5. Материальное и процессуальное право

Материальное право непосредственно регулирует предметные, материальные отношения. Нормы этого типа устанавливают правила поведения в обществе, конкретные прав и обязанностей сторон правоотношения. Процессуальное право - это порядок реализации норм материального права, а также прав и обязанностей субъектов правовых отношений.

Процессуальное право, имеет много общего с материальным правом, в то же время они имеют некоторые различия. Основные отличия состоят в следующем:

- процессуальное право представляет собой обслуживающую отрасль права, поскольку оно регламентирует юридические процедуры, которые призванные обеспечить деятельность государственных и иных органов и должностных лиц, адекватное применение норм материального права;

- придает определенным видам деятельности юридическую значимость, поскольку в случаях несоблюдения установленной процедуры может наступить признание юридического акта недействительным;

- оно направлено на достижение конкретного юридического результата - например, защиту субъективного права, создание нормативного правового акта, вынесение правоприменительного акта и т.д.;

- оно регулирует общественные отношения, которые являются уже правовыми под воздействием норм материального права.

Процессуальное право, хотя и является обслуживающей отраслью права, оно относится к базовым юридическим категориям, поскольку без юридической процедуры невозможно обеспечить законность в деятельности государственных органов.

1. What is the law? Characteristics of the law.

The law regulates the social relations between the people; it regulates the behavior of people in society. The law from the moment of its existence has always been an instrument for establishing the order in society. The law is a product of social development. The law is based on human morality (this is one of the earliest regulators of social life).

The concept of law can be derived from the definition of attributes (characteristics) of law. They may show us the differences between law and other regulators of social life.

The universal validity. Together with the law in any society there are other social norms: customs, morality (ethics), the norms of any social organizations, religious norms, etc. But in a civilized society only the law is a system of rules, that are obligatory for all members of society. Other norms obligatory only for some parts of the society. Thus, the religious laws applies only to persons witch are professing this religion, the rules of public organizations binding only to their members, etc.

Formal definition. The rules of law formally are expressed (are fixed) in the laws, in other regulations of the State. For the rule of law is characterized by clarity of detail enforceable of rights and duties compared to other social norms. The rules of law constitute a complex system that is different internal unity and logical link between the parts of the system. (System of legal norms and regulations we will study later).

Establishment (or sanctioning) by State. Legal norms in laws and other regulations are set by the state. The state can make law, also by authorizing the customs, treaties, religious norms.

Enforcement of the norms by state coercion. Enforcement of the law guaranteed by the state, which, if it's necessary, shall apply coercive measures. Some social norms are supported by the state only under the condition that they comply with the laws of the State or any other rules of law.

Another sign is the multiple applications of the rules of the law. This means that the rules witch are set in the law are determine the order of behavior in situations that are repeated. The rules of law are not created for a one specific case.

Law as a whole expresses the principles of justice, freedom and equality - the eternal ideals of humanity.

The law has its object of regulation. This is the most important, fundamental social relations - power, property, order in society, state, and so on.

The law has special procedures for the implementation of the law norms. This means that its realization are provide certain procedures, such as criminal, civil, arbitration, administrative legal proceedings, the procedure for resolving labor disputes, legislative, electoral procedure, etc.

2. The legal system.

The law guards, and (or) regulates various public relations, which are interconnected with each other and are form a complex system. This objectively existing system of social relations caused the legal system, its internal unity.

The system of law is an objectively existing internal legal framework, which is expressed in the unity and harmonization in the state rules of law, which are subdivided into relatively independent parts.

The legal system has several levels. The primary element is the legal norm, which has an internal communication and structure (to this question we will return later).

The second level of the legal system - the institutions of law.

Public relations are usually protected and regulated not only one but several norms of law. This is the reason for uniting these norms into a single legal institution. For example, there are, "the institution of property in civil law," the institution of the legal status of a witness" in the criminal law, "the institution of citizenship" in constitutional law.

Third, the main level of the system of law is the branch of law. This is a relatively independent unit of the system of law which includes the law governing a large group of homogeneous social relations.

The division of the law to branches determines two main criteria: the subject and method of legal regulation.

The subject of legal regulation - is the social relations, which are governed by legal norms of the breach (thus, this is a large group of uniform social relationships). Subject of regulation is the main objective basis for the separation of law on breaches.

The method of the legal regulation of the different ways of impact by the State for public relations, which are the subject of regulation of this branch of law.

Specificity of the subject of legal regulation defines from the nature of the relative position of participants of legal relations. In some branches, such as administrative law prevails method is commanding binding, in others, such as civil rights - allowable method (equal sides), and third, for example in criminal law, the prohibition of unlawful method of action.

The system of contemporary Russian law includes the following branches:

• constitutional (state) law - is the leading branch of law, that unites legal norms that reinforce the foundations of socio-political system of the country, organizing principles, drivels and functions of the state, the foundations of the legal status of citizens, the system of public bodies and their core competencies;

• administrative law, whose norms are regulate social relations in the implementation of executive and administrative activities of state bodies, as between themselves and in their relations with citizens (eg, compliance with fire regulations, traffic rules, health regulations, etc. .)

• finance law is a set of legal rules that govern the relationships that develop in the financial activities of the state (the formation of federal and local budgets, the grounds and procedure for collecting taxes and other payments to the budget, etc.);

• civil law - an extremely important, particularly in the market relations development, branch of law. It regulates a variety of property and associated personal non property relations. For example, civil law fixes and protects property in its various forms, establishes the order of beginning, modification and termination of property relations, the conclusion of various contracts, etc. Civil right protects personal non property rights: honor, authorship, right to the name;

• civil procedure law consists of the norms governing the proceedings in the review by the courts of civil, labor and family disputes;

• labor law. These norms regulate social relations in the workplace human condition of employment, working hours and rest time, rules for workplace safety, etc.;

• Family law - the branch of law that regulates marriage and family relations (the conditions and procedure of marriage, rights and responsibilities of spouses, parents and children);

• ecological law - the branch of law that regulates public relations arising in connection with the maintenance of ecological balance in the surrounding nature, the relationship of protection and rational using of land, its subsoil assets, forests, water, flora and fauna, etc.

• criminal law - a system of norms that protect individual rights and freedoms, property in all its forms, social and political system of criminal attacks, and also establishes the types and amount of punishment for their crimes;

• criminal procedure law - a system of legal rules that define the grounds and procedure in criminal cases. The norms of these sector of law are regulate functions of the inquiry, pretrial investigation, public prosecution, courts, their relationships among themselves and with citizens in the course of the investigation and prosecution of criminal cases;

In most countries the law is also divided into two groups: public and private law.

Private law is based on the recognition of legal equality of subjects of law, property independence, freedom of will, initiative and independence of individuals in the regulation of property and other relations. Public law regulates the relations which are based on the power subordination one side to another, such as taxes and other financial relationships. The division of the law to the private and the public is some extent arbitrary. The reason for this - a lot of relationships at the same time also affect a private entity, the state and society in general.

3. The structure and types of legal norms.

The structure of the norm of law – it’s a totality of its elements that provide the functional independence of norm.

The norm of law is a special regulator of social life, so it should clearly define the following factors:

- The conditions under which it takes effect,

- What specific rights and duties has a subject under these conditions,

- What effects set by the government in case of default the rule of law regulations.

Accordingly, following elements stand out in rules of law: a hypothesis, the disposition and sanction.

Hypothesis points to the conditions and cases under which the disposition of the rule of law is realized, and thus binds the abstract (general) type of behavior to a particular facts, places and time.

Disposition contains the regulations of conduct, rights and duties of subjects of legal relationships, determines the measure of allowed and proper behavior. Disposition is the core of the rule of law, without of disposition the law does not exist.

Sanction establishes the adverse effects that may be happened in case of breach of the law. The sanctions contains measures not only of punishment, but also the effect of the prevention of offence, protection and restoration and the compensation measures. For example, administrative detention, the annulment of administrative acts, the pulling down of illegally constructed object, collection of child support payment, compensation for material or moral damage, the restoration on its former place of work illegally fired employee.

Rules of law can be divided into types, based on different bases of division.

By the method of legal regulation, rules of law are classified as mandatory, optional, incentive and recommendatory.

Mandatory rules are categorical, are strictly binding provisions that do not permit any departure from the rules or other treatment. They are strictly obligatory and do not give to subjects any of possibility of choosing options in their behavior, as is prescribed only one option.

Mandatory norms are criminal, administrative and tax law.

Discretionary rules set allow to subjects within the law to choose the most useful option for them or regulate their relations at their discretion, but within legal limits. This kind of rules is typical for civil, family, employment and the business law.

Promotional norms - it's a requirement by the State to provide some incentives for the useful course of action subjects, which is approved by the State and society. The purpose of these norms - to influence at people's behavior through the promotion of various actions. In this case the subject is encouraged, but is not obligated to reach a useful result, he is free to choose or not choose a prescribed behavior, but the guarantee of the state promotion is serious stimulus for achieving specified in the rule-result.

Recommended norms are similar in nature to promotional codes. They establish the behaviors that are desirable from the vantage of the state.

Recommendatory norms does not require its subject to make it under specific actions. The subject can to determine by himself as he should act, but it normally indicates the preferred option of choice. Following the subject of this variant is supported by measures of a positive nature, but in case of ignoring of this advice can come and adverse effects. The State may recommend only what falls within the competence of businesses, organizations, private companies, public associations - the subjects of the law.

The rules of law are divided into prescribe (binding), authorized the prohibitory.

Prescribe norms are binding to a subjects to make certain actions.

Authorize norms are giving to a subjects certain rights or ability to make any positive steps.

Prohibitory norms set bans on certain acts under the threat of punishment.

Norms also divided into types according to their functions. Therefore, there are regulatory norms and protective regulations. Regulatory norms are containing regulations which establish the rights and obligations of parties to legal relations. This is a most of the legal norms. Protective norms intended to protect rules of law, human rights and freedoms, they provide rules for penalties.

Traditionally in theory of law that limit the operation of the rules on time and on the people. By the time of the rules of law are classify on permanent and temporary. Permanent rules of law are adopted without specifying the period of their action, usually, they act before their cancellation by other act. another. Temporary rules are norms which are operate before the due date, and the rules, known as the "transitional provisions".

When they say about the action of the law for the people they have in mind on for what categories of legal subjects are these norms. Here are the general rules of law and special. General rules apply to everyone who is on the territory of the State and special effects are spreading to a specific range of subjects: students, military personnel, retirees, etc. Special rules are applying only to these categories persons, on all other categories of persons, these norms they not affected.

Experts identify as so-called special rules, such as compensatory. The purpose of these norms - as compensation for loss of property and moral damage.

Another type of specialized norms - collisional. They resolve the conflicts between different rules, which regulate differently the same social relations.

Norm of law and the specific article of the normative legal instrument can not match.

There are several reasons. Firstly, the legal technique of the law requires the presentation of a concise statement of the legal text. If, for example, the disposition of several rules match, the only differences being some slight signs, that takes place the union of these rules in a single article of the act. The same applies to similar hypotheses.

The second reason is the need for accurate determination of the spirit and letter of the law. The meaning of the norms and their verbal expression must be identical. But over time, the text of the act may be outdated, so the language contained in the articles of the act, requires relevant interpretation. In this case, for the correct interpretation of the law, you must define all three elements of the law, some of which may be placed on acts that were taken at different times.

The third reason is the convenience of using by legal act. Sometimes more convenient when a rule of law was located in several articles or act, when in one article contained several of the law.

4. Sources of legal norms.

Special legal term "source of law" means an expression of public will to outward, the external form of law.

The following types of sources of law: legal practice, judicial precedent, religious norms, principles of law, legal acts. Sometimes, as an independent source of law is called the principles and norms of international law.

Legal practice - historically the first source of law: the first laws of the state were authorized by a customs. Custom becomes the norm of law after its acceptance and approval by the state. At the same time, this custom and receives protection from the state.

Legal practice was prevalent in ancient slave and later in the feudal states. Legal monuments of the historical eras - Laws of XII Tables, Salic true, Russian true - they are meeting legal customs.

At present time the legal practices as a source of law are used only in the Anglo-Saxon legal system (in England, its former colonies, a bit in the U.S.). Custom as a source of Russian law is used very rarely (such as custom as a source of law is in the Merchant Shipping Code of Russia).

Business practices are protected by several articles of the Civil Code of Russia.

Article 5 of the Civil Code recognizes the business custom, like established and widely used in business rules of behavior that is not provided for by law, irrespective of is it fixed in any document or not.

Judicial precedent - a decision of the judiciary in a particular case, which was subsequently adopted for the mandatory rule in considering similar cases. Thus, this judicial decision becomes like a model for subsequent decisions.

Domestic law system does not accept precedent as a source of law because the courts are the only law enforcers, not law makers. Case-law legal system has developed in the UK, New Zealand, Australia, Canada and several other predominantly English-speaking countries.

In some states, religious norms are playing a major role, and adopting laws can not contradict them. Mostly it belongs to a theocratic states. In particular, Muslim, Hindu, Jewish law based on religious sources.

For example, canon law plays an important role in Germany, it is part of the country's legal system.

Principles of law. In the Roman-Germanic legal family may be substantiation a court decision in the case of gaps in the law by general principles of law. Also in the Civil Code of the Russian Federation established the possibility to use the following principles of law: reasonableness, fairness and integrity.

Principles of law have a direct regulatory significance, especially those which enshrined in the Constitution.

Constitutions of most of states establish that the generally recognized principles and norms of international law and treaties between nations are a source of domestic law, and often are take priority over domestic law.

These rules are contained in the Russian Constitution (Part 4 of Art. 15), as well as the constitutions of many other countries (France, Germany, Italy, Spain, Greece, Japan, etc.).

International law applies not only in public law, but also in private.

Regulatory and legal acts. The legal acts are characterized by the following:

a) the written form b) they include the rules of behavior c) they are published by the state (its institutions or officials) d) their adoption - it is a special process, and e) they have a hierarchical subordination.

Legal acts are collected in a pyramid on top of which is the Constitution. At the next level are laws, the next stage is occupied by-laws (such as presidential decrees, acts of government, of ministries, agencies, services, etc.). In its legal force acts of ministries and departments of Russia are not as strong as the acts of the Government. In addition, they are usually having a branch of industry nature.

Because Russia - is a federal state in the Russian legal system we can identify these elements of the system, as the statutes subjects of Federation, the laws of the subjects, the acts of the heads of administration, etc. These acts legally valid only within a certain subject of the Russian Federation.

A special group of sub-legal acts - is the solution, rules and regulations of local governments, and decisions and orders of the heads of local administrations. In its territory the local government bodies within their competence, can make decisions about the formation and execution of local budgets, management of municipal property, establishing local taxes, etc. Acts of local government are mandatory for all enterprises, institutions, any types of organizations and individuals, who are located in the territory.

5. Substantive and procedural law.

Substantive law directly regulates substantive, material relations. The norms of this type establish rules of conduct in society, the specific rights and obligations of the parties relationship. Procedural law - is the order of implementation of norms of substantive law and the rights and duties of subjects of legal relations.

Procedural law has much in common with the substantive law, while at the same time, they have some differences. The main differences are as follows:

• procedural law is serving the branch of law, because it regulates legal procedures which are designed to ensure the activities of state and other bodies and officials, the proper application of norms of substantive law;

• gives to certain types of activities legal significance, because in cases of non-compliance with established procedures may result in invalidation of a legal act;

• it is aimed at achieving a concrete legal outcome - for example, the protection of subjective rights, the creation of a normative legal act, the imposition of law enforcement act, etc.;

• It regulates the social relations that are already legal under the action by substantive law.

Procedural law, although it is a service branch of the law, it refers to the basic legal categories, because without the legal proceedings can not be achieved legitimacy in government.