The main methods of clouding the meaning of words. The clouding of law It is accepted to see such ways of clouding the law
The specifics of the legal clouding influences the process of special procedures, technologies, methods, which have been vibrated after a trivial experience.
"Methods of clouding legal norms tsukupnіst priyomіv і koshіv, scho scho allow usvіdomit zmіst i zmіst norm pravniki and vrazhenoї nіy volі legislator” 8 .
In legal science and practice, the following methods of clouding are distinguished:
grammatical (philosophical, language, textual);
systematic;
logical;
historical and political;
special-legal;
teleological (cello);
functional.
A grammatical method of clouding the law.
Leather legal act є expressed in words Dumku legislator. Words that express a thought may have independent meaning. However, the stench is known with other words in a singable logical connection, after which they swell and suborder to the sensual fret.
The grammatical method is used to explain the sense of the legal norm and to improve the analysis of the text of the normative legal act, and to make a literal difference. If the thought of the legislator is dressed up in words, vislovlyuvannya, understand, and the stench is tied with a logical sound, then the primary need to explain these terminological and grammatical zmist, from which the essence is formed. Tsey process pov'yazanі z z'yasuvannyam znachennya okremih to understand the terms of the normative act. After stating the sense of words and terms, a sense speech is established, for which a rule of law is formulated, with which the grammatical forms of words (rіd, number, vіdminok toshcho.) In order to understand the norms, it was right to understand, it is necessary to understand the meanings of all the different signs, good or the other of the different unions. For example, with a happy union "i", the presence of two or more minds is needed, with separate "abo", "abo" only one of the meanings of such a norm of minds is consummated.
Legal science viroblen low rules of grammatical clouding:
with words and virazam the law should give those meanings, as if the stench may be in the old literary language, as there is no support for their own interpretation;
as in the normative act, the meaning of that chi of the second understanding is given, then in the same meaning and next to understand it, without regard for its meaning in the everyday language;
the meaning of the term, established by the law-making body of one section of law, cannot be extended to other sections without sufficient substantiation;
if the law does not define the meaning of the term, then it follows that you protect that sense, in which case you win in legal science and practice;
it is impossible to give different meanings to identical formulas at the boundaries of one act;
it is impossible to give one meaning to different terms without sufficient substantiation;
it is unacceptable to such a clouding, in which the words of the law were interpreted as zayv. The grammatical method is superior to everything else and richly in which it is determined by its results. However, next vrahuvati, schoden s priyomіv not possible isolated, posture zv'yazyk z іnshimi.
2. Systematic method The clouding of the law is evident from such a quality of legal norms, like a system. Vіn є z'yasuvannya sensu legal norms, s urakhuvannyam її mіstsya, the meaning of the system of law, gallery of law, the legal institution of communication and other norms. With a systematic clouding, the establishment of a clouded norm of law is compared with other norms, as well as with other normative acts. In the process of law enforcement action, it is necessary to remember constantly about the links between the norms of the legal and special parts of the normative act (it is necessary not only to codify the acts, de іsnuє clearly subdivided into two designated divisions - practically in the skin normative act) about links with foreign and special norms of law;
Z'yasuvannya zv'yazku mizh norms is also necessary to the fact that in other norms can be established whether roses'explained from the solemn rule, or to make corrections to the earlier adopted norms, or there may be clearings, which are in front of the colloquial norms.
Using a systematic method, one can reveal the legal force of the legal norm, the scope of the splinter, the validity to the singing eye, the institution of law.
3 . logical way the clouding of law is the chain of clouding of a legal act for the sake of changing it from the stagnation of the law of logic. Tsey way to win independently, especially in other ways.
here doslіdzhuєtsya logical connection okremih the law of the rules of logic. Z'yasovuєtsya, nasampered, internal (logical) structure of the norm, interrelation of three її elements - hypotheses, dispositions and sanctions;
suvayutsya mozhlivі logicalіchnі protirіchchya, if one firmness includes іnshі;
analyzes and evaluates allegories, figurative sense, spivvіdnoshennia to the spirit and letters of the clouded rule.
Logical clouding can be on the other hand, for the help of rules, formally logics will reveal those that the legislator can write down in the text of the law, but without saying it. To this, the subject of darkness is guilty of knowing the laws of logic, logical acceptance, such as a logical transformation, the introduction of secondary norms, the visnovka to understand, brought to the point of absurdity.
On the logical structure of legal norms, the peculiarities of the legislative technique are taken into account. It is necessary for a law enforcement officer to make a clear transformation in the process of law enforcement. Tsya nebhіdnіst zdіysnyuєtsya vnutrishnіshny structure of legal norms, but it does not zbіgaєtsya from zvnіshnіy norm, expressed in the article of the normative act.
Structural elements of legal norms can be matisa on uvazі or perebuvat in other articles of the normative act, or in other normative acts. For example, most of the articles of the Criminal Code were motivated by such a rank that the hypothesis and the sanction, disposition, may be subject to evasion and may be expressed by the words:
And yet, zastosuvannyam some rules of formal logic can not install all the links tlumachenny norms with other norms, її recognition of that qile, socio-political zmіst in these historical minds. Also, the recognition of the rules of law, entrusted with the rules of formal logic, to enforce the laws of dialectical logic.
4. Іhistorical and political The method of clouding the norms of law is used by z'yasuvanni іstoriko-suspіlnyh minds, quiet economic, social, political and other officials, created tsyu legal norm, and navіt analysis tsіlei і zavdan, yakі virіshuє power in viglyadі provodzhennya їх in action. The need for this method is called out by the fact that, with the help of more than just the establishment of legal links, it is impossible to perceive deeply the sensibility and change of the rule of law.
This way of clouding allows you to analyze the same dzherela, which is right: materials, discussions and adoption of draft regulatory acts, early drafts, materials of a nationwide discussion, speeches, thoughts, etc.
The implementation of legal orders is impossible without raising their political and social and economic change in specific historical minds. Tsej sposіb zobov'yazuє pravozastosovnik zvernut respect for those social minds, in which Bula was adopted that chi іnsha norm - chi did not fall ti chi, chi did not change the fundamentally political that economic situation. It is important to explain what the need for the adopted act was, what the need is for. History means a little change, if they were taken for some minds, being formally not told, they continued children, wanting to actually be “dead”. The fact that this other form has not been officially approved does not mean that it is not. The historical and political method makes it easy to understand how the norms can be fixed at a given moment and before these dates, and how - not.
5. Special legal The method of clouding the law is based on the understanding of the will of the legislator, what the legal norms are, through the analysis of special legal ones to understand, categories, constructions for the improvement of professional knowledge of jurisprudence and legislative techniques.
Viraz the sovereign will of the legislator, who takes revenge on the norms of law, zdiisnyuєtsya not only for the help of infamous words, but also specific terms. At the same time, different legal and technical zasobi are won, and different ways, methods and types of legal regulation are protected. Tse everything is required in special legal knowledge, like an interpreter zastosovu in case of clouded norms of law, shards of an individual, like not knowing a special legal language, do not learn to understand the terms and require explanations.
Ale cei sposіb not zavoditsya seldom until the clouding of terms. Zmist yogo richly wide. Tlumachny subject is guilty of vrakhovuvaty special legal regulation, juridical constructions, type of regulation too.
6 . Teleological method the clouding of the norms of law in those who z'yasuvannya sensu of the norms of law zdiisnyuєtsya rozuminnya tsіlei її vidannya. Others and lines are indicated by the act itself, as a rule, by the preamble. Ale tsіlі to the law can also be logically exaggerated from yoga zmіstu, savage directness. One can speak about the goals already by calling the law itself, or else the okremi yogo divisions, norms, articles.
For example, the Criminal Code of the Russian Federation has the following chapters: “Evil against individuals”, “Evil in the sphere of the economy”, “Evil against sovereign power”.
If you don’t take to the point of respect the full mark of the law, then you can start pardoning when you are stuck. First of all, it is more correct to say about the purpose of the next legal act to achieve its effective implementation.
7 . Functional way the clouding of the norms of law is based on the knowledge of the factors of that mind, in which the norm of law is given to function, to die, to be stagnant. Nasampered, there is a lot of confusion about valuation terms (“an important reason”, “sutteva shkoda”, “significant shkoda”, “extreme necessity”, etc.). To improve the features of the city, to the hour of those other officials, one yourself, you can arrange the recognition of the most important or the most important, suttivimi or stotnimi, etc. Sometimes the legislator seeks to protect different specific minds in order to turn to functional clouding. For example, if the amount of alimony is ordered for minor children, the court will provide for the insurance of the material or family camp of the parties and other conditions that “deserve respect” 9
The role of the functional method of clouding is different, depending on the type of statistical and dynamic clouding that prevails in practice. As the dynamic growth prevails, the role of the functional clouding increases, as the statistical one decreases. Therefore, there is a wide spread of analyzes of the way to know the period of the formation of a new legal system, if the children continue the outdated laws. Correction, application of these laws to new minds of life on the basis of the principles of the new policy, justice, morality, on the basis of the appearance of a specific historical situation.
Literature, in its various forms, has some methods of clouding to inflict prestige on others. For z'yasuvannya zmіstu zmіstu normi yakіy zavzhdі vіkoristannya vіkоrіbnіnja vіroy іvіkh priyomіv tlumachennya. Tlumachennya specific norms are based on the grammatical method, given fallow in a specific situation. Virishalne place can be occupied by some other way of clouding, otherwise all of this sukupnist is won.
The specifics of the legal clouding influences the process of special procedures, technologies, methods, which have been vibrated after a trivial experience.
“Methods of confounding legal norms - tse sukupnіst priyomіv і koshіv, allow us to svіdomiti zmіst i zmіst norms of the rule of law and the violation of the will of the legislator” W. Do. Babaev, U. M. Baranov, U. A. Tolstik. Theory of power and law in schemes and appointments.// M.: 1998. - S. 164.
Speaking about the ways of clouding the law, it should be noted that the instruments for the process of enforcing the norms of law. From them, the subject of clouding sees the exact sense of the legal norm. Ways of clouding can be used as special methods, rules, knowledge of the sense of legal norms, vikoristovuvani chi intuitively subject to gain clarity of legal rules.
In legal science and practice, the following methods of clouding are distinguished:
1. grammatical (philosophical, language, textual);
2. systematic;
3. logical;
4. historical and political;
5. special-legal;
6. teleological (cello);
7. richly functional.
A grammatical way of clouding the law of the law is at the forefront of the sense of the legal norm and the improvement of the analysis of the text of the normative legal act, yogo literal change. After stating the sense of words and terms, a sense speech is established, for which a rule of law is formulated, with which the grammatical forms of words (rіd, number, vіdminok toshcho.) For example: the famous viraz, the sense of lying in the middle of a coma, “strategy cannot be pardoned”
Legal science viroblen low rules of grammatical clouding Cherdantsev A.F. Nutritional clouding of the Radian law. S. 82.:
To the words and virazes of the law, give those meanings, as if the stench may be in the old literary language, as there is no support for their own interpretation;
As a normative act, it is given the designation of tієї chi іnshої comprehension, the very meaning of the meaning and the trace of understanding, as opposed to the meaning of everyday language;
The meaning of the term, established by the law-making body of one section of law, cannot be extended to other sections without sufficient substantiation;
If the law does not define the meaning of the term, it follows that you protect that sense, for which you are victorious in legal science and practice;
Identical formulations at the boundaries of one of that act cannot be given different meanings, as the third act is not pronounced otherwise;
It is impossible to give one meaning to different terms without sufficient support;
It is unacceptable that such a clouding, in which the words of the law were interpreted as zayv.
The systematic method of clouding the law is evident from such a quality of legal norms, like a system. Vіn є z'yasuvannya sensu legal norms, s urakhuvannyam її mіstsya, the meaning of the system of law, gallery of law, the legal institution of communication and other norms. With a systematic clouding, the establishment of a clouded norm of law is compared with other norms, as well as with other normative acts.
"The logical way of clouding the law is the clouding of a legal act beyond the light of the law of logic" Elkind P.S. M., 1967. Z. 102.. This method wins independently, especially among other methods. Here there is a logical connection between the rules of the law and the rules of logic; suvayutsya mozhlivі logicalіchnі protirіchchya, if one firmness includes іnshі; analyzes and evaluates allegories, figurative sense, spivvіdnoshennia to the spirit and letters of the clouded rule.
Historical and political way of clouding the norms of law pogay among the z'yasuvanni іstoriko-suspіlnyh minds, quiet economic, social, political and other factors that created this rule of law, as well as analysis of the purposes of that day, yakі virіshuє vіglyadіvаnі v vyglyadі The need for this method is called out by the fact that, with the help of more than just the establishment of legal links, it is impossible to perceive deeply the sensibility and change of the rule of law.
A special legal way of clouding the right to understand the will of the legislator, what the legal norm, through the analysis of special legal ones to understand, categories, constructions with the improvement of professional knowledge of jurisprudence and legislative techniques.
The teleological way of clouding the norms of law in those who express the sense of the norms of law zdіysnyuєtsya rozumіnnya goals її seeing. Others and lines are indicated by the act itself, as a rule, by the preamble. Ale tsіlі to the law can also be logically exaggerated from yoga zmіstu, savage directness. One can speak about the goals already by naming the law itself, or else the okremi yogo divisions, norms, articles. For example, the Criminal Code of the Russian Federation has the following chapters: “Evil against individuals”, “Evil in the sphere of economy”, “Evil against sovereign power”.
The functional way of clouding the norms of law is based on the knowledge of the factors and minds, in which the norm of law is given to function, to be established. Nasampered, there is a lot of confusion about valuation terms (“an important reason”, “sutteva shkoda”, “significant shkoda”, “extreme necessity”, etc.). Sometimes the legislator seeks to protect different specific minds in order to turn to functional clouding. For example, in the event of the appointment of alimony for children with disabilities, the court vrakhovuє material or family stan of the parties and others “deserve for the respect of the furnishing” About the procedure for reviewing the information about the contraction of alimony divs. Decree to the Plenum of the Supreme Court of the Russian Federation dated 25.10.1996. N 9., Family Code of the Russian Federation Art. 80, 81.
Appointed ways to add to the knowledge one by one. When a normative act is clouded, they must be brought to attention at the same time in parallel. The stench gives positive results less in marriage, in mutual penetration; it is not possible to successfully tlumachit a normative act only with the help of any other person.
In this rank, make it easier for the interpreter to penetrate the essence of the legal norm. However, the stench cannot replace the mind of an individual, how to cloud a normative act, one’s life and one’s legal knowledge, one’s legal knowledge. Looking at all the listed ways of clouding, I thought about those, how it’s still easy to explain those other norms. Ale, the process of roz'yasnennya is more important, shards to people, the bulk of our country needs to understand, that the legislator's body is on the verge, such a behavior is the best for us.
In a visnovka about the ways of legal clouding, it is necessary to pay respect to those who stink victoriously in a marriage, in a complex. With this complex variation of methods of clouding, it is not easy to understand, for example, in such a rank, no interpreter, clouding the skin norm, aimed at "sorting out" one way after another. A well-prepared lawyer-professional knows all of these ways to do it without remembering, it’s all by itself, at once, and respect for important missions that don’t go down “on the go”; and less often such important points of truth are brought to work especially, for example, logical and special legal, analysis.
clouding right legal act
Tlumachennya-z'yasuvannya reach for the help of singing tricks (methods):
Grammatic (philological);
logical;
systematic;
historical and political (historical and political);
Special-legal;
functional.
Ways of clouding the law- tse spetsіalnі priyomi, rules and zasobi pіznannya sensu of legal norms, scho vikoristovuyutsya svіdomo chi іntuїtivno subject for zdobuttya clarity schоdo legal velіn.
grammatical The (philological) way of interpreting us in front of the appointed sense of the okremikh slov, inserted a lexical link between them (grammatical clouding). With which lawyer, it is necessary to rely more on knowledge of the language, although when analyzing the text of the rule of law, special legal knowledge may be needed to determine the meaning of specific legal terms (for example, “warehouse of law”, “judgment”, “forfeit”, “representation” then).) .
systematic The method is based on z'yasuvannі zmіstu zmіstu zavlії stavnії shlyakhom zstavlennja її z іnshimi norms tsієї galuzі prava, i navіt іz norms іnshih galuzi, reguliruyushchih tse suspіlne stavlennja. The link between the norms of law reflects an objectively significant link in the regulation of the suspension vessels. Therefore, only with the improvement of these connections, one can understand the correct skin sensation from legal norms.
Z'yasuvannya zv'yazku is also necessary for those who in other norms can be established as a deviation from the global rule, or corrections have been made to previously adopted norms, or gaps may appear, in front of colloquial norms.
Historical and political The method is used in z'yasuvanni іstoriko-suspіlnyh minds, quiet economical, social, political and other factors, which called for the life of the rule of law, as well as analysis of goals and objectives, like a virušu state at the sight of the introduction of її into action. Without a historical and political clarification of the change of legal norms, there will be an insecurity of such decisions, which will be formally correct, but, in fact, incorrect. Formally obstructing the law is one of the most serious violations of the rule of law. Zastosuvannya legal norms for the sake of correct disclosure of political sensation and a clear assessment of all the circumstances of the right, what is being looked at.
Teleological (cily) clouding closely related to the front, in fact, they can be combined into a single intellectual act. Tsіl'ove tlumachennya transfer z'yasuvannya tsіley vydannya tsієї norms in order to implement the right will of the legislator in the process of zastosuvannya. Most often, the legal norms are formulated in the very text of the law in the preamble, or in a seemingly complete statute (for example, the task of the RF CC is formulated in Article 2).
The texts of juridical norms often contain different formulas, which require disclosure and concretization of a hundred different individual vipadkіv. For example, the law respects violations of labor discipline absenteeism without good reason. For the correct understanding of the reasons for absenteeism, the recognition of these and other reasons, important and unimportant, it is necessary to explain the suspension and political sensation of the norms of labor legislation.
Special legal method- tse doslіdzhennya tehnіko-legal zabіv аnd priyomіv vykladu vіkladu vіlі legislator, founded on special knowledge of juridical science and nasampered juridical technics. Special-legal clouding includes the following:
Normative clouding, i.e., such a declaration of the will of the legislator, for whom the normative rule of conduct is established;
Constructive clouding, i.e., stating the peculiarities of a legal structure (for example, when the norms of a contract are clouded, the meaning is important, which is the price of the agreement - the purchase and sale of the gift);
Appointment of Galuzev's power of legal norms,
Terminologically tlumachennya (“forfeit”, “fine”, “penalty”, “outpost”, “guarantee” is just that).
logical way tlumachennya - tse vivchennya logical structure okremih the provisions of the normative act. The subject of analysis is to become the words themselves, and the sequence of words is that yogo spivvіdnoshennia among themselves. At whom zastosovuyutsya different logical approaches (for example, brought to the point of absurdity).
Functional way cloudiness is not seen by all authors. Under him, there is a cloud of confusion, which spires on the officials that mind, in which the rule of law is implemented. Here, important meanings are given to valuation terms and virazam (“summancy”, “important reason”, “necessity”, “children's interests” too). Tsey priyom rich in what spіvpadaє s іstoriko-politichnym.
36. Understand, vyznachennya, see that way of clouding the right. Characteristics of the assets of the clouding of law.
Understanding the clouding of rights
Law enforcement activity for a deep understanding of the implementation law. The choice of legal norms itself conveys the understanding of their mind. Dialnost z osmyslennya that explanatory sensu normative-legal orders for zastosuvannya took away the name of tlumachennya rights.
Object of cloudingє normative legal acts and yogo sukupnіst. The subject of clouding the will of the legislator speaks out, expressed in the law to another normative legal act.
The need for the clouding of the law is motivated by the fact that:
the rule of law, looming wild in nature, zastosovetsya to specific life situations;
legal norms to understand a lot of special legal terms, scientific categories and understand;
in the act, it was not qualified to win the lawmaking technique, daily readings, linguistically unambiguous formulation of norms, which leads to ambiguities of the legal sense, if there are ambiguities;
the inconvenience of the sense is obvious, as a legislator has introduced a rule of law, about those senses that excite the textual development of the rule of law.
Tlumachennya rights may be universally significant, shards are found in all types of legal activity. Vono secures more correctly, one-mannitary understanding of that stosuvannya rights in the whole territory of the country. Tlumachennya acts as an active zasіb of legal vihovannya, a wildly important promotion of legal culture of the bulk of the townspeople.
Tlumachennya rights- ce іntelektualno-volyova dіyalnіst dіyalnіst yаlnіst ієktіv pravіv schodo z'yasuvannya that roz'yasnennya sensu norms of law, scho manifested in a special legal act.
From which appointment you are screaming, what obov's tongue elements of legal cloudingє z'yasuvannya sensu legal and roz'yasnennya їh zmіstovogo zmіstu.
Tlumachennya-z'yasuvannya - tse vnutrishnіy rozumovy process, scho not to go beyond the boundaries of the interpreter himself.
Tlumachennya-roz'yasnennya - tse diyalnist, as follows for z'yasuvannyam i polagaє u clarified that vikladі sensu sovereign ї volі іnshih participants vіdnosin.
In this rank, z'yasuvannya - tse tlumachennya "for yourself." In times, if the subject of the clouding in this chi іnshіy form іslovlyuє results z'yasuvannya іnshih osіb, may roz'yasnennya. Tlumachennya mozhe settles down only z'yasuvannyam, prote at vypadkah, if zdіysnyuєtsya and roz'yasnennya, the process of za'yasuvannya is the first stage of the infamous process of clouding the normative legal act.
Ways of clouding the law
Іsnuє a number of crossings on the way to the conclusion of the exact sense of legal norms, yakі dolayutsya for additional special methods of clouding (z'yasuvannya). Theoretically, rights are seen in the following main ways of clouding:
philological;
systematic;
logical;
historical.
Philological method of clouding sometimes called grammatical. Wine includes morphological (based on the internal structure of the word) and syntactic (based on the rules for the use of words in the speech) clouding. Particularly respect for this method of clouding is given to the survival of successful and diverse splits, as well as to various forms of diesels and dieprikmetniks. It’s good to see that in order to de worth a coma at the rechenni “strategy cannot be pardoned”, lay down yoga sense.
Systematic method of clouding grounds on the structuredness of legal texts. Sense stats of a legal act can sometimes be broken down only after the introduction to other articles, in which there are, for example, misunderstandings of the definition of legal terms. The feasibility of those blanket statutes also cannot but be understood without the reference to quiet articles, on the basis of the stench they ask.
A systematic way of tlumachennya vikoristovuєtsya with equalization of high and special norms. In jurisprudence, there is a rule that, to some extent, special norms enclose the sphere of the common norm. For example, art. 80 of the IC of the Russian Federation Article 120 of the Criminal Code of the Russian Federation to slay the blame from the statute, signifying that in the case of emancipation (giving children more than half the age until reaching their full age) such a bond is taken from the father.
Logical way of clouding vykoristannya logical priyomіv z'yasuvannya sensu legal norms. Sound vikoristovuyutsya so priyomi, like a logical transformation, analysis and synthesis, vysnovki step, vysnovka by analogy, vysnovki like the protilezhny, brought to the point of absurdity, vignettes of the third and іn.
Historical method of clouding help to establish a sense of legal norms, minds її viniknennya. In this case, the interpreter relies on knowledge about a concrete historical mind, reason, and bring it up, calling for the acceptance of the clouded act, in order to clarify this sense. The most important things can be arranged, as they stand for the law-making process: draft normative legal acts, explanatory notes to them, transcripts of discussions in legislative bodies, articles from the press.
In juridical science, using the method of clouding the law, you should begin to understand the sequence of specific practices and expenses, with the help of which it is possible to develop the rule of law. In the literature of the theory of power and law, the following methods of clouding are suggested:
1. Grammar (philological, verbal, verbal, textual) way , which allows us to understand the change and change of legal norms on the basis of analysis of the text of a legal act (grammatical links between words are checked, placement of different signs, splits, etc.).
2. logical method, which allows you to know the rule of law through the rules and laws of logic. In this way, there are so many ways to accept, like a logical transformation, a logical analysis and synthesis to understand, to deduce secondary norms, to draw from analogies, to bring them to absurdity and in. rules of law.
3. Systematic (systemic) method, allows to designate the scope of the law norms in the gallery of law, the institution of law, a specific normative legal act; reveal the scope of di ї legal norms, how many osіb on some won't expand, links and kolіzії z іnshimi norms of law. The most obvious way of clouding is manifested in the analysis of the norms of the Central and Special parts of the law.
4. Historical and political (historical) way. The Danish way of clouding allows z'yasuvati zmist and zmistom legal norms, turning to historical minds and reasons for accepting, political, social, economic goals and motives, like having followed the legislator. With whom, the subject of clouding does not look only at the norm, what to cloud, but also drafts of normative legal acts, materials of discussion, speeches, as they formed the basis for the adoption of the existing norm of law. Іstoriko-polіtichny sposіb dozvolyaє viyaviti pravovі norms SSMSC vzhe not regulyuyut really іsnuyuchі suspіlnі vіdnosini, ale formally prodovzhuyut slit dіyati (napriklad, zakonodavchі that pіdzakonnі acti RRFSR (CPCP) SSMSC dіyut through vіdsutnіst іnshih normative legal aktіv scho regulyuyut qiu scope vіdnosin, wanting to have their own legally and already outdated).
5. Special-legal (legal, legal-terminological) method. Give the opportunity to comprehend and delve into the sense of doslіdzhuvanoї legal norms, victorious knowledge of legal science and legal practice. Tlumachnik (interpreter) deciphers the rule of law through the understanding of legal terms, legal constructions, moves and style, other approaches and benefits of legal technique, as if they were victorious in the process of creating the text of a legal act.
Special legal method allows vikoristovuvaty methods, acceptance, cost as an official, and unofficial clouding of the norms of law. The special-legal method of clouding the right to follow the grammatical method of clouding, tk. not respecting the similitude, it is impossible without good legal knowledge (for example, about legal facts, about subjective rights and legal obligations, about legal compliance; about the rules, take advantage of that legal technique) , what is the specific meaning of the process of lawmaking and the establishment of rights.
6. Teleological (civil) method allows you to comprehend the legal norm through the explanation of the purposes of creation. The goals of legal norms should be sounded at the preamble of the normative legal act, or at some of the most important provisions, and if necessary, you can analyze the preparation materials, discuss and adopt this act. A large-scale clouding is expected to be of great importance in the case of changes in the country's suspense-political situation, large-scale political, legal, and economic reforms. In this way, the subject of the right is guilty of slandering and zastosovuvat the rule of law depending on the right purposes (for example, the priority method for the state is the supremacy of guaranteeing the rights and freedoms of the people and the bulk).
7. Functional method. This way of clouding the law is in the form of necessity (in the process of enforcing the sense of the rule of law) of reasons and minds, features of the number of osib, month, time for which the rule of law is implemented.
Sound the functional way to stop with cloudy assessment terms (“necessary defense”, “extreme necessity”, “heavy consequences”, “significant clashes”, “hooliganism spontaneously”, “important reasons”, “evil swindle” etc.), as they are seen the law enforcement officer personified for a specific skin situation (for example, a judge for an hour to look at a criminal case about a serious illness when traveling between necessary defenses). To that alone, think and furnish the mother as a rightful, and wrongful character.
8. Method of analysis of the dzherel norms of law zastosovuє raznі priyomi vyznachennya, vyyavlennya that vyvchennya to the original of the officially published text of the legal act, in which the interpreted norm is enshrined.
As a result of such clouding, the identity of the text of the normative act, which is to be clouded, to the original text in the remaining official edition (publications) can be established.
In addition, in the legal literature one can solve a riddle and about other ways of clouding the law, for example theological and sociological ways of clouding the law.
In order to establish the correct sensation and replace the clouded norms of law, it is necessary to establish a sprat of methods of clouding, tk. The systemic and universal idiom gives the most recent, accurate and scientifically based result.
§4. Acts of clouding of law (interpretation acts)
The clouding of the law at the process of roses'clarification of the sense and the change of legal norms and the interests of the subjects is completed by the seeing of the act of the clouding of the law. Acts of corruption of law in scientific and primary literature from the theory of power and law are also called interpretative acts (Lat. interpretatio- tlumachennya, rozkrittya sensu chogos). Acts of corruption of law can be used in a written form. Usnі acts of clouding the law are taken from the singing deeds (for example, explaining the position of the law to a citizen by a lawyer at a legal consultation), letters of the act of clouding the law are documents. The greatest interest for juridical science and practice is to represent letters of official clouding. That is why it is about them below.
Interpretation acts - ce legal acts of the competent state bodies, which may be the result of official clouding.
The legal literature has a lot of discussion about the nature of interpretative acts (acts of official clouding of law). Some vcheni schilnі vvazhat іnterpretаtsiyni acts by the courts of law (for example, acts of denigration of constitutional norms by the Constitutional Court of the Russian Federation). Іnshі doslіdniki dotrimuyuyutsya positions, scho іnterpretаtsіynі є є raznovidom juridical aktіv, аlє є dzherelami pravo, t.to. they are not restored, they are not changed, they are not affected by the rule of law.
Interpretation acts are used in official cases. For example, resolutions of the Plenum of the Supreme Court of the Russian Federation are seen in the "Bulletin of the Supreme Court of the Russian Federation", resolutions of the Plenum of the Supreme Arbitration Court of the Russian Federation - in the "Bulletin of the Supreme Arbitration Court of the Russian Federation", resolutions of the Constitutional Court of the Russian Federation - in the "Selections of the legislation of the Russian Federation" Russian Federation".
Being legal acts, interpretative acts may be of low importance:
1. The act of official clouding of law is an official document, Scho Volodya in a special form, requisites, structure, zmist (decision, decision, ordinance).
2. Acts of official clouding of the law are seen as special subjects(by sovereign bodies, landlords, or by upholding those organizations - legally tlumachennya)
3. The act of official clouding is the last procedural action.
4. Act of official clouding of the right to avenge the legal order– roz'yasnennya legal norms and normative chi causal nature, spramovanogo vіdpovіdnim subjects of law.
5. Acts of official clouding have a sovereign-dominant and obov'yazkovy character. The stench is obov'yazkovymi for quiet cases, like consuming the sphere of їх dії (for example, decide to the Plenum of the Supreme Arbitration Court of the Russian Federation ob'yazkovі for vikonnanny by all arbitration courts - the Federal Constitutional Law "On Arbitration Judges in the Russian Constitutional Court of the Russian Federation", atu obov'yazkovі on the entire territory of the Russian Federation to all organs of the state power of self-regulation, businesses, institutions, organizations, communities - Article 6 of the Federal Constitutional Law "On the Constitutional Court of the Russian Federation").
6. Acts of official clouding of the right to cause the onset of the first legal consequences(for example, the cost of a new importance by the sovereign body of the chi posadovoy special, skasuvannya normative legal act just).
7. Acts of official clouding are being changed under the protection of the state, їх damage caused by zastosuvannya zahodіv sovereign primus.
8. Acts of official clouding of the right to be systemic and hierarchical(For example, decree to the Plenum of the Supreme Court of the Russian Federation higher for legal force, lower decrees of the courts of the republics, territories, regions, and, in case of any stench, approve a single and complete system of legal acts of courts of foreign jurisdictions).
9. Acts of official clouding of law є by legislative acts, which may have a pokhіdny (other-row) character.
10. The act of official clouding of the right, on the thought of some scientists, to make a return force, then. to expand their opinion on facts, facts, and conditions that were small before the adoption of the act of clouding (Prof. A.S. Pigolkin, Prof. V.M. Kartashov, Prof. L.A. Morozova).
Considering that great number of interpretative acts, it is necessary to consider the need for their classification;
behind outward form Acts of clouding rights are subject to lettersі sleep. Useful acts of clouding are expressed in the form of recommendations, consultations, pleasures (stinks are given by lawyers in the process of professional scientific activity). Letters of acts may take a documentary form (for example, comments to the codex), if it is an act of an official clouding, then you may take the form of an official document (decree, decree, praise, decision, laying down) some power, from which moment the act enters into action and in), the structure and the difference.
behind subjects of the clouding of law interpretative acts are subdivided into authentic and legal (delegation, permission).
· Authentic acts of corruption of law are seen as subjects (sovereign bodies, townspeople, etc.) without intermediary acceptance of a legal act in order to avenge the rule of law, in order to slander.
· Acts of legal clouding of rights are seen as a subject, some kind of reaffirmation on the official clouding of the norms of law adopted by other subjects of law (for example, the decisions of the Constitutional Court of the Russian Federation on the validity of the Constitution of the Russian Federation of federal laws, normative acts of the President of the Russian Federation, for the sake of the Federation, the State Duma, the order of the Russian Federation. according to the Constitution of the Russian Federation, no normative acts have been appointed, but the right of legal clouding to you has been delegated to p. "a" part 2 of article 125 of the Constitution of the Russian Federation).
behind legal force in that sphere see :
1) acts of clouding of legislators(for example, decrees for the sake of the Federation and the Sovereign Duma of the Federal Assembly, de give official roses'clarifications of the adopted federal constitutional and federal laws);
2) activities vlady (for example, decrees and orders to the Order of the Russian Federation, punishments and instructions from ministries, acts of other state departments and bodies of vikonavchoy vlady);
3) acts of clouding of judicial bodies(For example, the rulings of the Constitutional Court of the Russian Federation, the rulings of the Plenum of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation, as if explaining the provisions of the Constitution of civil law for the authorities and the landlords, to clarify the court practice and ensure the safety of the courts on the entire territory of the Russian Federation);
4) acti tlumachennya bodies of the prosecutor's office(For example, statements by the Prosecutor General of the Russian Federation, which explain the change of legal norms for the full functioning of the prosecutor's office, the practice of the prosecutor's eye).
behind legal significance Acts of clouding are shared on acts of normative and casual clouding.
· Acts of regulatory clouding of law to have a slanderous and lingering character, to develop like an unmarked stake of osib and hromadas, throughout the entire territory of the state, can be stagnant in a rich way, in order to implement the tlumachuvana rule of law.
· Acts of casual clouding of law to reach a specific state of mind (Lat. casus - a state of mind, a real fact), this may have a greater individual (situational, personal) character. The stench is obov'yazkovimi for subjects, yakі in the scope of the interpreted rule of law, tobto. work on specific osіb and in specific situations, environments.
Acts of clouding of rights can be added behind the curtains of law on the constitutional law, criminal law, administrative law, civil law and others..
In fallow of a legal nature separate acts of clouding lawmakingі acti tlumachennya pravozastosuvannya. Before the first ones, one should introduce normative legal acts, seen in the order of the authentic legal tlumachennya, others represent legal acts that would avenge the legal order in order to correctly establish the tlumed norm of law. As it was said above, some authors are aware that interpreting acts of law-making, being acts of official clouding of law, are at the same time zherel of law (for example, T.N. Radko, L.A. Morozova and others.). Other successors are treated as an opposite position, the crime of interpreting law-making acts as the core of law (for example, V.I. Leushin, N.A. Pyanov and others.), since. attributions of a slanderous character, which are to be found in acts of official clouding of law, not by the norms of law, but by legal provisions (N.A. Pyanov - quasi-gerels of law), if they do not have legal force, but can be legally significant.
In the opinion of the author, they praised the Constitutional Court of the Russian Federation as an interpretative act of lawmaking can be recognized as a dzherel of law, because stench may be zahalnoobov'yazkovіst and skasovayut normative legal acts that superechat the Constitution of the Russian Federation. Tim himself will embody an operative rule of law in his own case, while expressing another legal norm, as in a non-constitutional act.
Turning to the classification of legal acts of clouding, we can name what other types of interpretative acts are used in the legal literature, for example, the deeds of the authors see fallow authorities acts of the ship and administrative clouding; in fallow vіd spheres diy legal (delegated) clouding acti zagalnogo that obmezhenoї dії. Before the first, there are rulings of the Constitutional Court of the Russian Federation, binding on all subjects, to others - rulings on the Plenum of the Supreme Arbitration Court of the Russian Federation, which are binding on less than arbitration courts.
Control nutrition
1. What is the reason for the need for clouding the norms of law?
2. What is the “clarification” and “clarification” in the process of clouding the law?
3. What are the main problems of clouding the norms of law?
4. See the main functions of the clouding of the rules of law.
5. What is the meaning of official clouding and what is the significance for the practice of legal regulation?
6. How do you see the unofficial clouding?
7. What are the grounds for classifying acts of clouding of law?
Section 17. IMPLEMENTATION OF THE RIGHT
