of law it is possible only in a legal regulation subject. The question on borders regulated obshchestvenyonyh relations remained opened and according to participants of discussion of such general" the classification principle "is not present and cannot be, and in each separate case it is necessary to prove scientifically and ustayonavlivat real presence of a concrete circle regulated obyoshchestvennyh relations and to outline their limits.

The real impossibility of differentiation of rules of law only in a legal regulation subject has caused requirement for searches doyopolnitelnogo sistemoobrazujushchego criterion.

Scientists have started to offer other approaches and criteria to the decision of the given problem. So, V.F.Mashera has offered as criterion of division of the legal system on branch character of sanctions of legal rules [6].

V.N.Kudryavtsev has seen other reason to ordering of a legal material, proceeding from functions or problems which are necessary for solving by means of legal regulation. Legal system division on etoyomu will give to criterion, in its opinion, only two branches: regulations of public relations and protection of these relations [7].

N.I.Korzhansky is considered, that by classification of any phenomena not to signs or properties as it belonging, cannot be nauchyo
Ache. And as criteria of division of the right to branches features of separate rules of law, them prinadyolezhnost to various legal institutions, kinds legal otvetsyotvennosti [8] can figuriyorovat properties. The author actually denies objective character of the right as social phenomenon, tears off it from real soil. Such poyozitsija leads to the statement of idea of "building" of the legal system on any, most unexpected bases.

Thus in due course it has appeared, that it is not enough one material criterion, for it is rather inconvenient to be guided only by it at differentiation of allied industries and institutes, not uchiyotyvat their interrelations in the uniform legal system. In process and perfection of public relations has arisen obvious neobhodiyomost in additional criterion for otgranichenija one branches of law from others.

Therefore during the second discussion (1955-1958 of) [9] was prizyonano necessary besides the basic criterion (a subject legal reyogulirovanija) to allocate additional criterion-method legal reyogulirovanija. It is understood as a set of methods and means with which help the state provides the behaviour of participants of legal relations necessary to it. They can be expressed in a kind predpisayonija, an interdiction, permissions, etc. Taking into account such approach were allocated
Following branches of law: constitutional, administrative, grazhyodanskoe. Criminal, remedial etc. the Questions put during the two first discussions, were considered and later.

Each method of legal regulation has the specific features. So. In the field of ground relations it is shown in that. That, first, it is characterised by specificity of occurrence, change or the termination of ground legal relations. The right polzoyovanija that or other object of the nature in overwhelming majority sluyochaev arises owing to the body administrative act gosudarstvenyonoj the power or the management which are carrying out the right of the order. Thirdly, specificity of a method of regulation of ground relations - in the system of special bodies created by the state which prizyovany to carry out the control over performance of duties by persons, isyopolzujushchimi objects of the nature. Fourthly, the regulation method zeyomelnyh relations is defined by character of sanctions. To persons, not vyyopolnjajushchim the duties and supposing infringement of rules, priyomenjajutsja is administrative-legal measures [10]. Thus Century With. JAkuYOshev proves application of an is administrative-legal method for regulation of ground legal relations. Hence, if kazhdoyomu to a subject of regulation taking into account its properties, the special method of regulation, land entitlement as is inherent in branch not sushchestvuyoet? The author besides connects a method of legal regulation with kayotegoriej a right principle. He notices, that the legal method is nichyoto other, as way of influence specifically inherent for given branch of law on the public relations, which maintenance javljayoetsja carrying out during a life of the supervising ideas directing behaviour
People in concrete branch of public relations [11]. From the told follows, that the legal regulation method is a carrying out during a life of principles of the right directing behaviour of people. But whence beyorutsja these principles and, probably, the identification of a method of legal regulation with right principles leads to method replacement pravovoyogo regulations as criterion of classification of branches of law right principles.

Specificity of a method of legal regulation of the right of social security communicates first of all with alimentary character reyoguliruemyh relations on social security [12]. Therefore predsyotavljaetsja quite proved allocation of the right social obespeyochenija as independent branch.

The method of legal regulation of such basic branch of law, as constitutional differs the big originality. At reyogulirovanii the public relations constituting bases obshchestvenyonogo of a system and a policy the general fastening, fixation of the developed phenomena, declarative instructions etc. [13] is widely used.

Representatives of the law of master and servant I and OrlovYoskij J.P. consider Nikitinsky Century, that "the general theory of law recognises that one of leading characteristics of branch methods legal reguliyorovanija public relations is connected with that. What of the beginnings reguyolirovanija - centralised or decentralised - is for

The given branch dominating "[14]. Authors on-being reduce a legal regulation method to two methods: grazhdanski - and administrayotivnopravovomu.

Presence of own method of legal regulation in sphere of the financial right is not absolutely convincingly given reason also. On metoyodu legal regulation it. At first sight, completely sovpa - J, gives with administrative law: the same method of imperious instructions. However, the administrative law does not regulate the financial relations which specificity dictates necessity of application financially-prayovovogo a method. The most part of instructions in such cases proceeds from the financially-credit bodies of the state created specially for realisation of financial activity, and these bodies are connected with other state bodies only functionally on a line fiyonansovoj activity [15]. On-being it is a question of absence at fiyonansovogo the rights of own method of legal regulation. If specificity of a method of legal regulation is based on presence of fiyonansovo-credit bodies of the state, is only functional svjazanyonyh with other state bodies it is similarly possible utyoverzhdat about presence of own method at "public health", "general educational". "Theatrical", "sanitary-epidemiologiyocheskogo" and any right. How was extensive and raznoobrayozen a legal regulation subject if does not occur transforyomatsija a method of legal regulation before its occurrence new kayochestva, there is no allocation of new branch of law from the basic.

"Parent, ' branches.

The legislator "does not create", and only searches for the best in given istoyoricheskoj to conditions a way of influence on public otnoyoshenija [16]. Freedom of choice of a method zazisit from degree of knowledge and isyopolzovanija objective laws of public relations.

Moreover, the method which choice have influenced konkretyonye conditions, will be replaced with a method which corresponds sushchnosyoti the adjustable relation and then it will take a due place as a part of the relations forming a subject of regulation of given branch of law.

According to V.D.Sorokin "at definition of concept of a method prayovovogo regulations in general, and also at designing of methods of various branches of law are used exclusively two" kirpichiyoka "- civil and administrative methods. On their basis, on a parity of methods civil and administrative law mnoyogie authors erect a method design" "branch" [17]. What not the subject defines a method with what all representatives of the given concept agree, and the method of one branch defines a method another.

It allocates following characteristic lines of a method legal reyogulirovanija:

1. The system of means constituting it is used preimushchestyovenno by the state. Probably here there is a speech about the right. After all it also is the state regulator of public relations. Probably the author doubts that. As citizens, and their associations iskljuchiyotelno seldom use the named means for regulation a cart
nikajushchih between them relations.

2. Direct conditionality a uniform subject pravovoyogo regulations which represents itself as the is social-legal environment, i.e. systems of elements co-operating among themselves.

Position it is disputable enough. JU.K.Tolstoy's argument that "the method never acted Is represented to more exact and does not represent itself as mirror reflexion of those public otnoyosheny. Which with its help are regulated. The method possesses otnosiyotelno the independent maintenance" [18].

3. The following characteristic line consists available svoeobyoraznoj. From the national point of view, it financially-juridichesyokoj basis in the form of in advance established or authorised goyosudarstvom general rules of behaviour of people - the norms constituting tseyolostnuju system which directly covers all sphere of the soyotsialno-legal environment. That is, the author understands as characteristic line of a method of legal regulation as its "basis" the right.

4. It represents itself as the major means organizovannoyogo influence of social operating systems on external and vnutrenyonjuju environment, i.e. the legal regulation method is the major spoyosob "the organised influence" state bodies on obyoshchestvennye relations.

It is necessary to notice, that the specified characteristic lines do not reflect all palette of specificity of a method of legal regulation as obshcheprayovovoj a category.

Detailed and more fruitful analysis of this phenomenon

Has undertaken A.M.Vitchenko.

It was offered to them to consider a problem of legal methods in two aspects: as the general method inherent to the legal system as a whole and as a branch method of legal regulation.

The author understands complex concept which covers the major elements of legal influence of the right to public relations as the components as the general method. StruktuYOru a legal method constitute the legal means taken in sovoyokupnosti and establishing:

1. Borders of adjustable relations, objects on which right action can be directed.

2. State-imperious instructions concerning behaviour of the subjects, providing for participants of public relations of the right and the duties fixed in normative acts.

3. Investment of participants of adjustable relations pravosposobyonostju and capacity.

4. Definition of the state coercive measures in cases nayorushenija the established rights and the law and order [19].

The basic purpose of the general legal method consists in that. That the state will organise and provides positive dejatelyonost subjects according to instructions of rules of law, vosyopityvaet in them discipline and activity, establishes indissoluble connection between the rights and duties of participants obshchestyovennyh relations, orders them. But if this order are broken. That comes into effect compulsory property of the general method, which appointment consists in forcing offenders
To lawful behaviour to re-educate them. To restore narushenyonoe the right.

Branch method - special means and a way specifically juriyodicheskogo influences of the right to public relations.

In what image a legal regulation subject obuslavlivayoet a legal regulation method if the method is a set of legal measures. Finally offered by the legislator?

Material requirements cause the state will, and this will expressed z normative acts, defines the maintenance and structure of a method of legal regulation. The legislator on the basis of the learnt law formulates a certain method, and povsedyonevnaja life practice in adjustable relations prompts, kayokie corrective amendments should be brought in this or that element of a method.

The legal method as a whole is shown by means of two major categories - through the rules of law constituting in the set branch of law, and legal relations [20]. In what image we obnaruyozhivaem a specific method of legal regulation - from the analysis of rules of law? Hardly. Revealing of a branch method should begin not with separate norm, and from the rules of law constituting separate otyorasl. And the public relations regulated by given branch prayova. As in the rules of law constituting separate branch, and in corresponding legal relations it is possible to reveal certain groups of legal receptions.

A.M.Vitchenko rather successfully allocates four groups of legal receptions which in aggregate characterise specific svoyoeobrazie a branch method of legal regulation:

1. A legal status of subjects in sphere regulated otnoshe -
ny. It is characterised by an establishment of the legal bond of subjects with the state and with adjustable relations. It is reached by fastening to them by the general and special franchise.

2. The juridical fact, as the basis of occurrence, changes or the terminations of legal relations. And in the literature it is noticed, that the typical bases of occurrence, change or the termination of legal relations [21] are inherent in each branch of law only. napriyomer. These are offences in criminal law.

3. Receptions of formation of rights and legal objayozannostej. Fixed in dispositions of rules of law define razyolichnyj character of interrelations between subjects.

4. Receptions of protection of rights and maintenance of legal obligations. The, typical measures of protection and maintenance as a rule are inherent in separate branches of law. For example, the penalty in grazhyodanskom the right, imprisonment in criminal law, administrative arrest in administrative law, etc. Besides is necessary obrayotit attention to that. Who posesses the reduction initiative in dviyozhenie protective measures.

Thus. The branch method of legal regulation represents set of legal receptions, means and the ways reflecting an originality of influence of branch of law on obyoshchestvennye of the relation. Thus it is necessary to mean, that at their regulation, as a rule, the same legal reception primenjayoetsja as one branch of law, and another. Despite it. The structure of a branch method remains invariable, and separate prayovovye receptions can pass from one legal method to another
mu. Not destroying its structure [22].

Branch methods of legal regulation concern: impeyorativnyj. Optional, incentive, uchreditelno-zakrepitelYonyj. Recommendatory, a method of an autonomy and equality of the parties, alimenyotarnyj.

The imperative method is a method of imperious instructions, soderzhayoshchy in itself, except norms-interdictions, also mandatory provisions. It isyopolzuetsja mainly in criminal, administrative and nekotoyoryh other branches of law though it is inherent in all without an exception otrasyoljam the rights, is through.

The optional method gives to subjects known alternative possibility of a choice of variants of behaviour within the limits of the law, predostavyoljaet to subjects the big independence, gives the chance dogovoyoritsja. This method in bolshej is inherent in degree civil, to the commercial law and t.d. Though it is used and in other branches.

The uchreditelno-fixing method is inherent in a constitutional law and assumes absence of sanctions in rules of law.

As an example of application of an imperative method it is possible priyovesti the positions containing in item 41 of the Code of RSFSR about administyorativnyh offences: "Infringement by the official predprijayotija. Establishments, the organisations irrespective of patterns of ownership zayokonodatelstva the Russian Federation about work to the legislation of the Russian Federation on a labour safety amercement at the rate to hundred minimum wage rates" attracts, item 13 UK the Russian Federation:
"The citizens of the Russian Federation who has committed a crime on terriyotorii of the foreign state, do not come under to delivery to it gosuyodarstvu", item 102 GPK RSFSR: "the Right to fulfilment of legal proceedings is repaid with the expiration statutory or naznayochennogo term court”.

The optional method is brightly visible in item 409 GK the Russian Federation: "On soglasheyoniju the parties the obligation can be ceased granting instead of compensation execution (payment of money, assignation, etc.). The size, terms and an order of granting of a compensation ustanavyolivaetsja the parties", in item 120 GPK RSFSR: "the Parties can on soglayosheniju change among themselves the venue for the given case".

Uchreditelno-fixing method it is possible to illustrate poyolozheniem item 10 of the Constitution of the Russian Federation: "the Government in RossijsYOkoj Federations is carried out on the basis of division on zakonodatelyonuju. Executive and judicial. Bodies legislative, ispolniyotelnoj and the judicial authority are independent", item 68 of the Constitution of the Russian Federation: "1. The State language of the Russian Federation on all it terriyotorii is Russian".

The encouragement method is peculiar basically to the law of master and servant where the preferential systems directed on stimulation moralyonoj and a material interest of workers operate, increase of the qualification by them, acquisition of new trades etc. Action of this method covers also administrative law branch when it is a question of rewarding of citizens by awards and medals, assignment of honorary titles.

In the agricultural right the method of recommendations with which help the state by the organizational help and soyodejstvija builds the relations with farmer, collective-farm and others is applied

The agricultural organisations.

The social security right mediates a circle of the original public relations carrying gratuitous, bezekvivalentnyj. Charitable character. Specificity of the named relations has found the reflexion in a method of legal regulation of the given branch of law which can be characterised as state obespeyochenie invalid and other persons monetary payments and privileges.

Opening essence of the listed methods, it is necessary to remember, that methods in the pure state do not exist.

The categorical interdiction constituting a basis imperative meyotoda. Inherent criminal, administrative, to other branches of law, does not exclude use, for example, a method of recommendations.

Use of an optional method in item 22 of the Code of RSFSR about the administrative violations, granting the right to the body (official), authorised to solve business is looked through, osvoboyodit the infringer from administrative responsibility and to be limited to the oral remark, in item 123 of the Customs code of the Russian Federation. Resolving payment of customs payments both in currency of the Russian Federation, and in foreign currencies.

The optional method inherent in civil law, not iskljuchayoet elements of the imperative method used, for example, insyotitutom of invalidity of transactions (item 166-180 GK the Russian Federation), and also meyotoda the encouragement belonging to institutes of the public promise nagyorady (gl. 56 GK the Russian Federation) and public competition (gl. 57 GK the Russian Federation).

The family law possesses as an optional method, for example, to fixed items 41 KoBS RSFSR, assigning to the spouse at divorce of the rights to preservation or surname change, and an imperative method, for example, obliging, item 67 KoBS RSFSR parents to contain minor children and netrudospoyo
sobnyh the full age children requiring the help.

To a question of the legal system scientists-jurists have returned during the discussion spent to 1982 within the limits of session of "the Round table" in Zvenigorode and shined on magazine pages "the state SovetsYokoe and the right" [23].

In their unanimous opinion the legislation of that period became much more volume and branched out. It demanded deep judgement, including from the point of view of its structure, structure, the general properties. Thereupon huge value has got strengthening sistemnosti the rights, its integrated approach, the adjusted action of all its branches and institutes.

Practically anybody from scientists did not deny objectivity of the legal system since it is objective not only owing to real it sushchestvoyovanija. But also in the sense that it is predetermined by character obshchestvenyonyh relations which demand the corresponding legal form.

But some jurists have considered necessary to expand quantity of criteria of the legal system. For example, V.F.Jakovlev has suggested to kriteyorijam legal systems to carry: a subject (material criterion), a method and controlling instrument (legal criteria). And except these, so-called "main" criteria, the author has allocated also doyopolnitelnye. In which quality can be used otrasleyovye principles and regulation functions.

P.B.Evgrafov, not denying value of a subject legal reguliyorovanija. To the place of a legal regulation method as criterion vyyodelenija branches of law were put by a legal regime of regulation and ohyorany the public relations which specificity is in direct dependence on ways of existence and expression of norms sootvetsyo
tvujushchih branches.

V.K.Mamutov specified in insufficiency of use of a method of legal regulation as criterion of division of the right to branches and has suggested to think over use at the decision probyolemy the rights of such concepts, as object, the purpose and the legal regulation maintenance.

Century of Beljaev has seen in kachestze criterion of allocation of branch nayolichie independent responsibility, possibility the otrasleyovymi in the ways to provide effectiveness of own commands. According to the author, it is not casual those branches of law, independence koyotoryh does not cause disputes, are characterised by presence own poyotentsiala maintenance of effectiveness of the commands, i.e. have sobsyotvennyj the institute of responsibility which is their primary, tsentyoralnym institute, predetermining concrete parametres of all other, secondary, derivative institutes of the given branch.

"Thus, branch of law it is possible more strictly, than on kriyoterijam a subject and a method, to discriminate to deeper sign - to presence or absence of institute own branch otvetsyotvennosti. The responsibility institute, its mode are initial, parent in relation to derivative, secondary - corresponding branch of the legislation (right)" [24]. In other words, criminal law - from the criminal liability, instead of criminal otyovetstvennost - from criminal law. The history of development of the Soviet jurisprudence, according to the author, gives a lot of material for vyyovoda that this or that new kind otyovetstvennosti and only at first is established then there were at least formal

Occasions to speak about a birth of this or that branch of law.

The right as one of specific regulators public otyonosheny assumes presence of means of compulsion for execution of the instructions which role is played by sanctions of rules of law. Sanctions or a liability of infringement of legal instructions should be adequate to a damage put by offences, that is they follow from a kind of those public relations which urged to protect. If to follow logic of the author in the beginning byyola the death penalty is thought up, and then the society has reflected: what to create system of public relations at which it it is possible priyomenit. It is difficult to imagine a society, sorientirovannoe on sayomounichtozhenie. Besides institutes of responsibility different otrasyolej the rights know similar kinds of responsibility, for example, the penalty, shoyozhie principles of their application and nevertheless concrete institutes otyovetstvennosti belong to corresponding branches of law.

N.V.Vitruk has carried to criteria of division of the right to branches pravoyovye principles which give the chance to define "legitimacy" of those or other rules of law of the given branch, the purpose legal reguliyorovanija and a legal regime.

I.e. Abova has suggested to take into consideration social tsenyonost. Object, the purpose, round which and for the sake of which there is a grouping of rules of law in branch [25].

It is curious, that naming additional criteria of differentiation of the legal system on branch, anybody from scientists has not illustrated action of these criteria on an example of all branches of the legal system.

Let's consider some named categories in quality dopolniyo
telnyh criteria of the legal system.

1. Controlling instrument (V.F.Jakovlev. P.B.Evgrafov) and meyohanizm legal regulation. Under the mechanism legal reguliroyovanija. As is known, set of the legal means taken in unity which influence on public otnoyoshenija is understood:

Rules of law and right principles;

Certificates of interpretation of rules of law;

Certificates of application of the right;

Legal relations, rights and legal objazanyonosti.

Probably V.F.Jakovlev understands as "controlling instrument" something distinct from "the legal regulation mechanism", but does not open sense of this category, or he tries to prove otneyosenie rules of law to various branches, proceeding from rules of law, certificates of their interpretation and application certificates.

2. Object and the legal regulation maintenance (V.K.Mamutov. I.e. Abova). The object of legal regulation is a structural element of a subject of legal regulation (these are subjects, the world around phenomena in which occasion people enter in vzaimootnosheyonija with each other and to which show the interest).

In 1939 M.Arzhanov wrote, that "for example, the property on any thing can be a basis of legal relations which are fixed by the norms carried both to state, and to trudoyovomu, both to collective-farm, and to administrative, and to other branches of our right" [26].

Let's imagine the legal system constructed on the basis kriyoterija of object of legal regulation. It will be the branches of law regulating the relations, developing round securities, services, the weapon, pipelines, dwellings, church, referenda etc., etc. And regulation of all relations concerning concrete object will be collected from the point of view of state, civil, ugoyolovnogo etc. branches of law in their modern understanding.

The legal regulation maintenance consists in influence on behaviour of the person. In the course of this influence the possibilities which have been put in pawn in legal system and in the organisation dejayotelnosti of the state bodies are realised, directed on realisation prayova (the information of subjects of law, interpretation of rules of law, the control over their execution, application of sanctions, etc.) is not clear, what obrayozom the legal regulation maintenance as the mechanism legal reyogulirovanija can serve as criterion of division of the right to branches.

3. Legal regulation principles (L.R.Sjukijajnen. N.V.Vit of hands, B.L.Nazarov. G.L.Znamensky).

Right principles are basic beginnings, the key ideas of the right defining and expressing its essence. Principles share on obshchepravovye, interbranch and branch. The science reveals, studies to systematises right principles as qualities integrally inherent in the right.

"The same people who establish public otnosheyonija according to development of their production of goods, create also principles, ideas and categories according to the obshchestvenyonym to relations" [27]. Principles, thus, accumulate an essence me -

toda regulations of already developed public relations. javljajuyoshchihsja a subject of legal regulation also cannot be sistemoobyorazujushchim criterion.

4. A legal regime - collective concept, elements kotoroyogo are: legal principles; the purposes; aksiologicheskie estimations; so-called "essential characteristics of subjects and legal objects"; ways and legal regulation means. Whether the mechanical set of casual characteristics of the legal phenomena can serve sistemoobrazujushchim as criterion? It is thought, that is not present. Since all of them - an integral part of a legal matter also are absorbed either a subject, or a legal regulation method.

5. The legal regulation purpose (V.K.Mamutov. L. R.Sjukijaj-nen, N.V.Vitruk. B.L.Nazarov. G.L.Znamensky). Aim in the right "is ideal predetermination of desirable result povedeyonija people in a society" [28] and acts as reliable force, which pobuzhyodaet to due behaviour of people in their dialogue with each other. SredsYOtva. The purposes necessary for realisation, represent itself as svjazyyovajushchego a link between the subject and object of its activity, napravyolennoj on achievement of the necessary result. The right purpose defines those legal means with which help this purpose is reached.

The purpose, as well as problems in the right traditionally contact funktsijayomi the rights. Right functions can be subdivided into kinds depending on they solve what primary goals. The major problem sisteyomy the rights of any civilised country - streamlining of public relations by means of reguljativnoj functions. The second important problem of the right is protection of adjustable public relations from razyolichnogo sorts of encroachments from offenders with the help

Guarding function.

It is possible to consider as the purpose of legal regulation of public relations the law and order also. It is difficult to put categories of the purpose and zayodach to systematisation of branches of law since in any interpretation we come back to a category of public relations, anyhow reyoguliruemyh the right.

6. Social value for the sake of which there is a grouping of norms in branch (I.e. Abova).

It is represented, what any legal education possesses opreyodelennoj social value but how it is possible to allocate this or that kind of social value defining branch of law? How at pomoyoshchi criterion of social value to carry one rules of law to konstiyotutsionnomu to the right, others to civil or one to criminal, and others to family-marriage?

Not clearly, that the author means under "social value", probably social value of object of legal regulation, or social value of the public relations regulated by this or that branch of law, or something another. Introduction sotsiologiches - ki-estimated categories as classification criterion from the point of view of ordering of rules of law gives nothing.

7. A certain originality V.G.BeYoljaeva's offer classification criterion differs to consider presence of "independent responsibility". Two words the author sweeps aside state law as branch of law. Putting forward responsibility institute in kayochestve central, all other derivative institutes of the given branch predetermining concrete parametres, the author ignores reyoguljativnuju right function. Besides, it would be desirable to be convinced on a concrete example when this or that at first is established noyovyj a kind of responsibility and only then appeared at least formalyo
nye occasions to speak about a birth of this or that branch of law.

Having analysed the stated points of view and highly appreciating poyopytki the creative approach to a problem of division of the right to branches, it is represented nevertheless impossible to recognise any of predyolozhennyh categories as additional or the basic sisyotemoobrazujushchego criterion.

Far not all scientists feel a dissatisfaction klassichesyokimi criteria of division of the right to branches.

For example, S.N.bratus approves, that "being based on that. That a method - essential display of the subject, its basic lines and the properties, acting as though outside in relation to a subject with a view of its deeper knowledge, I believe, as practice, and the legal regulation theory proves necessity to start with unity of a subject and a regulation method" [29].

N.A.Bobrova, not calling into question presence of a subject and a legal regulation method as classification criteria, glavensyotvujushchuju a role has given to a legal regulation method as vnutripra - vovoj to specificity of "influencing possibilities of the right", shown as a specific legal regime of its structural elements since objective requirements are reflected in the right exclusively through inyotellektualno-strong-willed pravotvorcheskuju activity. In our opinion the author supposes mixture of concepts objective and subjective in the right.

The subjective party of the right consists that it grow out of conscious activity of the person and a society. But the right rather irrespective of public consciousness, since at -

chinoj its occurrence, existence and application is sosyotojanie relations of production, specificity of the right is predetermined by specificity of industrial interrelations. However, economic zayokony are not transferred to the right mechanically. "In everyone separate sluyochae the economic facts to receive the sanction in the form of the law should take the form of legal motive” [30]. The method expresses speyotsifiku regulations of a certain kind of relations. But the legal regulation method develops what obrayozom?

V.F.Jakovlev sees this phenomenon through a prism of rules of law which are created, accepted by people, grow out of their conscious activity.

Relations regulated by the right, being display and the form of relations of production, can be invested only in such prayovovuju the form which corresponds underlying strong-willed otnoyosheny to objective laws, and consciousness of the legislator, priniyomajushchego legal decisions, is predetermined state intereyosami. Developing in concrete economic conditions [31].

If finally specificity of public relations opreyodeljaet their legal regime oposredovanija not the method legal reyogulirovanija defines a kind of public relations or a subject prayovovogo regulations, and on the contrary.

The method accumulates in itself all maintenance of the branch of law, all its rules of behaviour from the point of view of properties which specify in specific ways of influence on a subject. A method core - qualitatively original synthesis of commands caused by a subject.

Permissions and interdictions.

Under V.B.Isakova's fair remark a subject and a method prayovovogo regulations at all complexity both their ambiguity poniyomanija and applications, have passed test as criteria postyoroenija legal systems [32].

Legislation rapid development, desire of separate scientists to prove presence of new branches of law has led to formation neyoordinarnoj the points of view on the legal system. So. TS.A.Jampolsky otyovergla criteria of division of the right to branches - a subject and a legal regulation method - as insolvent since "actually we do not adhere proclaimed and in words esteemed predmeyota to legal regulation as uniform principle of designing of branches". She considers, that the branch is not is immanent division of a legal fabric. Such division, the basic eleyomentom served by the rule of law. In favour of the given concept as the author considers, that testifies. That we under the influence of the life requirement are forced to break the branches of law created by us, we develop complex target programs of "superstructure" over branches, for example the law of torts, etc., branches as in the right are not present those [33].

The right system exists, but not as system of branches, and as system of rules of law strongly interconnected in a single whole. These norms, in an ideal, should be not only are interconnected, but also vzaimosoglasovany, to constitute the uniform, harmonious whole.

So, the legal system is a system of legal instructions, kotoyorye it is necessary to study, classify and group for the decision

Various problems.

From the point of view of penetration into depth considered javleyonija such process is certainly necessary. But the category "legal system" has been offered proceeding from especially practical problems - as model of construction of system of the legislation, as means of studying and perfection of system of the legislation. And if, according to TS.A.Jampolsky, the problem of lawyers consists in "creation vzaimosogyolasovannosti norms" it would be desirable to learn - as. On what kriteyoriju this interconsistency for what it is necessary is defined and on what basis we should apply this or that norm on prakyotike [34].

L.B.Tiunova suggests to "specify" traditional representation about the legal system: "branches and right institutes should be considered as the independent formations which are beyond system of norms and not being therefore its elements... System of legal rules and branch division of the right -" crossed ", but not tozhdestyovennye the structures entering into legal system which properties are reflected and in system of norms, and on branch structure of the right" [35].

Thus, not denying internal structure of system prayo
va, the author deduces it for system frameworks, considering as the independent phenomenon. On the other hand the legal system is "system of norms" which has no, according to the author, internal structure. In that case sisyotema norms - their mechanical set.

R.Z.Livshits, denying value of a subject and a legal regulation method as classification criteria of division of the right to branches, notices, that it is necessary to recognise as the largest partitionings of sterns legislation branches in which norms are consolidated first of all in a subject and a regulation method. Otmetja neobhodiyomost and possibility of construction of the legal system, the author does neozhiyodannoe the offer: "In existing system of the legislation and in structure of its separate branches is much nesoglasovannostej. They should be in the long term eliminated. Thereby ideal moyodel legislation systems becomes its real model" [36]. What according to the author there is "an ideal model of system zakonodatelstyova"? In our opinion this term R.Z.Livshits designates the legal system, at the same time denying for it such qualities as "scientific validity and logicality" [37].

Mixture of concepts "branch of law" and "legislation branch" leads R.Z.Livshits to a conclusion about that. That if a subject, concrete group of public relations - a defining sign of branch one should correspond to each such group and only one otyorasl. Actually such conformity is not present. It is impossible predstayovit for itself of any group of the relations regulated recognised otyorasljami of the right (property, administrative, labour, financial

Etc. relations) which would be regulated only by one otyoraslju. In regulation of property both administrative relations participate also the law of master and servant, both ground and criminal, etc. the Author, probably, supposes identity of concepts "public relations" and "object of legal regulation". It is possible to tell, that the right is a state regulator of public relations (communications) on povoyodu various objects (the earth, the finance, health etc.). Legal system negation is impossible at least also because zakonodatelstyovo is not the unique source of law and norms, not predstavyolennye in acts, but real-life (istochniyokom which, for example, are dogovory with standard soderzhaniyoem) can be inherent in branches of law and not enter in so nazyvaeyomuju "ideal model of system of the legislation".

Short generalising an essence of the discussions devoted to the legal system, neyoobhodimo to tell the following.

The first discussion (1938-1941 of) has allocated in quality osnovayonija divisions of the right into branches a legal regulation subject, having noticed, that the method is additional criterion, as proizyovodnyj from a subject.

Discussion (1955-1958 of), not shaking the importance of criteria of division of the legal system on branch - a subject and a legal regulation method, with special force has underlined value of a method pravovoyogo regulations and has drawn attention of scientists to a problem sovershensyotvovanija of legislation system.

Discussion of 1982 has made an attempt to find the new moment in business of perfection of system of the legislation taking into account allocation of new priority criteria of division of the right to branches, not otkayozyvajas. At the same time, from the fundamental positions developed during first two discussions.

It is available, thus, continuity of the basic ideas, vyraboyotannyh the Russian scientists - lawyers for many - decades.

We divide the point of view according to which the legal system is caused by system of public relations s a science problem - its knowledge.

At the same time. The legal system is not the static and fallen asleep matter, on the contrary, it - the phenomenon dynamical, its development and izmeyonenie goes after development of public Relations (and not everyones, but only requiring z legal regu^rovanii). The legal system structure is rich, mnogoelementna, it is possible to speak, for example, about division of branches of law on remedial and / material, rassyomatrivat and other aspects, cuts of the studied phenomenon.

Internal transformations of system праві - process zakonomeryonyj. Reforms in social and economic cφep∣e cause such necessity. There is a gradual accumulation same noryomativnogo a material requiring finally in isolation and unification.

Recently in system of the Russian right, along with trayoditsionnymi. There was a number of new branches - the customs right, a clod - lj mercheskoe the right, the bank right and t. jy All these branch strukyotury have incorporated numerous features of intrafederal relations, have reflected interests and an originality of their legal status [subjects. In normative acts of the given branches many are considered probyolemy social and economic development of Russia on modern etayope. These problems in many respects define the basic tendencies of development of system of the Russian right. It is possible to carry to their number obuslovlenyonost the modern legal system market relations, it natselenyonost in private property sphere, more detailed regulation of the democratic rights and freedom of the Russian citizens, expansion sis -

Themes of the right of the Russian Federation at the expense of its updating subektivnoyogo structure, rapprochement of system of the Russian right with international law.

Besides, the big impact makes on formation of new branches of law development of scientific and technical progress which covers various spheres of our life therefore skladyyovajutsja, for example, such branches of law as the nuclear, space, computer right and legal institutions corresponding to them.

Conditionality of the modern legal system market otnosheniyojami is shown not only in occurrence of new branches of law, but also in expansion and ordering customs, insurance, tax laws, substantial growth of norms of civil law, occurrence of norms of criminal law, before unknown persons sovetsyokomu to the legislation and concerning crimes in sphere ekonomiyocheskoj activity and crimes against interests of service in komyomercheskih and other organisations (item 169 UK the Russian Federation Hindrance of lawful enterprise activity, item 182 UK the Russian Federation False advertising, item 196 UK the Russian Federation Deliberate bankruptcy, item 204 UK the Russian Federation Commercial payoff etc.) is available.

The aiming of the modern legal system in sphere private sobsyotvennosti is expressed first of all in its recognition on a level with other patterns of ownership (item 34-36 of the Constitution of the Russian Federation, item 212 GK the Russian Federation), in possibility of privatisation state and municipal imuyoshchestva (item 217 GK the Russian Federation), in occurrence of institute of the rent (gl. 33 GK the Russian Federation), institute of financial rent (leasing) (item 665-670 GK the Russian Federation), agency service institute (gl. 52 GK the Russian Federation), institute of commercial concession (gl. 54 GK the Russian Federation), etc. the Specified tendency was showed in the family law r creation of institute of a contractual mode of property of spouses (гл.8 the Family code of the Russian Federation), in acceptance of some Hugo - articles

lovnogo the code, directed on protection private sobstvennosyoti (item 169. 178, 179. 183 UK the Russian Federation, etc.). In other branches of law.

More detailed regulation of the democratic rights and freedom of the Russian citizens is fixed in chapter 2 of the Constitution of the Russian Federation. Which, in particular, named such rights and freedom of which did not know KonstiYOtutsija the USSR 1977 - prazo on enterprise activity (item 34). The right of a private property (item 35). The right of a private property to the earth (item 36). The right to strike (item 37), the right to favorable environment (item 42), the right to address in not state bodies on protection of the rights and freedom of the citizen (item 46). The right to a dual citizenship (item 62), etc.

Expansion of the legal system of the Russian Federation for the account obnovyolenija its subject structure it is connected with objective process of transformation of the Russian statehood, expansion of the rights subyoektov the Federations, fixed in chapter 3 of the Constitution of the Russian Federation. Change of the status of the majority of subjects of Federation has entailed them buryonuju legislative activity. Fastening in item 66 of the Constitution of the Russian Federation of an order of definition of the status of the subject of Federation by the Constitution of the Russian Federation and the Constitution (Charter) of the subject of Federation priveyolo to domination of local interests over obshchefederalnymi probleyomami is thought, that, has strengthened rupture of economic relations, easing of the central power.

Has amplified kollizionnost the rights, chts it is caused by divergences or contradictions between separate regulatory legal acts. PriYOchiny legal collisions carry as objective character - protiyovorechivost, dynamism and variability of public relations, reguyoliruemyh rules of law, and have subjective roots, zakljuchajuyoshchiesja in political strike, konjunkturnssti. Lobbyism, opposition of various structures of the power, etc. [38] Conflict process neobyohodimo to consider natural and inevitable in the light of development and izmeyonenija public relations, but it is necessary to put a maximum of efforts for elimination of influence of negative factors on development sisyotemy legislations and the rights.

Rapprochement of system of the Russian right with international law as one of the basic tendencies of development of system of the Russian right is in the centre of attention of the Russian scientists [39].

Item 4 of item 15 of the Constitution of the Russian Federation for the first time in history Russia has fixed position according to which "the Conventional principles and norms mezhyodunarodnogo the rights and international treaties of the Russian Federation are a component of its legal system. If the international treaty of the Russian Federation establishes other rules, than preyodusmotrennye by the law rules international dogoyovora" are applied. The constitutional court of the Russian Federation in the decision from July, 31st, 1995 has underlined, that "Authorities in the activity are connected both internal, and international law" [40].

It is necessary to notice, that the international law priority over national admits area of humanitarian relations, grazhyodanstva, the rights and freedom of the person. Development of legal system of each state does not pass is closed. The problems facing sovreyomennymi to the states in the world are similar, that objectively demands an exchange

World experience, uses of its achievements. As the right javyoljaetsja the major communicative means at this level creation of uniform legal and information international space is represented especially important, that, from its part, will facilitate a problem facing to Russia - integration in miyorovoe community. It is not necessary to forget, however, that the international law is not included into the national legal system, regulates mezhgosuyodarstvennye. Instead of internal relations.

The legal system is influenced by the legislation of the CIS. For here it is available essential motions to formation new unifitsiroyovannyh acts.

Many decades of the state which were a part of Soviet Union, formed uniform legal space and now integration requirements are realised as dominating [41]. The uniform understanding of the right and the law facilitates dialogue between goyosudarstvami. Prevents creation of conflict situations. Work on creation of the modelling codes having recommendatory character for the CIS countries is with that end in view spent. The modelling Grazhyodansky code is created, there passes discussion Criminal and Criminally-protsesyosualnogo the codes, called to form base, a basis for creation of similar codes in the CIS countries [42].

The position of some authors is represented wrong, sogyolasno which in the legal system all changes in legislation system since differently ostensibly it is necessary to squeeze should be reflected
Legislation roughly developing in last decades in the stiffened legal structure [43]. In our opinion, the legal system and legislation system correspond as the maintenance and the form, and it at all does not mean, that the legal system is considered as something initially given, and system real-life zakonodatelstyova - as secondary.

The curious argument in this occasion results A.V.Mickiewicz, believing, that legal system deducing for legislation frameworks practically means its existence behind frameworks of the right as the right is created not by a science, and the state [44].

However, the legal system as structure and interaction of all its parts really frequently is formed behind frameworks zakonodatelyostva (to take, for example. England where the legal system exists, and the legislation system in our understanding - is not present), and nobody utyoverzhdaet. That the right is created by a science, and as to the state, as legislator it really publishes rules of law, but "does not build" branch of law even if to understand as it kodifitsirovanyonye certificates. Long time Russia did not possess administrative kodekyosom. The social security right not kodifitsirovano and until now, and Air code presence yet does not mean branch presence "vozyodushnogo" the right.

S.N.bratusja's conclusion that the problem of an establishment of a proper correlation between sisteyomoj and legislation system can find the rights optimum reyoshenie is represented convincing thereupon. If the legislation system is in exact to a soya
otvetstvii with the legal system [45].

At the same time, the legal system and legislation system are not identical.

Between them there are the essential distinctions consisting in those. That:

First, a primary element of the legal system is the norm, and a primary element of system of the legislation - standard-pravoyovoj certificate. Legal rules of branches of law are used in a various combination in various regulatory legal acts. Following variants of a parity of branches of law and the legislation are thus possible:

1) the branch of law coincides with legislation branch (ugoyolovnoe, civil, administrative law, etc.);

2) the branch of law is, is not present branch of the legislation (the social security right);

3) branches of law are not present. And the legislation branch exists (the Air code of RSFSR, the transport legislation), thus in most cases legislation branches develop of norms of various branches of law;

Secondly, the legislation system on volume of the material presented to it is wider than the legal system, since. Includes polozheyonija. Not being legal (for example, proving motives, tseyoli editions of legal acts, the purposes to which the legislator, etc. aspires.);

Thirdly, unlike division of the right into branches and institutes in which basis the subject and a method of legal regulation lays, legislation branches are allocated only in a subject of the legal

Regulations;

Fourthly, the internal structure of the legal system does not coincide with internal structure of system of the legislation. If under vertiyokalnoj right structure its division into branches, instiyotuty is understood. Norms and t.d. That the vertical structure of system zakonodayotelstva is under construction according to a validity of normativyono-legal certificates, the competence of body publishing them of system of subjects normotvorchestva;

Fifthly, if the legal system has objective character the legislation system in bolshej to degree is subject subektivnoyomu to the factor;

Sixthly, the legal system includes norms, not soderzhashchieyosja in regulatory legal acts, and having, for example, the istochyonikom legal precedent.

Proper correlation establishment between the legal system and legislation system - important not only theoretical, but also a practical problem. Its correct decision will allow to provide availability, reduction of plurality, duplication of certificates, their coordination and correct application in practice [46].

Thus, the legal system is dynamical, objectively suyoshchestvujushchee the structure of the right characterised by a coordination, interconditionality and interaction of the norms constituting it subdivided according to a subject and a method legal reyogulirovanija of public relations on branch and institutes.

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A source: Kirimova Elena Andreevna. the LEGAL INSTITUTION / teoretiko-legal research / the Dissertation on competition of a scientific degree of the master of laws. Saratov -.

More on topic 1. CONCEPT OF THE LEGAL SYSTEM AND THE BASIC TENDENCIES OF ITS DEVELOPMENT OF MODERN CONDITIONS:

  1. 3. THE BASIC TENDENCIES OF FORMATION AND DEVELOPMENT OF LEGAL INSTITUTIONS IN MODERN CONDITIONS
  2. 6.1. The basic tendencies of transformation of relations of the property * at microlevel in modern conditions
  3. 1.1. The basic tendencies of a direction of development of modern international relations
  4. Kleymenov Ekaterina Vladimirovna. the CONSTITUTION of the RUSSIAN FEDERATION In the light of the BASIC TENDENCIES of DEVELOPMENT of MODERN LEGAL CULTURE. The dissertation on competition of a scientific degree of the master of laws. St.-Petersburg - 2001, 2001
  5. the Basic legal tendencies of liberalisation of international trade in services in the conditions of market globalisation
  6. § 4. The basic tendencies of development of legal positivism after the pure doctrine about the right
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  8. § 3. Prospects of development of subinstitute of independent anticorruption examination of standard legal acts in the conditions of influence of the innovative concept of management of system «Open government»
  9. the concept and the system of the mechanism of transformations in the conditions of dynamic development of industrial enterprise
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  13. § 1.2.2. The basic directions and problems of international legal cooperation of the states in the field of health protection in modern conditions