the Nature of the mechanism of maintenance of national safety and methodological approaches to definition of its concept

Complex research of the present chapter of a problem taken out in heading demands a statement of the author's approach to concept "maintenance" as it is rod in a word-combination «maintenance of national safety» and is used in its literal sense how to "provide".

It is important, for the concept "maintenance" is frequent in the scientific literature is used among with others, such (sometimes as synonyms) as a legal protection, protection, etc. we will a little bit more in detail stop on this problematics.

So, according to S.S.Alekseeva, «right protection is ­ gosudarstvennoprinuditelnaja the activity directed on realisation« regenerative »problems, namely on restoration of the broken right, maintenance of execution of the legal obligation» [370] .

In turn, N.S.Malein believes, that «right protection is formed by system of the legal rules directed on the prevention of offences and elimination of their consequences» [371] . In the subsequent works on the given problematics the scientist specifies the position: «right protection is understood as the measures provided in the law on those cases, when the right is already broken (measures of legal responsibility and other sanctions - measures of protection)». Thus the author suggests to discriminate concepts of protection and protection of the rights. Protection of the rights, from its point of view, - wider (in comparison with
protection) concept also includes all legal rules concerning the certain blessing [372] .

Along with it, the term "legal protection" also has various interpretation in the legal literature, and the legal protection is understood by a number of authors as the activity of the authorised bodies directed on restoration of the broken rights and legitimate interests.

For example, Z.V.Romovsky defines a legal protection as «realisation selected pravoprimenitelnym body of a measure of the state compulsion which is impossible besides activity of special state or public bodies» [373] . Here the legal protection co-ordinates only with the state compulsion.

L.N.Zavadsky considers, that «the legal protection is the activity of the certain bodies directed on restoration of broken or challenged rights, interests protected by the law» [374] . And in this case the author shows dejatelnostnyj the approach.

In turn, O.V.Ivanov, B.JU.Tikhonov under a legal protection understand «application jurisdiktsionnym body of the special measures directed on maintenance to the authorised person of real possibility of realisation of its right» [375] . From our point of view, the given position though reflects some essential signs of a legal protection, nevertheless does not cover all maintenance of a considered phenomenon, differs narrowness of its interpretation.

As fairly marks A.V.Stremouhov, «now as never earlier, the complete, uniform theory of a legal protection of the person is necessary,
which could become a basis for the remedial legislation of the Russian Federation and research of problems of protection and protection of human rights in all branches ­ of a science». In its opinion, the legal protection of the person is not reduced to simple addition of protection of the rights and protection of the rights; it is beyond also that and other phenomenon and gets the unique properties [376] .

As a whole scientists consider a legal protection not only as the activity of competent bodies directed on removal of obstacles in realisation of a legal status of the person, restoration of the broken rights and duties and punishment guilty for an offence, but also activity of the person, that is self-defence of the rights.

we Consider, that such approach is quite justified. Really, and in it we agree from M.V.Marhgejm, self-defence as the constitutional kind of activity, is carried out by the person in the forms not forbidden for this purpose, staticizes performance by corresponding state bodies of the duties made by it [377] .

It is thought, that opinions of scientists concerning a parity of concepts "legal protection" and "right protection" can be divided conditionally on two big groups.

Representatives of the first group, identifying protection and protection, motivate it with absence of an essential difference in the maintenance of the given concepts and aiming of investment with the right and its restoration on protection


from potential or perfect infringement [378] .

Other position consisting in differentiation of given concepts, is based on distinctions with a view of and the bases of application of corresponding measures. So, the protection purpose is not only suppression of offences, but also maintenance of the rights and legitimate interests of subjects. The basis the right protection has the rights fixed in effective standards and freedom, therefore it is carried out constantly. The legal protection basis is fulfilment of wrongful act concerning object protected by the right [379] . Agreeing with representatives of the second direction, we will specify: the right protection is carried out on a constant basis, and the legal protection is used at threat or direct infringement of the rights, freedom and legitimate interests of various subjects.

From our point of view, it is necessary to start to "provide" maintenance definition from interpretation of value of the word. S.I.Ozhegova's Explanatory dictionary so defines value of the given word: 1) process of supply someone something in necessary (sufficient) quantity; 2) possibility to make something real, vypolnimym, valid [380] .

Thus, "maintenance" should be considered as the process guaranteeing effective performance of problems for achievement of definite purposes. As a result, it is offered to define a category «legal maintenance» as scientifically proved, consecutive system of legal and other means with which help the civil society and the state carry out influence on public relations, proceeding from sequence of the problems arising before a society, and the purposes which they pursue.

Thus it is necessary to specify, that we understand as other means.

So, giving the characteristic to the mechanism of maintenance of realisation of the law, V.I.Gojman includes in its structure two groups: not legal and ­ spetsialnojuridicheskih means [381] . Following such approach, we differentiate system of legal and other means in concept of legal maintenance. The system of legal means, as a matter of fact, represents legal regulation by means of specially-legal means (normotvorchestvo, pravorealizatsija, pravoprimenenie, means of individual legal regulation, a measure of compulsory and incentive character). The group of other means is constituted by a number obespechitelnyh measures: ­ materialnotehnicheskogo, organizational-administrative, personnel, ideological character.

it is unconditional, that for maintenance of national safety special value has effective functioning of the corresponding mechanism including steady action of an is standard-legal basis, and organizational activity of system of the state governing bodies, called to carry out state function in the given sphere.

It is necessary to underline, that the legal basis of structurization and interaction of elements of a machinery of government is constituted by the current legislation differentiating institutsionalnye spheres and fixing them a parity, and also defining the legal status of the state bodies and the officials, outlining limits of their competence, a circle of functional duties and powers within the limits of system of national safety.

Thus realisation of functions in sphere of maintenance of national safety, activity realisation in the basic strategic directions is provided at the expense of consolidation of efforts and resources of public authorities, institutes of a civil society,
the national interests of the Russian Federation directed on upholding by complex use of the political, organizational, social and economic, legal, special and other measures developed within the limits of strategic planning in the Russian Federation [382] .

Research of the given mechanism creates teoretiko-methodological preconditions for the decision of the important scientific and applied problem - legislation optimisation, pravoprimenitelnoj experts with a view of increase of efficiency of functioning of directly mechanism of maintenance of national safety.

In this plan rather interesting E.V.Kirichek's judgement of the following maintenance is represented: «Globalization and other objective conditions of existence make new demands to national safety of modern Russia. Questions of maintenance of national safety never concerned especially academic problematics, however their consecutive scientific permission always had essential methodological value for political system of a society. We pay attention to that fact, that much from this, that concerns maintenance of national safety, in bolshej degree is in process of theoretical working out, rather than practical implementation. Certainly, each country as the live organism, thirsts qualitative changes, however in modern conditions it is for this purpose necessary not only the project of effective and effective system, but also the effective mechanism of its embodiment during a life» [383] .

From its part special attention it is reversible on concept of the mechanism of maintenance of national safety, meaning thus the mechanism legal. Taking into account this approach also we will begin the analysis of its nature.

Pertinently to mention, that in jurisprudence the concept of the mechanism of legal safety as «a complex of the legal means applied consistently and vzaimosvjazanno by the state bodies, the organisations and citizens with a view of achievement of a condition of security of legal system of a society is already developed. As a kernel of the mechanism of legal safety the legal activity directed on maintenance of safety of the basic legal parametres, values and legal system principles, on revealing and neutralisation of harmful natural harmful natural and other factors of environment, on the prevention of offences and other legal anomalies promoting occurrence and (or) development of legal entropy» [384] acts. However, the general-theoretical analysis of the nature, concept, the maintenance, etc. this mechanism practically is absent.

Continuing conversation on the designated problematics, we will tell that the concept "mechanism" from the etymological point of view means the internal device, set of conditions and the processes constituting any phenomenon, the device for transfer and the transformation, representing system of bodies (links) in which movement of one or several bodies (leaders) causes movement of other bodies of system [385] .

In turn, to legal understanding of the nature of the mechanism as that can promote and the reference to experience of other sciences.

So, in an economic science under a market mechanism it is understood « set of organizational structures and concrete forms of functioning (it is underlined by us - a bus) the market, management methods and rules of law, with which help manufacturers (sellers) and

consumers (buyers) consider and use particularly

conditions (market condition) developing in the market » [386] .

In a politological science, operating with concept of the mechanism political, the last is understood «as system of actions of political institutes and the organisations, intended for transformation of properties, characteristics, other parametres public (social, economic, actually political) developments in a demanded direction» [387] .

Stated allows to draw a conclusion that the main appointment of mechanisms in general (while regardless to the mechanism legal including to the mechanism of maintenance of national safety) consists in achievement by means of various means, methods and ways according to certain procedure of the corresponding purposes.

So, the jurisprudence uses concept "mechanism" for a designation of functioning and development of the various legal phenomena. In particular, distribution was received by such concepts, as «the law-making mechanism» [388] ; «the mechanism of formation of lawful behaviour» [389] ; «the legal regulation mechanism» [390] ; «the legal mechanism of management» [391] ; the general mechanism of action of the right [392] and some other [393] .

Hence, in the presence of sufficient number of updatings of legal mechanisms in the general-theoretical and branch legal literature, it would be logical to assume presence of the uniform theory (concept) of legal mechanisms. However such theory while is absent, are not developed both its methodological bases, and uniform scientific toolkit. At the same time necessity of allocation of research of legal mechanisms for an independent scientific direction has ripened for a long time, and about it it is marked in the legal doctrine [394] .

it is unconditional, the legal mechanism is the difficult system formation including components as social, legal, and political character. Elements of the given mechanism are in interaction with each other and are characterised by the co-ordinated organizational communications, thus, as a whole, constituting integrally interconnected system.

Studying of works on the given problematics [395] shows, that as a whole at the heart of the theory of legal mechanisms two basic concepts lay:

- the concept of the mechanism of action of the right (including the theory of the mechanism of legal regulation of public relations);

- the concept of the mechanism of the state (the organizational mechanism).

we Will consider the given concepts more in detail.

we will preliminary notice, that a category «the legal regulation mechanism» (further: MPR) is a fundamental general-theoretical category and some kind of a methodological basis for branch jurisprudence in studying of special mechanisms.

In this plan it is necessary to agree with J.G.Arzamasova and J.E.Nakonechnogo's such statement about a role of the mechanism of legal regulation: «the base concept« the legal regulation mechanism »became the theoretical basis defined by" a launching pad »for realisation of researches of mechanisms of legal regulation of various branches and institutes of the right and legislation branches» [396] .

In a context of integrated approach of our research productive K.V.Shundikova's position according to which studying of the mechanism of legal regulation represents «special aspect of research of the right and society legal system as a whole, their consideration in defined concerning an independent plane - from this point of view their practical work, functioning» [397] is represented also.

Accordingly, the conclusion about possibility of formation of understanding of a role of the right as active regulator of a life of society, disclosing of value of the given category as means of the decision of social problems is possible.

It is necessary to tell, that the idea about presence in the right of the self-organised mechanisms and influence of the right to public relations has been put forward in 50th years of the XX-th century in N.G.Aleksandrova's works [398] , h.p. JAvicha [399] and some other scientists.

Further it has been apprehended and has received the development in S.S.Alekseeva, A.M.Vitchenko, V.M.Gorsheneva, V.P.Kazimirchuka, A.V.Malko, V.M.Syryh, K.V.Shundikova's works and others.

J.G.Arzamasovym even is offered an original periodization of evolution of the theory (concept) of the mechanism of legal regulation. In its opinion, it is expedient to allocate following stages: 1) theory working out
rules of law, the theory of juridical facts, the theory of legal relations; 2) publication of the monography of S.S.Alekseeva «the legal regulation mechanism in the socialist state» and its discussion; 3) occurrence of researches of branch mechanisms of legal regulation; 4) working out of the independent theory of legal means [400] .

it is necessary to pay attention, that by present time in pravoponimanii has developed two basic aspects - legal and social.

the Essence of legal aspect (approach) consists «in disclosing of interrelation of the rights and duties in a public life, definitions of an essence of a legal order, forms and means of its maintenance»; social - in research of a place and a right role in a public life, its conditionality socio-economic factors, requirements of separate social groups and the population as a whole [401] .

So, V.M.Syryh pays attention to existence of the legal mechanism of legal regulation (set of the legal means applied within the limits of separate stages of process of legal regulation (law-making, pravorealizatsii and the state compulsion), and the social mechanism of legal regulation (rules of law, other legal phenomena, and also the social factors rendering on them positive or negative influence, connected by a relationship of cause and effect) [402] .

Now we will consider concept «the legal regulation mechanism» from the point of view of named above approaches in more details.

Within the limits of the legal approach the greatest distribution was received by tool theory of law (instrumentalism),
which ancestor is S.S.Alexey. According to its definition, the legal regulation mechanism is understood as the system of all legal means organised in the consecutive image taken in unity by means of which legal influence on public relations [403] is provided.

At this S.S.Alexey does not include in concept MPR activity of the competent bodies directed on realisation of the right, and considers, that «the legal regulation structure» [404] is better to designate its term. In one of works of later period it has left made definition MPR without change, having specified, that it covers a complex of fragments of the legal validity concerning dogma of the right, i.e. The complex of consistently connected legal means, and in this respect MPR has tool character [405] . Thus, the scientist here in the head of a corner puts legal means.

Probably also to agree with V.B.Isakova's opinion that MPR is a technological scheme, knowing which, the lawyer can imagine, what stages there will pass process of an embodiment of the rule of law during a life, what stops and failures can occur in this process so - in a condition to offer scientifically proved plan of increase of efficiency of legal regulation at the expense of strengthening of its basic links [406] . The scientist considers MPR as process with what we agree.

It is characteristic, that the named approach has been apprehended subsequently by many scientists.

So, S.A.mosquito the essence of the mechanism of legal regulation sees in productive, is standard-organizational influence on
public relations of all system of special legal means, and other legal phenomena [407] . In this case the author in MPR includes not only legal means, but also other legal phenomena (unfortunately, does not name them).

V.K.Babayev the legal regulation mechanism defines as set of legal means with which help legal regulation [408] is carried out. That is the author is solidary in essence with S.S.Alekseeva's opinion.

Similar definition is given by V.K.Rusinov, underlining thus


system character of set of legal means [409] .

On A.V.Malko, MPR represents system of the legal means organised in the most consecutive image with a view of overcoming of obstacles, standing on a way of satisfaction of interests of subjects of law. The author also allocates three sign MPR: the purpose, means of achievement of the purpose and productivity [410] .

Thus, characteristic methodological line of the tool approach concept use «legal means» (the legal tool) is.

we Will notice, that in a science a number of definitions of concept «legal means» is stated, however the general for them is that legal means are understood as certain set of legal establishments (tools), «embodying reguljativnuju force of the right» [411] ,

subjects of law satisfying interests and providing achievement
socially useful purposes [412] , «which real functioning leads to practical realisation objective and the right, to its implementation, achievement of final social and economic result» [413] .

It is necessary to tell, that the tool approach is often applied and in branch legal researches as as a whole it is focused on legal practice and efficiency of legal regulation.

However, we will notice, there are also works in which tool value of the right is underestimated or in general is perceived in negative light. For example, S.P.Narykova considers, that as the most unpleasant result of domination of tool approach widely presented in the general theory of law to research of the legal mechanism which was outlined at level of separate positions, is the tendency of return to well-known perception of the right as the means established and protected by a ruling class (in modern treatment - the state in the name of political elite), i.e. The political


means [414] .

Objecting such judgement, say, that tool value of the right consists not in its political conditionality, and in its use as powerful tool (mechanism) reguljativnogo the influence providing by means of legal means clearness, definiteness, kontroliruemost achievements of the purposes of social development.

As some intermediate result we will notice, that MPR is a part of legal regulation which, in turn, grows out of realisation of specially-legal functions of the right: reguljativnoj and guarding.

Accordingly, MPR is:) system of specially-legal levers of the right to a certain kind of public relations; "reference point", "scheme", "algorithm" pravotvorcheskih subjects; the tool of protection of the right, i.e. Includes not only reguljativnye, but also guarding means.

From the point of view of the sociological approach, which basis have been put in pawn in 70th years of the XX-th century of V.P.Kazimirchukom, standard instructions of laws are directed on registration of social behaviour at all levels of its action - from a society as a whole to the concrete person [415] .

it is offered to consider the granted social levels of the right as key links of the social mechanism of its action as here there is a transfer of legal establishments in social practice, that is in legal relations really developing on their basis. Finishing of rules of law and instructions to general data, or to data of narrow social group on which exclusive action of the rule of law extends, statement in the standard legal act of socially useful purpose, the is social-legal control [416] becomes elements (stages) of the mechanism of social action of the right.

At the same time, despite the settled approach to tool and sociological understanding of the mechanism of legal regulation as the basic methodological approaches, it is possible to establish presence and other (subsidiary) aspects.

So, according to S.S.Alekseeva, the psychological aspect of the mechanism of legal regulation represents a projection of ways of legal regulation to psychological sphere of the person. Value of psychological aspect of the mechanism of legal regulation, in opinion
the scientist, can be analysed through a prism of use of such legal means as objazyvanie, the permission and an interdiction [417] .

we Believe, that a choice of this or that methodological concept to which should be guided at the analysis of the mechanism of legal regulation, it is caused by specificity of the subject of regulation, i.e. features of the regulated group of public relations, and also those purposes which are put before itself by the researcher.

Such approach gives the basis to consider, that the maintenance mechanism in sphere of national safety should be considered in ­ spetsialnojuridicheskom the aspect assuming research of interaction of the basic legal elements with which help legal influence on public relations in this sphere is provided. This aspect covers all complex of the means, all legal toolkit working in the course of legal regulation, and defines normativnopravovuju ­ a basis of functioning of the mechanism of maintenance of national safety, fixed assets and ways of realisation of corresponding actions.

At the same time, the tool basis, despite all importance, cannot be unique and defining as a part of the mechanism of maintenance of national safety; important (if not to tell, defining - a bus) the place belongs also to the mechanism of the state providing organizational-functional (­ institutsionnofunktsionalnuju) a basis of realisation of activity of the state, including in sphere of national safety.

In the general view concerning the state mechanism we will notice, that now in jurisprudence there is a set of theories,
among which the greatest distribution was received: narrow, wide and functional approaches to definition of a machinery of government [418] .

the Narrow approach to definition of the mechanism of the state assumes an identification of concepts «the state mechanism» and "machinery of state". For example, V.M.Syryh defines the state mechanism as set of the state bodies carrying out the government and providing realisation of functions of the state [419] .

From the point of view of the wide approach, the state mechanism includes, besides machinery of state, material appendages. In particular, M.I.Bajtin under the state mechanism understands «penetrated by the uniform legislative principles, based on the power division, system of the state bodies having by necessary material appendages by means of which problems and state functions» [420] are carried out.

Also we will note also the so-called "functional" approach to consideration of the mechanism of the state. For example, on E.P.Grigonisu the state mechanism is a functioning of system of bodies of the state in their interrelation and interaction [421] .

In a science the point of view that the state mechanism is set of the state bodies, the enterprises and establishments in dynamics condition [422] is stated also.

Systematizing the given approaches and refracting them to a subject of our research, it is possible to draw following intermediate conclusions:

- activity of all state bodies entering into the mechanism of the state, should be lawful, that is the Constitution of the Russian Federation corresponding to positions and other laws;

- in the mechanism of the state as structural elements it is possible to allocate: the state bodies, establishments, the organisations, the enterprises, material means, the armed forces in aggregate constituting structure of the mechanism of the state, based on certain hierarchy;

- elements of structure of the mechanism of the state are in interrelation and interaction;

- each of the state bodies constituting a uniform machinery of government, is allocated by certain powers in which frameworks functions and state problems are realised.

Generalizing told above, with a view of development of the general methodological bases for definition of essence and the maintenance of the mechanism of maintenance of national safety, we consider necessary to allocate following conceptual positions.

First, the mechanism of maintenance of national safety should be considered as uniform system of legal means (tools) and the institutes providing, on the one hand, effective legal influence on public relations with a view of their streamlining, and, on the other hand, functioning of state and other bodies for their optimisation and protection.

Secondly, as to structure (structure) of the mechanism of maintenance of national safety its components have various names: elements, stages, links, stages etc. And, each of these concepts has the, certain value. So, speaking about structure of the considered mechanism to name its "stages" (stages) - means «to mark the periods in the development, consistently replacing each other». In turn, "elements", no less than "components", "links", should
specify in components, signs in the maintenance of considered concept, but they is not underlined their removability, dynamics.

Hence, at the characteristic of structure of the mechanism of maintenance of national safety methodologically true use system - static and dynamic approaches for research of its structural elements is represented.

Thirdly, from the point of view of the static approach, in the mechanism of maintenance of national safety such elements, as legal rules enter; legal relations; certificates of realisation of the rights and duties, certificates of application of the right; system of the state bodies, the purposes, problems, ways, the basic directions of maintenance of national safety and others.

Fourthly, according to the dynamic approach, the mechanism of maintenance of national safety includes a certain set of stages.

Such are the nature of the mechanism of maintenance of national safety, and also methodological approaches to definition its concepts allowing directly to pass to consideration of all circle of questions concerning concept of the mechanism of maintenance of national safety and its structure (structure); it will be made in the following paragraph.


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A source: CHAPCHIKOV SERGEY JUREVICH. the CONCEPTUAL BASES of NATIONAL SAFETY And the MECHANISM of ITS MAINTENANCE: TEORETIKO LEGAL RESEARCH. The dissertation on competition of a scientific degree of the doctor of juridical science. Kursk - 2018. 2018

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