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Lecture notes, cheat sheets
Theory of Government and Rights. Cheat sheet: briefly, the most important
Directory / Lecture notes, cheat sheets Table of contents
1. SUBJECT AND METHODOLOGY OF THP Subject of TGP - general patterns of emergence, existence and development of the state and law. "General theory of law", XNUMXth century - study of legal norms and institutions free from ethical and other philosophical speculations. The positivist "general theory of law" was born out of generalizations of the main theoretical provisions of branch legal sciences - theories of civil, criminal, state and administrative law. She studied law as a sphere of due, and not of being, she studied the general in legal norms and institutions, legal relations, abstracting from their specific content. Therefore, the general theory of law in the XIX century. was a normative theory. Subsequently acquired philosophical basis in the form of methodology. In the Soviet state, the official ideology was proclaimed dialectical and historical materialism of Marx, Engels and Lenin. TGP methodology - philosophical doctrine of knowledge. In the beginning. XNUMXth century the most popular exercises were Kant и Hegel. All R. XNUMXth century the liberal theory of the "lawful state" was developed (which was later criticized in Marxism as the idea of the state - "night watchman"). K ser. XNUMXth century the most popular was positivism, i.e. "scientific methodology", allegedly "free from ethical and philosophical speculations". Within the framework of positivism, normative, sociological and psychological approaches to law are being formed. At the same time, the development of philosophy begins. dialectical materialism Marx and Engels, and within its framework - materialist dialectics as the scientific methodology of Marxism. From the end of the XNUMXth century in theoretical and legal studies, along with positivism, liberal neo-kantianism, within the framework of which, in particular, theories of the "social-legal state", "welfare state" were developed. In the XX century. on the basis of neo-Kantianism in the works of G. Kelsen, normativism reaches its peak, historically arising on the basis of positivism. In the XX century. in Western Europe, the main three methodological approaches to the study of law are neo-kantianism, neo-positivism и phenomenology. In the Soviet Union and the countries of the "socialist camp" official methodology of science confessed materialist dialectics. THP methods: a) general scientific (observation, analysis, synthesis, generalization, comparison, abstraction, analogy, modeling, systemic, structural-functional, etc.); b) private scientific methods of related sciences (concrete historical, sociological, etc.); at) private scientific methods of branch legal sciences (comparative jurisprudence, formal dogmatic, etc.). 2. TGP IN THE SYSTEM OF SOCIAL AND LEGAL SCIENCES. CLASSIFICATION OF LEGAL SCIENCES The sciences that form the system of science as a whole are usually divided into three large groups: 1) natural; 2) technical; 3) humanitarian. Sometimes 4) mathematics and 5) logic (formal, phenomenological, dialectical, etc.) are singled out as independent groups, which develop universal methods of cognition for all other sciences. Philosophy stands apart, which is not a science in the strict sense of the word, but a theoretically formulated worldview. The humanities study social relations in their laws, society, man, social institutions. Because the the state and law are social institutions, legal sciences are usually classified as humanities. Legal Sciences subdivided into: 1) fundamental: theory of state and law, history of state and law, history of political and legal doctrines; 2) industry (constitutional, civil, criminal, administrative law, etc.) and 3) applied (forensic science, forensic medicine, forensic psychology, etc.). The theory of state and law closely interacts with philosophy. Philosophy develops the ideological foundations of the theory of state and law and its general methodology. The theory of state and law closely interacts with the humanities: sociology, psychology, political science, etc., uses their methods. The place of the theory of state and law in the system of legal sciences determined by a number of circumstances. The general theory of state and law with the historical and legal sciences (the history of state and law, the history of political and legal doctrines) is that they consider the state and law as a whole. The difference is that the historical and legal sciences study the process of development of the state and law in concrete historical terms. In theory, the methods of not historical, but theoretical research (for example, logical) predominate. In relation to branch legal sciences, the theory of state and law acts as a fundamental and generalizing science: 1) it studies the most general patterns of development and functioning of the state and law; 2) it explores issues common to different branches of science (rule of law, legal relationship, responsibility, etc.); 3) it develops research methods common to branch sciences and legal categories (basic concepts). At the same time, the theory of state and law uses data from industry sciences. 3. THEORIES OF THE ORIGIN OF THE STATE (THEOLOGICAL, patriarchal, social contract, violence) 1. Theological theory differs in different religions. Main idea - all authority is from God. In Christianity, this postulate was formulated by the apostle Paul. But, for example, the deification of the emperor is characteristic of ancient Egypt and imperial Rome. In Christianity, this idea is unacceptable. Moreover, Thomas Aquinas even justifies the right of the people to overthrow the monarch. From his point of view, the formula "all power is from God" means only abstract power, and not the power of a particular monarch. If the monarch oppresses his Christian subjects, the people have the right to overthrow him in order to establish Christian power. 2. Founders patriarchal theory Plato and Aristotle are considered. Plato compares the power of the monarch with the power of the father over family members. The patriarchal theory was developed in the XNUMXth century. in the work of R. Filmer "Patriarch", where he proves that the "patriarch" received power from God, and then transferred it to his descendants - the kings. 3. contract theory (social contract theory) became widespread in the 4th-XNUMXth centuries. in the works of G. Grotius, T. Hobbes, J. Locke, J.-J. Rousseau. Hobbes recognized the natural rights of man, but believed that the original, "natural state of society" was "the war of all against all," chaos in which "man is a wolf to man." Therefore, people, in order to ensure their safety, transferred all their rights to the sovereign. The sovereign's power is unlimited. Locke believed that people did not at all transfer their rights to the sovereign, but, on the contrary, elected him to protect these rights. From Rousseau's point of view, the social contract is only a necessary jurisprudence. fiction, a certain general will of the people, which the state must follow. Moreover, the general will is not the will of the majority, it is formed by the most morally developed part of society. XNUMX. The theory of violence in the second half of the XNUMXth century. was developed in Austria by the social Darwinist L. Gumplovich and in Germany by the social democrat K. Kautsky. They saw the reason for the origin of the state not in economic relations, but in the conquest, violence, enslavement of some tribes by others. Winners rule, losers become subservient. The state is a naturally (ie, through violence) organization of the domination of one tribe over another. As a result of wars, tribes are transformed into castes, estates and classes. 4. PRIMARY SOCIETY. ORIGIN OF STATE AND LAW In primitive society, there was no state, no classes. Power и production were directly social, collective, tools of labor - primitive, property - common. The distribution of the products of labor was egalitarian. Form of social organization - race not the state. social power was carried out by general meetings of members of the clan, tribe, councils of elders. Chiefs served as military leaders. In the Neolithic era, production relations changed - a division of labor into agriculture and cattle breeding appeared, which led to the need to exchange products of labor (merchants and shopping centers appeared). In agricultural communities where agriculture was mainly carried out by women, matriarchy. The family is strengthened, the clan is weakened. tribal community is replaced neighborly. The improvement of labor tools led to the emergence of surpluses of production, which made it possible for not all members of the community to work. Appeared property inequality. All these factors inevitably led to the emergence of the state. The power of the leader began to be inherited. As culture develops, professional priests also appear who are also interested in strengthening state power. In countries with oriental type of production - in Egypt, Babylon, China, India, in the states of the Aztecs and Maya - the development of the economy is associated with the construction of grandiose irrigation facilities. For their operation, it is necessary to maintain peasant community and rigid centralized government. A powerful bureaucratic state of officials and priests with enormous power arises. Rome the emergence and development of the state is associated with the emergence and development private ownership of land and slaves, which explains the development Roman law. In connection with the emergence classes appears and state How an instrument of class domination isolated from society and at the same time fulfilling not only class, but also general social functions - protection from external enemies, maintenance of internal law and order, and in the eastern despotism - and the function of organizing agricultural work. Social norms primitive society - mononorms. They were observed according to custom, and coercion to their execution (expulsion from the clan, execution) was not excluded. Compulsion came from the whole family. Law appears only with the emergence of the state and is affirmed by violence on the part of the state. It is contrary to old customs. Therefore, the state has to actively fight customs and eradicate them. Often, for this purpose, new religions are planted that deify the ruler. 5. MARXISM ON THE STATE AND LAW In the doctrine of the state and law, Marx considered society in the unity of the basis and superstructure, with the determining role of the basis. Basis - relations of production, determined by the level of development of the productive forces, which are based on a certain form of ownership. rises above the base political and legal superstructure - certain forms of social consciousness. State and law - parts of the superstructure, have a class nature, as they express the will and interest of the ruling class. Marx and Engels emphasized the class essence of the state and law. Within the framework of historical materialism, Marx distinguished between Asian, ancient feudal and bourgeois modes of production and, accordingly, slave-owning, feudal and capitalist socio-economic exploitative formations. A change of formations is inevitable as a result of the development of the means of production. The emancipation of labor will take place only within the framework of the communist formation, when the proletariat seizes the means of production and labor becomes directly social. Capitalism is characterized by a contradiction between the growing productive forces and the production relations that hinder their growth. On the one hand, industrial relations have a social character. On the other hand, private appropriation based on private ownership of the means of production remains. The manifestation of this discrepancy is economic crises. The force capable of destroying the contradictions between the productive forces and production relations under capitalism is the proletariat. Ma first stage of communism (socialism) the state and law are preserved "in a small part", since they are called upon to ensure distribution according to work. On the second (highest) stage law and the state disappear, distribution is made according to needs. The state withers away and is replaced by public self-government. The fate of law seemed somewhat more complicated. Law is the will of the ruling class, expressed in law. In bourgeois society, rights and freedoms exist for those who own property and belong to the ruling class. The first stage of the socialist revolution is the conquest of political power by the proletariat. Then, until the final building of communism, the proletariat exercises its dictatorship. The very idea of the dictatorship of the proletariat indicates that the state of the dictatorship of the proletariat is in no way bound by law. Only in the first stage of communism, when distribution is carried out according to work, does the "shadow of bourgeois law" exist. Then law finally dies out at the highest stage of communism. 6. ANARCHISM ABOUT THE STATE Anarchism - a political doctrine that denies the need for a state, promoting its replacement by public self-government. Occurred in Ser. XNUMXth century Prominent figures of anarchism - Proudhon, Bakunin. The natural form of human life according to Proudhon - a society based on the division of labor, equality, mutual exchange of the results of labor, labor property and free associations of workers. The main disadvantage of economic life is unfair exchange, the result of which is property, inequality, power. Property is theft. Every kind of power - exploitation by man of man. Those who wield political power cannot but exploit society. That's why state harmful. Every state has a class character. The constitutional state is a confederation of the bourgeois against the workers and the king. Law harmful. Laws are created to protect interests. Interests change, and the number of laws grows, limiting the scope of human freedom. All crimes taken together cause less harm than the state and the law. Proudhon did not want political change. economic revolution - fair distribution (direct, without deception exchange of labor results, free credit). Reforms can be carried out peacefully. Power exists only in the minds of people as a result of deception on the part of religion. Enlightenment will destroy the authority of power. Society will become a federation of free associations, combining personal and collective freedom. Proudhon denied the benefit of the socialization of property. He defended the idea of private ownership based on personal labor, which is why Marxists considered his teaching "petty-bourgeois". Communism for Proudhon is oppression and slavery. Under communism, a person becomes a slave of the state. Bakunin believes that the highest law of mankind - respect for the human person. The purpose of history is the liberation of the individual, the happiness of every person. Collective freedom and wealth are real when they are the sum of individual freedoms and wealth. Man is ruled two natural laws - solidarity and freedom. Freedom in the knowledge and recognition of natural laws. A person is free if he recognizes the equality, freedom and humanity of all people, and the people around him recognize his freedom and humanity. Power corrupts people intellectually and morally. Any state seeks to enslave the people by violence and deceit. Bakunin called for a worldwide anarchist revolution that would destroy capitalism and the state. The future society was free organization of the working masses from the bottom up, a federation of self-governing communities with no central authority or control. Socialism without freedom is "slavery and bestiality." Freedom and the state are incompatible. The state must "dissolve into society." 7. LEGAL AND SOCIAL STATE 1. The concept of "rule of law" was developed in Germany in the middle. XNUMXth century influenced by the philosophy of Kant. Kant claimed that man is always an end and should never be regarded as a means. The internal functions of the state are reduced to the protection of the rights and freedoms of the individual and the rule of law in general. Moreover, initially only the so-called "formal, bourgeois rights" were declared, that is, personal rights, the right to property, and certain political rights. In Marxism, this theory was criticized as the theory of the state - the "night watchman". The idea of the rule of law should not be confused with the idea of legality. Legality is also possible in a totalitarian state. The central idea of the concept of the rule of law is not legality, but the priority of human rights and freedoms, their reality. In this sense, the state is bound by law. It should only protect the rule of law, which is based on human rights and freedoms, and should not interfere in the affairs of civil society. 2. The aggravation of the class struggle in the late XIX - early XX century. resulted in a legal crisis. The communist solidarist and then fascist ideology is gaining wide currency, in which the value of "formal rights and freedoms" is denied or reduced to a minimum. In the ideology of totalitarianism, human rights as the basis of the status of the individual and the goal of the state are replaced by functions for the common good. As an alternative to totalitarianism, the liberal ideology of the “rule of law” is also considered in a transformed form. On the basis of neo-Kantianism, the “rule of law” turns into "social-legal", "welfare state" Along with law enforcement are recognized social functions of the state. Formal human rights are complemented by a system of socio-economic rights (the right to labor protection, to social protection, to housing, to health protection, to education). Wherein formal rights remain inviolable, although they change. 3. In Russia at the beginning. 1985th century the ideology of the social legal state was developed by the neo-Kantian philosopher of law Novgorodtsev. In the Soviet state, the idea of a rule-of-law state began to be revived only from XNUMX, during the years of "perestroika". The current Constitution of the Russian Federation establishes that the state is legal and social. 4. Social and legal state - not only protects the rule of law and human rights, but also performs social functions, is designed to ensure the well-being of all segments of the population and, to this end, pursues an active socio-economic policy. 5. Signs of the rule of law: 1) priority of human and civil rights and freedoms; 2) their actual implementation; 3) the rule of law; 4) separation of powers; 5) political pluralism; 6) legality, including the supremacy of the constitution and law. 8. CONCEPT AND SIGNS OF THE STATE State - the organization of sovereign power in a politically organized society in a certain territory. Signs of the state: 1. Territory - a certain part of the surface of the earth and waters, the airspace above them (up to the minimum height of a stable orbit of an artificial satellite) and the subsoil below them within the state border. The jurisdiction and individual sovereign rights of a state may also extend beyond its territory. For example, the continental shelf and the exclusive economic zone of the state are outside the territorial waters and do not belong to the territory of the state. However, the state has sovereign rights to explore and develop natural resources in these zones. The jurisdiction of a State in criminal matters extends to merchant ships and civil aircraft flying the flag of that State on and over the high seas, and to warships and aircraft wherever located. 2. Population characterizes the composition and belonging of people to a given state - the institution of citizenship, the legal status of foreign citizens and stateless persons. 3. Sovereignty - the ability of the state to independently exercise supreme power throughout the territory of the state, as well as in international relations with other states. Recently, the problems of the so-called "limited" sovereignty have been actively discussed, which is associated with the formation of such international organizations (and at the same time state entities) as the European Union, the Union State of Russia and Belarus. On the other hand, this problem is related to the status of subjects of some federations. For example, the union republics within the USSR, in accordance with the Constitution of the USSR, were recognized as sovereign, which contributed to the disintegration of this state. The republics within the Russian Federation in the text of the Federal Treaty, which is part of the Constitution of the Russian Federation, are also referred to as "sovereign". four. Publicity of power - the presence of a special apparatus of power, representing the whole of society as a whole. On the other hand, it is customary to refer to public authority not only state power, but also the powers of local self-government bodies, which the Constitution of the Russian Federation separates from state power. 9. TYPOLOGY OF THE STATE: FORMATIONAL AND CIVILIZATIONAL APPROACHES The formational approach to the typology of the state was developed by Marxism within the framework of historical materialism. The typology is based on a socio-economic formation, determined by a certain 1) level of development of the productive forces and 2) the type of production relations. The type of state is determined by the economic structure of class society, the corresponding class structure, the exploitative or non-exploitative nature of class relations, and its class essence. There are: 1) a slave-owning formation (which is characterized by the exploitation of slaves by slave owners, the non-economic nature of forced labor and the basis of production relations of which is the right of ownership of a human slave, understanding him as a thing); 2) the feudal formation (which is characterized by the exploitation of serfs by feudal lords, the non-economic nature of forced labor and the basis of production relations of which is the feudal ownership of land, the mixture of ownership of land and power over the corresponding territory) 3) the capitalist formation (which is characterized by the exploitation of workers by capitalists the economic nature of coercion to work and the basis of production relations of which is the right of private ownership of the means of production); 4) the communist formation (the non-exploiting socialist state with "emancipated labor" and socialist ownership of the means of production are retained only at the first, transitional stage of "socialism"; subsequently, the state and law wither away and public self-government is established directly). Civilization approach developed by the English historian A. J. Toynbee (main work: "Comprehension of History"). The right of ownership of the means of production is not of fundamental importance. Civilization is characterized by the commonality of many factors: cultural, economic, geographical, religious, psychological, etc. A person is studied as a creative person, and not as a class depersonalized individual. Toynbee saw progress in the spiritual development of mankind, the evolution from primitive beliefs through universal religions to a single religion of the future. The driving force behind development is the "creative elite" that drags along the "inert majority". There is a constant cycle of successive local civilizations, each of which goes through the stages of emergence, growth, breakdown and decay. 10. STATE AND INDIVIDUAL. THE HUMAN RIGHTS SYSTEM In liberal ideology (Kant, Mill, Novgorodtsev), as well as in anarchism, the interests of the individual and the state are opposed. In totalitarian ideologies (Hegel), in solidarism (Dyugi), in German national socialism, Italian fascism, Russian communism, the interests of the individual are absorbed by the public and the state. interests. The individual is considered not as the goal of the rule of law, but as a means to achieve the collective good - the good of the nation, state, class, people. Marxism understood freedom as a conscious necessity. The contradiction between the interests of the individual and the state is characteristic of the exploiting state. After the victory of communism, the state withers away and the contradictions between the interests of the individual and society disappear. The development of all is a condition for the development of everyone. The idea of human rights arose within the framework of liberal ideology and received rapid development in the era of bourgeois revolutions. Initially it was about natural human rights, originating from the natural desire of people for happiness (personal freedom and the right to property). Later, the system of human and civil rights was supplemented political rights (freedom of speech, freedom of association, voting rights). Thus, initially only the so-called "formal rights" The value of human rights is most clearly realized after realizing the essence of totalitarianism after the victory of the Allies in World War II. In 1948 The UN General Assembly approves the Universal Declaration of Human Rights, which recognizes not only formal, but also socio-economic rights. The system of human and civil rights in Russia includes 3 blocks of rights: 1) personal rights and freedoms: 1) the right to life. 2) freedom and inviolability of the person (including inviolability of private life and home, secrecy of correspondence and other communications, criminal procedural guarantees of personal freedom), 3) freedom of movement and choice of place of residence, 4) freedom of conscience and religion, freedom of speech; 2) political rights and freedoms: 1) freedom of the press and information, 2) the right to association, 3) the right to manifest, 4) the right to participate in the management of state affairs (including voting rights, the right to petition, the right to access public service); 3) social, economic and cultural rights: 1) the right to private property, economic freedom, 2) to work and labor protection, 3) social rights (the right to social protection, housing, health protection) 4) cultural rights (the right to education, freedom of creativity, participation in cultural life). In the constitutional law of the Russian Federation, it is customary to distinguish human rights (i.e. the rights of everyone, e.g. all personal rights) and citizen's rights (i.e., rights that belong only to citizens of the Russian Federation, for example, electoral rights). 11. STATE, LAW, ECONOMY State, law, economics - social institutions. The question of their interaction is usually raised in two aspects: 1) in the aspect of primacy, i.e., the determining influence of one of these factors on others; 2) in terms of the role of the state in regulating the economy. In the Marxist doctrine, production relations are considered as the basis, and the state and law - as elements of the superstructure, i.e. the economy is primary in relation to the state and law in each specific socio-economic formation. At the same time, in the doctrine of production relations, Marxism proceeds from the fact that the basis of production relations is the right of ownership of the means of production, i.e., law still affects production relations. However, from the outset, tools and means of production, primarily the level of development of tools of labor, are of paramount importance. If the development of the tools of labor did not lead to the appearance of surpluses of the results of labor, then class inequality, the state and law would not have arisen at all. If we talk about the role of the state in managing the economy, then there are many theories from moderate to radical. The most radical liberal theory - monetarism - proceeds from the principle of the least impact of the state on the economy. The state should not interfere in the life of civil society. Government spending should correspond to income and be minimal. The economy develops independently under the influence of market factors The most radical state theory is the theory implemented in the USSR, where the entire national economy was turned into one giant enterprise, which was managed by administrative and administrative methods. There are intermediate between the two mentioned radical theories. For example, Keynesianism (best known in connection with the "New Deal" of American President Roosevelt in the 30s) proceeds from the fact that the state should actively intervene in the economy in order to prevent crises. The main method of influence is the forcible redistribution of national wealth in favor of the general population in order to create solvent demand, the establishment of a high minimum wage, the organization of public works, tight control of the bank rate, tax increases, the stability of the banking system and the desired moderate inflation (to encourage the population to buy goods) . 12. STATE AND CIVIL SOCIETY. THE STATE IN THE POLITICAL SYSTEM OF SOCIETY The idea of the relative independence of civil society from the state was developed in the era of bourgeois revolutions. Then it was developed in German philosophy, in particular by G.F. Hegel. This idea is connected with the division of law into private and public. Public law regulates relations in the sphere of the exercise of political power. Private right governs the relationship between people and their organizations. Civil society - a system of social relations that develop in society between individuals and their associations in order to satisfy their private interests. Signs of civil society: 1) it is a system of social relations not directly related to the exercise of political power; 2) these are relations between legally equal individuals; 3) these relations are based on the freedom of individuals who themselves determine where, when and for what purpose they enter into such relations; 4) these relations are driven by the private needs and interests of individuals; 5) the state, if possible, does not interfere in these relations, although it has the right, in the general interest, to establish and protect generally binding norms in this area; 6) these relations are regulated by the norms of private law. In the political system, the state interacts with other political institutions 1) political parties and other public associations (including religious ones) 2) pressure groups (the so-called lobbyists, such as the military-industrial complex, oil exporters, etc.), the media State - a special institution of the political system. Its features: 1) The state is not just the most massive political association of citizens, but the union of all citizens without exception. The state is called upon to express their common interests. 2) The state and only it has the apparatus of coercion. 3) The state creates a law that is binding on itself and all other political institutions. 4) The state has the ability to influence other elements of the political system. 5) A bureaucracy is born in the state, that is, a special social group appears with special interests that are different from public interests. The bureaucracy has the ability to realize the bureaucratic interest directly by abusing its official powers. 13. FUNCTIONS OF THE STATE: CONCEPT, CLASSIFICATION Functions of the state - the main directions of the activity of the state in the implementation of the tasks facing it, due to both its class and general social essence. Each function of the state has a substantive characteristic and is aimed at achieving a specific benefit. The content of the functions is constantly changing. Eg. Marxism lists among the most important functions of exploiting states: 1) suppression by the exploiting minority of the exploited majority of the population; 2) protection of private ownership of the means of production. In a social and legal state (welfare state): 1) the function of suppression is less pronounced, it is not about suppression, but about solidarity, reconciliation of class interests on the basis of compromise; 2) property is not just protected, but its general social purpose is ensured (for example, in the Constitution of the Federal Republic of Germany "property obliges, the use of it must serve the common good"); 3) along with purely protective functions ("night watchman" functions), new organizational functions appear (the state actively intervenes in the development of the economy and pursues social policy). The functions of the state are classified for various reasons: 1. By field of activity differ internal и external functions. Internal are implemented in domestic politics, and external - in international communication. 2. By duration differ permanent и temporary functions. Constants include those that exist at all stages of the development of the state. To temporary ones - which exist for a short time at certain stages of the development of the state. For example, if a new state is created in a violent, revolutionary way, it is usually forced to crush the armed resistance of those who resist. 3. According to social significance differ main и other functions. The main (general) functions (for example, the protection of the rights and freedoms of citizens) are performed by all state bodies in cooperation. Other, derivative and separate functions (for example, the fight against crime as a derivative of the law enforcement function) are performed by specific state bodies. 4. By legal forms of implementation: law-making, executive-administrative and law-enforcement activity. 14. EXTERNAL AND INTERNAL FUNCTIONS OF THE STATE By areas of activity, internal and external functions are distinguished. Internal functions are implemented in domestic policy and are aimed at solving problems within the country, and external functions implemented in international communication with other states and international organizations Ecological and economic functions, as well as the function of protecting human rights and freedoms are both internal and external. Ecology is one of the global problems of our time and, for example, it is impossible to fight global climate warming solely within the framework of domestic policy. The economy in modern conditions of globalization and the international division of labor also has an international character. International cooperation is widely carried out in the field of protection of human rights and freedoms. Internal Functions: 1) economic function (i.e., providing favorable conditions for economic development); 2) social function (i.e. ensuring the well-being of all social groups, in particular health care, education, social security, labor protection, this can also include the development of culture, although many scientists single out the cultural and educational function as an independent one); 3) ecological function (i.e. ensuring a favorable state of the environment for human life and protecting nature) 4) function protection of law and order, rights and freedoms of man and citizen; 5) function security assurance citizens in emergency situations of a natural, man-made and social nature; 6) some scientists also distinguish financial function (i.e. taxation), this function is not an end in itself, it is aimed at creating conditions for the state to carry out all its other internal and external functions. External functions: 1) country defense (and in peacetime - maintaining its defense capability at the proper level); 2)ensuring peace and international security (the UN and its Security Council remain the main instrument in this) 3) the function international cooperation on a variety of issues. In addition, as not only internal, but also external functions, one can understand and environmental, economic features and function protection of human rights. 15. STATE MECHANISM: CONCEPT, STRUCTURE State mechanism - state system bodies and other organizations through which the state performs its functions. The structure of the state mechanism: 1) state apparatus - a set of state. bodies endowed powers of authority for the implementation of state authorities; 2) state institutions and government enterprises. They do not have power, but their activities are directly aimed at the implementation of the functions of the state. State. institutions - these are non-profit organizations that carry out activities to perform the functions of the state in various fields. For example, organizations of education, healthcare, libraries. State. enterprises - These are commercial organizations, their activities are closely related to the implementation of the functions of the state. Eg. mints, refineries, etc. The structure of the state mechanism determined legal forms of state activity: 1) lawmaking, 2) management and 3) protection of law. Accordingly, they differ three types of state organs: 1) legislative, 2) executive and 3) judicial. Features of the structure of the state. mechanism in Russia: 1. Strict delimitation of state and municipal authorities the relative independence of local self-government bodies from the state is guaranteed. 2. The principle of separation of powers is not carried out in full. The President stands, as it were, above the system of separation of powers, symbolizing the unity of the nation and coordinating the activities of all branches of power, is the guarantor of the Constitution, the rights and freedoms of citizens. It has huge powers in the executive branch, practically supervises the work of the Government and its head. The president has enormous powers, from the presidential republic he took powers in the sphere of executive power, from the parliamentary - the right to dissolve the State Duma. In addition, the President divided the country into "districts", appointing his "plenipotentiary representatives". 3. Законодательная власть carried out by the Federal Assembly. The upper house is formed from "representatives" from the legislative and executive bodies of the subjects of the Federation. The lower house is elected by the population under a mixed (proportional and majoritarian) electoral system. 4. Executive power carried out by the Government, federal ministries and departments (which may have their own territorial bodies) and executive authorities of the constituent entities of the Federation. 5. Judicial branch carried out by federal courts and justices of the peace. To fed. courts include: 1) the Supreme Court and the system of courts of general jurisdiction headed by it; 2) the Supreme Arbitration Court and the system of arbitration courts headed by it; 3) CS. 6. Prosecutor's office - a system of independent law enforcement agencies headed by the Prosecutor General. Carries out prosecutorial supervision over the observance of laws, criminal prosecution and prosecution in criminal cases in court. 16. STATE BODY: CONCEPT, SIGNS, TYPES. STATE FORMS The state body is a structurally separate link of the state apparatus, which has the following main features: 1) performs on behalf of the state its tasks and functions; 2) has power, which is what distinguishes it from state institutions and enterprises (it can issue legal acts that are binding on those to whom they are addressed; apply measures of coercion, persuasion, education, and encouragement to ensure the requirements of these acts; supervise their implementation) ; 3) has a certain competence, i.e. a set of rights and duties and functions assigned to him; 4) has, as a rule, a territorial scale of activity; 5) is characterized by a certain structure, i.e., structure according to the types of individual services and numerical strength (states); 6) is formed in the manner prescribed by law. State bodies are classified by functions (legislative, executive, judicial), structure (sole and collegial) competence (general competence, e.g. the Government of the Russian Federation, sectoral and intersectoral, e.g. federal ministries and departments), areas of activity (e.g., internal affairs bodies and bodies of external relations, e.g. the Ministry of Foreign Affairs, its diplomatic and consular representations) State shape - this is the organization of political power in the state, taken in the unity of its three main elements: 1) forms of government 2) forms of government and 3) political regime. Form of government - this is an organization of the supreme power of the state, characterized by a special source of power and a special mutual relationship of the highest bodies of the state among themselves Main forms of government - monarchy and republic. The monarchy can be absolute, estate-representative, constitutional (including dualistic or parliamentary). The republic can be Soviet, presidential (dualistic), parliamentary and mixed. Form of government - political-territorial and administrative-territorial structure of the state, the ratio of the territorial parts of the state and their bodies with the state as a whole. There are federations and unitary states. The question of the difference between a federation and an international organization is becoming increasingly complex. Political regime - is a set of ways and methods of the actual exercise of political power. Types of political regime: democracy and authoritarianism, liberalism and totalitarianism, as well as their various combinations. 17. FORM OF GOVERNMENT. MONARCHY Form of government - this is the organization of the supreme power of the state, characterized by a special source of power and a special mutual relationship between the highest bodies of the state. Main forms of government - monarchy and republic. Extraordinary forms of government - military, revolutionary and other types dictatorships which, unlike the monarchy, are based not on law, but on force. В monarchy the head of state (monarch) occupies the throne by right of succession, has complete inviolability of the person, both political and legal irresponsibility. In most cases, the monarch is alone and is not elected by anyone, in some Arab monarchies it is elected by members of the ruling dynasty from among its members. In federations, there may be several monarchs, for example. in the UAE. The English Queen Elizabeth II, on the contrary, is the queen not only of the United Kingdom, but also, for example, Canada, Australia. В absolute monarchy the power of the monarch is not limited by anything, except for natural law (if the monarch recognizes such rights for his subjects). Today, absolute monarchies exist in some African and Arab countries (Saudi Arabia). Estates-representative monarchy existed before absolutism and gradually transformed into an absolute one. Its specificity is that the monarch involved class-representative (deliberative) bodies in the management of the state. Some modern absolute monarchies, for example. Vatican, Saudi Arabia, are theocratic i.e. the head of the state is also the head of the church. В constitutional monarchy (dualistic or parliamentary) the power of the monarch is limited by a written or unwritten constitution in favor of the organs of popular representation. At the same time, in dualistic monarchy the government is formed and is accountable to the monarch, and not to parliament, which has only limited legislative functions and approves the budget. The most common is parliamentary monarchy (Great Britain, Spain Netherlands, Belgium). The monarch "reigns, but does not rule." The government is formed by the party that won the parliamentary elections and is accountable to the parliament. The monarch performs representative functions, is a symbol of the unity of the nation, formally signs laws and only in rare cases makes political decisions on his own. 18. REPUBLICAN GOVERNMENT В republic the head of state is elected by the population or representative bodies of power. Presidential (dualistic) republics - (USA, Latin American countries) are characterized by a strict separation of legislative and executive powers, their mutual independence. The government is formed by the president, or the role of the government is performed by the presidential administration. Parliament has no right to express a vote of no confidence in the government and send him to resign. The president has no right to dissolve parliament. Parliament has wide not only legislative, but also control powers. Parliamentary commissions can summon and interrogate any official, including the president. However, parliament cannot remove an official from office for political reasons. Impeachment is applied strictly for legal, not political reasons (for example, if the president commits a crime, but not because of the wrongness of his policy). В parliamentary republics (Germany) the legal position of the head of state is similar to the legal position of the monarch in a parliamentary monarchy - it is just an honorary position with purely formal powers. The president can dissolve parliament, but only when he is required to do so for formal grounds specified by law (eg if parliament is unable to form a government) does he formally appoint officials at the direction of parliament. The key figure is the head of government. The government is formed by the winning party or party coalition in the parliamentary elections. It bears not only legal, but also political, responsibility to the parliament. If the government loses confidence in parliament (for example, the prime minister is no longer the leader of the ruling party or the ruling coalition has collapsed), the parliament passes a resolution on a "vote of no confidence" in the government, dismisses it and forms a new government. Mixed republics (the Russian Federation and most of the CIS countries) are characterized by mixed powers of the president - these are the powers to dissolve the parliament, and not only on formal grounds, but, for example, in the case when the parliament cannot agree with the president on the issue of the head and composition of the government; powers in the executive branch. The President forms the government and directs its activities. Although the government bears political responsibility to the parliament, this is meaningless, since in fact the government is led not by the prime minister, but by the president, who does not bear political responsibility to the government. The powers of parliament are also limited in the sphere of law. control. For example, the president cannot be interrogated in the parliamentary commission under the threat of impeachment and ug. responsibility for refusing to testify or giving false evidence, as is done in the United States. 19. FORM OF THE STATE (POLITICAL-TERRITORIAL) DEVICE. UNITARY STATE AND Confederation State form. devices - political-territorial and administrative-territorial structure of the state, the ratio of the territorial parts of the state and their bodies with the state as a whole. The main forms of state. devices - a unitary state-in and a federation. Unitary state - this is a single integral state. an entity consisting of administrative-territorial units that are subordinate to the central authorities and do not possess signs of state independence. Sometimes a unitary state has autonomous entities, for example. Italy Spain. Some unit. state-va preserve historical areas with significant autonomy, for example. Connect. The Kingdom (Great Britain) consists of England, Wales, Scotland and Northern Ireland. Unit signs. state-va: 1. The legal status of the territories. formations is completely determined by the central government Eg., the Parliament of the United. The kingdom makes laws for the country as a whole, as well as special laws for England and Wales, for Scotland and for the North. Ireland. The status of an administrative-territorial entity, including an autonomous one, is determined by the central government. 2. On the territory of the unit. state-va operates one constitution, a single system of laws-va, one citizen. 3. Components of unit. state-va (regions, departments, districts, provinces, counties) do not have sovereignty. 4. All external relations are carried out by central bodies that officially represent the country in the international arena. 5. The state has a single armed forces subordinate to the central government. Confederation is a temporary law. an alliance of sovereign states created to ensure their common interests. In essence, this is a transitional form from the international. organizations to the federation. Confederate members. retain their sovereign rights in both internal and external affairs. Confed. does not have higher state bodies. authorities, whose decisions would be binding on its participants - all binding (by virtue of international law) decisions are made by the participants of the confed. based on consensus (i.e., general agreement). There is no coercion mechanism in relation to the participant of the conference. Confed. short-lived, they disintegrate or turn into a federation: for example, during the War of Independence against England, Amer. colonies first formed confed. and only then united in a federation - the United States. Switzerland to ser. XNUMXth century was considered confed., but when several. the cantons tried to withdraw from its composition - this attempt was suppressed with the help of military force. Today Switzerland is considered a federation, although in French and Italian it is officially called "confederation" and in German "sworn partnership". 20. FEDERATION Федерация - voluntary unification of previously independent state formations into one union state. More rarely, federations are formed from unitary states through decentralization. federations can be national, territorial and mixed. RF is mixed. Along with the national republics - Tatarstan, Bashkortostan, it includes Russian regions and territories practically equal in rights with the national republics. federations can be decentralized where there are significant powers assigned to the exclusive jurisdiction of the subjects of the federation (for example, Switzerland) and cooperative, where the central government can legislate on almost any issue, and the subjects of the federation regulate only those relations that are not regulated at the federal level (for example, Germany). Federation features: 1. The territory of the federation consists of the territories of its subjects: states, lands, republics, etc. 2. From international organizations, the federation differs in the presence of higher fed. state authorities, whose decisions on the subjects of their jurisdiction are binding on the subjects of the federation. 3. The subjects of the federation and its subjects are usually delineated in the constitution, which distinguishes the federation from the unit. state-va. For example, the US Constitution defines the exclusion, the competence of the fed. state bodies. authorities. Everything else is up to the states. The Constitution of the Russian Federation defines the exclusive competence of the federation, the subjects of joint jurisdiction, and everything else, for example. state bodies. the authorities of the subject of the federation, referred to the jurisdiction of the subject. 4. The subjects of the federation have their own constitution, their highest executive, legislative and judicial bodies (in Russia - magistrates), their own legislation. 5. In most federations, there is union citizenship and citizenship of subjects of the federation. 6. External relations are carried out by the central authorities, although certain powers in this area may be granted to the subjects of the federation. 7. The federal parliament has a chamber representing the interests of the members of the federation. 8. In some federations, the subjects have their own armed forces. For example, armed Swiss forces consist of armed. the forces of the cantons. In the United States, along with the federal army, there is a "state militia" (the so-called "national guard" which is mainly engaged in the training of reservists on a voluntary basis). 21. POLITICAL REGIME Political regime - is a set of ways and methods of actual implementation of state power. Democracy - this is a regime that ensures the broad participation of the population in managing the affairs of society and the state. Democracy is impossible without political pluralism and, as a rule, without the separation of powers. Although in small states, for example. in Switzerland, the separation of powers may be weak. Authoritarianism - elimination of broad sections of the population from managing the affairs of society and the state. Under an authoritarian regime, liberal politics is not excluded, provided that those in power are committed to liberal values and have high moral qualities. liberal regime ensures the maximum realization of human rights and freedoms, primarily the so-called formal rights and freedoms, i.e. personal and political rights and freedoms, as well as economic freedom, understood as freedom of enterprise and freedom of labor in the sense of preventing forced labor. Totalitarian regime characterized by the denial of the value of human rights and freedoms. The state petty regulates all aspects of human life. The primary value is not people, but collectives: the nation, for example. with the German National Socialists, or the state - with the Italian fascists, or the working class, and later the people - with the communists. In a totalitarian state, a person turns from an autonomous person, a bearer of rights and freedoms, into a "cog" of the state mechanism, an executor of functions useful for the state. Formal rights are reduced to a minimum, freedom of movement and choice of residence are limited, labor often becomes forced. Political rights and freedoms suffer the most - freedom of speech and mass media, the right to association. The opposition is destroyed. Education is ideologized. An official ideology appears, any other is declared hostile and forcibly suppressed. A totalitarian regime is also always authoritarian, since the peculiarities of this regime inevitably lead to the concentration of power in the hands of a narrow group of people. The union of totalitarianism with democracy is possible only for a very short time. As order is restored on the basis of a totalitarian ideology, not only a totalitarian, but also an authoritarian regime is always established. Sometimes, along with the political regime, they talk about state regime - an integral part of the political regime, a set of ways and methods of the actual exercise of power by state bodies (and not by public associations, for example, parties). Another point of view: state regime - this is the specificity of the organization of power in parliamentary republics and monarchies. Then distinguish ministerial regime, e.g. in the UK and parliamentary regime, e.g. in Germany. 22. CONCEPT OF RIGHT. BASIC CONCEPTS OF LEGAL UNDERSTANDING (MARXIST, NATURAL-LEGAL, NORMATIVIST, SOCIOLOGICAL) Law - this is a system of generally binding rules of conduct (legal norms) in force in society, established and protected by the state Signs of law: 1) state-volitional character - expresses the general will erected into law (the will of the whole society); 2) normativity - the content of law is generally binding rules of conduct, legal norms; 3) power-regulatory nature - regulates social relations, and this regulation is state. It is the state that sets and enforces the rule of law. For Marxist legal thinking characterized by an understanding of the essence of law as elevated to the law of the will of the ruling class. Already at the beginning XNUMXth century German historical the school of jurists believed that law is not the product of one's will, but the result of nature. development of national legal consciousness. The state should identify and systematize those norms that spontaneously arise in communication between people, and not forcibly impose norms that are contrary to the "people's spirit." Even more ancient (the time of Cicero) is the idea natural law. Both man and society are closely connected with nature. natural human rights - the right to life, to the inviolability of the individual, to the pursuit of happiness. These rights come from the very nature of man, every man has them from birth. The state must take these rights into account. Normativism. The essence of law is in its normative nature and the universality of other norms. Different concepts of legal understanding. Jellinek (voluntarist concept) understood law as a manifestation of the state. will, authority. Iering ("jurisprudence of interests") - at the heart of the emergence, development and understanding of objective law is always subjective law. A subjective right is an interest protected by law. Kelsen explored law from the point of view of its being, having developed "pure theory of law". The essence of judgments with alethic modality (i.e., judgments about things that exist, for example, snow is white) and judgments with deontic modality (i.e., judgments about what should be, for example, snow should be removed). Etc. a norm is a judgment about what should be. (For example, the Criminal Code of the Russian Federation directly establishes that the Criminal Code is based on the Constitution of the Russian Federation. Such a judgment has an alethic modality. It should be transformed into a judgment with a deontic modality - the provisions of the Criminal Code cannot be interpreted in such a way that they contradict the Constitution of the Russian Federation.) Sociological legal theory arose in the early XX century in Austria (Ehrlich) on the basis of positivism and received developed. based on the American pragmatism. Law is identified with the prevailing court. the practice of its application. The real right does not exist in the law, but in the court, in the admin. and other body applying the law. Amerik, lawyer Pound developed this theory - the judge, when making a decision, must take into account not only the requirements of the law, but also the needs of societies and development. 23. LAW IN THE SYSTEM OF SOCIAL NORMS. TECHNICAL AND LEGAL STANDARDS Social norms - these are the rules of conduct that: 1) are addressed to an individually indefinite circle of people and 2) regulate social relations (that is, relations between people and their associations). They are determined by the level of development of society. They differ from each other in the ways of their establishment and provision (protection) Types of social norms: Norms of law established and protected by the state, including through state coercion. - Moral standards formed spontaneously on the basis of religious and ethical ideals prevailing in society, ideas about good and evil. They are protected by a moral sanction (for example, in the form of condemnation from others or the imposition of penance, excommunication, etc.). Along with universal morality, there is professional ethics, for example. medical, pedagogical, judicial, etc. Sometimes its non-compliance entails legal consequences, for example, a judge may be removed from office. In order for an immoral act to entail legal consequences, a legal norm is needed that would refer to moral norms. - Customs formed spontaneously as a result of repeated repetition. They are performed voluntarily, as their observance simplifies a person's life. A norm of custom can turn into a legal norm. The Civil Code of the Russian Federation provides that the court applies business customs if this relationship is not regulated by a regulatory legal act or contract. - Etiquette formed spontaneously in order to facilitate communication between people. Provided automatically, it is beneficial for a person to comply with these norms, since non-compliance with etiquette will complicate communication. - Norms of traditions are formed spontaneously and are not protected in any way (if they are not at the same time moral norms, for example, military traditions). - ritual norms They may be formed spontaneously, they may be established by religious and other organizations, they may be protected by the organizations that established them, or they may not be protected at all. - Corporate norms established by public associations and protected by these associations. Technical standards are not social and regulate not social relations between people, but the behavior of a person in relation to any technical device. They are contained, for example. in the instructions for any technique. Approved not by the state, but by the manufacturer of the device. However, failure to comply with these regulations may result in legal consequences. For example, the right to free repair of equipment may be lost. Sometimes non-compliance with technical standards can also lead to criminal liability, if as a result there are serious consequences. But in order for legal consequences to occur as a result of non-compliance with technical norms, a legal norm establishing such consequences is necessary. In this case, the technical standards become technical and legal. 24. LAW AND POLITICS Policy - the activity of the state and other watered, institutions (primarily - watered, parties), aimed at solving problems of general social importance. The main subject of politics is the state as a political organization of the whole society. Interaction of politics and law can be considered in the following aspects: 1) the impact of politics on law. Since politics is partly implemented through lawmaking, politics determines the law, the content of legal norms; 2) the possibility of implementing policies outside of legal forms (the so-called "direct action"). The state pursues its policy in legal forms (law-making and law enforcement) and in non-legal forms. The state can also use other mechanisms, both legitimate (for example, explaining the policy of the state in the press, addressing citizens, consultations with interested social groups), and illegal (for example, intimidating politicians, opponents). For a legal state, it is an axiom that any action of the state, restricting the rights and freedoms of a person, is possible only on the basis of a legal norm. 3) the influence of law on politics (direct or indirect). As an example, direct influence you can bring the provisions of Const. about the basics of const. order and the rights and freedoms of man and citizen. In particular, Konst.: 1) proclaims a person, his rights and freedoms as the highest value; 2) points to democratic. social and legal character of state-va; 3) guarantees freedom of economy, activity; 4) guarantees the separation of powers; 5) prohibits censorship, etc. On these and many other issues, the policy of the state is strictly bound by law. Indirect influence the right to politics can be illustrated by the example of suffrage. The influence of law on politics is also ensured by legal culture, since the observance of law is a policy in itself, and not the only possible one. Often, legal norms are simply ignored in political activities; 4) the possibility of inconsistency of law with policy. Law is always more conservative than politics, lagging behind politics. For example, if the political a decision that requires implementation in the law, it is necessary to develop a draft law and go through all the stages of legislation. process. The inconsistency of law with policy may also be due to the imperfection of the law, the application of which may lead to unforeseen consequences. 25. LAW AND MORALITY Morality - this is a system of ethical ideas and feelings prevailing in society (i.e., ideas about justice, good and evil, a sense of moral satisfaction or shame), as well as norms based on them. Morality is synonymous with morality. There is another point of view (I. Kant): if morality is an objectively existing normative system, then morality is the subjective ability of a person to perceive good and evil a priori. In this sense, the moral norms that exist in a morally undeveloped society can be immoral. The interaction of law and morality 1. General in law and morality: 1) refer to the superstructure over the economic. the basis of society, they change in connection with changes in economic relations; 2) the norms of law and morality are social norms, that is, they regulate societies, relations. 2. Differences between law and morality: 1) law arises simultaneously with the state, and morality much earlier (the existence of even a primitive community is impossible without morality); 2) the rules of law are established by the state, the norms of morality arise spontaneously, and sometimes as a result of religious or other education; 3) morality includes not only norms, but also representations of feeling; 4) moral norms are protected by the force of public opinion, legal norms are protected by the state; 5) law deals only with behavior expressed outside (ie, with action or inaction), thoughts can also be immoral. 3. The ratio of the norms of law and morality in content. There are different points of view here. R. Iering. for example, thought right "ethical minimum" The prevailing view in Soviet jurisprudence was that all illegal actions are immoral by the very fact that they are illegal. But at the same time, for example, the organization of the Socialist Revolution in 1917 was not considered immoral. In general, Marxism is characterized moral relativism - everything that is beneficial to the working class at a given moment in time is considered moral, the end justifies the means. This thesis itself seems immoral. 4. The possibility of non-compliance with the norms of morality and law. Full correspondence between law and morality is possible only in an ideal state, and ideal states do not exist - this is a utopia. An example of an immoral law is the provision of the criminal code on the voluntary refusal of an instigator, relieving him of responsibility if he promptly reports a crime to the authorities. 26. FORMS (SOURCES) OF LAW Sources of law - these are the forms of expression and consolidation of the rules of law emanating from the state or recognized by it. The source of law acquires an official character: 1) by law-making, or 2) by authorization (for example, when a court applies a custom). Types of sources of law: 1) regulatory legal acts - official documents containing legal norms (i.e. obligatory rules of conduct) adopted by the state. bodies or other authorized bodies or persons. In Russia, in the system of norms. - other acts include: 1) the Constitution; 2) laws (fed. constitutional; simple federal laws; laws of the subject of the Federation, adopted on the subject of jurisdiction of the subject of the Federation); 3) by-laws (decrees of the President of the Russian Federation; resolutions of the Government of the Russian Federation; norms, acts of federal ministries and departments; norms, acts of executive bodies, authorities of subjects of the Russian Federation; norms, acts of local self-government bodies; local acts, for example, internal regulations of any organizations) 2) legal customs - customs to which the state has given general obligations. the meaning and observance of which it guarantees by its coercive force (for example, according to the Civil Code, if the relationship is not regulated by law or contract, business customs are applied); 3) judicial and administrative precedents - this is the court. or admin. decisions on a specific case, which are given the force of a source of law in the countries of the Anglo-Saxon legal family; 4) regulatory agreements - an agreement of two or more subjects containing the rules of law (Federal Treaty; agreements on the delimitation of subjects of jurisdiction between the Federation and its subjects; international agreements; collective agreements and social partnership agreements in labor law). Is it possible to consider the decision of the Plenum Verkh. Courts of the Russian Federation? The prevailing view is that it is impossible. This is not a source of law, but a type of official. interpretation of the law. They are guiding explanations and are binding on courts and other authorities applying the law. Is it possible to consider the decision of Konst. Courts of the Russian Federation? The prevailing view is that it is possible. And Konst. The court sometimes recognizes the force of precedents behind them and refuses to accept cases for consideration if a similar case has already been considered in relation to the constitutionality of another law. There is a point of view that the decrees of Konst. The courts of the Russian Federation should be considered not as a source of law, but as an act of application of law (of the Constitution). 27. NORMATIVE LEGAL ACT: CONCEPT, TYPES. LAW Regulatory legal acts (NLA) - official documents containing legal. norms (i.e., generally binding rules of conduct) adopted by the state. bodies or other authorized bodies or persons. Signs of NPA: 1) it is a written document; 2) contains an imperious expression of will; 3) this declaration of will establishes the norms of law; 4) the act is approved by the authorized body. It can be not only Mr. body, but also a local government, as well as the administration of any organization that approves a local act. e.g. inner order rules. NPA system: 1) the Constitution; 2) laws; 3) by-laws. Law - this NPA, which has the highest legal. by force, adopted in a special manner and regulating the most important social relations. Signs of the law: 1) law is NPA; 2) has supreme legal authority. There is a hierarchy of laws: a) the Constitution of the Russian Federation. Federal constitutional laws must not contradict the Constitution; b) international treaties are part of the legal system of the Russian Federation. In the event of a conflict between a law and an international treaty, the rules of the international treaty shall apply. The legal force of an international treaty is higher than the legal force of a constitutional law, but lower than that of the Constitution; c) simple federal laws (FZ) should not contradict the Constitution and constitutional FZ; d) some codes contain norms according to which they are given special legal force in comparison with other simple federal laws; e) the laws of the subjects of the Russian Federation, adopted on the subjects of joint jurisdiction, must not contradict the Constitution of the Russian Federation and the Federal Law; f) the laws of the subjects of the Russian Federation, adopted on the subjects of the jurisdiction of the subject of the Russian Federation, must not contradict the Constitution of the Russian Federation; 3) special procedure for acceptance - by parliamentary means or by means of a referendum: a) The Constitution was adopted by means of a referendum on December 12, 1993. Its chapters on the fundamentals of const. order, on the rights and freedoms of man and citizen, as well as on the procedure for changing it, can only be changed by revising the Constitution. The rest of the provisions - by amendment; b) federal constitutional laws (FKZ) are adopted only on issues for which the Constitution expressly provides for the adoption of the FKL (on the judiciary). By qualified majority in 3/4 °т the number of members of the Federation Council and 2/3 deputies of the Duma. The President does not have the right to veto the adoption of the FKZ; c) Federal laws are adopted by the Duma, approved by the Federation Council and signed by the President. The President has the right suspensive veto. It is overcome by a qualified majority in 2/3 votes in each of the chambers; d) the laws of the constituent entities of the Russian Federation are adopted in accordance with the procedure established by the Constitution or the Charter of the constituent entity of the Russian Federation; 4) the law regulates the most important public relations. In particular, the restriction of the constitutional rights and freedoms of citizens is carried out only on the basis of the Federal Law. 28. REGULATION OF LAW: CONCEPT, SIGNS, STRUCTURE A rule of law is an established (or sanctioned) and state-protected universally binding rule of conduct. Signs of the rule of law: 1) the general obligatory nature of the norm means that it is - a) addressed to an indefinite circle of persons; b) designed for repeated use, c) is a standard, "equal scale", applied to different persons and situations; 2) the rules of law in their totality form legal institutions, branches of law and law as a whole, i.e., the rules of law constitute in their system the content of law in an objective sense; 3) the norm finds its expression in the forms recognized in the given legal system, i.e. sources of law (depending on the type of source, the norm of law is either established by the state, for example, by approving a normative legal act, or is sanctioned by the state, for example, if the court applies the business custom); 4) the rule of law regulates social relations, that is, it is a social norm; 5) unlike other social norms, the rule of law is protected by the state, including through the use of measures of state coercion; 6) the rights and obligations of the participants in the legal relationship of the Logical structure of the legal norm is a scheme of three elements: 1) if (hypothesis) then (disposition), otherwise (sanction). Hypothesis - an indication of the conditions under which the norm is applied. Disposition - an indication of proper or permissible behavior under such conditions (ie, an indication of the rights and obligations of the parties). Sanction - coercive measures applied in case of failure to comply with the disposition, i.e., measures of responsibility (or incentive measures - if this is an incentive norm). Back in the 1960s, the traditional three-element structure of the norm was criticized, since this system does not coincide with the terminology used in the branch sciences. For example, in criminal law, a disposition is an indication of the corpus delicti, and not at all of proper behavior. The now widely accepted two-element norm structure has been proposed: regulatory norms consist of a hypothesis and a disposition, while protective norms consist of a disposition and a sanction. 29. CLASSIFICATION OF LAW. WAYS OF STATEMENT OF THE REGULATIONS OF THE LAW IN REGULATORY LEGAL ACTS 1. The norms of constitutional, administrative, labor, civil, criminal and other branches of law are distinguished by branches of law. 2. By function: regulatory and protective. Based on this classification, the now popular two-element structure of the rule of law was proposed: regulatory norms consist of a hypothesis and a disposition, and protective norms consist of a disposition and a sanction. 3. By the nature of the rules of conduct enshrined in the norms: 1) obligatory (mandatory) - establish the obligation to perform certain positive actions; 2) prohibitive - prohibit the performance of certain actions; 3) authorizing - give participants in public relations the right to take positive actions in order to satisfy their interests. 4. According to the degree of certainty of the elements of the norm: absolutely certain - these are norms that determine the hypothesis, disposition and sanction with absolute accuracy (for example, when the Federal Assembly adopts a constitutional law, the President is obliged to sign it and does not have the right to veto it); relatively certain - they usually determine the sanction, and sometimes other elements of the norm, not absolutely, but by indicating the minimum and maximum limits of any of the features that characterize the element of the norm (for example, murder according to the general norm is punishable by imprisonment from 6 to 15 years); alternative are norms that provide for several options in describing their hypothesis of disposition or sanction (eg, aggravated murder is punished alternatively by imprisonment for up to 20 years, life imprisonment or the death penalty). 5. By logical scope norms are general и special. The general norm always logically embraces the special one. In case of competition between a general and a special rule, a special rule shall be applied. For example, the norm on murder is general, the norm on murder in a state of passion is special. Way of presentation does not affect the content of the norm, but only characterizes the form of its expression. The norm can be written in full in one article of the law, which is rare. It can be written in several articles and even in several different laws (for example, the Land Code provides for rules for the protection of land, criminal and administrative liability for their violation is provided for in the Criminal Code and the Code of Administrative Offenses). Several norms can be written in one article, for example, art. 222 of the Criminal Code provides for independent rules on the illegal circulation of firearms and edged weapons. Combinations of the above options are possible. The norm may be reference, i.e. refer to another article of the law, it may be blanket, i.e. refer to another legal act. The norm is the content of law, and the law is only its form. 30. SYSTEM OF LAW System of law - this is the internal structure of law, consisting of interrelated norms, institutions, sub-sectors and branches of law. Features of the legal system: 1) her primary element act law, which are combined into institutions, sub-sectors and industries; 2) the system is not reduced to simple aggregate elements, but implies them unity, primarily functional; 3) the elements of the system are interconnected due to which the system is a certain integrity; 4) the state of the legal system is determined by historical, economic and other external factors, it is objectively determined, and is not the result of the arbitrary discretion of the legislator. The system of law is not identical to the legal system. The first is only part of the second. The legal system, in addition to the system of law, includes legal doctrine and ideology, as well as legal practice. The term "legal system" is widely used in comparative law when classifying legal systems into families. Branch of law - this is a system of legal norms that regulate a certain sphere of homogeneous social relations by methods characteristic of it. Branch - the largest subdivision of the legal system. Industries are made up of sub-sectors, institutions, and rules of law. Allocate basic, derivative and complex industries. To the main include: 1) constitutional, 2) civil, 3) administrative, 4) criminal, 5) criminal procedural and 6) civil procedural law. The main industries are characterized by the internal unity of the subject and method of legal regulation. This is also typical for derivatives industries, but their specificity lies in the fact that they have historically separated from the main ones and previously constituted their sub-sectors or institutions. For example, labor law in the late XIX - early. XX centuries originated from a civil contract of personal employment. Later, family and housing law separated from civil law. From the criminal law, the penitentiary was separated, from the constitutional - municipal. Complex branches unite the norms of other branches of law and regulate homogeneous social relations by various (typical for the main branches) methods, most often they combine the norms of civil and administrative law. This includes land, economic, agricultural, environmental, financial law. sub-branch of law, like the industry, it regulates homogeneous social relations, however, as a rule, it does not have its own method of legal regulation, but uses the methods of the parent industry, and is part of it. For example, within the framework of civil law, sub-branches of copyright and patent law are developing. In essence, the sub-branch is a large and complex institution of law. The institution of law is a set of rules of law that regulate a certain type of homogeneous social relations within the framework of a branch of law. 31. CORRELATION OF THE SYSTEM OF LAW AND THE SYSTEM OF LEGISLATION. SUBJECT AND METHOD OF LEGAL REGULATION The system of law and the system of legislation correlate as form and content. System of law is a system of interrelated legal norms of institutions and branches of law. Legislative system - this is a system of normative legal acts, i.e., only one of the types of sources (forms) of law. primary element system of law is the rule of law, the primary element of the system of legislation - normative legal act. The legal system has only horizontal structure (norms are subdivided by sectors, sub-sectors, institutions), and the system of legislation has, in addition to horizontal, additionally vertical structure (hierarchical). The system of law and the system of legislation are different by volume: 1) legislation does not cover the whole variety of even forms of law, for example. legal customs; 2) the legislation (regulatory legal acts) contains not only the rules of law, but also other elements, for example. titles and article numbers. The system of law is less dynamic than the system of legislation, which is more dependent on the will of the legislator. On the other hand, the rules of law can change even without changing the law, if, for example, the official interpretation of the law has changed (for example, the Plenum of the Supreme Court of the Russian Federation, due to changes in the conditions of public life, amends its explanations on the interpretation of the law). When dividing the norms of law into branches, two main criteria are used: the subject and method of legal regulation. Subject legal regulation - these are the social relations that the law regulates. Method legal regulation is a set of legal means, techniques, methods by which legal regulation is carried out. Some scientists distinguish two main methods of legal regulation: 1) imperative - method of authoritative prescriptions and prohibitions, the rights and obligations of the parties are established by directive and cannot be changed by agreement of the parties 2) dispositive - the method of permission, the parties can independently determine their rights and obligations by agreement between them. Sometimes other methods are also distinguished, for example, the method encouragement (rewards) for desired behavior; advisory method (recommendation of desired behavior), which, for example, is widely used in the legal regulation of accounting. Other jurists as the main methods of legal regulation call command, prohibition and permission. 32. PUBLIC AND PRIVATE LAW. SUBSTANTIVE AND PROCEDURAL LAW. NATIONAL AND INTERNATIONAL LAW The division into public and private law arose in ancient Rome. According to the Roman jurist Ulpian, public law "refers to the position of the Roman state", and private "refers to the benefit of individuals." Private right regulates relations between people and their organizations as between legally equal subjects. These relations arise at the initiative of the parties to meet their needs. The parties themselves, voluntarily and without coercion, assume rights and obligations. Specificity public law relations in the fact that these are either relations of power, or relations that develop regarding the exercise of power (for example, relations between mutually non-subordinate state bodies, or relations regulated by suffrage). К private law traditionally include: 1) civil law, 2) labor, 3) family, 4) housing. К public law include: 1) constitutional, 2) administrative, 3) criminal and civil procedural law. Complex industries, eg. economic, agrarian, environmental, unite the norms and institutions of both private and public law. A complex issue is the nature of criminal law. The French often refer to it as private. The Germans refer it to public law, but they distinguish it as a special group, since criminal law is aimed at protecting the interests of a person. In Russia, criminal law is traditionally referred to as public law. material norms directly establish the rights and obligations of people and their associations in relation to any benefits of direct value (ie, material subjective rights). Procedural rules fix the procedure for the protection and implementation of these substantive rights, i.e., the rules of procedure. There are entire procedural branches: criminal and civil procedural law. In other sectors, there may be separate procedural rules and even institutions, for example. legislative process in constitutional law. Specificity international public law in that it transcends the national legal system, although it may form part of it. For example, the Constitution of the Russian Federation stipulates that international treaties of the Russian Federation form part of its legal system, and in the event of a conflict between a law and an international treaty, the rules of the international treaty are applied. This specificity does not apply to private international law, which is one of the branches of national law. Another important feature is related to the specifics of the protection of the norms of public international law. Previously, it was believed that these norms are generally devoid of sanctions. Now the point of view has changed. They are protected by other states and international organizations. At the same time, coercion is not ruled out, for example, the mechanism of the UN Security Council can be used. 33. TYPOLOGY OF LEGAL SYSTEMS The problems of the typology of legal systems in France were developed by Rene David, in Germany - by Zweigert. In Russia, until recently, they were not the subject of a special study, although all the main features, for example, of Anglo-Saxon and Romano-Germanic law, were known to Russian and German jurists as early as the XNUMXth century. Legal system - 1) taken in interconnection 2) characteristic of a given state and 3) historically conditioned: a) features of the social system (not in the Marxist, but rather in the cultural understanding); b) key legal doctrines and features of legal understanding; c) the main features of the sources and content of law. legal family - a group of legal systems united by similar conditions of historical development and therefore have significant "common features" that distinguish them from other legal families. At the same time, no single criterion for classifying legal systems by families is proposed. We are talking about the historical "kinship", the objective similarity of legal cultures. Major legal families: 1) Romano-Germanic; 2) the socialist family. rights (which comes from Romano-Germanic law); 3) common law family, which we usually call Anglo-Saxon (although the actual Anglo-Saxon period in the development of English law ended with the conquest of England by the Normans of William the Conqueror, after which Common Law arose and those features that characterize today the "Anglo-Saxon family" appeared); 4) Islamic law; 5) the law of India; 6) law of countries The Far East (China, Japan); 7) law of countries black africa ("black" it in contrast to the Arab North Africa). Zweigert proposes a different classification. He believes that the "Germanic" и "Romance" families are independent families. Names Common Law family "Anglo-American" highlights "northern" (i.e. Scandinavian) legal family. 34. ROMAN-GERMAN AND ANGLO-SAXON LEGAL SYSTEMS As features of the Romano-Germanic ("continental") family (Germany, France, Russia, Italy, Spain, Poland, etc.) are commonly referred to as: 1) formation under conditions receptions of Roman law; 2) main source of law law (including code). Many branches of law are codified; the role of by-laws is gradually increasing more and more; the importance of the "cassation precedent" is also growing, i.e., the decision of the highest court considering the case in cassation (some jurists even consider it a source of law, others simply talk about its high authority); 3) there are specialized bodies of const. control: const. courts or councils, cat. may or may not go to court. system (for example, in France the Constitutional Council is not a court); 4) trial by jury is very rare, for example. in Spain and Russia; in the Romance countries (France, Italy, etc.), the assize court prevails (it differs from the jury in that, although the jurors are chosen by random selection, they do not deliver a verdict on their own, but with the participation of professional judges who are present in the deliberative room ), in Germany, the family (Germany, Austria, Hungary, the Czech Republic, etc.) is dominated by the court of sheffens (cats are not selected by random selection, but are elected by the population, in the process they have almost equal rights with a professional judge, they decide both questions of fact and and questions of law are involved in sentencing). The cognizance of cases by single judges is constantly growing. ug. the process is mixed: investigative at the pre-trial stages, adversarial in court. In the Romanesque countries, the investigating judge performs the search function (in Russia before the revolution he was called the judicial investigator), in Germany - the prosecutor's office and the police (as in modern Russia). The investigative (or investigative) function combines the obligation to prove the accusation and, on the other hand, the unbiased conduct of the case, the identification of exculpatory evidence. In France, the investigating judge makes all decisions in a case without obtaining any sanctions. In Germany, the actions of the prosecutor and the police are controlled by the court. As features of the "Anglo-Saxon" - (England, USA, Canada, Australia, New Zealand, etc.) family usually called: 1) the influence of Roman law was less than on the continent; 2) the main source of law is a judicial precedent; the role of laws (statutes) is gradually increasing, but the statutes are quite freely interpreted by judges, that is, the statute is always supplemented by a precedent; 3) absence of const. courts, function const. controls are exercised by ordinary courts; 4) a very broad jurisdiction of the jury, full competitiveness ug. process, including at the pre-trial stages. There is no figure of the investigator. The lawyer has broad rights in the field of collecting evidence, in which he is actively assisted by private detectives. 35. MECHANISM OF LEGAL REGULATION: STAGES, WAYS Legal regulation mechanism is a system of legal means that ensure the implementation of the goals of legal regulation. The question of the goals of legal regulation is debatable. There is an opinion that this is the realization by interested parties of their legitimate interests. However, legal regulation is carried out not by interested parties, but by the state. Therefore, it seems that the goals of legal regulation are determined by the functions of the state. Citizens, political parties and other public associations, as a general rule, do not exercise legal regulation, but they can participate in the implementation of legal regulation by the state, for example: a party faction can vote in parliament, a citizen can perform the functions of the President of the Russian Federation or participate in a referendum. There are exceptions to this general rule related to the possibility of issuing local regulations: for example, an employer can issue internal regulations, can sign a collective agreement with employees. Thus, he carries out the legal regulation of labor relations within the framework of this organization. Social partnership agreements within the profession, industry, and even inter-sectoral regional agreements are also possible. Elements of the mechanism of legal regulation: 1) the rule of law; 2) a legal fact that entails the emergence, change or termination of a legal relationship; 3) the legal relationship itself; 4) realization of the right (i.e. its observance, execution and use); 5) legal liability for the offense. Stages of legal regulation: 1) law-making, 2) the emergence of a legal relationship, 3) the implementation of law. The application of the law, including the application of measures of state coercion (ie responsibility), is an optional stage. Methods of legal regulation: subordination (i.e. authoritative prescriptions and prohibitions, the imperative method, characteristic, for example, of administrative and criminal law) and coordination (i.e., permission, a dispositive method characteristic of civil law, when the parties, within the established framework, can determine their rights and obligations on the basis of an agreement between them). 36. LAW-MAKING: CONCEPT, SUBJECTS, STAGES Lawmaking - this is a type of activity of the state: as a result of which the political the will is expressed as a rule of law in a certain form of law (ie, in the source of law). This is the first stage in the mechanism of legal regulation. Principles of lawmaking: 1) legality; 2) publicity; 3) democracy; 4) professionalism; 5) strict differentiation of law-making powers; 6) planning. Types of lawmaking: 1) publication of regulatory legal acts; 2) sanctioning state. bodies of legal customs or corporate norms; 3) conclusion of regulatory agreements. Subjects of lawmaking: 1) the state in the person of authorized bodies or directly in the person of the whole people (in a referendum); 2) local self-government bodies (which are not state bodies, which is enshrined in the Constitution); 3) in rare cases - physical. individuals and any organizations when they are authorized to adopt local regulations. Eg. the employer can approve the rules ext. regulations, which contain legal norms binding on all employees of the organization. In most cases, individuals and their organizations have the right to make not normative, but individual legal acts, for example. transactions that create rights and obligations only for the participants in this transaction. Such activity is not law-making, since it does not create any legal norms. Stages of lawmaking: 1) legislative initiative (i.e., the right to introduce a bill in one of the houses of parliament); 2) discussion and revision of the bill (in the Russian Federation it is discussed in three readings); 3) him adoption (in the Russian Federation - by the State Duma, the Federation Council does not adopt the law but only approves it); 4) him authorization (for example, in the Russian Federation, approval by the Federation Council and signing by the President); 5) him promulgation i.e. promulgation by the head of state and direct official publication. Promulgation is the adoption by the head of state of a decision to promulgate a law, direct promulgation is carried out by reproducing the text of the law in an official publication - in the Russian Federation this is Rossiyskaya Gazeta, Parlamentskaya Gazeta or Collection of Legislation. 37. LEGAL TECHNIQUE Legal technique is a system of rules and techniques that ensures the effectiveness of legal regulation and other types of legal activities. First of all, it is a legislative, or rather, a law-making technique. However, legal techniques are also used in the preparation of indictments, contracts, statements of claim, cassation complaints, etc. If we talk about legislative technique, then we can distinguish two groups of technical rules and techniques: 1) some relate to the content of law, that is, to a legal norm; 2) others - to the form of law, i.e. to the expression of the rule of law in the law. Requirements of legal technique to the content of law: a) the rule of law should comply with the objectives of legal regulation (for example, even in Soviet times, after the introduction of the death penalty for the rape of minors, the number of such rapes did not decrease, but the number of murders of minors associated with rape increased sharply). The legislator must foresee the consequences of his introduction of a new rule of law and reconcile these consequences with the goals for which the norm is adopted b)logical consistency of legal norms. The Austrian jurist Kelsen paid much attention to the study of this principle. He drew attention to the fact that the legal norm in its logical content is a judgment with a "deontic modality", that is, a judgment not about what is, but about what should be. Accordingly, he developed the theory of law as deontic logic. Law, in his understanding, is a hierarchy of legal norms, and at the top of it lies the "basic norm" that determines the essence of this legal order. For example, if the Constitution proclaims a person as the highest value, then in the Criminal Code violent crimes should be punished more severely than, for example, theft or bribes; c) the actual possibility of implementing the law should be taken into account; d) sometimes the rules of legal technique include legal presumptions and fictions, although these are more ways of proving in the application of law than methods of legal technique. Requirements of legal technique to the form of law: a) clarity and accessibility of the language of the act; b) a convenient structure of the act so that it is possible to find the necessary norm without significant difficulties; c) the legislator should ensure that the legislation is as systematized as possible (sometimes it may turn out that one essentially uncomplicated legal relationship is regulated by a large number of legal acts); d) when enacting the law in parts, one should take into account how the law will operate without these parts. 38. LEGAL PRESUMPTIONS AND FINCTIONS Legal presumptions and fictions - methods of proof that are used in cases established by law when applying law. Legal presumptions are defined differently in the theory of criminal and civil procedure. Presumption in civil proceedings - the statutory assumption that a certain fact exists if the facts connected with it are proved. For example, in civil law there is a presumption of guilt of the tortfeasor. If the very fact of causing harm is proven, then guilt in causing it is also presumed. Presumption in criminal proceedings is the statutory assumption that a certain fact exists, whether or not any related facts are proven. court verdict (presumption of innocence). Any presumption in Russian law can be rebutted by means established by law. For example, in civil proceedings, any presumption can be rebutted by evidence. The situation is different in the criminal process - there the presumption of innocence can be refuted not by the evidence itself, but only by a court verdict that has entered into legal force. In foreign law, there are also so-called "unconditional" presumptions that cannot be refuted. Fiction - Establishment based on the law of a non-existent fact of legal significance. For example, a person whose criminal record has been expunged or expired is considered not convicted. Although in reality it was condemned. If a person (who is not married to the mother of the child), who knows for sure that he is not the father of the child, declares when registering the birth in the registry office that he is the father of the child, this person is considered the father of the child and is not entitled to dispute paternity. 39. PROCEDURE FOR PUBLICATION AND ENTRY INTO FORCE OF NORMATIVE LEGAL ACTS In accordance with the Constitution, unpublished normative legal acts that restrict the rights and freedoms of a citizen and a person are not applied. The procedure for publishing FKZ, FZ, resolutions of the State Duma and the Federation Council is established by a special Federal Law. Decrees of the President and resolutions of the Government are published in the manner prescribed by the decree of the President. Departmental acts are published in the manner established by the Government of the Russian Federation (the specifics of departmental acts is that if they affect the rights and freedoms of a citizen and a person, they are subject to prior registration with the Ministry of Justice, and the Ministry of Justice may refuse such registration). Legal acts of the subjects of the Federation are published in the manner prescribed by the subject of the Federation. The same applies to acts of local governments. The obligation to publish federal laws rests with the President of the Russian Federation. The law establishes that the date of adoption of the law is the day of its adoption by the Duma, although in practice it is customary to name them by the date the law was signed by the President, for example. law of March 1, 2000 is a law signed by the President on March 1, 2000. Laws are published within 7 days from the day they are signed by the President. International treaties - simultaneously with federal laws on their ratification. Laws come into force after 10 days from the date of their publication, unless otherwise provided by the law itself or the law on its entry into force. The official publication of a federal constitutional law, a federal law, an act of a chamber of the Federal Assembly is the first publication of its full text in the Parlamentskaya Gazeta, Rossiyskaya Gazeta or the Collection of Legislation of the Russian Federation. Publication as a separate publication is no longer considered official. 40. VALIDITY OF NORMATIVE LEGAL ACTS IN TIME AND BY CIRCLE OF PERSONS Action of normative-legal acts in time. In substantive law, for example. civil and criminal, as a general rule, the legal act that was in force at the time the legal relationship arose, that is, at the moment when the legal act took place. a fact that changed the rights and obligations of the participants. For example, in criminal law, this is the moment when a crime is committed. In procedural law, a normative legal act is applied. valid at the time of the proceeding. As a general rule, the law does not have retroactive effect, that is, it does not apply to legal relations that arose before its entry into force. Sometimes a law can be retroactive, e.g. In criminal law, 3 types of laws have retroactive effect: 1) acts that eliminate crime; 2) mitigate punishment; 3) otherwise improve the situation of the person who committed the crime. In Const. fixed: a law establishing or aggravating liability has no retroactive effect. No one can be held responsible for an act that was not recognized as an offense at the time of its commission. If, after the offense has been committed, liability for it has been eliminated or mitigated, the new law shall apply. The current normative legal act is such an act, cat. entered into force and did not lose it. As a rule, the population is given time to familiarize themselves with the new act. For example, federal laws enter into force 10 days after their official publication, unless otherwise provided by law. The law loses its force: 1) in connection with its repeal, 2) in connection with the adoption of a new law that provides for norms incompatible with the previous ones (even if the legislator forgot to repeal the old law) 3) due to the expiration of the term, if the normative legal act was urgent; 4) due to the disappearance of the circumstances on which the operation of the normative legal act was based (for example, the normative legal acts regulating the state of emergency in a certain territory become invalid due to the lifting of the state of emergency in this territory). Question about the operation of the law by circle of persons is debatable. Sometimes it is considered as one of the aspects of the operation of the law in space, that is, as the already mentioned principle of citizenship. Sometimes this issue is considered in connection with the subject composition of the regulated legal relationship, which seems to be incorrect. For example, one might assume that the Veterans Act only applies to veterans as defined in that Act. In fact, this is not so, since this law is mandatory not only and not so much for veterans, but for state bodies that apply this law. 41. ACTION OF NORMATIVE LEGAL ACTS IN SPACE The operation of regulatory legal acts in space is based on 4 principles: 1. Territorial principle - the law is valid throughout the state-va, i.e. within the framework of the state. borders. With regard to certain persons, premises, terrain and transp. funds can be established and a special legal regime, for example. associated with diplomatic immunities. This, however, cannot be understood in the sense that, for example, the territory of the American embassy in Moscow is the territory of the United States and the laws of the Russian Federation do not apply on it. They operate, but subject to the diplomatic immunities established by an international treaty. The effect of the law can be extended beyond the territory of the state to objects conditionally equated to its territory, for example: 1) the continental shelf and the exclusive economic zone, 2) spacecraft, civil ships and aircraft on the high seas and above it , on warships and aircraft, regardless of their location (the flag principle). On the other hand, the operation of some laws may be limited to a certain territory (for example, acts regulating the regime of a free economic zone). 2. The principle of citizenship - the laws of a state are obligatory for the citizens of this state, wherever they are. Sometimes there is an exception to this principle. For example, a citizen of the Russian Federation. who has committed an act prohibited by the Criminal Code of the Russian Federation abroad, cannot be brought to justice in the Russian Federation. responsibility for this act, if it is not a crime in the place of its commission. 3. Real principle - the law is obligatory for all persons, wherever they are, if the behavior of these persons infringes on the most important interests protected by this state. For example, the Criminal Code of the Russian Federation applies to foreigners who have committed crimes outside the Russian Federation, if this crime infringes on the interests of the Russian Federation. 4. Universal principle is the principle of international cooperation in the legal sphere. A state extends its law beyond its territory if this follows from an international treaty (for example, the parties to the UN Convention on the Law of the Sea have committed themselves to combat piracy on the high seas, it does not matter either the flag of the vessel or nationality pirates and victims). 42. SYSTEMATIZATION OF REGULATORY LEGAL ACTS. REALIZATION OF THE RIGHT Systematization of the rules of law - streamlining the existing regulatory and legal material, combining it into a single, harmonious, internally coordinated system. Forms of systematization: incorporation and codification. incorporation, unlike codification, it does not involve changing legal norms. This is simply a union of legal acts in a certain order: chronologically (acts are arranged according to the time of their adoption); by subjects (accepting authorities, respectively); by branches of law or even the national economy (industry, transport, etc.). Incorporation can be formal or informal, for example. any collection of legal acts. As an example of official chronological incorporation, we can cite the Collection of Legislation of the Russian Federation. Codification - this is a form of systematization by combining normative material into a single logically coherent, internally consistent act with a change in legal norms (which are streamlined, transformed, supplemented). The Code, as a rule, regulates in detail relations within a particular branch of law. Codification is always official. Realization of law is the implementation of legal norms in the behavior of people. According to the types of lawful behavior in which the right is realized, There are 4 forms of realization of the right: 1) observance of the law, 2) enforcement of the right, 3) exercise of the right, 4) application of law. Respect for the law - implementation of the prohibition norm, i.e. non-commission of prohibited actions. Enforcement of the right - the implementation of the prescriptive norm, the vigorous activity of the subject, aimed at the fulfillment of his duties. Use of the right - implementation of the permissive norm, i.e., the use of the granted right at the initiative of its subject. Application of law - the authoritative organizing activity of the state in the person of its bodies, which has the goal of ensuring compliance with the prohibitions and prescriptions of legal norms, as well as guaranteeing authorized persons the legal (i.e., formal) opportunity to exercise their rights. In essence, this is a kind of enforcement of the law, which differs from other types of enforcement of the law: 1) by its subjects (law enforcement implies power), 2) goals (law enforcement is usually aimed at protecting the rule of law, the rights and freedoms of citizens), 3) a special procedure and other features. 43. APPLICATION OF LAW, CONCEPT, STAGES The application of law is the authoritative organizing activity of the state in the person of its bodies, which has the goal of ensuring compliance with the prohibitions and prescriptions of legal norms, as well as guaranteeing authorized persons the legal (i.e., formal) possibility of exercising their rights. For example, defending the right to housing, the law enforcer can recognize this right, evict the offender, oblige to provide housing, but cannot build it. Signs of the application of the law: 1) the law is applied only by authorized bodies and officials; 2) the application of the law has a state-imperious nature; 3) the content of law enforcement activity is the issuance of individual legal acts based on the norms of law (for example, a court decision in a civil case, a court judgment in a criminal case, a decision to impose an administrative fine, to bring a person as an accused, to apply preventive measures, to appoint pensions, etc.); 4) the application of the rules of law is carried out in a manner strictly established by the state (in a procedural form or in accordance with less developed procedural rules) Stages of application of law: 1) establishing the factual basis of the case, 2) establishing the legal basis of the case, 3) decision making The first two stages are interrelated and intertwined in time. In essence, we are talking about proving and legally qualifying facts, for example. qualification of the crime. In order to know what facts matter, it is necessary to know which rule of law will apply, and vice versa, in order to choose the right rule of law to be applied, it is necessary to understand the facts that took place. The activities of the law enforcement officer are therefore heuristic in nature (ie, aimed at establishing unknown facts). On the other hand, this activity is legal, as it is carried out in accordance with the rules of law governing the process of proof. 44. ACTS OF THE APPLICATION OF THE LAW: CONCEPT, TYPES, REQUIREMENTS FOR DESIGN The act of applying the law is an authoritative instruction of the authorized state. body or official, which is issued by him as a result of the permission of a particular legal entity. affairs. This is a kind of individual legal act that does not contain the rules of law, but on the basis of existing rules of law determines the rights and obligations of specific individuals and organizations. Signs of an act of application of law: 1) contains an imperious decree, i.e. it is obligatory for the persons and organizations to which it is addressed; 2) adopted by the authorized body or official within its competence; 3) adopted on the basis of consideration of a specific case (i.e., the facts of importance and the rule of law to be applied have been established); 4) has a prescribed form; 5) contains not the norms of law, but an individual prescription. Types of acts of application of law: a) by subjects: 1) state (including judicial and other), 2) municipal and 3) local acts (for example, an order of the director of any organization to reprimand); 6) by branches of law (const. - legal, administrative - legal, civil - legal, etc.); c) on the basis of acceptance: law enforcement (where the basis is an offense) and law enforcement (where the grounds with which the law associates the emergence of a right, for example, when assigning a pension); d) preliminary (for example, acts of preliminary investigation) and final, i.e., resolving the case on the merits; e) in form: written, oral (for example, an oral order in the army) and acts-gestures (for example, a gesture of a traffic controller). Requirements for the content of acts: legitimacy validity, and sometimes justice (eg a court verdict). Requirements for the form of acts established by law and by-laws. Written acts are signed by the official who approved them, with the date stamped. The signature must be legible or deciphered. If the act is written by hand, the text must be legible. The act must clearly state the essence of the decision. The act contains 4 parts: introductory descriptive, motivational and resolutive (which contains an imperious command with an indication of the rule of law). Describe. and motif, parts can be combined into one part. If the law allows the issuance of an unmotivated resolution (or other act), it consists only of an introductory and a resolution. parts The Act may also consist of a "naked" resolution on the text of a document (eg, an executive inscription of a notary). 45. INTERPRETATION OF LAW: CONCEPT, WAYS Interpretation of law - this is an explanation, and sometimes an explanation of the meaning of a law or other legal act. When interpreting, there is a transition from the form of law (i.e., from the text of the law) to the content of law (i.e., to the legal norm). Therefore, it is impossible to completely abandon the interpretation of the law, as proposed, for example, by C. Beccaria. Without interpreting the law, without understanding its meaning, it is impossible to apply it. There is an opinion that interpretation is an activity to identify the will of the legislator, expressed in a legal norm. However, this is not always the case, for example, a legal act could have been adopted a very long time ago, after its adoption, the living conditions of society, the principles of legal regulation have changed significantly. At the same time, the text of the law remains quite acceptable, taking into account modern conditions, and therefore it is not canceled. Determining the will of the legislator is just one way of interpreting the law, which is commonly referred to as historical. Any interpretation presupposes an understanding of the meaning of the law. If the interpretation, in addition, also explains the meaning of the law, it is called normative (or general). Such, for example, are the explanations of the Plenum of the Upper. Ships. Normative interpretation is designed for repeated application, or rather, for repeated use, since it is not the interpretation that is applied, but the rule of law. Ways of interpretation: 1) grammatical (philological) - the use in understanding the text of the law of knowledge about the language in which the law is stated 2) logical - proceeds from the understanding of the rule of law as a judgment with a deontic modality. Even G. Kelsen drew attention to the fact that the rule of law in its logical content is a judgment with deontic modality, while deontic logic is characterized by a number of features, in particular, the hierarchy of norms, their consistency, and system; 3) systematic - the rule of law is interpreted in a system with other rules of law and taking into account the functional unity of legal institutions, branches and law as a whole; 4) historical - revealing the initial will of the legislator, which prompted him to accept this norm and state it in this way and not otherwise. At the same time, socio-historical conditions are studied, changes in legal terminology, in understanding the tasks of law are monitored. 46. TYPES OF INTERPRETATION In terms of volume, the interpretation is: a) literal; (in strict accordance with the meaning of the text of the law, but not repetition); b) restrictive (slightly already literal meaning of the text of the law) and c) expansion (slightly wider than the literal meaning of the text of the law). In contrast to the literal interpretation, restrictive and expansive are usually associated with errors in legislative technique, most often with casuistry (from the word "casus" - a case), that is, with fixing a particular case as a general rule. An expansive interpretation must be distinguished from an analogy. This is of particular importance in criminal law, where analogy is prohibited and broad interpretation is permissible. Analogy It is a way to fill gaps in the law. With a broad interpretation, no gaps in the law are filled - the exact meaning of the law is simply established, which does not always correspond to its letter. There is an interpretation according to the subject; a) official и b) unofficial Unofficial interpretation expresses the opinion of individuals on the question of the meaning of the law. This may be the opinion of a lawyer, the accused, the victim and any other person. To official applies 1) authentic interpretation (there is an opinion that such an interpretation is possible only in relation to by-laws. The State Duma is not vested with the right to interpret the law. Thus, an authentic interpretation of the Federal Law is possible only through the adoption of a new law. But this is no longer an interpretation of the law, but its change. There is an opinion that as an interpretation of the law, one can consider explanations given, for example, in the notes to the articles of the Criminal Code. However, this is not an interpretation of the law, but part of the law); 2) judicial (it can be not only causal but also normative. A causal interpretation is given by the court when considering specific cases. At the same time, the court does not explain the law, but only applies it, having clarified the meaning of the legal norm. The normative interpretation is given in the form of explanations and is designed for repeated use. The right to give such interpretation provided by the Constitutional Court of the Russian Federation (the right to interpret the Constitution), as well as the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation); 3) doctrinal (given by theoretical scientists and practicing lawyers, for example, in comments on laws in textbooks, in scientific monographs and articles. It is not binding, it is only the opinion of a private person); 4) other official (for example, interpretation of the law when considering cases of administrative offenses by officials, interpretation of the law in the methodological recommendations given by the General Prosecutor's Office and the Investigative Committee of the Ministry of Internal Affairs). 47. GAPS IN THE LAW AND WAYS TO FILL THEM Gap in law - this is the absence of a legal norm that could regulate the social relations that have actually arisen, which belong to the sphere of legal regulation. The space can be valid и imaginary A real gap occurs if the given relationship really should be regulated by law, that is, when it enters the scope of legal regulation. An imaginary gap occurs if this relation, due to its specificity, cannot be regulated by law at all, i.e. when it is not included in the scope of legal regulation (for example, it is more appropriate to regulate it by moral standards, corporate standards, or it cannot be at all settled). Differ initial и subsequent "blankness" in the right. The initial takes place if the law did not initially cover all life situations subject to regulation (it is usually associated with errors in legislative technique, most often with casuistry when a particular case is elevated to a general rule). Subsequent whitespace takes place if initially the law corresponded to social needs, and then new social relations arose, the need for the settlement of which the legislator could not foresee. The main way filling gaps is lawmaking. Temporary ways to bridge gaps in law (until the necessary law is passed): 1) analogy of the law (application of the legal norm provided for the regulation of similar social relations); 2) law analogy (application of general principles of law). The question of the analogy of law is debatable (although this institution is enshrined in law, for example, in the Code of Civil Procedure). The fact is that the principles of law are of a normative nature, in connection with which they are often understood as the most general and fundamental norms of law. They are enshrined in the Constitution, which has direct effect, and in other laws. Therefore, if the public relation is regulated by the principles of law enshrined in the law, there is no gap in the law. In his decision, the law enforcer must directly refer to the Constitution or the articles of the law that enshrine the principles of law (and there will be no analogy). The use of analogy is unacceptable in criminal law and in some other cases, for example. in administrative law in terms of cases of administrative offenses. 48. CONFLICTS IN THE LAW AND WAYS TO RESOLVE THEM. CONFLICT RULES Collisions in law - contradictions between legal acts regulating the same social relations. In most cases, they are a negative phenomenon and require eradication. Exceptions are objectively inevitable conflicts in private international law. Ways to resolve or eliminate conflicts 1) lawmaking (obsolete, unconstitutional and illegal acts are abolished, legislation is systematized, international private law can be unified in the field of private international law); 2) interpretation of the law (in particular, judicial interpretation, both in specific cases, and normative, both by the Constitutional Court of the Russian Federation, and by arbitration courts and courts of general jurisdiction) 3) application of conflict rules. conflict rule refers to one or another regulatory legal act (NLA), and in private international law - to the law of a particular state. Such norms can be enshrined in the Constitution (for example, presidential decrees should not contradict the Federal Law). Conflict rules of private international law are enshrined in part three of the Civil Code. There are conflict rules, a cat. are not fixed anywhere (for example, in case of a conflict between the old and the new law, the newer law is applied). This rule follows from the general principles of law, in particular from the fact that the legislator has the right to change the law previously issued by him. In Russian law, the following conflict of laws rules apply: 1) in case of conflict of any NLA with the Constitution, the norms of the latter shall be applied; 2) in case of contradiction of any NLA (except the Constitution) with an international treaty, the rules of the international contracts; 3) further hierarchy of acts according to their legal. strength on fed. the following level: FKZ, FZ, decrees of the President of the Russian Federation, decrees of the Government of the Russian Federation, regulations of ministries and departments; 4) legal the force of acts of the subjects of the Russian Federation depends on the subjects of jurisdiction. If the act is adopted on subjects except conducting the Russian Federation, it does not work at all. If it is adopted on the subjects of joint jurisdiction, it is valid if it does not contradict the fed. acts. If it is adopted on the subjects of the jurisdiction of the subject of the Russian Federation, the act of the subject of the Russian Federation has the advantage (they are not listed in the Constitution, this includes all issues that are not within the jurisdiction of the Russian Federation and joint jurisdiction); 5) legal the force of acts of local self-government is also determined depending on the subjects of jurisdiction; 6) in the event of a conflict between a general and a special act adopted by one body, a special act shall be applied; 7) conflicts in private international law are resolved in accordance with part three of the Civil Code. The general principle is discretion: the parties in a legal relationship with a foreign element have the right to freely choose any law themselves, if they have not done so, then the law of the contract determines the law most closely related to the legal relationship (in most cases, this is the law of the seller). There are also mandatory rules. And etc. 49. LEGAL RELATIONSHIP: CONCEPT, COMPOSITION, TYPES Legal relationship - public relations regulated by the rule of law. In essence, this is the rule of law in its real existence. The composition (structure) of the legal relationship: 1) subjects legal relations (carriers of subjective rights and obligations); 2) content legal relations (rights and obligations of the parties); 3) object legal relationship (that good, about which the legal relationship arose). The basis the emergence, change or termination of a legal relationship is a legal fact or a combination of such facts (legal structure). The legal relationship is characterized by the influence of the state will on the will of its participants. Types of legal relations distinguished according to different criteria. By branch of law legal relations can be civil law, criminal law, etc. Subjects legal relations can be divided into relative (where the right of an authorized subject corresponds to the obligation of a specific individually defined subject, for example, legal obligations in civil law), absolute (where the right of an authorized subject corresponds to the duty of an indefinite circle of persons, for example, property legal relations in civil law) By place in the mechanism of legal regulation distinguish between material (basic) and procedural (derivative) legal relations. By functional role legal relations are regulatory and protective. Protective arise at the time of the offense and are aimed at restoring law and order. All others are regulative, they regulate lawful behavior. According to the objectives of the impact legal relations are divided into static, with the aim of consolidating existing social relations (for example, property relations), and dynamic, designed to cause progressive changes in social relations (for example, legal obligations). According to the content they distinguish between simple legal relations (where one right corresponds to one duty) and complex ones, which consist of the main legal relationship and additional legal relations (for example, criminal procedural relation). 50. SUBJECT OF LEGAL RELATIONSHIP: CONCEPT, TYPES Subject of legal relationship - a participant in a legal relationship, a bearer of subjective rights and obligations The term "subject of law" is sometimes used as a characteristic of a person's legal capacity, that is, the legal possibility of him to have the right. In this case, one speaks of a discrepancy between the terms "subject of law" and "subject of legal relationship". For example, the "subject of the right" of private ownership of land is an individual or legal entity that can acquire a land plot for ownership, however, since a specific person has not yet acquired a land plot for ownership, it is not the subject of such a legal relationship. Each branch of law and each legal norm has a specific range of subjects. A prerequisite for entering into a legal relationship is the legal ability to participate in a legal relationship (legal personality). Subject types: individual and collective subjects. Individual are individuals. Individuals can act as: 1) individuals themselves (e.g. in civil law), 2) citizens (including those with dual citizenship), 3) foreign citizens and 4) stateless persons. Foreign citizens and stateless persons are usually combined into one group - foreigners. Foreigners may be permanently or temporarily "resident" in the Russian Federation, or temporarily staying in the Russian Federation. TO collective relate: 1) the state, both in the person of the Russian Federation and in the person of the subjects of the Russian Federation (for example, as subjects of state property rights); 2) municipalities (for example, Dmitrovsky district of the Moscow region as a subject of municipal property rights); 3) state and municipal authorities (eg court, investigator, prosecutor); 4) legal entities and other organizations that are not legal entities (for example, a newly formed religious association) The subjects of international law, along with states, are international organizations, as well as nations fighting for independence. 51. LEGAL CAPACITY Legal capacity - based on the law the ability of the subject to be the bearer of rights and obligations, a prerequisite for the existence of a subjective right. For example, in civil law, the legal capacity of a citizen arises from birth and ceases due to his death. Legal capacity may be a common и special (eg, the legal capacity of a non-profit organization is determined by the goals of its activities, specified in the charter). Legal capacity may be limited, for example, in connection with the conviction of a person for a crime committed by him, he may be prohibited from engaging in a certain type of activity. Legal capacity - it is the possibility, based on the law, of a natural person to acquire and exercise the rights and obligations by his/her actions. Legal capacity can be full (for adults) and incomplete (for minors aged 14 to 14 years). Legal capacity may be limited if a person abuses alcohol or drugs and thereby puts his family in a difficult situation. Minors aged 16 to 18 (working under an employment contract or engaged in entrepreneurial activities) can be emancipated, i.e. they can receive full legal capacity on the basis of a decision of the guardianship and guardianship authority (with the consent of both parents) or a court decision (if such consent no), as well as in connection with marriage. In most branches of law (except civil law), legal capacity and legal capacity are the same. Then they talk about legal personality (that is, about a single legal capacity). Susceptibility - the ability to take responsibility for one's actions. For example, in criminal law, a natural person who is sane and has reached a certain age (16, and for some crimes - 14 years) is recognized as the subject of a crime. Legal Status - the ability of the subject to have a certain (specific for such a subject) amount of rights and obligations (for example, the legal status of citizens, the status of a judge). Legal status - the sum of the rights and obligations of a particular subject at a certain point in time. Legal status is based on, but distinct from, legal status. 52. LEGAL FACTS: CONCEPT, CLASSIFICATION Legal facts - These are specific life circumstances with which the law associates the emergence, change or termination of legal relations. They are formulated in hypotheses of legal norms. Types of legal facts: 1) according to legal consequences: establishing, changing or terminating rights; 2) by the presence of a volitional element: events, which do not depend on the will and consciousness of people, for example. flood, and actions, i.e., the result of people's volitional behavior. A special kind of legal facts - terms, they are established by humans, but expire regardless of the will of the individual. Actions in which the will is specifically directed to achieve legal consequences are called acts. Actions in which the will is not specifically aimed at achieving legal consequences are called deeds (e.g. creating a work of literature, building a house). Acts can be individual и normative In a normative act the will is aimed at establishing a universally binding rule of conduct, designed for repeated behavior. AT individual act the rights and obligations of an individually defined person or several such persons are determined. Individual acts can be enforcement (e.g. a court verdict) and managerial (e.g., an order for the construction of an object). Legal acts may not have an authoritative nature when they are issued by private persons (both legal and natural). In this case they are called deals. Deals happen unilateral (when they express the will of one person, for example, a will, recognition of a claim) and bilateral and multilateral (treaties). Contracts, on the other hand, can be unilaterally binding (e.g. loan) and bilaterally binding (e.g. credit). By legal nature actions can be lawful и illegal: disciplinary offenses, administrative offenses, civil offenses (delicts), crimes. 3) by structure distinguish simple legal facts и complex legal structures (for example, for the emergence of housing legal relations under a social tenancy agreement, an order is required along with the agreement); 4) a special kind of legal facts, lasting in time - legal states, e.g. citizenship, marriage, family relations. 53. LEGAL BEHAVIOR AND OFFENSE: CONCEPT, SIGNS, TYPES Lawful Conduct - conscious behavior that complies with the rules of law and socially useful goals. Signs of lawful behavior: 1) conscious and strong-willed character, i.e., it must be an act (action or inaction), therefore, for example, the behavior of an insane person cannot be considered either lawful or illegal; 2) formal sign - does not contradict the law; 3) meaningful feature - corresponds to socially useful goals. Me, any behavior that is not illegal is considered lawful, for example, immoral behavior is not accepted to be called lawful. Types of lawful behavior: 1) necessary (eg paying taxes); 2) desired (for example, studying at a university); 3) permissible (eg, moderate alcohol consumption). Depending on the motivation lawful behavior happens: 4) socially active (when a person recognizes the social values protected by law and voluntarily observes, fulfills and uses the law in his activities); 5) conformist (when a person complies with the rules of law, while not realizing their social value); 6) marginal i.e. borderline (when a person does not recognize either social values or the rule of law, but observes them, fearing punishment). Offense - unlawful, socially harmful, guilty act (ie action or inaction) of a delinquent person. Wrongfulness expressed in: 1) a direct violation of a legal prohibition; 2) failure to fulfill the obligation; 3) abuse of subjective right 4) abuse of authority. Any offense must be socially harmful, i.e., encroach on the legally protected interests of the individual, society or state. Crimes have the greatest degree of social harmfulness (public danger). The offense must necessarily be a guilty act. Fault - this is the mental attitude of the offender to his act and its consequences (in the forms of intent and negligence). According to the nature and degree of social harm, offenses are divided into crime и misdeeds (absence of criminal wrongfulness and social danger characteristic of the crime). Misdemeanors can be civil law (torts), administrative и disciplinary. Criminal offenses and administrative offenses belong to public law. Therefore, it is impossible to bring both to criminal and administrative liability for the same act. On the other hand, for a crime or an administrative offense, one can simultaneously be held liable under private law. For example, a person who has committed petty theft at work can be brought to administrative responsibility, dismissed from work and recover from him the damage caused. 54. COMPOSITION OF THE OFFENSE Composition of the offense is the actual basis of legal liability. This is a complex legal fact with which the law associates the emergence of a protective legal relationship. Elements of the offense: object offenses, objective и subjective parties, the subject of the offence. common facility offenses are public relations protected by law. The objective side includes: 1) act in the form of action or inaction; 2) harmful consequences; 3) a causal relationship between them. Some compositions, in addition, are characterized by optional features, which are also given legal significance: time, place, situation, method, instruments and means of committing an offense. The subjective side characterized by fault (and in some intentional crimes also motive и purpose). Forms of guilt: intent and negligence. Intention can be direct and indirect. a) at direct a person: 1) is aware of the social harmfulness of his act, 2) foresees the real possibility or inevitability of harmful consequences, and 3) desires their occurrence b) when indirect a person: 1) is aware of the social harmfulness of his act, 2) foresees the real possibility of harmful consequences 3) does not want their occurrence, but consciously allows them or treats them indifferently. Negligence possible in the form of frivolity or negligence: a) at frivolity a person foresees the abstract possibility of harmful consequences, but frivolously counts on their prevention; b) when negligence a person does not at all foresee harmful consequences, although he should and could, with due care and foresight, foresee them. Motive These are the motives that prompted the commission of the offense. A goal is an abstract model of the future result that the perpetrator seeks to achieve. By the subject an offense is recognized as a natural or legal person with the capacity to delict. 55. LEGAL RESPONSIBILITY: CONCEPT, TYPES Legal liability - this is a legal relationship between the state in the person of its authorized bodies and other subjects of law, obliged to strictly and conscientiously observe and comply with the rules of law. 1. Retrospective legal liability - a complex phenomenon, which includes: 1) the obligation of the offender to endure adverse consequences for him when he committed the offense; 2) an official negative assessment of the deed; 3) the possibility of applying state measures to the offender. coercion and these coercive measures themselves Arises after the commission of an offense Positive Responsibility - exact and steady observance by all subjects of the prohibitions established by law and the fulfillment of duties prescribed by law. In the psychological aspect, it is a person's awareness of the need for lawful behavior. 2. The functions differ compensatory responsibility (aimed at restoring the violated right, although it indirectly contributes to the protection of public order, it is typical for civil law) and penal or punitive (pursues the sole purpose of protecting public law and order). 3. The branches of law distinguish criminal administrative, disciplinary и civil law responsibility. The first two types can be conditionally attributed to public law, and the second two - to private (with the exception of disciplinary responsibility in the army and in correctional institutions). Responsibility principles: 1) legality; 2) equality of all before the law; 3) justice (including individualization of responsibility); 4) humanism; 5) expediency; 6) the principle of guilt (with the exception of some cases of liability without fault provided for by civil law, for example, liability for using a source of increased danger). Today, none of the branches of law no longer consistently implements the principle of the inevitability of responsibility. In private law, the offender is held liable solely on the initiative of the victim, whose right has been violated. Even having a writ of execution in hand, the recoverer has the right not to levy execution on it. In labor law, the imposition of a disciplinary sanction is also not an obligation, but the right of the employer. In criminal law, a person may be released from criminal liability (eg in connection with active remorse). 56. GROUNDS OF LEGAL LIABILITY. CIRCUMSTANCES EXCLUDING LIABILITY. GROUNDS FOR EXEMPTION FROM LIABILITY The actual basis liability is part of the offense. legal basis - the rule of law that fixes this composition. Circumstances excluding liability: 1) incident, i.e. accident - Innocent harm. In civil law, sometimes responsibility also arises for a case, that is, without fault, for example. when harm is caused by a source of increased danger; 2) irresistible force - extraordinary and unforeseen circumstances, due to which the performance of the obligation became impossible (for example, riots); 3) necessary defense - protection from a socially dangerous attack by causing harm to the offender and in the absence of exceeding the limits of necessary defense; 4) detention of a criminal by causing harm to him in the absence of exceeding the measures necessary for detention; 5) performance of official or professional duty, for example, a sentry, observing the charter, shot a drunkard who was moving in the direction of the post and did not obey the orders of the sentry; 6) emergency - infliction of harm in order to eliminate the danger of greater harm, if the danger could not be eliminated in other ways not related to causing harm (for example, they broke someone else's house when extinguishing a fire, extreme necessity excludes only criminal and administrative liability, but does not exclude civil law a responsibility); 7) reasonable risk - i.e. causing harm to achieve a publicly beneficial goal if it could not be achieved without risk and the necessary measures were taken to prevent harm (for example, a test pilot died while testing a new aircraft, a reasonable risk also does not exclude civil liability) ; 8) execution of an order - the responsibility will be borne by the person who gave the illegal order, the execution of a knowingly illegal order does not exclude liability; 9) physical coercion, completely suppressing the will of the person, - the responsibility will be borne by the person who forced the commission of the offense. Grounds for exemption from liability 1) presence of elements of the offense; 2) the inexpediency of prosecuting a person for a committed offense; 3) the presence in the law of a norm allowing exemption from liability; 4) the existence of circumstances necessary for the application of such a norm. Sometimes a court, an investigator, a body of inquiry or a prosecutor can release from liability, and sometimes they must do so. To the grounds for liberation from ug. Responsibility includes active repentance, reconciliation with the victim, a change in the situation, the expiration of the limitation period and other circumstances, for example, a citizen is released from liability for carrying a weapon if he voluntarily surrenders it. 57. LEGAL CONSCIOUSNESS: CONCEPT, TYPES, LEVELS. LAW AND ORDER legal awareness - such a sphere of consciousness that reflects legal reality in the form of legal knowledge and assessments. Legal awareness also includes social and legal attitudes and value orientations that influence people's behavior in legally significant situations. The internal structure of legal consciousness includes two main elements: legal ideology и legal psychology. Legal ideology - a systematic scientific expression of legal views on legal reality. It contains ideas, concepts, assessment of the prospects for the development of law, principles, goals and objectives of legal regulation. Legal psychology - a set of legal feelings, emotions, moods, value relations and other experiences that are characteristic of the whole society as a whole or a specific social group. Legal psychology is partly formed spontaneously, partly under the influence of legal ideology. It is based on the vital interests of social groups and the national mentality. According to the subject composition, legal consciousness is divided into individual, group and public. According to the level of legal consciousness, it can be ordinary, professional and scientific (theoretical). Legitimacy - this is a regime of strict and steady observance of laws and by-laws by all subjects of law. The rule of law - this is the state of regulation of legal relations, when the behavior of all subjects of actually existing legal relations is lawful. Law and order are closely related. If the regime of legality is provided, then social relations represent the rule of law. However, if legality is only a formal characteristic of social relations, then the rule of law has its real content in the form of social relations regulated by the rules of law. Each state has its own legal order, different from the legal order of another state. This allowed G. Kelsen, following I. Kant, to identify the rule of law with the state. At the same time, in the modern understanding of the functions of the state, they are not limited to the protection of law and order. The activity of the state is not limited to the application of law. When making many managerial decisions, the state proceeds not only from the principle of legality, but also from expediency (for example, when deciding on the construction of a facility, on the purchase of certain weapons). Therefore, although the concepts of law and order and the state are closely interrelated, they do not coincide. Legal principles: 1) uniformity in the application of regulatory legal acts; 2) the supremacy of the Constitution and the law in relation to other legal acts, strict observance of the requirements for the hierarchy of regulatory legal acts; 3) real guarantee of the realization of the right, including the guarantee of the rights and freedoms of man and citizen. 58. LEGAL CULTURE AND LEGAL NIHILISM legal culture - part of the general culture, patterns of behavior characteristic of a given civilization in legally significant situations. It is determined by economic and other factors. Distinguish legal culture of the individual и public legal culture. Legal culture of the individual - this is knowledge and understanding of the law, as well as a commitment to a lawful type of behavior, i.e. compliance with legal prohibitions, fulfillment of duties, as well as the use of permissions when necessary to satisfy one's interests. As for public legal consciousness, the individual is characterized by legal ideology and psychology, which find their expression in legally significant behavior. Legal culture of society - this is the level of development of public legal consciousness, which is characterized by: 1) understanding the value of law as such; 2) awareness of the need for all people, as well as their associations, including the state, to act exclusively within the framework of lawful behavior. Legal nihilism - denial or underestimation of the value of law as such. In a practical aspect, it manifests itself in ignoring legal norms in human behavior. The term "nihilism" (from the word "nihil" - nothing) was introduced into circulation by the Russian writer Ivan Turgenev in the novel "Fathers and Sons" Turgenev understood nihilism as a denial of not only law, but also morality. He considered the youth of his day, infected with the ideas of positivism and socialism, to be nihilists. Legal nihilism is characteristic of Russia in general. Bourgeois relations, in which the value of law was historically affirmed, never received a normal level of development in Russia. Even the best representatives of the Russian intelligentsia, for example. philosopher I.A. Ilyin tend to deny the value of law. He believed that law is a Western, formal institution alien to Russia. Western culture is characterized by individualism, litigation. The Russian man needs not law, but faith and morality, not individualism, but the catholicity of the whole people, headed by an Orthodox tsar-autocrat.
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