The system of law and system of legislation is closely interrelated, but not identical phenomena. With a certain part of the convention, their ratio can be represented as a ratio of content and form.
The system of law correlates with the philosophical category "Content" and represents the internal structure of the right corresponding to the nature of the regulated social relations.
The system of legislation complies with the category "Form" and represents a combination of formal legal sources of law.
The system of law characterizes the internal structure of the right perceived from the point of view of legal abstraction (theoretical model). A similar assessment of the system of law allows us to talk about it as an objective phenomenon located outside the immediate space-time dependency.
The system of legislation is a set of existing within this state Regulatory legal acts. In this sense, the legislation is subjectively, since, arising from the will of the state, in accordance with the procedure provided by the state, legislative acts Maybe the will of the same state change and cancel.
The primary element of the system of law is the norm of law.
The primary element of the system of legislation is legal act.
Legislation can not exist outside the right, although often the content of legislation can contradict the overall principles (legislation totalitarian states). In turn, the right to receive formal legal consolidation in existing legislation, It cannot be reduced only to formal sources. The dosal type of legal regulation, which is based on the principles "All is allowed, which is not prohibited by law" and "is not an offense, directly not provided for as such, suggests that it assumes that legislative regulation is only part of the mechanism legal impact. Consequently, the right - more voluminous category in its content than legislation.
If the system of law is objective, the system of legislation is more susceptible to subjective factor and depends largely from the will of the legislator. The objectivity of the system of law is explained by the fact that it is due to real public relations. The subjectivity of the legislation is relative, for it is also determined by certain objective socio-economic processes in certain limits.
The division of the right to industry and institutions is the subject and method of legal regulation. Therefore, the rules of the industry are characterized by a high degree of homogeneity. The branches of the law, regulating certain areas of public life, are allocated only on the subject of regulation and do not have a single method. In addition, the subject of the legislation includes very different relations, and therefore the branch of the legislation is not so homogeneous as the branch of law.
In addition, the internal structure of the system of law does not coincide with the internal structure of the legislation system. The vertical structure of the system of legislation is built in accordance with legal force regulatory and legal acts, the competence of the authority of them in the system of subjects of rule-making. In this regard, the system of legislation directly reflects state device countries and, if the state is federal, then there are two levels of legislation - federal legislation and the legislation of the subjects of the federation, and if the state is unitary, then the level of legislation is the central legislation.
The correct understanding of the ratio of the system of law and the system of legislation contributes to improving the effectiveness of the legal regulation process and is prerequisite Optimization of the interaction of the state and law.
Legal system of society It is a specific-historical totality of law, legal practice and the dominant legal ideology of the state.
This is a complex, multi-level, comprehensive, hierarchical, dynamic education, reflecting the entire legal organization of society, a holistic legal reality, where the main, defining link is the right, as a system of norms, rules of conduct established or authorized by the state. The category "Legal System" and "Law" relate to each other as an integer and part. The factors of socio-economic, political, ethnocultural characters are influenced by the formation of the legal system of society.
In addition to the right, legal system Society includes other phenomena of legal reality: legal culture, legal consciousness, legal relationship, mechanism of legal regulation, legitimate behavior, legal liability, etc. Elements of the legal system of society differ in their role, specific weight, the value used by the means, legal Nature, the nature of the impact on public relations. However, they are closely interconnected by the necessary connections, relationships, states, modes. As the main system-forming element, the right has a decisive influence on other components of the legal system. Therefore, any changes to the existing rules of behavior immediately directly affect the state of other components of the legal system.
The legal system covers the whole area of \u200b\u200bthe civilized existence of people and includes such blocks as the normative, performed, doctrinal, relatives, law enforcement, block of rights and responsibilities 1, etc.
The combination of national legal systems combined on the basis of the community of sources, the structure of the right and the historical path of its formation, the principles of regulation, legal doctrines form legal families. In more detail, the issues of their formation and the main characteristics are consecrated in §2 chapter 1 of this textbook.
The concept of I. structural elements Systems of law.The right is a complex, hierarchical education consisting of a variety of elements in relations and connections with each other forming a certain integral unity.
Right system - This is an internal structure of law, consisting of mutually agreed norms, institutions, sub-institutes, industries and sub-sectors of law.
The main signs of the system of law:
1. It consists of mutually consistent consistent elements (rules of law, institutions, sub-institutes, industries, subproduces of law);
2. The objective factors of the socio-economic, political, national, religious characteristics are due;
3. It is characterized by integrity, due to the unity of state will pronounced in legal norms;
4. The primary element of the right system is the legal norm.
Structural elements of the system of law:
The norm of law is generally obligatory, formally defined rule the behavior of a powerful nature emanating from the state.
The Institute of Law is a group of legal norms regulating a certain type of social relations.
Substitute law is a set of legal norms regulating a variety of public relations in a certain institution.
The branch of law is a set of homogeneous legal norms regulating a certain genus (sphere) of public relations.
Employment of law - a system of homogeneous institutions of a certain branch of law.
In prurience, all legal norms are conventionally divided into material and procedural.
Material normsconstituting the meaningful side of the right to provide direct impact on public relations. Norms of procedural and organizational The nature regulates the order, the form of jurisdictional activities of law enforcement agencies, aims to implement the norms of material law.
The main criteria for dividing the rules of law in the industry is the subject and method of legal regulation.
Subject of legal regulation- Public relations regulated by the right. Each industry has its own subject of legal regulation.
Legal regulation method - a set of techniques, funds, methods for regulating public relations. In aggregate with the subject of legal regulation, it allows you to distinguish between the industries mediating similar public relations.
The two main methods of legal regulation are distinguished - imperative and dispositive.
Imperative methodit implies the legal status of subordination subjects, is associated with power regulations, punitive and penalties.
Dispositive method It is characterized by equality of the parties, coordinating their activities, the ability to act at its own discretion within the boundaries established by the current legislation.
The imperative method is characteristic of industries public law (constitutional, criminal, administrative, financial) associated with public power, whose carrier is the state.
The dispositive method is used in the field private law (civilian, family) regulating relationships arising between frequent owners, their legal interests.
Branches of Russian law.
Constitutional (state) law - a branch of law, uniting legal norms, enshrining the foundations of the constitutional system, the principles of organization, goals and objectives, state functions, the main directions of its policies, the principles of the relationship between the individual and the state, the mechanism of state power. The main source of state law is the Constitution of the Russian Federation.
Administrative law - a system of norms regulating public relations in the field of the executive and administrative activities of the state in the economic, political and social spheres Society.
Financial right - Collapse legal normsregulating the financial activities of the state, i.e. Activities for the collection and distribution of funds (tax collection, drawing up, approval and execution of the state budget, etc.).
Civil law - a system of norms regulating a variety of property (property, conclusion of transactions, contracts, inheritance, etc.) and the associated personal non-property relations (honor, dignity, name, authorship).
Family law - a branch of law, regulating procedure and conditions for marriage, termination of marriage and recognition of its invalid, personal non-property and property relations between family members, defining the forms and order of the device in the family of children who are left without parental care.
Land law - A combination of legal norms regulating public relations in the field of land use in accordance with the economic purpose.
Criminal law - The aggregate of norms regulating the grounds and principles of criminal liability, which determine what dangerous for the individual, society or the states of Acts are recognized as crimes establishing types of punishments and other criminal proceedings for committing crimes.
Criminal procedure law - The system of norms regulating the activities of the court, the prosecutor's office, the preliminary investigation bodies and inquiry to disclose and consider criminal cases that determine the procedural forms of this activity, the rights and obligations of the subjects involved in it, their legal status.
Criminal law represents a system of norms regulating the procedure for serving sentences by persons convicted by the court to deprive freedom, as well as the activities of the relevant government agencies and institutions to re-order violators in places of detention.
Civil law Regulates the activities of the bodies of justice and other participants in the process in the resolution of civil, labor, family, personal, financial disputes. This industry includes rules governing the work of arbitration and notarial bodies.
International law. Occupied special place And not included in the national system of law as an independent industry. International law is included in the legal system of the Russian Federation to the extent that the source of the country is the source and does not contradict its national interests. International law regulates interstate relations. Its norms and institutions are enshrined in various international treaties, agreements, charters, conventions, declarations, UN documents that determine the mutual rights and obligations of participants in the world community (states). In international law, division into public law and private law, regulating property and other relations between citizens and organizations of various countries, their procedural situation, jurisdiction, other issues. RF recognizes priority international law Over domestic.
The system of law and the system of legislation: relationship and relationship.The system of law should not be identified with the legislation system. The system of right is objectively in accordance with the actual existing types of social relations, the system of legislation is the result of a targeted ordering of the legislative bodies. The system of law and the system of legislation relate to each other as content and form. The system of law as its content is the internal structure of law, the system of legislation is an external form of law that expresses the structure of its sources is a system of regulatory legal acts.
The main differences between the law system and the legislation system:
1. A valuable element of the system of law is a legal norm, and the primary element of legislation is an article of the regulatory legal act. The structure of the right and the structure of the legislation correlate as content and form.
2. The legislation system and the system of law are different in volume. The system of legislation on the volume of material presented in it is wider, as it includes other elements other than legal norms that cannot be attributed to the right (various program provisions, road rules).
3. The rights of law has an objective nature, due to actually existing social relations. The system of legislation is mainly subjective, as it depends largely from the will of the legislator.
4. Increased structure of the system of law does not coincide with the internal structure of the system of law.
At the heart of the vertical (hierarchical) system of legislation lies the classification of regulations on legal strength and bodies that have been published. This classification relies on the separation of regulatory legal acts to the laws and regulatory regulations.
The vertical structure of law is its division on norms, institutions, industries.
Based on the industry (horizontal) system of legislation lying two criteria - the system of law and system government controlled. In accordance with these criteria, the system of legislation is divided into branches of legislation.
5. The basis of the division of the right to sectors and institutions is the subject and method of legal regulation, the branch of the legislation, are allocated only on the subject of regulation and do not have a single method.
The system of law should not be identified with the legislation system. The system of law is discussed objectively in accordance with the types of social relations existing in each specific country, the system of law is the result of its targeted formation and streamlining.
Legislation in a broad sense is a system of regulatory legal acts. In Russia among regulatory legal acts, laws have the highest legal force. Therefore, the concept of legislation has a narrow interpretation. In the proper sense of the word, the legislation is a set of laws adopted by the bodies of the national representation or directly the people themselves (on the referendum).
The differences between the law system and the legislation system are taken as follows.
1. The initial element of the right system is the legal norm, and the primary element of the legislation is a regulatory act. In this sense, the structure of the right and the structure of legislation correlate as content and form.
2. The right and legislation are different in terms of volume: legislation does not cover the entire diversity of regulations, on the one hand, and on the other, it includes the norms of norms and other elements - technical, quantitative, etc.
3. The system of legislation reflects the system of law and is based on it. In this sense, the system of law has a primary, initial character, and the system of legislation is derivative. The system of law serves as an objective basis for the legislation system.
Systematization, and above all codification, legislation is carried out; As a rule, by industry. In Russia, almost all the basic industries have "their" codes (civil, criminal, cruise, marriage and family, land, housing, about administrative offenses, correctional labor, arbitration, two procedural).
Legislation, as well as the right, is also a system, and not just a mechanical mass of different acts. Elements of the legislation also have signs of unity and difference, coinlab, differentiation, the ability to withdraw.
In contrast to the structure of the right structure (system) of legislation. It has not only a sectoral (horizontal), but also a vertical (hierarchical) and federal structure.
The federal system of Russian legislation is based on two criteria: 1) the federal structure of the state and 2) the competence of the subjects of the Federation in the field of lawmaking.
As is known, the Federal Treaty of March 31, 1992 and the Constitution of the Russian Federation of 1993 provides for three types of subjects of the Federation: the national-state type (republic as part of the Russian Federation), administrative and territorial type (edges, regions, city of Moscow and St. Petersburg) and national -Teneritorial type (autonomous region and autonomous districts).
In accordance with this, legislation (in the widespread meanings of this concept) Russian Federation consists of four levels: 1) federal legislation (Constitution of the Russian Federation, the framework of the legislation of the Russian Federation and the subjects of the Federation, the fundamentals of the Russian policy, federal laws and other regulatory acts of the Federation); 2) the legislation of the republics in the Russian Federation (Republican Constitution, laws and other regulatory acts of republican legislation); 3) the level of edges and regions (regulatory acts - statutes, laws, decisions, decisions of regional, regional, city Moscow and St. Petersburg representative bodies, heads of relevant administrations); 4) Level autonomous region and autonomous districts (Regulatory acts are laws, decisions, etc. regional and district representative bodies, heads of relevant administrations).
At the heart of the sectoral (horizontal) system of legislation is two criteria: 1) system of law and 2) system of branches of public administration. In accordance with these criteria, the horizontal plane of the system of legislation is intended to the branches of the legislation, relevant to industries of law ( constitutional law - constitutional legislation, civil law - civil law etc.), and comprehensive branches of legislation allocated in relation to the sectors of government economies and social relations (environmental legislation, agricultural legislation, transport legislation, etc.). Comprehensive branch of legislation - a kind of regulatory array of acts over the main, basic industry or branches of legislation. The latter are mainly represented, in the form of industry codes (GK, Criminal Code, Code of Criminal Procedure, Code of Criminal Code, COPS, etc.).
Thus, the sectoral (horizontal) structure of the Russian legislation consists of formations of different levels: alummy arrays ( complex industries), major industries, sub-sectors, institutes of legislation, regulations.
At the heart of the vertical (hierarchical) system of Russian legislation lies the classification of regulatory acts on legal strength and bodies that have issued them. This classification relies on the separation of regulatory acts on laws and regulatory acts.
Therefore, the vertical structure of domestic legislation is a system of regulatory legal acts of the Russian Federation; from the laws adopted by the highest representative bodies state power (first of all the constitution) to regulatory acts local organs Authorities and management, as well as acts of the regulatory nature of the local value (institutions, organizations) issued within the credentials provided.
In the sphere of sources (forms in the legal sense) of our right now there are difficult, in many ways of ambiguous processes. Legal reform introduced a large uncertainty in this area, even anarchy, monstrous reproduction of some and extinct other, no less valuable species of acts.
Main legal source (form) russian law - Law adopted representative body state power or direct popular will be on the referendum. For a long time, the status and importance of the law in the domestic legal system was imputed, were powered by the streams of sub-ban and departmental rule-making. Currently, we are probably still at the very initial stage of restoring the rights of law as a real, and not a purely formal source of law. On the path of this recovery, a number of problems have emerged, the correct statement and permission of which will contribute to the revival of the role of the law in the domestic legal culture.
First of all, it is necessary to understand the fundamental fact that the restoration of the full status of the law is in close connection with the systemic ordering and support of all without exception of the regulatory sources of the legal system. At one time, within the framework of political, economic and legal reforms, taking into account the dominance of sub-standard regulation, a sharp increase in the specific gravity of laws in the general regulatory array of the legal system was taken. This course began to be carried out on the basis of a simplified understanding of the formula "priority of the law" - how almost a mechanical numerical superiority of legislation (in its narrow sense) over all other regulatory legal regulators. In this regard, the line to the cultural underestimation of other forms and levels of regulatory impact was designated, and they again began to frustrately and pour legislation. Currently, in many respects due to the disorder and continuing theoretical and practical ambiguity of the status of the regulatory rule, it has again acquired the features of the actual priority form of regulation. The presidential decrees actively interfere with all the sphere of social relations.
No doubt that, in general, the tendency to the introduction of legal regulation, especially its vital, principal spheres related to human rights, the development of the economy, new forms of life in the framework legislative form - Certainly, positive, far from faster and therefore needing in all sorts of support. However, already in the ratio of laws and sub-laws, it is necessary to see the face, the transition of which on the paths of the unrestrained production of laws is no less dangerous and is harmful in terms of the effectiveness of the right, rather than other extremes - uncontrolled government and departmental rules.
Every source of law - and the law and shaft, and the individual decision performs specific functions in the legal system, serve "their" sectors of public relations. Their "trigger", coented, clear interaction - the result of many years of development, long accumulation of experience, legal culture, improving practice. Is it necessary to talk how powerful blow to the domestic law enforcement, and ultimately people cause voluntaristic and non-professional interference in such a thin sphere?
Discretion social value of the law as a form that almost in itself is capable of solving all the problems, it is only one ingest to increase its share in the legal system - the old and beloved prejudice of our theory, with whom she still does not want to part, but which in practice only While unrestrained, inflation and rapid impairment of laws. Each legal system, each particular historical situation knows the measure of laws as sources of law. The formula of this measure in the Russian legal system is the fundamental problem of domestic science. Most likely, this measure does not have anything in common with the scheme "The more, the better," when the "arguments" are given on the number of laws taken in one session by the US Congress. The approach to such an argument itself demonstrates the superficialness of the "new" legal thinking, when even the lawyers themselves bring direct and simplified effects from the comparison of such various legal systems and socio-historical contexts. The ratio of sources of law is natural not only for each legal familyBut for their national varieties. Violation of the proportions of this ratio is fraught with loss of equilibrium of the entire legal culture.
The system of law and the system of legislation is closely interrelated, but independent categories representing two aspects of the same entity - right. It is worth noting that they come together as content and form.
The ratio of the system of law and system of legislation:
1) the system of law as its content - this is an internal structure of law that meets the nature of the community relations regulated;
2) the system of legislation is an external form The rights showing the structure of its sources, which are in relations between interaction and relationships with each other forming a certain unity, integrity, system of regulatory acts;
3) the right, therefore, cannot work outside the law, and legislation in its broad understanding is right;
4) to analyze the structure of the system of law, together with an external form of law, which is a system of legislation, which will make it possible to more correctly and fully determine and distinguish between two at first glance the same legal phenomena.
Legislation It is primarily a place for consolidating legal norms and means of giving them certainty and objectivity, their organization and association in legal acts.
The structure of legislation is perceived by the legal officers as a system just because it is external manifestation Objectively existing law structure.
The structure of law is a pattern. In the study of the system of legislation, the structure of regulatory and legal acts is manifested by the real, objectively determined need for the work of independent branches of law, extension, legal norms.
Therefore, the following differences can be distinguished between the system of law and the system of legislation:
1) The rule of law is the primary element of the system of law. At the same time, the primary element of the legislation is a regulatory act;
2) the system of legislation in its volume material is an extensive system of law, as it includes the provision of the provision that in their own sense cannot be attributed to the right;
3) the division of the right to industry and institutions, in contrast to the legislation, is based on the subject and method of legal regulation;
4) the structure of the system of law does not coincide with the internal structure of the system of legislation;
5) The system of law is objective. And the system of legislation is created under the great influence of the subjective view of the legislator. The delimitation between the system of legislation and the right is mainly due to the needs of classification, systematization of legislation, the activities of state authorities aimed at streamlining legislation, as well as creating a slim, logical system.
As a result, an understanding of the right relationship between the system of law and the legislation system is associated with the following conclusion. The ratio of the system of law and system of legislation is characteristics that allow you to distinguish between two terms of legal theory, expressed in accessibility and reducing unnecessary multiplicity of acts, the implementation of their work on their coordination and proper use.
Systematization of legislation.
Systematization of legislation - Ego Activity to bring regulatory acts and a single ordered system. Thanks to the systematization, the legal system is streamlined, develops, does not lag behind the development of society.
Independent forms of systematization are:
2) incorporation;
3) consolidation;
4) codification.
By consideration of regulatory acts - collection of existing regulations, their processing, location, on a certain system, storage by government agencies, enterprises, institutions and organizations, as well as issuance of information on requests of interested bodies, institutions, enterprises and citizens . In Russia, accounts are subject to:
1. Federal constitutional laws;
2. federal laws;
3. Regulatory decrees President RF:
4. Regulatory acts of the government R.F.;
5. Acts federal organs executive power;
6. lawssubjects R.F.;
7. Acts of the relevant authorities local governments;
8. Regulatory explanations of the Plenum Supreme Court GG;
9. Resolutions Constitutional Court R.F.
The basic principles of accounting for regulatory acts are its completeness, accuracy, convenience.
The most common variations of the accounting are:
1) magazine accounting (maintained in chronological and alphabetically-subject principles; the most convenient form - this accounting of the subject-subject, i.e. acts are systematized by industry of law);
2) card accounting (its main form of maintenance is the creation of a card system, which recorded the main details of NAPA; Cards are usually located in chronological, alphanumeric and subject - industry principles; When the NAP is canceled, changed and add-on changes to the corresponding cards);
3) maintaining NAP texts in the control state (implies changes and additions and other marks directly into the texts of the corresponding NPA);
4) Automated Accounting (using a Computer "Consultant Plus", "Garant", "Code").
Incorporation - Association of PPA of a certain level in collections or legislation meetings.
Incorporation can be:
official (vaults of state laws, etc.);
semi-official (incorporation, but the instructions of the ministries,
departments);
unofficial (creating collections, etc. But the initiative of individuals, enterprises, institutions, firms, etc.).
The incorporation of the country's entire legislation is called general.
Consolidation - Association of roughly regulatory acts. It is carried out by the competent authorities of the state and is a type of lawmaking.
Codification - indigenous processing of homogeneous regulations and a combination on their basis of a new consolidated regulatory Act stable content for the relevant industry of law, for example, the code.
Act resulting from codification: covers an extensive sphere of homogeneous relationship; It has important for the whole society; Stable and operate for a long time; significantly in volume; has a complex structure; It is a single and internally logical document.
Forms of codified acts are the basis of legislation;), codes, charters, provisions, rules.
Forms of realization of law.
The implementation of the right is the process of incarnation of legal regulations in legitimate actions of citizens, bodies, organizations, institutions and other participants in public relations. By accepting relevant regulations, law-conducting authorities are calculated on their implementation in public relations.
Forms of implementation of the right:
1. Conduct
2. Fuel
3. Using
4. Application
Under the observance of the subjects refrain from the commission of unlawful actions, comply with the requirements of legal norms. The behavior of the individual can be legitimate, unlawful, legally indifferent. Compliance with legal norms legitimate behaviorThus the right is implemented, implements.
The features of this form of implementation are as follows:
This is mainly a passive form of behavior of subjects - abstinence from committing illegal action
The most common and universal form of realization of the right, covering all subjects from c. before the president
It concerns mainly legal prohibitions
Exercised out of specific legal relations
It happens naturally, usually, imperceptibly
When executed, the subjects perform duties assigned to them, functions, powers, thereby implementing legal norms.
The specifics of this form is that:
Applies to binding forms
Implies active actions of subjects
Different with imperativeness, authority
In most cases, the adventurous actions are fixed and drawn up
When using the subjects, at their discretion and the wishes, use the rights and opportunities provided to them, satisfy legitimate interests, carry out their veneality. A characteristic feature of this form is voluntary. No one can force a citizen to use his right. In everyday life, people constantly commit legally significant, permissible laws, enter into legal relations with organizations and each other. (Sell, buy, dismissed) they can do themselves. But sometimes a citizen needs to promote bodies (receiving a pension, issuance of a passport, arrange a testament)
In the process of implementing the norm, the right is not only observed, executed, are used, but also used by authorized bodies to the subjects, events, facts. Application is a way to implement the right, which is associated with the powerful actions of jurisdictional bodies and officials. The latter are on behalf of the state, performing functions assigned to them. Apply the rules of law - it means to use power, and often coercion, sanction, punishment.
The system of law and the legislation system are closely interrelated, but independent categories representing two aspects of the same entity - right. They correspond to each other as content and form. The system of law as its content is an internal structure of the right corresponding to the nature of the public relations regulated by him. The system of legislation is an external form of law that expresses the structure of its sources, i.e. system of regulatory legal acts. The right does not exist outside the law, but legislation in its broad sense and is right.
The structure of law is objective, due to the economic basis of society. It can not be built according to the arbitrariness of the legislator. Its elements, as you know, are: the norm of law, the industry, sub-sector, the institute and the sub-institute, which in their aggregate are designed to take into account the diversity of regulated public relations, their specificity and dynamism. Update the system of law is primarily associated with development and improvement. social processes, the relevance of which contributes to the emergence of new legal institutions and industries.
At the same time, the structure of the system of law cannot be disclosed with sufficient completeness and accuracy, if not to see its organic unity with the external form of law - the legislation system. Legislation is the form of existence primarily legal norms, means of imparting them to certainty and objectivity, their organization and associations into specific legal acts. But the system of legislation is not just a combination of such acts, but their differentiated system based on the principles of subordination and coordination of its structural components. The relationship between them is ensured by various facts, the main of which is the subject of regulation and interest of the legislator by rational, comprehensive by the construction source.
Sectoral isolation characterizes the system of legislation. Similar separation is possible, provided that it reflects the features of the content of legal regulation. It is possible to separate in the legislation only what is isolated in reality. The structure of legislation is understood as the system only because it is an external expression of an objectively existing law structure.
The structure of law for the legislator acts as an objective pattern. Therefore, in his decision on the system of legislation, the structure of regulatory legal acts inevitably manifests itself the real, objectively due to the need for the existence of independent branches of law, subproduces, institutions, legal norms. In the process of law, the legislator should proceed from the characteristics of individual divisions of law, the originality of their relations with each other.
The system of legislation should be constructed depending on the current system of law, without rejecting substantially from it. "Theoretical considerations and practical needs of improving the quality of legislation and reduce its volume require the approach of the law and system of law. Moreover, the nature of the system of law and the law system allows us to talk about the close relationship between them. "It is not by chance that the scheme for building an arch of the USSR laws and union republics It was composed partially by branches of law, partly on the practically established areas of integrated regulation - sectors or institutions of legislation. Most scientists considered it necessary to achieve the greatest rapprochement of the system of law and the law system. "
However, the system of law and the legislation system is not identical.
There are significant differences between them that allow us to talk about their relative independence.
Firstly, this is expressed in the fact that the primary element of the system of law is the norm, and the primary element of the system of legislation is the regulatory legal act. Legal norms Industries of law are building material from which one or another branch of legislation is developing. But when building each legislative industry, this building material can be used in different sets and in a different combination of a specific regulatory act. That is why the legislation branches do not always coincide with the branches of law and such a mismatch of bicon.
In some cases, we can state the fact when the industry is there, and there are no branches of legislation (financial law, right social security etc.). Such industries are not codified, but operating in this area regulatory material dispersed in various legal acts.
The inverse situation is not excluded in which the branch of legislation exists without the industry of law (customs legislation).
An ideal option is obviously the coincidence of the branch of law with the industry (civil law, criminal, etc.). This option is most desirable, because the rapprochement of two systems, their harmonious development increases the efficiency of the functioning of the entire legal mechanism.
Secondly, the system of legislation in terms of the volume of the material presented in it is wider than the system of law, as it includes the position in its contents, which in their own sense cannot be attributed to the right (various program provisions, etc.).
Thirdly, the basis of division of the right to industry and institutions is subject to the subject and method of legal regulation. Therefore, the rules of the industry are characterized by a high degree of homogeneity. The branches of the law, regulating certain areas of public life, are allocated only on the subject of regulation and do not have a single method. In addition, the subject of the legislation includes very different relations, and therefore the branch of the legislation is not so homogeneous as the branch of law.
Fourth, the internal structure of the system of law does not coincide with the internal structure of the legislation system. The vertical structure of the system of legislation is based in accordance with the legal force of regulatory legal acts, the competence of the body of the authority in the system of subjects of rule-making. In this regard, the system of legislation directly reflects the state structure of the country and, if the state is federal, then there are two levels of legislation - federal legislation and legislation subjects of the federation, and If the state is unitary, then the level of legislation is the central legislation.
The unity of principles The distribution of law-conducting competence between government agencies on each of these levels allows to allocate two subordination cuts of legislation:
1. Acts supreme Organs state power
2. Acts of higher bodies of public administration.
The vertical structure of the right implies the complex relationships of the rules of law defining it legal force. Especially if you consider the possibility of formulating the rule of law in regulatory legal acts Various legal force.
The horizontal structure of the legislation is based on coordination relations between the elements of the legislation system, usually derived from the nature of the relationship between the relationship between component parts Regulation. With such structural defold, the legislation does not coincide with the branches of law and their number exceeds the number of branches of law.
Fifth, if the system of law is objective, then the system of legislation is more susceptible to a subjective factor and depends largely on the will of the legislator. The objectivity of the system of law is explained by the fact that it is due to the actual social relations. The subjectivity of the legislation is relative, for it is also determined by certain objective socio-economic processes in certain limits.
The need to carry out differences between the law system and the system of legislation is caused, among other things, the needs of the systematization of legislation, i.e. The activities of state bodies aimed at streamlining legislation, bringing it to a slim, logical system.
The establishment of the correct relationship between the law system and the legislation system is an important theoretical and practical task.
The proper decision is designed to provide accessibility, reducing the unnecessary multiplicity of acts, their consistency and proper use in practice.
Control questions To chapter 4:
1. What is law-making?
2. Name the types of lawmaking in the Russian Federation.
3. What are the main stages of the law-conducting process?
4. What is the systematization of legislation and what is its form?
5. What are the types of accounting of legislation?
6. What is the history of the creation of meetings of legislation in Russia?
7. What are the types of incorporation?
8. The concept and appointment of consolidation of legislation.
9. What are the main signs of the codification of legislation?
10. Name the main types of codification acts.
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Chapter 5. Relevant activity.
